State v. Green, 81-13444

Decision Date21 August 1984
Docket NumberNo. 81-13444,81-13444
PartiesSTATE of Oregon, Appellant, v. Jim Shannon GREEN, Respondent. ; CA A26987.
CourtOregon Court of Appeals

William F. Nessly, Jr., Assistant Attorney General, Salem, argued the cause, for appellant. With him on brief were Dave Frohnmayer, Attorney General, and William F. Gary, Solicitor General, Salem.

Merrill Schneider, Sandy, argued the cause, for respondent. With him on brief was Patrick M. Birmingham, Sandy.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

The state appeals a trial court order suppressing evidence of defendant's refusal to take field sobriety tests from use in his trial for driving while under the influence of intoxicants. We dismissed the appeal for failure to serve the trial court clerk within the required period. State v. Green, 66 Or.App. 968, 675 P.2d 1113 (1984). The Supreme Court reversed and remanded the case to us. State v. Green, 296 Or. 711, 678 P.2d 267 (1984). We now deny defendant's motion to dismiss for failure to file the appeal in a timely fashion and affirm the order of suppression.

The trial court orally granted defendant's motion to suppress on November 5, 1982, but did not sign the order suppressing until December 6, 1982. On that date, the District Court clerk's office received the order, and one of its employes called both attorneys to notify them of it. Because of delays caused by the inner workings of the clerk's office, the order was not actually stamped "filed" until December 14, 1982. The state filed its notice of appeal on January 13, 1983, which was timely if the appeal period began running on December 14, 1982, but was late if, as defendant urges, it began running on December 6, 1982. Defendant relies on cases holding that a document is "filed" with the clerk when the clerk actually receives it for filing, Vandermeer v. Pacific N.W. Develop., 274 Or. 221, 545 P.2d 868 (1976); In re Wagner's Estate, 182 Or. 340, 187 P.2d 669 (1947), arguing that the time to take an appeal began when the order was "filed" as defined in those cases. Although defendant's position on the meaning of "filed" is correct, it does not resolve the issue. In Blackledge v. Harrington, 289 Or. 139, 611 P.2d 292 (1980), the Supreme Court noted that ORS 19.026(1), governing appeals in civil cases, requires the notice of appeal to be filed within 30 days from the "entry" of the judgment and that "entry" is a different act from "filing." It held that entry in the journal, not filing in the clerk's office, was the act which began the running of the appeal time. 289 Or. at 142-43, 611 P.2d 292.

ORS 138.071(1), which governs criminal appeals, allows the notice of appeal to be filed at any time after verdict, but no more than 30 days "after the judgment or order appealed from was given or made." (Emphasis supplied.) It thus does not distinguish between the filing and the entry of the order, but instead uses terms that have no other procedural referents. ORS 138.071(2)(a) extends the time for an appeal to 30 days after the "entry" of an order disposing of a new trial motion. However, "entry" does not have the clear meaning in the criminal context that it does in the civil, because there is no statutorily required journal in which orders are to be entered.

It is not unreasonable to construe "given or made" to be identical to "filed," as defendant would have us do, but we do not think that that is the appropriate construction. The legislature could have used the precise term if that had been its intention. It is important to have a clear, objective point for the parties' reference, particularly because many appeals, both by the state and by defendants, are handled by attorneys who had no involvement with the case at the trial level. Although an order or judgment is filed, and for most purposes is effective, when the clerk receives it, it is not then readily available to the public or to the parties. That availability occurs only when it is stamped "filed." We hold that an order or judgment is "given or made" on the date of that act, and the state's appeal in this case was therefore timely. We turn to the merits.

An officer found defendant at the scene of a one car accident in circumstances that indicated that he had been the driver of the vehicle and that he was under the influence of alcohol. The officer asked defendant to perform standard field sobriety tests, but he refused. He refused again after the officer told him that the reason for the tests was to determine his condition. The officer then arrested him.

The trial court suppressed various statements defendant made during the officer's investigation and also suppressed the fact that he had refused to take the field sobriety tests, holding that the fact of the refusal was derivative of defendant's statement refusing and that its use would therefore violate his Miranda rights. The state concedes the suppression of defendant's statements under State v. Roberti, 293 Or. 236, 646 P.2d 1341 (1982), cert. pending, but appeals the suppression of the fact that defendant refused to take the field sobriety tests. It argues that the mere fact of refusal is not testimonial and that evidence of it would thus not violate defendant's constitutional right not to be required to give testimony against himself. Because evidence of defendant's performance of the tests would not have been testimonial, the state asserts, the fact that he refused to take them is also not testimonial. We find the problem to be considerably more complex than that.

Courts are divided on whether evidence of a refusal to provide non-testimonial evidence is itself testimonial. Some have held that a refusal is conduct showing consciousness of guilt and, by analogy with other actions (such as flight) traditionally held to be evidence of consciousness of guilt, is non-testimonial and therefore nonprivileged. 1 See, e.g., People v. Ellis, 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393 (1966) (refusal to provide voice exemplar); State v. Haze, 218 Kan. 60, 542 P.2d 720 (1975) (refusal to provide handwriting exemplar); see also Annot. 87 A.L.R.2d 370, § 5(b) (refusal to submit to breathalyzer or blood alcohol test). 2 Other courts have held that refusal is "a tacit or overt expression or communication of defendant's thoughts" and thus is testimonial. State v. Neville, 312 N.W.2d 723, 726 (S.D.1982), rev'd on other grounds sub nom South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); see also Annot. 87 A.L.R.2d 370, § 5(c).

Evidence of a defendant's refusal is relevant in that it shows that he believed that the results of the test would tend to incriminate him and thus shows that he believed that he was guilty. Specifically, the state wants the jury to infer, from the fact of a defendant's refusal, that he is saying, "I will not take the field sobriety tests because I believe I will fail them." The evidence is therefore conduct communicating the defendant's state of mind; it is, in essence, testimony concerning the defendant's belief on the central issue of the case. For him to reveal his inner thoughts is necessarily to make a communication, whether by words or by actions. For the state to compel a defendant to reveal those thoughts is to require him to testify against himself and thus to violate Article I, section 12, of the Oregon Constitution. 3 We turn to the question of whether the communication should be deemed "compelled."

The dispositive issue is not whether evidence of the refusal is communicative but whether the communication is the result of governmental compulsion of the sort which Article I, section 12, forbids. The right not to testify against oneself does not prevent the state from using a defendant's out-of-court statements or other communicative activity as evidence. Rather, it prevents the state from requiring a defendant to provide such statements or activity. Thus, inculpatory statements to friends, relatives, accomplices and others are generally admissible if there is no improper governmental activity in procuring them. Statements to police or other authorities are also admissible if voluntarily made, either before custodial interrogation begins or, if made during custodial interrogation, after a knowing and voluntary waiver of Miranda rights.

These principles apply equally to non-verbal activity with communicative effects. Thus, evidence of flight is admissible to show a defendant's consciousness of guilt. State v. McCormick, 28 Or.App. 821, 561 P.2d 665, rev'd on other grounds 280 Or. 417, 571 P.2d 499 (1977). 4 If the jury finds that a defendant's flight shows a consciousness of guilt, it has found that the defendant has, in effect, said, "I know that I am guilty, so I don't want to be caught and tried." The conduct is communicative, and it is the communicative effect that the state places in evidence. 5 It is permitted to do so, however, not just because of the nature of the evidence but also because the communication is not compelled; if the state seeks to compel anything, it is that defendant not flee and thus that he not communicate. Cf. South Dakota v. Neville, supra (Fifth Amendment only protects against the use of physical or moral compulsion upon the person whose communication is sought). 6

Evidence concerning breath tests further illustrate the principle. When the state requires a defendant to provide evidence which is itself noncommunicative, there is no self-incrimination violation if the defendant does provide the evidence, even though his actions in doing so are compelled. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Cram, 176 Or. 577, 160 P.2d 283 (1945) (blood sample). This is what Oregon, like most other states, does when it requires drivers arrested for DUII to take a breathalyzer test. ORS 487.805. The...

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