State v. Farr, 89-1276

Decision Date14 February 1990
Docket NumberNo. 89-1276,89-1276
Citation558 So.2d 437
Parties15 Fla. L. Weekly D420, 15 Fla. L. Weekly D954 STATE of Florida, Petitioner, v. Lonnie FARR and Tanya Farr, Respondents.
CourtFlorida District Court of Appeals

Robert A. Butterworth, Atty. Gen., Tallahassee and Joan Fowler, Asst. Atty. Gen., West Palm Beach, for petitioner.

Douglas N. Duncan of Wagner, Nugent, Johnson, Roth, Romano, Eriksen and Kupfer, P.A., West Palm Beach, for respondents.

POLEN, Judge.

The state seeks to prohibit a second, compelled gynecological examination of an eight-year-old child who, it is alleged, was the victim of sexual battery perpetrated by respondents Lonnie and Tanya Farr.

The child was examined in July 1987 by a Dr. Leviton. The medical findings showed no evidence of fissure or trauma to the anus. But an obliterated hymen and an opening approximately six millimeters across and twelve millimeters vertically suggested probable sexual intercourse. Respondents' expert has expressed an opinion to the contrary.

Based on this contrary opinion, respondents moved the trial court for an order to permit reexamination of the child by respondents' expert. The trial court granted respondents' motion and this petition followed.

Respondents argue that since Dr. Leviton contends that anal intercourse could occur without scarring, their expert should be allowed to examine the child. Furthermore, respondents challenge the professional capabilities of Dr. Leviton, a seventy-five year old physician. Petitioner responds that there is no compelling reason to order the additional gynecological examination of this child. We agree.

We addressed a similar situation in State v. Drab, 546 So.2d 54 (Fla. 4th DCA 1989). In Drab, the trial court ordered a second gynecological examination of an eight year old victim in a sexual abuse case. This court held that no "extreme and compelling Respondent has not alleged that there was anything improper or unprofessional about the voluntary physical examination of the complaining witness. He does not urge that the scientific observations that were made are in any way suspect. He faults only the conclusion that these findings lend support to the allegations of sexual abuse. His concern is mainly the relative weight that might be given by a jury to testimony from one expert who has made a physical examination and another who has not. In our view, this falls far short of justification for a compelled physical examination. The trial court's order therefore constitutes a substantial departure from the essential requirements of the law.

circumstances" existed such that unless the complaining witness was compelled to undergo an intimate physical examination a manifest injustice would result in the denial of due process. This court went on to find that:

Drab at 56.

A review of the record and motion filed by respondents indicates that they are challenging the results of the examination rather than the methodology. Respondents merely challenge Dr. Leviton's value as a witness. Respondents are pursuing their own gynecological examination of the child in order to have their own expert's opinion bolstered by a physical examination that he made himself.

If anything, we find this case even more egregious than Drab because the findings of the doctor, which respondents dispute, are partially favorable to their case. The results of this examination at this late date would be of little probative value. Moreover, the examination is not in the best interest of the child.

The trial court's order therefore constitutes a substantial departure from the essential requirements of the law. We grant the petition for writ of certiorari, quash the order under review, and remand for further proceedings.

ANSTEAD, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, Judge, concurring specially.

I concur with the majority's result that the standard set forth in State v. Drab, 546 So.2d 54 (Fla. 4th DCA 1989), is the appropriate test for balancing defendant's right to due process and the victim's right of privacy, namely, whether such compelling circumstances exist so that unless the victim is compelled to undergo a physical examination, a manifest injustice will occur which would result in the denial of due process. Drab, at 56.

While Drab approved the analysis of the First District in State v. Diamond, 553 So.2d 1185 (Fla. 1st DCA 1988), that court sitting en banc rejected that reasoning and procedure. State v. Diamond, 15 F.L.W. 70 (Fla. 1st DCA Dec. 28, 1989). A plurality of judges on the First District relied on State v. Smith, 260 So.2d 489 (Fla.1972) which held that the trial court has no authority to order a physical examination of a witness. However, in Smith, as in Dinkins v. State, 244 So.2d 148 (Fla. 4th DCA 1971), the purpose of the examination was to test the person's ability to be a...

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  • Reed v. State
    • United States
    • Florida District Court of Appeals
    • May 1, 2001
    ...impinge upon appellant's constitutional right to due process. See Fuller v. State, 669 So.2d 273 (Fla. 2d DCA 1996); State v. Farr, 558 So.2d 437 (Fla. 4th DCA 1990). Furthermore, the requested viewing would have merely corroborated the testimony of appellant's pediatrician that the child's......
  • State v. Barone
    • United States
    • Tennessee Supreme Court
    • March 1, 1993
    ...advanced does not constitute a compelling need that justifies a court-ordered independent physical examination. See State v. Farr, 558 So.2d 437 (Fla.Dist.Ct.App.1990); State v. Drab, 546 So.2d 54 Accordingly, the judgment of the Court of Criminal Appeals is reversed as to this issue. If, a......
  • People v. Chard
    • United States
    • Colorado Supreme Court
    • March 11, 1991
    ...to use the "compelling need or reason" test based on reasoning similar to that presented in Ramos and Lanton. See State v. Farr, 558 So.2d 437, 437 (Fla.Dist.Ct.App.1990); State v. Drab, 546 So.2d 54, 55 (Fla.Dist.Ct.App.1989); State v. Glover, 49 Ill.2d 78, 81-83, 273 N.E.2d 367, 370 (1971......
  • State v. Delaney
    • United States
    • West Virginia Supreme Court
    • June 1, 1992
    ...granted. See People v. Chard, 808 P.2d 351 (Colo.1991), cert. denied 502 U.S. 863, 112 S.Ct. 186, 116 L.Ed.2d 147 (1991); State v. Farr, 558 So.2d 437 (Fla.App.1990); State v. Drab, 546 So.2d 54 (Fla.App.1989); People v. Beauchamp, 126 Misc.2d 754, 483 N.Y.S.2d 946 (N.Y.Supp.1985); Lanton v......
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