State v. Robertson

• Court: Louisiana Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: State v. Robertson, 239 So.3d 268 (La. 2018)
• Decision Date: 06 April 2018
• Docket Number: No. 2016–KP–1742,2016–KP–1742
• Parties: STATE of Louisiana v. Allen ROBERTSON, Jr.

239 So.3d 268

STATE of Louisiana

v.Allen ROBERTSON, Jr.

No. 2016–KP–1742

Supreme Court of Louisiana.

April 6, 2018

PER CURIAM:

Writ denied. In 1991, Allen Robertson, Jr. was charged by grand jury indictment with two counts of first degree murder, arising from the deaths of Morris and Kazuko Prestenback. After a trial in 1991, Robertson was found guilty as charged and sentenced to death on both counts. Following the first trial, this Court vacated the convictions and sentences, having found that the trial court erroneously denied a defense challenge for cause to a prospective juror. State v. Robertson , 92-2660 (La. 1/14/94), 630 So.2d 1278. After the second trial in 1995, an East Baton Rouge Parish jury found Robertson guilty as charged on both counts and unanimously agreed to impose a sentence of death based upon the aggravating circumstances that the murder occurred during the commission of an aggravated burglary, that the murder occurred during the commission of an armed robbery, and that he knowingly created a risk of death to more than one person.¹ This Court affirmed the convictions and sentences. State v. Robertson , 97-0177 (La. 3/4/98), 712 So.2d 8.

The evidence presented at trial showed that Morris and Kazuko Prestenback, an elderly couple, lived several houses down from the residence of Robertson's mother on Dalton Street in Baton Rouge. On the evening of January 1, 1991, Robertson slipped into the Prestenback home through an unlocked screen door in search of money to buy cocaine to feed his long-term addiction to the drug. He first grabbed the Prestenback's television and sold it on the street for $20. He then returned to the residence, slipping through the same screen door, paused to grab a 13–inch knife in the kitchen, and then entered the bedroom in which Morris Prestenback was sleeping. Mr. Prestenback evidently awoke as Robertson prowled around the bedroom. A struggle ensued which led to a gruesome murder, in which Robertson stabbed Mr. Prestenback (who was in his 70s) multiple times in the head, face, and chest, and Mr. Prestenback suffered numerous fractures of the facial and nasal bones. Some of the eight stab wounds to the chest hit vital organs and major blood vessels, severed eight of the victim's ribs, and were almost 7" deep. Mr. Prestenback bled to death.

As Robertson struggled with Morris Prestenback, Kazuko Prestenback awoke in her separate bedroom, came upon the bloody scene in her husband's bedroom, and attempted to flee. Robertson attacked her in the hallway, inflicting several deep wounds in her back with the kitchen knife. Mrs. Prestenback retreated into her bedroom and curled into a fetal position on the bed as Robertson continued to stab her in the chest, carving through several of her ribs and spattering her blood on the ceiling and walls of the room. Robertson remained in the house for several minutes to make sure the Prestenbacks were dead, then took a watch, cash, and car keys and left.

He climbed into the Prestenback's Oldsmobile, backed out of the driveway, uprooting and driving over a chain-link fence and gate, which were barring the way, and then sped down Dalton Street, eluding an off-duty police officer who gave chase briefly after observing the Oldsmobile run a stop sign. Robertson quickly abandoned the car and escaped on foot, making his way to the home of his girlfriend, Michelle Alexander.

Robertson immediately confessed to her and to members of his family that he had killed the Prestenbacks. Following his arrest on January 3, 1991, at Alexander's home, Robertson also gave a series of taped statements to police in which he confessed to the murders.

After his convictions and sentences became final, Robertson filed a shell application for post-conviction relief, which the district court summarily denied before setting an execution date. This Court vacated the ruling and execution date and remanded with an order to appoint post-conviction counsel. State ex rel. Robertson v. State , 00-1059 (La. 4/26/00), 760 So.2d 1163. Following the resolution of funding issues, this court again remanded for post-conviction proceedings. State ex rel. Robertson v. Cain , 03-2747 (La. 5/7/04), 872 So.2d 1073.

In July 2007, post-conviction counsel filed an amended application for post-conviction relief and a motion for an evidentiary hearing.² In 2008, the district court granted some state objections and summarily denied Robertson's remaining claims on the merits, including his claim that he is intellectually disabled and thus, pursuant to Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), exempt from capital punishment. Robertson then filed another writ application in this Court claiming, inter alia , that the district court erred in failing to conduct an evidentiary hearing to determine whether he is intellectually disabled. In response, this Court granted writs in part and remanded for an evidentiary hearing on the limited issue of intellectual disability. Robertson v. Cain , 08-1116 (La. 9/4/09), 17 So.3d 960.

In accordance with this Court's order, the district court conducted multi-day intellectual disability hearings (the " Atkins hearing") on November 13–14, 2013, April 21–23, 2014, and April 4–6, 2016, after which the district court rejected Robertson's claim, taking into consideration his school records (which indicated no prior diagnosis of intellectual disability), his I.Q. scores, and his ability to adapt to life.

We have reviewed Robertson's claim and find no reason to disturb the district court's ruling.³ In Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that the execution of mentally retarded persons (now referred to as intellectually disabled) constitutes excessive punishment, and therefore violates the Eighth Amendment. As implemented in Louisiana, intellectual disability is a three-part condition shown by establishing: (1) sub-average intelligence and (2) significant impairment in several areas of adaptive skills that (3) manifested during the developmental stage. State v. Williams , 01-1650, pp. 22-24 (La. 11/1/02), 831 So.2d 835, 853–54.⁴

At the Atkins hearing, the experts were split on whether Robertson met the criteria for intellectual disability. Defense expert, Dr. Mark Cunningham,⁵ and court-appointed expert, Dr. Jill Hayes,⁶ concluded that Robertson met the criteria. However, the second court-appointed expert, Dr. Curtis Vincent,⁷ and the state's expert witness, Dr. Donald Hoppe,⁸ opined that Robertson did not.

As an initial matter, all four experts agreed that Robertson had never been diagnosed with intellectual disability before the Atkins inquiry, and this Court has previously viewed "made-for-litigation diagnoses" with suspicion. Brumfield v. Cain , 854 F.Supp.2d 366, 404 (M.D. La. 2012) (citing State v. Dunn , 01-1635, p. 27 (La. 5/11/10), 41 So.3d 454, 472 ); see also Ex parte Cathey , 451 S.W.3d 1, 20 (Tex. Crim. App. 2014) ("It is difficult to credit that a developmental intellectual disability can lie dormant and undiscovered for [37] years and then spring full-grown, like Minerva from Zeus's forehead, only when that person would be exempted from the death penalty if found so disabled."); Leigh D. Hagan & Thomas J. Guilmette, The Death Penalty and Intellectual Disability , 31 FALL CRIM. JUST. 21, 25 (2017) ("Although DSM–5 and the AAIDD reference assessment of adaptive deficits, no evaluation strategy should apply the blinders of single-hypothesis confirmation, selective attention to the evidence, a priori conclusions, or result-driven advocacy.").

As to the first criterion, Robertson's IQ has been tested four times over the course of his life.⁹ Notably, one IQ test was administered to Robertson before the age of 18, and his score of 76 is above the generally-accepted range to meet the criteria for intellectual disability.¹⁰ Court-appointed expert, Dr. Vincent, testified that this score should be weighed heavily, and opined that, from this single score, Robertson did not meet the criteria for intellectual disability. However, Robertson's three subsequent scores (74, 70, and 73) and their confidence intervals (range calculated from the standard error of measurement)¹¹ include scores of 70 or below, and given these borderline IQ scores, Robertson's diagnosis is heavily dependent on his adaptive functioning. See DSM–IV, p. 42 ("Impairments in adaptive functioning, rather than a low IQ, are usually the presenting symptoms in individuals with [Intellectual Disability].").

Both Dr. Cunningham and Dr. Hayes opined that Robertson had significant adaptive functioning deficits,¹² relying upon anecdotal descriptions of third parties of Robertson's childhood behavior (lack of social insight, self-direction, and problem-solving ability; gullibility; poor hygiene; failure to follow instructions for household chores, etc...) and historical records (i.e., academic and vocational records), which demonstrated consistent academic underperformance and limited reading, writing, and math abilities.¹³ In the cross-examination of Dr. Cunningham, however, the state pointed to the results of an essential skills test, administered as a part of Robertson's vocational education, where he exhibited skills, such as: (1) use of a dictionary, telephone directory, and the classified section of the newspaper; (2) completion of a job application; (3) counting money, telling time, reading a thermometer, using a ruler, and expressing the months in the year in order; (4) and the ability to measure liquid and dry ingredients.

Dr. Vincent and Dr. Hoppe found Robertson had no deficits in adaptive skills, opining that Robertson's academic underperformance was attributable to his (1) drug and alcohol abuse, which began at the early age of 12; (2) neglect and lack of supervision; (3) lack of encouragement or available support; and (4) designation of slow learner and hyperactivity issues. They emphasized that examples of...