Wyatt v. State

JAMES R. EYLER, Judge, Retired, specially assigned. On November 21, 2001, Kevin Wyatt, appellant, was convicted by a jury in the Circuit Court for Harford County of driving while under the influence of alcohol, in violation of section 21-902(b) of the Maryland Code’s Transportation Article, for an incident that occurred on December 14, 1999. See Md.Code, Transp. § 21-902(b) (1999 Repl.Vol.). The court sentenced appellant to one year imprisonment with all but four months suspended.

The State, over objection, introduced into evidence appellant’s refusal to submit to a breathalyzer test and an Advice of Rights Form (DR-15), which was given to appellant at the time of the incident and explained the consequences of appellant’s refusal to submit to the test. See Md.Code, Cts. & Jud. Proc. § 10-309 (1999 Repl.Vol.); Md.Code, Transp. § 16.205.1 (1999 Repl.Vol.). The court denied appellant’s request that the jury be instructed that it could not draw an inference or presumption of guilt based on appellant’s refusal to take a breathalyzer test.

On appeal, appellant contends that the court erred in admitting the evidence described above and in ⁵⁵⁸ refusing to give the requested instruction. Perceiving no error, we shall affirm the judgment of the circuit court. Factual Background At 1:30 in the morning on December 14, 1999, Officer Jeffrey Knight of the Bel Air Police Department observed a vehicle, operated by appellant, driving erratically. Officer Knight watched as the vehicle swerved between the right and left lanes, drove above the speed limit, and drove in the lane facing oncoming traffic.

Officer Knight initiated a traffic stop because, based on his experience and his observations, he believed that the driver was under the influence of alcohol or drugs. Once he approached the vehicle, Officer Knight detected that the driver, appellant, emitted a strong odor of alcohol. The driver did not comprehend the officer’s repeated request to produce his registration card, and when Officer Knight asked how much alcohol he had had to drink, appellant responded that he had had three or four beers. Officer Knight then asked appellant to get out of the car to perform standardized field sobriety tests.

He observed that appellant was unsteady on his feet, using the car door to keep his balance, and that appellant’s eyes were bloodshot. When Officer Knight began to administer the horizontal gaze nystagmus test, appellant declared, “I refuse, I absolutely refuse to take any tests. Arrest me, whatever, but I am not taking any tests.” Appellant was arrested, transported to the police station, and advised of his right to submit to a breath test for alcohol according to the standard form DR-15. After being informed of his rights, appellant refused to submit to the breathalyzer test.

On November 20, 2001, 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 section 21-902(a) and (b) of the Transportation Article. Md. Code, Transp. § 21-902(a)-(b) (1999 Repl.Vol.). 1 During the ⁵⁵⁹ trial, appellant made a motion to exclude the testimony of his refusal to submit to a breathalyzer test. The court denied appellant’s motion, reasoning that the new law was applicable because it did not create a new criminal act, but only established a new rule of evidence. Counsel renewed the objection prior to admission of this evidence and the introduction of the Advice of Rights Form DR-15.

Appellant testified in his own defense, admitting that he had been speeding and weaving between lanes, that he had been at a bar for approximately six hours, and that he had been drinking, stating that he had two Bass Ales. Appellant also disputed Officer Knight’s description of the weather as dry, denied that he was impaired by alcohol, and claimed that his bloodshot eyes were caused by smoke in the bar. At the close of the case, appellant’s counsel requested that the court instruct the jury that no inference or presumption of guilt arises because of appellant’s refusal to submit to a breathalyzer test. When the court failed to include such an instruction, counsel took exception.

On November 21, 2001, the jury convicted appellant of driving while under the influence of alcohol and acquitted him ⁵⁶⁰ of driving while intoxicated. Appellant noted a timely appeal to this Court. Questions Presented On appeal, appellant presents two main questions for our review, one of which is subdivided into four parts. First, appellant argues that the trial court erred in admitting evidence of appellant’s refusal to submit to a breathalyzer test.

More specifically, appellant contends that the evidence should have been excluded because (1) the amended version of section 10-309 of the Courts and Judicial Proceedings Article, which expressly permitted the admission of such evidence, is rendered unconstitutional by the ex post facto provisions of the Maryland and federal constitutions when applied to an event that occurred prior to its effective date, (2) the amended version of section 10-309 violates the self-incrimination provision of the Maryland Declaration of Rights, (3) it was not relevant to any issue in the case, and (4) its probative value was outweighed by the danger of unfair prejudice. Finally, appellant claims that the court erred in failing to instruct the jury that no inference or presumption of guilt arises because of a refusal to submit to a breathalyzer test. Appellee argues that the court properly admitted the evidence based on its application of the amended version of section 10-309, and even if admitting such evidence was error, it constituted harmless error. In addition, appellee contends that appellant’s argument pertaining to inadequate jury instructions was not preserved, and if preserved, the trial court did not err in refusing to give appellant’s instruction because it did not accurately reflect the law at the time of the trial.

Discussion Because resolution of this case depends on our determination of whether the amended version of section 10-309 was properly applied during appellant’s trial, we begin by reviewing the relevant provisions prior and subsequent to the 2001 amendments. We must also review relevant case law inter ⁵⁶¹ preting the former version of 10-809 in order to demonstrate its meaning at the time that appellant was arrested. In 1999, section 10-309 of the Maryland Code’s Courts and Judicial Proceedings Article provided in pertinent part: (a) Test not compulsory.— (1) 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. Evidence of a test or analysis is not admissible in a prosecution for violation of § 21-902 of the Transportation Article if obtained contrary to its provisions.

(2) No inference or presumption concerning either guilt or innocence mises because of refusal to submit. The fact of refusal to submit is admissible in evidence at the trial. Md.Code, Cts. & Jud. Proc. § 10-309(a) (1999 Repl.Vol.) (emphasis added).

Although the language appears to suggest that the fact of refusal was admissible, the Court of Appeals, in Krauss v. State, 322 Md. 376 , 587 A.2d 1102 (1991), interpreted the two sentences of subsection (b) as permitting the admission of such evidence only where it was relevant to a material issue other than the guilt of the accused. Id. at 386-88 , 587 A.2d 1102 (emphasis added). The Krauss Court reasoned that: From the provisions of the statute, it is obvious that the Legislature recognized that the mere fact of refusal to take the Breathalyzer test was collateral to the issue of whether a driver was intoxicated or under the influence of alcohol. In other words, the refusal was not material or relevant to the issue of guilt or innocence.

But, the Legislature also appreciated that in certain circumstances the fact of refusal to submit to the test may be material and relevant to collateral matters, that is, issues other than guilt or innocence, as, for example, when a defendant claims the enforcement authorities did not properly afford an opportunity to take the test. Thus, it made the refusal admissible, but subjected the admission to the restriction. ⁵⁶² Id. at 386-87 , 587 A.2d 1102 . Because the defendant in Krauss did not challenge that he was properly informed as to the taking of the test and that he refused to take it, the Court concluded that his refusal had no probative value to establish guilt and was, therefore, irrelevant. Id. at 388 , 587 A.2d 1102 .

Between the time that the offense was committed and the time that appellant was tried, two amendments to section 10-309 took effect. The first, which became effective on October 1, 2000, simply rewrote subsection (a)(1), dividing it further into (a)(l)(i) and (a)(1)(h), without changing any of the provision’s substance. See H.B. 676, 2000 Leg., 414th Sess. (Md. 2000).

The 2000 amendment also divided subsection (a)(2) into (a)(2)(i) and (a)(2)(h), making no changes to the provision’s language. Id. In 2001, the General Assembly passed legislation that deleted the language “[n]o inference or presumption concerning either guilt or innocence arises because of refusal to submit.” See H.B. 338 and S.B. 4, 2001 Leg., 415th Sess. (Md.2001).

The preamble to the bills state: FOR the purpose of repealing a prohibition against an inference or presumption concerning guilt or innocence arising because of a person’s refusal to submit to a certain test for alcohol ... and generally relating to evidence of a person’s refusal to submit to a certain test for alcohol ... in prosecutions of certain alcohol ... related driving offenses. 2001 Md. Laws ch. 1 and 2. The bills state that the law is effective October 1, 2001 and are otherwise silent with respect to prospective versus retrospective application. Id. Applicability of 10-309, as amended Based on their briefs, it is clear that both parties start under the assumption that the amended version of section 10-309, effective October 1, 2001, applies to this case.

Accordingly, their arguments center on the provision’s constitutionality, rather than its applicability. Nevertheless, because we should not decide a constitutional issue needlessly, Prof. Staff Nurses Ass’n v. Dimensions Health Corp., 346 Md. 132, 138 , 695 A.2d 158 (1997) (“This Court has regularly adhered to the principle that we will not reach a constitutional issue when a case can ⁵⁶³ properly be disposed of on a non-constitutional ground.”) (quoting State v. Lancaster, 332 Md. 385 , 404 n. 13, 631 A.2d 453 (1993) (citing numerous cases)), we shall first discuss applicability of the statute using rules of construction to determine prospective versus retroactive application. In State Commission on Human Relations v. Amecom Division, 278 Md. 120, 123 , 360 A.2d 1 (1976), the Court of Appeals defined a retroactive statute as “one wdiich purports to determine the legal significance of acts or events that have occurred prior to the statute’s effective date.” This definition is relevant to the present case because the circuit court applied the amended rule, effective October 1, 2001, to appellant’s refusal to submit to the breathalyzer test, which occurred on December 14, 1999. 2 As a starting point, we recognize that “[t]here is ‘no absolute prohibition against retroactive application of a statute.’ ” Langston v. Riffe, 359 Md. 396, 406 , 754 A.2d 389 (1999) (quoting Amecom Division, 278 Md. at 123 , 360 A.2d 1 ).

In fact, the determination of whether prospective or retroactive application is warranted focuses primarily on legislative intent. Id. In general, there is a presumption in favor of prospective application such that, in the absence of clear legislative intent to the contrary, a statute will not be given retroactive effect. Id.

There are exceptions to the general presumption, however. Id. One important exception to the general rule concerns statutes that constitute procedural, rather than substantive, changes to the law. Id. at 406-07, 754 A.2d 389 . “When a statute affects only a procedure or remedy, and not a substantive right, the presumption in favor of prospective application does not apply.” Tyrone W. v. Danielle R., 129 Md.App. 260 , ⁵⁶⁴ 278, 741 A.2d 553 (1999) (citing Informed Phys.

Servs., Inc., 350 Md. at 327, 711 A.2d 1330 and Amecom Div., 278 Md. at 124 , 360 A.2d 1 ). See also Roth v. Dimensions Health Corp., 332 Md., 627, 636 , 632 A.2d 1170 (1993); Mason v. State, 309 Md. 215, 219-20 , 522 A.2d 1344 (1987); Janda v. General Motors Corp., 237 Md. 161, 168 , 205 A.2d 228 (1964), disapproved in part on other grounds by WSSC v. Riverdale Heights Vol. Fire Co., 308 Md. 556 , 520 A.2d 1319 (1987); Kelch v. Keehn, 183 Md. 140, 144 , 36 A.2d 544 (1944). Instead, the statute will be given retrospective effect unless a contrary intention is expressed.

Tyrone W., 129 Md.App. at 278 , 741 A.2d 553 . In the present case, the 2001 amendment to section 10-309 constituted a procedural change in the law, rather than a substantive change, suggesting that retroactive application is appropriate. See Thompson v. Missouri, 171 U.S. 380, 386-88 , 18 S.Ct. 922 , 43 L.Ed. 204 (1898) (holding that a statute that changed a rule of evidence, allowing the admission of evidence against the accused that was previously inadmissible, was not unconstitutional when applied retroactively because it did not affect a substantive right but only changed a procedural mechanism). The amendment to section 10-309 is a legislative declaration of relevance to the question of guilt subject, in a given case, to weighing the evidence’s probative value against undue prejudice and subject to other reasons for exclusion.

While the amendment makes refusal to take a breathalyzer test admissible, admissibility remains subject to the usual evidentiary limitations on relevant evidence. The amendment permits, but does not require, a factfinder to draw an inference of guilt. Accordingly, like the Supreme Court in Thompson , we view the expansion of the scope of admissible evidence as a procedural, rather than substantive, change. In addition, turning to the second part of the exception, we perceive no clear expression suggesting that the legislature intended to limit the amendment’s application to prospective only.

First, other than stating that it is effective October 1, 2001, the statute itself is silent on the issue of retroactive ⁵⁶⁵ versus prospective application. Other clues support a finding in favor of retroactive application. For example, the bills that were enacted to amend section 10-309 were signed into law on April 10, 2001. On that same day, the legislature enacted amendments to other statutes falling within the broad topic of “drunk and drugged driving,” whereby, in pertinent part, it reduced the level of alcohol concentration required for conviction of an offense and changed the terminology for alcohol related offenses.

See H.B. 3 and S.B. 108, 2001 Leg., 415th Sess. (Md.2001). Those bills stated that they were effective September 30, 2001, and further provided that “this Act shall be construed only prospectively and may not be applied or interpreted to have any effect on or application to any test for alcohol concentration taken before the effective date of this Act.” Id. This language clearly demonstrates that the legislature is capable of expressing its intention that a law only be applied prospectively.

Absent such an express intention in the present case, coupled with our view that the change was procedural in nature, we conclude that retrospective application was appropriate. Ex Post Facto Given our conclusion that retroactive application was appropriate, we turn to appellant’s argument that section 10-309 is rendered unconstitutional, in application, by the ex post facto provisions of the Maryland and federal constitutions. 3 Both the United States Constitution and the Maryland Declaration of Rights prohibit ex post facto laws. See U.S. Const, art. I, § 10, cl. 1; Md. Decl. of Rts., art. 17.

Although their language differs, the Court of Appeals has interpreted the Maryland version as having the same meaning as its federal coun ⁵⁶⁶ terpart. Frost v. State, 336 Md. 125, 136 , 647 A.2d 106 (1994) (quoting Booth v. State, 327 Md. 142 , 608 A.2d 162 (1992)). The Frost Court also recognized that one of the critical elements for a law to be considered ex post facto is that it operate retroactively. Id.

Because we have already concluded that section 10-309 applies retroactively, we move on to the other factors that enable us to determine whether the amended statute operates as an unconstitutional ex post facto law when applied to appellant’s situation. Appellant cites the Supreme Court cases of Calder v. Bull, 3 U.S. 386, 390 , 3 Dall. 386 , 1 L.Ed. 648 (1798), and Carmell v. Texas, 529 U.S. 513 , 120 S.Ct. 1620 , 146 L.Ed.2d 577 (2000) for the proposition that “[l]aws that alter legal rules of evidence and require less evidence to obtain conviction are ex post facto laws.” Comparing the amended statute in question to the language in Calder and Carmell , appellant contends that the amended statute falls within the fourth category, quoted in the preceding sentence, because it (1) reduces the quantum of evidence necessary to obtain a conviction, (2) changes the legal consequence of acts completed before its effective date, and (3) subverts the presumption of innocence. Appellant provides no case law to support the assertion, instead relying on general language from Carmell discussing “unfairness” and “injustice.” See Carmell, 529 U.S. at 546 , 120 S.Ct. 1620 . Appellant’s argument ignores the fact that countless cases, following Colder through the present, have interpreted the relevant language and provide further clarification as to the types of laws that conflict with the constitutional prohibition.

In Colder, Justice Chase, writing for the Supreme Court, clarified which laws, within the words and intent of the prohibition, are considered ex post facto laws, stating: 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 ⁵⁶⁷ 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. Calder, 3 U.S. at 390 , 3 Dall. 386 , 1 L.Ed. 648 . Because appellant only argues that the amended statute falls within the fourth category, our discussion will focus solely on the interpretation and application of that language. While some members of the Supreme Court have suggested that the fourth category from Colder has been abandoned, the Cornell opinion suggests that a majority of the Court continues to support its existence.

Compare Carmell, 529 U.S. at 531 , 120 S.Ct. 1620 (characterizing the Texas law as squarely within the fourth category and invalidating it on that basis), with Carmell, 529 U.S. at 567 , 120 S.Ct. 1620 (Ginsburg, J., dissenting) (joined by Chief Justice Rehnquist and Justices O’Connor and Kennedy, Justice Ginsburg asserted that “a strong case can be made that [the Court] pared the number of Colder categories down to three, eliminating altogether the fourth category on which the Court today so heavily relies”). Accepting the Supreme Court’s statement that the fourth category remains alive and well, we turn to two significant cases, in which the Supreme Court applied the fourth Colder category, to demonstrate why the statute in the present case does not fall within the category and is, therefore, not unconstitutional. First, in Hopt v. Territory of Utah, 110 U.S. 574 , 4 S.Ct. 202 , 28 L.Ed. 262 (1884), the Court held that application of a Utah law, enacted between the time the defendant committed the offense and the time of his trial, which allowed felons to testify in criminal trials, did not violate the Ex Post Facto Clause because: Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, ⁵⁶⁸ or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed. Id. at 589 , 4 S.Ct. 202 .

The Court reasoned that laws that merely remove restrictions upon the competency of certain classes of person as witnesses constitute procedural changes, in which individuals do not have a vested right. The State is free to remove such restrictions at its discretion. Id. at 590 , 4 S.Ct. 202 . Following Hopt, in Thompson v. Missouri, 171 U.S. 380 , 18 S.Ct. 922 , 43 L.Ed. 204 (1898), the Supreme Court was faced with a similar challenge to a Missouri statute on ex post facto grounds.

In Thompson , the defendant was convicted of first-degree murder for killing a priest with poison. Id. at 380 , 18 S.Ct. 922 . During trial, the court admitted letters written by the defendant, allowing the jury to compare the handwriting in the letters to that on the prescription for the poison. Id. at 381 , 18 S.Ct. 922 .

When the defendant committed the offense, such letters were inadmissible as a matter of law, but prior to trial, the Missouri legislature enacted a law that made the letters admissible. Id. The Supreme Court held that the court’s application of the new law during defendant’s trial did not violate the Ex Post Facto Clause, reasoning that procedural laws were only ex post facto when they disadvantaged the party by affecting a substantial right. Id. at 387 , 18 S.Ct. 922 .

Because the new law “left unimpaired the right of the jury to determine the sufficiency or effect of the evidence ... and did not disturb the rule that the State ... must overcome the presumption of innocence and establish his guilt beyond a reasonable doubt,” the Court concluded that the