On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Shebell, Gaynor and A. M. Stein. The opinion of the court was delivered by Shebell, J.A.D.
[221 NJSuper Page 105] This is a case of first impression in New Jersey. The State appeals the Law Division's February 1987 granting of defendant's motion for post-conviction relief which vacated defendant's convictions and sentences and granted a new trial. The motion judge found that the State's failure to show a voluntary waiver by defendant of his right to wear civilian clothes at trial
was a violation of defendant's constitutional right to a fair trial under the due process clause. Defendant, Mariano Carrion-Collazo, was convicted of murder, possession of a weapon for an unlawful purpose and unlawful possession of a weapon, following a jury trial in February 1983. The New Jersey Supreme Court denied certification of our affirmance on direct appeal of defendant's convictions and sentences.
Within hours of the crime, defendant was arrested and transported to the Mercer County Detention Center from a local police station. The civilian clothes he was wearing at the time of his arrest were taken from defendant at the police station and he was dressed in "detention center greens." Collazo never again saw his civilian clothes but was told that the State was holding them "as proof against me." Collazo remained in custody for approximately seven months prior to trial, during which time his residence burned down. His "common-law wife" retained an attorney to represent him. The attorney met with Collazo at least four times while defendant was confined. Communication was through inmate-interpreters.
Several days before trial, the trial judge's secretary contacted defense counsel and asked him "to attempt to have Mr. Collazo clothed in civilian clothing for the onset of . . . trial." The attorney "spoke with Mr. Collazo on Saturday [before the trial] and I told him that if his girlfriend did come by to ask her to see if she could get some clothes." The attorney testified he advised his client that
I did not consider it to be a problem if he was not able to get clothes because even if he did, it would probably be one set which he would have to wind up wearing day in and day out, and my experience is that that has roughly the same effect as someone sitting in court with prison garb on day to day.
Collazo appeared on the first day of trial dressed in detention greens. The problem was acknowledged before the jury was impanelled and defense counsel proposed that the court advise the jury that
Mr. Collazo was arrested at the time of this incident and has not made bail since that time and accordingly is wearing prison clothing because he is currently incarcerated in the detention center pending the outcome of this case and that
they are not to draw any inferences from the fact that he is wearing the prison greens, that he is still entitled to the presumption of innocence.
The attorney also requested the charge
so the jury understood the reason he was in prison clothing was this charge, this arrest for homicide and not some other charge that he was being brought in from another institution.
The prosecutor, concerned with potential prejudice to the State, requested that defendant be given an opportunity to get civilian clothes. In response to the prosecutor's concerns, the court stated:
We have already taken care of the first part of your request that he be given an opportunity to get clothes because this case has been specially set down for a good month, we have all known the date for a very, very long while. [Defense counsel] has discussed it with his client.
The court indicated that the matter would be handled in voir dire of the jury, to which defense counsel and the prosecutor agreed. Concerning defendant's understanding of the situation, his attorney represented to the court:
He appears to be cognizant of the nature of the problem and nature of my proposed solution. I don't think he has any difficulty with it, but if the Court wants to direct any further ...