Appellant Dennis Lydell Hightower appeals his conviction on the grounds that the district court erred when it denied his request to allow an incarcerated defense witness to appear at trial in civilian clothing. Hightower was convicted of one count each of gross misdemeanor conspiracy to commit larceny, gross misdemeanor unlawful taking of a motor vehicle, and felony conspiracy to commit robbery. When the victim stopped his car to help an apparent stranded bicyclist, Hightower’s codefendant, Derrick Farr, knocked the victim to the ground after repeatedly striking him in the face. While on the ground, Hightower took the victim’s wallet and keys. Hightower, Farr, and a female entered the victim’s vehicle and drove away. A Las Vegas Metropolitan Police Officer located the vehicle and conducted a felony traffic stop. The victim identified both Hightower and Farr as the perpetrators. The codefendants were arrested and subsequently charged with conspiracy, robbery, and grand larceny. The officer identified the female as Estelle Golightly. At trial, Golightly served as a defense witness. However, at the time of the trial, she was incarcerated on a conviction for a gross misdemeanor and a probation violation. Before the defense began its case, counsel for Farr informed the district court that he had brought a change of clothing for Golightly to wear while testifying. However, the court refused to allow Golightly to change out of her prison attire. Hightower’s defense counsel objected. Golightly testified in her jail clothing. She testified as to why she was incarcerated, and admitted to being a crack cocaine addict and a prostitute. Golightly testified that the victim was a john who allowed her to use his car in exchange for sex. While she was in possession of the borrowed vehicle, Hightower and Farr accompanied her to pick up some laundry and to get something to eat. Despite this testimony indicating she had permission to possess the vehicle, the jury convicted Hightower. On appeal, the Nevada Supreme Court reexamined the rule established in White v. State that a district court may properly refuse a defendant’s request for an incarcerated witness to appear in civilian clothing. The Court recognized that although White correctly states that the presumption of innocence only applies to the accused, the practice of requiring an incarcerated witness to appear at trial in prison attire may prejudice a defendant and affect his constitutional right to a fair trial. As a result, the Court modified White and held that in future cases, absent unusual circumstances, district courts should not compel incarcerated witnesses to appear at trial in such distinctive dress as it may taint the fact-finding process by the jury. Procedurally, the burden is on the defendant to timely request that his incarcerated witness be permitted to testify in civilian clothing and failure to do so is deemed a waiver of the right. Finally, the Court concluded that although the district court abused its discretion in denying Hightower’s request, the error was harmless because it did not substantially affect the verdict. Therefore, the Court affirmed Hightower’s conviction.
Welsh, Shauna, "Summary of Hightower v. StateHightower v. State, 123 Nev. Adv. Op. 7" (2007). Nevada Supreme Court Summaries. 505.