Lusk v. State, 77-1287
| Decision Date | 27 February 1979 |
| Docket Number | No. 77-1287,77-1287 |
| Parties | Bobby Earl LUSK, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
Rejecting the defendant Lusk's sole contention on appeal, we hold that the prosecutor's request that the defendant speak so that a witness then on the stand could identify his voice, was not an improper comment on an exercise of his constitutional right against self-incrimination. Although the request was made while the jury was present, and although Lusk did not himself testify, the cases cited by the defendant, e. g., Gordon v. State, 104 So.2d 524 (Fla.1958), have utterly no application to this situation. Lusk's fifth amendment rights were simply not involved at all, because the privilege of "silence" does not extend to nor include the furnishing of physical, non-testimonial evidence such as the revelation of the sound of one's voice. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Parkin v. State, 238 So.2d 817 (Fla.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971); Joseph v. State, 316 So.2d 585 (Fla. 4th DCA 1975); Boyer v. State, 182 So.2d 19 (Fla. 4th DCA 1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2118, 18 L.Ed.2d 1353 (1967); Higgins v. Wainwright, 424 F.2d 177 (5th Cir. 1970), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970); Springer v. State, 372 N.E.2d 466, 472 (Ind.App.1978); Doye v. State, 16 Md.App. 511, 299 A.2d 117 (1973).
Affirmed.
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...such as fingerprints, photographs and voice or handwriting samples are not protected by this privilege. See, e.g., Lusk v. State, 367 So.2d 1088 (Fla.App.1979); Anderson v. Com., 554 S.W.2d 882 (Ky.App.1977); State v. Sanders, 357 So.2d 1089 (La.1978). We note the majority of states whose c......
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...photograph of the robber). Several state courts have addressed the precise issue joined in the action sub judice. In Lusk v. State of Florida, 367 So.2d 1088 (Fla.App.1979) the practice of compelling a defendant to speak in court for the purpose of allowing a witness to identify defendant's......
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Spangler v. State, CR-96-0187
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