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Menna v. State4/24/2003
We have for review the decision in State v. Menna, 793 So. 2d 1029 (Fla. 5th DCA 2001), which certified conflict with the decision in Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed herein, we quash the Fifth District Court of Appeal's decision in Menna and approve the decision in Herring.
FACTS AND PROCEEDINGS TO DATE
Petitioner Clotilde Estela Menna's husband was shot outside of his office and taken to a hospital where he was pronounced dead. Menna arrived at the hospital and was sent to a waiting room where she met with the hospital chaplain. The chaplain informed her of her husband's passing and, thereafter, Menna met with the attending physician and nurse. Menna then unsuccessfully attempted to contact her sons, who were out of the country, to notify them of their father's death.
Deputy Thomas McCann testified that he questioned Menna at the hospital. According to McCann's testimony, at some point during the questioning he asked Menna to voluntarily submit to a hand swab examination to test for gunpowder residue. McCann informed Menna that the test was noninvasive and would only take a few minutes. Menna advised McCann that she would decline to submit to the test until she spoke to her attorney. McCann testified that Menna then unsuccessfully attempted to contact her attorney. Deputy McCann testified that he did not expressly indicate to Menna whether the test was mandatory or permissive, nor did he inform her that her refusal to take the test could be used against her in court. However, McCann agreed that his manner of questioning would have suggested the test was voluntary.
Later, Detective Richard Lallement arrived at the hospital and was informed by McCann of Menna's refusal to take the test. Lallement testified that he also asked Menna to submit to the gunshot residue test. Lallement stated that Menna responded by stating that she first wanted to talk to her attorney. Lallement could not recall ever telling Menna that her refusal could be used against her in court.
Menna was later charged with the murder of her husband. Before trial, the trial court granted Menna's motion in limine to preclude the State from referring to or presenting evidence of her refusal to submit to a gunpowder residue test on the day her husband was shot. The trial court set out its rationale in a written order:
On the evidentiary question, the Defense cites to Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986) and State v. Esperti, 220 So. 2d 416 (Fla. 2d DCA 1969). The Defense asserts that a "defendant's behavior is circumstantial evidence probative of his consciousness of his guilt, and ultimately guilt itself, only when it can be said that the behavior is `susceptible of no prima facie explanation except consciousness of guilt.'" Herring v. State 501 So. 2d at 20, citing State v. Esperti, 220 So. 2d at 418. The Third District Court of Appeal pointed out that the defendant had refused to submit to a gunshot residue test which he was required by law to take. However, the defendant did not know that. He was not appraised of any adverse consequence which might result from his refusal to take the test. The court noted that it "being quite natural for a person to proceed to safe harbor, it cannot be said that the defendant's decision to do so is circumstantial evidence probative of his consciousness of his guilt." Id. at 21.
This Court is not persuaded that State v. Taylor, 648 So. 2d 701 (Fla. 1995) overrules Herring v. State or State v. Esperti in any respect. In the Taylor case the Florida Supreme Court noted that Taylor had ample incentive to take the f
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