BY THE COURT
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
Under the Kansas statutory scheme, the crime of aggravated
burglary requires the presence of a living human being in the
location of the burglary.
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
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.
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.
defendant does not have an absolute constitutional right to
make case-specific mitigation inquiries during voir dire.
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.
from Shawnee District Court; Nancy E. Parrish, judge.
D. Schirer, of Kansas Appellate Defender Office, argued the
cause and was on the brief for appellant.
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.
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.
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.
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.
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.
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
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
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 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.
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
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.
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.
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.
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.
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.
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.
presents this court with two sets of issues: asserted errors
related to trying the guilt phase and asserted errors related
to the sentencing phase.
of Evidence of Other Online Postings by O.S.B.
initially asserts that the district court committed
reversible error when it excluded evidence of the
victim's other computer dating contacts.
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
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
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
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.
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).
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
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?"
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