State v. Johnson, 51634

• Citation: 257 Iowa 1052,135 N.W.2d 518
• Decision Date: 08 June 1965
• Docket Number: No. 51634,51634
• Parties: STATE of Iowa, Appellee, v. Michael JOHNSON, Appellant.
• Court: United States State Supreme Court of Iowa

Page 518

135 N.W.2d 518

257 Iowa 1052

STATE of Iowa, Appellee, v. Michael JOHNSON, Appellant.

No. 51634.

Supreme Court of Iowa.

June 8, 1965.

John A. Jarvis, Chariton, for appellant.

Lawrence F. Scalise, Atty. Gen., and Don R. Bennett, Asst. Atty. Gen., for appellee.

LARSON, Justice.

Pursuant to his arrest on March 14, 1964, in West Des Moines, Iowa, on a charge of operating a motor vehicle while intoxicated, Michael Lee Johnson, the defendant, was bound over to the Grand Jury, which returned an indictment on April 30, 1964, charging him with that offense in violation of section 321.281, Code of Iowa, 1962, I.C.A. Following a plea of not guilty, the case proceeded to trial on September 22, 1964, and the jury returned a verdict of guilty. Appellant was sentenced to pay a $300.00 fine and his driver's license was ordered suspended for thirty days. He appeals, listing five alleged errors, but due to the fact that this case must be returned for a new trial, only three need be considered here.

In his first assignment appellant contends the court erred in denying his motion to produce the police report of his arrest, the blood sample taken from him, and the laboratory work sheets and analysis reports on that test, then in the possession of the state.

The second assignment relates to the alleged error in admitting testimony concerning the accused's blood sample and test, and its procurement by the state, and questions the manner of determining the voluntariness of his consent to the test.

The third claimed error was the giving of Instruction No. 8 to the jury on the 'inference of guilt' when the accused failed to take the stand and testify in his own behalf.

The fourth alleged error complained of Instruction No. 5 defining 'intoxication', and the fifth related to the question of whether the trial court could entertain his motion for a new trial, etc., after he had served notice of appeal to this court.

We shall consider these assignments in a somewhat different order, for in the light of the recent decision of the United States Supreme Court in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, appellant's contention in the third assignment must be sustained.

I. Comment by counsel or the court on the failure of the accused in a criminal trial to testify violates the self-incrimination clause of the Fifth Amendment of the United States Constitution, which is made applicable to the states by the Fourteenth Amendment thereto. Griffin v. State of California (Supreme Court, April 28, 1965).

In Instruction No. 8 the court told the jury: 'You are instructed that under the laws of this State, a defendant in a criminal case has the right to take the stand in his own behalf, but if he fails to exercise this right to take the stand and testify, his failure to do so may be considered by you as an inference of guilt. However, such failure to testify does not deprive the defendant of the presumption of innocence nor does it relieve the State of the burden of proving beyond a reasonable doubt the guilt of the defendant.'

We find no record as to counsel's comments to the jury, but it is clear this instruction under the Griffin case violated the self-incrimination clause of the Fifth Amendment, which the high court said it had made applicable to the states by the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.

The Griffin case, as we read it, holds that regardless of the source of a permissible comment rule in any state, be it state constitution, state law, or by court rule, any such reference violates the Fifth Amendment because 'It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.' This the court held was particularly so when the court solemnizes that silence by an instruction.

Although Iowa was listed as one of six states which has no express constitutional privilege against self-incrimination or laws forbidding comment on failure to testify, this court has on many occasions considered the question. The latest and most exhaustive consideration is found in State v. Ferguson, 226 Iowa 361, 366-373, 283 N.W. 917, 923. Therein the history of legislation relating to defendant's right to testify in a criminal case was traced, and the applicability of both the state and federal constitutions. Section 9 of Article I of the Constitution of the State of Iowa, I.C.A., and the Fifth Amendment and the Fourteenth Amendment to the Constitution of the United States, were considered. The court recognized that Article I of the Iowa Constitution provides that the right of trial by jury shall remain inviolate, and no person shall be deprived of life, liberty or property, without due process of law, and that the Fourteenth Amendment to the Constitution of the United States also contains a provision to the effect that no person shall be deprived of life, liberty, or property, without due process of law by any state. Reference was made to the Supreme Court's decision in Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 25, 53 L.Ed. 97, where the contention was made that comment made in the state court case violated the Fourteenth Amendment. It was observed the court there reviewed quite exhaustively its decisions in regard to the meaning of due process and held such comment did not constitute denial of due process. Thus our error, if it was error, in permitting such comment in the past has been not entirely of our own making. Of course, high courts have not only the right but the duty to change a past decision if it is erroneous, and we are constrained to follow in this change. We, therefore, hold prejudicial error was committed in submitting Instruction No. 8, and for that reason this case must be remanded for a new trial.

II. Appellant's fourth assignment contends the court's Instruction No. 5 defining intoxication was erroneous. We cannot agree for it is substantially the same instruction we have approved in State v. Stout, 247 Iowa 453, 456, 74 N.W.2d 208; State v. Wheelock, 218 Iowa 178, 187, 254 N.W. 313; State v. Yates, 132 Iowa 475, 478, 109 N.W. 1005; and State v. Huxford, 47 Iowa 16. Judge Bliss gave this matter considerable consideration in the Stout case and no further consideration is necessary. The instruction given was correct and there is no merit in this assignment.

III. Appellant's first assignment, although raising an interesting question as to defendant's right to discovery in a criminal case, does not require consideration here. As we understand it, appellant claims he was erroneously denied discovery as provided by Rules 129 and 130, Iowa Rules of Civil Procedure, 58 I.C.A., and that his motion to produce the Police Report of Arrest #229 and the blood sample taken from him with the laboratory work sheets and analysis reports was necessary to insure him a fair trial under Due Process. From the transcript we note this request was made after the jury had been selected and that counsel then said he did not desire a continuance but merely a chance to go over the reports before they started taking evidence, which he assumed would be the next day. He stated he wished to find out 'exactly what the circumstances of the arrest are. It's going to be real important to us and it has to do with the admissibility of the testimony, and so on.'

Rules 129 and 130, Rules of Civil Procedure, relate to the production of books and documents and provide that after the issues are joined on application of any party, '[t]he court may order the production' or permit the inspection of certain books and documents it deems material, on terms or conditions it deems suitable. The applicability of Rules of Civil Procedure to such criminal matters was discussed fully in State v. District Court, 253 Iowa 903, 909, 910, 114 N.W.2d 317, and need not be repeated here. Also see United States v. Smith, D.C., 209 F.Supp. 907, decided October 23, 1962.

In any event, in view of our holding in Division I, the question here is not important. Appellant now is advised as to the matters about which he sought information and can make his objections to admissibility in the next trial accordingly.

IV. In considering appellant's second assignment, it is apparent the issue as to when and under what conditions he was arrested became important, for it is fairly well settled in this and most jurisdictions that a mere search of a person or his immediate surroundings made incident to his arrest, does not violate his right to be secure in his person, house, papers and effects, as provided in Section 8, Article I, of the Constitution of the State of Iowa. State v. Post, 255 Iowa 573, 123 N.W.2d 11, 17, and citations. The rule is stated in 47 Am.Jur., Searches and Seizures, § 53, page 533, as follows: '* * * No search of the person or seizure of any article found thereon can be made on mere suspicion that the person searched is violating the law, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest or shall be lawfully arrested without a warrant as authorized by law * * *.' The question raised in this appeal is whether that search extends to the taking of a sample of a person's blood. In Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448, the United States Supreme Court held the mere taking of a blood sample by a qualified person alone was not an unreasonable search and seizure in violation of the Fourteenth Amendment. Does the record before us reveal a reasonable and legal search so that evidence obtained therefrom was admissible?

From the testimony viewed most favorable to the State, it appears Officer Payne and Melvin O'Neal, a part-time civil defense officer, observed the appellant driving in an erratic manner on Grand Avenue in West Des Moines, Iowa, about 7:50 P.M. They turned the police car around and followed appellant, catching up...