Robertson v. State

Citations: 347 S.W.3d 460; 2009 Ark. 430; 2009 Ark. LEXIS 602Docket: CR 09-159

Court: Supreme Court of Arkansas; September 24, 2009; Arkansas; State Supreme Court

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Diana Nichole Robertson appealed her convictions for capital murder, aggravated robbery, and arson, receiving sentences of life imprisonment without parole, twenty-five years, and ten years, respectively. The case stems from events involving Robertson and her boyfriend, Maurice Leflore, who engaged in a prostitution operation and targeted O.V. Johnson for his gun collection. After a series of events, including sexual encounters involving a minor, B.M., Robertson and Leflore plotted to kill Johnson. On November 26, 2007, Leflore shot Johnson while Robertson facilitated the crime. They subsequently stole Johnson's guns, disposed of them, and burned Johnson's body. Robertson later turned herself in on charges related to the events.

On appeal, Robertson argued that the trial court erred by not instructing the jury on the affirmative defense of duress for the capital murder charge. The court found this issue unpreserved for review, as Robertson failed to provide the proposed duress instruction in the record, which is necessary to demonstrate judicial error. The court emphasized that the appellant must present a sufficient record for appeal consideration, referencing previous cases that outline the requirements for preserving objections to jury instructions. The court affirmed the lower court's decision, finding no reversible error.

An instruction not included in the record cannot be addressed on appeal. Robertson presented a duress instruction related to her arson charge under AMCI 606, which the circuit judge accepted for consideration. However, the judge declined to apply this instruction to the murder charge, citing three reasons: (1) evidence of duress pertained to events post-murder, (2) there was no specific threat related to the murder, and (3) Robertson acted recklessly in her situation leading up to the murder and robbery. Despite the judge's rationale, Robertson did not preserve the duress instruction in the record for review, leading to an affirmation of this point.

Regarding her right to counsel, Robertson argued that her December 5, 2007, videotaped statement should be suppressed because it was made after she invoked her right to counsel. On December 3, 2007, she turned herself in for a sexual assault warrant, signed a waiver of rights, and was questioned. During this questioning, she asked if she needed a lawyer but continued talking afterward. On December 5, after being transported for further questioning about a murder, she was again read her Miranda rights and signed another waiver. She admitted her involvement in the murder and led detectives to evidence, although they did not recover the murder weapon. During a subsequent videotaped interview, she recited her Miranda rights from memory and detailed her involvement in the murder. Despite her claims regarding the request for an attorney, the circuit judge ultimately denied her motion to suppress the statement and the evidence obtained.

Robertson questioned whether she had missed her court date during her December 5 interview, believing she would obtain an attorney. However, all four detectives testified that Robertson did not request an attorney off the record, with her only reference occurring on December 3, when she asked if she needed a lawyer. The circuit judge concluded that any request or mention of a lawyer was unclear and equivocal. Robertson argues that her December 3 inquiry should be considered an invocation of her right to counsel, and that her belief in an upcoming appointment for legal representation on December 5, along with her claims of making unequivocal requests for an attorney during that interrogation, warrant suppression of her statement. 

The court must determine if Robertson sufficiently invoked her right to counsel during the December 3 interrogation. It has been established that to invoke the Miranda right to counsel, the request must be unambiguous and unequivocal. An equivocal request does not obligate police to cease questioning, and interrogation can continue until a clear request for counsel is made. Prior case law indicates that questions like "Do I need a lawyer?" are not sufficient to constitute unequivocal requests for counsel. In Robertson's case, her question was deemed analogous to those in previous rulings where similar inquiries were rejected as ambiguous. Consequently, the court held that Robertson's question did not meet the required standard to compel officers to stop questioning, nor did her inquiries about her bail hearing indicate a need to cease interrogation.

An accused individual must clearly express a desire for counsel such that a reasonable police officer would recognize it as a request. In Robertson’s case, her inquiries about making bail did not constitute a request for an attorney. The police officers involved testified that Robertson did not ask for a lawyer on December 3 or December 5, contradicting her assertion that she made such requests off the record. The circuit judge found the officers' testimony more credible than Robertson’s, and this court defers to the judge's credibility assessments. 

Robertson also argued against the admissibility of hearsay evidence related to a conversation overheard by B.M., who testified about Robertson and Leflore discussing a robbery plan. Initially, the circuit judge sustained Robertson's objection but later ruled the testimony admissible under the state-of-mind exception to hearsay. Robertson contended that the evidence should have been excluded since it pertained to a rejected plan, and she argued that the statement about a potential shooting implied her involvement. The State countered that Robertson did not preserve this issue for appeal and that her current arguments differed from those made at trial. The State also noted Robertson's failure to cite supporting legal authority in her appeal.

Robertson moved to exclude witness testimony about statements made by Leflore, arguing these were hearsay under Arkansas Rule of Evidence 802 because the State had not established a conspiracy to qualify the statements as co-conspirator admissions under Rule 801(d)(2)(v). During B.M.'s direct testimony, a question about Leflore's statements prompted an immediate, albeit vague, objection from Robertson's counsel, which the circuit judge sustained. The prosecutor later contended that the statements were admissible under various exceptions, including statements against interest and present sense impression. However, the judge ultimately ruled that Leflore's statements were not admissible as a statement against interest under Rule 804(b)(3).

After the State's evidence, the prosecutor proffered B.M.'s testimony again, which the judge had excluded. The judge then referenced Rule 803(3), which allows for the admission of evidence regarding a person's then-existing mental state. The judge determined that motive and intent were relevant in criminal cases, citing Haire v. State. Despite defense counsel's objection, they did not contest the applicability of Rule 803(3) during the proceedings, which meant that this argument could not be raised on appeal. Consequently, the court found no reversible error and affirmed the ruling.