State v. Robbins
| Citation | 297 Neb. 503,900 N.W.2d 745 |
| Decision Date | 18 August 2017 |
| Docket Number | No. S-16-155,S-16-155 |
| Parties | STATE of Nebraska, appellee, v. Randall R. ROBBINS, appellant. |
| Court | Supreme Court of Nebraska |
Robert W. Kortus, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman, Lincoln, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
In 2003, Randall R. Robbins was sentenced to a period of 40 to 60 years' incarceration for second degree murder for the strangulation death of his girlfriend, Brittany Eurek.
On September 4, 2012, Robbins filed a motion in the district court requesting (1) postconviction relief pursuant to Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016), (2) a new trial based on newly discovered evidence pursuant to Neb. Rev. Stat. § 29-2101(5) (Reissue 2016), and (3) a new trial based on DNA testing pursuant to § 29-2101(6). The district court denied Robbins' request for postconviction relief as time barred and denied Robbins' request for a new trial under § 29-2101(5), because it was filed more than 3 years after Robbins' conviction. The district court granted Robbins' request for DNA testing. Robbins received pharmacogenetic testing, via a buccal swab, which indicated that he was an "intermediate metabolizer" of prescription drugs.
Based on these results, Robbins asserted that while the dosage of the Zoloft
medication he was taking at the time of the murder was the recommended amount for the average metabolizer, the dosage was too high for his body to properly metabolize. Robbins claims that this resulted in his experiencing a side effect, which caused him to be violent and homicidal.
Robbins therefore argued that he was entitled to relief under the DNA Testing Act (Act), Neb. Rev. Stat. § 29-4116 et seq. (Reissue 2008), because new scientific evidence could contribute to and establish defenses at trial of an inability to formulate intent, intoxication, or insanity. Following an evidentiary hearing, the district court denied Robbins' motion for new trial or new sentencing hearing based on the pharmacogenetic testing results. Robbins appeals. We hold that the district court committed plain error in granting Robbins' motion for DNA testing. We reverse, and remand with directions to dismiss.
On March 26, 2002, Dr. Richard Wurtz, a family practitioner, gave Robbins a standard trial dosage of Zoloft
, 50 mg per day (14 pills), for Robbins' anxiety and told Robbins to follow up with him in 2 weeks. The trial dosage included product information. Wurtz testified that he did not give Robbins a prescription for Zoloft and that 50 mg is a standard starting dosage.
There is no evidence that Robbins followed up with Wurtz or that Robbins ever filled a Zoloft
prescription written by Wurtz. However, Robbins testified that at the time of the homicide, he was routinely taking one 50-mg tablet of Zoloft each day. The record is not clear as to how Robbins received the Zoloft without a prescription. Robbins testified that he did not take Zoloft the day of the homicide because he did not take Zoloft when he drank alcohol, and he was planning to drink alcohol that day.
On June 1, 2002, Robbins, a 17-year-old just shy of his 18th birthday, was watching a movie at his residence with Eurek, with whom he had a 6-month old child. Shortly thereafter, they had sexual intercourse in Robbins' bedroom. During intercourse, Eurek told Robbins that she wanted to have another child. Robbins said he did not want to have another child with her. Eurek became angry with Robbins and said that she did not want to have sex with him. They stopped having sex, and Eurek began accusing Robbins of cheating on her.
Robbins "grabbed her by her throat and told her to stop," and Eurek punched Robbins in the face. Robbins came from behind Eurek, again grabbed her by the throat, and began to strangle her with his hands. Eurek then passed out on the floor. Robbins retrieved a belt from his dresser and put it around Eurek's neck, "pulled it up," and "just sat there." About 5 minutes later, he "pulled [Eurek] over and tied her to the rail that goes downstairs." Eurek "was like turning purple," and Robbins stated he tied her to the stair rail "to make sure that she was dead." Robbins later stated that the belt he used was the belt he had used a couple of weeks earlier to attempt suicide.
Robbins then drove Eurek's vehicle to his mother's residence and told his mother that he killed Eurek. Robbins' mother arrived at Robbins' residence, found Eurek's body, and called the 911 emergency dispatch service.
Robbins admitted to the deputies at the scene that he killed Eurek. Following his arrest, Robbins recounted the events in a statement to an investigator. During Robbins' confession to the investigator, he stated that the marks on his neck were scratches from when Eurek was "reaching back trying to make me stop." Robbins also expressed concern that he did not take Zoloft
that day. When asked by the investigator whether taking his Zoloft made him feel bad, he answered:
I don't feel right I can tell you that much since I've been taking it today I don't feel like I should. Usually I feel like I got ... I don't know I don't know if it's a problem or what I always have things on my mind causing things on my mind.
Following his arrest, Robbins continued to take Zoloft
while at the juvenile detention center. There was evidence that while at the juvenile detention center, Robbins' dose was doubled without any ill effects. Also while at the juvenile detention center, a psychiatrist hired by Robbins' trial counsel evaluated Robbins and concluded that Robbins was competent to stand trial and was not insane at the time of the homicide.
In a deposition taken July 21, 2015, Robbins testified that when he started taking Zoloft
, he felt like he had to be moving all the time, which "progressed into agitation." Robbins also testified that his agitation and aggression increased about 3 or 4 weeks after starting Zoloft. Robbins indicated that his mother called Wurtz about the changes in his behavior prior to the homicide. Wurtz testified that there was no record of a call from Robbins' mother.
Trial counsel was deposed. In the deposition, counsel testified contrary to Robbins' assertions regarding Zoloft
's causing agitation. Trial counsel indicated that Robbins described Zoloft as calming him down and wondered whether not taking Zoloft on the day of the homicide caused Robbins to be more agitated. In a July 2, 2002, transcribed statement to trial counsel, Robbins told him that Zoloft improved his mental state and that he "was never upset and never sad or down" but that when he did not take Zoloft, he was "more emotional" and would "get all upset."
Robbins also alleges two suicidal episodes. One episode occurred a couple of years before Robbins was placed on Zoloft
; the other occurred a couple of weeks prior to the homicide while Robbins was taking Zoloft. In addition to the alleged suicide attempts, there were two other episodes of physical aggression by Robbins, which the district court found occurred when he was not taking Zoloft.
Pharmacogenetic testing to determine the ability of a particular person to metabolize a medication was approved by the Food and Drug Administration for commercial use in December 2004. The test was administered to Robbins via a buccal swab, and the swab was sent to an accredited DNA parentage testing group. It is unclear from the record who administered the test. The district court used the terms "genetic testing," "DNA testing," and "pharmacogenetic testing" interchangeably in reference to the test given to Robbins pursuant to its order.
According to Dr. Daniel Hilleman, a pharmacist, there are four main categories of metabolizing Zoloft
: extensive metabolizer, intermediate metabolizer, poor metabolizer, and "ultra-rapid" metabolizer. According to the testing group's document explaining the categories, for an individual who tests as an intermediate metabolizer, "[t]his means that you have only one of two operating pathways, and will need a lower than normal dosage and need to carefully monitor medication."
Robbins' pharmacogenetic test
results showed that he was an intermediate metabolizer. The test results stated that this had a "[m]ajor" clinical impact and that a prescriber should "consider less than standard dosage to prevent adverse effects" in an intermediate metabolizer.
Hilleman testified that Zoloft
was one of the drugs affected by the enzyme measured in the test. Hilleman explained that the reduced ability to metabolize in an intermediate metabolizer meant that "the amount of drug in the body would be increased because the amount of drug that's being detoxified would be relatively less than someone that had full metabolic capacity." Hilleman also stated that according to the FDA-approved labeling, the side effects of Zoloft in major depressive disorders that occurred with rates greater than 10 percent included "dry mouth, somnolence, dizziness, diarrhea, nausea, [and] insomnia."
Hilleman testified that a "black box warning" is "an insert within the formal prescribing information that the Food and Drug Administration mandates be included when a significant risk with a particular drug exists" and that such warnings were not available to treating physicians, psychiatrists, or pharmacologists prior to 2004.
The black box warning for Zoloft
states in relevant part: ...
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