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STATE v. EASTMAN3/12/1997
6). Nevertheless, defendant argues that we should treat field sobriety test results in the same manner as inculpatory We decline to do so.
[ 11] The federal and state privileges against self-incrimination serve the same end. As noted by the United States Supreme Court, "the constitutional guarantees, however differently worded, should have as far as possible the same interpretation." Counselman v. Hitchcock, 142 U.S. 547, 584-585, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892); see also Schmerber, 384 U.S. at 761 n. 6, 86 S.Ct. at 1831 n. 5 (denying that the testimonial/non-testimonial distinction rests on the use of the word "witness" in the fifth amendment).
[ 12] We have consistently interpreted the Maine privilege co-extensively with the federal privilege. "These two constitutional provisions are so similar in nature and identical in purpose that precedent with respect to the construction of the one may well serve as precedent for the construction of the other." Gendron v. Burnham, 146 Me. 387, 395, 82 A.2d 773, 780 (1951). Furthermore, in State v. Nason, we held that the Maine Constitution is not violated when a defendant is compelled to produce physical, non-testimonial evidence. State v. Nason, 433 A.2d 424, 428 (Me. 1981). The introduction of the field sobriety tests performed at the request of the officer violated neither the state nor the federal privilege against self-incrimination.
III. Alleged Constitutional Violations During Trial
[ 13] Defendant challenges several evidentiary rulings made during trial on constitutional grounds. At the trial, the court refused to allow defendant to impeach the officer by using a hearsay document. The court also refused to permit defendant to ask the officer about the margin of error of the intoxilyzer machine in the absence of some foundation that he was qualified to testify about that subject. Finally, the court precluded any inquiry into the voluntariness of nystagmus because it was irrelevant given that the State was not relying on the horizontal gaze nystagmus test result to prove impairment. Defendant contends that the combined effect of these evidentiary rulings deprived him of a meaningful opportunity to cross-examine the officer in violation of his right to confront adverse witnesses and his right to a fair trial. In addition, defendant argues that his right to a fair trial was violated by certain remarks made by the prosecutor during closing argument.
[ 14] Even constitutional errors must be preserved for appellate review. State v. Jones, 580 A.2d 161, 163 (Me. 1990). At no time before the trial court did defendant assert his rights under the Confrontation Clauses of either the federal or state constitutions. None of what happened below "can fairly be said to have raised for the presiding Justice's consideration the issue of the constitutional right of confrontation now being asserted on appeal." State v. Christianson, 404 A.2d 999, 1005 n. 1 (Me. 1979). Similarly, defendant, after an initial objection to the State's remark in question and a correction by the State, requested no further
IV. Sentencing
[ 15] Defendant argues that the sentencing court impermissibly punished him for exercising his right to a jury trial. This contention is unsupported by the record, and therefore without merit. In this case, the court expressly stated that it was not punishing defendant for going to trial but noted that by doing so, defendant risked "that factors or facts are developed to a greater extent that may somehow effect the sentencing that might not have been brought out at a plea." It considered defendant's trial for the limited purpose of determining his "failure to take responsibility." In
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