State v. Faidley

Decision Date25 January 1969
Docket NumberNo. 45234,45234
Citation202 Kan. 517,450 P.2d 20
PartiesSTATE of Kansas, Appellee, v. Harold H. FAIDLEY, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The privilege against self-incrimination as contained in Section 10 of the Kansas Bill of Rights and the Fifth Amendment to the Constitution of the United States relates only to testimonial or communicative acts on the part of the person to whom the privilege applies, and does not apply to acts nontestimonial in nature as to the person asserting the privilege, even though such acts are compelled to obtain the testimony of others.

2. Nontestimonial conduct of the defendant such as his performance of the heel-to-toe balance test he was required to perform on the highway by a highway patrol officer did not violate the defendant's privilege against self-incrimination, in the absence of warnings of his constitutional rights under the rule of Miranda.

3. To the extent that the defendant's claim of violation of his rights under the Sixth Amendment to the Constitution of the United States to the assistance of counsel was based upon alleged deprivation of his Miranda rights, to assert the privilege against self-incrimination, it is held he was not deprived of his right to the assistance of counsel to assert a theoretical right which did not exist.

4. The record in a criminal action in which the defendant was convicted of the offense of driving a motor vehicle while under the influence of intoxicating liquor is examined, and, as more fully set forth in the opinion, it is held: the district court did not commit reversible error in any respect, nor did it err in overruling the defendant's motion for a new trial.

Cliff W. Ratner, Wichita, argued the cause, and Payne Ratner, Louise Mattox, Payne H. Ratner, Jr., R. R. Barnes, E. L. Kinch and Patrick L. Dougherty, Wichita, were with him on the brief for appellant.

James Z. Hernandez, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., Keith Sanborn, County Atty., and David P. Calvert, Deputy County Atty. were with him on the brief for appellee.

FATZER, Justice:

The defendant, Harold H. Faidley, was tried by a jury and convicted of the offense of driving a motor vehicle while under the influence of intoxicating liquor, in violation of K.S.A. 8-530. He has appealed, and asserts the following assignment of error:

'The court erred in permitting the arresting highway patrol officer to testify to his observation of the defendant's performance of the heel-to-toe balance test which the officer ordered the defendant to perform prior to advising him of his constitutional rights under the Fifth and Sixth Amendments to the Constitution of the United States.'

The facts are not in dispute and are summarized: At about 10:50 p. m., on April 1, 1967, Lee Schuler, an officer of the Kansas Highway Patrol, was driving south on U.S. 81 Highway, north of Wichita. U.S. 81 is a four-lane highway with two lanes for southbound traffic and two lanes for northbound traffic. Schuler observed a 1966 Chevrolet pickup truck traveling south on the highway at about 35 miles per hour. As he was overtaking the pickup, he observed it weaving two or three feet into the left lane next to the median. This occurred three or four times. At one point it weaved to the right and went off the roadway and onto the shoulder approximately two feet. Shortly thereafter, Schuler stopped the pickup with his red light.

Schuler approached the driver's side of the pickup and the defendant was seated behind the steering wheel; he was alone in the vehicle. Schuler detected a moderate smell of some type of intoxicating liquor. He asked to see the defendant's driver's license. After the defendant produced the license from his billfold, Schuler asked him to get out of the vehicle, which he did. His balance was uncertain and he leaned up against the bed of the pickup to steady himself. Schuler then asked the defendant to step behind the pickup into the lights of the patrol car. The following is an excerpt of Schuler's testimony which was admitted over the defendant's objection, and involves the point raised in this appeal:

'Q. * * * And what transpired back of the pickup?

'A. Then I asked him for a coordination test which is walking heel-to-toe, or walking a straight line.

'Q. And did he perform this test for you?

'A. Well, he tried, yes.

'Q. You say he tried. What do you mean, Officer-Trooper?

'A. Well, he couldn't walk heel-to-toe, so I placed him in the patrol vehicle.'

Schuler testified that when he placed the defendant in the patrol car he arrested him for driving while under the influence of intoxicating liquor, and then fully advised him of his constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

When Schuler and the defendant arrived at the county jail, the defendant was required to perform other coordination tests, but he made no objection to the officer's testimony concerning observations of those tests.

The defendant argues that the privilege against self-incrimination as contained in the Fifth Amendment to the Constitution of the United States (Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, 659), that 'no person 'shall be compelled in any criminal case to be a witness against himself.", protects an accused from being compelled to incriminate himself in any manner. He contends its provisions are broad enough to include physical acts of a testimonial nature such as coordination and sobriety tests, and asserts that testimony of another of the manner in which such tests were performed is as obnoxious to the constitutional right as self-incrimination through the expediency of compelling such results from the defendant's own mouth.

The defendant cites Miranda in support of his contention, which he states holds that the privilege against self-incrimination applies where the accused is in the custody of the police at the police station or is otherwise deprived of his freedom of action in any significant way. He argues that under our statute (K.S.A. 62-1202) and our decisions (State v. Martin, 89 Kan. 678, 131 P. 1190; State v. Cook, 194 Kan. 495, 399 P.2d 835) he was restrained when Schuler required him to stop with the red light, and he was thereby deprived of his freedom of action in a substantial way. He then argues that the Miranda warnings which he states he must be advised of, became an absolute prerequisite in overcoming the inherent pressures of performing the test under the direction and command of the patrolman, and, lacking such warnings, the district court committed reversible error in admitting the testimony.

As preliminary, it should be noted this case presents no question of the admissibility in evidence of anything the defendant said in or out of the pickup before he was placed in the patrol car which implicates his privilege against self-incrimination. The state introduced no such evidence as a part of its case. The sole question presented is the admissibility of the result of the test performed on the highway.

Although the defendant does not invoke the privilege of silence guaranteed him by Section 10 of the Kansas Bill of Rights which provides that '(i)n all prosecutions * * * (n)o person shall be a witness against himself * * *', we think the section must be considered. The provisions of the Fifth Amendment grant no greater protection against self-incrimination than does Section 10 of the Bill of Rights. (State v. Hill, 189 Kan. 403, 412, 369 P.2d 365, 91 A.L.R.2d 750.) The conclusion is not based upon the use of the word 'witness' in either provision. The manifest purpose of the constitutional provisions, both state and federal, is to prohibit the compelling of self-incriminating testimonial or communicative acts from a party or a witness, and 'the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation * * *.' (Counselman v. Hitchcock, 142 U.S. 547, 584, 585, 12 S.Ct. 195, 206, 35 L.Ed. 1110, 1121.) See, also, Schmerber v. California, 384 U.S. 757, 760, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908, 914 and 8 Wigmore, Evidence, § 2252 (McNaughton rev. 1961). Whether the privilege contained in Section 10 may be invoked by a suspect or an accused is determined by the same tests applicable as to whether the testimonial product or act violates due process of law under the Fourteenth Amendment. In Malloy v. Hogan, supra, it was held that:

'* * * (t)he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement-the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.' (p. 8, 845 S.Ct. p. 1493.)

While it has been held that the rule of Miranda begins to operate when an individual is taken into custody or is otherwise deprived of his freedom of action in any significant way (Miranda v. Arizona, supra, 384 U.S. p. 443, 86 S.Ct. p. 1611, 16 L.Ed.2d p. 706; State v. Gillespie, 100 N.J.Super. 71, 241 A.2d 239), the issue of this appeal hinges upon the scope of the privilege against self-incrimination as contained in Section 10 of the Bill of Rights and the Fifth Amendment. Cases such as Lee v. State, 187...

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