IN THE CIRCUIT COURT NINETEENTH JUDICIAL CIRCUIT ST. LUCIE COUNTY, FLORIDA CIRCUIT COURT CRIMINAL CASE NO CF MICHAEL A.

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1 IN THE CIRCUIT COURT NINETEENTH JUDICIAL CIRCUIT ST. LUCIE COUNTY, FLORIDA CIRCUIT COURT CRIMINAL CASE NO CF MICHAEL A. GUTHEREZ Defendant-Petitioner, v. STATE OF FLORIDA Respondent. DEFENDANT GUTHEREZ S MOTION FOR POST-CONVICTION RELIEF PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE WILLIAM MALLORY KENT THE LAW OFFICE OF WILLIAM MALLORY KENT Florida Bar No North Market Street Suite 300 Jacksonville, Florida (904) Telephone (904) Fax

2 Table of Contents Pages Table of Contents...2 Table of Citations...4 Course of Proceedings and Statement of Relevant Facts...11 Issues Presented...34 Closing of the Courtroom...34 Competency of Both Child Witnesses...34 Failure to Do Medical Examination and Rape Kit Examination of Alleged Rape Victim, Failure to Collect Physical Evidence at Scene of Alleged Crime (Sheets and Bed Covers), Failure to Collect Panties and Clothing from Alleged Rape Victim...35 Failure of Gutherez s Trial Counsel To Conduct Reasonable or Adequate Pretrial Investigation...36 Perjured Testimony - the Lori Lasnick Interview by Detective Schrader...36 No Pretrial Williams Rule Determination - No Pretrial Child Hearsay Determination..38 Failure to Call Witnesses in Defense...40 CPT Video Tape Went to Jury in Deliberations...40 The Conflict Between C.C. and E.R CPT Witness Allowed to Vouch For Truthfulness of Child...42 Defense Counsel s Opening Statement...43 When Did the Alleged Offense Take Place - Surprise in Mid-trial - No Bill of Particulars...43 Defective Information Charging Sex Battery

3 Invalidity of Lewd and Lascivious Charge...45 Tainted Jury Venire...45 Failure to Instruct on Presumption of Innocence During Preliminary Instructions to Jury...46 Failure to Produce Defense Medical/DNA Expert Witness...46 Denial of Death Benefits for a Capital Offense...47 Supporting Memorandum of Law...48 Conclusion...66 Oath of Petitioner...67 Certificate of Service...68 Appendix

4 Table of Citations Cases Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957)...49, 51 Alonso v. State, 821 So.2d 423 (Fla. 3 rd DCA 2002)...44 Alvarez v. State, So.2d, 27 Fla. L. Weekly D1743, 2002 WL (Fla. 4 th DCA 2002)...46 Anderson v. State, 822 So.2d 1261, (Fla. 2002)...49 Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)...47 Arizona v. Youngblood, 109 S.Ct. 333, 102 L.Ed.2d 281, 488 U.S. 51 (1989)...54 Batie v. State, 534 So.2d 604 (Fla. 1988)...58 Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966)...56 Buford v. State, 403 So.2d 943 (Fla. 1981)...6 City of Miami v. Post Newsweek Stations Florida, Inc., 27 Fla. Law Weekly D2179 (Fla. 3 rd DCA 2002)...57 Coates v. Byrd, 211 F.3d 1225 (11 th Cir. 2000)...27 D.R. v. State of Florida, 790 So.2d 1242 (Fla. 5 th DCA 2001)...57 Dames v. State, 807 So.2d 756 (Fla. 2 nd DCA 2002)...55 Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)...56 Davis v. State, 527 So.2d 962 (Fla. 5th DCA 1988)...58 Farrington v. State, 821 So.2d 470 (Fla. 4 th DCA 2002)...31, 50 Ford v. State, 825 So.2d 358 (Fla. 2002)...60 Fuller v. State, 540 So.2d 182 (Fla. 5th DCA 1989)...58 Fuller v. State, 669 So.2d 273 (Fla. 2d DCA), review denied, 675 So.2d 929 (Fla.1996)

5 Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)...49 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)...43 Gomez v. Beto, 462 F.2d 596 (5th Cir.1972)...52 Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.1982)...51 Hall v. State, 754 So.2d 70 (Fla. 4 th DCA 2000)...40 Hammond v. State, 660 So.2d 1152 (Fla. 2d DCA 1995)...54 Heuring v. State, 513 So.2d 122, 123 (Fla. 1987)...6 Hickey v. State, 763 So.2d 1213 (Fla. 1 st DCA. 2000)...61 Hill v. Lockhart, 474 U.S. ----, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)...33 Hobbs v. State, 820 So.2d 347 (Fla. 1 st DCA 2002)...44 House v. Balkcom, 725 F.2d 608, 618 (11th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984)...51 Huffman v. State, 837 So.2d 1147 (Fla. 2 nd DCA 2003)...53 Jassan v. State, 749 So.2d 511 (Fla. 2 nd DCA 1999)...55 Johnson v. United States, 520 U.S. 461, 469, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)...47 Jozens v. State, 649 So.2d 322 (Fla. 1 st DCA 1995)...58 Judd v. Haley, 250 F.3d 1308 (11 th Cir. 2001)...46, 47 Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986), review dismissed, 507 So.2d 588 (Fla.1987)...58 Levine v. United States, 362 U.S. 610, 627, n., 80 S.Ct. 1038, 1048, n., 4 L.Ed.2d 989 (1960)...45 Lloyd v. State, 524 So.2d 396 (Fla.1988)...54 Maxwell v. Wainwright, 490 So.2d 927 (Fla.1986)

6 McLin v. State, 827 So.2d 948 (Fla. 2002)...60 Michael Gutherez v. State of Florida, 809 So.2d 16 (Fla. 4 th DCA 2002)...27 Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 to 360 U.S. 264, 272, 79 S.Ct. 1173, 1179 (1959)...48 Nixon v. Singletary, 758 So.2d 618, 622 (Fla. 2000)...56 Palmer v. State, 838 So.2d 579 (Fla. 1 st DCA 2002)...58 Pritchett v. State, 566 So.2d 6, 7 (Fla. 2 nd DCA 1990)...44 Proffitt v. Wainwright, 685 F.2d 1227, 1247 (11th Cir.1982)...51 Rallo v. State, 726 So.2d 839 (Fla. 2 nd DCA 1999)...57 Roberts v. State, 816 So.2d 1175 (Fla. 2 nd DCA 2002)...44 Rose v. State, 675 So.2d 567 (Fla.1996)...42 Rutherford v. State, 727 So.2d 216 (Fla.1998); Rose v. State, 675 So.2d 567 (Fla.1996)...42 Seccia v. State, 689 So.2d 354 (Fla. 1 st DCA 1997)...54 Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968)...56 State v. Glosson, 462 So.2d 1082, 1085 (Fla.1985)...49 State v. Griffith, 561 So.2d 528 (Fla. 1990)...58 State v. Hogan, 451 So.2d 844 (Fla. 1984)...6 State v. Joubert, Case Number 3D , 2003 WL (Fla. 3 rd DCA May 7, 2003)...12 State v. Rivers, 837 So.2d 594 (Fla. 2 nd DCA 2003)...54 Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)...42 Terrero v. State, 839 So.2d 873 (Fla. 3 rd DCA 2003)...57 The Florida Bar v. Russell Leroy Akins, 719 So.2d 893 (Fla. 1998)

7 The Florida Bar v. Steven Ziskinder, 727 So.2d 914 (Fla. 1999)...12 Thornton v. State, 585 So.2d 1189 (Fla. 2 nd DCA 1991)...44 Tingle v. State, 536 So.2d 202 (Fla.1988)...58 Tompkins v. Moore, 193 F.3d 1327, 1339 (11 th Cir. 1999)...48 Townsend v. State, 635 So.2d. 949 (Fla. 1994)...58 Tullis v. State 716 So.2d 819 (Fla. 5 th DCA 1998)...55 United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)...48 United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir.1995)...48 United States v. Boone, 245 F.3d 352 (4 th Cir. 2001)...59 United States v. Cronic, 104 S.Ct. 2039, 466 U.S. at , 104 S.Ct (1984)...56 United States v. Hogan, 712 F.2d 757, (2d Cir.1983)...49 United States v. LaPage, 231 F.3d 488 (9 th Cir. 2000)...49 United States v. Washington, 243 F.3d 1299 (11 th Cir. 2001)...27 United States v. Watson, 496 F.2d 1125 (4 th Cir. 1973)...59 Wade v. State, 586 So.2d 1200 (Fla. 1st DCA 1991)...54 Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)...44, 45, 47 Ward v. State, 519 So.2d 1082 (Fla. 1st DCA 1988)...58 Washington v. Watkins, 655 F.2d 1346, 1357 (5th Cir. Unit A Sept.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982)...51 Weatherford v. State, 561 So.2d 629 (Fla. 1st DCA 1990)...58 Weidner v. Wainwright, 708 F.2d 614, 616 (11th Cir.1983)...51 Whitson v. State, 791 So.2d 544 (Fla. 2 nd DCA 2001)

8 Williams v. State, 447 So.2d 442 (Fla. 5 th DCA 1984)...53 Wise v. State, 833 So.2d 882 (Fla. 2 nd DCA 2003)...58 Young v. State, 645 So.2d 965 (Fla. 1994)...55 Z.P. v. State, 651 So.2d 213 (Fla. 2d DCA 1995)...54 Statutes Florida Statutes, (1)...55 Florida Statutes, (1)(h)...50 Florida Statutes, (2)...52 Florida Statutes, Florida Statutes, (2)(b)...53 Florida Statutes, (23)...60 Florida Statutes, Florida Statutes, Florida Statutes, Florida s Public Records Act, Chapter 119, Florida Statutes...63 Title 28, United States Code Rules Rule 1-3.2, Florida Rules of Professional Responsibility...63 Rule 3.140, Fla.R.Cr.P Rule 3.140(n), Fla.R.Cr.P Rule 3.220, Fla.R.Cr.P

9 Rule 3.270, Fla.R.Cr.P....37, 56 Rule 3.350, Fla.R.Cr.P Rule 3.800, Fla.R.Cr.P Rule 3.850, Fla.R.Cr.P Rule 3.850, Fla.R.Cr.P Rule 3.850(d), Fla.R.Cr.P

10 Other Authorities Article I, Section 16 of the Florida Constitution...58 Article I, Section 9, Florida Constitution...57 Due Process Clause of the Fifth Amendment to the United States Constitution...46 Due Process Clause of the Florida Constitution...60 Due Process Clause of the United States Constitution...12 Equal Protection Clause of the Fourteenth Amendment to the United States Constitution...67 Fifth Amendment to the United States Constitution...39 Florida Constitution, Article I, Section Sixth Amendment to the United States Constitution...57 Sixth Amendment to the United States Constitution...59 Standards For Criminal Justice 3-3.5, (2d ed.1980)...61 Internet Citations williamkent.com

11 IN THE CIRCUIT COURT NINETEENTH JUDICIAL CIRCUIT ST. LUCIE COUNTY, FLORIDA CIRCUIT COURT CRIMINAL CASE NO CF MICHAEL A. GUTHEREZ vs. STATE OF FLORIDA / DEFENDANT GUTHEREZ S MOTION FOR POST-CONVICTION RELIEF PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE COMES NOW, the Defendant, MICHAEL A. GUTHEREZ, by and through his undersigned counsel, pursuant to Rule 3.850, Florida Rules of Criminal Procedure, and hereby moves this Honorable Court for an order vacating the Defendant s judgment and sentence of mandatory life imprisonment, for the reasons set forth below. Pretrial. Course of Proceedings and Statement of Relevant Facts 1 Michael A. Gutherez (hereinafter sometimes referred to as Gutherez or the Defendant) was charged in a two count information on August 9, 1999 in the Circuit Court for the Nineteenth Judicial Circuit for St. Lucie County, Florida. Count one charged Gutherez with commission of sexual battery on a child under twelve by a perpetrator age eighteen or older in violation of Florida 1 Unless otherwise specified herein, all record references will be to the preexisting record on appeal from the initial direct appeal in Fourth District Court of Appeal of Florida Case Number 4D

12 Statutes, (2). R1-1. The information did not specify the act or acts by which Gutherez had allegedly committed sexual battery, it simply read: A. Ct. 1. SEXUAL BATTERY-ON A CHILD UNDER 12 BY PERPETRATOR 18 OR OLDER- June 01, 1999 through July 22, 1999, Michael A. Gutherez did unlawfully, being 18 years or older, commit sexual battery upon E.R., a person less than 12 years of age, in violation of Florida Statute (2); (F-CAP., (20) Florida Statutes, (2) is a capital felony, 2 and is expressly subject to the death penalty under Florida Statutes, Count two charged Gutherez with commission of a lewd, lascivious or indecent act, June 01, 1999 through July 22, 1999 in violation of Florida Statutes, Count two recited that E.R. was the victim and alleged the manner of committing the offense in the alternative, one of which was alleged that Gutherez did commit an act defined as sexual battery under (1)(h) upon such child. Count two was a second degree felony punishable by up to fifteen years imprisonment. Gutherez had been arrested on July 22, 1999, the day the accusation was first made to the police. R1-3. His initial arrest was for capital sexual battery only. R1-3. The arrest and booking 2 Florida Statutes, (2)(a). 3 (1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole. Florida Statutes, (1). The Florida Supreme Court has held that the death penalty for sexual battery is unconstitutional. Buford v. State, 403 So.2d 943 (Fla. 1981). As a result the Supreme Court has held that it need not be charged by indictment but may be charged by information. Heuring v. State, 513 So.2d 122, 123 (Fla. 1987). A twelve person jury is not required. State v. Hogan, 451 So.2d 844 (Fla. 1984). 12

13 report described the offense date as between 07/08/99 and 07/22/99." R1-3. In the narrative portion of the arrest report Detective Todd Schraeder 4 reported: On , officers from the Port St. Lucie Police Department responded to n address in the city of Port St. Lucie for a disturbance. 5 Upon Officers Ward and Santos arrival they were advised that one of the reasons for the disturbance was that (E.R., a 5 year old female) alleged that the suspect had touched her vagina and anus with his penis. Officer Santos brought the victim (E.R.) And a witness (C.C., age 9) to the police department. Another person (A.T. age 12) also came to the police department with her parents. The witness (C.C.) Was interviewed by Vanessa Moore of the Child Protection Team. (C.C.) originally said that she had made up the story about the suspect sexually abusing the victim. She later said that she had witnessed the suspect do the following: take her and the victim to the suspect s bedroom about 1-2 weeks ago. She said the suspect held her down and covered her head, so she couldn t see. She said that the suspect did something to the victim that made her cry.... R1-3, 4. The police had responded to a call to 911 by Lori (aka Laurie) Lasnick, the mother of E.R. The 911 operator dispatched the call to police as a domestic disturbance. When the police arrived they found Lasnick intoxicated to the point that Detective Schrader testified that if she had been driving she would have been DUI.. [Deposition of Detective Schrader, November 30, 1999, page 9.] Lasnick told Detective Schraeder that earlier that week her child, E.R. 6 had reported that Gutherez had sexually assaulted her. Lasnick explained that she had not reported the accusation at that time 4 I some places the name is spelled Schrader and in others Schraeder. Similarly the name of the mother of the alleged child victim is sometimes spelled Lori Lasnick and sometimes Laurie Lasnick. record Hillmoor Drive, Port St. Lucie, Florida. The apartment number is not in the 6 Florida Statutes, only makes the name of a child victim of a sex offense confidential if the state or victim makes application to the trial court or other court having jurisdiction and in that application makes a multifactored showing set forth in the statute. Neither the state nor the victim have followed the requirements of Nevertheless, out of an abundance of caution, this motion will use only initials to refer to the children in this matter. 13

14 because the child, E.R., had retracted the accusation. [Schrader Depo. 10] Detective Schrader was very clear in his testimony that Lasnick told him that E.R. had made the accusation earlier and that she then retracted it: Q Did Lori tell - - you interviewed Lori? A Yes. Q Did she appear to be credible to you? A She had been drinking. Q Okay. Just if you can in any way give us more insight into what you saw that led you to believe that. Would she have been DUI if she tried to operate a motor vehicle? A I believe so. Q Is it a close call in your mind or pretty clear? A Pretty clear. Q Okay. Did you ask her if she had been drinking; I mean, did that come up? A I m not sure if I did or didn t. I may have. Q All right, how did she find out about the allegations, about the, you know, alleged violation? A She had said that she was told days before. Q By whom, the child? A By the child. Q Okay. So now she s in your office and you re finding out, you re doing your investigation and she tells you what the child told her, and that she had been told days before? A Yeah, I think Officer Ward had told me that earlier, 7 because I had knowledge of that pretty early on even before I spoke to her. Q Is it two days, six days, any idea? A Everybody had said earlier that week. Q Earlier that week. Did you ask her why there was a delay in reporting? 7 Later in the Schrader deposition attorney Ziskinder states that he needs to depose Officer Ward, but he is told that Officer Ward had resigned and moved to West Virginia. Ziskidner never deposed Officer Ward. Had he done so he would have had another sworn statement backing up the fact that the accusation by E. R. had allegedly been first made earlier in the week prior to the arrest and that the child had retracted the allegation. Also, he would have had a witness to why the police were dispatched to the scene and what the 911 call was about. He would have also had a witness to the dispute that was the real subject of the call and disturbance. Instead, having not taken the deposition of the only objective witness to the police response to the scene, he was left with Lasnick s version of events that she recounted at trial with no way to impeach her. He also had no way to impeach Schrader when Schrader falsely claimed that the retraction testimony was a mistake. Nor did Ziskinder obtain a copy of the 911 call or record. 14

15 A She said the little girl had retracted what she said. Q All right. And then what caused her to go ahead and report it if the girl retracted what she said? A The police were called there for something not even related to this and at some point in time it came out. And I m not exactly sure who is the one that went there, there were three officers there, that told the officers about that. But that is not what they responded for, they responded for a dispute. Q As far as the way Lori s mind set was, she hears from her daughter that Mike does something to her. Sometime thereafter before law enforcement is involved, the daughter tells the mother I was just kidding or no, it didn t happen or some words to that effect, a retraction? A Basically. [Schrader Depo. 9-11] Detective Griffith called for a Child Protection Team ( CPT ) interviewer, and Vanessa Moore-Kohn.was sent to do the interview. She came to the police department for the interview in the afternoon of July 22, [Follow Up Police Report, Case Number , August 3, 1999 by Detective Schrader.] Moore-Kohn first interviewed C.C., the nine year old daughter of April Cardosi, the live-in girlfriend of Gutherez. 8 According to the Follow Up Report of August 3, 1999, at the apartment to which the police responded, C.C. had denied being touched. During the CPT interview C.C. continued to stoutly insist that the accusation was false. She said she had lied when she said Gutherez had touched her. She said she had made the allegations because she thought it would be a joke and would be funny. 9 Only after being confronted with a claim that there were other 8 April Cardosi and Michael Gutherez lived together as girlfriend and boyfriend. They shared an apartment with Cardosi s children C.C., age nine, D.C., age ***, and Cardosi s adult mentally disabled sister, Kerry. On or about June 1, 1999 Cardosi and Gutherez had invited Lori Lasnick, her boyfriend, David Flores, and her two children, A.T., age twelve, and E.R., age five, to stay with them, because they had nowhere to live. 9 There was a prior record of a similar allegation by C.C. against Gutherez in Martin County, Florida, which had been investigate by the Florida Department of Children and Family Services ( DCFS ) and determined to be unfounded. C.C. had also retracted that allegation. [See Follow Up Report of August 3, 1999 and DCFS reports on Case Number In this earlier false claim, C.C. had also claimed that her grandpa had f*cked her in the ass. This claim was also determined by DCFS to be unfounded. 15

16 witnesses who said it was true, and being confronted by another child, and also being confronted by the Detective, who told her he did not think she was telling the truth, did C.C. finally break down and agree to confirm what the CPT worker was insisting had happened. E. R. was then taken for an interview by a Child Protection Team interviewer, Vanessa Moore-Kohn.the afternoon of July 22, That interview was videotaped and that videotape was ultimately admitted into evidence as state s exhibit number one in the trial of this case. 10 In the state s notice of intention to use hearsay statement of child victim filed February 7, 2000, the state described the interview of E.R. According to the state, E.R. told CPT that Gutherez put his thing inside her hoochie and it was wet like when you go pee - like water and the wet stuff got on her... R1-35. E.R. claimed that Gutherez did the same thing to C.C. after he finished doing it to her. R1-35. E.R. said she had been wearing panties that he pulled down and afterward put back up on her. R3-329, 330. When she put on her panties on it covered up the wet parts. R She did not take a bath afterward, according to her, and Gutherez did not dispose of her panties. R Despite the fact that if the child were telling the truth, there would have still been semen that could have been collected from a medical examination of her anus and vagina, and likely from her 10 Additionally, that videotape was allowed to go back into the jury room. The trial judge is on the record advising the jury as follows, immediately prior to the jury retiring for deliberations: All right, as I said, when you go back to the jury room, these instructions will be going back with you. I m also going to send in the videotape. I m going to sned in the television, the VCR. I m going to ask the bailiff to set up the VCR so all you ll have to do is just push the button if you wish to view it. R

17 panties as well, the police made no effort to collect any such evidence. The child, E.R., was not taken for a medical exam and was not evaluated for the collection of physical evidence using a Johnson Rape Kit. Neither the state nor the defense took any measures to collect and preserve what would have been dispositive evidence. Gutherez s was arrested after E.R. was interviewed. Before he was arrested he was interrogated by the police, was cooperative, answered all their questions, but insistently denied committing the alleged offenses. R The following day, without ever taking E.R. for a medical examination by a doctor, E.R. was examined by a nurse practitioner, Marilyn Turner who worked for Florida Community Health Center. She conducted an examination of E.R. and prepared a two page written report. [See CPT Medical Report Form dated July 23, 1999 in state s discovery package in the Appendix hereto.] Gutherez s first appearance took place the, July 23, 1999, and he was appointed the public defender as his initial counsel on the capital sexual battery charge. R1-8. Gutherez was booked on an added charge of lewd, lascivious or indecent act on August 11, R1-13. He had another first appearance on August 12, 1999 on the added charge of lewd, lascivious or indecent act. R1-10,11. At that time he stated that he could afford to retain counsel Although the public defender was appointed to represent Gutherez on the capital charge on July 23, 1999, no one from that office ever met with or communicated with Gutherez prior to his retaining private counsel almost three weeks later. These were a crucial three weeks, because it was in this time that it would have been possible to collect evidence or seek a court order mandating the collection and preservation of evidence that would have exonerated Gutherez. Instead, no investigation whatsoever was done in this crucial window period when physical evidence could have still existed that would have exonerated Gutherez. This child, E.R. had come forward with an accusation repeated by her mother that just minutes or at most hours earlier she had been anally and vaginally raped by Gutherez who allegedly ejaculated both in her anus and vagina. In addition, she reported that he had first pulled her panties down to do the act, then pulled the panties back up over her still wet private parts. No one made any effort to do a 17

18 Gutherez s family retained private counsel for Gutherez, Steven Ziskinder, who filed his notice of appearance on August 12, R Ziskinder also filed on August 12 th, a notice of his election to participate in mutual discovery under Rule 3.220, Florida Rules of Criminal Procedure R1-16. Ziskinder did not serve either his notice of appearance or his discovery demand on the public defender and the public defender apparently was not aware that retained counsel had filed his appearance, because Assistant Public Defender Russell L. Akins filed a written plea of not guilty and demand for trial by jury and a separate notice of discovery and demand for Brady material on August 17, 1999, almost a week after Ziskinder s appearance. R1-17, R1-18. Notably these pleadings were filed by the public defender without ever conferring with the client, Gutherez. The public defender did not move to withdraw as counsel for Gutherez until October 5, 1999 and the court permitted the withdrawal by order entered October 7, R1-26, R1-28. Assistant Public Defender Russell Akins had been suspended from the Florida Bar by action of the Florida Supreme Court on October 29, 1983 in The Florida Bar v. Russell Leroy Akins, 719 So.2d 893 (Fla. 1998). There is nothing in the record to show when Akins s suspension terminated and when he was reinstated to practice law. 13 medical examination of the child to collect evidence using a standard rape kit. Nor did anyone make any effort to collect the child s clothing, including her panties, for scientific examination. 12 Attorney Ziskinder had been publicly reprimanded by the Florida Supreme Court on January 21, 1999 in The Florida Bar v. Steven Ziskinder, 727 So.2d 914 (Fla. 1999). Ziskinder did not advise Gutherez or Gutherez s parents of his public reprimand. Neither Gutherez nor his parents were aware of Ziskinder s record of ethical violations and had they been aware would not have retained him. 13 If a lawyer representing a criminal defendant is not authorized by the State Bar to practice law at the time of the representation, the defendant has been denied his Sixth Amendment right to representation by counsel, because a disbarred or suspended lawyer is a complete deprivation of counsel for Sixth Amendment purposes. See State v. Joubert, Case Number 3D , 2003 WL (Fla. 3 rd DCA May 7, 2003). According to a telephonic report from the Florida Bar, Akins was suspended for 45 days, but he was placed on disciplinary 18

19 Other than the public defender s boiler plate Brady demand, no defensive motions were filed for Gutherez. Ziskinder filed no motions. The state filed on February 7, 2000 a notice of intent to use hearsay of the child victim pursuant to Florida Statutes, (23), of the July 22, 1999 videotaped interview by a Child Protection Team interviewer, Vanessa Moore-Kohn. R1-34. The state also filed on February 7, 2000 a notice under Florida Statutes, (2)(b) of its intent to introduce Williams rule evidence relating to three other children, A.T., C.C. and D.C. Seven separate categories or items were listed. Item four stated: 4. On or between April 1, 1996 and June 1, 1999, in Indiana, and Martin County, Florida, the defendant did repeatedly commit sexual battery upon C.C., a child under 12 years old. Item six stated: On or between April 1, 1996 and June 1, 1999, in Indiana, and Martin County, Florida, the defendant did repeatedly commit lewd acts upon C.C., a child under 12 years. Ziskinder filed no pretrial motions in limine and took no action to obtain any pretrial ruling on either the hearsay notice or the Williams rule notice. Trial The case proceeded to trial on September 25, 2000 before a six person jury. The jury selection process proved to be almost as time consuming as the trial proper because of the marked hostility of the jury venire to the charges and defendant. Indeed, due to the extraordinary number probation until September While on probation, he was required to be supervised by a member of the Florida Bar who was in good standing. Clearly no one was supervising Akins or it would not have been possible for him to be appointed to represent a person charged with capital sexual battery and not confer with the client for three weeks - three crucial weeks during which any chance to save exculpatory physical evidence was irretrievably lost. 19

20 of challenges for cause, it was impossible to pick even a six person jury and one alternate from the venire without an extraordinary measure being insisted on by the trial judge. The venire was exhausted and there was still an alternate juror to be selected. The trial judge stated that he was not going to call a second panel up for a second set of voir dire, instead he insisted that one side or the other accept as an alternate a juror who had already been stricken. The state acceded to the judge s demand and accepted as an alternate a juror it had already stricken. The state presented the following witnesses in the following order at trial: 1. Lori Lasnick, mother of the alleged five year old victim, E.R.; 2. E.R., the alleged victim; 3. C.C., a ten year old Williams rule witness; 4. Detective Schrader; 5. Vanessa Moore-Kohn, the CPT interviewer of E.R.; and 6. Marilyn Turner, the nurse practitioner who examined E.R. after the fact. The state only introduced one piece of evidence, the video tape of the CPT interview of E.R. The Defense had listed one witness in discovery, Leona Gutherez, the mother of the Defendant. R1-46. She was never called as a witness, but Ziskinder did exclude her from the courtroom under the invocation of the rule for the exclusion of witnesses. Attorney Ziskinder failed to request a pretrial hearing or pretrial determination on the admissibility of any of the matters disclosed in the state s notices of intention to admit Williams rule or child hearsay evidence. Ziskinder had advised Gutherez that the state would not be permitted to introduce the Williams rule evidence. It was on the basis of this advice, that Gutherez elected to take the case to trial. Had Gutherez been properly advised that the state would be permitted to introduce 20

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