State v. Myers

MILLER, Chief Justice.

Thomas F. Myers (Myers) appeals from his judgment of conviction for driving while under the influence of alcohol.

FACTS

On the morning of August 28, 1989, Gerald Shelton (Shelton), manager of a convenience gas station in Rapid City, observed a pickup truck pull up in front of the gas pumps. The driver, Myers, got out of the truck, apparently noticed that the pumps were on the wrong side of the truck, and then returned to the truck. Shelton noticed that Myers then got in the truck and slumped over the steering wheel. Shelton went out to the truck, removed the keys and called the police.

James D. Schultz (Schultz), a Rapid City police officer, answered the police call and discovered Myers still slumped over the steering wheel. Schultz stirred Myers and asked him to step out of the vehicle. As Myers stepped out, he fell into Schultz’s arms. Schultz smelled alcohol. Myers refused to perform field sobriety tests. Schultz placed Myers under arrest and informed him of the implied consent provision, but Myers still refused to perform the sobriety tests. Schultz took Myers to the Pennington County Jail. Schultz testified that Myers was verbally abusive, belligerent, uncooperative and verbally threatening.

A computer check showed no prior DWI convictions but showed that Myers’ driver’s license had been revoked. Schultz believed that the computer was incorrect and he contacted the Pennington County State’s Attorney’s office. A secretary from that office informed him that Myers had two *609prior DWI convictions. Schultz discussed Myers’ attitude with the jailer, Sergeant Merle Thompson. Thompson spoke with Myers and determined that Myers was pugnacious and uncooperative. Thompson and Schultz decided that Myers should be placed in physical restraints.

Schultz asked Myers to submit to a blood draw. Myers refused and stated “Hell no, you ain’t taking nothing.” When the medical technologist arrived, Myers again refused to submit to the blood draw. Schultz decided that Myers should be restrained during the blood draw for the safety of Myers and everyone involved. Five people assisted in restraining Myers. The blood draw was successful and Myers was not injured. The medical technologist testified that she could tell that Myers was resisting despite the restraints. Myers objected to the admission of the blood test results. The trial court allowed admission of the blood test results.

During the jury trial, the prosecuting attorney asked Officer Schultz: “Officer Schultz, did he say anything else in regard to him drinking on that day?” Officer Schultz responded: “I believe that Mr. Myers told me later, after I told him he was being charged with DWI third, that he did indicate that when he got out of jail, he says, ‘You can send me to jail, but when I get out, I’ll do the same damn thing.’ ”

Defense counsel immediately objected on grounds of relevancy. The trial judge sustained the objection and also granted defense counsel’s motion to strike the officer’s response. The trial judge admonished the jury to disregard the officer’s statement. Defendant then moved for a mistrial. The trial judge denied the motion for mistrial after noting that he had been looking directly at the jury at the time of the response and had observed no visible indication that the statement had any effect on the jury.

ISSUES

WAS THE INVOLUNTARY BLOOD DRAW AN UNREASONABLE SEARCH AND SEIZURE?

This Court recently addressed the blood draw/search and seizure issue in a similar case. State v. Lanier, 452 N.W.2d 144 (S.D.1990). In that case, Lanier became argumentative and questioned the medical technologist’s qualifications. The medical technologist gave the defendant his certification card. Lanier threw the card on the ground and refused to submit to the blood draw. When the medical technologist attempted to draw blood, Lanier resisted. Lanier tried to kick one of the jail personnel and was then restrained by five or six officers while blood was drawn.

In the present case, officers testified that Myers was verbally abusive and threatening and was adamant in his refusal to submit to the blood draw. Myers was asked several times if he would allow the blood draw and Myers consistently said he would not. When the medical technologist arrived the officers restrained Myers in a chair with one officer holding each leg, one officer on the right arm and two officers on the left arm, from which the blood was drawn. No attempt to draw blood was made prior to the restraining Myers. However, Myers repeatedly refused to submit to the draw and indicated that he would resist.

Although Myers had not yet physically assailed a police officer, his refusal to submit to the blood draw was unequivocal. In Lanier, we noted that “we do not depart from the general rule that such force must be reasonable under the facts and circumstances of the individual case.” Id. at 147. Under these facts, it was not unreasonable for the police officers to forego a futile and potentially dangerous, unrestrained blood draw.

DID TRIAL JUDGE CLEARLY ABUSE HIS DISCRETION BY DENYING THE MOTION FOR MISTRIAL?

Trial courts have considerable discretion not only in granting or denying a mistrial (State v. Closs, 366 N.W.2d 138, 143 (S.D.1985)) but also in determining the prejudicial effect of a witness’ statements. State v. Michalek, 407 N.W.2d 815, 818 (S.D.1987). Only when this discretion is clearly abused will this court *610overturn the trial court’s decision. Id.; State v. Farley, 290 N.W.2d 491, 494 (S.D.1980).
To justify the granting of a mistrial, an actual showing of prejudice must exist. Closs, 366 N.W.2d at 143; State v. Clabaugh, 346 N.W.2d 448, 451 (S.D.1984). Prejudicial error for purposes of determining whether error constitutes grounds for mistrial is error “which in all probability must have produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.” Michalek, 407 N.W.2d at 818 (citing State v. Dokken [,] 385 N.W.2d 493, 498 (S.D.1986)).

State v. Blalack, 434 N.W.2d 55 (S.D.1988).

Officer Schultz made an unresponsive answer which mentioned the fact that it was Myers’ third DWI. The trial judge sustained Myers’ objection, agreed to strike the answer, and admonished the jury to disregard the statement. The trial judge denied the motion for mistrial and noted several justifications: the answer was unresponsive and unintentional on the part of Officer Schultz; the trial judge was looking directly at the jury when the statement was made and he observed no effect on the jurors; the prosecuting attorney had not planned the event and could not anticipate it; evidence of Myers’ guilt was overwhelming; all other actions requested by Myers were granted in an attempt to alleviate any effect of the statement.

In light of the trial judge’s reasoning, it was not a clear abuse of discretion to deny the motion for mistrial. Affirmed.

MORGAN, WUEST, and SABERS, JJ., concur. HENDERSON, J., concurs in part and dissents in part.