Duckworth v. State, A-12385

• Decision Date: 09 January 1957
• Docket Number: No. A-12385,A-12385
• Citation: 309 P.2d 1103
• Parties: Raymond Emanuel DUCKWORTH, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1103

309 P.2d 1103

Raymond Emanuel DUCKWORTH, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12385.

Criminal Court of Appeals of Oklahoma.

Jan. 9, 1957.

Specially Concurring Opinion Jan. 14, 1957.

Rehearing Denied April 24, 1957.

Syllabus by the Court

In a criminal case, where the accused is charged with being intoxicated and is asked by the state to submit to an intoximeter test to determine the amount of blood aclohol, it is the accused's statutory right, 22 O.S.1951 § 701, to refuse to submit thereto. And, it is the mandatory duty of this court to reverse a conviction where the state is permitted to offer proof in chief showing the accused's refusal and the end results of such a test, had the accused submitted thereto, and to comment thereon.

Appeal from the County Court of Stephens County; J. W. Marshall, Judge.

Plaintiff in error, Raymond Emanuel Duckworth, was charged with the offense of operating a motor vehicle while under the influence of intoxicating liquor, sentenced to a term of thirty day in the county jail and a fine of $200, and he appeals. Reversed and remanded for a new trial.

Jones & Beauchamp, by K. C. Beauchamp, Jr., Duncan, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Fred Hansen, First Asst. Atty. Gen., James P. Garrett, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Plaintiff in error, Raymand Emanuel Duckworth, defendant below, was charged by information in the County Court of Stephens County, Oklahoma, with the offense of driving a motor vehicle on a public highway while under the influence of intoxicating liquor, 47 O.S.Supp.1955 § 93. He was tried by a jury, convicted, and sentenced to a period of thirty days in the county jail and a fine of $200. Judgment and sentence were entered on the jury's verdict from which this appeal has been taken.

The defendant makes one decisive contention, herein, to the effect that the trial court erred in permitting in evidence the fact that the defendant had refused to take an intoximeter test and further permitted the state to show what evidentiary fact such a test would have disclosed.

The state's complaining witness, Lee Edward Wilson, testified that the defendant was drunk when he turned his automobile to the left across an intersection of the highway without a signal, into the path of Wilson's automobile, precipitating a collision on State Highway No. 7, east of Duncan, Oklahoma. Wilson further testified that it was his opinion the defendant was drunk because he was red faced and he refused to take the test. (The test was not identified in his testimony.) Officer Massey testified that the defendant was thick of tongue, spoke brokenly, was unsteady on his feet, his face was red, and he smelled of whiskey.

The trial court then permitted the state to show, in its case in chief, over the objection of the defendant, that Officer Massey asked the defendant if he would take the intoximeter test and that Duckworth refused to take it. Exception was saved by the defendant to this evidence. Then, over the defendant's objection and exception, the question was repeatedly asked if Duckworth refused to take the intoximeter test. Finally, over the objection and exception of the defendant, Officer Massey testified that the purpose of the test was to determine how much alcohol a person had in his blood. Then, over objection, the question was asked if 'it would say whether a man had a less percentage than was necessary to intoxicate or would it say whether he had more?' In sustaining the objection to this evidence, the trial court said: 'I think so.' But, the trial court did not admonish the jury to disregard it, and if he had, the damage had already been done. Removing the evidentiary harpoon would not have repaired the injury. It was then shown by the state that the defendant was cocky and uncooperative at the police station because he would not submit to a test which, under the law, he was permitted to refuse. It is well to note one of the reasons brought out in evidence on examination of the complainant was that he thought the defendant was drunk because he would not take the intoximeter test. It is apparent that the object in the introduction of this evidence was to leave just such impression with the jury. We cannot say it did not have such effect.

The defendant's evidence in relation to the intoximeter test was that he refused to take it and that the officer told him, 'Well, I'm going to lock you up.' In other words, either you take it or I will imprison you. It is well in this connection to note the officer did not arrest the defendant at the scene of the collision but permitted him to go on his own and report later to the police station. It appears that if the officer had believed the defendant was drunk in his presence, at the scene of the collision, he would have arrested him there, taken him into custody, and brought him to the police station.

The foregoing evicence was clearly inadmissible in the state's evidence in chief. As we said in Barnhart v. State, Okl.Cr., 302 P.2d 793, 795:

'He had refused to take the test as was his right so to do. He had the right under the law to stand on that refusal. Toms v. State, 95 Okl.Cr. 60 239 P.2d 812.'

See also Alexander v. State, Okl.Cr., 305 P.2d 572.

The state relies on the Barnhart case, supra. But, that case does not support the state's contention, herein, for therein the defendant took the stand in his own behalf and in his evidence in chief opened up the question of the kinds of tests he may have been subjected to. He thereby waived the right to remain silent on cross examination as to all pertinent or relevant facts as to the tests. While herein, the defendant's refusal to take the test was used by the state in its case in chief for purely prejudicial purposes. The accused's refusal should have ended the inquiry on the subject. It ill behooves the courts to say you have a right to refuse to do something, which may prove either beneficial or detrimental to you, and yet, notwithstanding your right so to do, we will permit your refusal to be shown and enable the state to destroy your right and achieve indirectly by innuendo what it was prevented by law from accomplishing directly. We can conceive of no greater inconsistency.

To allay possible confusion, we deem it well to point out that there is a clear distinction in the Alexander case, supra, and the case at bar. Therein, the intoximeter test was taken producing real evidence of probative value. Hence, the question was therein imposed as to its admissibility or as to whether it was obtained in violation of the rule against self incrimination. The question, therein, was resolved against the defendant on the ground that the rule could only be invoked as to oral evidence given before the jury, except that such evidence as was obtained out of the jury's presence by threats or forcible extractions in such a manner as to shock the conscience of the court or offend public sensibilities was held inadmissible.

Herein, nothing was done. Only a refusal was made to the test, which might have been productive of real evidence of probative value. But since the test was not taken, nothing of probative value was developed. Therefore, the rule against self incrimination is not involved, herein. The refusal to take the intoximeter test constitutes what might be termed a negative predicate which was productive of nothing more than sheer speculation, surmise, and innuendo. Hence, only two questions are involved in the case at bar. First, was it within the defendant's right to refuse to take the test? The answer must be in the affirmative. Toms v. State, supra; Alexander v. State, supra. Second, the defendant having refused, was evidence of the refusal admissible in evidence and was it the subject of comment by the state? We are of the opinion the answer must be in the negative, lest the defendant be the victim of prejudice created by no real fact produced by the test, but by surmise, speculation, and innuendo based only upon the assertion by the defendant of his fundamental right to refuse the test. In no other way can the right to refuse have any meaning or constitute more than a mere shadow of substance. 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; Doty v. State, 88 Okl.Cr. 381, 203 P.2d 444; Taylor v. State, 36 Okl.Cr. 419, 255 P. 158.

Moreover, in this connection there is evidence to sustain the defendant's contention he was not even driving the automobile at the time of the collision. The jury might have believed him had not the strong inference of intoxication been left by admission of evidence of his refusal to take the intoximeter test. The procedure pursued in the case at bar was highly prejudicial to the rights of the defendant.

We have been unable to find any cases directly in point as we indicated we could find none in the Barnhart case. By analogy, however, we feel compelled to follow the provisions of 22 O.S.1951 § 701, the pertinent part of which reads as follows:

'* * * the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.'

In the case at bar, the end effect of the procedure pursued is to make the defendant's refusal to take the intoximeter test evidence by innuendo that he refused the test because he feared the results thereof. In effect, such procedure creates a presumption against him because of his failure to take the test. We believe the procedure adopted in the case at bar is in violation of the provisions of the foregoing statute. The effect of such procedure has been condemned by this court numerous times, in analogous cases construing the foregoing statute....