Brunmeier v. State

CARDINE, Justice.

Appellant was convicted of violating the Wyoming forgery statute, § 6-3-602(a)(ii), W.S.1977, and was sentenced to incarceration for a period of not less than 18 months nor more than 48 months and fined $1,000. The single issue raised on appeal is whether appellant’s privilege against self-incrimination guaranteed by Art. I, § 11 of the Wyoming Constitution was violated when she was required to produce a handwriting exemplar.

We affirm.

On July 5, 1985, appellant cashed a $300 check at the Horizon Lounge in Gillette, Wyoming. The check was drawn on the account of Jerome Kastrow and was made payable to the order of appellant. Later that evening the manager of the Horizon Bar contacted Mr. Kastrow and asked him to come to the lounge. When Mr. Kastrow arrived, the manager presented the instrument and demanded payment. Mr. Kas-trow insisted that he did not issue the check and refused to pay.

On July 15, 1985, Mr. Kastrow signed an affidavit of forgery at the Stockmens Bank in Gillette, Wyoming. He informed officers of the Campbell County Sheriff's Office that he believed appellant was the person who cashed the check and that she did so without his consent or authorization. On August 26,1985, appellant was arrested and charged with two counts of forgery. One count was subsequently dropped.

Before trial, the State obtained an order compelling appellant to provide a handwriting exemplar for use at trial. Appellant complied with the order, over objection, and now contends that her privilege against self-incrimination under Art. I, § 11 of the Wyoming Constitution was violated when she was compelled to furnish the handwriting exemplar.

It is well established that the privilege against self-incrimination contained in the Fifth Amendment of the United States Constitution does not prohibit a court from compelling a defendant to furnish handwriting exemplars. In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), the United States Supreme Court held that

“[t]he taking of [handwriting] exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of ‘an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,’ and not ‘compulsion which makes a suspect or accused the source of “real or physical evidence” * * *.’ Schmerber v. State of California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 [1966]. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, 388 U.S. [218], at 222-223, 87 S.Ct. [1926], at 1929-1930 [18 L.Ed.2d 1149 (1967)].”

This court has observed that the Fifth Amendment privilege against self-incrimination only protects against the compulsion of incriminating evidence of a testimonial or communicative nature. Cook v. State, Wyo., 631 P.2d 5, 9 (1981). In this case appellant asks us to hold that Art. I, § 11 of the Wyoming Constitution provides greater protection to a criminal defendant.1 We decline to do so.

*267Our decision is supported not only by the overwhelming weight of authority, see An-not., 43 A.L.R.3d 653 (1972), but also by the specific wording of Art. I, § 11, which is even more restrictive than that of the federal constitutional provision. While the federal provision states that “no person * * * shall be compelled in any criminal case to be a witness against himself,” our state constitution provides that: “No person shall be compelled to testify against himself in any criminal case * * (Emphasis added.)

Appellant urges us to adopt the rule followed by Georgia, the single jurisdiction that has departed from the federal rule. The Georgia Supreme Court has held that a defendant may not be compelled to produce a handwriting exemplar because Art. I, § 1, Paragraph XIII of the Georgia Constitution (1976) protects a defendant from being forced to “perform an act which results in the production of incriminating evidence.” State v. Armstead, 152 Ga.App. 56, 262 S.E.2d 233, 234 (1979). The Arm-stead court, following the rule previously announced in Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972), drew a distinction between forcing a defendant to submit to an act and compelling him to affirmatively perform an act which tends to incriminate him. In Hansen v. Owens, Utah, 619 P.2d 315 (1980), the Supreme Court of Utah adopted the Georgia approach. In 1985, however, Hansen was overruled. In American Fork City v. Crosgrove, Utah, 701 P.2d 1069 (1985), the Utah Supreme Court identified the shortcomings of the submission/affirmative act distinction, stating:

“[T]he standard can lead to irrational distinctions and incongruous results. For example, under the affirmative act standard, an accused could not be compelled to place his foot in a footprint near the scene of the crime * * * [y]et an officer could forcibly remove the accused’s shoe and place it in the track. Similarly, an accused could not be compelled to provide a voice exemplar, to be matched against a voice graph from a recording made at the time of the crime, but he could be fingerprinted against his will. * * * The distinction might also mean that the state could obtain blood samples from an unconscious person, but could not get a breath sample from a conscious person, even though the latter is far less intrusive upon a person’s privacy and bodily integrity. In short, the affirmative act standard requires the state to make overly fine distinctions that may not further significantly the policies of the privilege.” (Citations omitted.) Id. at 1074-1075.

We find the reasoning of the Utah Supreme Court persuasive and, therefore, we decline to adopt the affirmative act standard urged by appellant.

Appellant’s conviction is affirmed.

URBIGKIT, J., filed a dissenting opinion.

. "[C]onstitutional standards announced by the Supreme Court of the United States are minimal, which rights may be enlarged under State constitutional provisions if justifiable.” Richmond v. State, Wyo., 554 P.2d 1217, 1223 (1976).