____________________________________________________________________
IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
September Term, 2002
________
Case Number: 02138
______
Kevin Wyatt
Appellant
vs.
State of Maryland
Appellee
_____________________________
Appeal from the Circuit Court for Harford County, Maryland
(The Honorable Thomas E. Marshall, Circuit Judge)
_______________________
Appellant’s Brief and Appendix
_______________________
Richard Winelander
1005 North Calvert Street
Baltimore, Maryland 2l202
rw@rightverdict.com
(410) 576-7980
Counsel for Appellant
______________________________________________________________________
TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………………….………..…2
STATEMENT OF THE CASE……………………………………………………………4
QUESTIONS PRESENTED FOR REVIEW…………………………………………....5
STATEMENT OF FACTS………………………………………………………………...6
ARGUMENT
I.
THE TRIAL COURT ERRED WHEN IT ADMITTED EVIDENCE OF THE
DEFENDANTS REFUSAL TO SUBMIT TO A BREATHALYZER TEST……….……7
A
Section 10-309 of the Courts and Judicial Proceedings Article is
rendered unconstitutional, in application, by the ex post facto
provision of the Maryland and Federal Constitutions……………...…………..….7
B
The evidence of the test refusal and the DR-15 should have been
excluded because it violated the self-incrimination provisions of the
Maryland Declaration of Rights……………………………………………….…11
The evidence of the test refusal and the DR-15 should have been
excluded because it was not relevant to any issue in the case……………...……13
C
D
The evidence of the test refusal and the DR-15 should have been
excluded because its probative value was outweighed the danger
of unfair prejudice…………………………………………………………...……16
II.
THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE
JURY THAT NO INFERENCE OR PRESUMPTION OF GUILT ARISES
BECAUSE OF A REFUSAL TO SUBMIT TO A BREATHALYZER TEST………....16
CONCLUSION………………………………………………………………….……....19
CONSTITUTIONAL PROVISIONS, STATUTORY PROVISIONS AND RULES…….…....20
STATEMENT OF FONT TYPE AND SIZE……..……………………………...……..23
APPENDIX……….…………………………………………………………………..…24
1
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
U.S. Constitution Article I, § 10, clause 1 ……………………………………….…8,9,22
U. S. Constitution: Amendment V. ………………………………….………………11,22
Maryland Constitution: Article IV……………………………………………………13,22
Maryland Declaration of Rights Article 17 …………………………………………...8,23
Maryland Declaration of Rights: Article 22…………………………………..11,12,13,23
STATUTORY PROVISIONS
Maryland Courts and Judicial Proceedings Article§10-309 .................................. 7,8,9,10,11
Maryland Code Ann., Transp. Art., § 21-902 ............................................................ 4, 6,17,18
Maryland Code Ann., Transp. Art., § 22-410 ......................................................................... 13
RULES
Maryland Rule 4-325………………………………………………….…………..17,24,25
Maryland Rule 5-402……………………………………………………….……..13,15,25
Maryland Rule 5-403………………………………………………………..………..16,25
CASES
Application of Baggett, 531 P2d 1011 (Okla. 1974) .............................................................. 13
Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798)………………..……………….….8,9
Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) ........... 8, 9, 10,11
Carter v. State, 366 Md. 574, 785 A.2d 348 (2001). ........................................................ 17,18
Clark v. State, 336 So.2d 468, affirmed 363 So.2d 331 (Fla. App. 1976)........................... 11
Clark v. State. 80 Md. App. 405, 564 A.2d 90 (1989). ........................................................ 18
Commonwealth v. Blais, 428 Mass. 294, 701 N.E.2d 314 (1998) ....................................... 12
Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 695 N.E.2d 1075 (1998) ..................... 12
Dorsey v. State, 276 Md. 638, 643, 350 A.2d 665 (1976)..…..……………………….…13
Engler v. State, 316 P.2d 625 (Okla. Crim. 1957) ................................................................. 15
Frost v. State, 336 Md. 125, 136, 647 A.2d 106 (1994)…………………………………,.8
Gay v. Orlando, Fla. App. D4) 202 So.2d 896 (1967) .......................................................... 12
Hansen v. Owens, 619 P.2d 315 (Utah 1980) .................................................................... 11,12
Hovious v. Riley, 403 SW2d 17 (Ky. 1966) ............................................................................ 12
Johnson v. State, 125 Ga. App. 607, 188 S.E.2d 416 (1972) ................................................ 12
Krauss v. State, 322 Md. 376, 587 A.2d 1102 (1991) .............................................. 8,14,16 17
Opinion of Justices to Senate, 412 Mass. 1201, 591 N.E.2d 1073 (1992) .......................... 12
People v. Duke, 136 Mich. App. 798, 357 N.W.2d 775 (1984) ...................................... 14,17
People v. Knutson, 17 Ill. App. 2d 251, 149 N.E.2d 461(1958)................................ 15,16, 17
People v. Terrien, 93 Mich. App. 802; 286 N.W.2d 924 (1979) ......................................... 15
Roach v. State, 358 Md. 418, 749 A.2d 787 (2000) ............................................................... 18
2
Robertson v. State, 112 Md. App. 366. 685 A.2d 805 (1996) .............................................. 18
Rule 5-402 ................................................................................................................................... 16
South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983)................. 11
State v. McCarthy 259 Minn. 24, 104 N.W.2d 673, 87 ALR2d 360 (overruled on
other grounds State v. Willis (Minn.) 332 N.W.2d 180) (1960) ...................................... 12,13
State v. Murphy, 516 N.W.2d 285, (N.D. 1994) ..................................................................... 18
State v. Neville, 346 N.W.2d 425 (S.D. 1984) ........................................................................ 11
State v. Sullivan, 2 Conn. Cir. 412, 199 A.2d 709 (1963) ..................................................... 12
State v. Walden, 490 S.W.2d 391 (Mo. App. 1973 ................................................................ 15
State v. Warmack, 230 Ga. App. 157, 495 S.E.2d 632 (1998) ............................................. 12
Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ....................... 10
MISCELLANEOUS
Maryland Pattern Jury Instructions……………………...……………………………17,18
3
IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
September Term, 2002
________
Case Number: 02138
______
Kevin Wyatt
Appellant
vs.
State of Maryland
Appellee
_____________________________
Appeal from the Circuit Court for Harford County, Maryland
(The Honorable Thomas E. Marshall, Circuit Judge)
_______________________
APPELLANT’S BRIEF AND APPENDIX
_______________________
STATEMENT OF THE CASE
On November 21, 2001, Appellant, Kevin Wyatt, was convicted by a jury in
Harford County of driving while under the influence of alcohol, on December 14, 1999,
in violation of Maryland Code Ann., Transp. Art., § 21-902(b). The jury acquitted him of
driving while intoxicated in violation of Maryland Code Ann., Transp. Art., § 21-902(a).
(T 11/21/01-37).
During trial, the Court overruled the Appellant’s Motion in limine
4
seeking exclusion of his refusal to submit to a breathalyzer test. (T 11/20/01-106-109).
Counsel renewed the objection prior to admission of this evidence and the introduction of
an Advice of Rights Form DR15(App. 1). (T 11/20/01-122). Finally, the court refused to
instruct the jury, at the Appellant’s request (App. 2), that no inference or presumption of
guilt arises because of a refusal to submit to a breathalyzer test. (T 11/21/01-14).
After the jury returned its verdict, the Appellant was sentenced to one-year
incarceration, with all but four months suspended. (T 2-44).
The Appellant noted a
timely appeal raising the following questions for review.
QUESTIONS PRESENTED FOR REVIEW
I.
WHETHER THE TRIAL COURT ERRED WHEN IT ADMITTED EVIDENCE
OF THE DEFENDANT’S REFUSAL TO SUBMIT TO A BREATHALYZER
TEST
A.
Whether § 10-309 of the Courts and Judicial Proceedings Article is rendered
unconstitutional, in application, by the ex post facto provision of the Maryland
and Federal Constitutions
B.
Whether evidence of the test refusal and the DR-15 should have been excluded
because it violated the self-incrimination provisions of the Maryland Declaration of
Rights
C.
Whether evidence of the test refusal and the DR-15 should have been excluded
because it was not relevant to any issue in the case
D.
Whether evidence of the test refusal and the DR-15 should have been excluded
because its probative value was outweighed by the danger of unfair prejudice
5
II.
WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT
THE JURY THAT NO INFERENCE OR PRESUMPTION OF GUILT ARISES
BECAUSE OF A REFUSAL TO SUBMIT TO A BREATHALYZER TEST
STATEMENT OF FACTS
At 1:30 in the morning on December 14, 1999, Officer Jeffrey Knight of the Bel
Air Police Department began to observe the vehicle, operated by the Appellant, drive
erratically. (T 11/20/01-111). At approximately 1:37 A.M. he initiated a traffic stop. As
he approached the vehicle, Appellant got out of the automobile, but was immediately
ordered back in the car by Officer Knight. (T 11/20/01-117). Officer Knight next
ordered Appellant from his vehicle, whereupon Officer Knight offered three field
sobriety tests to the Appellant. In response the Appellant stated, “I refuse, I absolutely
refuse to take any tests. Arrest me, whatever, but I am not taking any tests.” (T
11/20/01-119). After he was transported back to the station, Officer Knight read the
Appellant his rights to a chemical test contained on the DR-15 form.
After being
informed of his rights, the Appellant refused to submit to the breathalyzer test. (T
11/20/01-120-123).
On November 20, 2001, the Appellant appeared in the Circuit Court for Harford
County to be tried for driving while intoxicated and driving under the influence of
alcohol, in violation of Md. Code Ann., Transportation Art., § 21-902 (a) and (b). During
the trial, the court considered the Appellant’s Motion in Limine to exclude the testimony
6
of his refusal to submit to a breathalyzer test. (T 11/20/01-106-109). After the court
overruled the Appellant’s Motion in limine seeking exclusion of his refusal to submit to a
breathalyzer test.
(T 11/20/01-106-109). Counsel renewed the objection prior to
admission of this evidence and the introduction of an Advice of Rights Form D-15.
(App.1)(T 11/20/01-122). When this objection was overruled, counsel requested the
court to instruct the jury, in accordance with MPJI 4:10.3, that no inference or
presumption of guilt arises because of a refusal to submit to a breathalyzer test (App. 2).
The court declined to propound such an instruction. (T 11/21/01-4-14). After the jury
was instructed, counsel took exception to the court’s failure to instruct on that topic. (T
11/21/01-14).
On November 21, 2001, the jury convicted Appellant of driving while under the
influence of alcohol and acquitted him of driving while intoxicated.
ARGUMENT
I.
THE LOWER COURT ERRED WHEN IT ADMITTED EVIDENCE OF THE
DEFENDANT’S REFUSAL TO SUBMIT TO A BREATHALYZER TEST
A.
Section 10-309 is rendered unconstitutional, in application, by the ex post facto
provision of the Maryland and U.S. Constitutions
The State justified the admission of evidence of the Appellant’s refusal to submit
to a breathalyzer test based on an amendment to §10-309 of the Maryland Courts and
Judicial Proceedings Article (CJ) that became effective October 1, 2001. (T 11/20/01106). This was the second of two amendments that occurred subsequent to Appellant’s
December 13, 1999 arrest. The legislative history reveals that the first amendment which
7
became effective on October 1, 2000, only rewrote §10-309(a)(1) and divided CJ §10309(a)(2) into (a)(2)(i) and (a)(2)(ii)—it did nothing to change the substance of the
statute. The second amendment, which became effective October 1, 2001, deleted the
language that “[n]o inference or presumption concerning either guilt or innocence arises
because of refusal to submit.” Thus, what was inadmissible as a result of judicial
interpretation of this statute, Krauss v. State, 322 Md. 376, 587 A.2d 1102 (1991),
suddenly became admissible almost two years after the Appellant refused to take the
breathalyzer test.
Both the U.S. Constitution and the Maryland Declaration of Rights prohibit ex
post facto laws.
Article 17 of the Maryland Declaration of Rights states "[t]hat
retrospective Laws, punishing acts committed before the existence of such Laws, and by
them only declared criminal, are oppressive, unjust and incompatible with liberty;
wherefore no ex post facto Law ought to be made, nor any retrospective oath or
restriction be imposed, or required."
Article I, section 10, clause 1 of the U.S.
Constitution prohibits states from enacting any ex post facto law. Maryland law views the
ex post facto prohibition in the Maryland Declaration of Rights as having the same
meaning as the ex post facto prohibition in the U.S. Constitution. See Frost v. State, 336
Md. 125, 136, 647 A.2d 106 (1994). Laws that alter legal rules of evidence and require
less evidence to obtain conviction are ex post facto laws, Calder v. Bull, 3 Dall. 386, 390,
1 L.Ed. 648 (1798) (Chase, J.); Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146
L.Ed.2d 577 (2000).
8
In 1798, shortly after the creation of the Bill of Rights, the Supreme Court was
afforded the opportunity to define and explain the proscription against ex post facto laws,
Calder v. Bull, supra. In that case, Justice Chase set out four categories of ex post facto
laws:
1st. Every law that makes an action done before the passing of the law, and
which was innocent when done, criminal; and punishes such action.2d.
Every law that aggravates a crime, or makes it greater than it was, when
committed.3d. Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence, and receives less, or
different, testimony, than the law required at the time of the commission of
the offence, in order to convict the offender.
3 Dall., at 389 (emphasis added). Over two centuries later, the Supreme Court not only
adhered to this definition, but also quoted it verbatim, Carmell v. Texas, 529 U.S. at 51314. The retroactive application of the provisions of CJ § 10-309 falls into Justice Chase’s
fourth category of repugnant ex post facto laws. This is so for several reasons: first, it
reduces the quantum of evidence necessary to obtain the connection and secondly, it
changes the legal consequence of acts completed before its effective date and, finally, it
subverts the presumption of innocence.
At the time the Appellant committed this offense, CJ § 10-309 had been
interpreted to prohibit the introduction of evidence of a test refusal, unless, of course, it
was relevant to some issue in the case. As long as a defendant did not generate an issue as
to the procedures revolving around the chemical test (i.e. “I wanted to take a test but the
cop would not let me”), he would not be faced with the presumption that he didn’t take
9
the test because he was in fact drunk. In other words, it undermines the presumption of
innocence. In circumstances such as this, the Supreme Court is quite clear:
In particular, the elements of unfairness and injustice in subverting the
presumption of innocence are directly implicated by rules lowering the
quantum of evidence required to convict. Such rules will always run in the
prosecution's favor, because they always make it easier to convict the
accused.
Carmell v. Texas, 529 U.S. at 546. As a result, the application of CJ § 10-309 should be
declared ex post facto on that basis alone.
The 2001 Amendment of CJ § 10-309 is ex post facto because it changes the legal
consequence of acts completed before its effective date. When examining a statute for an
ex post facto violation, “[t]he critical question is whether the law changes the legal
consequences of acts completed before its effective date,” Weaver v. Graham, 450 U.S.
24, 31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).
In the case sub judice, the Appellant declined to take a chemical test almost two
years before the effective date of the legislation. Thus, had he been tried anytime during
the next 22 months, the evidence of his refusal would not have been admissible in his
trial. However on October 1, 2001, not only was the fact of his refusal now admissible,
but he also lost the presumption of innocence and gained an inference of guilt. Now:
[T]he government refuses, after the fact, to play by its own rules, altering
them in a way that is advantageous only to the State, to facilitate an easier
conviction. There is plainly a fundamental fairness interest, even apart from
any claim of reliance or notice, in having the government abide by the rules
of law it establishes to govern the circumstances under which it can deprive
a person of his or her liberty or life.
10
Carmell v. Texas, 529 U.S. at 533. Therefore, the retroactive application of CJ §10-309,
to the case at bar, should be declared ex post facto.
B.
The evidence of the test refusal and the DR-15 should have been excluded because it
violated the self-incrimination provisions of the Maryland Declaration of Rights.
Assuming arguendo that the 2001 amendment applied to the Appellant in this
case, the trial judge erred by permitting evidence of defendant's refusal to take the
breathalyzer test and the DR-15, to go before the jury. This is so, because the admission
of this evidence violated the Appellant’s right against self-incrimination as guaranteed by
Article 22 of the Maryland Declaration of Rights.
Appellant recognizes that the Supreme Court has found that evidence of
defendant's refusal to submit to alcohol test would not violate the self-incrimination
clause of the Fifth Amendment to the Constitution, South Dakota v. Neville, 459 U.S.
553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). But, see State v. Neville, 346 N.W.2d 425
(S.D. 1984) (on remand from the U. S. Supreme Court, the Supreme Court of South
Dakota, resting on state constitutional grounds, found that evidence of defendant's refusal
to submit to an alcohol test should be suppressed).
In pertinent part, the Fifth
Amendment proclaims that a citizen shall not “be compelled in any criminal case to be a
witness against himself” U. S. Constitution: Amendment V.
On the other hand, Article 22 of the Maryland Declaration of Rights specifically
states “[t]hat no man ought to be compelled to give evidence against himself in a criminal
case” Id (emphasis added). A plain reading of Article 22 revels a broader type of
protection. See Hansen v. Owens, 619 P.2d 315 (Utah 1980) (“phrase ‘to give evidence
11
against himself,’ as used in our constitution, was intended to mean something different
and broader than the phrase ‘to be a witness against himself’ as used in the federal
constitution” 619 P.2d at 317). There is a major distinction between being a witness
against one’s self, by testifying, and giving evidence against oneself by asserting a
statutory right not to submit to alcohol test See also Clark v. State, 336 So.2d 468,
affirmed 363 So.2d 331 (Fla. App. 1976).
Other states have excluded from evidence, a defendant's refusal to submit to
alcohol test, on state constitutional grounds, see also State v. Sullivan, 2 Conn. Cir. 412,
199 A.2d 709 (1963); Gay v. Orlando, Fla. App. D4) 202 So.2d 896 (1967); Johnson v.
State, 125 Ga. App. 607, 188 S.E.2d 416 (1972); State v. Warmack, 230 Ga. App. 157,
495 S.E.2d 632 (1998); Hovious v. Riley, 403 SW2d 17 (Ky. 1966); Opinion of Justices
to Senate, 412 Mass. 1201, 591 N.E.2d 1073 (1992) (Proposed Massachusetts statute
permitting admission of evidence of defendant's refusal to submit to alcohol test would
violate self-incrimination clause of Massachusetts constitution; any such refusal would be
testimonial in nature, not real or physical evidence); Commonwealth v. Blais, 428 Mass.
294, 701 N.E.2d 314 (1998) (Motorist lawfully detained does not have right to refuse to
perform field sobriety tests, even though such refusal is not admissible as evidence
against motorist; disapproving); Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 695
N.E.2d 1075 (1998). (Evidence of driver's refusal to submit to field sobriety test is
equivalent of statement, "I have had so much to drink that I know or least suspect that I
am unable to pass the test," and therefore constitutes inadmissible testimonial or
communicative evidence revealing driver's knowledge or thoughts) State v. McCarthy
12
259 Minn. 24, 104 N.W.2d 673, 87 ALR2d 360 (overruled on other grounds State v.
Willis (Minn.) 332 N.W.2d 180) (1960), Application of Baggett, 531 P2d 1011 (Okla.
1974).
Since Article 22 provides broader protection than the Fifth Amendment, by
insulating a citizen accused of my crime from “giving evidence against himself,” the
admission of evidence, of the Appellant’s refusal to submit to a test, violated his rights
again self-incrimination as guaranteed by state constitutional law.
C.
The evidence of the test refusal and the DR-15 should have been excluded because it
was not relevant to any issue in the case.
The trial judge abused his discretion by permitting evidence, of defendant's refusal
to take a breathalyzer test and the DR-15, to go before the jury. The effect of the
amendment changed the status of this evidence from legally irrelevant (i.e. transportation
article § 22-412. 3 (h) (1) failure to use a seatbelt not admissible) to evidence that must
be tested under Maryland Rule 5-4021. This rule provides: “except as otherwise provided
by constitutions, statutes, or these rules, or by decisional law not inconsistent with these
rules, all relevant evidence is admissible. Evidence that is not relevant is not admissible.”
The test of relevancy is that “evidence, to be admissible, must be relevant to the issues
and must tend either to establish or disprove them.” Dorsey v. State, 276 Md. 638, 643,
350 A.2d 665 (1976).
As long as a defendant in a criminal case does not argue a negative inference from
the police officer’s failure to give him a breathalyzer test, the fact of his refusal has no
1
The statutory change cannot affect the rules of evidence, as incorporated into the rules of procedure, because the
Maryland Constitution delegates the judiciary with exclusive rulemaking authority, Maryland Constitution Article
IV § 18. (a)
13
bearing on whether that defendant was operating his motor vehicle while intoxicated.
Examples of circumstances where such evidence could become relevant are:
a. Where the defendant denies being given an opportunity to take a
Breathalyzer test,
b. Where the defendant claims that he took the test and the results were
exculpatory,
c. Where the defendant challenges the competency of any of the testing
done by the officer, or
d. Where the defendant challenges the credibility of the officer.
People v. Duke, 136 Mich. App. 798, 357 N.W.2d 775 (1984).
None of these
circumstances are present here.
The relevant evidence, for an alcohol related driving offense, is the police officers
observations of the defendant's operation of the motor vehicle and of the defendant
behavior. The Court of Appeals put it another way: Evidence of the refusal had no
proper relation to the only proposition for which it may reasonably be said to have been
offered, namely the guilt of the accused. Thus, it was not material. The refusal had no
proper probative value to establish the guilt of the accused. Thus, it was irrelevant.”
Krauss v. State, 322 Md. at 388, 587 A.2d at 1108.
Where, as here, there was no
collateral matter in question, evidence of refusal should be excluded. In Krauss the
Court of Appeals found that the refusal to take a breathalyzer test to be collateral to the
issue of whether a driver was intoxicated or under the influence of alcohol and therefore
not material or relevant to the issue of guilt or innocence. A similar result should be
reached here.
14
Other courts, that have had an opportunity to pass on this issue, have held that a
defendant’s refusal to submit to a chemical test to determine his blood-alcohol content
was not probative of his guilt or innocence and was inadmissible, People v. Knutson, 17
Ill. App. 2d 251, 149 N.E.2d 461(1958); People v. Terrien, 93 Mich. App. 802; 286
N.W.2d 924 (1979) (a breathalyzer test and the lack of such test was a “non issue”);
State v. Walden, 490 S.W.2d 391 (Mo. App. 1973) (Evidence that a defendant refused to
submit to a chemical test to determine his blood alcohol content was not probative of his
guilt or innocence and was inadmissible); Engler v. State, 316 P.2d 625 (Okla. Crim.
1957) (Evidence of a defendant's refusal to submit to an intoxication test lacked
probative value).
In People v. Knutson, supra, the court held inadmissible and prejudicial testimony
by witnesses and statements by the prosecuting attorney that referred to the fact that the
defendant had refused to take a breath test. The court stated: “Such evidence did not
tend to prove any material issue in the case and could only have tended to prejudice the
jury.... by leaving the impression that the defendant was intoxicated, otherwise he would
have consented to take and complete the test ” 17 Ill. App. 2d at 25.
In the case sub judice, the Appellant did not contend that the test results were
exculpatory or that he was not given the opportunity to take a test. He did not challenge
the competency of the testing, nor did he challenge the credibility of the officer.
Therefore, the evidence of test refusal should have been excluded because it was “not
relevant,” within the meaning of Rule 5-402, to any issue in the case.
15
D.
The evidence of the test refusal and the DR-15 should have been excluded because its
probative value was outweighed by the danger of unfair prejudice.
To the extent that the evidence of the Appellant's refusal to take a breath test was
relevant, it should have been excluded because its probative value was outweighed by the
danger of unfair prejudice. Clearly the trial judge abused his discretion in admitting this
evidence. That abuse was further compounded by allowing the actual advice of rights form
to be admitted into evidence. Maryland Rule 5-403 provides:
Although relevant, evidence maybe excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations up on due to lay, waste of
time, or needless presentation of cable at this evidence.
In the case sub judice, the introduction of this evidence could clearly create an unfair
prejudice.
The inference, which flies in the face of the defendant’s presumption of
innocence, is that he failed to take the test for no other reason than he was drunk. Here, like
in Krauss, supra, “there appeared no sound reason for the State to introduce evidence of
the refusal except to influence the jury toward a verdict of guilty” Krauss, 322 Md. at
388. People v Knutson, supra. Therefore, the evidence, that the defendant refused to take
a chemical test and the DR-15, should have been excluded pursuant to Rule 5-403 because
it's probative value is substantially outweighed by the danger of unfair prejudice.
II.
THE TRIAL COURT ERRED IN REFUSING TO
INSTRUCT THE JURY THAT NO INFERENCE OR PRESUMPTION OF
GUILT ARISES BECAUSE OF A REFUSAL TO SUBMIT TO A
BREATHALYZER TEST.
Defense counsel requested that the jury be instructed that no inference or
presumption of guilt arises because of a refusal to submit to a breathalyzer test. (T
16
8/15/01-25). The court declined to propound such an instruction. (T 8/15/01-2.6). After
the jury was instructed, counsel took exception to the court’s failure to instruct on that
topic. (T 8/15/01-136). That exception was well taken, and the refusal to instruct was
prejudicial error. Under the applicable standard of review, the instruction clearly should
have been propounded.
Upon request, a trial court is obligated by Maryland Rule 4-325 to instruct the jury
on every essential point of law, which is supported by the evidence. See e.g., Robertson
v. State, 112 Md. App. 366. 685 A.2d 805 (1996); Clark v. State. 80 Md. App. 405, 564
A.2d 90 (1989). In other words, it is the duty of the trial judge to instruct the jury as to
the applicable law of the case. See Roach v. State, 358 Md. 418, 749 A.2d 787 (2000).
Rule 4-325 provides, impertinent part:
The court may, and at the request of any party shall, instruct the jury as to
the applicable law and the extent to which the instructions are binding. The
court may give its instructions orally or, with the consent of the parties, in
writing instead of orally. The court need not grant a requested instruction if
the matter is fairly covered by instructions actually given.
The Court of Appeals recently stated “[w]ith respect to the law to be applied in the case,
when requested, it is the duty of the trial judge to instruct on the essential elements of the
crime charged, any defenses supported by the evidence, and the burden of proof and
presumption of innocence.” Carter v. State, 366 Md. 574, 785 A.2d 348 (2001).
The instruction requested by the Appellant read as follows:
DRIVING WHILE INTOXICATED AND DRIVING UNDER THE
INFLUENCE OF ALCOHOL--EFFECT OF REFUSAL TO SUBMIT TO
BLOOD OR BREATH TEST
17
You have heard evidence that the defendant refused to take a chemical test
to determine blood alcohol level. You may not draw an inference of either
guilt or innocence from a refusal to take a chemical test.
(App. 2) The requested instruction was a verbatim copy of MPJI-Cr 4:10.3 and accurately
stated the applicable law. The “Notes on Use” following the instruction state: “Use this
instruction if the defendant is charged with driving while intoxicated and/or driving under
the influence of alcohol under Md. Transportation Code Ann. §21-902 (1992 & Supp.
1994) and the defendant refused a blood or breath test.” Moreover it is in accord with the
presumption of innocence and the Appellant’s statutory right to refuse to take the test.
See also State v. Murphy, 516 N.W.2d 285, (N.D. 1994), (jury should be instructed that a
refusal is not evidence of guilt and is not to be considered in determining the defendant's
guilt or innocence).
In People v. Duke, supra, the intermediate appellate court approved the following
statutory jury instruction:
Evidence was admitted in this case which, if believed by the jury, could
prove that the defendant had exercised his or her right to refuse a chemical
test. You are instructed that such a refusal is within the statutory rights of
the defendant and is not evidence of his guilt. You are not to consider such
a refusal in determining the guilt or innocence of the defendant.
136 Mich. App. at 802, 357 N.W.2d at 777. Clearly this instruction, like MPJI 4:10.3,
helps dispel the prejudice that comes from the introduction of the DR-15 and from
evidence that the defendant refused to take a chemical test. Therefore, this instruction
should have been given in this case.
18
CONCLUSION
For the foregoing reasons, the Appellant respectfully requests this Honorable
Court to reverse the conviction below and remand for a new trial with instructions to
exclude the DR-15 and his refusal to submit to a chemical test to determine his bloodalcohol content from evidence.
Respectfully Submitted
Kevin Wyatt
By and through counsel
________________________________
Richard William Winelander
1005 North Calvert Street
Baltimore, Maryland 2l202
rw@rightverdict.com
(410) 576-7980
19
STATUTORY PROVISIONS AND RULES
U. S. Constitution: Section 10, Clause 1.
Treaties, Letters of Marque and Reprisal; Coinage of Money; Bills of Credit; Gold
and Silver as Legal Tender; Bills of Attainder; Ex Post Facto Laws; Impairment of
Contracts; Title of Nobility
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque
and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin
a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title of Nobility.
U. S. Constitution: Amendment V.
Grand Jury Indictment for Capital Crimes; Double Jeopardy; Self-Incrimination;
Due Process of Law; Just Compensation for Property
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger; nor shall
any person be subject for the same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.
Maryland Constitution: Article IV
Judiciary Department.
SEC. 18. (a) The Court of Appeals from time to time shall adopt rules and regulations
concerning the practice and procedure in and the administration of the appellate courts
and in the other courts of this State, which shall have the force of law until rescinded,
changed or modified by the Court of Appeals or otherwise by law. The power of courts
other than the Court of Appeals to make rules of practice and procedure, or
administrative rules, shall be subject to the rules and regulations adopted by the Court of
Appeals or otherwise by law.
20
Maryland Declaration of Rights: Article 17.
Ex post facto laws; retrospective oaths
That retrospective Laws, punishing acts committed before the existence of such Laws,
and by them only declared criminal are oppressive, unjust and incompatible with liberty;
wherefore, no ex post facto Law ought to be made; nor any retrospective oath or
restriction be imposed, or required.
Maryland Declaration of Rights: Article 22. Self-incrimination
That no man ought to be compelled to give evidence against himself in a criminal case.
Md. Code Ann., Cts. & Jud. Proc. Art., § 10-309. Intoxication test; effect of refusal
(a)(1)(i) Except as provided in § 16-205.1(c) of the Transportation Article, a person may
not be compelled to submit to a test or tests provided for in this subtitle.
(ii) Evidence of a test or analysis provided for in this subtitle is not admissible in a
prosecution for a violation of § 16-113 or § 21-902 of the Transportation Article, § 8-738
of the Natural Resources Article, or Title 2, Subtitle 5, § 2-209, or § 3-211 of the
Criminal Law Article if obtained contrary to the provisions of this subtitle.
(2) The fact of refusal to submit is admissible in evidence at the trial.
(b) This section does not limit the provisions of the vehicle laws regarding the
consequences of refusal to submit to a test or tests.
(c) Nothing in this section precludes or limits the admissibility of evidence of a test or
analysis to determine the alcohol concentration of a person's blood or breath in any
prosecution other than for a violation of § 16-113 or § 21-902 of the Transportation
Article, § 8-738 of the Natural Resources Article, or Title 2, Subtitle 5, § 2-209, or § 3211 of the Criminal Law Article.
(d) Nothing in this section precludes or limits admissibility of evidence of a test or
analysis to determine the alcohol concentration of a person's blood or breath which is
obtained as provided in § 16-205.1(c) of the Transportation Article.
Prior to amendment
Md. Code Ann., Cts. & Jud. Proc. Art., § 10-309 Refusal to submit to test.
(a) Test not compulsory.(1) (i) Except as provided in § 16-205.1 (c) of the Transportation Article, a person may
not be compelled to submit to a test or tests provided for in this subtitle.
(ii) Evidence of a test or analysis provided for in this subtitle is not admissible in a
prosecution for a violation of § 16-113 or § 21-902 of the Transportation Article, § 8-738
21
of the Natural Resources Article, or Article 27, § 388, § 388A, or § 388B of the Code if
obtained contrary to the provisions of this subtitle.
(2) (i) No inference or presumption concerning either guilt or innocence arises because of
refusal to submit.
(ii) The fact of refusal to submit is admissible in evidence at the trial.
(b) Consequences of refusal.- This section does not limit the provisions of the vehicle
laws regarding the consequences of refusal to submit to a test or tests.
(c) Extent of limits on admissibility of analysis.- Nothing in this section precludes or
limits the admissibility of evidence of a test or analysis to determine the alcohol
concentration of a person's blood or breath in any prosecution other than for a violation of
§ 16-113 or § 21-902 of the Transportation Article, § 8-738 of the Natural Resources
Article, or Article 27, § 388, § 388A, or § 388B of the Code.
(d) Analysis obtained under TR § 16-205.1 - Nothing in this section precludes or limits
admissibility of evidence of a test or analysis to determine the alcohol concentration of a
person's blood or breath which is obtained as provided in § 16-205.1 (c) of the
Transportation Article.
Maryland Rule 4-325. Instructions To The Jury
(a) When Given. The court shall give instructions to the jury at the conclusion
of all the evidence and before closing arguments and may supplement them at a later time
when appropriate. at its discretion the court may also give opening and interim
instructions.
(b) Written Requests. The parties may file written requests for instructions at or
before the close of the evidence and shall do so at any time fixed by the court,
(c) How Given. The court may, and at the request of any party shall, instruct
the jury as to the applicable law and the extent to which the instructions are binding. The
court may give its instructions orally or, with the consent of the parties, in writing instead
of orally. The court need not grant a requested instruction if the matter is fairly covered
by instructions actually given.
(d) Reference to Evidence. In instructing the jury, the court may refer to or
summarize the evidence in order to present clearly the issues to be decided. In that event,
the court shall instruct the jury that it is the sole judge of the facts, the weight of the
evidence, and the credibility of the witnesses,
(e)
Objection. No party may assign as error the giving or the failure to give an
22
instruction unless the party objects on the record promptly after the court instructs the
jury, stating distinctly the matter to which the party objects amid the grounds of the
objection. Upon request of any party, the court shall receive objections out of the hearing
of the Jury An appellate court, on its own initiative or on the suggestion of a party, may
however take cognizance of an plain error in the instructions, material to the rights of the
defendant, despite a failure to object.
(f)
Argument. Nothing in this Rule precludes am party from arguing that the
law applicable to the case is different from the law described in the instructions of the
court stated not to be binding.
Maryland Rule 5-402. Relevant evidence generally admissible; irrelevant evidence
inadmissible.
Except as otherwise provided by constitutions, statutes, or these rules, or by decisional
law not inconsistent with these rules, all relevant evidence is admissible. Evidence that is
not relevant is not admissible
Maryland Rule 5-403. Exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time.
Although relevant, evidence maybe excluded if it's probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations up on due to lay, waste of time, or needless presentation of cable
at this evidence.
STATEMENT OF FONT TYPE AND SIZE
The font in this brief is Times New Roman and the size is 13-point type for the
body of the text, while the headings are in 16-point type.
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APPELLANT’S APPENDIX
States Exhibit 1 form DR-15…………………………………………………………...…1
Defendants Requested Instruction 16……………………………………………………..2
24