Hill v. State

• Decision Date: 12 January 1979
• Citation: 366 So.2d 318
• Parties: In re Lawrence Glen HILL v. STATE of Alabama. Ex parte Lawrence Glen Hill. 77-542.
• Court: Alabama Supreme Court

Page 318

366 So.2d 318

In re Lawrence Glen HILL v. STATE of Alabama Ex parte Lawrence Glen Hill.

77-542.

Supreme Court of Alabama.

Jan. 12, 1979.

James T. Baxter, III, of Berry, Ables, Tatum, Little & Baxter, Huntsville, for petitioner.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, respondent.

TORBERT, Chief Justice.

Lawrence Glen Hill was convicted in Madison County Circuit Court of manslaughter in the first degree and sentenced to eighteen months imprisonment. Certiorari was granted by this court to review the decision of the Court of Criminal Appeals affirming Hill's conviction. We affirm.

A full statement of the facts is set forth in the opinion of the Court of Criminal Appeals. Briefly, the pertinent facts are these. On January 10, 1976, petitioner Hill was driving home with his wife from a housewarming party where he had consumed two or three beers and a scotch and water. Before reaching home, Hill's vehicle collided with a vehicle driven by David Lee and occupied by Mark Pizitz, age fifteen. As a result of the collision, Pizitz sustained severe head injuries of which he died fourteen hours later.

Several witnesses at the scene testified that Hill appeared to be intoxicated and acted in an uncooperative manner when offered emergency treatment. About an hour after the accident at the Huntsville Hospital emergency room, Hill was placed under arrest for driving while intoxicated. He was requested "on more than ten occasions" to submit to either a blood alcohol test or a breath test. He was informed that a refusal to submit to a test could result in the suspension of his driver's license for a period of at least forty-five days.

Hill initially consented to a blood test on the condition that his personal physician perform the test. When an effort to secure his physician failed, Hill refused to submit to a test. He was then taken to the Huntsville city jail where he was again requested to submit to a breath test and again refused unless he first be allowed to consult with his attorney. About three hours after the accident Hill's attorney arrived at city jail. Hill then agreed to submit to a blood alcohol test, but upon learning that there may have been people in the emergency room of the hospital who wished to do Hill harm, his attorney stated: "Just forget it. We don't want a blood test."

Prior to trial Hill filed a motion in limine to prevent admission of evidence of his refusal to take a blood test. The motion was denied, and at trial the police officers testified as to Hill's refusal to take a blood or breath test and the prosecutor commented upon this refusal in closing arguments. Hill testified in his own behalf admitting that he had consumed alcoholic beverages on the night in question. The jury convicted Hill of first degree manslaughter. On appeal the Court of Criminal Appeals upheld the constitutionality of the Alabama Chemical Test for Intoxication Act ¹ and found no error in the admission of Hill's refusal to submit to a blood test and the prosecutor's comment thereon. Since the question of admission of a defendant's refusal to submit to a chemical test for intoxication is one of first impression in this State, we granted certiorari.

Petitioner Hill contends that the admission of such evidence violates both state and federal guarantees against self-incrimination.

Initially, it must be determined if evidence of refusal to submit to a chemical test is relevant, I. e., whether it has sufficient probative value on the issue of intoxication to be admitted into evidence. Where a defendant has refused to submit to a chemical test, the courts considering the question have been split in deciding whether such a refusal has sufficient probative value to be admitted into evidence, though a greater number of cases have held in favor of admissibility. The better reasoned decisions hold that refusal to take a chemical test for intoxication may indicate the defendant's fear of the results of the test and his consciousness of guilt, and if the defendant has some other explanation for the refusal, such explanation can be considered by the jury in determining whether the refusal is to be construed as consciousness of guilt. See, e. g., State v. Durrant, 55 Del. 510, 188 A.2d 526 (1963); People v. Conterno, 170 Cal.App.2d Supp. 817, 339 P.2d 968 (1959); State v. Bock, 80 Idaho 296, 328 P.2d 1065 (1958); State v. Benson, 230 Iowa 1168, 300 N.W. 275 (1941); Gardner v. Commonwealth, 195 Va. 945, 81 S.E.2d 614 (1954).

In City of Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40 (1968), a jury found defendant guilty of operating a motor vehicle while intoxicated. Evidence of defendant's refusal to take an intoxication test was admitted at trial. In holding that the evidence was probative as to guilt or innocence and was properly admitted, the court stated:

Where a defendant is being accused of intoxication and is not intoxicated, the taking of a reasonably reliable chemical test for intoxication should establish that he is not intoxicated. On the other hand, if he is intoxicated, the taking of such a test will probably establish that he is intoxicated. Thus, if he is not intoxicated, such a test will provide evidence for him; but, if he is intoxicated, the test will provide evidence against him. Thus, it is reasonable to infer that a refusal to take such a test indicates the defendant's fear of the results of the test and his consciousness of guilt, especially where he is asked his reason for such refusal and he gives no reason which would indicate that his refusal had no relation to such consciousness of guilt.

We conclude that, in the instant case, the defendant's refusal to take a chemical test for intoxication would have probative value on the question as to whether he was intoxicated at the time. This conclusion is supported by the recent decision in State v. Cary (1967), 49 N.J. 343, 230 A.2d 384. See People v. Sudduth (1966), 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401, and annotation, 87 A.L.R.2d 370 at 384 et seq. See also People v. Ellis (1966), 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393.

239 N.E.2d at 41.

In People v. McGinnis, 123 Cal.App.2d Supp. 945, 267 P.2d 458 (1953), defendant was convicted for driving while intoxicated, and evidence was admitted at trial of his refusal to submit to an intoximeter test. The court held the evidence was admissible since the jury could conclude that it was circumstantial evidence of guilt. The court stated:

The jury, of course, might not have been persuaded that it was fear of the result that dictated defendant's refusal, but have believed that he had some other reason for declining to cooperate. This possibility, however, is not a basis for saying that the evidence should not have been received.

267 P.2d at 459.

The court also stated:

We are not prepared to say that it would do "violence to reason" for the jury to conclude that the defendant refused to take the test because he did not want to run the risk that the test would furnish evidence of the condition in which he knew himself to be. Therefore, we should not, and do not, disapprove the trial court's action in admitting the evidence.

Id. at 460.

Most of the decisions reaching a contrary result do so, in essence, on the premise that refusal may be dependent or conditioned upon reasons other than consciousness of guilt, and therefore, is not probative as to intoxication. See State v. Munroe, 22 Conn.Supp. 321, 171 A.2d 419 (1961) (exercise of right to remain silent); Stuart v. District of Columbia, 157 A.2d 294 (D.C.Mun.App.1960) (exercise of statutory right to refuse); State v. Paschal, 253 N.C. 795, 117 S.E.2d 749 (1961) (unwilling if defendant had to pay for test); City of Columbus v. Mullins, 162 Ohio St. 419, 123 N.E.2d 422 (1954) (unwilling unless personal physician conducted test); Engler v. State, 316 P.2d 625 (Okl.Crim.App.1957) (indication of defendant's fear that test results are inaccurate). At least one case has held evidence of refusal inadmissible on the conclusion that such evidence simply is not probative. See Duckworth v. State, 309 P.2d 1103 (Okl.Crim.App.1957) ("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"). We feel, however, that such evidence is probative and should be presented to the jury for their consideration rather than excluding it altogether. Any circumstances tending to show the refusal was conditioned upon factors other than consciousness of guilt may properly be considered by the jury in determining the weight to attach to the refusal. Therefore, the evidence of Hill's refusal to submit to a chemical test for intoxication was relevant and properly admitted. Whether his refusal was due to the desire for consultation with his physician or attorney or to the fear of bodily harm, rather than consciousness of guilt, was best determined by the jury.

The fifth amendment ² of the United States Constitution provides the following guarantee against self-incrimination: "No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." U.S.Const. amend. V. The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), has interpreted this privilege as protecting "an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . ." Id. at 761, 86 S.Ct. at 1830. The Court noted that the distinction has emerged between compulsion of communications or testimony on the one hand, and compulsion which makes the accused the source of real or physical evidence on the other, with the latter being beyond the scope of the privilege. The Court stated: "(B)oth federal and state courts have usually held that it offers no protection...