Harris v. State

OPINION

BUSSEY, Judge:

Charles Curtis Harris, appellant, was tried by jury for the crime of Driving Un*1274der the Influence of Intoxicating Liquor Subsequent Offense in violation of 47 O.S. Supp.1983, § 11-902 in Case No. CRF-87-1358 in the District Court of Oklahoma County. Appellant was represented by counsel. The jury returned a verdict of guilty and set punishment at five (5) years imprisonment. The trial court sentenced appellant in accordance with the jury’s verdict. From this judgment and sentence, appellant appeals to this Court.

Appellant first contends that there was insufficient evidence to support the charge that he was Driving Under the Influence of Intoxicating Liquor. It is well-settled that, after reviewing the evidence in the light most favorable to the State, we must decide whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202, 203 (Okla.Crim.App.1985).

At approximately 11:30 p.m. on March 16, 1987, Officer Donell Matthews and his partner Officer Richard Earl Wright of the Oklahoma City Police Department observed a vehicle without its headlights on, back out into the street at a high rate of speed. Officer Matthews testified that he swerved his patrol car to avoid having an accident. The vehicle proceeded to drive away. As the officers pursued the vehicle, they observed it crossing the center line. Officer Matthews turned on his overhead equipment and pulled the vehicle over.

Officer Matthews approached the vehicle and asked the appellant, who was driving, for his driver’s license. Officer Matthews testified that he could smell alcohol on appellant’s breath. Furthermore, both officers observed the appellant to be unsteady on his feet, his bloodshot eyes and his slurred speech. We find that a rational trier of fact could have found the elements of the crime charged beyond a reasonable doubt.

Appellant next contends that he was denied his Sixth Amendment right to effective assistance of counsel. Appellant cites two reasons for his claim of ineffective assistance. First, appellant complains that the voir dire, opening statements and closing arguments were not requested by trial counsel to be stenographically reported. However, appellant has cited no authority that this constitutes ineffective assistance of counsel. See Foster v. State, 742 P.2d 1131, 1135 (Okla.Crim.App.1987). This Court will not search for authority to support appellant’s proposition.

Secondly, appellant complains of trial counsel’s failure to object to testimony given by the two arresting officers that the appellant had refused to submit to the breathalyzer test. Specifically, appellant contends that such failure to object waived reversible error. See Tilley v. State, 511 P.2d 586 (Okla.Crim.App.1973). We disagree.

We find that our unanimous decision in State v. Neasbitt, 735 P.2d 337, 338 (Okla.Crim.App.1987) is controlling on this issue. In Neasbitt, we held that 47 O.S.Supp.1987, § 756, which allows admission of evidence of one’s refusal to take a sobriety test, meets constitutional muster according to both the Oklahoma and United States constitutions. It is a lawful penalty to use evidence that a driver refused such a sobriety test. It is not an act coerced, and is not protected by the privilege against self-incrimination. Id. at 338. See also South Dakota v. Neville, 459 U.S. 553, 565 103 S.Ct. 916, 923, 74 L.Ed.2d 748, 759 (1983), wherein the Supreme Court stated, we do not think it fundamentally unfair ... to use the refusal to take the test as evidence of guilt, even though [the defendant] was not specifically warned that his refusal could be used against him.” (emphasis added). Insofar as the following opinions are inconsistent with this opinion, they are expressly overruled: Duckworth v. State, 309 P.2d 1103 (Okla.Crim.App.1957); Engler v. State, 316 P.2d 625 (Okla.Crim.App.1957); Jackson v. State, 397 P.2d 920 (Okla.Crim.App.1964); Gay v. State, 449 P.2d 906 (Okla.Crim.App.1969); Simmons v. State, 485 P.2d 489 (Okla.Crim.App. *12751971); Martin v. State, 487 P.2d 1179 (Okla.Crim.App.1971); Morris v. State, 497 P.2d 1108 (Okla.Crim.App.1972); Sloan v. State, 503 P.2d 580 (Okla.Crim.App.1972); and Tilley v. State, 511 P.2d 586 (Okla.Crim.App.1973); and Synnott v. State, 515 P.2d 1154 (Okla.Crim.App.1973). Insomuch as the admittance of this evidence was not error, we cannot say that trial counsel’s failure to object was ineffective assistance. This assignment lacks merit.

Finally, appellant contends that the trial court erred in admitting into evidence the judgments and sentences of appellant’s former convictions. Specifically, appellant contends that there was no proof that the appellant had effective assistance of counsel or had waived the same at the time of the convictions.

Initially, we note that a former conviction is proven by the introduction of a properly certified judgment and sentence along with proper identity of the person. Stinson v. State, 739 P.2d 541, 542 (Okla.Crim.App.1987). The record in the present case clearly shows that the appellant had been represented by counsel. (State’s Exhibit Nos. 1-4). Moreover, prior to the second stage proceedings, appellant and the State entered into a stipulation concerning the prior convictions. (Tr. 54). Finally, when the exhibits were introduced into evidence, appellant did not object. (Tr. 56). We find no error.

For the foregoing reasons, the judgment and sentence is AFFIRMED.

BRETT, P.J., and LUMPKIN, J., specially concur and file opinions. LANE, J., concurs. PARKS, V.P.J., dissents and files an opinion.