Herring v. State

• Decision Date: 23 December 1986
• Docket Number: No. 85-1851,85-1851
• Citation: 12 Fla. L. Weekly 55,501 So.2d 19
• Parties: 12 Fla. L. Weekly 55 Calvin Joseph HERRING, a/k/a Calvin Mullins, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 19

501 So.2d 19

12 Fla. L. Weekly 55

Calvin Joseph HERRING, a/k/a Calvin Mullins, Appellant, v. The STATE of Florida, Appellee.

No. 85-1851.

District Court of Appeal of Florida Third District.

Dec. 23, 1986.

Rehearing Denied Feb. 4, 1987.

Bennett H. Brummer, Public Defender, and Ordonez, Friend & Fleck and Geoffrey C. Fleck, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Nancy C. Wear, Asst. Atty. Gen., for appellee.

Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

During a police interview of the defendant shortly after his arrest on a charge of first-degree murder, he was asked if he would submit to a "hand swab test for gunshot residue." The defendant was not told that he was required by law to take this test or that his refusal to do so could be used against him in some way. When an officer armed with gloves and equipment to administer the test came toward him, the defendant said he would not take the test. At trial, testimony of the defendant's refusal to "have his hands swabbed" was admitted over his objection, the prosecutor later arguing to the jury that this testimony was convincing proof of the defendant's consciousness of his guilt. ¹ The admission of this testimony forms the primary basis of Herring's appeal from his conviction for the lesser offense of second-degree murder.

A defendant's behavior is circumstantial evidence probative of his consciousness of his guilt, and ultimately guilt itself, only when it can be said that the behavior is "susceptible of no prima facie explanation except consciousness of guilt." State v. Esperti, 220 So.2d 416, 418 (Fla.2d DCA), cert. dismissed, 225 So.2d 910 (Fla.1969). In Esperti, the appellate court approved the admission of evidence that the defendant, after being told that he had no choice but to submit to a gunpowder test, resisted the test by sitting on his hands, wiping his hands with a handkerchief, and trying to rub tobacco ashes on his hands after learning that the ingredient in gunpowder can be confused with cigarette ashes. The Esperti court found that the case before it was not one where circumstances other than consciousness of guilt could have explained the defendant's refusal. As the Esperti court significantly noted, the defendant there had been told that he had no right to refuse the test; however, according to the court, had the defendant been told he could refuse, it would be "unfair" to admit evidence of his refusal. Id. at 419.

The unfairness, of course, is that a defendant who is told he may refuse and is told of no consequences which would attach to his refusal may quite plausibly refuse so as to disengage himself from further interaction with the police or simply decide not to volunteer to do anything he is not compelled to do. In contrast, if a defendant knows that his refusal carries with it adverse consequences, the hypothesis that the refusal was an innocent act is far less plausible. Thus, in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Court, holding admissible the defendant's refusal to take a blood alcohol test, pointed out that, although the defendant was not told that the refusal could be used against him in court, he was told that he could lose his driver's license if he refused. This latter warning made it "clear that refusing the test was not a 'safe harbor,' free of adverse consequences." Id. at 566, 103 S.Ct. at 924, 74 L.Ed.2d at 760. While the court in Neville held the refusal admissible because the defendant had good reason not to refuse, it noted, in comparison, that in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), the Court had prohibited the impeachment use of the defendant's post-Miranda-warning silence because his "silence during police interrogation lacked significant probative value and ... any reference to his silence under such circumstances carried with it an intolerably prejudicial impact." Id. at 180, 95 S.Ct. at 2138 45 L.Ed.2d at 107. See also Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (holding that a person's silence during interrogation is not inconsistent with his exculpatory testimony at trial in light of repeated assertions of innocence during interrogation, the secretive nature of the interrogation, and the focus on the defendant during the interrogation). Thus, while Neville stands for the proposition that evidence of the defendant's behavior (refusal to take the blood test) is admissible where the defendant had substantial motivation not to behave as he did, Hale stands for the corollary proposition that evidence of a defendant's behavior (remaining silent) is inadmissible, because not probative, where the defendant had no substantial motivation not to behave as he did. ²

In the present case, because Herring was not told that his refusal to submit to the hand swab test would have consequences adverse to him (or even given the less specific, but certainly intimidating, warning that he had no right to refuse), he had no motivation to submit and his refusal, unlike Neville's and much like Hale's, was indeed a safe harbor. It being quite natural for a person to proceed to safe harbor, it cannot be said that the defendant's decision to do so is circumstantial evidence probative of his consciousness of his guilt. Moreover, there being absolutely no evidence to indicate that the defendant was told anything about the test--whether it was painful or painless, lengthy or short, scientifically reliable or not--it is clear to us that, even apart from the lack of warning about the adverse consequences of a refusal, the refusal is so entirely ambiguous as to be totally lacking in probative value.

The State argues, however, that because the test was in fact compulsory, the defendant's refusal is admissible. ³ The simple...