State v. Haze

• Decision Date: 08 November 1975
• Docket Number: No. 47711,47711
• Citation: 218 Kan. 60,542 P.2d 720
• Parties: STATE of Kansas, Appellee, v. Kenneth A. HAZE, Appellant.
• Court: Kansas Supreme Court

Page 720

542 P.2d 720

218 Kan. 60

STATE of Kansas, Appellee, v. Kenneth A. HAZE, Appellant.

No. 47711.

Supreme Court of Kansas.

Nov. 8, 1975.

Syllabus by the Court

1. The privilege against self-incrimination afforded by Section 10 of the Kansas Bill of Rights and the Fifth Amendment to the Constitution of the United States applies to communications or testimony of an accused, but not to real or physical evidence derived from him.

2. A handwriting exemplar, used solely for identification purposes, is a mere identifying physical characteristic and, as such, is outside the scope of the privilege against self-incrimination provided by Section 10 of the Kansas Bill of Rights and the Fifth Amendment of the Constitution of the United States.

3. When ordered by a court to supply handwriting exemplars, an accused has no constitutional or statutory right to refuse and if he does so the fact of his refusal may be admitted into evidence.

Even though not prejudicial this court disapproves an instruction which places undue emphasis on a single isolated fact in evidence.

Richard L. Hilton, Wichita, argued the cause and was on the brief for appellant.

Robert L. Kennedy, Jr., Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.

KAUL, Justice:

The defendant, Kenneth A. Haze, appeals from convictions by a jury of felony theft (K.S.A. 21-3701(d) (receiving stolen property)), possession of a firearm after conviction of felony (K.S.A. 21-4204(1)(b)), and possession of barbiturates and amphetamines with intent to sell in violation of K.S.A. and K.S.A.1974 Supp. 65-4101 et seq., (65-4124-4127, Repealed, Laws 1973, Ch. 259, Sec. 5). The issues presented on appeal stem from defendant's refusal to supply exemplars of his handwriting.

Following the burglary of a private residence in Wichita a search warrant was obtained by police officers who searched an apartment occupied by defendant. The search resulted in the seizure of a number of articles, which had been reported stolen in the burglary, and also a quantity of barbiturates and amphetamines. The officers also discovered a spiral notebook, which contained lists of various drugs, the prices thereof, and a list of names of persons believed to be involved in drug traffic. During the search the officers also found three handwritten notes signed 'Kenney.' In order to establish the authorship of the notes and to identify the handwriting in the notebook, the state moved the trial court for an order requiring the defendant to provide the state with handwriting exemplars. Defendant's counsel informed the trial court that defendant's refusal to comply with the court's order was upon the advice of counsel. The court specifically advised the defendant that he had no constitutional right to refuse to give the exemplars; that he could be held in contempt for his refusal or, in the alternative, that the prosecution would be permitted to use the fact of his refusal as evidence against him at trial. Defendant stood firm on his refusal and evidence thereof was admitted through the testimony of a detective. The court overruled defendant's objection and instructed the jury as to the manner in which it might consider defendant's refusal.

Defendant concedes that the United States Supreme Court in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, made clear that the compelling of handwriting exemplars is not a violation of the rights of an accused under the Fifth Amendment to the Constitution of the United States. In Gilbert the court analogized the giving of exemplars with the exhibiting of an accused's person in a line-up (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) and the withdrawal of blood for a blood-alcohol examination (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908) and had this to say:

'. . . The taking of the 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. California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 16 L.Ed.2d 908. 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. at 222-223, 87 S.Ct. at 1929-1930 . . ..' (388 U.S. pp. 266-267, 87 S.Ct. p. 1953.)

The defendant takes the position that even though he could be ordered to provide an exemplar and on refusal held in contempt, nevertheless, the refusal to provide exemplars constituted testimonial by-product and as such was inadmissible.

In support of his position defendant fails to cite any cases specifically dealing with the giving of handwriting exemplars. Defendant does cite four cases dealing with refusal by an accused to submit to a breathalyzer test, or to give blood for a blood-alcohol test. (Gay v. City of Orlando (Fla.App.), 202 So.2d 896; State v. McCarthy, 259 Minn. 24, 104 N.W.2d 673; Johnson v. State, 125 Ga.App. 607, 188 S.E.2d 416, and Engler v. State (Okl.Cr.), 316 P.2d 625.) The cases cited stand for the proposition that while the test itself may not be testimonial, the refusal to take it is. In his brief defendant concedes that the cases cited represent a minority view. In each of the cases cited the accused had a statutory right to refuse the sobriety test involved. K.S.A.1974 Supp. 8-1001 providing for the giving of chemical tests contains a statutory right of refusal similar to the statutory rights of refusal set out in the cases cited by defendant. On this point 8-1001 provides:

'. . . If the person so arrested refuses a request to submit to the test, it shall not be given . . ..'

Discussions concerning this aspect of 8-1001 may be found in State v. Faidley, 202 Kan. 517, 450 P.2d 20, and Lee v. State, 187 Kan. 566, 358 P.2d 765.

There is no statutory or constitutional right of refusal involved in the giving of handwriting exemplars-thus the framework in which the question at bar is presented is clearly distinguishable.

Before consideration of the issue presented, we should pause to observe that the provisions of the Fifth Amendment to the Constitution of the United States grant no greater protection against self-incrimination than does Section 10 of the Kansas Bill of Rights. (State v. Faidley, supra, and State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R.2d 750.)

While this court has not heretofore been confronted with the precise question presented herein, we believe our holdings in State v. Faidley, supra, and State v. Freeman, 195 Kan. 561, 408 P.2d 612, cert. den., 384 U.S. 1025, 86 S.Ct. 1981, 16 L.Ed.2d 1030, bear upon principles sufficiently similar to be worthy of note. In Faidley, a prosecution for driving while under the influence of intoxicating liquor, we considered the admissibility of defendant's performance of a 'heel-to-toe balance test' and held it to be nontestimonial and not in violation of the defendant's privilege against self-incrimination. The testimony of a highway patrol officer, describing defendant's conduct, was held to be admissible. Concerning the protection of Section 10 of the Kansas Bill of Rights we held:

'The privilege against self-incrimination as contained in Section 10 of the Kansas Bill of Rights and the Fifth Amendment to the Constitution of the United States relates only to testimonial or communicative acts on the part of the person to whom the privilege applies, and does not apply to acts nontestimonial in nature as to the person asserting the privilege, even though such acts are compelled to obtain the testimony of others. . . .' (Syl. 1.)

Much to the same effect we held in Freeman that where an accused is placed in a 'show up' at the police station and engaged in nonincriminating conversation for the purpose of voice identification his constitutional right against self-incrimination was not thereby violated.

While defendant's refusal in the instant case carries, of course, an inference of guilt, we do not believe it can be said to be a self-incriminating statement within the protective umbrella of the Fifth Amendment to the Constitution of the United States or Section 10 of the Kansas Bill of Rights. First, defendant's refusal to comply was a matter of choice, it was not compelled by the state like being placed in a 'show up' as in Freeman. In fact, defendant chose to refuse in direct violation of the trial court's order even though refusal constituted a direct contempt of court. Second, the mere refusal of the test, standing alone, actually communicated nothing about the accused's knowledge of the case. Third, a verbal communication of the refusal discloses no more of the accused's protected knowledge than would mere conduct in totally failing to comply with the order or in intentionally distorting one's handwriting. The express refusal adds little or nothing to the failure to comply and it can scarcely be contended that evidence of the mere act of noncompliance falls within the protection against self-incrimination. The refusal is in substance an indication of the conduct of the accused and it is this conduct, rather than...