State v. Kuntsman, No. 94-1269

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore SCHWARTZ; LEVY
Citation643 So.2d 1172
Decision Date12 October 1994
Docket NumberNo. 94-1269
Parties19 Fla. L. Weekly D2161 The STATE of Florida, Petitioner, v. Christopher KUNTSMAN, et al., Respondents.

Page 1172

643 So.2d 1172
19 Fla. L. Weekly D2161
The STATE of Florida, Petitioner,
v.
Christopher KUNTSMAN, et al., Respondents.
No. 94-1269.
District Court of Appeal of Florida,
Third District.
Oct. 12, 1994.

Robert A. Butterworth, Atty. Gen., and Joni Braunstein, Asst. Atty. Gen., for petitioner.

Scott Sakin; Max P. Engel; James H. Woodard, Miami, for respondents.

Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ.

LEVY, Judge.

We grant the State's Petition for Writ of Certiorari and quash the trial court's order compelling prosecution witnesses to view an array of photographs and then be questioned about those photographs during the course of criminal depositions.

The State filed an Information charging five defendants collectively, and as principals, with one count of armed robbery, two counts of burglary of a conveyance with assault, two counts of aggravated battery, and one count of criminal mischief. Attorneys for the defendants deposed one of the victims. Because four out of the five defendants had similar appearances, the victim distinguished them during the deposition based on their hair color and clothing. In an attempt to have the victim identify the criminal actions taken by each defendant, defense counsel requested the victim to view a photo array. This array consisted of thirty-eight black and

Page 1173

white photographs, and included only four photos of the defendants. The State objected to the use of the photo array, and the victim refused to view or answer questions concerning the array. Defense counsel then certified the question. Following a hearing, the trial judge entered an order requiring all of the prosecution witnesses to view and respond to questions concerning the photo array. The State now petitions this Court for a Writ of Certiorari to quash the trial court's order.

The criminal discovery process is governed by Florida Rule of Criminal Procedure 3.220. Furthermore, it is within the sound discretion of the trial judge to grant or limit criminal discovery. Gray v. State, 640 So.2d 186 (Fla. 1st DCA 1994); Baker v. State, 526 So.2d 202 (Fla. 4th DCA 1988). However, Rule 3.220 does not provide a trial judge with the authority to compel a witness to perform any type of involuntary physical examination. State v. Smith, 260 So.2d 489, 490 (Fla.1972) (quashing a trial court order compelling prosecution witnesses to submit to an optical examination to test their visual acuity). In Smith, the Supreme Court noted that only in "rare instance[s]" would a trial court have the authority to order an involuntary examination of a witness. Smith, 260 So.2d at 490 (finding the defendant's claim that the State's case primarily depended upon the identification of the defendants by eyewitnesses insufficient to warrant an involuntary eye examination). Subsequent to the Supreme Court's decision in Smith, the District Courts have recognized a trial court's authority to order an involuntary examination of a prosecution witness, but have limited the exercise of that authority to situations where strong and compelling reasons exist. See State v. Camejo, 641 So.2d 109 (Fla. 5th DCA 1994) (quashing the trial court's order compelling the victim of a sexual battery to undergo psychological evaluation by a psychiatrist), question certified on reh'g, 641 So.2d 109 (Fla. 5th DCA 1994); Bartlett v. Hamwi, 626 So.2d 1040 (Fla. 4th DCA 1993) (denying...

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17 practice notes
  • Reed v. State, No. 1D99-2562.
    • United States
    • Court of Appeal of Florida (US)
    • May 1, 2001
    ...alleged to have been committed by defendants, to be examined for visual acuity by specified physician prior to trial); State v. Kuntsman, 643 So.2d 1172 (Fla. 3d DCA 1994) (holding that trial court departed from essential requirements of law by ordering prosecution witnesses to view array o......
  • State v. Wooten, No. 4D18-2636
    • United States
    • Court of Appeal of Florida (US)
    • November 28, 2018
    ...abuse of discretion. "[I]t is within the sound discretion of the trial judge to grant or limit criminal discovery." State v. Kuntsman , 643 So.2d 1172, 1173 (Fla. 3d DCA 1994). "[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exerc......
  • State v. Clay, No. 94-1193-CR
    • United States
    • Court of Appeals of Wisconsin
    • July 25, 1995
    ...cases grant the opposing party a recess or a continuance. 4 The State in its brief directs our attention to State v. Kuntsman, 643 So.2d 1172, 1174 (Fla.App.1994), to additionally support its argument that Clay has no right to discovery for the purposes of creating evidence. Although not pr......
  • Clark v. Com., Record No. 1425-97-4.
    • United States
    • Virginia Court of Appeals of Virginia
    • November 30, 1999
    ...is necessary to protect a defendant's rights and the examination can be conducted without unusual harm to a victim"); State v. Kuntsrnan, 643 So.2d 1172, 1173 (Fla .Dist.CLApp.1994) (Court of Appeals for the Third District noting that Florida's "District Courts [of Appeal] have recognized a......
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17 cases
  • Reed v. State, No. 1D99-2562.
    • United States
    • Court of Appeal of Florida (US)
    • May 1, 2001
    ...alleged to have been committed by defendants, to be examined for visual acuity by specified physician prior to trial); State v. Kuntsman, 643 So.2d 1172 (Fla. 3d DCA 1994) (holding that trial court departed from essential requirements of law by ordering prosecution witnesses to view array o......
  • State v. Wooten, No. 4D18-2636
    • United States
    • Court of Appeal of Florida (US)
    • November 28, 2018
    ...abuse of discretion. "[I]t is within the sound discretion of the trial judge to grant or limit criminal discovery." State v. Kuntsman , 643 So.2d 1172, 1173 (Fla. 3d DCA 1994). "[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exerc......
  • State v. Clay, No. 94-1193-CR
    • United States
    • Court of Appeals of Wisconsin
    • July 25, 1995
    ...cases grant the opposing party a recess or a continuance. 4 The State in its brief directs our attention to State v. Kuntsman, 643 So.2d 1172, 1174 (Fla.App.1994), to additionally support its argument that Clay has no right to discovery for the purposes of creating evidence. Although not pr......
  • Clark v. Com., Record No. 1425-97-4.
    • United States
    • Virginia Court of Appeals of Virginia
    • November 30, 1999
    ...is necessary to protect a defendant's rights and the examination can be conducted without unusual harm to a victim"); State v. Kuntsrnan, 643 So.2d 1172, 1173 (Fla .Dist.CLApp.1994) (Court of Appeals for the Third District noting that Florida's "District Courts [of Appeal] have recognized a......
  • Request a trial to view additional results

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