People v. Taylor

• Decision Date: 05 January 1977
• Docket Number: Docket No. 24924
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Russell Lee TAYLOR, Defendant-Appellant. 73 Mich.App. 139, 250 N.W.2d 570
• Court: Court of Appeal of Michigan — District of US

Page 570

250 N.W.2d 570

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Russell Lee TAYLOR, Defendant-Appellant.

Docket No. 24924.

73 Mich.App. 139, 250 N.W.2d 570

Court of Appeals of Michigan.

Jan. 5, 1977.

Released for Publication Feb. 28, 1977.

[73 MICHAPP 140] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John A. Smietanka, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and QUINN and BEASLEY, JJ.

R. B. BURNS, Presiding Judge.

Defendant was convicted by jury of forcible rape. M.C.L.A. § 750.520; M.S.A. § 28.788 (now repealed). He appeals and raises an issue of first impression in this jurisdiction:

'Is testimony revealing defendant's refusal to take a blood test violative of his constitutional privilege against self-incrimination?'

The trial testimony of which defendant complains on appeal was as follows:

[73 MICHAPP 141] 'Q. (direct examination by the assistant prosecuting attorney) Did you have any other conversation with him?

'A. (police officer) Yes, we tried to get a blood sample from him. The doctor informed me that in order for him to draw blood from him, he had to have Mr. Taylor's permission. We had a form with Mr. Taylor's name typed on it and so forth. Mr. Taylor was asked if he would sign the form and he wouldn't. He said he didn't want to.'

Defendant primarily relies on People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973), to assert his claim of constitutional violation. While it is true, as defendant asserts, that it is constitutionally impermissible for the state to elicit testimony from a witness regarding defendant's refusal to respond in the face of accusatorial remarks during interrogation, People v. Bobo, supra; People v. Eastway, 67 Mich.App. 464, 241 N.W.2d 249 (1976), the parameter of the constitutional privilege has been sharply defined by the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 761, 765, 86 S.Ct. 1826, 1830--1831, 1833, 16 L.Ed.2d 908, 914, 916--917 (1966):

'We hold 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 in this case did not involve compulsion to these ends. * * * Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.' (Footnote omitted.)

This Court has twice recognized and applied Schmerber's dictate that such testing 'could be [73 MICHAPP 142] compelled without derogation of constitutional rights * * *'. People v. Keen, 56 Mich.App. 84, 90, 223 N.W.2d 700, 703 (1974). See also People v. Gebarowski, 47 Mich.App. 379, 383--384, 209 N.W.2d 543, 545 (1973). Further, numerous other jurisdictions have concluded that such a Refusal to be tested does not constitute protected testimonial evidence. Judge Jasen of the New York Court of Appeals, concurring in People v. Paddock, 29 N.Y.2d 504, 505, 323 N.Y.S.2d 976, 977, 272 N.E.2d 486 (1971), reasoned:

'(S)ince there is no constitutional right to refuse to submit to such a test (Schmerber v. California, supra), it necessarily follows that there can be no constitutional prohibitions to prevent comment upon the accused's failure to take the test.'

In People v. Sudduth, 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 395, 421 P.2d 401, 403 (1966), the Supreme Court of the State of California, per Chief Justice Traynor, concluded:

'The sole rationale for the rule against comment on a failure to testify is that such a rule is a necessary protection for the exercise of the underlying privilege of remaining silent. A wrongful refusal to cooperate with law enforcement officers does not qualify for such protection.' (Citation omitted.)

See also State v. Durrant, S. Storey 510, 55 Del. 510, 188 A.2d 526 (1963).

On the strength of this authority, we conclude that the testimony in evidence as to defendant's refusal to submit to a test to which he had no constitutional right to refuse did not constitute an impermissible violation of defendant's right against compulsory...