PAUL LOUIS THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Louis Thomas appealed his robbery conviction, arguing that he had the right to silently display his torso to the jury without subjecting himself to cross-examination to rebut a victim's testimony that the robber had no marks, tattoos, or chest hair. The Florida appellate court affirmed his conviction, holding that even if such a physical display would not be testimonial, it would still require some qualifying predicate or testimony to establish its relevance.
The court affirmed Thomas's conviction, holding that even assuming a silent physical display would not be testimonial evidence, such evidence cannot be admitted at trial without some qualifying predicate or testimony to explain it and establish its relevance. The trial judge did not err in denying the motion where there was no representation regarding the purpose of the proposed display.
[1] A defendant's motion to display physical evidence to the jury must be accompanied by a proffer of its purpose to preserve the denial of the motion for appellate review.
[2] A physical exhibition by a defendant, such as displaying a torso, is not considered testimonial evidence for the purposes of the privilege against self-incrimination.
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Establishes that non-testimonial status alone does not make physical evidence admissible without proper predicate
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Join FLexlaw to unlock all legal intelligenceThomas was tried for robbery. A robbery victim testified that she observed no marks, tattoos, or chest hair on the shirtless robber. Defense counsel m…
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COBB, Judge.
The defendant, Paul Louis Thomas, was tried for robbery. At trial defense counsel moved for the court to allow Thomas to display his upper body to the jury without subjecting himself to cross-examination. One of the robbery victims previously had testified that she observed no marks, tattoos, or chest hair on the shirtless robber. The motion was denied and the defendant was convicted.
On appeal it is contended that denial of the motion for the defendant to silently exhibit his torso to the jury was reversible error. The argument is that such a physical exhibition, had it been required by the state, would not be considered testimonial and, therefore, would not violate the privilege against self-incrimination. See: Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Therefore, argues the appellant, the converse of that proposition is available to a defendant at trial: he may present non-testimonial “physical” evidence without losing his right against self-incrimination.
We must reject appellant’s argument for two reasons. First, the record fails to reveal that the motion was accompanied by any representation or proffer by the defense regarding the ostensible purpose of the proposed display. The trial judge should have been apprised of the basis for the motion in order to preserve his denial of that motion as an issue for appellate review. Castor v. State, 365 So. 2d 701 (Fla.1978); Sotola v. State, 436 So. 2d 1001 (Fla. 5th DCA 1983); Llanos v. State, 401 So. 2d 848 (Fla. 5th DCA 1981); Hufham v. State, 400 So. 2d 133 (Fla. 5th DCA 1981).
Even had the denial of the motion been properly preserved for appellate review, there is another problem with the appellant’s contention. We agree that a physical display such as that suggested here would not be “testimonial.” See, e.g., United States ex rel. Mitchell v. Pinto, 438 F. 2d 814 (3d Cir.1971), cert. denied, 402 U.S. 961, 91 S.Ct. 1622, 29 L.Ed.2d 124 (1971). But see, Machin v. State, 213 So. 2d 499 (Fla. 3d DCA), cert. denied, 221 So. 2d 747 (Fla.1968). But that fact does not, ipso facto, render such evidence admissible at trial in the absence of any qualifying predicate.
It would be difficult to fault a trial judge for denying a formal introduction of physical evidence with absolutely no testimony from any source to explain it or establish its relevance. Would it be proper to receive such evidence, absent any possible cross-examination, and leave to the jury’s uninformed speculation any and all questions concerning the consistency of the defendant’s physical appearance between the time of trial and the time of the crime, the purpose of the demonstration, and the possible explanations for any conflicts between testimony and appearance? Given these ambivalences, we could not determine the trial judge’s denial of the motion to be harmful error, if error at all.
AFFIRMED.
FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.
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MacIas v. State, 515 So. 2d 206 (Fla. 1987)…78 Colo, at 348, 497 P. 2d at 1022. If, on the other hand, the defendant performs the demonstration, she may feel compelled to explain the performance in contemplation of the jury’s inferences from it. As the Fifth District noted in Thomas v. State, 439 So. 2d 245, 246 (Fla. 5th DCA 1983), requiring an accused to perform such a demonstration in front of a jury “leave[s] to the jury’s uninformed speculation any and all questions concerning the consistency of the defendant’s physical appearance between the time…
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Wells v. State, 468 So. 2d 1087 (Fla. 3d DCA 1985)…). Furthermore, we note that Wells was permitted to sit at counsel table with his arms exposed and that he failed to establish whether his arms bore tatoos at the time of the robbery and were therefore relevant to his defense. See Thomas v. State, 439 So. 2d 245 (Fla. 5th DCA 1983). Affirmed.…
Authorities Cited (13 total)
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Gilbert v. California, 388 U.S. 263 (U.S. 1967)
- Schmerber v. California, 384 U.S. 757 (U.S. 1966)
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Hufham v. State, 400 So. 2d 133 (Fla. 5th DCA 1981)
- MacHin v. State, 213 So. 2d 499 (Fla. 3d DCA 1968)
- Pinto v. Mitchell, 402 U.S. 961 (U.S. 1971)
- Lopez v. United States, 402 U.S. 961 (U.S. 1971)
- Llanos v. State, 401 So. 2d 848 (Fla. 5th DCA 1981)
- Sotola v. State, 436 So. 2d 1001 (Fla. 5th DCA 1983)