John E. Medlock v. State of Arkansas

John E. MEDLOCK v. STATE of Arkansas

CR 97-865                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 5, 1998


1.   Evidence -- appellant's argument without merit -- Ark. R.
     Evid. 609 not in issue. -- Where, at trial, the State never
     mentioned appellant's earlier refusal-to-submit conviction,
     appellant's argument that the trial court's refusal to prevent
     such evidence from being introduced violated Rule 609(a) of
     the Arkansas Rules of Evidence was without merit; because Rule
     609 addresses impeachment by evidence of conviction of a
     witness offering testimony, the Rule was not in issue.

2.   Evidence -- refusal to take chemical test -- probative of
     issue of intoxication. -- Evidence of the refusal to take a
     chemical test is probative on the issue of intoxication, as a
     showing of guilt; where a defendant accused of intoxication is
     not intoxicated, the taking of a reasonably reliable chemical
     test for intoxication should establish that he is not
     intoxicated; if he is intoxicated, the taking of such a test
     will probably establish that he is intoxicated; thus, if he is
     not intoxicated, such a test will provide evidence for him;
     but, if he is intoxicated, the test will provide evidence
     against him; a refusal to take such a test indicates the
     defendant's fear of the results of the test and his
     consciousness of guilt, especially where he is asked his
     reason for such refusal and he gives no reason which would
     indicate that his refusal had no relation to such
     consciousness of guilt.
     
3.   Evidence -- evidence of appellant's refusal to submit to
     chemical test properly admitted as circumstantial evidence --
     possessed independent relevance bearing on issue of
     intoxication. -- Evidence of appellant's refusal to submit to
     a chemical test could be properly admitted as circumstantial
     evidence showing a knowledge or consciousness of guilt; such
     evidence possessed independent relevance bearing on the issue
     of intoxication and was not being offered merely to show
     appellant was a bad person; Ark. R. Evid. 404 was not
     violated.

4.   Appeal & error -- severance issue not preserved for appeal --
     joinder not required of prosecutor. -- Appellant's argument
     that the trial court erred in refusing to join his DWI and
     refusal-to-submit charges was not preserved for review where 
     the record revealed no motion showing he requested a joinder
     of the two offenses; joinder is not required of a prosecutor
     nevertheless, it is the duty of a party seeking relief to
     apprise the trial court of the proper basis upon which he
     relies in order to preserve an issue for appeal; because the
     trial judge did not have a fair opportunity to rule on this
     severance issue, the supreme court would not consider it on
     appeal.  

5.   Witnesses -- witness properly qualified as expert -- no abuse
     of discretion in allowing testimony. -- Where a witness was
     qualified by his experience and training to testify as to the
     symptoms of a hypoglycemic reaction, the trial court did not
     abuse its discretion in allowing him to testify as an expert;
     expert witnesses may be qualified by experience, knowledge, or
     training, and need not be licensed professionals.


     Appeal from Sebastian Circuit Court; John G. Holland, Judge;
affirmed.
     Michael Medlock, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.


     Tom Glaze, Justice.  
     Appellant John E. Medlock brings this appeal following an
earlier one decided in Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997).  Both appeals involve his November 25, 1995 arrest for
suspicion of driving while intoxicated (DWI) and refusal to submit
to a chemical test.  On June 25, 1996, he was tried on both
charges; the trial judge found him guilty of the refusal-to-submit
offense, but the jury trying Medlock on the DWI charge ended in a
mistrial.  Medlock appealed his refusal-to-submit conviction, and
contended the trial court had erred in denying him a jury.  We
agreed, and on April 28, 1997, we reversed and remanded in Medlock
I.  However, before Medlock I was decided, the trial court retried
Medlock's DWI charge on January 24, 1997, and, this time, a jury
found him guilty.  Medlock now brings this second appeal, arguing
three points for reversal.    
     In Medlock's first argument, he submits the trial court erred
in refusing his motion in limine in which Medlock sought to prevent
the State from introducing evidence bearing on his having refused
to take a breathalyzer test.  Medlock argues such evidence violates
Rules 609(a) and 404(b) of the Arkansas Rules of Evidence.  We
disagree.  Regarding Medlock's Rule 609 contention, we need say
nothing more than that the State never mentioned at trial Medlock's
earlier refusal-to-submit conviction.  Thus, because Rule 609
addresses impeachment by evidence of conviction of a witness
offering testimony, the Rule simply is not an issue.
     Medlock's argument bearing on Rule 404(b), however, is a
properly raised issue, but we conclude the trial court acted
correctly when it ruled Medlock's refusal to submit to a chemical
test was admissible under the Rule.  The State urged below, and the
trial court agreed, that Medlock's refusal to take the test was
some evidence indicating guilt, and if such evidence had been
excluded, the State would have been prejudiced, since the State
would have been unable to show any blood-alcohol test results; nor
could it have shown why such tests had not been taken.
     Medlock's response was somewhat confusing in places. 
Initially, he argued that his refusal charge should not have been
admitted as evidence because that charge had been appealed, and was
still pending.  He suggested further that any prejudice that the
State would have faced in the retrial of Medlock's DWI offense
could have been avoided by combining both charges (DWI and refusal
to submit) in one trial after his appeal was decided.
     Medlock's point has been answered in the State's favor by the
court of appeals' decision in Spicer v. State, 32 Ark. App. 209,
799 S.W.2d 562 (1990).  There, Spicer was charged with DWI,
speeding, and driving left of center.  Prior to trial, he moved in
limine to prohibit the State from offering any evidence of his
refusal to submit to a breathalyzer test.  The trial court denied
Spicer's motion, and the appellate court affirmed on appeal.  In
doing so, the Spicer court stated that it appears a majority of
courts in states without statutory authority have concluded that
evidence of the refusal to take a chemical test is probative on the
issue of intoxication, as a showing of guilt.  In adopting this
rule, our court of appeals looked to the Alabama Supreme Court case
of Hill v. State, 366 So. 2d 318 (Ala. 1979), which relied upon and
quoted from the Ohio decision of City of Westerville v. Cunningham,
15 Ohio St.2d 121, 239 N.E.2d 40 (1968), as follows:
          Where a defendant is being accused of intoxication
     and is not intoxicated, the taking of a reasonably
     reliable chemical test for intoxication should establish
     that he is not intoxicated.  On the other hand, if he is
     intoxicated, the taking of such a test will probably
     establish that he is intoxicated.  Thus, if he is not
     intoxicated, such a test will provide evidence for him;
     but, if he is intoxicated, the test will provide evidence
     against him.  Thus, it is reasonable to infer that a
     refusal to take such a test indicates the defendant's
     fear of the results of the test and his consciousness of
     guilt, especially where he is asked his reason for such
     refusal and he gives no reason which would indicate that
     his refusal had no relation to such consciousness of
     guilt.
     While not directly in issue, our court cited the Spicer rule
with approval in Massengale v. State, 319 Ark. 743, 894 S.W.2d 594
(1995).  Now, since that rule is in issue and bears on the
circumstances before us, we adopt the rule as a sound one and find
it dispositive of Medlock's argument.  Accordingly, we hold that
evidence of Medlock's refusal to submit to a chemical test can be
properly admitted as circumstantial evidence showing a knowledge or
consciousness of guilt, and that such evidence possesses
independent relevance bearing on the issue of intoxication and was
not being offered merely to show Medlock was a bad person.  See
Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980); see also Ark.
Stat. Ann.  5-65-206(b) (1987) (the provisions providing for
chemical tests for determining the amount of alcohol in a
defendant's blood shall not be construed as limiting the
introduction of any other relevant evidence bearing on the question
whether or not the defendant was intoxicated).
     Medlock's second point for reversal is that the trial court
erred in refusing to join his DWI and refusal-to-submit charges. 
Although he cites no authority for the proposition, Medlock urges
that he had an absolute right to have the two charges joined. 
Medlock simply has failed to preserve this argument, since the
record reveals no motion showing he requested a joinder of the two
offenses.  The rule is settled that joinder is not required of a
prosecutor, Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993),
nevertheless, it is the duty of a party seeking relief to apprise
the trial court of the proper basis upon which he relies in order
to preserve an issue for appeal.  Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).  Because the trial judge did not have a fair
opportunity to rule on this severance issue, we will not consider
it on appeal.  Id. at 490.
     Finally, we address Medlock's third point wherein he assigns
error to the trial court for allowing Officer Ron Keeling to
testify as an expert in the area of hypoglycemic reactions.  We
first note that Medlock never objected to Officer Keeling's
credentials as an expert.  The abstract reflects only that Medlock
objected to Keeling's testimony, without giving his reason.  In any
event, Keeling testified that he had received training with regard
to DWI detection in connection with his law-enforcement training,
and in addition served in the U.S. Army for twenty-three years,
with eleven years as a special-forces medic.  As part of his
specialized training, Keeling testified that he was trained to
detect signs or symptoms of diabetes, specifically hypoglycemic
reactions.  Keeling further testified as to the differences between
intoxication and a hypoglycemic reaction, and stated that, at the
time of Medlock's arrest for DWI, Medlock did not exhibit the
symptoms of an individual suffering from a hypoglycemic reaction.
     Here, Keeling was qualified to testify as to the symptoms of
a hypoglycemic reaction.  Although Medlock contends Keeling's
testimony should have been excluded because he is not a doctor or
a nurse, the rule is well settled that expert witnesses may be
qualified by experience, knowledge, or training, and need not be
licensed professionals.  John H. Parker Constr. Co. v. Aldridge,
312 Ark. 69, 847 S.W.2d 687 (1993).  Because the trial court did
not abuse its discretion in allowing Keeling to testify as an
expert, we affirm.