State v. Robertson

• Decision Date: 26 April 1985
• Docket Number: No. 84-046,84-046
• Citation: 366 N.W.2d 429,219 Neb. 782
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Jo Helen ROBERTSON, Appellant.

Page 429

366 N.W.2d 429

219 Neb. 782

STATE of Nebraska, Appellee, v. Jo Helen ROBERTSON, Appellant.

No. 84-046.

Supreme Court of Nebraska.

April 26, 1985.

Syllabus by the Court

1. Confessions: Evidence. Voluntariness is the ultimate test to use an accused's statement, admission, or confession as evidence in a criminal prosecution.

2. Confessions: Evidence. To be admissible an accused's statement, admission, or confession must have been freely and voluntarily made, and must not have been extracted by any direct or implied promise or inducement, no matter how slight.

3. Confessions. A promise to inform a prosecuting authority about a declarant's cooperation is not an improper inducement producing involuntariness.

4. Rules of Evidence: Evidence. Rule 402 of the Nebraska Evidence Rules (Neb. Rev.Stat. § 27-402 (Reissue 1979)) permits the admission of relevant evidence only.

5. Criminal Law: Evidence. Where two or more persons are charged with the same criminal offense but are tried separately, the fact that one defendant has pleaded guilty or has been convicted is inadmissible against the other defendant.

Thomas M. Kenney, Douglas County Public Defender, and Bennett G. Hornstein, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Timothy E. Divis, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

A Douglas County jury found Jo Helen Robertson guilty of the first degree murder of Laura LaPointe, a prostitute. Robertson was sentenced to life imprisonment and appealed her conviction.

In the early morning of April 11, 1983, a passer-by discovered the nude, brutally beaten body of Laura LaPointe in a roadside ditch located in a heavily wooded area near Hummel Park north of Omaha. Close to LaPointe's body was an empty brandy bottle and a "stick," apparently a tree limb 6 to 7 feet long with a 3-inch diameter.

Investigation in the LaPointe murder focused on three Omaha prostitutes--Geraldine "Dee" Carr, Loray "Rachael" Smith (also known as Laura (Larie) "Baby Girl" Johns), and Carol Joy. On June 24 Jo Helen Robertson was being held on warrants for undisclosed misdemeanors and asked to talk to someone about the LaPointe homicide, although Robertson was not then a suspect in the killing. Philip Butler, a Douglas County deputy sheriff, was summoned and informed Robertson of the Miranda warnings. After the deputy read the Miranda warnings, Robertson asked whether she might be released on bond if she provided information about the LaPointe homicide. The deputy responded "No," but told Robertson we will check it [the information] out and if we find it accurate we will go to the City Prosecutor's office and I will tell him that you are assisting us in a homicide investigation.

....

... I don't know what the City Prosecutor would do.

Perhaps in the interest of justice he would take care of the cases, but I don't know if that would happen.

Robertson gave a tape-recorded interview in which she denied being in the Hummel Park area where LaPointe's body was found. However, Robertson told the deputy that in the late evening of April 10 Geraldine Carr, Loray Smith, Carol Joy, and Robertson were driving in downtown Omaha with four pimps. According to Robertson, the four pimps decided to "teach LaPointe a lesson," but Robertson asked to leave the car because she did not want "to teach anybody a lesson." The next day, April 11, Carol Joy told Robertson that two of the pimps had beaten LaPointe to death with a baseball bat in a park. Throughout her tape-recorded interview, Robertson made numerous contradictory statements about the occupants of the car in which she had been riding and about the identity of the individuals who went to the park where LaPointe was murdered.

The homicide investigation shifted to a 1977 Ford LTD located at Geraldine Carr's residence. Equipped with a search warrant, law enforcement officers searched the Ford LTD and looked for a razor blade, baseball bat, bloodstained clothes, and blood in the car's interior. As a result of their vacuum "sweeping" and search of the LTD, officers found strands of hair, fibers, a gold pendant necklace, and a softball bat. Officers tried but failed to obtain "readable" fingerprints from the LTD and the objects removed from that automobile.

On June 28 the police arrested Geraldine Carr, Carol Joy, and Robertson. Deputy Butler again questioned Robertson after informing her of the Miranda warnings. Robertson denied any involvement in the LaPointe murder.

Officers had obtained hair samples from Carol Joy and Robertson. These samples and a sample of LaPointe's hair were microscopically analyzed by the Federal Bureau of Investigation at its Washington, D.C., Laboratory. Hair embedded in the "stick" found at the scene of the crime was identified as LaPointe's. Hair taken from the softball bat was identified as Joy's. No hair sample was identified as belonging to Robertson.

In a pretrial motion Robertson moved to suppress her tape-recorded statement obtained on June 24. The district court overruled Robertson's motion, and the taped interview was later heard by the jury in Robertson's trial.

Robertson's jury trial commenced on December 5. In the course of the State's case, a pathologist testified that LaPointe's death was caused by injuries inflicted with blunt instruments. The pathologist identified the "stick," or tree branch, and softball bat as instruments capable of inflicting the wounds and injuries sustained by LaPointe.

The State called Geraldine Carr as a witness. Carr testified concerning the unspeakably cruel treatment of prostitutes at the hands of pimps, including physical violence and beatings. When questioning was directed to the LaPointe homicide, on instruction from her attorney Carr invoked her privilege against self-incrimination. As authorized by Neb.Rev.Stat. § 29-2011.02 (Cum.Supp.1984), the prosecutor asked and received immunity for Carr, and questioning continued. Carr testified that in the late evening of April 10 she and three other prostitutes, Loray Smith, Carol Joy, and Robertson, were in a Ford LTD driven by Carr. This foursome obtained and drank a bottle of brandy. After drinking the brandy one of the four suggested robbing a "trick," that is, "flag down" a prospective male and "sneak up and take his money." Shortly afterward, the four saw LaPointe on the street and invited her to the car. In the back seat of the LTD was a softball bat which Carr used for "protection." In place of a male victim the four had decided to rob LaPointe. LaPointe entered the car and the five drove to an alley in north Omaha, where Robertson, in the back seat with Carol Joy and LaPointe, told LaPointe to "give up" her money. After LaPointe was forced to disrobe, Carol Joy and Robertson searched LaPointe's clothing and purse but found only $25. Disappointed by that small amount of money, Joy gave a "straight-edge razor" to Robertson, who began cutting LaPointe's hair. Robertson tore a gold pendant necklace from LaPointe and inflicted a minor cut with the razor on LaPointe. Intending to find a "trick" for LaPointe so she could obtain some money, the five drove around Omaha and eventually went to Hanscom Park, where LaPointe was forced to have oral sex with Carol Joy. During this episode, Robertson "popped" LaPointe in the head with the razor. Sometime after midnight, Robertson suggested going to Hummel Park. At that park LaPointe, Carol Joy, and Robertson got out of the car. Although Carr did not recall who had taken the softball bat from the LTD, Carr testified that Robertson beat LaPointe with the ball bat while Joy struck the victim with the "stick." The four left LaPointe's body in a ditch and returned to Omaha, where they threw LaPointe's clothes into a trash receptacle.

Carr further testified that there were "no deals" for her testimony on behalf of the State; rather, she testified because "I want the truth to be told." At the time of Robertson's trial Carr had not been brought to trial.

The State then called Carol Joy to testify. After asking the witness' name, and as his second question in direct examination, the prosecutor asked Joy: "Carol, you have been convicted of first degree murder in this particular case; is that correct?" Robertson objected; the court overruled Robertson's objection; and Joy answered, "Yes, I have," and then referred to testifying in her previous jury trial. (On August 10, 1984, or approximately 8 months after Robertson's trial, this court reversed Joy's conviction and remanded for a new trial. See State v. Joy, 218 Neb. 310, 353 N.W.2d 23 (1984).)

Joy continued her testimony and stated that on April 10, before meeting the other prostitutes and LaPointe, she had a "couple of shots of heroin" and some Valium, and had consumed a considerable quantity of alcoholic beverage. Joy corroborated the testimony given by Carr regarding the meeting with LaPointe and decision to rob her. According to Joy, the five prostitutes drove to Hanscom Park, where Joy gave Robertson a razor. At the park Robertson began "clunking her," that is, hitting LaPointe with the end of the ball bat. Robertson told LaPointe to disrobe, and finding no money in LaPointe's clothes, Robertson started cutting LaPointe's hair with the razor. Joy reluctantly engaged in oral sex with LaPointe. Later, the five drove to north Omaha, where they obtained a bottle of brandy and went to Hummel Park. At Hummel Park Joy removed $25 from LaPointe's jeans and got out of the car with LaPointe and Robertson. A short distance from the car, Robertson hit LaPointe with the ball bat, but no one struck LaPointe with the "stick." Joy testified that Robertson and she took turns hitting LaPointe with the ball bat until Joy said "that was enough." Joy determined that LaPointe was dead, and the foursome returned to Omaha.

Although Robertson did not testify, she offered medical testimony about her...