[29] I must respectfully dissent to this decision. I believe this conviction should be reversed and remanded for a new trial. That part of the Trooper's answer to the prosecutor's question was highly prejudicial, when he said, "[I] also read him the chem-test card . . . the car (sic) we have got on the chem-testand at that time, he said that . . . at that time, he said thatwe wasn't going to take any test at all and I told him he would have another opportunity after we got to the County Jail to take the test." (Emphasis added.) Notwithstanding the fact that defense counsel failed to object to the answer, this prejudicial statement, coupled with the erroneous attempt to introduce the laboratory test results, is sufficient to warrant a new trial.
[30] When the prosecutor attempted to introduce the laboratory report, which showed the blood sample was insufficient to reach a determination, defense counsel vigorously objected and moved for a mistrial. His motion was overruled and the trial continued.
[31] Concerning the first proposition, when the Trooper testified that defendant first refused to take any type test, this Court stated in Jackson v. State, Okla. Cr. 397 P.2d 920 (1965):
"In the case on Engler v. State, Okla. Cr. 316 P.2d 625, this Court held:
`Permitting evidence in chief, over objection of the defendant of his refusal to take "Sobriety Test" is prejudicial error and is reversible upon review.'
You will note this states `of his refusal to take "Sobriety Test" * * *' . . . ."
[32] Notwithstanding that no objection was entered to that answer, that statement, coupled with the Trooper's discussion concerning the small amount of blood taken, when the prosecutor openly presented the laboratory report in the jury's presence, could have only prejudiced the jury. Thereafter, it was incumbent upon the defendant to explain a laboratory report which reached no conclusions. The prosecutor knew that the report was of no probative value and should not have waived it in front of the jury.
[33] Defendant's third proposition complains of the Trooper's reference to an earlier arrest of defendant, when the witness was with another Trooper. Defendant again objected and moved for a mistrial, which was denied. Notwithstanding the fact that the jury was admonished to disregard the Trooper's statement, the damage was already done; and it is highly doubtful that such admonishment cured the error.
[34] The Attorney General attempts to apply the decision in Briggs v. State, supra, to justify the Trooper's answer, but I fail to see the connection. In Briggs, the defense counsel inquired of the defendant on direct examination, "`Mr. Briggs have you ever had any trouble, other trouble, with the law?' The defendant started to explain the background of a previous conviction wherein he was interrupted by the Court. His attorney then asked: `Please just state the formal charges that have been against you in the past?'" at page 1317 of 484 P.2d. Thereafter, the prosecutor asked the defendant if he had been charged and arrested for other offenses, to which no objections were made. This Court then made the statement of law cited in the majority opinion. In the instant case defendant was not testifying concerning any former charges or arrests, but instead he was attempting to show the Trooper's prejudice toward him on cross-examination. The situation is entirely different and as I view the record, the rule set forth in Briggs v. State, supra, is not applicable to this case. *Page 820
[35] Considering the record in its entirety, I believe defendant did not receive a fair trial in accordance with due process of law; and therefore, defendant is entitled to receive a new trial. Consequently, I must respectfully dissent to this decision.