Robinson v. Com., 841744
| Decision Date | 07 March 1986 |
| Docket Number | No. 841744,841744 |
| Parties | George A. ROBINSON v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
George F. West, Jr. (James C. Clark, Murphy, McGettigan & West, P.C., Land, Clark, Carroll & Mendelson, Alexandria, on brief), for appellant.
Marla Lynn Graff, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.
Present: All the Justices.
George A. Robinson was tried by a jury and convicted of two counts of capital murder and two counts of robbery. By order dated July 26, 1984, he was sentenced to four terms of life imprisonment.
On appeal, Robinson contends that the trial court erred in three particulars: (1) in failing to grant a mistrial or continuance where, in the midst of the trial, the prosecutor for the first time advised defense counsel of the existence of certain exculpatory evidence; (2) in allowing the Commonwealth's forensic expert to testify concerning information not previously disclosed to Robinson which contradicted information contained in a forensic report that had been made available to Robinson; and (3) in not allowing defense counsel to impeach one of the Commonwealth's witnesses by asking that witness whether he had failed a police-administered polygraph test. We find no merit in any of Robinson's contentions. Therefore, we will affirm the judgments of the trial court.
In order to resolve the first issue, we must consider events leading up to the trial as well as evidence adduced at trial. On February 10, 1984, Elizabeth Elliott and Karl Von Lewinski were found stabbed to death in Elliott's townhouse in Alexandria. On February 13, 1984, the Alexandria police learned of the existence of a Maryland man, Charlie Ball, who had reported finding, on February 10, 1984, in Washington, D.C., a pillowcase containing items that appeared to come from Elliott's townhouse. The pillowcase and its contents were turned over to Alexandria police on February 13, 1984. Ball was then questioned.
As part of Ball's interrogation, he was asked to submit to a "lie-detector" test. During the test, Ball gave an explanation of how he came into possession of the pillowcase. According to the polygraph examiner, Ball's response on that point was deceptive. When Ball was confronted with this information he gave another explanation, which the police accepted. However, this second explanation was not measured by a lie-detector test. It was not until the fourth day of trial that defense counsel learned that Ball had failed the government's lie-detector test.
On February 23, 1984, the police, acting on a tip developed through a local "crime-stoppers" program, asked Robinson and his wife to come to the police station for questioning. While with the police, the Robinsons agreed to take lie-detector tests as part of the interview process. Mrs. Robinson, who was interviewed separately from her husband, was tested first. Her responses indicated deception. When she was confronted with this information, she implicated her husband in the murders.
Robinson was advised of his wife's statement, then allowed to talk to her by telephone. Thereafter, Robinson confessed. In effect, he made two conflicting confessions. First, he said that he, acting alone, killed both Von Lewinski and Elliott. In general, he explained that he stabbed Von Lewinski while Elliott was out of the room, then stabbed Elliott upon her return. However, at that time, the police did not believe that the crime had been committed by a single individual so they pressed Robinson to reveal his accomplices. Robinson then changed his confession; he said that two black men also participated in the crime and that they, not Robinson, did most of the stabbing. After making his statement, Robinson was arrested.
On April 13, 1984, Robinson filed two requests for information held by the Commonwealth. The first was a motion for discovery and inspection pursuant to then Rule 3A:14 (now Rule 3A:11) of this Court's rules. In that motion, Robinson requested, among other things, all written or recorded statements made by an accused or suspect to the police of which the Commonwealth's Attorney was aware; all written reports, tests, or other scientific reports concerning an accused or suspect known by the Commonwealth's Attorney; and all written or recorded summaries of the substance of any oral statements known to the Commonwealth.
The second motion, also filed April 13, 1984, requested disclosure of exculpatory evidence. That motion sought any and all evidence or information that might be favorable to Robinson by reason of its exculpatory nature, or which might assist in the preparation of his defense.
By order dated April 24, 1984, the trial court essentially granted Robinson's motions. The Commonwealth filed its response on April 27, 1984.
In its response, the Commonwealth made available certain information concerning Charlie Ball. It listed him as a witness and set forth his name and address. The Commonwealth also released a forensic report which showed that Ball's pants and shirt had been examined. The forensic report also showed that a piece of paper on which Ball stood when he disrobed had also been analyzed.
The trial began on June 5, 1984. The Commonwealth relied on Robinson's confession as well as corroborative evidence developed from other witnesses. According to Robinson, he went to Elliott's townhouse twice on the day of the murder; the first time to discuss the fact that his car had been towed and the second time ostensibly to pay his rent. When Robinson came to Elliott's house the second time, he thought she was alone. Once inside, Robinson asked Elliott for a drink of water. When Elliott left the room to get the water, Robinson went over to a desk located in the living room where he thought Elliott kept money. While Robinson was seated, going through the desk, he was surprised by Von Lewinski who asked Robinson what he was doing. Robinson replied "nothing." Von Lewinski grabbed Robinson. Robinson then grabbed a pair of scissors that were in the center of the desk and stabbed Von Lewinski in the chest "about three times." Von Lewinski ran. Robinson grabbed him from behind and stabbed him in the back. At that point Von Lewinski fell down.
Elliott returned from the kitchen while Robinson was bent over Von Lewinski. She asked what was wrong, then screamed. According to Robinson, he just stabbed her "about twice" he guessed. She fell down. Von Lewinski got up again but fell across a chair.
Robinson finished looking through the desk but found only "a little money." He then went through papers in a closet and a dresser drawer. He also went through papers in Von Lewinski's bedroom. Further, he ripped open Von Lewinski's pockets.
In addition to the evidence contained in the confession, the Commonwealth proved the following additional points: Robinson's second visit to Elliott's townhouse occurred about 9:38 p.m. on February 9, 1984. This was established by a witness who was, at that moment, talking long-distance from New York with Elliott. The witness, relying on telephone records, said she placed her call at 9:28 p.m. and had talked for about 10 minutes before Elliott was interrupted by a knock on the door. Elliott left the phone to answer the door. But the phone line remained open. When she returned to the phone she said "that a tenant had knocked on the door and he wanted to come in and pay rent." She also remarked "that the tenant apparently was not feeling well at all and requested to go straight to the bathroom."
The medical examiner testified that the wounds sustained by Von Lewinski and Elliott were consistent with wounds made by the pair of scissors that had been introduced as the murder weapon and further that the wounds inflicted upon Von Lewinski were similar to the wounds inflicted upon Elliott. This evidence suggests a single murder weapon and a single assailant.
The Commonwealth also proved that Robinson's fingerprints were on items taken from Elliott's townhouse; that Robinson pawned certain items taken from the house; and that Robinson had a cut on his hand in the same place that a glove found in the pillowcase was slashed. In essence, the Commonwealth proved facts which fit logically with Robinson's confession that he alone committed these crimes.
In the midst of the trial, on the fourth day, at a bench conference, defense counsel advised the trial court that he had just learned that morning from the Commonwealth's Attorney that Charlie Ball had failed a polygraph test administered by the police. Defense counsel told the court that he had talked to the polygraph examiner and learned of the questions that had been asked Ball and of the examiner's conclusion as to Ball's deceptive behavior. Defense counsel said he considered what he had learned to be exculpatory and considered that to be the reason for the disclosure from the Commonwealth's Attorney. Defense counsel then advised the court that he had told the Commonwealth's Attorney that the new material raised "evidentiary questions in our minds as to how to deal with that as well as some questions as to how it fits into our case." Defense counsel then made reference to the need for a continuance but he did not move for one; he stated as follows:
[I]n the event Mr. Ball goes on the stand, I feel I want to use that conversation in some fashion. I am going to need some time in the context of a continuance or a substantial recess in order to work out some of the problems which have arisen.
(Emphasis added.) The Commonwealth's Attorney replied that the information was exculpatory because Ball had "flat out flunked" the test. The Commonwealth also noted, however, that the information was "not admissible in any way."
The trial court made clear that its position on the use of polygraph tests was that "we do not let them in evidence." In response to the court's comment, defense counsel replied that...
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