Defendant’s refusal to be fingerprinted was admissible to impeach his claim of self-defense

At trial the defendant claimed self-defense, and the state was permitted to impeach him with his refusal to be fingerprinted at the time of his arrest. This was not penalizing him for excercise of a constitutional right. Coulthard v. Commonwealth, 230 S.W.3d 572 (Ky. 2007):

Specifically, the Commonwealth argued that Appellant’s claim of self defense was not credible in light of the circumstances which transpired in this case. These circumstances included evidence which tended to show that Appellant initially did everything in his power to deny involvement, destroy evidence, and avoid prosecution. Only when these attempts failed, the Commonwealth argued, did Appellant change his story and claim self defense. The evidence regarding Appellant’s refusal to consent to fingerprint sampling was introduced during a string of testimony which suggested that not only did Appellant fail to come forward with his claim of self defense despite several opportunities to do so, but also he took affirmative steps to undermine the investigation. Police testified that Appellant was initially cooperative with them, readily agreeing to talk and denying any knowledge of the circumstances surrounding the victim’s death. However, when police mentioned that they recovered fingerprints from the scene and asked whether Appellant would mind providing fingerprint samples, Appellant suddenly became evasive and uncooperative.

Once Appellant submitted himself to cross-examination after claiming self defense at trial, it was not only appropriate but necessary for the Commonwealth to impeach Appellant’s credibility and rebut his allegations. As the traditional truth-testing devices of the adversarial process, impeachment and rebuttal are vital to ensuring a just and fair trial. Thus, preserving each party’s right to utilize such devices at trial should weigh heavily when considering counterbalancing claims of “constitutional privilege.” See Jenkins, 447 U.S. at 238 (“Once a defendant decides to testify, ‘[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.'”) (quoting Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958)).

Indeed, a similar governmental practice was condoned by the U.S. Supreme Court in Jenkins, supra. On trial for murder, the defendant testified that he killed in self defense. In an attempt to impeach the defendant’s credibility, the prosecutor introduced evidence demonstrating that he failed to voluntarily come forward with his story until after he was apprehended by police two weeks after the murder. The U.S. Supreme Court held that use of the defendant’s prearrest silence against him at trial was not unconstitutional since “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.” Jenkins, 447 U.S. at 238.

Officers had reasonable suspicion to stop defendant, and it ripened to probable cause to search his car. The officers received an alarm call and arrived at the scene of the alarm within two minutes and a car that obviously saw the officers stopped and was turned off, sitting there at 4:20 a.m. in the bitter cold. Other officers verified the break-in at the business, and they watched the car for several minutes to see what the driver would do before approaching it. Defendant was seen hiding on the floorboard of the car after the driver got out. State v. Washington, 2007 ND 138, 737 N.W.2d 382 (2007).*