¶1dissenting. I compliment the majority’s even-handed recitation of the facts in this case and thorough citation of the applicable law. I part company only with their conclusion, which emerges like an ending from an O. Henry short story, that Croston “waived” his right not to appear in jail clothing. The majority does not satisfactorily explain how an unequivocal objection on the record by Croston’s trial counsel, testimony from the State’s only witness that Croston stated that he would accept a “failure to appear” rather than face the jury in the clothing the jailers offered, and Croston’s own interjection that the proffered clothing was “too small” constitute a waiver.
¶2In Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002), the supreme court noted that the burden is on the State to establish that appellant waived his rights, and all doubts must be resolved in favor of the individual rights and constitutional safeguards.Id.(Citing Bradford v. State, 306 Ark. 590, 815 S.W.2d 947 (1991)). Further, it noted that the term “waiver” is defined as the “renunciation, repudiation, abandonment, or surrender of some claim, right or privilege, or of the opportunity to take advantage of some claim, right, irregularity or wrong.” Here, it is apparent from the record that Croston did not wish to be tried in prison clothing and that he was merely objecting to the clothing that was offered to him. Under these facts, it is clear that the State failed to prove that. Croston waived his right to be tried in civilian clothes.
¶3The authority that the majority cites only bolsters my conclusion that they simply got it wrong. In Holloway v. State, 260 Ark. 250, 539 S.W.2d 435 (1976)(rev’d on other grounds Holloway v. Arkansas, 435 U.S. 475 (1978)), the appellants twice rejected the trial court’s offer to allow them to change clothes. In Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003), not only did the appellant waive his right to appear in street clothes on the record, he “expressly requested to stay in jail togs.” Finally, in Washington v. State, 6 Ark. App. 23, 637 S.W.2d 614 (1982), the appellant was asked by the judge if he wanted to wear the clothing that he was arrested in or the prison jumpsuit, and the appellant answered “wear the jumpsuit.” In the instant case, the trial court did not inquire of Croston his reasons for rejecting the institutional clothing that the jailers were seeking to provide him with. I submit that not asking Croston on the record whether he was waiving his right to appear in civilian clothing, the procedure approved of by our supreme court in Holloway and Newman and this court in Washington, constitutes reversible error.
¶4The majority does not explain, and I cannot fathom why the right to a fair trial was so easily lost by Mr. Croston. It is well settled that a person may waive his constitutional rights, but, that waiver must be knowing, intentional, and unambiguous. For instance, the right to a jury trial may be waived, but Rule 31.2 of the Arkansas Rules of Criminal Procedure requires that, if a defendant wishes to waive his right to trial by jury, he must do so personally, either in writing or in open court. Similarly, a criminal defendant may waive his right to counsel and represent himself; we require however, that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999). Furthermore, our supreme court requires a specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant possessed such required knowledge from other sources, to establish the validity of a waiver. Bledsoe v. State, 'S'bl Ark. 403, 989 S.W.2d 510 (1999). The waiver of a defendant’s right against self-incrimination has long required unambiguous proof that the defendant was apprised of these rights and knowingly and intelligently waived them. Miranda v. Arizona, 384 U.S. 436 (1966). Moreover, the statements arising from custodial interrogation are presumed to be involuntary, and like the right not to appear in jail clothing, the burden is on the State to prove that a defendant knowingly and intelligently waived his privilege against self-incrimination and his right to an attorney, and that he voluntarily made the statement. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).
¶5Prior to today’s decision, the right to a fair trial afforded by prohibiting the State from trying an individual in jail clothing was protected by the courts of this state in a manner similar to the way that we still protect the right to a jury trial, the right to counsel, and the right against self-incrimination.
¶6I am authorized by Judge Bird to state that he joins in this dissent.