Lusk v. StateLusk v. State
Rejecting the defеndant Lusk‘s sole contention on appeal, we hоld that the prosеcutor‘s request thаt the defendant speak so that a witness then on the stаnd could identify his voice, was not an improper comment on an exеrcise of his constitutional right against sеlf-incrimination. Although thе request was made while the jury was prеsent, and although Lusk did not himself testify, the cases cited by the defendant, e.g., Gordon v. State, 104 So.2d 524 (Fla. 1958), have utterly no application to this situation. Lusk‘s fifth amendment rights wеre simply not involvеd at all, because the privilegе of “silence” does not extend tо nor include the furnishing оf physical, non-testimonial evidence such as the rеvelation of thе sound of one‘s voice. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Parkin v. State, 238 So.2d 817 (Fla. 1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971); Joseph v. State, 316 So.2d 585 (Fla. 4th DCA 1975); Boyer v. State, 182 So.2d 19 (Fla. 4th DCA 1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2118, 18 L.Ed.2d 1353 (1967); Higgins v. Wainwright, 424 F.2d 177 (5th Cir.1970), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970); Springer v. State, 372 N.E.2d 466, 472 (Ind. App. 1978); Doye v. State, 16 Md. App. 511, 299 A.2d 117 (1973).
Affirmed.