State v. Robinson

Decision Date01 April 2005
Docket NumberNo. 91,875.,91,875.
Citation33 Kan.App.2d 773,109 P.3d 185
PartiesSTATE OF KANSAS, Appellee, v. TIMOTHY ROBINSON, Appellant.
CourtKansas Court of Appeals

Shawn Minihan, assistant appellate defender, for appellant.

Bobby J. Hiebert, Jr., assistant county attorney, Ellen Mitchell, county attorney, and Phill Kline, attorney general, for appellee.


Rev'd and remanded with directions 281 Kan. ___, ___ P.3d ___ (April 28, 2006).


Timothy Robinson appeals his convictions of possession of marijuana and drug paraphernalia, claiming his right to confront witnesses was violated when the trial court allowed his confession to be admitted into evidence. Because the Confrontation Clause of the United States Constitution deals with witnesses against a defendant and the cases dealing with the topic look at out-of-court statements made by those witnesses, not confessions, we conclude that Robinson has no constitutional right to confront himself. Also, since Robinson failed to object to the admission of his confession and even used it in his defense, we find no error in his confession being admitted.

Furthermore, Robinson complains that when the trial court taxed $745 in attorney fees as well as a $50 administrative fee as costs in his case, it failed to first consider his financial resources before they were taxed. Because the reimbursement statute, K.S.A. 2004 Supp. 22-4513(b), permits the defendant at any time to petition the court to waive all or part of these costs and Robinson has not done so, we conclude he has not been prejudiced by the entry of this amount and his appeal on this point is premature. Accordingly, we affirm.


The circumstances of Robinson's arrest are undisputed. Timothy Robinson was standing in the apartment of Marshall Matthews when law enforcement officers came to execute a search warrant. After entering the apartment, the officers detected a strong odor of burnt marijuana. They observed a partially burnt marijuana cigar positioned on top of open digital scales, an open box of cigars, and a pair of scissors. Continuing their search of the apartment, officers found other drug items.

Robinson was advised of his Miranda rights and was taken to the police station. He waived his rights under Miranda and agreed to speak with the officers. Robinson stated that he and Matthews had shared the marijuana "blunt" found on top of the digital scales and had smoked it inside of Matthews' residence.

Because of his prior conviction for marijuana possession, Robinson was charged with felony possession of marijuana. He was also charged with misdemeanor possession of drug paraphernalia. At trial, Robinson's statements to the police were admitted. After being found guilty of both charges, Robinson was sentenced to 17 months' incarceration for felony possession of marijuana and 90 days in jail for misdemeanor possession of drug paraphernalia. He was placed on probation.


Robinson raises two issues. First, he claims that the introduction at trial of his statements to the police violated the Confrontation Clause of the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights, requiring this court to reverse his conviction and remand for a new trial. Second, Robinson complains the district court imposed $745 in attorney fees and a $50 administrative fee in contravention of K.S.A. 2004 Supp. 22-4513(b) because it failed to consider his financial resources or the burden imposed by such a payment before ordering him to pay.

Confrontation Clause

Robinson asserts that a recent United States Supreme Court decision, Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), provides support for his claim. In Crawford, the trial court had admitted hearsay statements of the defendant's spouse made to the police after the spouse became unavailable to testify when her husband invoked the spousal privilege. After finding that such communications were the type of evidence that the Confrontation Clause was meant to eliminate, the court found that the old rules regarding the reliability of evidence could not vitiate the constitutional right to confrontation and ruled the admission of the out-of-court statements violated the Confrontation Clause. 541 U.S. at 50-51.

We do not think Crawford helps Robinson in any way. Our Supreme Court has explained that "Crawford overruled Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), in part and reinforced the necessity of a prior opportunity for confrontation through cross-examination to protect criminal defendants forced to combat hearsay from prosecution witnesses." State v. Carter, 278 Kan. 74, 78-79, 91 P.3d 1162 (2004). The court summarized the Crawford holding as providing that "witnesses' out-of-court statements that are testimonial are barred under the Confrontation Clause unless (1) the witnesses are unavailable and (2) the defendants had prior opportunity to cross-examine those witnesses." State v. Meeks, 277 Kan. 609, 614, 88 P.3d 789 (2004).

We do not think Robinson has a constitutional right to confront himself. Robinson's statements to the police constituted the disputed testimony. The testimony was not an out-of-court statement made by a prosecution witness for which Robinson was entitled to the protection afforded by the Confrontation Clause. His statement was a confession. See, e.g., K.S.A. 2004 Supp. 60-460(f) (previous statement made by the accused may be admitted if the judge finds that the accused "[1] when making the statement was conscious and was capable of understanding what [he or she] said and did and [2] was not induced to make the statement").

Nevertheless, Robinson contends that he was unable to defend himself against his own statement without also relinquishing his Fifth Amendment privilege against self-incrimination. He insists that this situation violated the doctrine of unconstitutional conditions. In other words, he would have to give up a right to gain a right:

"`The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether. It reflects the triumph of the view that government may not do indirectly what it may not do directly over the view that the greater power to deny a benefit includes the lesser power to impose a condition on its receipt.' Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1989)." Mueller v. State, 28 Kan. App. 2d 760, 766, 24 P.3d 149, rev. denied 271 Kan. 1037 (2001), cert. denied 535 U.S. 997 (2002).

This doctrine is illustrated in Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), where the defendant had moved to suppress from evidence a suitcase containing incriminating items. He testified that he owned the seized items during the suppression hearing. The defendant's admissions, made at the suppression hearing, were later admitted at his trial. On appeal, the defendant argued that it was error to admit his testimony because his statement of ownership connected him to the crime. The Supreme Court agreed, stating that the defendant "was obliged to either give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination." 390 U.S. at 394. The Court held that "when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." 390 U.S. at 394.

There were no "unconstitutional conditions" here such as those found in Simmons. Robinson waived his right to remain silent with the police and then did not object when his statements were used to prove his crime. At the trial, the officer testified that Robinson indicated that he understood his Miranda rights before he waived them and agreed to speak with law enforcement. Moreover, the defense elicited further testimony regarding Robinson's statements during cross-examination of the officer.

The Confrontation Clause of the United States Constitution does not apply when a court is dealing with a defendant's confession. An elaborate body of law affording many safeguards to the accused has grown over the years as courts have construed the Fifth Amendment privilege against self-incrimination. A thorough system of warnings and procedures has developed as a result of court decisions and the enactment of statutes dealing with confessions. Therefore, the rule in Crawford v. Washington does not apply to confessions.

Furthermore, Robinson's failure to object means he failed to preserve this issue for appeal. See State v. Diggs, 272 Kan. 349, 365, 34 P.3d 63 (2001); see also K.S.A. 60-404 (timely objection stating specific ground required). Where a defendant fails to object to the introduction of a confession, this court has no obligation to become a finder of fact and make a determination of voluntariness where no record on the issue exists. State v. Bornholt, 261 Kan. 644, 653, 932 P.2d 964 (1977); see also State v. Daniels, 278 Kan. 53, 66, 91 P.3d 1147,cert. denied 125 S. Ct. 485 (2004). We see no error here.

Attorney Fee Assessment

According to K.S.A. 2004 Supp. 22-4513(a) and (b), the district court must order every convicted criminal defendant to reimburse the State Board of Indigents' Defense Services (BIDS) for expenditures for counsel and other defense expenses. See Walker v. State, 26 Kan. App. 2d 410, 412, 988 P.2d 283, rev. denied 268 Kan. 896 (1999).

K.S.A. 2004 Supp. 22-4513(a) and (b) provide:

"(a) If the defendant is convicted, all expenditures made by the state board of indigents' defense services to provide counsel and

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3 cases
  • State v. Robinson, No. 91,875.
    • United States
    • United States State Supreme Court of Kansas
    • April 28, 2006
    ...court was delivered by BEIER, J.: This case arises on petition for review from the Court of Appeals' decision in State v. Robinson, 33 Kan.App.2d 773, 109 P.3d 185 (2005), affirming the district court's assessment of attorney and administrative fees to reimburse the State Board of Indigents......
  • State v. Moody, 92,248.
    • United States
    • United States State Supreme Court of Kansas
    • October 14, 2005
    ...of payment." Previous panels of this court have split in their interpretations of K.S.A.2004 Supp. 22-4513. In State v. Robinson, 33 Kan.App.2d 773, 109 P.3d 185 (2005), the majority held that the sentencing court did not err by failing to consider the defendant's financial resources before......
  • State v. Hemphill, 92,342.
    • United States
    • United States State Supreme Court of Kansas
    • July 15, 2005
    ...consider Hemphill's financial resources before assessing the attorney fees. Our court is divided on this issue. In State v. Robinson, 33 Kan.App. 773, 109 P.3d 185 (2005) (petition for review pending), a panel ruled the trial court did not err by failing to consider defendant's financial re......

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