State v. Diamond

• Court: Florida District Court of Appeals
• Writing for the Court: ZEHMER; The only ground for the motion asserted by the defendants in the case sub judice was that the State's case depended in whole or in part upon the identification of defendants by eye witnesses. Even assuming, that in some rare instance; SMITH,
• Citation: State v. Diamond, 553 So.2d 1185, 13 Fla. L. Weekly 1963 (Fla. App. 1988)
• Decision Date: 22 August 1988
• Docket Number: 87-1993,Nos. 87-1992,s. 87-1992
• Parties: 13 Fla. L. Weekly 1963 STATE of Florida, Petitioner, v. Richard DIAMOND, Respondent.

Page 1185

553 So.2d 1185

13 Fla. L. Weekly 1963

STATE of Florida, Petitioner, v. Richard DIAMOND, Respondent.

Nos. 87-1992, 87-1993.

District Court of Appeal of Florida First District.

Aug. 22, 1988.

On Rehearing En Banc Dec. 28, 1989.

Robert A. Butterworth, Atty. Gen., and Bradford L. Thomas, Asst. Atty. Gen., Tallahassee, for petitioner.

William B. Richbourg, Pensacola, for respondent.

ZEHMER, Judge.

The state petitions for a writ of certiorari to review a pretrial order entered by the circuit court of Santa Rosa County in the criminal prosecution of respondent Richard Diamond on two charges of sexual battery upon persons under the age of 12 years. The order, entitled "Judgment," provides that "the State be, and is, estopped and enjoined from the prosecution of the Defendant upon each of these causes unless and until the State['s] complaining child witness, in any such cause to be prosecuted, shall first submit to a physical examination by the Defendant's medical expert." The state contends the trial court violated a clearly established principle of law when it ordered the alleged victims to submit to a compelled physical examination, citing State v. Smith, 260 So.2d 489 (Fla.1972). Respondent contends there is nothing illegal about the trial court's order and that it does not depart from the essential requirements of law.

The facts revealed by the record before us are as follows. On May 22, 1987, respondent Diamond was charged by separate informations with two charges of sexual battery upon young girls under 12 years of age in violation of section 794.011(2), Florida Statutes (1985). The information in case number 87-1992 charged that sexual battery was committed against A.H., age eight years, "between January 1, 1986 and December 13, 1986 ¹ ... by vaginal penetration by the Defendant's penis and/or finger." The information in case number 88-1993 makes a similar charge in respect to C.F., age eight years.

After making a demand for discovery and offering to reciprocate, Diamond filed his "Motions To Compel Physical Examination" in each case, reciting that each of the alleged victims had been physically examined by Dr. Lelia Montes, a pediatrician and the medical examiner for the Child Protection Team, and that the findings by Dr. Montes as a result of these examinations were medically inconsistent with statements given by the two girls. More specifically, it is alleged that Dr. Montes's examination of C.F. revealed that, in her opinion, the vaginal opening of one child measured one-half ( 1/2) centimeter with evidence of "a slight hymenal tear that had healed at some time in the past" which, Dr. Montes stated on deposition, indicated that full sexual intercourse with an adult male was possible. Dr. Montes's examination of A.H. revealed a vaginal opening of three-quarters ( 3/4) centimeter and "an old hymenal tear that had apparently healed some time in the past" which, Dr. Montes opined on deposition, constituted "evidence of dialation [sic] in an eight year old child" who "had experienced penetration by an adult male." The defendant's motion further alleges that these findings of Dr. Montes and the history as related by each of the two girls have been discussed with two separate gynecologists, "each of whom indicated that the doctor's findings and the child's history, are not medically consistent." Diamond's motion requests that his expert, Dr. C.A. Horan, a qualified gynecologist, be allowed to examine the alleged victims "as an independent medical examiner."

After these motions were filed, the state, in both cases, gave notice of its intent to offer hearsay evidence in the form of the statements made by the two girls to Dr. Montes during her interview and physical examination and to Officer Jean Slappe of the Santa Rosa County Sheriff's Department, and also gave notice of its intent to use similar fact evidence in respect to defendant's commission of sexual battery and lewd and lascivious assaults upon these two girls and another girl. The state and the parents of both children objected to the requested examinations, so a joint evidentiary hearing was held on defendant's motions. The custodial parents of the alleged victims testified that while they had consented to the examination by Dr. Montes, they refused to consent to the examination requested by defendant, as they were already made uneasy by Dr. Montes's examination. Dr. Horan testified that the results of Dr. Montes's examinations of the alleged victims were inconsistent with their statements that they had repeatedly engaged in "full intercourse with an adult male" and that an examination of the victims would be very helpful if he were called to testify in this matter. Specifically, he indicated that Dr. Montes's conclusions were not well supported by the alleged victims' vaginal condition, and were not consistent with repeated intercourse because a child's vaginal opening should be at least 1.5 centimeters to show that full intercourse occurred. Moreover, Diamond contends, the correctness of Dr. Montes's description and diagnosis of an "old hymenal tear" may be highly important to deciding whether or not repeated intercourse by an adult male occurred, as contended by the state. ² Dr. Horan and defendant's counsel offered to have the examination performed in Dr. Montes's office with Dr. Montes and the child's parents present.

The trial court's six-page order recites that it is "the final order and judgment of the Court that the Defendant's motion be, and is, hereby granted...." The court explicitly finds that

Dr. Horan expressed the opinion that he needed an opportunity to conduct a personal physical examination of each of the subject complaining child witnesses in order to apppropriately present his testimony and expert opinion upon the issue of whether or not either of said complaining witnesses manifested physical findings, upon examination, consistent with vaginal, sexual intercourse with the adult male Defendant.

The Court finds that the Defendant has offered sufficient evidence to establish a clear and convincing prima facie showing of good cause for the need for such physical examination by the Defendant's expert physician witness to aid in the presentation of evidence in his defense.

The Court further finds that the State has not offered sufficient evidence to rebut the Defendant's showing of good cause for the examination nor any evidence that the results of such physical examination could not, or would not, be likely to disclose material and relevant evidence bearing directly upon the Defendant's guilt or innocence and upon the credibility of the State's complaining child witnesses.

The trial court's order then discusses the state's reliance on the supreme court's decision in State v. Smith, 260 So.2d 489, and recognizes that witnesses in criminal prosecutions have a common law and constitutional right of privacy under Section 23 of the Florida Declaration of Rights that protects them from court ordered physical examinations "unless the State can demonstrate a compelling State interest that justifies such intrusion upon an individual's right to privacy." But the court also notes that it is required to consider a criminal defendant's right to due process under the fourteenth amendment to the federal constitution and the Florida constitution, which must be weighed against the protection afforded by the witnesses' right of privacy, and notes that in Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985), the supreme court ruled that the right of privacy may give way only upon proof of a compelling state interest. The court's order then continues:

This Court notes that each of the complaining child witnesses have previously been voluntarily examined by the State's medical expert at the request of, and upon direction of local law enforcement and that the reasonable scientific inferences, opinions and results that may be derived from such physical examination, can reasonably be expected to have a direct material and substantial impact upon the determination of the Defendant's guilt or innocence in each of the pending cases.

To allow the State to prosecute these criminal proceedings against the Defendant, utilizing the testimony of each of the complaining child witnesses, supported by the testimony of the State's selected examining physician, Dr. Lelia Montes, while denying to the Defendant the opportunity to present an effective defense through an examining physician of his choice--who if permitted to conduct such physical examination can reasonably be expected to testify in the Defendant's behalf upon a material and substantial issue and essential element of the charged offense--will in effect deny the Defendant his Constitutional rights to due process and his Constitutional right to fairly enjoy and defend his liberty.

This Court is therefore confronted with a dilemma of how to protect the Defendant's constitutional rights and its obligation to protect the right of privacy of each of the State's complaining child witnesses to the extent that the same may be guaranteed by Section 23 of the Declaration of Rights of our Constitution and as recognized by our Florida Supreme Court in the case of State v. Smith....

....

It is, of course, the right of each of the complaining child witnesses, acting through their lawful parental custodians, to elect to waive their rights of privacy and to voluntarily submit to the physical examination by a qualified physician as they have previously done in connection with the State's expert witness, Dr. Montes.

The court concluded that under the circumstances of this case--where the complaining witnesses, with the concurrence of the state, have opposed the requested physical examination--"the State should be estopped and enjoined from proceeding upon the trial of the Defendant on the pending sexual battery charges, unless and until such time as the complaining child...