COURT UPHOLDS ROBBER'S GUILT BAILIFF CLOSE BY DIDN'T TAINT CASE.

Byline: Karen Maeshiro Staff Writer

LANCASTER - An appeals court has upheld the conviction of a man who was convicted of trying to rob a Lancaster McDonald's after his car ran out of gas.

Derik Walker argued that the trial judge erred by letting a sheriff's deputy stand next to him as he testified on the witness stand.

``The question to be answered here is whether the presence of a single uniformed guard standing next to the witness stand was so inherently prejudicial that defendant was thereby denied his constitutional right to a fair trial. We conclude that it was not,'' the Second District Court of Appeal panel said in its ruling.

Walker had prior convictions for kidnapping, attempted burglary and robbery and was sentenced to 30 years to life in prison under California's ``three strikes, you're out'' law.

Walker, who was wearing pajamas in the restaurant and had pushed his car into a nearby parking lot, denied attempting to rob the McDonald's, having a gun or pretending to have one. After he was arrested, he told an officer that he would never commit a robbery without displaying a gun because he would be unable to adequately control the victim.

The offense occurred shortly after 5 a.m. on Nov. 29, 2003. Authorities said the McDonald's shift manager first noticed Walker pushing a white car down Avenue I.

About 10 minutes later, Walker entered the restaurant and asked the manager for change for the pay phone, explaining that he had run out of gas. Sympathetic, she gave him 50 cents from the cash register and he left.

About 10 minutes later, Walker came back and asked for $5, offering to leave his driver's license and insurance card as collateral. When she refused, he uttered an expletive and left.

About 15 minutes later, Walker came back wearing a hooded sweat shirt over his pajamas and demanded that she open the cash register and give him money, saying, ``I have a gun. Open the register and give me the money.''

While the manager pretended to look for a cash register key, Walker left the restaurant. Deputies arrested him a few minutes later near his parked car.

Walker's appeal said requiring a bailiff to stand next to him while he testified was comparable to forcing a defendant to wear prison clothes or shackles, and may have affected the jury's judgment by implying to them that he was perceived by the court as being a violent and potentially dangerous person, the ruling said.

The U.S. Supreme Court has held that not every practice that singles a criminal defendant out from everyone else in the courtroom violates the defendant's right to a fair trial, the appellate ruling said.

``Defendant was not shackled and it was not apparent that he was in custody. The bailiff walked each witness up to the witness stand. Defendant was the final witness and the fact that the bailiff remained there with defendant was such a minor change in procedure that it was unlikely to affect the jury's decision,'' the ruling said.