Mitchell v. State

• Decision Date: 05 November 1969
• Docket Number: No. 69--179,69--179
• Citation: 227 So.2d 728
• Parties: John Edward MITCHELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 728

227 So.2d 728

John Edward MITCHELL, Appellant, v. STATE of Florida, Appellee.

No. 69--179.

District Court of Appeal of Florida, Second District.

Nov. 5, 1969.

Martin J. Jones and Joel P. Yanchuck of Earle, Jones & Chambers, St. Petersburg, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Michael N. Kavouklis, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Acting Chief Judge.

John Edward Mitchell appeals to this Court from a jury verdict and judgment of conviction upon two counts of a four-count amended information filed against him in the Pinellas County Circuit Court.

The first and second counts of the amended information charged manslaughter of Geraldine Ione Frankovic and Florence Swenson Gunthier, respectively, by culpable negligence in the driving of an automobile. The third and fourth counts charged manslaughter of the same two respective victims, by driving while intoxicated. After trial, the jury found him guilty on the first two counts (culpable negligence), and found him not guilty on the last two counts (intoxication). The trial Court adjudged him guilty on the first two counts and sentenced him to a term of imprisonment.

Mitchell appeals here from the conviction upon the first two counts and contends principally that the trial Court erred in permitting evidence as to a blood sample taken from Mitchell at the hospital and of the alcohol chemical test of said blood sample.

On June 15, 1968 at about 10:55 P.M., Mitchell was driving his Oldsmobile automobile west on 5th Avenue South in St. Petersburg, a multi-lane highway, and entered the intersection of that street with 34th Street against a red traffic light, travelling at a rate of speed estimated variously as between 50 and 60 miles per hour by three witnesses, a Mrs. Bosy, and two police officers, Castle and Detterline, who happened to be nearby. Mitchell was on his side of 5th Avenue, the weather was clear, it was a 35 mile speed zone, traffic generally was very light, and Mitchell was driving at that time in a proper manner except for his speed and the red light. Entering 34th Street the front of his car collided with the left side of a vehicle occupied by the victims of the accident, killing them both.

Investigating police officer Powell, after initiating his investigation of the accident for his report to the Department of Safety, proceeded immediately to Mound Park Hospital to get further information to go on the report. At about this same time Mitchell was taken by ambulance to the hospital and, according to the ambulance attendant, one Gunter, 'we took him out of the ambulance and rolled him into the hospital, and they designated a bed to put him, so we switched beds, put him on the hospital stretcher * * * They were starting to take a blood alcohol test * * * They were just preparing to take blood out of him, put a tourniquet around his arm * * * They were just starting. I mean I can say they were finding the veins, but we left before they started, you know, put the needle in his arm. They were, you know, searching for the vein * * * Police officers were there with us.' No medication or injection had been given Mitchell, who was considerably bruised and shaken up. At direction of the local police officers, a blood sample was taken from Mitchell's arm by one Javery, a laboratory technician employed by the hospital, and delivered to one of the several local police officers present, one Cohee, who had been instructed by the police department 'to stand by while a blood sample was taken * * * from a defendant, and I did this'. He took the sample from the technician, marked it, transported it to the local police station, and 'put it in a locked box in the refrigerator'. He stated he was in the hospital room 'for the purpose of observing and supervising' the blood-taking 'from the police officer's standpoint'.

In further connection with his Department of Safety accident report, officer Powell at the hospital had asked Mitchell for his driver's license but he didn't have it with him. Two or three days later Mitchell voluntarily went to the local police station and delivered it to officer Powell in order that Powell could 'complete my report'.

The chemical test of the blood sample so taken showed, according to the testimony, an alcohol content indicating intoxication. On the contrary, there was no concrete evidence of Mitchell's normal physical or mental faculties, and the police officers who had personal contact with Mitchell immediately after the accident were inconclusive as to his intoxication. Officer Powell, after getting to the scene, stated he 'walked over to the car, I thought I detected the odor of an alcoholic beverage. However, I couldn't be absolutely positive of that'. Officer Detterline, after going over to the Oldsmobile and telling Mitchell to sit still, was asked if he detected the odor of alcohol, said 'No, sir, I made no attempt to. I was concerned for the safety of the other people'. Officer Castle, being asked substantially the same question, replied 'I detected a moderate odor of alcoholic beverage at this time, yes, sir'. An aunt of Mitchell testified she saw and observed him right after the accident in the hospital emergency room and he did not appear drunk to her at that time and she did not smell anything alcoholic on him.

Although Mitchell was acquitted of the manslaughter-intoxication counts, evidence of any inebriation on his part at the time of the accident was admissible against him under the manslaughter-culpable negligence counts. Cannon v. State, 1926, 91 Fla. 214, 107 So. 360; Hunt v. State, Fla.1956, 87 So.2d 584; Maze v. State, Fla.App.1964, 168 So.2d 691; Hamilton v. State, Fla.App.1963, 152 So.2d 793. So the evidence of taking the blood sample from Mitchell and its subsequent analysis for alcoholic content assumed a critical position of importance in the case against Mitchell, even though he was convicted of manslaughter through culpable negligence rather than by reason of intoxication.

The propriety of admission of the blood sample evidence is controlled by determination of two questions: (1) whether the blood-taking violated Mitchell's constitutional rights guaranteed by §§ 4, 12, and 22 of the Florida Declaration of Rights, F.S.A., and the 4th, 5th and 14th Amendments to the Federal Constitution, and (2) whether, under the facts of his particular case, he was protected by the statutory immunity provided in F.S. § 317.171 F.S.A. If either of these propositions should be answered in the affirmative, the evidence goes out. We hold in the affirmative on both. The two matters will be discussed seriatim.

(1) The constitutional protection against self incrimination.

§ 12 of the Florida Declaration of Rights and the 5th Amendment protects a person from being 'compelled in any criminal case to be a witness against himself.' § 22 and the 4th Amendment protects a person 'against unreasonable searches and seizures.' § 12 and the 5th and 14th Amendments guarantee a person 'due process of law'.

There is little dispute as to the essential facts. Mitchell did not consent to the blood-taking nor was he even asked. He was not under arrest for any offense. He was not even being 'detained' by the police. Thus the crucial factual premise is established that Mitchell was compelled by the local police to give up his blood involuntarily, at a time when he was neither under arrest nor police detention.

The trial Court denied Mitchell's motion to suppress the blood-taking evidence upon the authority of Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.

In Schmerber, the defendant was convicted in the Los Angeles Municipal Court for the offense of driving an automobile while under the influence of intoxicating liquor. At the direction of the local police and over his protest, a physician took a blood sample of the defendant at the hospital, which sample, upon analysis, indicated intoxication. Over objection, the blood sample evidence was admitted at the trial. The U.S. Supreme Court upheld extraction of the blood under the circumstances stated, holding that the constitutional guaranties against self-incrimination and unlawful search and seizure barred only compulsory 'communications' or 'testimony', either verbal or in writing; i.e. 'that the privilege protects an accused only from being compelled to Testify against himself, or otherwise provide the State with evidence of a Testimonial or Communicative nature, and that the withdrawal of blood and use of the analysis in question * * * did not involve compulsion to these ends' (Emphasis supplied). At the time the blood was taken Schmerber was under valid arrest for 'driving an automobile while under the influence of intoxicating liquor' as to which there was 'plainly probable cause'.

Thus, while the high Court held it was permissible to take blood involuntarily from the body of a person upon the supposed constitutional distinction between the forcible extraction of blood and the forcible extraction of spoken or written words, yet the all-important fact remains, crucial to our holding here, that when the blood was so taken Schmerber was actually under arrest and in actual legal custody of the police upon a valid criminal charge.

And while the writer personally disagrees thoroughly with the high Court's distinction between 'testimonial evidence' and 'physical evidence' in applying the constitutional guaranties against compulsorily extracted evidence, as heretofore expressed in Giddens v. Cannon, Fla.App.1967, 193 So.2d 453, ¹ yet we of this 2nd District Court are all agreed that blood forcibly taken by the police from a 'free' man, who is not under arrest nor in police custody upon any criminal charge, cannot be later used to convict him of a criminal offense under the constitutional guaranties. The ominously frightening consequences of a contrary doctrine are obvious. Even the Schmerber opinion (which...