State v. Gonzalez

• Decision Date: 26 March 1985
• Docket Number: 83-75,Nos. 83-29,s. 83-29
• Parties: 10 Fla. L. Weekly 845 The STATE of Florida, Appellant, v. Egar GONZALEZ, Appellee.
• Court: Florida District Court of Appeals

Page 723

467 So.2d 723

10 Fla. L. Weekly 845

The STATE of Florida, Appellant, v. Egar GONZALEZ, Appellee.

Nos. 83-29, 83-75.

District Court of Appeal of Florida Third District.

March 26, 1985.

Rehearing Denied May 10, 1985.

Jim Smith, Atty. Gen., Janet Reno, State Atty. and Anthony C. Musto, Asst. Atty. Gen., for appellant.

John H. Lipinski, Miami, for appellee.

Michael P. Farris, (Olympia, Wash.), for Concerned Women for America, as amicus curiae.

Before BARKDULL and HUBBART and FERGUSON, JJ.

HUBBART, Judge.

This is an appeal by the State of Florida from two trial court orders entered in a criminal case. The first order dismisses two counts, charging aggravated battery and manslaughter, in a three-count information filed below against the defendant Egar Gonzalez, a medical doctor who allegedly performed an illegal abortion on a minor. The second order suppresses as evidence certain medical records and statements obtained from the defendant by law enforcement agents. For the reasons which follow, we affirm the dismissal order, reverse the suppression order, and remand the cause for further proceedings on the remaining count of the information charging unlawful termination of pregnancy.

I

Turning first to the dismissal order, we agree entirely with the trial court's decision rendered below which grants the defendant's motion to dismiss on the second and third counts of the information charging aggravated battery and manslaughter. We further approve the trial court's legal analysis in reaching these results as contained in the order under review, to wit:

"Count II: Aggravated Battery

§ 784.045(1)(b)

Dr. Gonzalez is next charged with committing an aggravated battery upon Tevra Eaford during the performance of the June 25th abortion by intentionally touching or striking her against her will with a deadly weapon (metallic instruments) resulting in perforation and damage to her uterus and intestines, violating § 784.045(1)(b).

An essential element of battery is that it be against the will of the victim. In the instant case, Tevra Eaford was a patient seeking assistance from physician-Defendant Gonzalez in terminating her pregnancy via a surgical procedure.

Part of the patient-physician relationship involved the execution of a consent form by both Tevra Eaford, a minor, and Deanne Cason, her mother. The consent form specifically stated, 'I understand the possibility of perforation of the uterus and internal injuries resulting therefrom.'

The touching of the victim occurred during the surgical procedure, was consented to, and the complications were foreseeable. If Tevra Eaford has a cause of action, it is in a civil case, not a criminal prosecution.

Defendant's Motion to Dismiss Count II of the Information is Granted.

Count III: Manslaughter

§ 782.07

The third Count of the Information charges Dr. Gonzalez with violation of Florida Statute § 782.07 by inflicting on a female fetus wounds and injuries during the course of the June 25th abortion which resulted in death without justification, said killing not being excusable homicide or murder.

The heart of this issue is whether a fetus is a human being within the meaning of the Florida manslaughter statute.

At common law, the killing of a fetus was not homicide unless the child was born alive and then expired as a result of the injuries previously sustained. The Supreme Court in Roe [v. Wade ], supra [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147], found that generally the unborn have never been recognized in the law as persons in the whole sense. Even when statutory classifications are carved out to extend rights to fetuses, there is a different standard of construction which must be applied when comparing criminal law with the law of tort or property.

Extensive reference has been made to the Florida Supreme Court statement in Stern v. Miller, 348 So.2d 303 (1977) that '[a] viable fetus is a human being capable of independent existence outside the womb; a human life is therefore destroyed when a viable fetus is killed ...' Id. at 306. The fact that this was a negligence suit seeking to extend Florida's Wrongful Death Act to include a fetus within the definition of 'person' and that the Court ultimately declined to expand the definition to include a viable fetus is ignored. Rather, this Court is told to accept Stern as the current common law definition, to-wit: a viable fetus is a human being; further, that a fetus is now included under the Manslaughter Statute because the Florida Legislature re-enacted codifications of the Florida Statutes in both 1979 and 1981 and is presumed to know existing decisional law. The argument fails to consider the 1979 Legislature which enacted § 390.001(10) making it a felony of the third degree to perform post viability abortions. The better reasoning is that the Legislature believes §§ 390.001(10) and 782.09 (the current feticide statute) are adequate protections for the unborn. If it chooses to expand the protection, then it can specifically do so. California is a case in point. The legislature amended its murder statute, to-wit: 'the unlawful killing of a human being, or a fetus, with malice aforethought.' Florida could amend § 782.07 to make manslaughter 'the killing of a human being or viable fetus by the act, procurement or culpable negligence of another without lawful justification.'

The Florida Legislature has indicated it is capable of distinguishing between an unborn child and a person born alive since it has enacted statutes which acknowledge this distinction. When we are concerned with a statute that is clearly penal in nature, it must be narrowly construed and the Defendant must be given the benefit of any reasonable doubt as to whether the act charged is within the meaning of the Statute. Evidence of great concern for viable fetuses (§ 390.001(5)) or implicit construction of Stern v. Miller, supra, as modifying the common law definition of human being to include viable fetuses cannot withstand judicial scrutiny nor constitutional muster.

Since 'human being' is not defined in Florida Statutes and until the Florida Legislature specifically changes it, the common law definition controls. The fetus involved in this case was not born alive. The Motion to Dismiss Count III is Granted."

R.203-09.

We are supported in our approval of the trial court's dismissal order by two recent district court decisions. State v. McCall, 458 So.2d 875 (Fla. 2d DCA 1984) (no crime of vehicular homicide or DWI manslaughter against a viable fetus); Love v. State, 450 So.2d 1191 (Fla. 4th DCA 1984) (no crime of aggravated battery against a viable fetus). The dismissal order under review is therefore affirmed.

II

Turning next to the suppression order, we are unable to agree with the trial court that certain medical records of the defendant Gonzalez, and certain oral statements made by the same defendant to law enforcement agents, were unlawfully obtained and therefore subject to being suppressed as evidence at trial. This evidence was obtained from the defendant Gonzalez during a joint investigation of the said defendant by Metro Dade police officers and agents of the Florida Department of Professional Regulation. The trial court order suppressed such evidence upon a holding that (1) the medical records were obtained through an unreasonable search and seizure in violation of the defendant's rights guaranteed by the Fourth Amendment, (2) the medical records were obtained in violation of the defendant's privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and (3) the statements of the defendant were improperly obtained in the absence of Miranda warnings. For reasons more fully developed below, we hold that the suppression order is erroneous and must be reversed.

A

The facts pertaining to the suppression issue, as stated in the trial court's order of suppression, are as follows:

"Defendant, Edgar Gonzalez, a physician licensed to practice medicine in the State of Florida, is alleged to have performed a late termination of pregnancy on June 25, 1982, on a twelve year old black female, Tevra Eaford.

Metro Dade Police Department Homicide Detective Hugo Gomez commenced an independent investigation into the circumstances surrounding the death of the fetus which resulted from this termination of pregnancy. He obtained information from Eaford, her mother Deanne Cason, a lieutenant from Fire Rescue who transported Eaford to a local hospital, a physician who operated on her and removed the fetus at South Miami Hospital, and from an associate Medical Examiner who performed an autopsy on the fetus. Gomez was then contacted by Agent McDonough of the Department of Professional Regulation (DPR). McDonough informed Gomez that an administrative complaint had been received against Dr. Gonzalez regarding the June 25th abortion. Gomez and McDonough began to plan and coordinate a joint visit to the doctor's office, the primary purpose being to secure the doctor's medical records on Eaford. Gomez did not obtain a search warrant for this visit but relied on DPR's authority to obtain information for an administrative investigation instead.

Agent McDonough had the victim's mother sign a DPR authorization form to release her daughter's medical records. Detective Gomez testified he had oral authorization from the mother to obtain these records as well.

Four officials entered Defendant's medical office, two from Metro Dade Homicide and two from DPR, exhibited their official credentials and went into a private office away from the reception area. ¹ The testimony shows that Detective Gomez began the conversation immediately upon entry, introducing himself and the people with him, and after a brief exchange, ² Dr. Gonzalez handed his medical records of Tevra Eaford to Detective Gomez. The testimony further shows that the Defendant was not advised he was the focal point of a criminal investigation, that he had a right to ...