St. George v. State

• Decision Date: 14 June 1990
• Docket Number: No. 88-1494,88-1494
• Citation: 564 So.2d 152
• Parties: 15 Fla. L. Weekly D1601 Gregory ST. GEORGE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 152

564 So.2d 152

15 Fla. L. Weekly D1601

Gregory ST. GEORGE, Appellant, v. STATE of Florida, Appellee.

No. 88-1494.

District Court of Appeal of Florida Fifth District.

June 14, 1990.

Rehearing Denied July 26, 1990.

James B. Gibson, Public Defender, and Nancye R. Crouch, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Dee R. Ball, Asst. Atty. Gen., Daytona Beach, for appellee.

EN BANC

DANIEL, Chief Judge.

Defendant, Gregory St. George, appeals from a judgment and sentence following an adjudication of direct criminal contempt.

An information was filed by the state charging defendant with the offense of grand theft. ¹ During either the booking procedure or an early court appearance, defendant told authorities that his name is not Gregory St. George but refused to reveal his "real name." The state filed a motion to compel identification requesting that the trial court order defendant to answer truthfully the following questions in open court:

1) What is your true name?

2) Where and when were you born?

3) Where have you resided in the past five years?

4) Where and when did you attend school?

5) Were you ever in the armed forces of the United States? If so, what branch and what dates?

After several hearings, during which defendant repeatedly invoked his constitutional right to remain silent, the trial court granted the state's motion to compel identification and ordered defendant to answer the questions listed above. Defendant refused. The court found defendant to be in direct criminal contempt and sentenced him to serve 179 days in the county jail.

On appeal, defendant contends that the order to disclose information infringes upon his privilege against self-incrimination as afforded by the Fifth Amendment to the United States Constitution and Article 1, Section 9 of the Florida Constitution. We agree.

The Supreme Court of the United States has ruled that the constitutional provision that no person shall be compelled in any criminal case to be a witness against himself provides the basis for "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence." Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). See also Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber, the Supreme Court specified that the privilege protects an individual from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature. The "privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications...." Schmerber, 86 S.Ct. at 1832. It is the extortion of information from the individual, the attempt to force him to disclose the contents of his own mind, that implicates the self-incrimination clause. Doe v. United States, 487 U.S. 201, 108 S.Ct. 2341, 2348, 101 L.Ed.2d 184 (1988). The privilege spares the individual from having to reveal, directly or indirectly, his knowledge of the facts relating him to the offense or from having to share his thoughts and beliefs with the government. Doe, 108 S.Ct. at 2349.

The privilege against self-incrimination does not, however, prohibit the government from compelling an individual to provide real or physical evidence since such evidence is not testimonial or communicative in nature. Hence, an individual may be compelled to speak or write provided that his speech or writing exemplars are not sought to disclose any knowledge that he might have. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 767, 35 L.Ed.2d 67 (1973); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149 (1967).

In order for the privilege to apply, the communication must not only be compelled by the government but must also convey incriminating information. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 1576, 48 L.Ed.2d 39 (1976). Thus, an individual may invoke this privilege and refuse to answer official questions put to him in any proceeding, civil or criminal, formal or informal, only where the answers might incriminate him in future criminal proceedings. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973). The privilege extends to answers that in themselves would support conviction as well as any information sought which would furnish a link in the chain of evidence needed to prosecute. The privilege protects against any disclosure which an individual reasonably believes could be used in a criminal prosecution or could lead to other evidence which might be so used. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972).

Once an individual has invoked his privilege against self-incrimination, it becomes the duty of the trial court to determine whether there is a reasonable basis for the assertion of the privilege and whether the privilege has been invoked in good faith. To sustain the privilege it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 692, 99 L.Ed. 997 (1955); Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).

The Supreme Court of Florida has recognized these constitutional limitations placed upon the state's ability to compel a defendant to disclose information by the adoption of rule 3.220 of the Rules of Criminal Procedure:

Rule 3.220 Discovery--

* * * * * *

(1) After the filing of the indictment or information and subject to constitutional limitations, a judicial officer may require the accused to:

(i) Appear in a line-up;

(ii) Speak for identification by witnesses to an offense;

(iii) Be fingerprinted;

(iv) Pose for photographs not involving re-enactment of a scene;

(v) Try on articles of clothing;

(vi) Permit the taking of specimens of material under his fingernails.

(vii) Permit the taking of samples of his blood, hair and other materials of his body which involves no unreasonable intrusion thereof;

(viii) Provide specimens of his handwriting; and

(ix) Submit to a reasonable physical or medical inspection of his body.

Noticeably absent from the aforementioned list is the authority of a judicial officer to require a defendant to verbally provide information concerning his identity or, put another way, to testify concerning the "contents of his own mind" concerning his identity.

Applying the foregoing principles of law, we conclude that the order compelling defendant to verbally disclose information concerning his identity constitutes a violation of defendant's privilege against self-incrimination. The record reveals that defense counsel informed the trial court that defendant invoked the privilege out of fear that, had he provided the prosecutor with the information sought, the information would have furnished a link in the chain of evidence needed to prosecute charges pending against him in another county. ² It was, therefore, error for the trial court to grant the state's motion to compel information.

On appeal, the state presents the unique argument that, even if defendant has the constitutional right to remain silent, the trial court nonetheless properly found him guilty of contempt because defendant had the unqualified duty to comply with the trial court's order.

An aggrieved party's failure to comply with the terms of an order issued by a court acting with proper jurisdiction may normally be punished by contempt even if the order is, on appeal, found to be erroneous--the rationale being that the order must be obeyed until vacated or modified by that court or until the order has been reversed on appeal, no matter how unreasonable and unjust the order may be. Health Clubs, Inc. v. State ex rel. Eagan, 377 So.2d 28, 30 (Fla. 5th DCA 1979). See also Rubin v. State, 490 So.2d 1001 (Fla. 3d DCA 1986); Wells v. State, 471 So.2d 620 (Fla. 5th DCA 1985). The stated reason behind this rule is that the need for such compliance outweighs any detriment to the party who may be temporarily affected by the order since the injury arising from an erroneous ruling in the lower court is usually not irreparable. Rubin, 490 So.2d at 1003. However, a party's failure to comply with an erroneous order compelling the disclosure of information is not subject to contempt when such compliance would result in irreparable injury:

Compliance could cause irreparable injury because appellate courts cannot always "unring the bell" once the information has been released. Subsequent appellate vindication does not necessarily have its ordinary consequence of totally repairing the error.

State v. Schmidt, 474 So.2d 899, 902 (Fla. 5th DCA 1985), quoting Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975). Had defendant complied with the trial court's order compelling him to disclose information concerning his identification, he would have suffered irreparable injury. Accordingly, the judgment and sentence for direct criminal contempt is vacated.

VACATED.

COBB, SHARP, W., COWART, GOSHORN, HARRIS, PETERSON, and GRIFFIN, JJ., concur.

DAUKSCH, J., concurring specially with opinion.

DAUKSCH, Judge, concurring specially.

I concur. The constitutional right invoked by appellant is found in both the Fifth Amendment to the United States Constitution and Article I, section 9 of the Florida Constitution.

Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) holds that the Fifth Amendment prohibition against compelled...