Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR 2012-154081-001 The Honorable Roland J. Steinle, III, Judge
COUNSEL Arizona Attorney General's Office, Phoenix By Andrew Reilly Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix By Kerri L. Chamberlin Counsel for Appellant
Judge Andrew W. Gould delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.
¶1 Mulugeta Yemane Micael appeals his conviction for armed robbery, a class two felony. The offense involved Micael taking a cell phone from the victim while implying he had a gun underneath his shirt. For reasons that follow, we affirm.
A. Waiver of Street Clothes.
¶2 After Micael's first trial ended in a mistrial, the jury at his second trial found him guilty of armed robbery as charged. Before jury selection at each trial, Micael was advised by the trial court that street clothes were available for him to wear at trial. Both times, after acknowledging that he had the option to wear street clothes, Micael stated he wanted to wear his jail attire at trial. On appeal, Micael argues his appearance at trial in jail attire was fundamental error, claiming he did not voluntarily waive his right to wear street clothes.
¶3 It is a violation of due process and equal protection for a court to compel a criminal defendant to wear jail attire at trial. Estelle v. Williams, 425 U.S. 501, 503-04 (1976). Although a defendant has the right to wear street clothes during trial, a defendant can waive this right. State v. Garcia-Contreras, 191 Ariz. 144, 146 (1998). The waiver of this right, however, must be voluntary. State v. Jeffers, 135 Ariz. 404, 416 (1983). No specific colloquy is required to show that a defendant voluntarily waived his right to wear street clothes. See Garcia-Contreras, 191 Ariz. at 146; Jeffers, 135 Ariz. at 416.
¶4 Here, the trial court found Micael voluntarily waived his right to wear street clothes. Our review of the record finds nothing that suggests Micael's waiver was anything but voluntary. The trial court is in the best position to judge whether a defendant's waiver is voluntary, which is "basically an issue of fact, " and this court should not second-guess the trial court's decision absent an abuse of discretion. State v. Bishop, 139 Ariz. 567, 569 (1984) (citation omitted).
¶5 We also disagree with Micael's argument that his waiver was involuntary because the trial court did not explain to him why wearing the jail attire was against his best interest. Contrary to Micael's contention, before finding that Micael's decision to forego street clothes was voluntary at his first trial, the trial court clearly explained that there was a risk jurors might convict him because, seeing him in jail attire, they might believe he was a criminal. While Micael initially stated that he did not understand that, after further questioning by the trial court, Micael told the trial court he understood the risk of wearing jail clothes. There was no error by the trial court in finding Micael voluntarily waived his right to wear street clothes at trial. B. Jury Selection.
¶6 At the start of jury selection at the second trial, the trial court asked the jury venire if there was any reason they could not serve. One venire person who answered in the affirmative stated he was a sergeant with the Maricopa County Sheriff's Office and that he "had dealings" with Micael. Without asking him any ...