State v. Robinson

• Citation: 293 Kan. 1002,270 P.3d 1183
• Decision Date: 02 March 2012
• Docket Number: No. 101,657.,101,657.
• Parties: STATE of Kansas, Appellee, v. Elgin Ray ROBINSON, Jr., Appellant.
• Court: United States State Supreme Court of Kansas

270 P.3d 1183

293 Kan. 1002

STATE of Kansas, Appellee,

v.Elgin Ray ROBINSON, Jr., Appellant.

No. 101,657.

Supreme Court of Kansas.

March 2, 2012.

Syllabus by the Court

1. Generally, evidence obtained by the government, either directly or indirectly, as the result of an unreasonable search or seizure cannot be used against the defendant in a criminal prosecution.

2. The State bears the burden to prove the lawfulness of a challenged search or seizure.

3. The protections of the Fourth Amendment to the United States Constitution are not implicated if a defendant lacks a reasonable or legitimate expectation of privacy in the place searched.

4. To establish a legitimate expectation of privacy in the place searched, a defendant must demonstrate a subjective expectation of privacy in the area searched and that the expectation was objectively reasonable.

5. Under the facts of this case, the defendant lacked an objectively reasonable expectation of privacy in Internet search activity, and the trial court properly denied his motion to suppress when (1) the defendant conducted the searches on a computer owned by a third party and located at the third party's place of business; (2) the defendant was not an employee of the business; (3) the defendant was advised that his Internet activity was monitored by a network filter and that the owner of the computer and anyone with administrative privileges could access the defendant's Internet activity; and (4) the defendant's Internet search activity was not password protected.

6. When a defendant challenges his or her statement to law enforcement officers as involuntary, the prosecution must prove the voluntariness of the statement by a preponderance of the evidence.

7. In determining whether a statement was the product of an accused's free and independent will, the trial court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering a nonexclusive list of factors, including: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language.

8. Although a law enforcement officer's threat to convey a defendant's lack of cooperation to a prosecutor is inconsistent with a defendant's right to remain silent as articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), such threats do not render a confession involuntary per se. Rather, they are only one factor to be considered in the totality of the circumstances.

9. Under the facts of this case, the district court did not err in finding the defendant's statements to detectives were voluntarily made and in denying the defendant's motion to suppress when (1) the defendant responded appropriately and coherently to questions asked by detectives; (2) the defendant did not appear overly tired or under the influence of drugs or alcohol; (3) the defendant was of above average intelligence and responded articulately to the investigators' questions; (4) the duration of the interview was not excessive; (5) the defendant was not denied any request to communicate with the outside world or to eat, drink, or use the bathroom during the course of the interview; and (6) the defendant testified that based on his past experience, he understood his Miranda rights and he knew he could cease questioning at any time.

10. The Confrontation Clause of the Sixth Amendment to the United States Constitution bars admission of testimonial hearsay. But if a hearsay statement is nontestimonial, it does not implicate the Confrontation Clause and the only consideration before the court is whether it may be admitted under one of the statutory exceptions to Kansas hearsay law.

11. Under the facts of this case, when challenged hearsay statements were nontestimonial, the trial court erred in admitting the statements under the forfeiture by wrongdoing exception to the Confrontation Clause. Instead, the trial court should have considered whether the statements were admissible under any of the statutory hearsay exceptions found in K.S.A. 60–460.

12. A hearsay statement is admissible under K.S.A. 60–460(d)(3) if the trial court finds: (1) the declarant is unavailable as a witness, (2) the statement was made by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear, and (3) the statement was made in good faith prior to the commencement of the action and with no incentive to falsify or distort.

13. Under the facts of this case, a murder victim's statements to her friends in the months preceding her murder regarding her relationship with the defendant and her statements in the days leading up to her murder regarding her plans to meet with the defendant were all admissible under K.S.A. 60–460(d)(3). The statements were made at a time when the victim had recently perceived the events about which the statements were made and while her recollection was clear, and there was no evidence to suggest the victim made the statements in bad faith or with an incentive to falsify or distort.

14. An appellate court reviews claims that photographs were overly repetitious, gruesome, or inflammatory for abuse of discretion.

15. Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case, as are photographs which materially assist the jury's understanding of medical testimony. Specifically, photographs which aid a pathologist in explaining the cause of death are admissible.

16. Because the State has the burden to prove every element of the crime charged, photographs may be relevant to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, even if the cause of death is not contested.

17. Under the facts of this case, although certain photographs admitted at trial may have been gruesome, and a few repetitious, the photographs were relevant and admissible to demonstrate the manner and violent nature of the murder and to corroborate the primary witness' testimony regarding details of the murder.

18. Under the facts of this case, although some of the photographs admitted at trial elicited emotional responses from jurors, the photos were relevant and admissible.

19. The two-part judicial bias test is restated in the criminal context as follows: When a criminal defendant alleges judicial bias, the defendant first must show that the trial judge has a duty to recuse. Next, the defendant must show actual bias or prejudice that warrants setting aside the conviction or sentence. But bias or prejudice will be presumed when, based on objective standards, the probability of actual bias is too high to be constitutionally tolerable.

20. In reviewing the legal sufficiency of an affidavit in support of a motion for a change of judge, an appellate court has unlimited review, and on appeal must decide the sufficiency of the affidavit and not the truth of the facts alleged. We must examine whether the affidavit provides facts and reasons pertaining to the party or his or her attorney which, if true, give fair support for a well-grounded belief that he or she will not obtain a fair trial. We determine whether the charges are grounded in facts that would create reasonable doubt concerning the court's impartiality, not in the mind of the court itself, or even necessarily in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.

21. Under the identical offense doctrine, if two criminal offenses have identical elements but different penalty classifications, a defendant convicted of either crime may be sentenced only under the lesser penalty provision. The doctrine applies only when two separate criminal offenses are compared.

22. Aiding and abetting is not a separate crime in Kansas. Instead, it extends criminal liability to a person other than the principal actor.

23. The elements of aiding and abetting first-degree premeditated murder, K.S.A. 21–3205(1) and K.S.A. 21–3401(a), and capital murder based on murder for hire, K.S.A. 21–3439(a)(2), are not identical.

Reid T. Nelson, of Capital and Conflicts Appellate Defender Appeals Office, argued the cause and was on the briefs for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by MORITZ, J.:

A jury convicted Elgin Ray Robinson, Jr., of capital murder, rape, aggravated kidnapping, aggravated indecent liberties with a child, and violation of a protection from abuse (PFA) order. The 14–year–old victim of Robinson's crimes, C.B., was 9 months' pregnant with Robinson's child at the time of her murder.

Following the penalty phase of the trial, the jury was unable to reach a unanimous verdict regarding imposition of the death penalty, and the district court sentenced Robinson to life imprisonment without parole, plus 247 months.

In this direct appeal of his convictions and sentence, Robinson seeks a new trial arguing the trial court erred by (1) failing to suppress evidence regarding Internet searches Robinson conducted prior to the murder in which he searched for information on how to kill a baby, how to have a miscarriage, and how to find a missing person; (2) failing to suppress “somewhat inculpatory” statements Robinson made to police regarding his knowledge of C.B.'s disappearance and murder; (3) admitting hearsay statements of C.B. under the forfeiture by wrongdoing exception to the hearsay rule; (4) admitting repetitious photographs of C.B.'s body as it...