12, which provided: As to each count, if you find unanimously beyond a reasonable doubt that the aggravating circumstance claimed by the State exists and that it outweighs mitigating circumstances believed to exist, then you shall impose a sentence of death and sign the appropriate verdict form. "She smelled. She had two children of her own, and he often babysat his grandchildren. In October 1999, Trouten traveled to Kansas City, telling her mother she had an interview with Robinson. Though married to Nancy since 1964, Robinson's infidelity was an ongoing issue in their marriage. I hope you do. 60455 evidence for abuse of discretion. Nancy said she stayed with them about an hour, returned to the office, and didn't come home again until dinner. ]), cert. By limiting case-specific questioning that required prospective jurors to assign weight to aggravating or mitigating circumstances and provisionally decide the sentence in light of such facts, Judge Anderson's rulings can be construed reasonably from the record as an attempt to avoid unnecessary delay on a subject that served no useful purpose, i.e., staking out the jury. denied 133 S.Ct. 300 Kan. at 49. As Robinson grew older, the abuse escalated, often leaving him unconscious or bedridden, and his mother isolated him from other family members.. The argument flies in the face of the plain language of K.S.A. Robinson also called Ronald Dillehay, a professor of psychology at the University of NevadaReno with expertise in the design and analysis of venue studies and jury selection procedures. We disagree with the State's attempt to characterize the comments as mere rhetorical expressions. State's Exhibit 5 depicts the entire exchange of messages that occurred between the two on March 2, 2000, including the original message contained in State's Exhibit 4, Remington's response, and Robinson's reply to that response. Judge Anderson's ruling is fairly supported by the record. On voir dire, [a] party may not solicit a promise to return a particular verdict. [Citations omitted. Additionally, Booth obtained a root from one of the hair samples and successfully acquired a genetic profile that produced a match to Trouten. He reported for duty at Great Lakes Naval Base, outside Chicago, Illinois, in early January 1985., Around the time Stasi began dating Carl, the records say, Robinson was looking for a private adoption opportunity for his younger brother, Donald Robinson, and Donalds wife, Helen, who lived in the Chicago area. After the district judge ruled, defense counsel continued to inform prospective jurors of the alleged case-specific facts they believed to be most inflammatory or which had the greatest potential to create bias among members of the venire, including the fact that multiple people were murdered, along with the gender, age, and disability status of the victims. It creates the potential for multiple punishments for a single crime, offending the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. In 1964, at the age of 21, John Robinson married Nancy Jo Lynch. We apply the following standard of review to scope of voir dire challenges: Generally the nature and scope of the voir dire examination is entrusted to the sound discretion of the trial court. That's why we have them. When asked if she could commit herself to follow those rules, Juror 336 said, I would think so. In follow-up questioning, defense counsel asked if she still had difficulty with the fact that Kansas law did not offer life without parole. In some contexts, juror instructions are insufficient to cure the taint created by prejudicial information. I am not prohibiting the defense from going into the basic sketch of the factual allegations in the fashion that [defense counsel] gave the other day. 12 and 13 and in the four verdict forms that describes a jury decision not to impose the death penalty as an inability to reach a decision. See State v. Longoria, 301 Kan. 489, 522, 343 P.3d 1128 (2015) (while not excusing prosecutorial misconduct, the defense counsel's closing arguments provide context for the State's rebuttal statements); State v. Marshall, 294 Kan. 850, 86061, 281 P.3d 1112 (2012) (defendants do not open the door to prosecutorial misconduct, but rebuttal nature of prosecutor's arguments is a factor to be considered by appellate court). Any question concerning the constitutionally permissible scope of voir dire in capital proceedings necessarily begins with a discussion of Morgan v. Illinois, 504 U.S. 719, 72930, 112 S.Ct. On the morning of April 26, Robinson told Neufeld he was leaving for a business trip in Israel and wanted to discuss a plan for her to move to Kansas. He was especially close with his youngest daughter, Christy. Unlike Vrabel, LPD officers' conduct did involve searches and seizures carried out in violation of K.S.A. In late 1999 and early 2000, Trouten prepared for the move to Kansas and her upcoming travels. host = host.toLowerCase(); Defendant's proposed instruction defining common scheme and course of conduct was not legally appropriate, and we hold there was no error. Considering the totality of the circumstances, we hold that the comment was harmless beyond a reasonable doubt. Uttecth is inapposite. The record confirms Jurors 271 and 185 were not similarly situated because the former testified he could consider both sentencing options and the latter testified she could not. "Usually when I found out about [his affairs], it was over. The purpose of the necessity requirement is to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime, United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S.Ct. 213439(a)(6) were not united and fulfilled until the principal charged capital murder victims, Trouten in Count II and Lewicka in Count III, had been killed. If so, I submit that a statutory provision that is facially more analogous to the determination of which crime is applicable is found in K.S.A. Because the last act necessary to trigger application of section 288.5 was an act of molestation that defendant committed after section 288.5's effective date, defendant's conviction was not a retroactive application of section 288.5 and therefore not a violation of the statutory prohibition against retroactive application of the Penal Code. 20 Cal.4th at 15758. The district judge denied defendant's motion to strike the panel but instructed panel members to disregard the prosecutor's comments. That paradigm comports with the long-standing rule that courts are to impose the punishment that was in effect when the crime was committed and precludes the punishment-increasing gamesmanship displayed here. Finally, Robinson argues Judge Anderson's rulings violated the holding of Kleypas. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. During the search of Robinson's residence, law enforcement officers seized a number of incriminating items, including books on creating false identities; a Home Depot credit card bearing the name James A. Turner; IRS Form 1099 statements for Sheila and Debbie Faith; Roadway Inn receipts with Lisa Stasi written on them, reflecting payment for lodging in January 1985; an IRS form signed by Beverly J. Bonner; documents identifying James Turner and John Robinson as affiliated with Equity Financial Group and HydroGro, Inc.; papers and handwritten notes with e-mail addresses associated with the victims and their families; and e-mail communications between Trouten and Robinson. Juror 14 admitted that evidence of six murders would weigh heavily in his sentencing decision and that it would be difficult to consider other sentences in light of such evidence. The same holds true for the fleeting references to Robinson's companies using the Equi title. Detective Frank Booth examined nine of the envelopes mailed to Larry Heath. 2. However, Robinson challenged 19 of these 27 based on death penalty views and 8 on grounds related to bias arising from exposure to media coverage. We apply the same two-part standard of review for alleged prosecutorial misconduct during voir dire. Q. Absent an examined explanation from a defendant, it is difficult to know why a defendant would show or not show a certain behavior or emotion during his or her trial. 5. At the end of her direct examination, prosecutor Welch asked Norman whether Sheila Faith had an interest in BDS & M, which resulted in the following exchange: [Prosecutor]: Now, maam, did you know if your sister Sheilaor are you aware that your sister, Sheila, had an interest in bondage and discipline and sadomasochistic sex? Moreover, the defense had no intention of exposing the jury to the facts supporting the prosecutor's good-faith basis for his questioning. Consequently, the prosecutor could have avoided the need to use preenactment killings to satisfy the killing of more than one person element of capital murder by simply charging the murders of Trouten and Lewicka in one capital count, i.e., alleging that Robinson killed both Trouten and Lewicka as part of a common scheme or course of conduct. at 2769 (Breyer, J., dissenting). In addition, Juror 147's comments were very brief in nature, did not lead to ongoing discussions among jurors, and were made only after the jury had taken a vote in which all were in unanimous agreement as to Robinson's sentence. However, Judge Anderson, who was best positioned to observe demeanor and nonverbal communication, found no substantial impairment from the totality of her responses. The general rule is that an admonition to the jury normally cures the prejudice from an improper admission of evidence. State v. Navarro, 272 Kan. 573, 582, 35 P.3d 802 (2001). State v. Deiterman, 271 Kan. 975, 979, 29 P.3d 411 (2001). 214624(e) (Furse 1995), with one minor alteration. 60419. 1762, 176365, 179 L.Ed.2d 819 (2011) (instructions did not impermissibly encourage death sentence by requiring jury to reject death penalty before considering life sentence); State v. Wakefield, 190 N.J. 397, 47578, 921 A.2d 954 (2007) (defendant was not entitled to a sua sponte instruction on the presumption of life during penalty phase of capital murder trial; although the trial court did not, in so many words, instruct the jury that it must presume a sentence of life imprisonment, it did instruct the jury that a death sentence could be reached only if (1) the jury found the existence of an aggravating factor beyond a reasonable doubt and (2) the aggravating factor outweighed any mitigating factors). This meant innocent individuals could be prosecuted under the law. 222503 and 222505 were enacted together, address the same subject, and are contained in Article 25, Search and Seizure, of the Kansas Code of Criminal Procedure, they are in pari materia and must be construed together and brought into harmony. Preliminarily, I address the State's argument that these rebuttal comments were proper because they were made in response to defendant's closing argument. Robinson was looking for a white woman in her teens or early 20s, who had a newborn child, was struggling or disadvantaged, and had no family support or ties. Neufeld left behind her rattan-type canes and a mesh bag full of sex toys, which she valued at $700. Wood confirmed that he had never represented Robinson or any member of his family in any adoption proceeding nor received payment from Robinson for such legal work. And here, the prosecutor incorporated most of the statutory words into the complaint, albeit not in the same order as set forth in the statute. at 2757 (Breyer, J., dissenting). Ungar v. Sarafite, 376 U.S. 575, 589[, 84 S.Ct. Izabela Lewicka was born in Poland on April 11, 1978. Finally, Robinson takes issue with prosecutor Morrison's personalized attack of arguments advanced by defense counsel. Before that moment, any error qualified as invited. Robinson contends the district judge erroneously denied his challenge of Juror 23 because pretrial publicity would cause him to shift the burden of proof to Robinson. Judge Anderson agreed the comments were troubling but did not believe they were going to be a factor with the other panel members. Because the State's two theories as to how Robinson took Trouten could support but one conviction, rather than two, Count I and the State's evidence supporting it did not constitute a multiple acts case. The email address cannot be subscribed. 2329, 138 L.Ed.2d 874 (1997) ]. Williams, 553 U.S. at 30506. When read in context, it is apparent that Judge Anderson referenced the DPDU and Robinson's decision to hire Thomas, not to blame Robinson for any delay resulting from that decision, but to summarize the sequence and timeline of events, highlight the purpose and scope of the appointment of cocounsel, and emphasize that Thomas and appointed counsel had the benefit of more than a year's worth of the DPDU's work on the case. Robinson's counsel objected, arguing that the circumstances the prosecutor had identified were not all valid, statutory aggravating circumstances. 082171JWL, 2009 WL 129367, at *4 (D.Kan.2009) (unpublished opinion) (in 42 U.S.C. See Novotny, 297 Kan. at 118990 (assuming prosecutor's comment on defendant eye-balling the witnesses was misconduct). During rebuttal closing, prosecutor Morrison argued against Robinson's impassioned plea for mercy during his closing, and in the process used the movie Tender Mercies as a rhetorical device: There's an old movie out several years that had Robert Duvall, he was a down and out alcoholic country singer and the movie was called Tender Mercies. Thompson examined the plastic sheeting and duct tape and developed four latent prints of value. Indeed, in this very case, the district court sentenced the defendant to a hard 15 life sentence for the killing of Stasi. Robinson cites no authority directly supporting his theory of prejudice or resentencing as a proper remedy, and, even if there were, we hold the death verdict actually rendered in this trial was surely unattributable to the fact that the prosecution charged Robinson with two counts of capital murder instead of one, as both convictions supported but one aggravating circumstance and no new evidence was admitted during the penalty phase to support it. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. Finally, Robinson suggests media coverage spilled into the courtroom itself when jurors were exposed to prejudicial comments during voir dire. It was not until Mattingly's direct examination at trial that she clarified that she had first observed Robinson cleaning unit F10 and then, at a later point in time, received the complaint from the third-party lessee. In fall 1984, Robinson told Donald and Helen a baby would be available in October. The warrant shall be directed to any peace officer of the state of Kansas, or one of its governmental subdivisions who is authorized to enforce or assist in enforcing any law thereof. 109,760, 2014 WL 3843088, at *7 (Kan .App.2014) (unpublished opinion) (law enforcement could search trash bags set out at curbside for collection), rev. 213439(a)(6) and K.S.A. F037676, 2002 WL 31839361, at *1 (Cal.App.2002) (unpublished opinion) (statements at issue in Mach went to the heart of the credibility of the complaining witness and were made by a person who was an expert in the field; [n]othing of the sort appears in this record.). Both Trouten and Lewicka were killed after the enactment of the capital murder statute. In Johnson v. Texas, 509 U.S. 350, 361, 113 S.Ct. John Edward Robinson Sr., 66, Indianapolis passed away on Monday September 5, 2022. In Locklear, the Washington Court of Appeals reversed defendant's conviction under a state drive-by shooting statute it found to be unconstitutionally vague. In one was Bonner, dressed for cold weather, her body curled up inside. Delo also confirmed that as an inmate ages, he may rely more on manipulation or deception in order to survive and thrive within the prison system. United States v. Simmons, 961 F.2d 183, 184 (11th Cir.1992). He also believes prosecutor Morrison's comments during closing argument were improper if, in fact, KDOC prohibited Internet access to prisoners. 214627(b), recodified as K.S.A.2014 Supp. Robinson believes this testimony should be disregarded because prospective Juror 39 did not say she would assign some weight to all mitigation evidence. The district judge called each juror independently and inquired into the matter before allowing the parties to make their own inquiry. 9. If not sentenced to death, the defendant will peacefully spend the rest of his life in prison. When defense counsel asked whether the coverage had caused her to form any opinions about defendant's guilt, Juror 39 said, Well, from what I've read, it seems that the crimes that were committed were committed by him. After the instruction, the prosecutor commented, Thank you Judge. We affirm Robinson's death sentence under his capital murder conviction in Count II. Robinson used computers and e-mail extensively and also utilized a cell phone and pager. See State v. Scott, 286 Kan. 54, 108, 183 P.3d 801 (2008) (In order for a capital sentencing scheme to pass constitutional muster, it must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. One way in which sentencing schemes do so is in the use of aggravating circumstances. [quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. State v. Noah, 246 Kan. 291, 293, 788 P.2d 257 (1990) (K.S.A. After Robinson's objection, the prosecutor moved on to other issues at the district judge's urging and made no further reference to the subject. The elements of the capital murder statute were not completed until Robinson murdered Trouten, under Count II, and Lewicka, under Count IIIacts that occurred subsequent to enactment. The cited authority is distinguishable. Pojman concluded the cause of death was a blow to the left side of the head with a hard object. 52) letter to this court, defendant cites the United States Supreme Court's most recent opinion addressing presumed prejudice, Skilling v. United States, 561 U.S. 358, 38185, 130 S.Ct. 20301a: Such judges shall have the jurisdiction, powers and duties prescribed by this act and otherwise prescribed by law. Robinson placed the dogs in a small kennel and left. Its arrival was somewhat unusual, as Trouten typically called her mother and did not write letters. See Goss v. Nelson, 439 F.3d 621, 627 (10th Cir.2006) (jurors qualified where they can set aside personal opinions and decide on evidence). The results speak for themselves. LPD officers were not acting as private citizens when they conducted the trash pulls. First, during voir dire of the fourth panel, which included petit Juror 39, the prosecutor explained, Mitigating circumstances would be those circumstances that would make it not as bad, if you will, not as morally wrong, if you will, as your typical capital murder. Robinson contends this definition improperly limited mitigating circumstances to the facts of the crime. At this stage, however, the analysis necessarily focuses on the partiality of Juror 184, who was the only member of the panel to serve on the jury. Robinson challenges three instances where the prosecutor allegedly advanced an argument unsupported by the evidence. At that time, Heather Robinson was known as Tiffany Stasi. That's not really the issue. The caution he exercised and the preventative measures he employed were well planned and reasonably calculated to mitigate the risk of extraneous factors influencing the outcome of the guilt phase and penalty phase proceedings. 222616(1) rather than the Sixth Amendment reasonable likelihood of an unfair trial standard embraced by the Supreme Court. Here, the prosecutor's comments about the defendant crying and not cryingwhile seated at counsel tablewere not about evidence that came from the witness stand but rather about what the prosecutor said he observed and his opinion about these observations. 20319. Even if the State could clear the killing of more than one person hurdle, I believe it stumbles in its attempt to tie the Trouten murder to the others to meet the majority's second element . I disagree with the majority's emphasis on the cherry-picked, out-of-context phrase from State v. Harris, 284 Kan. 560, 572, 162 P.3d 28 (2007), to conclude that the multiple killings only need to be related to one another in some way. Slip op. In cases of actual prejudice, the voir dire testimony and the record of publicity [must] reveal the kind of wave of public passion that would have made a fair trial unlikely by the jury that was impaneled as a whole. [Citations omitted. The Zelinka rationale applies equally to Robinson's challenge. However, the Superior Court did not find that the prosecutor had engaged in misconduct by exploring this line of questioning, and it did not suggest that the prosecutor lacked a good-faith basis for such questions. Again, she was convinced Sheila did not write it because of the typewritten format and the nature of the signature. While Juror 23 said he was interested in hearing any evidence the defense could provide to explain certain media-reported facts, he confirmed that he would comply with the trial judge's instructions. It is the larger picture that determines a capital juror's qualification, and, on review, the question is not whether we agree with the trial court's ruling, but instead whether it is fairly supported by the totality of the prospective juror's responses. denied 135 S.Ct. He says, gosh, you know, you got you need to, let me live because I'm going to be peaceful in prison, although I haven't demonstrated that.. Robinson fails to demonstrate actual prejudice. The prosecutor complied, defining mitigating circumstances in a manner that drew no further objection. He spun an elaborate tale, according to their testimony, telling them that the mother killed herself after abandoning the child in a shelter. After Tiffany's birth, Stasi's marriage crumbled and Carl reenlisted in the Navy. Only 10 days later, the legislature enacted Senate Bill 742, enacting K.S.A. The defense retained Delo, a retired prison warden and correctional consultant, to assess Robinson's propensity for violence in prison. John Edward Robinson was born on December 27, 1943. Both murders were committed subsequent to the enactment of the capital murder statute. Yep. Three latent prints lifted from the original alimony checks matched Robinson's known prints. As such, we find K.S.A. [Citations omitted. See Carr, 300 Kan. at 121 (no error in denying challenge of allegedly mitigation-impaired jurors; selected passages from the questionnaire and voir dire responses of these [challenged] prospective jurors yield cause for concern, but they eventually professed understanding of and fidelity to the law). "I don't understand all this.". Request for Continuance at the Outset of the Penalty Phase. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. Both the Petition and Decree appeared to be notarized by Evi Gresham, who had been in a BDS & M relationship with Robinson in the early to mid1980s, but Gresham had never seen the documents, her name was misspelled, and she was never a notary public. Remington introduced Trouten to her friend, Tami Taylor, who also lived in Canada, shared an interest in BDS & M, and became another friend. 6th 253 (Authentication of Electronically Stored Evidence) 2, pp. The majority is apparently implying that the defendant was guilty of the capital murder of Trouten and the capital murder of Lewicka and that the murders of the four other women simply served as proof of a common scheme or course of conduct. Judge Anderson liberally excused panelists holding preconceived opinions, granting 92 of the 100 challenges defendant asserted on this basis. Finally, Robinson contends that petit Juror 246 was exposed to similar misstatements of the law. Doesn't necessarily mean you have to give a lot of weight to it or even any weight, but you shall consider. Moments later, prosecutor Morrison commented: Does everybody here understand it is for you to determine what, if any, weight you give to an aggravating circumstance or a mitigating circumstance? Defendant argued the district court's refusal to grant a continuance denied him a defense at trial because without the video recording, he was unable to impeach law enforcement testimony regarding the interview. John Edward Robinson was born in Cicero, Illinois. 79. Even if erroneous in some way, instructions do not result in reversible error if they properly and fairly state the law as applied to the facts of the case and could not reasonably have misled the jury. Donald and Helen named the baby Heather Tiffany Robinson. Challenges for cause, therefore, are reviewed on appeal under an abuse of discretion standard of review. Manning, 270 Kan. at 691. The prosecutor's inquiry was proper. Nancy said Robinson played an important role in the lives of his children and actively participated in and attended their activities, the appeal said. The prosecutor's description of mitigating circumstances was consistent with Kansas law.