Cook v. State
| Decision Date | 06 April 1989 |
| Docket Number | No. 68044,68044 |
| Citation | 542 So.2d 964,14 Fla. L. Weekly 187 |
| Parties | 14 Fla. L. Weekly 187 David COOK, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. |
| Court | Florida Supreme Court |
Geoffrey C. Fleck of Friend & Fleck, Sp. Asst. Public Defender, South Miami, for appellant/cross-appellee.
Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., Miami, for appellee/cross-appellant.
David Cook appeals his convictions of first-degree murder and his sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
On August 15, 1984, Rolando and Onelia Betancourt, who worked as the midnight cleaning crew at a Burger King in South Miami, were found dead, both of single gunshot wounds to the chest. Following an anonymous tip, police brought Cook in for questioning and obtained a statement. According to this statement, Cook and two companions, Derek Harrison and Melvin Nairn, went to the Burger King to commit a robbery. They waited behind a dumpster in the back until Mr. Betancourt came out the back door and emptied the garbage. Cook then picked up Harrison's .38 caliber revolver, which was lying on the ground, followed Mr. Betancourt to the door, and pushed him inside. The door slammed shut behind them, preventing entry by Harrison and Nairn. Cook told the police that when he demanded money from the safe, Mr. Betancourt responded that he did not speak English and could not open the safe. When Cook continued to demand money, Mr. Betancourt hit him in the arm with a long metal rod and Cook shot him. Cook said he was on his way out when Mrs. Betancourt started screaming and grabbed him around his knees. He then shot her, ran out the back door, and fled with Harrison and Nairn. Cook told the police that he thought he had shot both of the victims in the arm. The physical evidence, as well as the trial testimony of Harrison and Nairn, * were consistent with Cook's version of the shootings.
The jury found Cook guilty of two counts of first-degree murder, two counts of attempted robbery, burglary, and unlawful possession of a firearm while engaged in a criminal offense.
Following the penalty phase of the trial, the jury recommended death for both murders. The trial court sentenced Cook to life imprisonment for the murder of Mr. Betancourt. However, the trial court imposed the death penalty for the murder of Mrs. Betancourt, finding applicable four aggravating factors and one mitigating factor.
Cook raises five issues on appeal: (1) whether the trial court erred in failing to excuse for cause two prospective jurors who stated they had difficulty understanding English; (2) whether the trial court erred in finding the aggravating circumstance of heinous, atrocious, and cruel; (3) whether the trial court erred in finding the aggravating circumstance of murder committed to avoid arrest; (4) whether the trial court erred in failing to find the two mental and emotional statutory mitigating circumstances; (5) whether the trial court's instructions during the sentencing phase, directing the jury to adhere to a "single ballot," discouraged juror deliberation and improperly compelled a premature recommendation of death. The state raises one issue on cross-appeal: whether the trial court improperly found the mitigating circumstance of no significant history of prior criminal activity.
As his first issue, Cook contends the trial judge erred when he failed to excuse for cause two prospective jurors who had expressed their inability to fully comprehend the English language. During the jury selection process, one of the prospective jurors, Mr. Sergio, volunteered that he did not think he would understand the case because of the language:
JUROR SERGIO: Your Honor, I don't think I understand this case one hundred percent because of the language. I understand quite--
This assertion was followed by a colloquy with the court. Another prospective juror, Mr. Boan, then stated that he understood only fifty percent of what he heard in English:
JUROR BOAN: I have the same thing. I don't understand but fifty percent. I hear what you say, but it like you explain me because I don't know. What is doubt?
The court then questioned Mr. Boan. After further questions by counsel, Cook moved the court to excuse both Sergio and Boan for cause because of the language problem. The trial judge refused, stating that "the legal standard is whether in my judgment upon the conversations and colloquy that took place, if they have a substantial and complete understanding of English." Cook then used two of his peremptory challenges to exclude Sergio and Boan, exhausting his challenges. He requested two additional challenges but was granted only one. As a result, he was forced to accept a juror whom he otherwise would have challenged.
Cook argues that both Sergio and Boan should have been excluded on the ground that they lacked sufficient proficiency in the English language to render the fair and impartial jury service required by the sixth amendment. He contends that because the court's error forced him to exhaust his peremptory challenges, he is entitled to a new trial under Hill v. State, 477 So.2d 553 (Fla.1985).
The state argues that the trial court's denial of appellant's challenges for cause was not an abuse of discretion. The state observes that both Sergio and Boan "responded intelligently to numerous questions, and on several occasions they indicated that they understood what was being said."
For complete understanding of this issue a lengthy recitation of the voir dire is helpful. The trial judge initially questioned Sergio as follows:
Defense counsel subsequently questioned Mr. Sergio:
MR. CARTER: Mr. Sergio, I'm not picking on you, sir, because I have an accent myself. I don't know what kind, but I have an accent anyway.
You indicated you have a slight problem with the English language; am I correct?
The court questioned Mr. Boan as follows:
The following colloquy transpired between defense counsel and Mr. Boan:
MR. CARTER: ... Mr. Boan?
You did not indicate you have any problem with the language, did you?
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