Tsavaris v. Scruggs, No. 48637

CourtUnited States State Supreme Court of Florida
Writing for the CourtHATCHETT; In disposing of the fifth amendment claim; OVERTON, C. J. and BOYD; SUNDBERG; ENGLAND; ADKINS; SUNDBERG; ENGLAND; ADKINS; ENGLAND; ADKINS; ADKINS
Citation360 So.2d 745
PartiesLouis J. TSAVARIS, Relator, v. The Honorable Charles H. SCRUGGS, III, as Circuit Judge of the Thirteenth Judicial Circuit of the State of Florida, Respondent.
Decision Date17 March 1977
Docket NumberNo. 48637

Page 745

360 So.2d 745
Louis J. TSAVARIS, Relator,
The Honorable Charles H. SCRUGGS, III, as Circuit Judge of the Thirteenth Judicial Circuit of the State of Florida, Respondent.
No. 48637.
Supreme Court of Florida.
March 17, 1977.
Rehearing Denied July 10, 1978.

Page 746

Raymond E. LaPorte and Henry Gonzalez, Tampa, for relator.

Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for respondent.

HATCHETT, Justice.

This is an original proceeding on suggestion for writ of prohibition, which raises questions under the immunity statute, Section 914.04, Florida Statutes (1975). 1 Dr.

Page 747

Tsavaris, who has been indicted for the first degree murder of Cassandra Ann Burton, sought dismissal of the indictment in the trial court. The motion to dismiss proceeded on the theory that Dr. Tsavaris was immune from prosecution because Jean Jones, one of his employees, had complied with certain subpoenas duces tecum. The trial judge, respondent in these proceedings, denied the motion to dismiss the indictment, and Dr. Tsavaris filed here.

Prohibition is an appropriate procedure, in these circumstances, as both parties concede. In a leading case, the District Court of Appeal, Third District, outlined procedures for raising the issue of immunity:

(T)he appropriate remedy . . . would be to challenge the jurisdiction of the . . . court to proceed by claiming immunity, and then, if that court proceeded, to seek relief by writ of prohibition in the appropriate court, that is, in the court having appellate jurisdiction . . . . Where a case is pending in the criminal court against a person claiming immunity . . . it would be the duty of the criminal court involved to give effect to such immunity if it existed. Should the criminal court in such a case refuse to recognize the immunity the further action of that court in prosecuting the cause would amount to an excess of jurisdiction which then would be subject to restraint by prohibition. State ex rel. Reynolds v. Newell, Fla.1958, 102 So.2d 613, 615; State ex rel. Byer v. Willard, Fla.1951, 54 So.2d 179; State ex rel. Marshall v. Petteway, 121 Fla. 822, 164 So. 872.

Buchanan v. State ex rel. Husk, 167 So.2d 38, 40 (Fla. 3d DCA 1964).

The question whether Dr. Tsavaris is immune from prosecution for murder may also be stated as the question whether the circuit court has jurisdiction to try him.

The Constitution confers on this Court jurisdiction to "issue writs of prohibition to courts and commissions in causes within the jurisdiction of the supreme court to review. Florida Constitution, Art. V, § 3(b)(4). Inasmuch as Dr. Tsavaris is charged with a capital offense, we have concluded that he has properly invoked our jurisdiction, 2 and we have issued a rule nisi in prohibition, to which respondent has made return. We now decide that Dr. Tsavaris is not entitled to immunity from prosecution and discharge the rule.

On April 19, 1975, a man identifying himself as Dr. Tsavaris summoned ambulances to the apartment of Cassandra Ann Burton. 3 When they arrived, ambulance personnel found Dr. Tsavaris in the apartment

Page 748

with Miss Burton's corpse. Dr. Tsavaris suggested an overdose of drugs as the cause of death, and emphasized that the only relationship which had existed between himself and the dead woman was that of psychiatrist and patient. The next day, however, a friend of Miss Burton told a sheriff's deputy that Miss Burton and Dr. Tsavaris had been having an affair; that she had become pregnant; and that she had undergone an abortion only four weeks earlier. According to the deputy's informant, Miss Burton had not wanted the abortion, but Dr. Tsavaris insisted; the couple's relationship was a stormy one, and they had recently quarreled over Miss Burton's demand that Tsavaris obtain a divorce in order to marry her.

While the autopsy was in progress, Dr. Tsavaris called the morgue to inquire about the results of the autopsy and reiterated his claim that he only knew the deceased professionally. He was told to call back later. When Dr. Tsavaris called the second time, he was told that the autopsy was not complete but that the pathologist had concluded that an abortion had recently been performed. He denied having any knowledge of an abortion. By the time a third telephone call came from Dr. Tsavaris, the medical examiners had satisfied themselves that Miss Burton's death was caused by strangulation. This was kept from Dr. Tsavaris, however, who was told instead that the official report might be inconclusive because no cause of death had been discovered. At this point, the person at the other end of the line said, he "could tell the change in Tsavaris' voice. I could sense the relief."

The following day, investigators spoke to a secretary in Dr. Tsavaris' office. When the investigators requested certain information, including the names of patients attending a group therapy session on the night of April 19, 1975, the secretary declined to answer on the ground of professional ethics. This development was reported to the state attorney's office. An assistant state attorney caused subpoenas to issue, among which were two subpoenas duces tecum, each addressed to the "Custodian of Records, 4600 Habana, Suite # 28, Tampa, Fla. (Office of Dr. Louis Tsavaris)." One directed the custodian to produce "the personal appointment book of Dr. Tsavaris for month of April, 1975," and the other commanded the production of "all medical records relating to Cassandra aka Sally Burton, aka Sandra Burton." Dr. Tsavaris' secretary, Jean Jones, complied with the subpoenas. 4

She produced Dr. Tsavaris' appointment book, consisting of lined pages on which each line corresponds to a specified 15 minute interval of a working day. On some lines are written individuals' names and on some lines the word "Group" is written. Nothing in the record suggests that these handwritten entries were made by Dr. Tsavaris himself. 5 Miss Burton's medical records consist of a typewritten psychological evaluation, prepared by a clinical psychologist. In a cover letter, the psychologist thanks Dr. Tsavaris for referring Miss Burton to him. On a separate sheet, two typewritten paragraphs describe bruises and other effects of an automobile accident in which Miss Burton is said to have been involved on January 8, 1975. The record contains no clue as to authorship, apart from the idiosyncratic style of the writer, e.g., "(s)he looses (sic) her balance upon flexing her head." Written on Dr. Tsavaris' stationery, for "Sally Burton," is a prescription for Dilantin dated October 13, 1974. Several Connecticut General Life Insurance Company forms purport to have been signed by "Cassandra Ann Burton" and one of the company's forms, styled "Attending Physician's Statement" has Dr. Tsavaris' name typed in the signature

Page 749

block. There is also a typewritten statement for services rendered and, finally, Miss Burton's name, address, telephone number, age, and date of birth have been written by hand on a piece of paper. Dr. Tsavaris contends that his secretary's production of these documents precludes his being brought to trial, on account of Section 914.04, Florida Statutes (1975).

In construing Section 914.04, Florida Statutes (1975), it is important to bear in mind "the very purpose for its enactment . . . (is) to aid the state in the prosecution of crimes." State v. Schell, 222 So.2d 757, 758 (Fla. 2d DCA 1969). Immunity statutes are mechanisms for securing witnesses' self-incriminating testimony in the prosecution of third parties.

(T)he state may elect to immunize one offender from prosecution in order to secure the conviction of another, and this statute should be liberally construed to accomplish that purpose. State ex rel. Reynolds v. Newell, Fla.1958, 102 So.2d 613; State ex rel. Johnson v. MacMillan, Fla.App.1967, 194 So.2d 627; Lewis v. State, Fla.App.1963, 155 So.2d 841; State v. Schell, supra at 758.

The wisdom of investing the prosecutor with authority to confer immunity is clear. The need for an immunity statute is a corollary to the privilege against self-incrimination, guaranteed by both the Florida and federal constitutions. 6 Equipped with his statutory powers, the prosecutor can loosen lips the Constitution would otherwise permit to remain sealed. Where a witness' testimony is crucial, prosecution of a third party accused could be stymied without the immunity statute even though the witness' testimony would only tend to incriminate the witness of some trivial offense. Similarly, in a case where the only evidence against the witness is unconvincing, the immunity statute enables the prosecution to use the witness' self-incriminating testimony in order to convict a third party, without forfeiting any realistic chance of securing the witness' conviction for his own offense.

However simple in theory, in application the immunity statute requires hard judgments on close questions. Before taking the unretraceable step of immunizing a putative offender, the prosecutor must develop information from all other available sources and carefully weigh probabilities. In Florida, the state attorney may subpoena witnesses to appear for questioning either before the grand jury, or, pursuant to Section 27.04, Florida Statutes (1975), before the state attorney himself. In this connection, the District Court of Appeal, Second District, said of a predecessor to Section 914.04, Florida Statutes (1975):

The gravamen of the statute is to provide an investigatory weapon to law enforcement which they are not obligated to utilize. In this case, the prosecution chose not to use it . . . .

The mere fact that the defendant was under subpoena to appear is immaterial. Compulsory attendance is one thing and compulsory testimony is quite another.

State ex rel. Foster v. Hall, 230 So.2d 722, 723 (Fla. 2d DCA 1970).

The prosecutor in the present case called Dr. Tsavaris as a witness before the grand...

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    ...Page 390 The state, of course, has authority to confer such immunity on a witness if it chooses to do so. See Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977); Novo v. Scott, 438 So.2d 477 (Fla. 3d DCA 1983), review denied, 446 So.2d 100 (Fla.1984); State v. Schell, 222 So.2d 757 (Fla. 2d DCA ......
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