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Farmer v. Commonwealth4/10/1990
ieved he might fail, violates the accused's right, under article I, § 8 of the Constitution of Virginia, not to "be compelled... to give evidence against himself." Therefore, we hold that the trial court erred by admitting evidence of Farmer's refusal at his trial for DUI.
IV. HARMLESS ERROR ANALYSIS
(11) The Commonwealth argues that if the trial court did err by admitting evidence of Farmer's refusal, the error was harmless. We disagree. "It is well settled that 'error in a criminal case will require reversal of a conviction unless the error is harmless beyond a reasonable doubt.'" Scaggs v. Commonwealth, 5 Va. App. 1, 6, 359 S.E.2d 830, 832 (1987) (quoting Jones v. Commonwealth, 218 Va. 732, 737, 240 S.E.2d 526, 529 (1978)). Further, " rror will be presumed to be prejudicial unless it plainly appears that it could not have affected the result." Joyner v. Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558 (1951).
While there was additional evidence of Farmer's intoxication, we cannot say that the admission of Farmer's refusal was harmless beyond a reasonable doubt. The evidence which Farmer sought to exclude conveyed to the jury that Farmer himself believed that he was too intoxicated to take and pass the requested tests. Therefore, because we cannot say that the admission of this evidence did not affect the jury's decision, we cannot find that the error was harmless beyond a reasonable doubt.
For the foregoing reasons, we reverse Farmer's conviction of driving under the influence and remand this case for a new trial, if the Commonwealth be so advised.
Disposition
Affirmed in part, reversed in part, and remanded.
Moon, J., dissenting.
I would affirm the decision of the trial court because the error, if any, was harmless beyond a reasonable doubt. Defendant did not seriously contend at any point in the trial that he was not under the influence. His defense was that he was not driving the car. The uncontradicted evidence was that he was unsteady on his feet, was weaving, had slurring speech and glassy eyes, that he had a heavy odor of alcohol on his person, and that he used profane language toward the police officer who arrested him. He admitted that he drank six to seven beers during the evening, before leaving a bar at midnight, and afterward drank as many as three beers in his car. He did not contradict the police officer in any respect concerning the police officer's observations regarding his sobriety. Under the circumstances, I do not believe that any rational trier of fact would have found but that appellant was driving under the influence , even if the evidence of refusal to take the field sobriety tests had been excluded. Therefore, I would hold that any error in the evidence's admission was harmless beyond a reasonable doubt.
Disposition FOOTNOTES
* On June 6, 1990 the Commonwealth petition for rehearing en banc was granted and a mandate entered April 10, 1990 was stayed pending rehearing.
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