Stewart v. State

• Decision Date: 13 December 1967
• Docket Number: No. A--14047,A--14047
• Citation: 435 P.2d 191
• Parties: Dan STEWART, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 191

435 P.2d 191

Dan STEWART, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14047.

Court of Criminal Appeals of Oklahoma.

Dec. 13, 1967.

Rehearing Denied Dec. 29, 1967.

Syllabus by the Court

1. Showing of films taken of defendant while performing tests under direction of the police without the knowledge or consent constitutes a violation of Article 2, Section 21, Bill of Rights of the Oklahoma Constitution, as compelling defendant to give evidence tending to incriminate himself.

2. Moving pictures taken of defendant during an alcoholic influence test, under the directions and upon instructions from the police are inadmissible in the trial of a case unless it be shown that they were taken with knowledge of defendant, and upon his own violition, freely and voluntarily consented to the taking of said pictures after being advised of his constitutional rights against self-incrimination.

3. An officer preparing to give defendant an alcoholic influence test should, in order to make the results admissible, admonish defendant relative to his rights against self-incrimination. Just to say 'You have a constitutional right to refuse', is not sufficient to fully advise defendant of his rights-and silence upon part of defendant does not give consent or waive his constitutional rights.

4. A film with sound, made of defendant while being interrogated relative to incriminating matters is not admissible unless defendant is advised of his right to counsel as set forth in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, with additional admonition against self-incrimination.

5. Where said films were taken without proper admonition, it constitutes error to admit them into evidence. However, when there is an abundance of other testimony to show defendant was under the influence of alcoholic beverages, it will not, in the instant case, justify reversal but will constitute grounds for modification.

An appeal from the District Court of Cleveland County; Elvin J. Brown, Judge.

Dan Stewart was convicted of the crime of Felony Murder, sentenced to Life imprisonment in the penitentiary, and appeals. Charge reduced to first degree manslaughter, judgment and sentence modified to twenty-five years (25) in the penitentiary, and, as so modified, is affirmed.

W. Carl Nixon, Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Jeff Hartman, Asst. Atty. Gen., for defendant in error.

NIX, Presiding Judge:

Dan Stewart, hereinafter referred to as the defendant, was charged with the crime of Murder (Felony) in Cleveland County. He was tried before a jury, found guilty, and his punishment fixed at Life imprisonment in the penitentiary. Defendant perfected his appeal to this Court asserting numerous assignments of error upon which he relies for reversal.

This charge of murder arose out of the defendant running over a man working on the highway between Norman and Oklahoma City. The highway employee was killed as a result thereof. Defendant was allegedly intoxicated when he ran over the deceased, and having had previous convictions for drunk driving, he was charged under the Felony-Murder statute, pertaining to Drunk Driving and Homicide. To drive an auto while under the influence of alcohol after having been previously convicted for same, constitutes a felony. The statute further provides that causing the death of a human being while in the commission of a felony, constitutes murder. Thus the charge in the instant case.

This Court has thoroughly examined the briefs filed herein along with the casemade, and have come to the conclusion that it is only necessary to deal with the contention of error pertaining to the admissibility of evidence.

It is revealed by the casemade that defendant was taken in custody by the City Police of Moore and held until the Highway Patrol transported the defendant to the County Jail in Norman. There he was taken to a room equipped for taking moving pictures of the defendant while performing various tests under the direction of an officer. These tests consisted of such things as: walking a straight line, picking up coins from the floor, standing erect with head turned up as if looking at the ceiling with eyes closed, then touching nose with his finger. These tests are often referred to as 'Sobriety Tests' or 'Alcoholic Influence Tests'. During the time the tests were being performed by defendant at the direction of an officer, a .16 mm. camera was taking pictures of defendant's actions, demeanor, and conversation. The beginning of the picture reveals that the officer directing defendant's actions told the defendant '* * * that it was his constitutional right to refuse'. The film reveals that in response to this, Defendant said nothing; and the moving picture camera kept on grinding away while defendant tried to comply with Officer Pryor's directions. According to the testimony of Officer Pryor, this was the only admonition given to the defendant.

This hardly complies with the rule adopted by this Court in Spencer v. State, Okl.Cr.App., 404 P.2d 46. In that case, the identical question was presented to the Court, and in adopting a rule as to the admissibility of films taken of defendant while performing 'Alcoholic Influence Tests', the Court had this to say:

'Showing of films taken of defendant while performing tests under direction of the police without his knowledge or consent constitutes a violation of Article 2, Section 21, of the Bill of Rights, as compelling defendant to give evidence tending to incriminate himself.'

The Court further said:

'Moving pictures taken of defendant during an alcoholic influence test, under the direction and upon instructions from the police are inadmissible in the trial of a case unless it be shown that they were taken with knowledge of defendant, and upon his own volition freely and voluntarily consented to the taking of said pictures after being advised of his constitutional rights against self-incrimination.'

In the instant case, no effort was made to show that defendant was advised as to his rights involving self-incrimination. He was never advised that said films could or would be used against him in the trial. The only admonition given the defendant was that '* * * they were going to take pictures while he performed certain tests and he had a constitutional right to refuse'. To this admonition, defendant remained silent.

It is well recognized that silence does not waive one's right against self-incrimination.

This Court is of the opinion that the admonition, as required under Spencer v. State, supra, was not sufficient in the instant case to make the film admissible, and they should have been excluded.

In the case at bar, the films were made with sound. A re-play of the films by this Court revealed that during the film, defendant was interrogated with such questions as:

'Have you been drinking?'

'Are you hurt or ill?'

'Have you been drinking since the accident', etc.

The questions propounded were of a very incriminating nature. They were asked defendant without his being advised that he was entitled to counsel, had a right to remain silent, and that any answer could and would be used against him, and that he was entitled to counsel before answering any questions.

None of the admonitions as required by Escobedo v. State of Illinois, 378 U.S. 478, 84...