Bartlett v. Hamwi

• Decision Date: 10 November 1993
• Docket Number: No. 93-2073,93-2073
• Citation: 626 So.2d 1040
• Parties: 18 Fla. L. Weekly D2393 Emma Jo BARTLETT, Petitioner, v. Paul HAMWI, Paul Serio and State of Florida, Respondents.
• Court: Florida District Court of Appeals

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.

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 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 did not compel an intrusion into the right of an individual to the possession and control of his own person. Id. Smith involved only a test for visual acuity, a more limited invasion than the request here. After Smith, our constitution was amended to grant citizens of this state a right to privacy, Art. 1, Sec. 23, Fla. Const., which lends additional support for petitioner's argument.

In State v. Diamond, 553 So.2d 1185 (Fla. 1st DCA 1988), a plurality of the First District sitting en banc reaffirmed the vitality of Smith, in a case involving a physical examination of a victim of a sexual battery:

The Supreme Court's strong language in Smith must be looked upon as a firm warning to those who would feel moved to lead the jurisprudence of our state into uncharted waters by creating, via spontaneous generation, a criminal defense right to have crime victims or witnesses subjected to physical examinations.

Id. at 1194 (Nimmons, J., concurring).

Although the prosecution has a duty under the due process clause to disclose evidence favorable to the defendant upon request, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), "there is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). This case does not involve the failure to produce evidence in existence or the destruction of previously existing evidence. It involves a request by a defendant that evidence be extracted from the body of a witness. No criminal rule of procedure or statute specifically authorizes samples to be taken from witnesses or authorizes physical examinations of witnesses. We do not read Florida Rule of Criminal Procedure 3.220(f), which allows a court to "require such other discovery to the parties as justice may require," to permit an invasion into a witness' privacy rights. In addition, rule 3.220(e) permits courts to restrict or deny disclosure of any information if unnecessary annoyance or embarrassment outweighs the usefulness of the disclosure.

While rule 3.220(c) specifically provides that a judicial officer may require the accused to submit samples of blood, hair and other materials from the accused's body, even that criminal rule is properly invoked only after an information or indictment has been filed against the person from whom the samples are sought, and the rule is still subject to constitutional limitations. See Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985); Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988). In Saracusa, this court found the defendant's constitutional rights were violated by compelling the defendant to appear in a live lineup and submit to a blood test in connection with an investigation of several crimes unrelated to the charges for which he was being held, where there was no finding of probable cause as to the defendant's involvement in the unrelated crimes.

Certainly a witness, who is not a suspect, defendant or victim, should have no less protection against bodily intrusion than defendants or suspects in criminal cases. ² Although ...