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State v. Menna7/13/2001
Petition for Certiorari Review of Order from the Circuit Court for Orange County, Maura T. Smith, Judge.
The state seeks certiorari review of an order of the trial court excluding evidence of the defendant's failure to submit to a gunshot residue test. The defendant was charged with the first-degree murder of her husband. The defendant filed a motion in limine to exclude evidence that the defendant refused to submit to a gunshot residue test. The trial court held an evidentiary hearing and subsequently granted the defendant's motion.
The trial court found the following facts: Two detectives from the Orange County Sheriff's Office met with the defendant at the hospital after the defendant's husband's death. The defendant was not in custody at this time. The detectives informed the defendant that they would like to perform a non-invasive swabbing of the defendant's hands to eliminate the possibility that the defendant had recently fired a gun.
The detectives informed the defendant that technicians would be there shortly to conduct the test. The detectives did not tell the defendant that her refusal to take the test could be used in court nor did they tell her that it would not be used in court. The detectives did not tell the defendant that she was required to take the test. The defendant attempted to contact her attorney but was unsuccessful. A detective testified that shortly after this conversation, the defendant refused to take the test, and visited the bathroom several times and came out drying her hands, apparently having washed them.
The trial court relied on Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986) in concluding that the defendant did not know that her refusal to take the test was anything but a "safe harbor" and she was never apprised of the adverse consequences which might result from her refusal to take the test. Therefore, her refusal did not reflect a consciousness of guilt. On this basis, the trial court suppressed the evidence.
The state contends the trial court departed from the essential requirements of the law in excluding the evidence. The state argues that Herring has in effect been overruled by the Florida Supreme Court in Occhicone v. State, 570 So. 2d 902 (Fla. 1990), cert. denied, 500 U.S. 938 (1991) and rejected by this court in State v. Burns, 661 So. 2d 842 (Fla. 5th DCA 1995), rev. dismissed, 676 So. 2d 1366 (Fla. 1996). The defendant contends that the rationale in Herring is sound and the Florida Supreme Court has subsequently utilized its rationale. See State v. Taylor, 648 So. 2d 701 (Fla. 1995).
In Herring, a defendant, shortly after his arrest on a charge of first-degree murder, was asked if he would submit to a "hand swab test for gunshot residue." The defendant was not told that he was required by law to take the test nor that his refusal to do so could be used against him. At trial, testimony of the defendant's refusal to "have his hands swabbed" was admitted over the defendant's objections. The Third District held that because the defendant was not told that his refusal to submit to the test would have adverse consequences to him he had no motivation to submit and his refusal was a "safe harbor." Id. at 21. The court reasoned that because a person's natural inclination is to proceed to a "safe harbor," his decision to do so cannot be considered circumstantial evidence probative of his consciousness of guilt. The court, in rejecting the state's argument that because the test was compulsory the defendant's refusal was admissible, reasoned that in order for the defendant's refusal to have any probative value as to the defendant's consciousness of guilt, the defendant must be aware of the compulsor
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