State v. Pierce, 167

• Decision Date: 06 May 1958
• Docket Number: No. 167,167
• Citation: 141 A.2d 419,120 Vt. 373
• Parties: STATE of Vermont v. Carroll B. PIERCE.
• Court: Vermont Supreme Court

Page 419

141 A.2d 419

120 Vt. 373

STATE of Vermont v. Carroll B. PIERCE.

No. 167.

Supreme Court of Vermont.

May 6, 1958.

Frederick M. Reed, Atty. Gen., Margaret Lillie, State's Atty., Bennington, for plaintiff.

Manfred W. Ehrich, Jr., Bennington, for defendant.

Before CLEARY, C. J., HULBURD, HOLDEN and SHANGRAW, JJ., and BARNEY, Superior Judge.

HULBURD, Justice.

The respondent was prosecuted for operating a motor vehicle while under the influence of intoxicating liquor. When the case came on for trial in Bennington Municipal Court, difficulty was encountered in drawing a jury. This was because the legislature by No. 51 of the Acts of 1957 had established a new method of impanelling and selecting juries for municipal courts, and in so doing had proceeded to repeal the old one, (see V.S. 47 §§ 1459-60) without allowing sufficient time for the new one to become operative. At the time of the trial, July 18, 1957, a jury list under the new Act was not available, and could not be available, until after February 1, 1958. So far as he could, the trial judge attempted to summon a jury in accordance with the new Act, but his only resort was to the old jury lists under the former law. The respondent promptly challenged the array. The trial court, remarking that he had anticipated the respondent's objection, sustained it without waiting for argument, and then, as if acting on a preconceived method of procedure, he called upon the sheriff to summon talesmen. Twelve persons were thus drawn, and, after they had been interrogated by both the State's Attorney and counsel for the respondent, were duly sworn by the court as the jury in the case. The respondent challenged none of these talesmen and had no exception noted to the court's action in this regard either at, or before, the swearing-in, or thereafter, but he now claims that 'the talesmen summoned on oral order of the court did not constitute a lawful jury'.

The respondent recognizes the general rule (see, for example, Petition of Stowell, 119 Vt. 298, 302, 125 A.2d 807) that a claim made here for the first time is not available on appeal; but in this instance he says he avoids the rule because he is raising a jurisdictional question. In substantiation of this he refers us to State v. Frotten, 114 Vt. 410, 412, 46 A.2d 921. In that case the difficulty centered with the grand jury. The jurisdiction of the trial court to proceed with a trial was held to rest upon whether there was a valid indictment. A grand jury summoned by a void venire was said to be without jurisdiction to act and hence any indictment found by it would be invalid. In the Frotten case, therefore, the question was truly a jurisdictional one, since without a valid indictment, there was nothing on which to base trial.

The question here pertains only to the petit jury. The prosecution was based upon a complaint of the State's Attorney upon which the trial was proceeding. The question raised by the respondent, however proper, is not jurisdictional and since it is raised here for the first time, it will not be considered under the rule stated above. We think what was said in State v. O'Connor, 117 Vt. 176, 178, 86 A.2d 924, 926, is applicable: 'As far as appears from the record, he accepted the trial jurors without protest, challenge or exception. Thus he waived all irregularities and defects, if any, in the respects claimed.' To the same effect is the following from 50 C.J.S. Juries § 251, p. 1012: 'A party by failing timely to challenge or object waives * * * any irregularity in the drawing, or summoning of the jury.'

We now come to the respondent's exceptions relating to the admission and submission of evidence as to the results of a blood test made on the respondent. The background-circumstances are as follows: The respondent, while driving his car, had had an automobile accident. He sustained injuries and a Dr. Flood was called. The doctor initially saw the respondent at the scene of the accident at the 'McDursky residence'. He first found the respondent conscious and sitting in a chair. Following first-aid, the respondent was put in an ambulance, and with the doctor following behind, they all went to the hospital. There the doctor noted a number of things which convinced him that the respondent was under the influence of intoxicating liquor. Neither medication nor the nature of the respondent's injuries seemed to account for his condition. He, therefore, sought permission of the respondent to obtain a blood alcohol test. Pierce, according to the doctor, was conscious but drowsy and had to be stimulated to answer by having his arm shaken. The blood test was explained to him and he was told that the 'test if positive would be held against him, but if it proved satisfactory that it would be held in his favor.' At this the respondent consented and the sample was taken and upon analysis it was found to contain 0.21% alcohol by weight. The respondent, himself, later testified that he had no memory of the sample being taken. He would have us infer that the sample must have been taken while he was unconscious.

When the result of blood analysis was offered, the respondent objected that 'there is no evidence that the respondent was in any condition to give consent--' and 'there is no evidence that he was advised that he had a right to refuse to give the blood test.' If these objections have any importance, it is sufficient to state that the respondent's position is not borne out by the transcript. Later, after the evidence had been admitted, the respondent moved to strike it from the record 'on the ground that on the evidence as it now stands, the taking of the blood test was a violation of the respondent's rights under both the State and Federal Constitution.' This motion was denied and the respondent allowed an exception.

The respondent, in his brief, cites State v. Slamon, 73 Vt. 212, 50 A. 1097, 1099, which held that the taking of a letter from the person of a respondent against his will was a violation of the Vermont Constitution as to both Art. 11 of Chapter 1 (guaranteeing against illegal search and seizure) and Art. 10 of Chapter 1 ('That in all prosecutions for criminal offenses no person can be compelled to give evidence against himself'). This holding, however, was expressly stated to have been overruled in State v. Stacy, 104 Vt. 379, 401, 160 A. 257, 266, 747, the court saying that 'When evidence is offered, the court will take no notice of how it was obtained, whether legally or illegally, whether properly or improperly, nor will it form a collateral issue to try that question.' State v. Slamon, supra, therefore does not help the respondent any.

The constitutions of forty-six States provide for a privilege against self-incrimination. In addition Iowa and New Jersey do so by Statute. It is held by the great weight of authority that the constitutional guaranty against self-incrimination extends only to testimonial utterances, oral or written. Illustrative of this view are Davis v. State, 1948, 189 Md. 640, 57 A.2d 289; State v. Sturtevant, 1950, 96 N.H. 99, 70 A.2d 909; State v. Alexander, 1951, 7 N.J. 585, 83 A.2d 441; State v. Gatton, 1938, 60 Ohio App. 192, 20 N.E.2d 265; State v. Cram, 1945, 176 Or. 577, 160 P.2d 283, 164 A.L.R. 952; and see Holt v. United States, 1910, 218 U.S. 245, 252, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 1030, wherein Mr. Justice Holmes stated that the privilege against self-incrimination prohibits '* * * the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.' This language would seem to be consistent with the position that the extraction of blood from the veins involves the production of real evidence and does not involve testimonial compulsion. Regardless of whatever position the federal courts might take under the Fourth Amendment (search and seizure) and the Fifth Amendment (self-incrimination) of the United States Constitution, their decisions are not binding on the States. State v. O'Brien, 106 Vt. 97, 102, 170 A. 98. Thus evidence procured by federal officers in violation of the Fourth Amendment (search and seizure) is not admissible in federal courts. Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Thirty-one States have rejected the rule of the Weeks case, while sixteen have conformed to it. For a review of these state decisions on this problem, see the appendix to Justice Frankfurter's opinion in Wolf v. People of State of Colorado, 1949, 338 U.S. 25, at page 33, 69 S.Ct. 1359, at page 1364, 99 L.Ed. 1782, at page 1788.

In Breithaupt v. Abram, 1957, 352 U.S. 432, 435, 77 S.Ct. 408, 1 L.Ed.2d 448 the accused was convicted in New Mexico (see Breithaupt v. Abram, 58 N.M. 385, 271 P.2d 827) as a result of an analysis of blood extracted from his veins while unconscious. He brought his case before the United States Supreme Court which concluded his conviction did not constitute a violation of due process under the Fourteenth Amendment of the United States Constitution.

In arriving at its decision the court stated at page 439 of 352 U.S., at page 412 of 77 S.Ct.: 'As against the right of an individual that his person be held inviolable, even against so slight an intrusion as is involved in supplying a blood test of this kind to which millions of Americans submit as a matter of course every day, must be set the interests of society'. In this...