Robinson v. State, 99-167.

• Citation: 11 P.3d 361
• Decision Date: 28 September 2000
• Docket Number: No. 99-167.,99-167.
• Parties: Kevin James ROBINSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

11 P.3d 361

Kevin James ROBINSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 99-167.

Supreme Court of Wyoming.

September 28, 2000.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Hughes, Assistant Appellate Counsel. Argument by Ms. Hughes.

Representing Appellee: Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Devon O'Connell Coleman, Student Director, Amanda Hunkins and Jeffrey Moll, Student Interns, of the Prosecution Assistance Program. Argument by Ms. Coleman, Ms. Hunkins, and Mr. Moll.

Before LEHMAN, C.J., and THOMAS, MACY,¹ GOLDEN, and HILL, JJ.

GOLDEN, Justice.

This appeal primarily requires that we determine whether hearsay evidence that served to establish Appellant Kevin Robinson's sexual relationship with a fifteen-year-old girl and his motive for killing her was properly admitted under several exceptions. Robinson was convicted of voluntary manslaughter in her death, and his sexual relationship with her resulted in additional convictions for soliciting to engage in illicit sexual relations with a minor and immoral or indecent acts with a minor child. He presents a number of other constitutional and evidentiary issues.

We affirm the convictions.

ISSUES

Robinson presents these issues for our review:

1. Did the trial court err in denying all motions for Judgment of Acquittal on the charges of Murder in the First Degree, Second Degree and subsequently the conviction of Voluntary Manslaughter?

2. Was there insufficient evidence produced at trial to prove beyond a reasonable doubt all elements of the crime of voluntary manslaughter?

3. Did the trial court abuse its discretion in allowing hearsay testimony of friends, teachers and the mother of the victim? Alternatively, did trial counsel for Appellant commit ineffective assistance of counsel by failing to object to the hearsay testimony at trial?

4. Did the trial court commit reversible error when it commented, in the presence of the jury, on the testimony of defense witness Aaron Van Kirk?

5. Did the trial court err in its governing of voir dire, in that trial counsel for Appellant were made to exercise peremptory strikes without having examined the whole panel?

6. Was Appellant's constitutionally protected right to silence violated by the closing argument by the State?

7. Was the photographic lineup used to identify Appellant as the person whom the victim met with the weekend before her death violative of due process in that it was unnecessarily suggestive and created a very substantial likelihood of an irreparable misidentification?

8. Did trial court err by not permitting evidence of the victim's prior relationships which resulted in the incarceration of three men?

9. Did trial counsel for Appellant provide ineffective assistance of counsel by failing to question and impeach Aaron Van Kirk regarding his conviction for having sexual relations with the victim, as well as by failing to compel the testimony of Xavier Lopez with regard to his relationship with the victim, and his conviction, and additionally failing to fully reveal to the jury Aaron Van Kirk's past history, and statements made concerning the death of the victim?

10. Did cumulative error occur in such proportion as to deprive Appellant of a fair trial and as to require reversal?

The State restates the issues as follows:

I. Did the district court commit prejudicial error in denying Appellant's motion for judgment of acquittal on first and second degree murder and instructing the jury on those crimes, when Appellant was not convicted of either crime?

II. Was the evidence sufficient to permit the jury to find Appellant guilty of voluntary manslaughter beyond a reasonable doubt?

III. Did the district court properly find that Daphne Sulk's statements to her mother, friends and teachers fell within exceptions to the hearsay rule?

IV. Did the district court commit prejudicial error when it commented upon the deportment of witness Aaron Van Kirk?

V. Did the district court err in requiring Appellant to exercise peremptory challenges before the entire venire had been questioned?

VI. In closing argument, did counsel for the state improperly comment on Appellant's exercise of his constitutional right to silence?

VII. Was the photographic lineup from which Appellant was identified unnecessarily suggestive and did it create a substantial likelihood of irreparable misidentification?

VIII. Did the district court improperly exclude evidence that persons other than Appellant might have possessed a motive to harm Daphne Sulk?

IX. Was Appellant denied effective assistance of counsel because of defense counsel's failure to call and impeach witnesses?

X. Is the doctrine of cumulative error applicable where no error appears in the record?

FACTS

On November 11, 1997, the nude body of fifteen-year old Daphne Sulk was discovered in the mountains east of Laramie, Wyoming. She had seventeen stab wounds to the chest and neck area, multiple defensive wounds, and had been bludgeoned. A forensic pathologist testified that the number of wounds inflicted was consistent with rage. The murder apparently had occurred elsewhere; and although an exact time of death could not be determined, it was believed to have been not more than four or five days before her body was discovered. An autopsy revealed that the victim was less than a month pregnant; however, the pathologist did not perform DNA testing on the embryo, and further procedures prevented later testing.

The victim's mother, Roberta Sulk, reported her daughter as a runaway on October 31, 1997, and the victim was believed to have spent from November 3 to November 5 in an abandoned trailer with another juvenile runaway who last saw the victim as she entered a large blue car driven by an unseen person who has never been identified. According to this juvenile, the victim identified the driver as her boyfriend. Robinson drives a gold Honda. At about this same time, the victim told a juvenile friend that she had three boyfriends. Approximately two or three days later, on either November 8 or 9, this same juvenile walked with the victim to a convenience store where the victim met a man in the parking lot. The juvenile identified Robinson from a photograph lineup as the man who met the victim. As late as possibly the night of November 10, another juvenile reported seeing the victim at a grocery store.

On November 6, Officer Hasselman, who was investigating the runaway complaint, spoke with a juvenile friend of the victim who told him that the victim was about a month pregnant by a "Kevin Robertson ... who lived by the Civic Center." Hasselman determined that "a Kevin Robinson" lived in the area and fit the description given by the juvenile friend. Hasselman watched Robinson's house on November 7 but did not see the victim. On Monday, November 10, he found Robinson outside his house and asked him about the victim. Robinson stated that he knew her, identified her as a girl who smoked cigarettes in the alley behind his house, and stated that he had not seen her in over a month.

On November 11, Robinson left his car in a parking lot, took a shuttle to Denver International Airport, and flew to Texas with a coworker for work-related training. After the victim's body was found and identified that same day, the investigation immediately focused on Robinson, and search warrants for his home and car were obtained. Small blood spots were found in the trunk and on the door of Robinson's car and, after DNA testing identified the blood as the victim's, it was stipulated to be her blood.

A close friend of Robinson's, John Michael Roberts, Jr., testified that Robinson had told him about a girl who would stand in the alley behind his home and flirt with him when he was outside. After Robinson reported to Roberts that the girl had told him that men had gone to prison for having sex with her, Roberts came to Robinson's home in early September, met the girl inside of the home and, believing she was underage, advised Robinson to stay away from her. Robinson was thirty-eight years old at that time. Another witness testified that, on October 9 or 10, she and the victim went to Robinson's house at about 10:30 p.m. and watched TV. Robinson and the victim sat on the couch, flirting and holding hands until the witness' friend picked up the two girls and took them home. Later, the victim told the witness that she had returned to Robinson's home and spent the night with him. The victim's mother testified that on October 9, a police officer investigating a runaway report on another juvenile came to her home to talk to the victim. Her daughter did not return home until the next morning, and the mother observed that she rinsed out her underwear. Her daughter told her that she had spent the night in a bathroom at Undine Park.

Other hearsay evidence admitted under various exceptions established that, after September 1, the victim told a counselor about a relationship with a "secret friend" and told friends during that same time period that she and "Kevin" were involved in a sexual relationship and that he sometimes had her remove clothing in front of him. The victim's mother testified that her daughter had driven her past Robinson's house and told her that a "Mr. J or Mr. Jackson" lived there and that she was going to babysit his two children. On October 27, she told her mother that she was pregnant and that "Mr. Jackson" gave her a ride to school. On her mother's calendar, the victim had written "Mr. J leaves" for November 11 and "Mr. J back" for November 16.

The victim told her friends that Robinson was the father of the baby she was carrying and that he wanted the pregnancy aborted. She told teachers she was pregnant, the father did not attend her junior high school, and he...