IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC Lower Tribunal Case No. 2D MARK E. COOK, Petitioner, v. STATE OF FLORIDA, Respondent. ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT PETITIONER=S JURISDICTIONAL BRIEF BENEDICT P. KUEHNE Florida Bar No SUSAN DMITROVSKY Florida Bar No SALE & KUEHNE, P.A. 100 S.E. 2 nd STREET, SUITE 3550 MIAMI, FLORIDA Tel.: Fax: ben.kuehne@sk-lawyers.com Counsel for Petitioner Mark E. Cook

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS...1 STATEMENT OF THE ISSUES...3 SUMMARY OF THE ARGUMENT...3 ARGUMENT THE DISTRICT COURT OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH OTHER APPELLATE DECISIONS ON THE SAME QUESTION OF LAW.5 A. Admissibility of Featured Williams Rule Evidence...5 B. Impact of Administrative Fact Finding....7 CONCLUSION...8 CERTIFICATE OF TYPE SIZE AND STYLE...8 CERTIFICATE OF SERVICE...8 -i-

3 TABLE OF AUTHORITIES CASES PAGE Billie v. State, 863 So. 2d 323 (Fla. 3 rd DCA 2003)...6 Burr v. State, 576 So. 2d 278 (Fla. 1991)...7 Cook v. State, 921 So. 2d 631 (Fla. 2 nd DCA 2005)...2 Heuring v. State, 513 So. 2d 122 (Fla. 1987)...6 Kimbrell v. State, 764 So. 2d 893 (Fla. 4 th DCA 2000)...7 McLean v. State, 854 So. 2d 796 (Fla. 2 nd DCA 2003)...5 McLean v. State, 913 So. 2d 597 (Fla. 2005)...5 Perez v. State, 801 So. 2d 276 (Fla. 4 th DCA 2001)...7 Reyes v. State, 253 So. 2d 907 (Fla. 1 st DCA 1971)...6 Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4 th DCA 1983)...8 State v. Perkins, 349 So. 2d 161 (Fla. 1977)...7 -ii-

4 Sutherland v. State, 849 So. 2d 1107 (Fla. 4 th DCA 2003)...6 OTHER AUTHORITIES Florida Constitution, Article V, Section 3(b)(3)...5 Florida Rules of Appellate Procedure, Rule 9.030(a)(2)(A)(iv)...5 Florida Rules of Appellate Procedure, Rule 9.210(a)(2)...8 Florida Statutes, Section (2)(b)...5 -iii-

5 STATEMENT OF THE CASE AND FACTS This discretionary review proceeding arises from an appellate challenge to the capital sexual battery convictions of Mark E. Cook, a respected former teacher (since 1975) and principal (since 1979) at Garden Elementary School in Venice (Sarasota County), Florida. In February 2002, while still the school principal, Cook was arrested on charges of engaging in sexual activity with students, conduct allegedly occurring between eighteen and twenty-four years earlier (from March 1978 to June 1984). Cook vehemently denied the charges, just as he did in 1984 when he was categorically cleared of nearly identical accusations by one of his same accusers in state administrative license revocation proceedings. No criminal charges were brought in Eighteen years after the administrative allegations were dismissed, Cook confronted the same allegations from three former male students, one of whom was the very same complainant in the administrative trial. Because the information alleged the victims were under the age of eleven years, the prosecution of these remote offenses was not barred by the statute of limitations. Even though the charges had been severed because the counts involved different victims and separate events, the testimony of the multiple accusers B including a fourth alleged victim who was not part of any of the counts B was -1-

6 admitted as Williams Rule proof of other crimes, becoming a feature of the trial. Buttressed by the introduction of sexual misconduct for which he was not on trial, Cook was convicted of capital sexual battery involving one of his accusers, and thereafter pled no contest to the remaining charge pursuant to a stipulation by which Cook reserved the right to withdraw his plea if his convictions for the two counts were Areversed and remanded for a new trial.@ On appeal, the Second District affirmed the convictions and sentences. Cook v. State, 921 So.2d 631 (Fla. 2d DCA 2005) (attached as Addendum A). The appellate court affirmed the sufficiency of the evidence, rejected the challenge the invasive Williams Rule evidence, determined that the prior administrative licensing revocation proceeding did not bar the criminal prosecution, 1 and concluded that Anone of the issues raised by Cook require reversal.@ Id. at 632. The appellate court=s written opinion focused primarily on the introduction of the extensive Williams Rule evidence, including the impact of the preclusive effect of the determination in Cook=s favor on the merits in the prior 1 The appellate panel identified the case as involving Aan issue of first impression in Florida concerning the collateral estoppel effect in criminal proceedings of prior determinations made in formal administrative proceedings.@ Id. at

7 administrative proceeding concerning the allegations on which the similar fact evidence was based. STATEMENT OF THE ISSUES Does the district court=s decision expressly and directly conflict with other appellate decisions on a number of questions of law concerning (1) the extensive use of Williams Rule evidence in a child sexual battery prosecution brought two decades after the allegations first surfaced, and (2) the preclusive effect of a prior administrative determination in the accused=s favor based on the identical allegations as the Williams Rule evidence? SUMMARY OF THE ARGUMENT The decision of the Second District expressly and directly conflicts with other appellate decisions on the same questions of law. These questions are vitally important in the frequent context of child sexual abuse investigations and prosecutions. Child sexual abuse is notoriously reprehensible and uncompromisingly inconsistent with accepted notions of respectable conduct in an orderly society. When the accused offender is in a position of authority B an elementary school teacher or principal B the desire to impose societal sanctions -3-

8 becomes a powerful force. Yet, when the accused is actually innocent, but has been deprived of any semblance of a timely prosecution by the passage of as much as twenty years since the purported misdeeds occurred, courts must be especially vigilant to insure that a conviction does not result from an understandable but impermissible, community vengeance against the perceived miscreant. Add to this societal trauma the reality that when the very same accusations were timely made and presented to a state administrative disciplinary tribunal, the accused prevailed with a demonstrably clear finding that the misconduct did not happen. The Second District=s approval of Williams Rule conduct that had been severed from the case for which the accused was on trial is a prime instance of a weakening of the framework of Williams Rule admissibility in a case in which the uncharged conduct is entirely dissimilar but overwhelmingly prejudicial. The district court=s announcement of a rule favoring inclusion is a meaningful and material departure from precedent. Furthermore, allowing Williams Rule evidence that had not been substantiated in a timely administrative licensure revocation proceeding fails the test of conclusiveness applicable to the admission of uncharged conduct. The preclusive effect of an administrative resolution in the defendant=s favor must -4-

9 weigh heavily in the Williams Rule analysis involving conduct that purportedly occurred two decades earlier. It is proper and timely for this court to examine the important questions of law that disturb our societal fabric and depart from the wisdom and guidance of the appellate courts on fundamental issues of fair play in criminal cases. The consequences to the justice system and individual liberty protections from the appellate ruling are severe. Not only has the appellate court broadened the reach of the criminal law, but it now subjects the citizenry to prosecution by reason of long dormant accusations that, when timely presented, were definitively rejected. ARGUMENT THE DISTRICT COURT OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH OTHER APPELLATE DECISIONS ON THE SAME QUESTION OF LAW. The Second District=s decision creates express and direct conflict with other appellate decisions, warranting review and resolution pursuant to the authority of Article V, Section 3(b)(3) of the Florida Constitution, and Rule 9.030(a)(2)(A)(iv) of the Florida Rules of Appellate Procedure. A. Admissibility of Featured Williams Rule Evidence. 2 2 Pending before this court is a certified question in McLean v. State, 854 So.2d 796 (Fla. 2 nd DCA 2003), that is identical to the Williams Rule issue -5-

10 raised in this discretionary review proceeding: ADoes Section (2)(b), Florida Statutes (2001) [Williams Rule] violate due process when applied in a case in which identity is not an issue?@ McLean v. State, 913 So.2d 597 (Fla. 2005) (review granted, oral argument held January 11, 2006). -6-

11 The appellate decision defined and applied an incorrect and weakened standard for admission of uncharged misconduct evidence. At the core of the appellate decision is an approval of the use of Williams Rule evidence admitted principally for the purpose of corroborating accusations for which the defendant was on trial. In this case, identity of the perpetrator was not at issue. Instead, in a deliberate effort to buttress questionable allegations of sexual misconduct occurring nearly twenty years earlier, the prosecution presented evidence of other sexual misconduct involving other accusers, even though the allegations were distinctly different from the case on trial, but were significantly prejudicial. The panel=s decision departed from a long and consistent line of judicial precedent concerning the use of dissimilar Williams Rule evidence to corroborate witness credibility through a showing of defendant propensity. In Heuring v. State, 513 So.2d 122 (Fla. 1987), this court explained that both the charged and collateral offenses involving family contexts must be strikingly similar and share unique characteristics or a combination of characteristics setting them apart from other offenses, resulting in the inadmissibility of prior molestations of five children that were not sufficiently similar to the charged sexual battery. Similarly, in Billie v. State, 863 So.2d 323, (Fla. 3 rd DCA 2003), that court recognized that the use of collateral crimes that had a predominant purpose of showing bad -7-

12 character is inadmissible. Then, even if similar, the collateral crimes cannot become a feature of the trial. Sutherland v. State, 849 So.2d 1107, 1108 (Fla. 4 th DCA 2003); Reyes v. State, 253 So.2d 907 (Fla. 1 st DCA 1971) (rebuttal evidence of unrelated crimes caused defendant=s character and criminal propensity to become a focus and feature of trial). Nor can the uncharged conduct be used to corroborate the victim=s accusations. Kimbrell v. State, 764 So.2d 893 (Fla. 4 th DCA 2000). The Second District=s decision disregarded this precedent in favor of a broad brush of admissibility that does significant injury to the rule of law in capital sexual battery cases. Discretionary review and resolution by this court is needed. B. Impact of Administrative Fact Finding. The appellate court=s decision approving the use of Williams Rule evidence that had been conclusively rejected on the merits in a timely state administrative licensure revocation proceeding is also in direct and irreconcilable conflict with other decisions. The rule approved by the appellate court is fundamentally at odds with State v. Perkins, 349 So.2d 161, 163 (Fla. 1977), holding that it is unfair to admit evidence of crimes for which the defendant has been acquitted at a subsequent trial. In Burr v. State, 576 So.2d 278 (Fla. 1991), -8-

13 this court acknowledged that the Williams Rule use of acquitted conduct violates due process and double jeopardy. See Perez v. State, 801 So.2d 276 (Fla. 4 th DCA 2001) (unconstitutional and violative of due process to resurrect a prior defense against a crime for which defendant is not on trial). By approving the use as Williams Rule evidence of conduct that was squarely rejected by an administrative tribunal on the merits, the appellate decision squarely contradicts Slomowitz v. Walker, 429 So.2d 797 (Fla. 4 th DCA 1983), holding that proof of clear and convincing evidence B the standard for Williams Rule admissibility B requires that the evidence be credible, witnesses must recall facts distinctly, and testimony must be precise and explicit. If the collateral facts were not conclusively established at an administrative trial, then most certainly they do not survive the clear and convincing scrutiny required for Williams Rule admissibility. This direct and express conflict warrants this court=s review. CONCLUSION For the reasons set out in this jurisdictional brief, this court should grant discretionary review. CERTIFICATE OF TYPE SIZE AND STYLE -9-

14 This brief complies with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. It is printed in Times New Roman 14-point proportional font. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered by mail this 24 th day of April 2006, to: John M. Klawikofsky Assistant Attorney General Florida Attorney General=s Office Concourse Center # East Frontage Rd., Suite 200 Tampa, FL Telephone: Fax: Respectfully submitted, SALE & KUEHNE, P.A. Bank of America Tower, Suite S.E. 2 nd St. Miami, FL Telephone: Fax: ben.kuehne@sk-lawyers.com By: BENEDICT P. KUEHNE Florida Bar No SUSAN DMITROVSKY Florida Bar No

15 ADDENDUM A