The opinion
John I. Purtle, Justice, dissenting. I am of the opinion that Miranda and Escabedo apply in Arkansas as well as elsewhere. The Fourth and Fifth Amendments to the United States Constitution, and the Arkansas Constitution and laws apply in Faulkner County, Arkansas, as much as anywhere else in the United States. It is admitted that appellant was not warned of his rights before being questioned. The trial court ruled that “the Miranda warnings were not necessary in the arrest and later conviction of DWI.” The facts are uncontradicted that appellant was in custody from the time the officers arrived at the scene.
The majority first admit that Berkemer v. McCarty, _ U.S. _, 104 S.Ct. 3138 (1984), requires the Miranda warning in misdemeanor traffic offenses and then distinguish it away by saying this appellant was not entitled to them or he didn’t say anything very damaging. The majority ought to at least tell the trial judges that the Miranda rule applies even in misdemeanor traffic charges. The main purpose of Miranda warning is to be sure persons know of certain basic rights, one of which is to have an attorney to guide them in their words, actions and decisions. The rule was totally disregarded by the arresting officers and the trial court. I will not be a party to such slip-shod treatment of an accused.
In the absence of reasons to believe the contrary, I believe what the attorneys state in the briefs are either in the record or part of their arguments here.
I must also disagree with the ruling on the trial court’s comment on the evidence during the trial. The court stated:
The testimony is that when the defendant was told that it was to be at his own expense and could not be at Little Rock at his own physician, he withdrew his request for a blood test. And that’s the state of the record at this time, and I will tell you the issue of the blood test being given or not given is not an issue in this case . . .” (Emphasis added).
That simply is an untrue comment on the facts. Appellant had, according to the testimony of Officer Glenn Free, signed a document requesting a blood test. This testimony was from the officer who testified before Officer Smith testified. Both officers testified about appellant requesting a blood test and that he would be restricted to the Conway Memorial Hospital for such a test. I am sure there are many doctors, nurses and technicians in Conway who are qualified to give the test. Two qualified persons were there at the jail in the presence of the officers while appellant was contending for his right to a blood test. Also, Officer Free stated that they were informed by appellant that he wanted a blood test and that the officers informed him he could only get a test at the local hospital. When the Weatherfords testified, the issue was most definitely put in dispute. The trial court never changed his comment and as far as the jury was concerned the issue of a request for a blood test was not in issue.
The crowning blow in this case is that the appellant was refused the right to cross-examine the officers about prior conflicting statements. Some of the statements were testimony taken at the municipal court trial on the same issue. In overruling appellant’s attempts to introduce prior inconsistent statements the trial court stated:
I am going to rule that you cannot use the witnesses to testify about the prior hearing because it is a trial de novo and maybe we can get the Supreme Court to give us a decision on that and, if so, explain to us how we are going to do it properly and correctly.
The appellant’s counsel then attempted to get the Weatherfords’ testimony into the record but the trial court rejected the effort. The court also ruled that questions about prior statements made in municipal court by anyone could not be testified to because it was not a “court of record.” Appellant’s proffer was disallowed. How, pray tell me, may one have such an erroneous ruling reviewed so long as we sanction such tactics by sweeping them under the rug?
I would reverse and remand for a proper trial.