PEOPLE OF MI V IRVIN DEVELLE WEST
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 30, 2007
Plaintiff-Appellee,
v
No. 272780
Wayne Circuit Court
LC No. 06-005496-01
IRVIN DEVELLE WEST,
Defendant-Appellant.
Before: Zahra, P.J., and White and O’Connell, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529,
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b,
felon in possession of a firearm, MCL 750.224f, third-degree fleeing or eluding a police officer,
MCL 750.479a(3), and intentionally discharging a firearm at a dwelling, MCL 750.234b(1). He
was sentenced as an habitual offender, fourth offense, MCL 769.12, to concurrent prison terms
of 35 to 60 years for the armed robbery conviction, 20 to 40 years each for the felon in
possession and fleeing or eluding convictions, and 5 to 15 years for the intentional discharge of a
firearm conviction, and a consecutive 5-year prison term for the felony firearm conviction. He
appeals as of right. We affirm. This appeal is being decided without oral argument pursuant to
MCR 7.214(E).
I. Facts
The convictions arose from defendant’s robbery of a video game store, followed by a police
chase to an apartment building, where police found defendant in a utility closet holding a gun to
his head. Prior to his surrender, police heard two shots fired from the closet. The police also
heard defendant, evidently engaged in a cell phone call, admit to committing an armed robbery.
II. Analysis
Defendant contends that he was denied a fair trial because he was tried while attired in jail
clothing. We conclude there is no merit to this argument.
Defendant had other clothes available but chose not to wear them because he claimed that
he saw a coffee stain on the collar and the front of the shirt and “it didn’t look too presentable to
wear.” On the second day of trial, defendant reiterated his choice to wear jail attire. The Court
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inquired “[s]o, but you choose to wear what you have on, right?” and defendant responded,
“[y]es, because there’s no sense in me sitting there with a coffee stain dripping down on my
shirt.”
A defendant is entitled to wear civilian clothing rather than identifiable prison garb while
in the presence of the jury. People v Shaw, 381 Mich 467, 474-475; 164 NW2d 7 (1969).
“[T]he particular evil proscribed is compelling a defendant, against his will, to be tried in jail
attire.” Estelle v Williams, 425 US 501, 507; 96 S Ct 169; 148 L Ed 2d 126 (1976) (emphasis
added). “The reason for this judicial focus upon compulsion is simple; instances frequently arise
where a defendant prefers to stand trial before his peers in prison garments. The cases show, for
example, that it is not an uncommon defense tactic to produce the defendant in jail clothes in the
hope of eliciting sympathy from the jury.” Id. at 507-508. Accordingly, the defendant’s failure
to object to being tried in such clothes “is sufficient to negate the presence of compulsion
necessary to establish a constitutional violation.” Id. at 512-513; see also Shaw, supra.
While he objected that the shirt had coffee stains, he did not request any action to correct
the situation, and instead chose to wear the prison garb. The record does not support his claim of
a constitutional violation.
Defendant argues that his trial counsel was ineffective for failing to object to the clothing
and to secure another shirt. However, as noted in Estelle, supra at 507-508, appearing before the
jury in prison garb is a recognized defense tactic used in hope of eliciting sympathy. Defendant
failed to overcome the presumption that counsel’s actions constituted sound trial strategy and
that the representation fell below an objective standard of reasonableness. People v Toma, 462
Mich 281, 302; 613 NW2d 694 (2000).
Finally, defendant notes that the prosecution “capitalized upon the problem” by stating
during closing argument, “Ladies and gentlemen, the Court’s going to read to you an instruction,
and I’m going to sit down and shut up, that you are not to let sympathy weigh into your decision.
We heard that certain people made their own decision on attire. That decision is made to play on
your sympathy.” Because defense counsel did not object to the remark, we review for plain error
pursuant to People v Carines, 460 Mich 750, 764-767; 597 NW2d 130 (1999), reh den 461 Mich
1205 (1999). Defendant has not shown plain error affecting his substantial rights.
Affirmed.
/s/ Brian K. Zahra
/s/ Helene N. White
/s/ Peter D. O’Connell
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