Seventeen-year-old Timmy Hubbert was arrested on a warrant in the early morning hours on July 12, 1997 for the murder of Steve Cotton. Hubbert was given his Miranda warnings both orally and in writing, and he signed a written waiver of his Miranda rights indicating that he understood his rights. Officer Kenny Summers with the Attala County Sheriff’s Office then questioned Hubbert. Hubbert denied being at the lounge where Cotton was shot that evening. Officer Summers then asked Hubbert to submit to a neutron activation test, more commonly known as a gun powder residue test, to which Hubbert agreed.
Thereafter, Summers altered a “consent to a search” form to reflect that Hubbert was consenting to the test. However, when asked to sign the “consent” form, Hubbert refused stating that he wanted to speak to his lawyer. Officer Summers wrote the word “refused” in on the signature line and discontinued his questioning.
At trial and over Hubbert’s objections, the State was permitted to question Officer Summers about Hubbert’s refusal to submit to the test. Subsequently, Hubbert was convicted and sentenced to life in prison. On appeal, he argued it was improper to be asked about his refusal to consent to the gun powder residue test. MCOA affirmed.
The MSC has not previously considered this precise issue, that is, the admissibility of a defendant’s refusal to submit to a gunpowder test. In Porter v. State, 519 So. 2d 1230 (Miss. 1988), the MSC adopted the United States Supreme Court’s position that the Fifth Amendment only prohibited the compelled production of evidence, not evidence which identifies physical characteristics of the defendant.
The issue in Porter involved the question of whether the accused could be forced to exhibit a scar on his hand. The MSC determined that the exhibition of Porter’s hand was less intrusive than routine blood tests and fingerprints.
Furthermore, SCOTUS observed that the protection against self-incrimination did not encompass the compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. See SCOTUS Schmerber v. California, 384 U.S. 757 (1966).
Evidence gathered by conducting a neutron activation test is analytically similar to cases in which evidence is collected through such tests and procedures as blood tests, breathalyzer tests, handwriting samples, voice exemplars and hair and saliva samples. In such cases, the evidence pursued is not testimonial in nature, and therefore does not fall within the scope Fifth Amendment. See McCory v. State, 342 So. 2d 897 (Miss. 1977) (ruling that the State could compel defendant to provide handwriting exemplar without violating rule against self-incrimination); Martin (ruling that a voice exemplar is not prohibited by Fifth Amendment); Burns (handwriting exemplar does not violate constitutional protections). It is clear that the State may force a defendant to provide blood, hair and saliva samples which may then be admitted into evidence against the defendant.
In Burns, the MSC addressed the issue of whether a defendant’s handwriting exemplar taken unbeknownst to the defendant violated the defendant’s Fourth and Fifth Amendment rights. MSC relied on SCOTUS’ opinion in United States v. Mara, 410 U.S. 19 (1973), where it was held that handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person’s script than there is in the tone of his voice. MSC concluded that Burns had no privacy interest in his handwriting and that the sample was obtained for the limited purpose of comparing it to an existing sample of the defendant’s writing. Even further, MSC decided that the officer who took the handwriting sample was under no constitutional duty to inform the defendant why he needed the handwriting exemplar as the court recognized that the exemplars could have been obtained by court order.
Burns also argued that the taking of a handwriting exemplar without first warning him of the fact that it may incriminate him forced him to be a witness against himself violating his Fifth Amendment right. In finding that Burns’s Fifth Amendment rights were not violated, MSC said that the taking of exemplars did not violate petitioner’s Fifth Amendment privilege against self- incrimination. The privilege reaches only compulsion of an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers, and not compulsion which makes a suspect or accused the source of real or physical evidence. One’s voice and handwriting are, of course, means of communication within the cover of the privilege. The Fifth Amendment privilege against self-incrimination protects an accused from being compelled to testify against himself, that is, to provide evidence of a testimonial or communicative nature, but does not extend to the securing of real or physical evidence.
Accordingly, we rule that the evidence sought to be obtained in this case was “real or physical” evidence. The officer, via a search warrant, could have compelled Hubbert to submit to the gunpowder residue test. Because the chemicals sought to be found on Hubbert’s hand could have been easily and quickly destroyed, the officers would have been within their rights to swab Hubbert’s hand even over his objections. The State was not “constitutionally or otherwise” prohibited from informing the jury of Hubbert’s decision not to cooperate in submitting to the neutron activation test. Thus, we rule that the circuit court did not err in permitting the prosecution to make it known to the jury that Hubert refused to consent to the test and that Hubbert’s constitutional rights to due process and not to incriminate himself were not violated.