Harris v. State

LUMPKIN, Judge,

specially concurring:

I specially concur in this case for the reasons set forth below.

Judge Bussey in State v. Thomason, 538 P.2d 1080 (Okl.Cr.1975) artfully analyzed the issue of the proper interpretation of Article II, § 21 of the Oklahoma Constitution. This exhaustive analysis of the terminology and intent expressed by that constitutional provision should be our guide in examining the issues in the present case. I cannot agree with the dissent that Article II, § 21 of the Oklahoma Constitution could, under some circumstances, be broader in scope than the Federal Fifth Amendment. Either the terminology should be literally applied in all circumstances or defined as this Court has set forth in Thoma-son. A literal interpretation would mandate that this Court’s rulings as to the admissibility of blood tests, fingerprints, writing exemplars, lineups and any other incident when a defendant is compelled to produce himself or other evidence must be vacated. This Court has consistently ruled that compelled production of these types of evidence is constitutional under both the state and federal constitutions.

It is interesting to trace the chronology of the case law in the state of Oklahoma relating to the interpretation of this particular provision of our Constitution. In Duckworth v. State, 309 P.2d 1103, 1105 (Okl.Cr.1957), the Court stated that “because an intoximeter test was not taken, the rule against self-incrimination is not involved, herein.” The Court then proceeded to apply the provisions of 22 O.S.1951, § 701 which it recognized as being merely a reiteration of the self-incriminatory provision of the Oklahoma Constitution, Article II, § 21. Id. at 1106, 1107. The majority opinion in Duckworth did not address the constitutional issue directly but dealt with the refusal evidence from the standpoint that it would be termed “a negative predi*1276cate which was productive of nothing more than sheer speculation, surmise, and innuendo.” The Court then stated that it has repeatedly held that no conviction based upon speculation, surmise, or innuendo will be sustained. Judge Powell in his dissent to Duckworth did address the constitutional issues and the appropriate interpretation of our constitutional provision. Judge Powell cited the following holding from Ricketts v. State, 23 Okl.Cr. 267, 215 P. 212 (1923):

The constitutional provision guarantees no greater privilege than that all persons, whether parties or extraneous witnesses, shall be free from compulsion by legal process, to give self-incriminating testimony. The principal purpose of the provision was to prohibit compulsory examination of prisoners before trial or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in crime. It could reach further only in exceptional and peculiar cases coming within the purpose and spirit of the inhibition. (Emphasis added) 309 P.2d at 1107.

This interpretation is consistent with case law applying both our state and federal constitutions when the emphasis is placed upon the compelling of testimony.

Engler v. State, 316 P.2d 625 (Okl.Cr.1957) addressed the issue of refusal to submit to a “sobriety test”, and cited Duck-worth. However, the opinion stated:

Until their accuracy is more firmly established or legislative action is taken, a refusal to submit to such a test should not be permitted to work against the interest of the defendant. Id. at 627.

Thus, Engler laid the predicate, later reiterated in McCullick v. State, 682 P.2d 235 (Okl.Cr.1984), that the admissibility of a refusal to submit to a sobriety test must be resolved by the legislative branch.

The dissent urges that this Court return to the law enunciated in Bailey v. City of Tulsa, 491 P.2d 316 (Okl.Cr.1971) wherein the Court ruled that the Oklahoma constitutional prohibition against self-incrimination is broader in scope than the corresponding Federal provision and is not limited to testimonial evidence. Bailey held:

It is therefore settled in this jurisdiction that nontestimonial evidence such as a test of defendant’s blood for intoxication falls within the scope of the self-incrimination prohibition. Thus the federal distinction between testimonial as opposed to real or physical evidence from accused is not decisive of the question before this Court. Rather, the issue is, if the Implied Consent Law compelled defendant to take the test and thus give evidence which will tend to incriminate him in violation of our Constitution. Id. at 318.

The Bailey Court determined that by taking the test, a defendant knowingly waives the self-incrimination privilege, thus the opportunity to elect refutes the claim of compulsion. In Application of Baggett, 531 P.2d 1011, 1020 (Okl.1974) the Supreme Court addressed Bailey’s inconsistencies:

While we find it unnecessary to hold that Oklahoma’s view of the self-incrimination privilege is erroneous, it should be pointed out that we recognize the inconsistency of Bailey, supra. The Bailey rationale that the Oklahoma self-incrimination privilege is broader than the Federal is not only inconsistent with the Supreme Court’s view in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed. 2d 908 (1966)] supra, but with that of other states having self-incrimination prohibitions identical in nature to Oklahoma. The Bailey opinion is even inconsistent with past holdings in this State, as will be demonstrated.

The Baggett Court then noted that this Court had required a defendant to submit fingerprint exemplars and handwriting specimens without violation of his right against self-incrimination, and that a breathalyzer test is similar in nature.

Thomason, which overruled Bailey, was the first case by this Court which addressed whether Oklahoma’s constitutional provision is broader than the Federal provi*1277sion. In Thomason, this Court dissected our constitutional provision, compared it with like constitutional provisions from other states, and concluded that it prohibits compelled testimonial evidence. The Tho-mason decision was reaffirmed in Ross v. State, 556 P.2d 638 (Okl.Cr.1976), wherein the Court admitted the results of a breathalyzer test and stated that there is no need to quote the Miranda warnings prior to administering the blood alcohol test. In McCullick v. State, 682 P.2d 235, 236 (Okl.Cr.1984) the Court denied the admissibility of a refusal to submit to a sobriety test, holding:

A plain reading of Oklahoma’s Implied Consent Law, 47 O.S.Supp.1983, §§ 751 et seq, demonstrates that the legislature granted an absolute right to one arrested for DUI to refuse to submit to a test to determine the alcohol content of his blood, although not without certain consequences attaching to said refusal. The only sanction provided, however, is revocation of the driver’s license of one who refused to submit to a sobriety test. The admission or exclusion of such evidence is a proper matter to be resolved by the legislative branch of government within the framework of the constitution. (Emphasis added)

The McCullick Court determined that South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) was not applicable because Oklahoma had no state statute allowing the use of a refusal to take a test.

The issue of constitutionality of the amendments to the Oklahoma Implied Consent Law allowing admission of a refusal was finally presented to this Court in State v. Neasbitt, 735 P.2d 337 (Okl.Cr.1987) on a reserve question of law. The Court reaffirmed that:

While it is true that at one point in time this Court held that our constitutional provision prohibiting compelled self-incrimination extended to nontestimonial evidence, see Bailey v. City of Tulsa, 491 P.2d 316 (Okl.Cr.1971), we have since retracted that ruling. Id.

The Court determined that admission of evidence of one’s refusal to take a sobriety test “meets constitutional muster according to both the Oklahoma and the United States Constitutions.” Id. at 338. The Court agreed with Neville that “[i]t is not an act coerced, and is not protected by the privilege against self-incrimination.” Id.

Both Neville and Neasbitt state that the legislature may legitimately permit evidence of refusing the test to be introduced at trial as a penalty. Neville discusses this penalty as one which may be used as a statement against penal interest, i.e. “evidence of guilt”. If this evidence is allowed as a statement against penal interest, then in reality it allows the State to prove what was described in Duckworth as “a negative predicate” and shifts the burden of proof to a defendant. 309 P.2d at 1105. This shifting should not be permitted. As stated in Duckworth:

This Court has repeatedly held that no conviction based upon speculation, surmise, or innuendo will be sustained. Slaton v. State, 97 Okl.Cr. 12, 257 P.2d 330 [1953]; Doty v. State, 88 Okl.Cr. 381, 203 P.2d 444 [1949]; Taylor v. State, 36 Okl.Cr. 419, 255 P. 158 [1927]. Id.

Title 47 O.S.Supp.1984, § 756 does not address for what purpose evidence that a person has refused to submit to a sobriety test might be admissible. The refusal to take a test does not show whether or not the person arrested is legally intoxicated. Just as admissibility of character and impeachment evidence is for a limited purpose requiring a limiting instruction to be given to the jury, so should the admissibility of the refusal of a defendant to take a blood alcohol or breathalyzer test be limited. Ne-ville recognized the analogy of this type of evidence to evidence of flight. 459 U.S. at 561, 103 S.Ct. at 921. We now require an instruction on flight that requires the State to meet its burden of proof. OUJI-CR 806. To be consistent and ensure that the burden of proof remains with the state, the following limiting instruction should be required:

*1278Evidence has been introduced of the Defendant’s refusal to take a test to determine the blood alcohol level in his/her body at the time of his/her arrest. You must determine if this refusal constitutes an inference of guilt.
To find that the Defendant’s refusal constituted an inference of guilt you must find beyond a reasonable doubt that first, the Defendant refused the test; second, with a consciousness of guilt; and third, in order to avoid arrest or conviction of the crime with which he/she is now charged.
[Note: If Defendant has given evidence explaining acts then give the following: The Defendant has offered evidence explaining his/her acts. You must consider the evidence of the Defendant in determining if he/she refused the test due to a consciousness of guilt.]
If, after a consideration of all the evidence on this issue, you find that the Defendant refused the test with a consciousness of guilt and in order to avoid arrest or conviction, then this refusal is a circumstance which you should consider with all the other evidence in the case in determining the question of the Defendant’s guilt or innocence. However, if you have a reasonable doubt that the Defendant refused the test due to a consciousness of guilt and to avoid arrest or conviction of the crime, then the refusal to take the test is not a factor for you to consider.

With this limiting instruction the burden of proof will not shift to the defendant and a conviction which might be based upon speculation, surmise, or innuendo as to the effect of the refusal will be precluded. The failure to give the limiting instruction in this case, however, does not constitute fundamental error requiring reversal.

The foregoing application of our constitutional provision regarding self-incrimination provides more certainty in the interpretation and application of the Constitution of this State. To adopt a concept that the Oklahoma Constitution could, under some circumstances, be interpreted to be broader in scope than the Federal Fifth Amendment leaves open selective interpretation of our Constitution. It would also bring into question the viability of previous decisions of this Court relating to certain types of compelled evidence which have been approved by the Court.