Opinion
NO. 2013-CA-001079-MR
02-27-2015
DEMARCUS ROBINSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Roy A. Durham Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 13-CR-00002
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND NICKELL, JUDGES. ACREE, CHIEF JUDGE: Demarcus Robinson appeals the May 30, 2013 judgment of the Hickman Circuit Court after he was convicted by a jury on May 21, 2013. Robinson alleges error in the introduction of statements made after purportedly invoking his Constitutional right to an attorney, as well as text messages he claims should have been excluded under Kentucky Rules of Evidence (KRE) 401 and 403. Finding no error, we affirm.
I. Background
On November 8, 2012, Ryan Thomas attempted to purchase marijuana from Dominique Harper. When the original meeting place was deemed unsuitable, Harper and Thomas engaged in a series of text messages, eventually settling on another location for the exchange. Unbeknownst to Thomas, Harper planned to rob Thomas and had enlisted Robinson as an accomplice.
After Thomas arrived at the new meeting location, both Harper and Robinson approached Thomas's car, placed pistols against his head, and demanded his money. When he refused, Harper and Robinson began pistol whipping Thomas. Eventually, Robinson shot Thomas in the leg.
After the shooting, Thomas complained to police, providing them information necessary to obtain an arrest warrant for Robinson. Subsequent to his arrest and an appropriate warning under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), Robinson said, "When I get a lawyer tomorrow, I'll tell you what I know, man." The police officer asked if Robinson wanted an attorney. Robinson did not at first respond directly, stating, "I knew I shouldn't have went, man." The officer again asked if he was requesting an attorney. After Robinson responded clearly that he wanted an attorney, the police officer stopped asking questions. Robinson went on to make the following unsolicited statements: "I wasn't even supposed to be there, man"; and "I said no man, and I went on doing it anyway, man." Eventually, the Commonwealth obtained the messages exchanged between Harper and Thomas for use against Robinson at trial.
Before trial, Robinson moved to exclude both his statements to police and the text messages between Harper and Thomas. Robinson contended the text messages were irrelevant, and that his statements during the interview were not admissions or statements against interest. At the first trial, the court allowed introduction of the four statements made to the police with all mention of his request for an attorney redacted, but precluded the text messages without proof of a nexus between the messages and Robinson. Robinson's first trial ended in a mistrial due to a jury deadlock. At the second trial, the court made the same ruling with regard to the statements, but changed its previous ruling to allow the introduction of the text messages, finding them relevant to show the circumstances of the incident. During the proceedings, the Commonwealth only introduced one of the text messages. Robinson was convicted at the second trial of second degree robbery, first degree wanton endangerment, and second degree assault.
II. ANALYSIS
In his motion in limine, Robinson asked that his statements to the police to be excluded because they did not contain any admissions or statements against his interest. Immediately preceding the trial, counsel for Robinson renewed this objection but did not state any other basis beyond those outlined in the motion. The parties stipulated that, prior to the statements, Robinson had been given the appropriate Miranda warning. The trial court ruled that the statements were made voluntarily to the police and were admissible so long as they were redacted to remove any reference to Robinson's desire for an attorney.
On appeal, Robinson now changes tack, arguing that his statements during the interview were obtained in violation of his right to counsel under relevant section of both Kentucky and the Federal Constitutions. Robinson claims that, since all four statements occurred after he said "when I get a lawyer tomorrow," the police officer violated his rights by failing to discontinue the interrogation.
This issue is unpreserved on appeal. "An appellant preserves for appellate review only those issues fairly brought to the attention of the trial court." Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2013) (citing Richardson v. Commonwealth, 483 S.W.2d 105, 106 (Ky. 1972)). To properly preserve an evidentiary objection, an appellant must state the same grounds for his objection at trial as he does on appeal. See Young v. Commonwealth, 50 S.W.3d 148, 168 (Ky. 2001) (holding an evidentiary objection unpreserved on appeal because it was objected to on different grounds before the trial court.).
As in Young, Robinson now alleges different grounds for his objection than he did at trial. His objections from the motion in limine and during both trials were solely based on the contention that the statements did not contain admissions, not that Robinson suffered violation of his right to counsel.
Because Robinson's argument is unpreserved, we review only for palpable error under RCr 10.26. Palpable error exists only when an appellant suffers trial error so egregious as to result in manifest injustice. Elery, 368 S.W.3d at 98 (quoting RCr 10.26). Such injustice occurs only when error "threaten[s] a defendant's entitlement to due process of law. . . ." Martin v. Commonwealth, 207 S.W.3d 1, 3-4 (Ky. 2006).
We find no such error here. Robinson acknowledged prior to trial that he had received the appropriate Miranda warnings prior to all four statements during his police interview. Robinson's comment that he would cooperate with authorities after getting a lawyer "tomorrow" prompted the police officer to ask Robinson to clarify that he was asking for an attorney. Before the officer asked additional questions, Robinson made the additional statements of his own volition and without any prompting by the police officer. Robinson was clearly aware of his rights, and the police officer did not perform any improper questioning after Robinson had invoked his right to an attorney. Therefore, the trial court did not commit palpable error when it admitted Robinson's statements.
Next Robinson argues that the trial court erred by admitting a photo of a text message between Thomas and Harper. At trial, the Commonwealth only admitted one photo of one message into evidence. It included the statement, "no funny business tho. Ill have my girlfriends baby with me cuz she needs a sitter [sic, passim]." On appeal, Robinson argues that the text message was not relevant and that, in the alternative, its probative value was not substantially outweighed by the danger of undue prejudice. We review for an abuse of discretion. Brewer v. Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
This message was indeed relevant to Robinson's trial, and therefore the trial court did not abuse its discretion in admitting it into evidence. KRE 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Here, the trial court found that the text messages were relevant to show that the incident from which Robinson's charges arose was a drug deal gone wrong. The text message tended to make more probable the circumstances surrounding the robbery—specifically, the message shows that Robinson's accomplice coordinated the meeting with the victim, and that the victim was aware of the possibility that the meeting could become violent. Therefore, the trial court did not abuse its discretion in finding the text message relevant under KRE 401.
However, Robinson argues that even if the message is relevant, its prejudicial and inflammatory nature substantially outweighs its probative value. In support of this argument, Robinson correctly notes that KRE 403 cabins the wide latitude for admitting relevant evidence under KRE 401, providing that even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of undue prejudice."
However, despite this contention, Robinson provides no specific description of the prejudice caused by the introduction of the photo. Neither does he provide any cases with similar fact patterns that hold comparable evidence inadmissible under KRE 403. The text message offered by the Commonwealth was introduced through the testimony of Thomas, who also addressed the content of other texts sent to Harper before the incident. This indicates that the message was "intertwined with the other evidence" and was correctly "admitted in order to paint an accurate picture of the events in question." Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012). On balance, this message merely illuminated the events leading up to the robbery.
Moreover, the trial court took steps to ensure that the evidence was introduced in the proper context, thus limiting the possibility of undue prejudice from any confusion as to the parties that exchanged them. The trial court required that the Commonwealth clearly elicit the names of the persons involved in the text message. In light of these facts, the admission of the text messages was not "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 933 S.W.2d at 945, and the trial court did not abuse its discretion here.
The judgment of the Hickman Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Roy A. Durham
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky