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State v. Robinson

Supreme Court of Kansas

May 26, 2017

State of Kansas, Appellee,
v.
Troy A. Robinson, Appellant.

         SYLLABUS BY THE COURT

         1. In order to be admissible, evidence must be relevant. Relevant evidence is evidence that is probative and material. In order to be material, evidence must tend to establish a fact that is at issue and is significant under the substantive law of the case.

         2. Under the Kansas statutory scheme, the crime of aggravated burglary requires the presence of a living human being in the location of the burglary.

         3. The purpose of voir dire is to enable the parties to select competent jurors who are without bias, prejudice, or partiality. The nature and scope of the voir dire examination is generally entrusted to the sound discretion of the trial court.

         4. In determining whether the trial court has taken sufficient measures to assure that the accused is tried by an impartial jury free from outside influences, appellate courts independently evaluate the circumstances.

         5. The punishment in death penalty cases has a unique nature and is qualitatively different from sentences of imprisonment, however long. Rules derived from capital cases therefore do not necessarily carry over into other felony trials.

         6. A defendant does not have an absolute constitutional right to make case-specific mitigation inquiries during voir dire.

         7. K.S.A. 2013 Supp. 21-6620(c)(1) allows the State to wait until after it obtains a conviction before it declares its intention to seek a mandatory minimum sentence of 50 years.

         Appeal from Shawnee District Court; Nancy E. Parrish, judge. Affirmed.

          Samuel D. Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Jodi Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

          OPINION

          Rosen, J.

         Troy Robinson appeals from his conviction by a jury of premeditated first-degree murder, aggravated burglary, and misdemeanor theft. He also appeals from the jury's finding of factors supporting imposition of a hard 50 sentence. Finding no error, we affirm.

         Facts

         A sad sequence of events led to this appeal. In December 2012, Robinson was living with a friend, Adonis Johnson, in a trailer park in Topeka. Early in the afternoon of December 19, Robinson dropped in on Susan Pallaschke, his friend and neighbor. He used Pallaschke's computer, and after a short time, announced that he had met a lady on line and he was going to meet her. He was happy and excited and said that they were going to have sex. He left at 3:40 p.m. on foot.

         Johnson was visiting with Pallaschke when Robinson returned around 6 that evening. Johnson looked out the window and saw Robinson get out of a car and carry bags into the mobile home that they shared. Robinson then came over to Pallaschke's home. He was agitated and told Pallaschke that the date "went real bad, real fast." When Johnson asked about the bags, Robinson said he stole some things. Then he said that he "killed them and stole all [their] stuff." He explained that another man had walked in and started a fight and the woman got in the way, and he ended up killing them both.

         Robinson borrowed a phone from Pallaschke's roommate and called his cousin, Michael Souders, asking for a ride. Souders' wife picked Robinson up at his trailer home and took him to their house, where they had dinner together. Then, around 7:30 that evening, Robinson used their phone to call his mother, Cheryl Smith.

         He was crying, and Smith asked him what was wrong. He replied, "I did something wrong." She responded, "What, did you kill somebody or hurt somebody?" He told her that he couldn't tell her on the phone, but he would text her. A few minutes later, at 8:08 p.m., he sent her a text reading, "What you said is right, but don't say what it is. I'll come see you tomorrow. Love you always and forever."

         Five minutes later he called her back. He wanted her to pick him up so he could tell her what had happened, and she told him, "If you hurt somebody or killed somebody, I have to call the cops to let them know." He then left the Souders' house on foot, leaving a bag containing a computer on the Souders' table. Smith's daughter later drove over and picked him up at the trailer where he was living.

         When he arrived at his mother's home, he cried and hugged her and said it was an accident. He said he had stabbed somebody in the neck. He told her the name of the victim and explained that he had thrown scissors that stuck in her neck. A few minutes later, around 9:30 p.m., his mother called the police.

         When police arrived at the victim's residence, they found her along the back wall of the apartment, lying face down on the floor between the bed and the wall. She was naked, and there was a large amount of blood in the area of her neck. A pair of kitchen shears was under her head.

         Responding to Smith's call, police took Robinson into custody that evening. They conducted a lengthy interview with him, which was recorded and later played back for the jury. During the course of the interview, Robinson revised his description of the day's events several times, but his story stayed generally consistent. Using Pallaschke's computer, he made contact with the victim, O.S.B., on a website called Plenty of Fish. The two, who had never previously met or been in contact, chatted for about 10-15 minutes and agreed to a sexual encounter. He then walked over to her apartment. Within 3 minutes of his arrival, the two went to her bedroom, where they commenced having sexual intercourse. According to Robinson, he had five orgasms in a variety of sexual positions.

         He initially told detectives that after having sex, he dozed off and woke up on the floor with scissors in his hand. He didn't remember where he obtained the scissors and didn't remember stabbing her. He saw blood spurting from O.S.B.'s neck and immediately left the house in a panic.

         He later explained that he became angry when O.S.B. was talking to him during sex and he grabbed the scissors out of a dresser drawer next to the bed. He only remembered stabbing her once. He reported that they had been having "rough" sex and she had scratched him on his neck and the two rolled off of the bed onto the floor, where she struck her head. He took her jewelry, phone, DVD player, some DVDs, and her computer and placed the items in three trash bags. He started walking back to his trailer, and a passerby gave him a ride the rest of the way.

         Robinson subsequently amended his story yet again. This time, he explained that he was lying on top of O.S.B. engaging in anal intercourse when he apparently hurt her, causing her to say "ow" and roll over and scratch his neck. Both of them fell on the floor, with her landing first and hitting her head. He "snapped" when she scratched him, leading him to pound her head face-first onto the floor. He then ran into the kitchen, looked around, and grabbed a pair of kitchen shears. O.S.B. was still breathing, and he stabbed her once or twice with the scissors.

         A coroner's report described extensive blunt-force injuries around O.S.B.'s face. There were pattern injuries on her neck consistent with nearby electric cords. There were also a total of nine puncture wounds consistent with open scissors and closed scissors; these wounds were around her neck and went into her spine and jugular vein. In the coroner's opinion, death was caused by a combination of injuries-punctures, suffocation, and blunt force.

         On December 20, 2012, the State filed a complaint/information charging Robinson with premeditated first-degree murder. The State subsequently amended the complaint/information to include charges of aggravated burglary and misdemeanor theft.

         A trial was conducted from June 24 to 27, 2014. A jury found Robinson guilty of all three counts: first-degree murder, aggravated burglary, and theft. Robinson subsequently filed an objection to sentencing under K.S.A. 2013 Supp. 21-6620, arguing that the oral notice given by the State was not reasonable notice of intent as required by the statute. He also filed a motion to discharge the trial jury, to stay sentencing proceedings, and to impanel a new jury that would be subject to voir dire questioning regarding imposition of a hard 50 sentence, as well as a motion to reopen voir dire and a motion objecting to the sentencing proceedings as violating ex post facto laws. These motions were denied. The jury then, in sentencing phase deliberations, reached a verdict endorsing a sentence of life imprisonment with parole eligibility after 50 years. The court sentenced Robinson to a hard 50 life sentence for murder, a consecutive sentence of 34 months for aggravated burglary, and a consecutive sentence of 12 months for theft. Robinson filed a timely notice of appeal.

         Analysis

         Robinson presents this court with two sets of issues: asserted errors related to trying the guilt phase and asserted errors related to the sentencing phase.

         Exclusion of Evidence of Other Online Postings by O.S.B.

         Robinson initially asserts that the district court committed reversible error when it excluded evidence of the victim's other computer dating contacts.

         During the trial, the State asked for a late certification of a witness-a forensic computer analyst, who would testify about what he could recover from the computers that were used for the contact between O.S.B. and Robinson. The district court granted the late endorsement. Robinson then sought to introduce evidence from that analysis that may have shown a willingness by O.S.B. to engage in sex on first dates. The district court granted the State's objection to admitting that evidence, holding that the evidence was irrelevant and intrusive on the victim's privacy. Robinson now argues that the ruling prejudicially impaired his ability to present a defense.

         Appellate courts apply a multistep analysis of decisions to admit or exclude evidence. Under this multistep analysis, the first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010). Review of whether a trial court erroneously excluded evidence that is integral to the defendant's theory of his or her defense is de novo. State v. White, 279 Kan. 326, 331-32, 109 P.3d 1199 (2005).

         Material evidence tends to establish a fact that is at issue and is significant under the substantive law of the case. Probative evidence requires only a logical connection between the asserted fact and the inference it is intended to establish. State v. Hilt, 299 Kan. 176, 189, 322 P.3d 367 (2014).

          The State argued that Robinson committed premeditated murder. Robinson admitted that he killed O.S.B. but contended that he killed her in the heat of passion. The district court denied his request to introduce evidence suggesting that she let internet contacts know that she was amenable to sexual relations on first dates. Robinson contends that this evidence was relevant in that it undermined the State's theory of premeditation.

         A criminal defendant has the right, under both the Kansas and United States Constitutions, to present the theory of his or her defense, and the exclusion of evidence that is an integral part of that theory violates the defendant's fundamental right to a fair trial. White, 279 Kan. 326, Syl. ¶ 3. In order to constitute error, the excluded evidence supporting the defense theory must be relevant, admissible, and noncumulative. State v. King, 293 Kan. 1057, 1063, 274 P.3d 599 (2012). A defendant's right to present evidence in support of a defense is subject to certain restraints: the evidence must be relevant, and evidentiary rules governing admission and exclusion of evidence are applied. State v. Roeder, 300 Kan. 901, 927, 336 P.3d 831 (2014); see State v. Jones, 287 Kan. 547, 555, 198 P.3d 756 (2008).

         The district court did not err in excluding the proffered evidence because it was not material. The State never attempted to prove that Robinson went to O.S.B.'s home for the purpose of forcing her to engage in sex with him. The State conceded that the sexual encounter may have been consensual and argued that the premeditation to kill took place after the sexual encounter began and was proven by the various means that Robinson used to exert violence against O.S.B., including looking for scissors with which to stab her.

         During closing argument, the State made no effort to argue that Robinson was not invited into the victim's home:

"He may have entered [her home] consensually but at the point he's doing this [rifling through her personal effects], that consent is withdrawn. He's remaining in that apartment without her consent, that's what aggravated burglary is. One can infer that if you are killing or have killed someone that that consent to stay in your apartment is gone, right?"

         In its rebuttal, the State reiterated that it was not attempting to show that the initial encounter between Robinson and the victim was nonconsensual:

"[I]f what the defendant said in summation is what happened, that we're having consensual sex-and as a side note, no one accused him of rape or sodomy, we have no evidence of that, we don't know that. No one has accused ...

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