Cook v. State

Citation792 So.2d 1197
Decision Date28 June 2001
Docket NumberNo. SC94134.,SC94134.
PartiesDavid COOK, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Bret B. Strand, Assistant CCRC, and Rachel L. Day, Assistant CCRC, Office of the Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Fariba N. Komeily and Lisa Rodriguez, Assistant Attorneys General, Miami, FL, for Appellee.

PER CURIAM.

David Cook appeals the trial court's summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We find the trial court erred in denying relief without an evidentiary hearing and remand for an evidentiary hearing on Cook's claim that counsel was ineffective at the penalty phase for failing to investigate family history and possible mental health mitigators.

FACTUAL AND PROCEDURAL HISTORY

This Court has previously summarized the facts in this case as follows:

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 [sic] consistent with Cook's version of the shootings.

Cook v. State, 542 So.2d 964, 966 (Fla.1989)(footnote omitted).

In October of 1985, a 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 imposed life imprisonment for the murder of Mr. Betancourt and death for the murder of Mrs. Betancourt. The trial judge found four aggravating factors: previous conviction of a capital felony; murder committed for the purpose of avoiding lawful arrest or effecting escape from custody; murder committed during the commission of a burglary and two attempted robberies; and the murder was especially heinous, atrocious, and cruel (HAC). The only mitigator found to exist was Cook's lack of a history of prior criminal activity.

Cook raised five issues on direct appeal from his original judgments and sentences:

(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 [murder committed under the influence of extreme mental or emotional disturbance and impaired capacity to appreciate the criminality of his conduct or conform conduct to the law]; (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.

Cook v. State, 542 So.2d at 966. This Court affirmed the judgments but reversed the death sentence after striking two of the aggravators, HAC and commission to avoid arrest. The case was remanded for further consideration by the trial judge.

On remand, the trial court reimposed the death sentence ore tenus at a hearing held on February 5, 1990. The written order imposing the new sentence was entered on March 30, 1990, during a hearing convened for the purpose of distributing copies of the resentencing order to the State and Cook's attorney. On direct appeal from resentencing, this Court found that (1) the trial court, in imposing the death sentence, did not consider the inapplicable aggravating factors of the victim's murder being heinous, atrocious, or cruel, or committed to eliminate a witness; (2) the defendant's death sentence was not disproportionate to the sentences of his accomplices; (3) the defendant's sentence was not disproportionate when compared to other defendants' sentences for similar murders; and (4) beyond a reasonable doubt the death sentence would have been imposed even if the sentencing order had contained findings that each of the nonstatutory mitigating circumstances had been proven. Cook v. State, 581 So.2d 141, 142-44 (Fla.1991).

On October 7, 1991, the United States Supreme Court denied Cook's petition for writ of certiorari. See Cook v. Florida, 502 U.S. 890, 112 S.Ct. 252, 116 L.Ed.2d 206 (1991). Cook thereafter filed a motion to vacate judgment of conviction and sentence on January 8, 1993, with a special request for leave to amend. He supplemented the motion on October 6, 1993, and filed a motion to compel production of public records from various agencies in Dade County on April 7, 1996.

The State filed its response to Cook's postconviction motion on May 9, 1996, addressing the substantive claims in Cook's motion, as well as the public records issue. In the response, the State argued it had already provided Cook with a copy of its own records in addition to those of the other Dade County agencies connected with it. The trial judge, in accordance with his oral pronouncement at the Huff1 hearing, entered a written order summarily denying Cook's motion to vacate on December 4, 1996. After his motion for rehearing was denied, Cook filed this appeal on July 31, 1998.

ISSUES ON APPEAL

Cook raises the following twenty issues in this appeal: (1) whether he was entitled to a Huff hearing; (2) whether he was entitled to an evidentiary hearing on the following subissues: (a) the failure of the court to attach portions of the record to the order; (b) ineffective assistance of counsel at pretrial and the guilt phase; (c) ineffective assistance of counsel at the penalty phase; (d) ineffective assistance of counsel at resentencing; (e) ineffective assistance based on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (f) violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (g) the defendant's absence from critical stages of the proceedings; (3) whether the trial court showed a lack of impartiality (a) during trial and sentencing; (b) by failing to prepare a written order at resentencing; and (c) during postconviction proceedings; (4) whether Cook was improperly denied access to public records; (5) whether he was improperly denied access to trial counsel's files; (6) whether the prosecutor made improper comments that rendered the sentence unfair; (7) whether the appellate record was incomplete, rendering the appeal inadequate; (8) whether trial counsel rendered ineffective assistance by failing to raise the following claims: (a) that the jury was improperly instructed to reach a majority verdict; (b) that the burden of proof was shifted to the defense; (c) that the jury instructions violated Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (d) that aggravating circumstances were improperly doubled; (e) that certain aggravating circumstances were found to exist automatically; and (f) that the statutory definitions of the aggravating circumstance were unconstitutionally vague; (9) whether the judge considered nonstatutory aggravating circumstances; (10) whether the trial court failed to find and weigh mitigating circumstances established on the record; (11) whether the pecuniary gain aggravating circumstance was improperly applied; (12) whether the defendant was improperly absent from critical stages of the proceedings; (13) whether the rule prohibiting juror interviews is unconstitutional; (14) whether juror misconduct occurred; (15) whether gruesome photographs were improperly admitted into evidence; (16) whether Cook should be considered "innocent" of the death penalty; (17) whether the cumulative effect of numerous errors entitles him to relief; (18) whether Cook's right to remain silent was violated; (19) whether Florida's death penalty is unconstitutional; and (20) whether this Court failed to apply the proper harmless error analysis during Cook's direct appeal.

Claims 3a-b, 6, 8b and e, 11,12, 14, 15, 18, 20 are all procedurally barred since they could have been raised on direct appeal of either Cook's original sentence or his resentencing (issue 20). See Ragsdale v. State, 720 So.2d 203 (Fla.1998)

; Johnson v. State, 593 So.2d 206 (Fla.1992). Claims 16, innocence of the death penalty, and 17, cumulative error, are also procedurally barred since the errors complained of are based on the original trial record and, as such, could have also been raised on direct appeal. See Lambrix v. State, 559 So.2d 1137 (Fla.1990).

Claims 8d, 9, and 10 are also procedurally barred since they...

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