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State v. Russell12/7/2005
Charles S. Russell appeals from his judgment of conviction for operating a motor vehicle while intoxicated on the theory that the prosecutor denied him a fair trial by directly commenting in her closing argument on his decision not to testify. She argued that without Russell's testimony, the defense could not establish that his failure to submit to a blood test was the result of confusion about his rights rather than belligerence associated with having too much to drink. We assume without deciding that the prosecutor's statements stepped over the line. However, we hold they do not meet the standard for reversible error. The prosecutor intended her remarks not to imply guilt from Russell's decision not to testify but rather to highlight the insufficiency of the evidence supporting Russell's theory of the case. Thus, we affirm.
In order to put the prosecutor's remarks in their proper context, we set forth the facts at some length. On November 4, 2001, a police officer stopped Russell for speeding. When the officer made contact with Russell, he detected a strong odor of intoxicants on Russell's breath and noticed that he had bloodshot, glossy eyes and slurred speech. Russell disputed the officer's admonition that he had been driving above the speed limit. He also invoked the Fifth Amendment and declined to answer the officer's inquiry whether he had been drinking, although he did state his belief that he was within legal limits for driving. The officer called a colleague for backup so that he could administer field sobriety tests.
Both officers asked Russell several times during the stop to step out of the vehicle and perform sobriety tests. Russell responded that he would rather park his car and find some other way home. Upon being informed that this was not an option, he asked to talk to his lawyer before taking a field sobriety test and argued that he should not have to perform such tests because he was stopped for speeding. Russell also stated repeatedly that he would comply with the officers' requests but did not do so, instead holding onto the steering wheel.
Eventually, the two police officers had to grab Russell by his arms and pull him out of the vehicle. The officers noticed that he staggered as he walked to the rear of his vehicle. Russell was asked again to perform sobriety tests, and again, he refused to do so. The officers placed him under arrest for operating a motor vehicle while under the influence of an intoxicant. He resisted by tensing his arms, so they cuffed his hands behind his back.
The officer who initially conducted the stop took Russell to the hospital for a blood draw. He read Russell the Informing the Accused form and asked him to submit to the blood test. Russell would not answer yes or no. He stated that he did not understand why he could not have his own test and asked whether the form "superceded" his Miranda rights. The officer stated he could not interpret the form but could only reread it, which he did. After several more requests to submit to a blood draw, Russell still would not give a direct response so the officer had the sample taken without Russell's cooperation. Because of Russell's resistance, however, the officer kept him cuffed during the test and held onto his arms.
Russell also had to be restrained shortly thereafter. The arresting officer attempted to give him a citation for OWI, and Russell resisted. He refused to take the document or allow the officer to put them in his pocket and stood up. In response to this resistance, the officer and a colleague grabbed his arms and held him down on a gurney until he promised to calm down.
Back at the police station, Russell requested an al
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