State Of Washington v. Clifford L. Stone, Jr. ( 2014 )

COURTFILED
OF APPEALS
DIVISION II
2D 14 DEC 16 H 8 35
S• e.. i,. AS GfOP
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45446 -7 -II
Respondent,
v
CLIFFORD LEE STONE, JR., UNPUBLISHED OPINION
Appellant.
JOHANSON, C. J. — Clifford Lee Stone, Jr., appeals his jury trial conviction for felony
driving under the influence (DUI). He argues that the trial court violated his right to refuse consent
to a warrantless blood draw under the Fourth Amendment of the United States Constitution and
article I, section 7 of the Washington State Constitution. Because Stone was not asked to give a
warrantless blood sample, we hold that the trial court did not abuse its discretion when it admitted
the challenged testimony. We affirm Stone' s conviction.
FACTS
On June 29, 2013, Sergeant Nathan Hovinghoff stopped Stone' s vehicle for speeding.
Sergeant Hovinghoff smelled alcohol in Stone' s car, suspected that Stone was impaired, and
noticed that Stone exhibited many traditional signs of alcohol impairment. When Stone refused to
No. 45446 -7 -II
perform a field sobriety test, Sergeant Hovinghoff arrested him for DUI and read him his Mirandal
rights.
Stone was confrontational throughout the night. On the drive to the police station, Stone
told Sergeant Hovinghoff that " he' d bust through that glass [ separating the sergeant from the back
seat of the patrol car where Stone sat] in three hits." 2 Report of Proceedings ( RP) at 101. Because
of Stone' s combative demeanor, Sergeant Hovinghoff requested that several jailers meet him when
he arrived at the jail and kept Stone handcuffed throughout the evening.
At the jail, Stone refused to take a blood alcohol content test. Sergeant Hovinghoff told
Stone that he " would apply for a search warrant for blood," and Stone responded that " it would
take 15 people to get blood from him." 2 RP at 75 ( emphasis added). After Sergeant Hovinghoff
told Stone that he could arrange for 15 people to take his blood, Stone stood up out of his chair,
glared at the Sergeant, and attempted to charge at him. It took three officers about 30 seconds to
get Stone to calm down. Because of safety concerns, Sergeant Hovinghoff did not apply for a
warrant for a blood sample, but he did get a warrant to search Stone' s car and recovered a bottle
of vodka from inside.
The State charged Stone with felony DUI.2 Before trial, Stone moved in limine to exclude
Sergeant Hovinghoff' s testimony about his " refusal" to consent to provide a blood sample. The
State argued that it offered Stone' s reaction as evidence of his aggressive demeanor and that
Stone' s reaction was not a refusal to provide a warrantless blood sample. Stone argued that this
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
2
RCW 46. 61. 502( 1), ( 6).
2
No. 45446 -7 -II
testimony would invite the jury to infer guilt from his refusal. The trial court denied Stone' s
motion.
Sergeant Hovinghoff testified consistent with the facts above about the night that he
arrested Stone, and Stone did not object at trial to his testimony. Stone testified at trial and
attempted to explain each of the symptoms of impairment that Sergeant Hovinghoff described.
The jury convicted Stone of felony DUI, and he appeals that conviction.
ANALYSIS
Stone argues that the trial court abused its discretion when it denied his motion in limine
to exclude Sergeant Hovinghoff s testimony. Stone argues, specifically, that this testimony was
effectively an improper comment on his constitutional right to refuse to provide a blood sample
without a warrant.3 We hold that the trial court did not abuse its discretion when it denied Stone' s
motion in limine because Sergeant Hovinghoff never asked Stone to submit to a warrantless blood
draw and his reaction was, therefore, not a refusal.
A. STANDARD OF REVIEW
We review a trial court' s decision on a motion in limine and the admissibility of evidence
for an abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995). The trial
court abuses its discretion when its decision is manifestly unreasonable or based on untenable
grounds. State v. Garcia, 179 Wn.2d 828, 844, 318 P. 3d 266 ( 2014). A trial court' s decision is
3 Stone argues that Sergeant Hovinghoff' s testimony was an improper comment on his Fifth
Amendment right to This argument is not well taken. There is no dispute that he
remain silent.
received Miranda warnings, stated that he understood his rights; and did not remain silent when
he spontaneously told Sergeant Hovinghoff that it would take 15 people to draw blood pursuant to
a warrant. Further, he did not object on this ground below. Consequently, we address this
argument no further.
3
No. 45446 -7 -II
manifestly unreasonable" when it is "' outside the range of acceptable choices, given the facts and
the applicable legal standard. ' State v. Dye, 178 Wn.2d 541, 555, 309 P. 3d 1192 ( 2013) ( quoting
In re Marriage ofLittlefield, 133 Wn.2d 39, 47, 940 P. 2d 1362 ( 1997)).
A blood draw to determine alcohol content is a search under the Fourth Amendment.
Skinner v. Ry. Labor Execs. ' Ass 'n, 489 U.S. 602; 616 -17, 109 S. Ct. 1402, 103 L. Ed. 2d 6391989). It is improper to use a defendant' s exercise of his Fourth Amendment right to refuse
consent to a warrantless search against him as substantive evidence of guilt. State v. Gauthier,
174 Wn. App. 257, 267, 298 P. 3d 126 ( 2013); see also United States v. Prescott, 581 F. 2d 1343,
1351 -52 ( 9th Cir. 1978). However, where a suspect does not have a constitutional right to refuse
consent to a search, it is appropriate for the State to comment on and invite the jury to infer guilt
from the refusal. State v. Mecham, 181 Wn. App. 932, 946 -47, 331 P. 3d 80, review granted, 337
P. 3d 325 ( 2014). Where the State has a warrant, a suspect has no constitutional right to refuse a
search. Gauthier, 174 Wn. App. at 263 -64; see also Prescott, 581 F. 2d at 1350 ( "` When a law
enforcement officer claims authority to search a home under a warrant, he announces in effect that
the occupant has no right to resist the search. ' ( quoting Bumper v. North Carolina, 391 U.S. 543,
550, 88 S. Ct. 1788, 20 L. Ed. 2d 797 ( 1968))).
B. ANALYSIS
Based on Sergeant Hovinghoff s proposed testimony, Stone expressed an unwillingness to
consent to a blood sample when he told the sergeant it would take 15 people to get him to submit.
But Sergeant Hovinghoff never asked, demanded, or expected Stone to provide a warrantless
blood sample. He told Stone that he " would be applying for a search warrant" for Stone' s blood.
1 RP at 19. Stone' s reaction, therefore, was not a refusal to provide a warrantless blood sample.
4
No. 45446 -7 -II
Stone' s reaction to Sergeant Hovinghoff' s statement that he would apply for a warrant to take a
blood sample, therefore, did not implicate Stone' s constitutional right against warrantless searches
and any testimony about his conduct was proper.
Accordingly, the trial court did not abuse its discretion when it denied Stone' s motion to
exclude Sergeant Hovinghoff' s testimony because Stone was not asked to give a warrantless blood
sample, Stone' s reaction was not a refusal to a warrantless search and, thus, the testimony was
properly admitted. We affirm Stone' s conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,
it is so ordered.
We concur:
MAXA,
SUTTON,