STATE of Tennessee, Appellee, v. Billy D. FRASIER, Appellant.
No. unknown
Supreme Court of Tennessee, at Nashville.
Jan. 29, 1996.
Rehearing Denied March 18, 1996.
914 S.W.2d 467
Id. at 680. Thus, applying the principles of comparative fault to a medical malpractice action, a physician is liable only for that portion of the plaintiff‘s damages that were proximately caused by the physician‘s negligence.
The Court declines the invitation to reverse the decision in Volz v. Ledes, which, in the Court‘s view, was properly decided. In the present case, the decedent‘s negligence caused the accident and, incidental thereto, the ruptured spleen. The physician negligently failed to diagnose the injury. Death resulted. There was one indivisible injury proximately caused by the separate, independent acts of the plaintiff and the physician. Had the injury been caused by the separate, independent negligent acts of the physician and another tortfeasor, the liability of each would be determined by the fault attributed to each. Owens v. Truckstops, 915 S.W.2d 420, 430 (Tenn.1996). The principle is the same where the negligence of the plaintiff is а contributing proximate cause. Whitehead v. Toyota Motor Co., 897 S.W.2d 684 (Tenn.1995).
This case does not present, and the Court declines to address in this opinion, the rights and liabilities of the parties where there are multiple, separate injuries.
III
In response to the certified question, the principles of comparative fault apply in Tennessee medical malpractice actions, so as to result in the apportionment of fault between the estate of a decedent who acted negligently in causing the initial injury, and a physician who acted negligently in the treatment of the decedent for that injury. The physiсian‘s liability will be limited to the percentage of the total damages attributed to his negligence.
The Clerk will transmit this opinion to the Sixth Circuit Court of Appeals and counsel for the parties in accordance with Rule 23, Section 8 of the Rules of the Tennessee Supreme Court. The costs in this Court will be taxed to the plaintiff.
ANDERSON, C.J., and DROWOTA, BIRCH and WHITE, JJ., concur.
Donald G. Dickerson, Cookeville, for Appellant.
OPINION
DROWOTA, Justice.
This case presents the following issues for our determination: (1) whether a person who has been stopped by the police for driving under the influence (DUI) has a right, under either the state or federal constitutions, to consult with an attorney prior to making a decision as to whether to submit to or refuse a blood or breath test; and (2) whether such a person‘s state or federal constitutional right against self-incrimination prohibits a refusal to submit to such a test from being admitted as evidence at trial, when the person was not informed that the evidence could be used against him or her. We answer both questions in the negative, and therefore affirm the judgment of the Court of Criminal Appeals, which dеclined to suppress the evidence of the refusal.
FACTS AND PROCEDURAL HISTORY
On May 25, 1992, Officer Reno Martin of the Cookeville Police Department stopped Billy D. Frasier, the defendant, after he drove his vehicle through a red light. Frasier smelled of alcohol; and Officer Martin arrested him for DUI after Frasier failed a field sobriety test. After the arrest—which was not preceded by a recitation of any Miranda rights—Officer Martin requested that Frasier submit to a breath test. Frasier asked to speak to an attorney before making this decision, and he also offered to take a blood test in lieu of the breath test. Officеr Martin denied both these requests. Frasier ultimately refused to submit to the test; and he signed an implied consent form which explained that a refusal to submit to the test could result in the suspension of his driver‘s license. However, the implied consent form did not reveal that his refusal to submit to the test could be introduced as evidence against him at trial; and Officer Martin did not orally advise him of this.
The Court of Criminal Appeals, while agreeing with the trial court‘s findings of fact, held that the еvidence of defendant‘s refusal to submit to the test was not due to be suppressed under several of the decisions of that court. Because this Court has not yet addressed these issues, we granted Frasier‘s Rule 11 application for that purpose.
RIGHT TO COUNSEL CLAIM
The first issue that we address is whether Frasier had a constitutional right to speak with an attorney prior to making the decision as to whether to submit to or refuse the breath test. First, we note that Frasier has no such right under the Sixth Amendment1 to the federal constitution or its state counterpart,
We hold that right to counsel attaches when adversary judicial proceedings are initiated. Initiation is marked by formal charge, which we construe to be an arrest warrant, or at the time of the preliminary hearing in those rare cases where a preliminary hearing is not preceded by an arrest warrant, or by indictment or presentment when the charge is initiated by the grand jury.
In accordance with the United States Supreme Court‘s decision in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), we stated that an arrest warrant signalled the initiation of formal prоceedings because the warrant “brings to an end the investigative stage and inaugurates the beginning and adversarial stage” of a criminal case. Id. It was only then, we reasoned, that the State clearly commits itself to prosecution and “a defendant finds himself faced with prosecutorial forces of organized society.” Id. at 287, quoting Kirby, 406 U.S. at 689-90, 92 S.Ct. at 1882.
Even though we concluded that an arrest warrant was necessary for the constitutional right of counsel to attach, we also noted that a criminal defendant is not without a degree of constitutional protection even before that stage. We specifically addressed the situation of a defendant subjected to a lineup after a warrantless arrest:
When an arrest is made without a warrant and a lineup is conducted there is no constitutional right to counsel; however, even then the accused is constitutionally protected against unnecessarily suggestive procedures. We noted in Forbes v. State, [559 S.W.2d 318 (Tenn.1977)], that ‘since the identification occurred during the investigative phase and prior to arrest, we are not dealing with the Sixth Amendment right to counsel.’ However, we considered the Due Process aspect and determined that the identifiсation procedure was not impermissibly suggestive.
Mitchell, 593 S.W.2d at 286, n. 4 (citations omitted).
Turning to the case at hand, it is undisputed that Frasier was arrested without a warrant; therefore, the constitutional right to counsel as defined in Mitchell never attached. Frasier acknowledges this, but ar
In assessing the merits of this argument, we first note that some jurisdictions have held that the notion of fundamental fairness, as embodied in the Due Process Clause, requires that a DUI defendant be permitted to consult with an attorney before making this dеcision. Sites v. State, 300 Md. 702, 481 A.2d 192 (1984); State v. Newton, 291 Or. 788, 636 P.2d 393 (1981); Scarborough v. State, 261 So.2d 475 (Miss.1972). The rationale for the rule was aptly set forth by the court in Sites, supra:
The due process clause ... has long been recognized as a source of a right to counsel independent of the Sixth Amendment [and analogous state constitutional provisions] where critically important to the fairness of the proceedings ... The concept of a due process right [has been described] as a guarantee of respect for those personal immunities which are so rooted in the traditions and conscience of our people as to be ranked as fundamentаl or implicit in the concept of ordered liberty. While the exact contours of the due process right are not definable with precision, the right ... is one that assures that convictions cannot be brought about in criminal cases by methods which offend a sense of justice.
Sites, 481 A.2d at 199 (citations omitted).
After explaining the essence of the due process notion, the Sites court stated that “we think to unreasonably deny a requested right of access to counsel to a drunk driving suspect offends a sense of justice which impairs the fundamental fairness of the proceeding,” id. at 200; and it concluded that the state and federal Due Process Clauses required that the defendant be afforded а right to counsel. Having come to this conclusion, however, the Sites court was quick to qualify it:
[The Due Process clauses require that the defendant be afforded a right to communicate with counsel], as long as such attempted communication will not substantially interfere with the timely and efficacious administration of the testing process. In this regard, it is not possible to establish a bright line rule as to what constitutes a reasonable delay, although the statute itself mandates that in no event may the test be administered later than two hours after the driver‘s apprehension. Of course, it is the statutory purpose to obtain the best evidence of blood alcohol content as may be practicable in the circumstances, and it is common knowledge that such content dissipates rapidly with the passage of time. Thus, if counsel cannot be contacted within a reasonable time, the arrestee may be required to make a decision regarding testing without the advice of counsel. We emphasize that in no event can the right to communicate with counsel be permitted to delay the test for an unreasonable time since, to be sure, that would impair the accuracy of the test and defeat the purpose of the statute.
We are not insensitive to the due process concerns in this context. It does strike one as unfair that a person suspected of DUI, particularly one who has had no prior experience with the law, should be compelled to make a decision having such important consequences for his or her guilt or innocence without the benefit of counsel. Having stated this, however, we nevertheless believe that the Sites court‘s above-quoted qualification of the due process argument carries with it the seeds of that argument‘s dеstruction. It is common knowledge that a person‘s blood alcohol content rapidly dissipates over time; therefore, delaying the test while waiting on counsel to arrive would potentially compromise the accuracy of the test. This is a crucial consequence, given the importance of scientific evidence in DUI cases. Moreover, as the Sites court noted, it is impossible to formulate rigid temporal boundaries for
THE IMPROPER EVIDENCE CLAIM
The next issue we address is whether the admission into evidence of the defendant‘s refusal to submit to the test violated either his due process rights, or his rights, either under the Fifth Amendment to the federal constitution or
We do not think it fundamentally unfair for South Dakota to use the refusal to take the test as evidence of guilt, even though respondent was not specifically warned that his refusal could be used against him at trial ...
The Miranda warnings emphasize the dangers of choosing to speak (‘whatever you say can and will be used as evidencе against you in court‘), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of the Miranda warnings, we recognized in Doyle, implicitly assures the suspect that his silence will not be used against him. The warnings challenged here, by contrast, contained no such misleading implicit assurances as to the relative consequences of his choice ... [T]he officers specifically warned respondent that failure to take the test could lead to loss of driving privileges for one year. It is true the officers did not inform respondent of the further consequence that evidence оf refusal could be used against him in court, but we think it unrealistic to say that the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver‘s license made it clear that refusing the test was not a ‘safe harbor,’ free of adverse consequences.
While the State did not actually warn respondent that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forego use of evidence that would unfairly ‘trick’ respondent if the evidence were later offered against him at trial. We therefore conclude that the use of evidence of refusal after these warnings comported with the fundamental fairness required by due process.
Neville, 459 U.S. at 565-66, 103 S.Ct. at 923-24.
In its rationale as to the Fifth Amendment claim, the Court first noted that Schmerber
[T]he values behind the Fifth Amendment [being free of compulsory self-incrimination] are not hindered when the state offers a suspeсt the choice of submitting to the blood-alcohol test or having his refusal used against him. The simple blood-alcohol test is so safe, painless, and commonplace, that respondent concedes, as he must, that the State could legitimately compel the suspect against his will, to accede to the test. Given, then, that the offer of taking a blood-alcohol test is clearly legitimate, the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice. Nor is this a case where the State has subtly coerced respondent into choosing the option that it had no right to compel, rather than offering a true choice. To the contrary, the State wants respondent to choose to take the test, for the inference of intoxication arising from a positive blood-alcohol test is far stronger than a refusal to take the test.
Neville, 459 U.S. at 563, 103 S.Ct. at 922 (emphasis in original).
The rules enunciated in Neville have been followed many times by our Court of Criminal Appeals. State v. Morgan, 692 S.W.2d 428 (Tenn.Crim.App.1985); State v. Wright, 691 S.W.2d 564 (Tenn.Crim.App.1984); State v. Smith, 681 S.W.2d 569 (Tenn.Crim.App.1984). Despite this, the defendant argues that the evidence of his refusal should be suppressed because the Tennessee Constitution affords criminal defendants broader protection against self-incrimination than the federal constitution. The defendant cites as support for this assertion the fact that
Initially, while we stated in Delk v. State, 590 S.W.2d 435, 440 (Tenn.1979), that Tennessee‘s prohibition against self-incrimination is no broader or different than its federal counterpаrt, it is true that this Court is not bound by the interpretations of the Fifth Amendment by the federal courts, except to the extent that they establish a “floor” of constitutional protection. Thus, this Court is free to construe Art. I, § 9 more broadly than the Fifth Amendment. The fact that we have this power, however, obviously does not mean that we are compelled to do so; and we have never construed the word “evidence” in Art. I, § 9 literally, as the defendant urges. Indeed, even Justice Reid‘s dissent in Harris, which simply suggested the possibility of such a literal interpretation, did not ultimately endorse that position in an unambiguous fashion. Rather, Justice Reid based the dissent on an entirely different ground, arguing that the defendant‘s refusal to provide a handwriting exemplar violated Art. I, § 9 because the act of giving a handwriting sample was “communicative or testimonial” in the Schmerber sense. In other words, Justice Reid argued that because the defendant had the choice of either intentionally altering his or her handwriting or providing a “true” sample, the act of providing a handwriting exemplar thus involved the veracity of the defendant, the “heart of testi
Here, by contrast, the refusal to submit to the test did not involve the defendant‘s veracity in any way. His refusal of the test was functionally the same as if he had submitted to the test—in neither instance was the defendant forced to choose between participating truthfully or giving false testimony. Thus, the defendant‘s argument fails under the actual analysis employed by the Harris dissent.
In summary, we decline to overrule a long line of Tennessee cases5 by adopting a literal interpretation of the term “evidence“; and we formally announce our аgreement with the principles enunciated in Neville. Because the refusal of the test did not violate the defendant‘s right against self-incrimination under Neville, we hereby affirm the judgment of the Court of Criminal Appeals.
ANDERSON, C.J., and BIRCH, J., concur.
WHITE, J., Not Participating.
REID, J., Dissenting.
REID, Justice, dissenting.
I dissent from the majority‘s holding that a person arrested for driving under the influence of an intoxicant will be denied the right to consult with counsel prior to submitting to a breath test, regardless of the circumstances, and also from the majority‘s holding that the defendant‘s right against self-incrimination would not be violated by the admission of his refusal to submit to the breath test as evidence of intoxication.
On the first issue, the majority рaints with broad strokes and reaches a conclusion which unnecessarily compromises the right of an accused to seek legal advice. I agree that there is no constitutional prohibition against requiring a person arrested for DUI to submit to the statutory test.1 However, the accused should be permitted to consult with counsel if the consultation does not substantially impede the testing process. The majority‘s opinion apparently would not allow a person arrested for DUI to ask the advice of a lawyer who might be seated in the vehicle with the arrested driver or tо use a car telephone to call a lawyer while waiting for the test to be administered. See State v. Sensing, 843 S.W.2d 412, 416 (Tenn.1992) (The breath testing device requires that the motorist be observed for 20 minutes prior to taking the test.).
The majority quotes extensively from Sites v. State, 300 Md. 702, 481 A.2d 192 (1984), which held that a drunk driving suspect has a due process right to communicate with counsel, where doing so will not impair the accuracy of the test. The majority concludes, however, that a Sites-type rule would be difficult to apply, thus denying the accused a fundamental right not out of necessity but for the mere convenience of the police. I fail to recognize the difficulty in applying a rule that would allow the accused to attempt to contact an attorney during the time interval the arresting officer is required to observe the defendant before performing the breath test. See State v. Sensing, 843 S.W.2d at 416 (holding that “the testing officer must be able to testify ... that the motorist was observed for the requisite 20 minutes prior to the test ...“). Such a rule, in which the burden would be on the defendant to show that the time needed to contact his lawyer would not have delayed the test, would properly balance the State‘s interest in enforcing
With rеgard to the evidence issue, I would hold that the privilege against self-incrimination guaranteed by
It is not within the accused‘s power to change his fingerprints, hair, breath or blood. But a handwriting exemplar requires the truthful participation of the accused if it is to possess any evidentiary value. The privilege against self-incrimination resulted from attempts to extract from a person‘s lips a true statement concerning his guilt and thereby to supply the needed proof against himself.
In this case, the statement that the Statе obtains from the defendant and uses as evidence of his guilt is “I refuse to take the test because I expect it would show evidence of intoxication.”
The issue was put succinctly in People v. Hayes, 64 Mich.App. 203, 235 N.W.2d 182, 184-85 (1975), where the court held:
[T]he admission of a defendant‘s refusal to submit to an intoxication test would render nugatory the choice which the statute provides him.... He can either submit to a test the results of which could create a virtually irrefutable presumption of guilt against him, or he can refuse the test and suffer the revocation. If the fact that the defendant has chosen not to submit to a test can be placed before the jury as an inference of his guilt, then he will be put in the position of having to risk providing evidence for the prosecution by submitting to the test or of certainly providing it by refusing to submit. It would be fundamentally unfair to put a defendant in such a “damned if he does, damned if he doesn‘t” position. The Legislature provided a definite choice, and we cannot render a decision which would make that choice an illusory one.
In Opinion of the Justices to the Senate, 412 Mass. 1201, 591 N.E.2d 1073 (1992), the Supreme Judicial Court of Massachusetts properly and realistically analyzed the effect of a similar constitutional provision on a similar statute. That court held that a proposed statute, making a defendant‘s refusal to submit to a blood or breath test admissible as evidence, would violate the state constitutional privilege against self-incrimination. The court found that refusal evidence would be testimonial in nature and would compel the accused to furnish evidence against himself. The Massachusetts constitutional privilege against self-incrimination is similar to Tennessee‘s in that it provides: “No subject shall ... be compelled to accuse, or furnish evidence against himself.” Id. at 1076 n. 5. Regarding the testimonial nature of refusal evidence, the Court stated:
The distinction between real or physical evidence and testimonial or communicative evidence is not easily made in every case.
Courts which have concluded that refusal evidence was not testimonial have done so by justifying its relevance on an issue not essential to the prosecution‘s case, see State v. Pineau, 491 A.2d 1165 (Me.1985); State v. Willis, 332 N.W.2d 180 (Minn.1983), to explain the lack of test result evidence, or by concluding that the refusal evidence may be introduced because test results are admissible; Hill v. State, 366 So.2d 318 (Ala.1979). It does not logically follow, however, that, because test results are not testimonial, refusal evidence falls in the same category. In the ordinary case a prosecutor would seek to introduce refusal evidence to show, and would argue if permitted, that a defendant‘s refusal is the equivalent of his statement, “I have had so much to drink that I know or at least suspect that I am unable to pass the test.” See Williford v. State, 653 P.2d 339, 342-343 (Alaska.Ct.App.1982). An involuntary statement to that effect by the defendant could not be used against him.... It follows, therefore, that evidence of a person‘s thought process, if offered to show that the person had doubts about his ability to pass the test, would be testimonial. Based on this analysis, evidence of a refusal to submit to a requested breathalyzer test is testimonial in nature.
Regarding whether refusal evidence is compelled, the Court stated:
Some courts have reasoned that refusal evidence may be used because their analogous statutes do not compel refusal, but rather seek only to encourage taking the test. Such statutes do, however, compel the accused to choose between taking the test and incurring a penalty. There is compulsion, therefore, on the accused to choose between two alternatives, both of which are capable of producing evidence against him. The proposed statute, therefore, uses the threat of adverse testimonial evidence as a coercive tool to compel submission to a breathalyzer test. The accused is thus placed in a “Catch-22” situation: take the test and perhaps produce potentially incriminating real evidence; refuse and have adverse testimonial evidence used against him at trial. Although some have said that the act of refusal is not a self-accusation, South Dakota v. Neville, 459 U.S. 553, 561 n. 11, 562 n. 13, 103 S.Ct. 916, 921 n. 11, 922 n. 13, 74 L.Ed.2d 748 (1983), in our view it is simply wrong to conclude that refusal evidence used in the mannеr proposed is not evidence furnished by the accused. Therefore, such refusal evidence is both compelled and furnishes evidence against oneself.
For these reasons, I would hold that admission of evidence of the defendant‘s refusal to submit to the test would violate the