Stanek-Cousins v. State

912 So. 2d 43, 2005 WL 2086210
District Court of Appeal of Florida·Decided August 31, 2005·No. 4D05-1129·Published·Cited by 2 cases

Opinion

912 So.2d 43 (2005)

Catherine STANEK-COUSINS, Appellant,
v.
STATE of Florida, Appellee.

No. 4D05-1129.

District Court of Appeal of Florida, Fourth District.

August 31, 2005.
Rehearing Denied October 17, 2005.

*44 Michael Morris of Morris & Morris, P.A., West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, Belle B. Schumann, Assistant Attorney General, Daytona Beach, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant, Catherine Stanek-Cousins ("Cousins"), has timely appealed a conviction for manslaughter and sentence to fifteen years for the shooting death of her husband, Sean Cousins ("Sean"). This appeal was transferred to this court from the fifth district based upon its determination that venue had been transferred to the fifteenth circuit. Stanek-Cousins v. State, 896 So.2d 865 (Fla. 5th DCA 2005). For the reasons explained herein, we affirm the conviction and sentence, and reverse the restitution order as to the amount only.

On November 21, 2002, Cousins and her co-defendant Timothy Koile ("Koile") were indicted in the Ninth Judicial Circuit in and for Osceola County, Florida, for the first degree murder of her husband, Sean. The indictment alleged that the murder occurred between May 6 and May 12, 2001, and occurred in Palm Beach, Martin, St. Lucie, Indian River, Brevard and Osceola counties. Cousins was held in jail in Osceola County while her ninth circuit public defender investigated the case for one year. The State filed its notice of intent to seek the death penalty on March 21, 2003. On March 24, 2003, six weeks before the trial date, Cousins sought to change venue from Osceola County to Palm Beach County based on the allegation in the indictment that the exact location of the offense was unknown and may have taken place anywhere from Palm Beach to Osceola counties. On April 8, 2003, the trial court issued an order transferring venue to the Fifteenth Circuit, in and for Palm Beach County. As the fifth district recently held, "Cousins elected to be tried in Palm Beach County, and the trial court granted the motion. Thus, venue was transferred, and she was tried and convicted in Palm Beach County, which is in the Fifteenth Judicial Circuit." Stanek-Cousins, 896 So.2d at 866.

The public defender representing Cousins moved to withdraw on April 3, 2003. The motion stated that Cousins did not waive her right to speedy trial and that speedy trial was set to expire on May 20, 2003. The motion also alleged that, over objection, the trial court directed the Osceola County Public Defender's office to represent Cousins at trial in West Palm Beach. The motion to withdraw stated that only Robert Wesley, the elected public defender, met the minimum standards for attorneys in capital cases and it would be an undue hardship to force him to go to West Palm Beach for a four-week trial. The trial court denied the motion, finding that Cousins refused to waive her speedy trial right; appointing another lawyer to represent Cousins would not give the new lawyer sufficient time to prepare to defend Cousins against the instant charge and still meet the speedy trial deadline. In the order, the trial court stated that it repeatedly explained the ramifications of counsel's dilemma to Cousins, but that Cousins insisted that she would not waive speedy trial. The Court concluded that the public defender who had been representing Cousins since arraignment was in *45 the best position to represent her in the upcoming trial.

The trial began on May 19, 2003 in Palm Beach County. Cousins and co-defendant Koile were tried simultaneously. The jury found her guilty of manslaughter and she was sentenced to fifteen years in prison and ordered to pay restitution. During the course of the trial, Koile pled guilty to the crime of second-degree murder.[1] The following evidence was adduced at trial:

Cousins and Sean were not happily married and Cousins was involved in a sexual relationship with her neighbor, Koile. Sean had previously obtained a life insurance policy in the amount of $500,000, naming Cousins as the primary beneficiary. On March 6, 2001, Sean and Cousins increased the policy to $1,000,000. Cousins signed the check activating the million dollar policy.
Koile testified that Cousins repeatedly told him that she wished Sean was dead. Koile suggested that he elicit his friend, Dan Bakovic, to help kill Sean. A meeting took place amongst the three of them, and Bakovic agreed to kill Sean for half of the insurance proceeds. Koile claimed that Cousins gave Bakovic $1,500 cash to purchase an untraceable weapon. Various emails and telephone records corroborate Koile's testimony. Bakovic was supposed to kill Sean at 9 p.m. in a movie theater parking lot on Sunday, May 6, 2001 when Cousins sent him outside to get her sweater, but Bakovic did not show up.
The following day, Monday, May 7, 2001, Koile received a page and phone call from Cousins in the evening demanding that he come to her house. When he arrived at Cousins' garage, he saw Sean lying on the garage floor, bloody, after having already been shot in the stomach. Sean cried and begged Cousins not to kill him. Koile claimed that Cousins handed him the gun and told him to kill Sean. He refused and Cousins then squatted down and shot him in the head. Bakovic showed up later that night and assisted Cousins and Koile with cleaning up the blood.
Prior to disposing of the body, Cousins used Sean's cell phone to call her own cell phone. Phone records confirm that Cousins never left her home while the calls were made. Koile and Bakovic drove Sean's body to Osceola County, where they dumped it in a creek. Phone records also showed that Koile and Cousins communicated many times the morning of Tuesday, May 8, 2001. The cell tower records showed that Koile was moving from Palm Beach County, through Martin, Indian River, Brevard and into Osceola County and back. Sean's body was found in an Osceola County creek.

The jury returned a guilty verdict to the lesser count of manslaughter. On September 16, 2003, the State filed its Notice of Intent to Request Restitution. Sentencing was held on September 19, 2003 at the Palm Beach County Courthouse. Cousins was sentenced to fifteen years in prison. Restitution was ordered, with jurisdiction reserved as to the amount. Cousins appealed the conviction and sentence on September 19, 2003. While the appeal was pending, the trial court held the restitution hearing on October 27, 2003 and rendered the written order on December 19, 2003, ordering Cousins and Koile to pay $17,696.33 to Patrick Cousins, Sean's father, $1,500.00 to Roseanne Cousins, Sean's mother, and $2,042,126.00 to the Estate of Sean Cousins. Cousins raises *46 several issues on appeal, which we address below.

First, we affirm the judge's rulings involving the venue transfer to the fifteenth circuit, as Cousins has failed to demonstrate that the trial court abused its discretion or that any alleged procedural error was harmful. The standard of review for an order on a motion to transfer venue is abuse of discretion. See D.M. v. J.D.M. ex rel C.F., 814 So.2d 1112 (Fla. 4th DCA 2002).

Cousins argues that the trial court erred when it allowed the clerks, state attorneys, and public defenders[2]

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