Robertson v. State

• Decision Date: 24 September 2009
• Docket Number: No. CR 09–159.,CR 09–159.
• Citation: 347 S.W.3d 460,2009 Ark. 430
• Parties: Diana Nichole ROBERTSON, Appellant,v.STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2009 Ark. 430

347 S.W.3d 460

Diana Nichole ROBERTSON, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 09–159.

Supreme Court of Arkansas.

Sept. 24, 2009.

Durrett & Coleman, by: Gerald A. Coleman, West Memphis, for appellant.Dustin McDaniel, Att'y Gen., by: LeaAnn J. Irvin, Ass't Att'y Gen., for appellee.ROBERT L. BROWN, Justice.

Appellant Diana Nichole Robertson appeals from her convictions for capital murder, aggravated robbery, and arson and her sentences to life imprisonment without parole, twenty-five years imprisonment, and ten years imprisonment, respectively. She asserts three points on appeal. We find no reversible error, and we affirm.

The facts are garnered from Robertson's statements to West Memphis detectives. Robertson and her boyfriend, Maurice Leflore, had a small-time prostitution operation in West Memphis. One of their customers was the victim, O.V. Johnson, who had a valuable gun collection. On November 19, 2007, Robertson and Leflore met B.M., a fifteen-year-old runaway, at a party. The next day, Leflore dropped off Robertson and B.M. at Johnson's house, where Robertson tried to make B.M. have sex with Johnson. When B.M. refused, Robertson had sex with Johnson instead. Later that night, both Robertson and Leflore had sex with B.M. in a motel room. The following day, Leflore again dropped Robertson and B.M. off at Johnson's house, and this time B.M. had sex with Johnson.

Over the next week, Robertson and Leflore developed a plan to kill Johnson and steal his collection of guns. On November 26, 2007, Robertson went to Johnson's house and left the front door open for Leflore. Leflore followed fifteen or twenty minutes later and shot Johnson in the neck, while Johnson was sitting on the couch. After shooting Johnson, Leflore and Robertson gathered up his guns and piled them next to the front door. The two then left the house and walked down the street to Leflore's car. They next drove to meet another man, G, after which Robertson, Leflore, and G, took G's car back to Johnson's house. There, they loaded the guns into G's car, drove into the woods, dumped the guns into a ditch, and covered the guns with leaves. After this, they returned to Johnson's house for a third time. At this point, Robertson went into the house, set Johnson's body on fire, and left.

The following day, B.M. called her mother, and the police came to pick her up. That same day, Leflore was arrested for the sexual assault of B.M. On December 3, 2007, Robertson went to the West Memphis Police Department to turn herself in on an arrest warrant for sexually assaulting B.M., after Leflore informed her that a warrant was also out for her arrest.

On December 3 and December 5, Robertson gave statements to West Memphis police detectives. She later moved to suppress the statements, and the motion was denied by the circuit judge. She was tried before a jury and convicted and sentenced as has already been stated in this opinion.

I. Duress Instruction

For her first point on appeal, Robertson asserts that the circuit judge erred in refusing to instruct the jury on the affirmative defense of duress with respect to the charge of capital murder. We conclude that this issue is not preserved for our review. Robertson did not proffer the desired duress instruction on murder into the record, and, as a result, we do not have it before us for review. This court has repeatedly stated that it is the appellant's duty to present to this court a record sufficient to show that the circuit judge erred below. See, e.g., Stevenson v. State, 375 Ark. 318, 290 S.W.3d 5 (2008). To preserve an objection to an instruction for appeal, the appellant must make a proffer of the proposed instruction to the judge. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). That proffered instruction must then be included in the record and abstracted to enable the appellate court to consider it. Id. An instruction that is not contained in the record is not preserved and will not be addressed on appeal. Id.

It is true that Robertson offered an instruction on duress pertaining to the arson charge under AMCI 606 and claimed that sufficient evidence had been presented at trial for the jury to consider whether she had acted under duress in committing the arson. The circuit judge gave this instruction. He ruled, however, that he would not give the instruction in connection with the murder charge because he found (1) that her evidence of duress pertained to conduct that occurred after the murder had taken place, (2) that she had failed to articulate a specific threat regarding the murder, and (3) that she had acted recklessly in putting herself in the situation leading up to the murder and robbery.

Regardless of the circuit judge's reasons for not giving the duress instruction in connection with the murder charge, Robertson failed to proffer that instruction into the record for our review. We affirm on this point.

II. Right to Counsel

Robertson next urges that the circuit judge erred by refusing to suppress her December 5, 2007 videotaped statement and any evidence obtained from it because it was given after she had invoked her right to counsel.

The facts relevant to this point are these. On December 3, 2007, Robertson went to the West Memphis Police Department to turn herself in on an arrest warrant for sexual assault involving B.M. Her boyfriend, Leflore, had been arrested on the same charge earlier in the week and had informed Robertson that she had an arrest warrant outstanding. After signing a waiver-of-rights form on December 3, Robertson was questioned by Detectives Terri Hollis, Donald Oaks, and Ken Mitchell about the sexual-assault charge. Robertson later agreed to a videotaped interview.

During the recorded portion of the interview, Detective Hollis asked Robertson about the sexual-assault charge. At one point during Detective Hollis's questioning, Robertson asked “Do I need a lawyer?” and then said that she wanted to talk to the detective “woman to woman” and continued talking. After Detective Hollis's questioning, Robertson was questioned by Detectives Oaks and Mitchell about the sexual-assault charge and Johnson's murder. She completed the interview and was taken to the Crittenden County jail on the sexual-assault charge and told that she would have a bail hearing on December 5.

On the morning of December 5, 2007, Robertson was transported from the county jail to the West Memphis Police Station for additional questioning about Johnson's death. She was again given her Miranda rights and again signed a waiver-of-rights form. During the unrecorded interview that followed, Robertson admitted her involvement in Johnson's murder and offered to show the detectives where the guns stolen from Johnson's house and the murder weapon were located. She subsequently took the detectives to the site where the guns were hidden and the site where she claimed Leflore discarded the murder weapon. The police detectives recovered the guns stolen from Johnson's house but were unable to locate the murder weapon.

The detectives and Robertson returned to the police station, and Robertson agreed to give another videotaped statement. At the outset of the interview, Detective Mitchell began to read Robertson her Miranda rights, but she cut him off and recited the Miranda rights from memory, commenting that this was the fifth time they had gone over them. She then detailed her involvement in Johnson's murder. After the interview, Robertson was arrested for capital murder.

Prior to trial, Robertson moved to suppress her December 5, 2007 statement and the evidence recovered on the same date. At the suppression hearing, the circuit judge heard the testimony of Robertson and the four detectives—Hollis, Galtelli, Oaks, and Mitchell. Robertson testified that she had asked several times for an attorney off the record and once on the record on December 3. Robertson also stated that she asked whether she had missed her court date during her December 5 interview because she thought she would be getting an attorney at that time. All four detectives testified that Robertson never asked for an attorney off the record and that her only reference to an attorney came on December 3, when she asked if she needed a lawyer. At the conclusion of the hearing, the circuit judge found that “any request or mention of a lawyer was unclear and equivocal at best.”

Robertson now claims that the circuit judge should have suppressed her December 5 statement because: (1) she invoked her right to the assistance of counsel during the December 3 interrogation by asking if she needed an attorney; (2) she believed that “she was going to an appointment to have an attorney appointed to her” when she was interrogated on December 5; and (3) she testified at the suppression hearing that she made a number of clear and unequivocal requests for an attorney on December 5 that were not recorded by the detectives.

The question before this court is whether Robertson sufficiently invoked her right to counsel at the December 3 interrogation. This court has observed that when invoking the Miranda right to counsel, the accused must be unambiguous and unequivocal. Holsombach v. State, 368 Ark. 415, 421, 246 S.W.3d 871, 876 (2007) (citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). An equivocal request for counsel does not obligate police officers to cease questioning and seek clarification, but interrogation may continue until the suspect unambiguously requests counsel. Wallace v. State, 2009 Ark. 90, 302 S.W.3d 580. As the United States Supreme Court has said, an accused “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Furthermore, “after a knowing and voluntary waiver...