Munn v. StateMunn v. State
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- Before:
- Holt
This сase arose from a head on collision in which two people were killed. A jury convicted appellant on two counts of involuntary manslaughter,
After the jurors were selected and sworn, the following discussion occurred:
THE COURT: All of the witnesses in this case, please stаnd and be sworn. Defendant is now in jeopardy.
(A deputy clerk, Mrs. Shipman, asks that the defendant be sworn, along with witnesses in the case.)
MR. LINEBERGER: I think we have the right to have him sworn at a later time.
THE COURT: Sure. Sure. He doesn’t have to take the stand at all if he doesn’t want to.
Appellant objected and asked for a mistrial which was refused.
In Russell v. State, 240 Ark. 97, 398 S.W. 2d 213 (1966), we said:
If the accused is to have the unfettered right to testify or not to testify he should have а correlative right to say whether or not his silence should be singled out for the jury’s attention.
In Mosby v. State, 249 Ark. 17, 457 S.W. 2d 836 (1970), the trial court commented during voir dire that the jury would be instructed at the close of the trial. There the court said “[O]ne of the instructions will be concerning the situation that the defendant did testify and in the event he didn’t testify concerning that situation.” In holding this constituted prejudicial error, we said:
Based upon the record bеfore us, we cannot say whether the remarks of the court upon voir dire were invited or not. So, in that state of the record, the fact that the trial court brought appellant’s silence or nоn-silence as a witness to the jury’s attention during voir dire rather than during final instructions is of no consequence. The appellant’s ‘correlative right to say whether or not his silence should be singled out’ was infringed upon just the same. The prerogative of so alerting the jury was exclusively within the option of the appellant.
In the case at bar, the appellant’s right to testify or not to was brought to the jury’s attention by the court. That unfettered right belongs to appellant. The state argues that Russell and Mosby are inapplicable because the court’s remark was invited by appellant’s attornеy. We cannot agree. His attorney was merely stating correctly that the appellant had “the right” to be sworn later.
Appellant next asserts that the trial court erred in allowing an excused witnеss to be recalled to the stand. Pursuant to
The appellant relies on our recent cases. Reynolds v. State, 254 Ark. 1007, 497 S.W. 2d 275 (1973); and Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972). The appellee responds that it was discretionary with the court in permitting the witness to testify again upon recall. Cluhb v. State, 230 Ark. 688, 326 S.W. 2d 816 (1959); and Harris v. State, 171 Ark. 658, 285 S.W. 367 (1926). Suffice it to say that the witness’ presence in the courtroom after testifying is nоt likely to occur again upon a retrial.
Appellant next asserts that the court erred in permitting an investigating officer to give his opinion as to the direction the two vehicles were travеling when they collided. There was no eyewitness to the accident. A state policeman, who investigated approximately five accidents a week for eleven years, observed thе skid marks and the resting places of the vehicles involved. When asked “[W]hat did you physically observe, officer,” he responded that appellant’s “vehicle was traveling toward Fayetteville.” In the circumstances, we cannot. agree that this experienced officer’s testimony, based upon his observation of the physical evidence at the scene, was speculative аnd invaded the province of the jury with respect to a factual issue.
Appellant next asserts that the trial court erred in allowing testimony about appellant’s blood analysis. Appellant’s contention is that a proper chain of custody was not proven. The blood sample was taken, sealed and labeled by a lab technician in the presence of a state pоlice officer. The sample remained in the officer’s custody until it was delivered to Lt. Karl Martens of the Springdale Police Department. Martens testified that he put the sample in the refrigerator and stayed in the room until he made the analysis. After completion of the analysis, the vial was placed in an unlocked storage cabinet. There is no evidence of any tampering with thе vial. Any access to it by others, in the circumstances, would bear only upon the credibility or weight of the evidence.
Appellant contends that the blood sample was drawn at a doctor’s rеquest and, therefore, the doctor-patient privilege prevails.
Appellant also asserts that the state failed to prove that the blood test was performed according to methods approved by the Arkansas State Bоard of Health and
AP-210 requires that the sample be collected within two hours of the alleged offense. In this case, the most accurate testimony as to the time of the accident was 9:30 p.m. However, the victims were not administered to in the emergency room of the hospital until 11:30 p.m. The blood sample was drawn from appellant about 12:40 a.m. Lt. Martens tеstified on cross-examination that the longer one waits to run the blood alcohol test the percentage of alcohol decreases. Certainly, appellee has shown substantiаl com-plience and no prejudicial error is demonstrated.
Finally, appellant asserts that the trial court erred in overruling appellant’s motion for a directed verdict. In Burks v. State, 255 Ark. 23, 498 S.W. 2d 336 (1973), we reiterated our well established rule:
.... a dirеcted verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidеnce.
Shortly before the accident, a witness observed appellant at a liquor store. To him, appellant acted drunk. “I told the man that I didn’t think that he was able to drive, and he told me to worry аbout my own business.” The liquor store is between the site of the accident and Prarie Grove. The state policeman observed the physical evidence, as previously indicated, and testified appellant was traveling toward Fayetteville. Another witness, on cross-examination, testified that appellant told him he was on his way to Springdale, which is in the Fayetteville direction. To travel toward Fayetteville, the proper lane of travel would be the right lane. The accident, a head on crash, occurred on the left side of the highway near the shoulder. In the other car wеre two people, who lived at Prairie Grove, and were pronounced dead on arrival at the hospital. The weight of alcohol in appellant’s blood was 0.16 percent, which is аbove the level considered to be a presumption that a person is intoxicated.
It must be said that a jury could infer that the appellant was alone and driving toward Fayetteville. In Abbott v. Stаte, 256 Ark. 558, 508 S.W. 2d 733 (1974). we said:
.... the question whether circumstantial evidence excludes every reasonable hypothesis other than an accused’s guilt is usually for the jury, and no greater degree of proof is required whеre the evidence is circumstantial. (Citing cases.) It is only when circumstantial evidence leaves the jury, in determining guilt, solely to speculation and in conjecture that we hold it insufficient as a matter of law. (Citing cases.) In testing its sufficiency, we must view it in the light most favorable to the state.
We are of the view the evidence is not insubstantial as a matter of law and that it constituted a factual issue for the jury’s determination.
Reversed and remanded for the error indicated.