Filing # 118002406 E-Filed 12/10/2020 02:17:16 PM

IN THE CIRCUIT COURT OF THE

EIGHTH JUDICIAL CIRCUIT, IN AND
FOR ALACHUA COUNTY, FLORIDA.

IN RE: The Marriage of:

JOHANNA MACMASTER,
Petitioner/Former Wife.
and CASE NO: 01-2012-DR-4780
DIVISION: DR-1
SEAN MACMASTER,
Respondent/Former Husband.
______________________________________/

ORDER GRANTING FORMER HUSBAND’S MOTION TO STRIKE FORMER WIFE’S

MOTION TO PERMIT INTRODUCTION OF CHILD HEARSAY STATEMENTS INTO
EVIDENCE AND TO PERMIT MINOR CHILD TO TESTIFY

THIS CAUSE having come on to be heard on November 5th, 2020, upon the Former

Husband’s Motion to Strike Former Wife’s Motion to Permit Introduction of Child Hearsay

Statements into Evidence and to Permit Minor Child to Testify and the Court having heard

testimony of the parties, their witnesses and argument of Counsel for the Former Wife and the

Former Husband and the Court being otherwise fully advised finds as follows:

1. On September 8th, 2020, the Former Wife filed Former Wife’s Motion to

Permit Introduction of Child Hearsay Statements into Evidence and to Permit Minor Child to

Testify. The Former Wife filed her Amended Notice of Intent to Offer Child Hearsay Statements

into Evidence and Motion to Permit Minor Child to Testify on November 4 th, 2020. Both of these

pleadings rely in part upon Florida Statutes 90.803 (23)(a)2.b. which provides under certain

circumstances a child’s hearsay statement may be considered if the child … “is unavailable as a

witness, provided that there is other corroborative evidence of the abuse or offense.” In both of

the Former Wife’s initial Motion to Permit Introduction of Child Hearsay Statements into

Evidence and to Permit Minor Child to Testify filed September 8th, 2020, and her Amended
Notice of Intent to Offer Child Hearsay Statements into Evidence and Motion to Permit Minor

Child to Testify, the Former Wife represented to the Court that there was DNA evidence found at

the Former Husband’s mother’s ( Barbara Orr) home that could be used as corroborative

evidence under Florida Statute 90.803(23)(a)2.b.

2. This Court heard testimony from the following Lab workers:

Jessica Drager, Forensic Scientist-Biology Unit, Michigan State Police

Morgan Risa Rea, Forensic Scientist-Biology Unit, Michigan State Police.
Ashley Mottar, Forensic Scientist, III, DNA Section, Texas DPS Crime Laboratory
Melinda Jackson, Waterford, Michigan.

In the Former Wife’s Motion to Permit Introduction of Child Hearsay Statements into

Evidence and to Permit Minor Child to Testify filed September 8 th, 2020, the Former Wife,

through Counsel, represented to the Court that the investigators discovered six separate stains on

the carpet of the child’s bedroom and basement living area which tested positive for semen. See

pgs. 9-10 of the Former Wife’s Motion. The Former Wife provided details as to where the

semen was allegedly found throughout the Orr home. See paragraphs 28(a)-(f).

3. The Court finds based on their testimony that the lab workers found no semen in the

Orr home. The Court further finds that to make a representation that semen was present where

lab workers explicitly testified before this Court that semen was not found was reckless. This

misrepresentation is especially egregious where Former Wife’s counsel has previously informed

the Court of his professional experience as a former prosecutor, in excess of ten years, previous

experience prosecuting sex cases and previous knowledge and experience reading and

interpreting DNA lab results. The Court finds that this misrepresentation of facts is even more

reckless because Former Wife’s counsel knew or should have known the difference. This

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evidence was all analyzed in Michigan almost a year and a half before the Former Wife’s Motion

was ever filed. Former Wife’s Counsel has had adequate time to question the lab workers prior to

filing the Motions.

4 . Less than 24 hours before the hearing on the Former Husband’s Motion to Strike, the

Former Wife filed an Amended Notice of Intent to Offer Child Hearsay Statements into

Evidence and Motion to Permit Minor Child to Testify (filed November 4th, 2020). See paragraph

28. The Former Wife through her co-counsel states:

(28). In April 2019, Michigan State Police forensic analysts conducted further analysis of
carpet cuttings and swabs from Larry Orr’s residence that had stains containing possible
presence of seminal fluid pursuant to three different confirmatory tests as described above and
that were collected during the execution of the search warrant. (Based on the three different
confirmatory tests and the statements of the investigators, for efficiency purposes the stains that
contained the possible presence of seminal fluid will hereinafter be referred to as “seminal fluid
stains”) Further analysis of the stains revealed the following: …. (Paragraphs a.-f.)(emphasis
added).

Paragraphs 28(a)-(f) set out allegations that seminal fluid was found at all the locations

previously listed in the Former Wife’s Motion to Permit Introduction of Child Hearsay in

Evidence and Motion to Permit Child to Testify. The Court finds that this statement is not

accurate either. According to the laboratory analyst’s testimony there were no confirmatory tests

at all. And again, Former Wife’s counsel, who was a prosecutor and prosecuted sex cases, should

have known that these tests were presumptive tests and not confirmatory tests. Furthermore, the

Former Wife’s Amended Notice of Intent to Offer Child Hearsay Statements was filed more than

two weeks after the DNA lab analysts testified in this case and after each DNA analysts testified

before this Court that there are no confirmatory tests for seminal fluid, only presumptive tests.

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Order Grantng Former Husband’s Motion to Strike
5. The Former Wife’s initial Motion to Permit Introduction of Child Hearsay Statements

into Evidence and to Permit Minor Child to Testify (filed September 8 th, 2020) alleged that there

was semen found in the Orr residence. The Former Wife’s Amended Notice of Intent to Offer

Child Hearsay Statements into Evidence and Motion to Permit Minor Child to Testify (filed

November 4th, 2020) alleged that there were confirmatory tests performed. The Court finds this

highly misleading.

THEREFORE, IT IS ORDERED AND ADJUDGED THAT:

A. The Former Husband’s Motion to Strike is hereby granted; The Court, pursuant to

Rule 12.150 of the Florida Family Law Rules of Civil Procedure finds both pleadings to be Sham

Pleadings. The Court hereby strikes the portions of both pleadings describing alleged DNA

evidence from Former Wife’s Motion to Permit Introduction of Child Hearsay Statements into

Evidence and Permit Minor Child to Testify of September 8th, 2020, and Amended Notice of

Intent to Offer Child Hearsay Statements into Evidence and Motion to Permit Minor Child to

Testify of November 4th, 2020.

B. The DNA evidence shall not be used as corroborative evidence in this case based

upon the testimony of the lab workers involved in the above investigation and will not be

considered by this Court.

DONE AND ORDERED in Alachua County, Florida, on Thursday, December 10, 2020.

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