State v. Thomason, O--74--266

• Decision Date: 18 July 1975
• Docket Number: No. O--74--266,O--74--266
• Parties: The STATE of Oklahoma, Appellant, v. Wayne THOMASON, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1080

538 P.2d 1080

The STATE of Oklahoma, Appellant, v. Wayne THOMASON, Appellee.

No. O--74--266.

Court of Criminal Appeals of Oklahoma.

July 18, 1975.

James Clark, Dist. Atty., Thomas R. Carlock, Asst. Dist. Atty., Love County, for appellant.

Charles A. Milor, Ardmore, for appellee.

OPINION

BUSSEY, Judge:

Appellee, Wayne Thomason, hereinafter referred to as defendant, was charged in the District Court, Love County, Case No. CRF--74--4, with the offense of Second Degree Forgery. This is an appeal by the State from the adverse ruling of the trial court below, which upon hearing overruled a motion filed in behalf of the State to require that defendant furnish a handwriting exemplar. We have accepted jurisdiction of this appeal as upon a reserved question of law under the provisions of 22 O.S.1971, § 1053, paragraph 3.

The sole assignment of error properly presented to this Court on appeal is that the trial court erred in refusing to compel the defendant to furnish a handwriting exemplar to the State. However, we recognize this assignment to encompass three propositions of law, which are as follows: (1) the self-incrimination clause embodied in the Oklahoma Constitution is not broader than that contained in the United States Constitution; (2) a handwriting sample or exemplar is not included within the constitutional privilege against self-incrimination; and, (3) to the extent that the handwriting characteristics of a suspect or accused are relevant, the State may cause the trial court to compel him to furnish a reasonably sufficient specimen of his handwriting for comparative purposes upon penalty of contempt.

We first observe that the court below placed some emphasis upon the particular wording of our State constitutional provision upon self-incrimination. Article 2, § 21, of the Oklahoma Constitution provides insofar as pertinent that:

'No person shall be compelled to Give evidence which will tend to incriminate him . . .'

Whereas, the Fifth Amendment to the United States Constitution provides in pertinent part that:

'No person . . . shall be compelled in any criminal case to be a Witness against himself . . .'

Except for Iowa and New Jersey, each State in the Union has a constitutional provision upon self-incrimination, and of these, one-half or 24 States including Oklahoma, employ terminology protecting one from being compelled to Give or furnish evidence against himself. See, 8 Wigmore, Evidence, § 2252, page 319, n.3 (McNaughton rev.1961), for the citation of each constitutional provision. In that excellent and exhaustive analysis of this topic, the author states that:

'. . . The variety of constitutional and statutory phrasing neither enlarges nor narrows the scope of the privilege as developed in the common law. (§ 2252, page 326, footnotes omitted)

'In the interpretation of the principle, nothing turns upon the variations of wording in the constitutional clauses; this much is now conceded. . . . It is therefore immaterial that the witness is protected by one constitution from 'testifying' or by another from 'furnishing evidence,' or by another from 'giving evidence,' or by still another from 'being a witness.' These various phrasings have a common conception, in respect to the Form of the protected disclosure. . . .

'The History of the privilege . . . especially the spirit of the struggle by which its establishment came about--suggests that the privilege is limited to testimonial disclosures. It was directed at the employment of legal process to Extract from the person's own lips an admission of guilt, which would thus take the place of other evidence. That is, it was intended to prevent the use of legal compulsion to extract from the person a sworn communication of his knowledge of facts which would incriminate him. Such was the process of the ecclesiastical court, as opposed through two centuries--the inquisitorial method of putting the accused upon his oath in order to supply the lack of the required two witnesses. Such was the complaint of Lilburn and his fellow objectors, that he ought to be convicted by other evidence and not by his own forced confession upon oath.

'Such, too, is the main thrust of the Policies of the privilege . . . While the policies admittedly apply to some extent to nontestimonial cooperation, it is in testimonial disclosures only that the oath and private thoughts and beliefs of the Individual--and therefore the fundamental sentiments supporting the privilege--are involved.

'In other words, it is not merely any and every Complusion that is the kernel of the privilege, in history and in the constitutional definitions, but Testimonial compulsion. The latter idea is as essential as the former.' (§ 2263, page 378 and 379, footnotes omitted, emphasis original)

This appears to have first been recognized prior to our statehood and the adoption of our constitution, when in 1891 the United States Supreme Court, in Counselman v. Hitchcock, 142 U.S. 547, 585--586, 12 S.Ct. 195, 206, 35 L.Ed. 1110, stated in part that:

'(W)here the constitution, as in the cases of Massachusetts and New Hampshire, declares that the subject shall not be 'compelled to accuse or furnish evidence against himself;' such a provision should not have a different interpretation from that which belongs to constitutions like those of the United States and of New York, which declare that no person shall be 'compelled in any criminal case to be a witness against himself.' . . .

'It is contended on the part of the appellee that the reason why the courts in Virginia, Massachusetts, and New Hampshire have held that the exonerating statute must be so broad as to give the witness complete amnesty is that the constitutions of those states give to the witness a broader privilege and exemption than is granted by the constitution of the United States, in that their language is that the witness shall not be compelled to accuse himself, or furnish evidence against himself, or give evidence against himself; and it is contended that the terms of the constitution of the United States, and of the constitutions of Georgia, California, and New York, are more restricted. But we are of opinion that, however this difference may have been commented on in some of the decisions, there is really, in spirit and principle, no distinction arising out of such difference of language.'

The United States Supreme Court later reiterated that observation when in Schmerber v. California, 384 U.S. 757, n. 6, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Court stated:

'Many state constitutions, including those of most of the original Colonies, phrase the privilege in terms of compelling a person to give 'evidence' against himself. But our decision cannot turn on the Fifth Amendment's use of the word 'witness.' '(A)s the manifest purpose of the constitutional provisions, both of the states and of the United States, it to prohibit the compelling of testimony of a self-incriminating kind from a party or a witness, 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, (supra) . . .'

Also in Weintraub, Voice Identification, Writing Exemplars and the Privilege Against Self-Incrimination, 10 Vand.L.Rev. 485 n.22 (1957), the author analyzes this issue and concludes that:

'(T)he cases concerning the question of when conduct on the part of an accused is improperly compelled suggest that the decisions, for the most part, have turned upon the courts' concepts concerning the privilege against self-incrimination rather than upon variations in phraseology of state constitutions . . .'

To the extent that this precise issue has been seriously addressed, other State with constitutional provisions upon self-incrimination similar to our own, recognize those provisions to simply be declaratory of the common law and reject the contention that To give evidence is broader in scope than the phraseology employed in the federal constitutional provision. See, State v. Berg, 76 Ariz. 96, 259 P.2d 261 (1953); State v. Smith, 8 Terry 334, 47 Del. 334, 91 A.2d 188 (Super.Ct.1952); People ex rel. Hanrahan v. Power, 54 Ill.2d 154, 295 N.E.2d 472 (1973); Newman v. Stinson, Ky., 489 S.W.2d 826 (1972); State v. Roy, 220 La. 1017, 58 So.2d 323 (1952); Opinion of the Justices, Me., 255 A.2d 643 (1969); Brown v. State, 233 Md. 288, 196 A.2d 614 (1964); Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972); Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 (1963); and, State v. Moore, 79 Wash.2d 51, 483 P.2d 630 (1971). But to the contrary, see, Wells v. State, 20 Ala.App. 240, 101 So. 624 (1924), which was later seemingly abandoned in Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968). To illustrate, in Berg, the Arizona Court stated in part that:

'The . . . provision of our constitution is in substance the same as one of the immunities guaranteed under the provisions of the Fifth Amendment to the Constitution of the United States. Every state in the Union has similar provision with the exception of Iowa and New Jersey. Although slightly different in the language employed the courts uniformly hold that their meaning and purpose are the same. While there is a divergence of authority on the scope of evidence intended to be embraced in this constitutional immunity the better rule, we believe, is that it is limited primarily to testimonial compulsion, i.e., 'to extract from the person's own lips an admission of his guilt." (259 P.2d 263)

Also, in Smith, the Delaware Court there stated, in most pertinent part, that:

'This rule of privilege springs from the early common law. . . . A review of the history of privilege and the spirit of the struggle by which it was accomplished reveals the object of the protection to be only against the...