Macias v. State

• Decision Date: 05 November 1987
• Docket Number: No. 68440,68440
• Citation: Macias v. State, 515 So.2d 206, 12 Fla. L. Weekly 553 (Fla. 1987)
• Parties: 12 Fla. L. Weekly 553 Kendra Sue MACIAS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 206

515 So.2d 206

12 Fla. L. Weekly 553

Kendra Sue MACIAS, Petitioner, v. STATE of Florida, Respondent.

No. 68440.

Supreme Court of Florida.

Nov. 5, 1987.

Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for petitioner.

Robert A. Butterworth, Atty. Gen., and Michael W. Baker, Asst. Atty. Gen., West Palm Beach, for respondent.

PER CURIAM.

This cause is before the Court on petition for review of the decision of the Fourth District Court of Appeal in State v. Macias, 481 So.2d 979 (Fla. 4th DCA 1986). Because we find that the decision conflicts with Machin v. State, 213 So.2d 499 (Fla. 3d DCA), cert. denied, 221 So.2d 747 (Fla.1968), and Wells v. State, 468 So.2d 1087 (Fla. 3d DCA 1985), we have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The district court of appeal overturned the decision of a circuit court, which had in its appellate capacity reversed the petitioner's criminal convictions because she had been required to testify against herself. For the reasons expressed below, we approve the decision of the district court of appeal.

Petitioner, Kendra Sue Macias, was charged with driving under the influence of alcohol to the extent of impairment of her faculties and driving with an unlawful blood alcohol level in violation of section 316.193(1) and (3), Florida Statutes (1981). The charges were tried by a jury in county court. The arresting officer testified that he stopped Macias about 4 a.m. because of her erratic driving. He detected a strong odor of alcohol on her person, observed that she was "very wobbly," that her speech was slurred, and that she had watery, bloodshot eyes. The officer administered several field sobriety tests, referred to as the "balancing test," the "finger-to-nose test," and the "heel-to-toe test," all of which she failed. Macias told the officer that she had had six drinks within the last five hours. She was placed under arrest and at the police station was given a breathalyzer test which showed her blood alcohol level at 0.19 percent--nearly twice the legal limit.

During the testimony of the arresting officer, the court, at the request of the prosecutor and over the objection of defense counsel, directed Macias to, in front of the jury, (1) state her name and (2) act out the same roadside sobriety tests the officer had administered on the night of the arrest. In response to the order, Macias recited her name, and the officer compared the quality of her speaking voice to that on the night of her arrest. The court explained that the purpose of the in-court performance of the sobriety test was to show Macias' present faculties and was "in no way a reconstruction of what they were on the date in issue." The court refused to allow the officer to compare Macias' in-court performance with that on the night in question.

The jury found Macias guilty on both counts. On appeal the circuit court reversed and awarded a new trial on the ground that Macias was compelled to be a witness against herself in violation of the United States and Florida Constitutions. On petition for certiorari, the district court of appeal quashed the circuit court's order of reversal. The district court reasoned that there was no violation of Macias' privilege against self-incrimination because the acts she was compelled to perform in court were presented only to demonstrate physical characteristics and were neither communicative nor testimonial in nature.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the admission of the defendant's blood, over his objection, as evidence to establish a charge of driving while intoxicated was upheld as not violating the fifth amendment privilege against self-incrimination. The United States Supreme Court stated:

It is clear that the protection of the privilege reaches 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. Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746]. On the other hand, both federal and state courts have usually held that it offers no protection against 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. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it.

384 U.S. 757, 763-64, 86 S.Ct. 1826, 1832 (footnote omitted). It was testimonial compulsion, rather than every kind of compulsion, for which the privilege was originated. 8 Wigmore, Evidence, § 2263 (1961). According to 4 S. Gard, Jones on Evidence, § 22:3, at 10 (6th ed. 1972), "[t]he more recent authorities clearly show a tendency to adhere to the Wigmore concept that only oral testimony and the production of documents or other objects by the witness, and acts of an assertive character, are within the privilege." (Footnote omitted.)

Compelling a defendant to give voice exemplars in order to evaluate the physical properties of his voice, rather than the content of what is said, does not violate the privilege against self-incrimination. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Clark v. State, 379 So.2d 97 (Fla.1979). The same principle applies even when the defendant is required to speak in the presence of the jury. Lusk v. State, 367 So.2d 1088 (Fla. 3d DCA 1979). Voice exemplars are usually used to assist a witness in determining identification. However, the fifth amendment is no more implicated where, as here, the witness contrasted the qualities of Macias' voice in court with those he had heard on a previous occasion.

With reference to the performance of the in-court sobriety test, it is well settled that a defendant may be required to perform certain physical acts in court without violating his fifth amendment privilege against self-incrimination. 3 C.E. Torcia, Wharton's Criminal Evidence, § 624 (13th ed. 1973). That the performance of a required act may point to the defendant's guilt does not necessarily mean that his fifth amendment rights have been violated. Schmerber v. California. As in cases where oral statements are compelled, the issue turns on whether the required actions are testimonial or communicative in nature. See Annot., 3 A.L.R.4th 374 (1981).

As noted in the opinion of the district court of appeal, the relevancy of acting out the roadside sobriety tests in court seems remote, particularly in view of the fact that the court refused to permit the officer to compare Macias' performance with that on the night she was arrested. However, Macias' objection was based on the privilege against self-incrimination, not relevancy. We cannot see how the actions of Macias in performing the sobriety test were communicative or testimonial in nature. Such actions, made when she was fully sober, did not infer that Macias was drunk on the night she was arrested. We do not say that under all circumstances a judge must accede to the prosecutor's request that a DUI defendant perform roadside sobriety tests in court. See § 90.403, Fla.Stat. (1985) (evidence may be excluded on grounds of prejudice or confusion). See also cases cited at 3 A.L.R.4th 374, 399 holding that a trial court, in its discretion, may refuse to compel the accused to perform a physical act in the presence of the jury if the prejudicial effect of the required act outweighs its probative value. There is, however, no fifth amendment violation when such actions are required.

In Machin, because witnesses had testified that the person who committed the crime ran with a limp, the defendant wanted to demonstrate his running capability to the jury without exposing himself to cross-examination. The court held that to do so would be a form of testimony which would subject the defendant to cross-examination. Similarly, the defendant's request to display his tattoos in Wells was deemed testimonial in nature. Schmerber tells us that the activities proposed by the defendants in those cases were not testimonial in nature. Therefore, we disapprove the opinions in Machin and Wells to the extent that they hold that the requested demonstrations were testimonial in nature.

We approve the decision of the district court of appeal under review in this case.

It is so ordered.

McDONALD, C.J., and OVERTON, EHRLICH, GRIMES and KOGAN, JJ., concur.

SHAW, J., dissents.

BARKETT, J., dissents with an opinion.

BARKETT, Justice, dissenting.

I respectfully dissent. None of the cases relied upon by the state specifically approves, against a fifth amendment challenge, a procedure such as the one used here in which the defendant...