State v. Robbins, 081817 NESC, S-16-155

Docket Nº:S-16-155
Opinion Judge:HEAVICAN, C.J.
Party Name:State of Nebraska, appellee, v. Randall R. Robbins, appellant.
Attorney:Robert W. Kortus, of Nebraska Commission on Public Advocacy, for appellant. Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.
Judge Panel:Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
Case Date:August 18, 2017
Court:Supreme Court of Nebraska
 
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297 Neb. 503

State of Nebraska, appellee,

v.

Randall R. Robbins, appellant.

No. S-16-155

Supreme Court of Nebraska

August 18, 2017

1.

DNA Testing: Appeal and Error. A motion for DNA testing is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

2. Motions to Vacate: Motions for New Trial: DNA Testing: Appeal and Error. Under the DNA Testing Act, an appellate court will not reverse a trial court's order determining a motion to vacate a judgment of conviction or grant a new trial absent an abuse of the trial court's discretion.

3. DNA Testing: Appeal and Error. Under the DNA Testing Act, an appellate court will uphold a trial court's findings of fact unless such findings are clearly erroneous.

4. Statutes: Appeal and Error. Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.

5. Appeal and Error. Absent plain error, assignments of error not discussed in the briefs will not be addressed by an appellate court.

6. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

7. Statutes: Legislature: Intent: Appeal and Error. In construing a statute, an appellate court should consider the statute's plain meaning in pari materia and from its language as a whole to determine the intent of the Legislature.

8. __: __: __: __. In construing a statute, an appellate court's objective is to determine and give effect to the legislative intent of the enactment.

9. Appeal and Error. Plain error may be asserted for the first time on appeal or be noted by an appellate court on its own motion.

[297 Neb. 504] 10. Final Orders: Appeal and Error. A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant before the order from which he or she is appealing.

Appeal from the District Court for Lancaster County: Steven D. Burns, Judge. Reversed and remanded with directions to dismiss.

Robert W. Kortus, of Nebraska Commission on Public Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

HEAVICAN, C.J.

I. INTRODUCTION

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 metabo-lizer" of prescription drugs.

Based on these results, Robbins asserted that while the dosage of the Zoloft medication he was taking at the time [297 Neb. 505] 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 phar-macogenetic 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.

II. BACKGROUND

1. Factual Background

(a) Zoloft Prescription

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.

[297 Neb. 506] (b) Strangulation of Eurek

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 [297 Neb. 507] problem or what I always have things on my mind causing things on my mind.

(c) Robbins' Behavior on Zoloft

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...

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