Bartlett v. Hamwi, No. 93-2073

CourtCourt of Appeal of Florida (US)
Writing for the CourtPARIENTE
Citation626 So.2d 1040
Parties18 Fla. L. Weekly D2393 Emma Jo BARTLETT, Petitioner, v. Paul HAMWI, Paul Serio and State of Florida, Respondents.
Decision Date10 November 1993
Docket NumberNo. 93-2073

Page 1040

626 So.2d 1040
18 Fla. L. Weekly D2393
Emma Jo BARTLETT, Petitioner,
v.
Paul HAMWI, Paul Serio and State of Florida, Respondents.
No. 93-2073.
District Court of Appeal of Florida,
Fourth District.
Nov. 10, 1993.

Page 1041

Steven Wisotsky, Fort Lauderdale, for petitioner.

Jane D. Fishman, Sp. Asst. Public Defender, Plantation, for respondent Paul Serio.

Michael J. Satz, State Atty., and Ralph J. Ray, Jr., Asst. State Atty., Fort Lauderdale, for respondent State of FL.

PARIENTE, Judge.

The issue before this court, presented by petition for writ of certiorari, is whether a prosecution witness in a criminal case may be ordered to submit her body for extraction of hair samples for testing requested by the defendant as part of his defense. We find that the witness would suffer irreparable harm by operation of the trial court's order and conclude that the circumstances presented do not justify a court order authorizing the taking of samples from a witness. By previous order we granted certiorari, and we now explain our reasoning.

Petitioner, Emma Jo Bartlett, is the 76 year old mother of Richard Purvis. Purvis was originally charged and convicted of a 1983 murder of Susan Hamwi and her infant daughter, Shane, for which the defendants are now accused. Purvis' conviction was set aside after newly discovered evidence, in the form of a confession from a participant in the crime, Robert W. Beckett, Jr., indicated defendant Paul Serio had committed the murder of defendant Hamwi's wife as a contract killing for defendant Paul Hamwi. Petitioner was listed as a prosecution witness, although the state contends this was only a precautionary step. One of the defendants, Paul Serio, moved to compel fingerprint and hair samples from petitioner. 1 In support of his motion to compel, defendant Serio asserted that the crime scene was substantially changed after the crime had been committed and that there were numerous unmatched fingerprints and hairs from the crime scene. The defendant's argument is that someone may have altered the crime scene after the murder and that petitioner may have been the individual. However, petitioner asserts that the allegations of her presence are unsubstantiated and pure speculation.

Although the precise issue involved here, compelling a witness to give hair samples, has not been previously decided in the courts of this state, we need look no farther than the supreme court's decision in Smith v. State, 260 So.2d 489 (Fla.1972) to resolve the issue. Our supreme court in Smith held that a trial court was without authority to order eyewitnesses, who might be used by the state for identification of persons involved in crimes, to be examined for visual acuity. Although the state's case in Smith depended upon the witnesses' identification of the defendants, and the examination for visual acuity was arguably essential to the defendants' ability to impeach the witnesses as part of the defense, the supreme court held that:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of an individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Union Pacific Railroad Company

Page 1042

v. Botsford, 141 U.S. 250, 11 S.Ct. 1000 35 L.Ed. 734 (1891). The common law does not authorize a court to require the physical examination of a witness, because discovery in criminal cases was unknown to the common law. See State v. Lampp, 155 So.2d 10 (Fla.App. 2d, 1963). Pursuant to the authority of Fla. Const. art. V. Sec. 3, this Court has adopted rules of procedure governing criminal trials in this State. These rules include certain provisions relating to discovery in criminal cases. See Florida Rules of Criminal Procedure, Rule 3.220, 33 F.S.A. Nothing contained in these rules purports to authorize a trial court to grant a motion compelling witnesses to submit to a physical examination of any sort.

Id. at 491. While the supreme court held open the possibility that there may be "some rare instance" where "justice may require some type of physical examination of a witness," the facts presented in Smith...

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13 practice notes
  • People v. Lopez, No. 93758.
    • United States
    • Supreme Court of Illinois
    • 17 Octubre 2003
    ...nor Visgar provided any guidance on how to implement the test. See, e.g., People v. Chard, 808 P.2d 351 (Colo.1991); Bartlett v. Hamwi, 626 So.2d 1040 (Fla.App.1993); State v. D.R.H., 127 N.J. 249, 604 A.2d 89 800 N.E.2d 1218 (1992); State v. Garrett, 384 N.W.2d 617 (Minn.App.1986); State v......
  • State v. Dotson, No. W2011–00815–SC–DDT–DD.
    • United States
    • Supreme Court of Tennessee
    • 30 Septiembre 2014
    ...there is no Tennessee precedent for court-ordered DNA testing of law enforcement and medical personnel. See, e.g., Bartlett v. Hamwi, 626 So.2d 1040, 1042–43 (Fla.Dist.Ct.App.1993) (upholding the trial court's denial of the defendant's motion to obtain a hair sample from a prosecution witne......
  • State v. McKinney, No. S-05-591.
    • United States
    • Supreme Court of Nebraska
    • 13 Abril 2007
    ...at 29. 36. U.S. Const. amend. VI. 37. See In re Jansen, supra note 34, 444 Mass. at 115-16, 826 N.E.2d at 190. 38. Bartlett v. Hamwi, 626 So.2d 1040 (Fla. App.1993). 39. Id. at 1042-43 (emphasis in original). 40. See id. at 1043. 41. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.......
  • State v. Dotson, No. W2011-00815-CCA-R3-DD
    • United States
    • Tennessee Court of Criminal Appeals
    • 25 Junio 2013
    ...there is no Tennessee precedent for court-ordered DNA testing of law enforcement and medical personnel. See, e.g., Bartlett v. Hamwi, 626 So. 2d 1040, 1042-43 (Fla. Dist. Ct. App. 1993) (upholding the trial court's denial of the defendant's motion to obtain a hair sample from a prosecution ......
  • Request a trial to view additional results
13 cases
  • People v. Lopez, No. 93758.
    • United States
    • Supreme Court of Illinois
    • 17 Octubre 2003
    ...nor Visgar provided any guidance on how to implement the test. See, e.g., People v. Chard, 808 P.2d 351 (Colo.1991); Bartlett v. Hamwi, 626 So.2d 1040 (Fla.App.1993); State v. D.R.H., 127 N.J. 249, 604 A.2d 89 800 N.E.2d 1218 (1992); State v. Garrett, 384 N.W.2d 617 (Minn.App.1986); State v......
  • State v. Dotson, No. W2011–00815–SC–DDT–DD.
    • United States
    • Supreme Court of Tennessee
    • 30 Septiembre 2014
    ...there is no Tennessee precedent for court-ordered DNA testing of law enforcement and medical personnel. See, e.g., Bartlett v. Hamwi, 626 So.2d 1040, 1042–43 (Fla.Dist.Ct.App.1993) (upholding the trial court's denial of the defendant's motion to obtain a hair sample from a prosecution witne......
  • State v. McKinney, No. S-05-591.
    • United States
    • Supreme Court of Nebraska
    • 13 Abril 2007
    ...at 29. 36. U.S. Const. amend. VI. 37. See In re Jansen, supra note 34, 444 Mass. at 115-16, 826 N.E.2d at 190. 38. Bartlett v. Hamwi, 626 So.2d 1040 (Fla. App.1993). 39. Id. at 1042-43 (emphasis in original). 40. See id. at 1043. 41. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.......
  • State v. Dotson, No. W2011-00815-CCA-R3-DD
    • United States
    • Tennessee Court of Criminal Appeals
    • 25 Junio 2013
    ...there is no Tennessee precedent for court-ordered DNA testing of law enforcement and medical personnel. See, e.g., Bartlett v. Hamwi, 626 So. 2d 1040, 1042-43 (Fla. Dist. Ct. App. 1993) (upholding the trial court's denial of the defendant's motion to obtain a hair sample from a prosecution ......
  • Request a trial to view additional results

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