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State v. Haden2/27/2003
r's request to perform a horizonal gaze nystagmus test and the one-legged stand test. He attempted the walk and turn test, but failed it. The arresting officer then took the defendant to the police station for a breathalyzer screening, which he also refused.
In light of the above, the only reasonable conclusion that can be made in this case is that the jury reached its verdict based on the testimony of the arresting officer. The majority's determination that the jury verdict was a result of speculation arising out the defendant's stipulation that his license had been previously revoked is unfounded. As I see it, the only speculation that has occurred in this case has been on the part of the majority.
This case illustrates once again the majority's distrust of juries. See State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999) (Maynard, J., dissenting); State v. Dews, 209 W.Va. 500, 549 S.E.2d 694 (2001) (Maynard, J., dissenting). Unlike the majority, I have confidence in our juries, and I believe that the guilty verdict reached in this case was based on the evidence presented at trial, in particular, the arresting officer's testimony, and not any type of speculation. Therefore, I would not have found that the defendant was unfairly prejudiced by the disclosure of the prior revocation of his license. Instead, I would have found that the introduction of this evidence was at most harmless error. Consequently, I would have affirmed the defendant's conviction of third offense DUI.
Accordingly, for the reasons set forth above, I respectfully dissent.
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