State v. Robertson

• Decision Date: 22 April 2005
• Docket Number: No. 90,319,90,319
• Citation: 109 P.3d 1174,279 Kan. 291
• Parties: STATE OF KANSAS, Appellee, v. JOSHUA JAMES ROBERTSON, Appellant.
• Court: Kansas Supreme Court

279 Kan. 291

109 P.3d 1174

STATE OF KANSAS, Appellee, v. JOSHUA JAMES ROBERTSON, Appellant.

No. 90,319

Supreme Court of Kansas

Opinion filed April 22, 2005.

Mary Curtis, assistant appellate defender, was on the brief for appellant.

Jan L. Satterfield, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.:

Defendant Joshua Robertson was convicted of first-degree murder, arson, and aggravated burglary in the killing of Patricia Self and the burning of her home. He received a hard 50 life sentence. He appeals his first-degree murder conviction and sentence.

Robertson raises seven issues before this court: (1) Did the district court err in overruling his motion to suppress his statements to law enforcement? (2) Did the prosecutor commit reversible misconduct during closing argument? (3) Was the evidence sufficient to prove first-degree premeditated murder? (4) Should the district court have instructed the jury on voluntary manslaughter? (5) Did cumulative errors deny defendant a fair trial? (6) Was the evidence sufficient to support a hard 50 sentence? and (7) Is the hard 50 sentencing statute constitutional?

Facts

This case began when Roger and Patricia Self's home in Augusta burned, and fire investigators discovered human remains inside. Roger Self was located at his place of employment, but the whereabouts of his wife, Patricia, and the Selfs' adult daughter, Jennifer, who was living with the Selfs, were not immediately known. Because authorities could not make a positive identification of the remains, Officer Drew Reed was dispatched to locate Jennifer and her boyfriend, defendant Robertson.

Jennifer and Robertson had been dating approximately 1 month before the fire, and Roger described Jennifer as obsessed with the relationship, despite his and his wife's disapproval. Robertson had been permitted to stay the night at the Selfs' home on a couple of occasions earlier in the relationship, but he was no longer welcome to visit after Roger caught him in the same bed with Jennifer.

About 1 week before the fire, Jennifer argued with her parents about letting defendant visit their home again. She became violent and used a small knife to stab books and magazines in her room. Roger took the knife away and hid all of the knives in the house. He was frightened because Jennifer had tried to cut her wrists in the past. The Selfs did not see Jennifer for a couple of days leading up to the fire.

Robertson had been living with his grandparents, where he and Jennifer sometimes spent the night. Also approximately 1 week before the fire, defendant's grandmother called Patricia to tell her that she had overheard a disturbing conversation between Robertson and Jennifer. Robertson had said "something about making [Jennifer's] parents disappear."

The day before the murder, Patricia made homemade bread, and Roger retrieved a serrated bread knife from its hiding place for her to use. They did not rehide the knife after using it; but, before going to bed, Roger made sure that all of the doors and windows of the home were locked. Jennifer did not have a key. At approximately 3:30 on the morning of the murder, Robertson and Jennifer walked to the Selfs' home. They arrived about 5 a.m., shortly after Roger left for work. They had a box cutter and a pocket knife with them and cut the telephone line. After they were unable to enter the house through a window, Jennifer knocked on the door. Her mother answered, and Jennifer rushed inside and started cutting Patricia with a knife. Robertson followed Jennifer, and he and Jennifer got Patricia into a chair and stabbed her. Jennifer retrieved the bread knife from the kitchen and began to stab her mother with it. Robertson described his and Jennifer's actions as "slice, slice, slice; stab, stab, stab."

At some point during the attack, Robertson's left hand was cut. While he and Jennifer attended to his hand, Patricia attempted to escape by crawling toward the front door. Robertson and Jennifer each grabbed one of Patricia's legs and pulled her toward the middle of the living room. Patricia was then lying on her back, making gurgling noises. Robertson and Jennifer stomped on her neck and face until she stopped.

The attack left blood everywhere, according to Robertson. He took a shower, and Jennifer cleaned his boots. Then they placed his bloody clothes on the couch and doused it with alcohol. They took a credit card from Patricia's purse, lit the couch on fire, and left.

Fire investigators later concluded the fire in the Selfs' home was set intentionally with a flammable liquid or accelerant. The bread knife was found under Patricia's hips. The pocket knife was found under the remains of clothing. The box cutter also was found in the debris.

A forensic pathologist testified at Robertson's trial that she was unable to make an accurate external examination of all of the injuries Patricia suffered because of the severity of her burns. However, the pathologist was able to detect some injuries and to determine that Patricia had died before the fire was started. The pathologist noted that Patricia suffered several fractures to her face and at the base of her brain. She also endured a blunt force injury to the back of her head, consistent with the head hitting a firm surface. She suffered multiple stab wounds to the face and neck, including a wound to her left jugular vein and a wound under her right eyelid across her face and into her brain. Her hyoid bone was fractured; the injury was consistent with "manual strangulation or blunt force injury of the neck." In all, Patricia suffered seven facial fractures, and the pathologist testified that the face and neck fractures could be consistent with stomping or kicking.

On the morning of the murder and fire, immediately upon being detained, Robertson asked Officer Reed if he was under arrest and if he could have a court-appointed lawyer. Reed had not given Miranda warnings to Robertson because he had not intended to question him; he was merely responsible for transporting him to the sheriff's department. Reed advised Robertson that he was not under arrest, that he was only being detained for questioning, and that he should talk to interviewing officers about getting a court-appointed attorney.

Robertson was placed in an interrogation room with an activated video recording device. Reed waited in the room with Robertson but did not question him. During a part of the time the two men waited for other investigators to arrive, emergency medical technicians treated Robertson's hand. Robertson made repeated remarks to Reed about his love for Jennifer and her motive for committing the crime. He asked Reed about the case and asked again if he would be appointed an attorney. Robertson also asked what the charges were and what the bond would be. Reed again responded that defendant would have to wait for the interviewing officers to find out more information and that he did not know if there were any charges. Defendant then asked Reed what the bond was for premeditated murder. Reed responded that he did not know.

When investigating officer Kelly Herzet arrived, Reed left. Reed did not tell Herzet that Robertson had requested a court-appointed attorney. Herzet also did not know that the remains had been or would be identified as Patricia.

Before Herzet could ask Robertson his name, Robertson said: "What's the motive? I tried to stop her. She cut my hand through my gloves. What was her motive?" Robertson asked again about a court-appointed attorney and said immediately that Jennifer had cut the phone line. Herzet interrupted defendant and asked his name, but defendant kept talking. Herzet then pulled out a form so that he could go over the Miranda rights with Robertson. Robertson told Herzet that he was not going to sign a waiver and that he wanted a lawyer present. Before Herzet could say anything, Robertson said that his girlfriend had "pulled some stunt" today, that he had gotten cut, and that he was "just an acquaintance, or an accomplice, I don't know." Herzet then said, "We need to talk about that," and Robertson said, "I can't speak until I have an attorney." Herzet responded: "OK."

Robertson then began talking again, remarking that he loved someone "so much." Herzet asked him who he was talking about, and Robertson said "Jennifer." Herzet then said he needed to read the rights form, which would protect Robertson. He also told Robertson that he could mark the form to document that he did not want to talk to law enforcement without an attorney. Herzet specifically said that marking the form would not mean that Robertson had to talk to him. Robertson continued talking despite his expressed intention to wait for an attorney. He told Herzet that he had marked the form to say he would talk but "whether or not I decide to answer certain questions is my decision." Herzet responded, "That is so correct." The form had been signed within 5 minutes of Herzet arriving to talk to defendant.

Herzet then interviewed Robertson for approximately 4 hours. The officer brought Robertson lunch, gave him a soda break, and gave him restroom breaks whenever Robertson needed to do so. Herzet also asked Robertson several times if he needed to go to the hospital for further treatment of his hand, but defendant said he did not need to go. Herzet testified later that Robertson never refused to talk. Sometimes, he would state, "I'll take it up with the Judge," but Herzet understood that Robertson wanted to continue the interview. Robertson ultimately described the crimes, claiming they were primarily Jennifer's fault. He was then arrested.

A third officer, Glenn Hopper, arrived to assist Herzet and to take Robertson to the hospital. Hopper placed Robertson in handcuffs and recited the Miranda warnings because Robertson kept saying that he was being charged...