State v. Robinson

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,657

STATE OF KANSAS,
Appellee,

v.

ELGIN RAY ROBINSON, JR.,
Appellant.


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.
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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
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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
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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.
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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
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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.

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS and MICHAEL CORRIGAN, judges.
Opinion filed March 2, 2012. Affirmed.

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

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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 was uncovered from a shallow
grave; (5) denying Robinson's motion for a change of judge based on judicial bias; and
(6) instructing the jury on the State's burden of proof. Additionally, Robinson challenges
his sentence for capital murder, arguing the identical offense doctrine entitles him to
resentencing on that conviction. Finding no reversible errors, we affirm Robinson's
convictions and sentence.

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FACTUAL AND PROCEDURAL BACKGROUND

On the evening of June 9, 2006, C.B. went to a skating rink in Wichita with
several of her friends. At some point, C.B. left the skating rink with Robinson's friend,
Everett Gentry. C.B. told her friends that Gentry was taking her to meet Robinson.
Through text messages, C.B. later told her friends that Robinson had not shown up and
that Gentry would drop her off at the skating rink after Gentry took a friend home. C.B.
never returned to the skating rink.

Six days later C.B.'s body was discovered buried face down in a shallow grave
near a field in Butler County. Homicide detectives quickly focused their investigation on
Gentry, who ultimately implicated himself, Robinson, and Theodore Burnett in C.B.'s
murder.

The State charged Robinson with one count of capital murder in violation of
K.S.A. 21-3439(a)(2) (intentional and premeditated killing pursuant to a contract or
agreement or being a party to such contract or agreement), an off-grid person felony; one
count of aggravated kidnapping in violation of K.S.A. 21-3421 (kidnapping by deception
with intent to inflict bodily injury, see K.S.A. 21-3420[c], when bodily harm is inflicted),
a severity level 1 person felony; two counts of rape in violation of K.S.A. 21-3502(a)(2)
(sexual intercourse with a child under age 14), a severity level 1 person felony; an
alternative count of aggravated indecent liberties with a child in violation of K.S.A. 21-
3504(a)(1) (sexual intercourse with a child 14 years of age), a severity level 3 person
felony; and violation of a protection from abuse order in violation of K.S.A. 21-
3843(a)(1), a class A person misdemeanor.

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Testimony of Everett Gentry

At trial, the State established the following facts through Gentry's testimony.

Sometime during the fall of 2005, Robinson spoke with Gentry about C.B.'s
pregnancy and mentioned that he could go to jail for impregnating C.B. Robinson
eventually "started hinting that he needed to get rid of [C.B.]," and at some point, he
asked Gentry to help murder C.B. in exchange for $1,000.

Initially, Gentry believed Robinson would kill C.B. Later, the two men decided
that because Robinson would be the "number one suspect," he should be in Kansas City
when Gentry kidnapped and murdered C.B. However, Gentry was unwilling to commit
the actual murder, so he decided to involve a third person, Theodore Burnett.

Gentry had known Burnett for a few months and sold drugs out of Burnett's
apartment. In exchange, Gentry provided drugs to Burnett. Gentry told Burnett that his
"brother" had a problem, needed someone killed, and would pay someone to do the job.
Burnett agreed to assist.

Sometime before the murder, Gentry and Robinson selected a site near Andover to
bury C.B.'s body. On the day of C.B.'s murder, Gentry drove to the site and dug a shallow
grave. Later that day, Robinson called Gentry and told him C.B. would be at the skating
rink that evening. Near dusk, Gentry picked up C.B. from the skating rink and dropped
her off at his sister's empty apartment. Gentry told C.B. that Robinson was on his way,
and he left.

Gentry then drove to Burnett's apartment, picked up Burnett, and returned to the
apartment where C.B. waited. There, Burnett appeared shocked to learn that the intended
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murder victim was a young, pregnant girl. Burnett told Gentry that he needed to smoke
crack cocaine to calm his nerves, so the two men returned to Burnett's apartment where
Burnett smoked crack. Before leaving his apartment, Burnett grabbed some latex gloves
and a VCR- or TV-type cord from a dresser in his living room. On the drive back to his
sister's apartment, Gentry stopped at a Walgreens to purchase ground coffee and
flashlights to be used in burying C.B.

When Gentry and Burnett returned, C.B was angry that Robinson had not shown
up, and she wanted to go back to the skating rink. Gentry agreed to take her back after he
took Burnett home. At Burnett's insistence, C.B. sat in the front passenger seat, and
Burnett then sat directly behind her in the back seat.

Gentry drove toward Andover and as they neared the planned burial site, he tapped
Burnett on the leg, signaling it was time to kill C.B. When Burnett hesitated, Gentry
tapped him again. Burnett then reached over the front seat and strangled C.B. from
behind with the cord. Afterward, Gentry stopped the car, and Burnett pulled C.B.'s body
out of the car. Because C.B. "was still trying to breathe," Burnett placed a plastic
Walgreens bag over her head "and tried to suffocate her again." The two men then
dragged C.B.'s body toward the grave and placed it face down in the grave. Gentry tossed
C.B.'s sandals into the grave, and the men covered her body with dirt before departing.

Gentry missed a turn on the way back to Wichita and ended up in Rose Hill. As
Gentry turned the vehicle around, Burnett took the cell phone C.B. had used, which
remained in the vehicle, and threw it out the window. After they returned to Wichita,
Gentry paid Burnett $350 in cash and drugs for his participation in C.B.'s murder.

When Robinson returned from Kansas City the following day, Gentry met with
Robinson outside Robinson's grandmother's house and told him what had happened.
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Robinson did not want to know the details of the abduction and murder; instead, he just
"wanted to know if [C.B.] was dead."

Robinson never paid Gentry the agreed-upon payment of $1,000 for the murder,
but prior to the murder, Robinson gave Gentry cash to purchase shovels and flashlights.

Other corroborating evidence

The State presented other evidence corroborating key aspects of Gentry's
testimony.

C.B.'s friends, A.K. and M.D., testified that in the days leading up to the murder,
C.B. communicated with Robinson without her parents' knowledge and made plans to
meet Robinson on the night of her murder. C.B. left the skating rink shortly after the girls
arrived, taking M.D.'s cell phone with her. Throughout the evening, C.B. continued to
communicate with her friends through text messages. C.B. messaged her friends that she
left the rink with Gentry and that he took her to his apartment where she waited for
Robinson. Later, C.B. texted her friends that Robinson failed to show up and that Gentry
would bring her back to the rink after he took a friend home.

A.K. and M.D. attempted to call C.B. after her last message at about 10 p.m., but
the phone went to voice mail, indicating to them that C.B.'s phone either was turned off
or C.B. was talking on the phone.

Robert Taylor testified that on June 14, 2006, he drove to a field near Andover on
his lunch break from a job at a nearby construction site. There, he noticed a lump or
mound near the field and an odor that smelled as though "somebody buried an animal or
something." He returned the following day with a coworker, Sam Clayton, to examine the
mound more closely. Upon examination, Taylor and Clayton could see part of a body
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protruding from the mound. They immediately contacted the Butler County Sheriff's
office, which in turn contacted the Wichita police.

Law enforcement officers testified that on June 15, 2006, C.B.'s body was
uncovered, buried face down in a shallow grave in Butler County, near the entrance to a
field. It appeared to the officers that C.B.'s white flip-flops had been "tossed in" after her
body was placed in the grave. C.B.'s head was covered with two plastic Walgreens bags
and a Playstation cord was tied around her neck. The medical examiner testified C.B.
died as a result of ligature strangulation and that the pressure marks on both sides of
C.B.'s neck suggested she was strangled from behind.

Through Detective Timothy Relph, the State presented testimony analyzing
Gentry's cell phone records. The records showed that Gentry's phone communications
with Robinson near the time of murder were transmitted through cell phone towers near
Andover and Rose Hill.

Detective Relph also introduced a surveillance photo from the security camera at
the Walgreens where Gentry and Burnett stopped on the night of the murder. Relph
testified that during an interview with Gentry in March 2008, Gentry identified himself in
the photo.

The State also introduced the cell phone C.B. used on the night of the murder,
which was found by Rose Hill police in a ditch next to Rose Hill Road.

Robinson's girlfriend, Kimberly Walterscheid, testified she and Robinson were in
Kansas City on the weekend of C.B.'s murder and that after they returned to Wichita,
Gentry spoke with Robinson outside Robinson's grandmother's house.

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Finally, Wichita Police Detective Robert Stone testified regarding evidence found
during an internal search of a computer used by Robinson in the months preceding C.B.'s
murder. Specifically, Stone testified that his search revealed Robinson searched the
Internet for information on how to kill a baby, how to have a miscarriage, and how to
find a missing person.

Robinson's testimony

At trial, Robinson testified on his own behalf. He essentially admitted his guilt to
the charges of aggravated indecent liberties and violation of the PFA order when he
admitted to having sex with C.B. after she turned age 14 and to contacting C.B. in person
and by phone after he had knowledge of the PFA order. Robinson maintained that he and
C.B. did not have sex until the day after her 14th birthday, but he admitted paternity of
C.B.'s unborn child.

Robinson denied he had any conversations with Gentry about kidnapping or
murdering C.B., denied offering to pay Gentry or anyone else to murder C.B., and denied
setting up a meeting with C.B. on the night of her murder. Robinson also claimed he did
not know C.B. would be at the skating rink on the night she was murdered.

Nevertheless, Robinson admitted that before C.B. went missing, he spoke with
Gentry about C.B.'s pregnancy and advised Gentry he was "in trouble." He explained to
Gentry that C.B.'s parents wanted to put him in jail and that he could go to prison for 12
years. Robinson specifically testified he "told [Gentry] he needs to help me come up with
somethin'."

Regarding his Internet searches, Robinson explained that he and C.B. initially
talked about finding a way to prevent C.B. from having the baby, so he searched the
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Internet for information on how C.B. could have a miscarriage. Further, Robinson
testified he and C.B. talked about running away, so he searched the Internet for
information on how to solve a missing person case.

Robinson admitted he and Gentry exchanged several phone calls while Robinson
was in Kansas City and that the two men met when Robinson returned from Kansas City.
Further, Robinson conceded he told detectives that Gentry told him "the problem is taken
care of," which Robinson understood to mean C.B. was dead.

Finally, Robinson admitted he communicated with C.B. via text messaging while
he was in Kansas City and she was at the skating rink, but he claimed he did not receive
any messages from C.B. after 6:40 p.m. on the night she was murdered. However,
Robinson stipulated to the accuracy of his phone records, which indicated otherwise.

The jury found Robinson guilty of capital murder, one count of rape, aggravated
kidnapping, aggravated indecent liberties with a child, and violation of the PFA order.
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.

Robinson timely appeals his convictions and sentence.

ANALYSIS

The trial court did not err in denying defendant's motion to suppress evidence of his
Internet search activity.

Prior to trial, Robinson moved to suppress evidence of Internet search activity
obtained through the search of a computer Robinson used at the workplace of his mentor,
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Dan Reisig. Robinson contended the search violated his Fourth Amendment right to be
free from unreasonable searches and seizures because the warrant was overly broad and
not supported by probable cause.

The district court conducted two evidentiary hearings on the motion. Highly
summarized, the evidence showed that following C.B.'s murder, Reisig gave the
computer to his attorney, who then turned it over to law enforcement. Pursuant to a
warrant, Detective Stone conducted an internal search of the computer and found that in
the months preceding C.B.'s murder, Robinson searched the Internet for information on
how to kill a baby, how to have a miscarriage, and how to find a missing person.

The district court denied Robinson's motion, finding Robinson lacked a reasonable
expectation of privacy in the computer and therefore lacked standing to challenge the
search. Based on this conclusion, the district court did not address Robinson's challenges
to the validity of the search warrant.

On appeal, Robinson challenges the district court's determination that he lacked
standing, and he reiterates his challenges to the validity of the search warrant. The State
argues the district court properly found that Robinson lacked a reasonable expectation of
privacy in his Internet search activity. Further, the State contends Robinson's claims
regarding the warrant's validity are not properly before this court because they were not
addressed by the trial court. Alternatively, the State argues that even if the trial court
erroneously admitted the challenged evidence, the error was harmless in light of the
substantial evidence of Robinson's guilt.

The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment to the United States Constitution, which
provides:
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"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized."

See Kansas Constitution Bill of Rights, § 15.

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. See, e.g., Herring v. United States, 555 U.S. 135, 139-46, 129 S.
Ct. 695, 172 L. Ed. 2d 496 (2009) (explaining limited applicability of exclusionary rule);
Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)
(explaining fruit of the poisonous tree doctrine). The State bears the burden to prove the
lawfulness of a challenged search or seizure. State v. Morlock, 289 Kan. 980, 985, 218
P.3d 801 (2009). However, the Fourth Amendment is not implicated when the defendant
had no "reasonable" or "legitimate" expectation of privacy in the place searched. See
Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).

Robinson lacked a legitimate expectation of privacy in his Internet search activity.

Thus, as a threshold inquiry, we must determine whether Robinson had a
legitimate expectation of privacy in the evidence at issue here—i.e., his Internet search
activity on a third party's computer.

Although he was not Reisig's employee and he did not own the computer,
Robinson generally argues he had a legitimate expectation of privacy in the contents of
the computer because his account on the computer was password protected. The State
contends Robinson lacked a reasonable expectation of privacy in the contents of the
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computer in light of Reisig's "unfettered, third-party access" to the computer and because
Reisig specifically advised Robinson his Internet activity could be monitored.

To establish a legitimate expectation of privacy, a defendant must demonstrate a
subjective expectation of privacy in the area searched and that the expectation was
objectively reasonable. See State v. Fisher, 283 Kan. 272, 291-92, 154 P.3d 455 (2007)
(finding the defendant maintained "a subjective expectation [of privacy] that was
objectively reasonable" in a trash bag placed approximately 100 yards from the highway
and behind the defendant's rural home). "'The ultimate question is whether one's claim to
privacy from the government intrusion is reasonable in light of all the surrounding
circumstances.' [Citation omitted.]" United States v. Angevine, 281 F.3d 1130, 1134 (10th
Cir. 2002) (public university employee had no objectively reasonable expectation of
privacy in computer files containing child pornography when files were downloaded
using the university network on a university-owned computer, university had explicit
policies on the use of work computers, university warned employees that it reserved the
right to randomly audit Internet use and that network systems administrators could view
data downloaded from the Internet, and employees were permitted to use computers only
for work-related purposes).

Here, the trial court found that Robinson had a limited subjective expectation of
privacy in any password-protected documents, files, and folders found in the computer.
But the court essentially concluded Robinson had no objectively reasonable expectation
of privacy in his Internet search activity because: (1) Reisig's company owned the
computer; (2) Robinson accessed the Internet through the company's network; (3) as a
network systems administrator, Reisig could access Robinson's computer and monitor
Robinson's Internet activity; and (4) Reisig informed Robinson the company could
monitor Robinson's use of the company's network, including his use of the Internet.

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The trial court's factual findings are supported by substantial competent evidence.
Reisig and Robinson both testified at the suppression hearing. Robinson testified he met
Reisig while Robinson worked in the cafeteria of the office building in which Reisig's
company was located. According to Robinson, when Reisig learned that Robinson
aspired to own his own business, Reisig offered to mentor Robinson and invited him to
use an extra computer in Reisig's office during business hours.

Reisig testified Robinson used a computer located in an open cubicle and that the
computer was connected to Reisig's company's network. According to Reisig, he
personally informed Robinson of the company's computer usage and privacy policies,
and Robinson attended a company meeting in which Reisig discussed appropriate "web
surfing" and computer use. Further, Reisig informed Robinson that the company had an
automatic filter which tracked Internet usage and that the company could access
networked computers through the use of administrative privileges.

Nevertheless, Robinson argues that because he had a log-in password, he had an
expectation of privacy in his computer search activity. But Reisig testified that while
Robinson's log-in password allowed Robinson access to the computer's desktop functions
and file systems, Reisig's administrative privileges could override Robinson's log-in
password. Further, Detective Stone testified he discovered evidence of Robinson's
Internet search activity by searching the computer's tracking files, which were not
password protected. Reisig also testified he could review websites visited by Robinson
without requiring Robinson's password.

In sum, the evidence showed that Reisig allowed Robinson, a nonemployee, to use
a networked computer in an open cubicle at Reisig's place of business. Robinson utilized
that computer knowing that his Internet activity was monitored by a network filter and
that Reisig or anyone with administrative privileges also could monitor that activity. And
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while Robinson's log-in password may have protected some files, the only evidence at
issue here—Robinson's Internet search activity—was not password protected.

Under these circumstances, Robinson lacked an objectively reasonable expectation
of privacy in the Internet searches he conducted on Reisig's computer. Therefore, the
district court did not err in finding that Robinson lacked standing to challenge the validity
of the search warrant, and we affirm the denial of Robinson's suppression motion. This
ruling moots Robinson's challenges to the validity of the search warrant and to the trial
court's rulings regarding consent.

The trial court did not err in denying Robinson's motion to suppress statements he made
in a custodial interview.

Robinson next contends he involuntarily made "somewhat inculpatory" statements
during a custodial interview following the discovery of C.B.'s body and the district court
erred in denying his motion to suppress these statements. The State argues the district
court's factual findings regarding this issue are based on substantial competent evidence.
Further, the State contends the trial court properly found, after considering the testimony
of the officers and Robinson at the suppression hearing and reviewing the videotape, that
Robinson's confession was voluntary based upon the totality of the circumstances.

On appeal, Robinson recognizes that throughout the nearly 5-hour custodial
interview, he adamantly maintained his innocence, denying that he wanted C.B.
kidnapped or killed or that he had any involvement in an agreement or contract to kill
her. Nevertheless, he points out that during the interview he made statements implicating
himself "to some extent," and he argues he made these statements involuntarily as a result
of unduly coercive interview techniques used by law enforcement.

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Specifically, Robinson points to statements he made to Detective Jeff Gilmore
during the interview in which he admitted that several months before C.B.'s murder he
told Gentry that he was the subject of a PFA order, that he faced 12 years in prison, and
that he hoped that there would be no DNA (of C.B.'s child) available for testing.
Robinson also conceded to Gilmore that he knew C.B. would be at the skating rink on the
day of her death. Further, Robinson eventually admitted to Gilmore that when Robinson
returned from Kansas City on the Sunday following C.B.'s murder, he spoke with Gentry
in person outside Robinson's grandmother's home. Robinson conceded that during that
conversation, Gentry told Robinson "it was taken care of," which Robinson understood to
mean C.B. was dead.

Robinson contends his statements resulted from direct and implied threats made to
him by detectives regarding his failure to cooperate. Specifically, Robinson points out
that during the interview, Detective Gilmore (1) urged Robinson to show his
compassionate side because nobody would care about him if he lied; (2) urged him to tell
the truth so "people in the case" would see him in more favorable light; (3) told him he
could face the death penalty; and (4) suggested that "someone that will be judging" him
would show him more sympathy if he told the truth. Further, Robinson notes that
Detective Kelly Mar advised him to tell the truth and explained to him that it could be the
difference between "the rest of [his] life and a needle in [his] arm."

We apply a dual standard when reviewing the trial court's decision on a motion to
suppress. First, we review the factual underpinnings of the decision under a substantial
competent evidence standard. Next, we review the trial court's legal conclusion drawn
from those facts de novo. We do not reweigh evidence, assess the credibility of the
witnesses, or resolve conflicting evidence. State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229
(2010).

21



The totality of the circumstances support the trial court's finding that Robinson's
statements were voluntary.

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. In determining whether the 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
the following nonexclusive list of factors:

"'"(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." [Citation
omitted.]'" Stone, 291 Kan. at 21 (quoting State v. Johnson, 286 Kan. 824, 836, 190 P.3d
207 [2008]).

K.S.A. 60-460(f) also governs the admissibility of a defendant's confession or
statements. That statute provides:

"In a criminal proceeding as against the accused, a previous statement by the
accused relative to the offense charged [is admissible], but only if the judge finds that the
accused (1) when making the statement was conscious and was capable of understanding
what the accused said and did and (2) was not induced to make the statement (A) under
compulsion or by infliction or threats of infliction of suffering upon the accused or
another, or by prolonged interrogation under such circumstances as to render the
statement involuntary or (B) by threats or promises concerning action to be taken by a
public official with reference to the crime, likely to cause the accused to make such a
statement falsely, and made by a person whom the accused reasonably believed to have
the power or authority to execute the same." K.S.A. 60-460(f).

22



In arguing the interview techniques used by detectives in this case rendered his
confession involuntary, Robinson relies primarily on State v. Swanigan, 279 Kan. 18, 106
P.3d 39 (2005). There, interrogating officers repeatedly lied to the defendant, who had
been charged with several convenience store robberies, regarding the evidence they
possessed against him. Officers also repeatedly urged the defendant to cooperate and
"come clean" and threatened to report his lack of cooperation to the district attorney,
which the officers said could result in additional robbery charges.

The court in Swanigan initially distinguished Kansas cases finding that a law
enforcement officer's offer to convey a suspect's cooperation to the prosecutor, without
more, does not render a confession involuntary. See Swanigan, 279 Kan. at 33-34 (and
cases cited therein). However, the court then reviewed how other jurisdictions have
treated an issue not previously considered by Kansas courts—i.e., whether threats by law
enforcement officers to convey a suspect's lack of cooperation to the prosecutor can
render a confession involuntary. 279 Kan. at 34-37.

The Swanigan court ultimately concluded that 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). Swanigan, 279 Kan. at 36. Significantly, however, the court
sided with those jurisdictions which have concluded that such threats do not render a
confession involuntary per se, but rather such threats are only "one factor to be
considered in the totality of the circumstances." 279 Kan. at 37.

Applying the totality of the circumstances test in Swanigan, this court found the
defendant's confession involuntary. 279 Kan. at 39. The specific factors the court relied
on in reaching this conclusion included: (1) the law enforcement officers' repeated use of
false information and evidence, (2) the combination of the tactics used by law
23



enforcement, including threats to convey Swanigan's lack of cooperation to the county
attorney and threatening to charge him with additional robberies unless he confessed, and
(3) evidence of the defendant's low intellect and his susceptibility to anxiety. 279 Kan. at
37-39. However, the Swanigan court expressly noted that "any one of these factors,"
when considered alone, might not be sufficient to show coercion. Rather, the combination
of all of these factors led the court to find the statement involuntary. 279 Kan. at 39.

Ultimately, this court in Swanigan reversed the trial court's denial of the
defendant's suppression motion, finding the failure to suppress the defendant's confession
prejudiced the defendant because the State's case relied primarily on that confession. See
279 Kan. at 45-46. Near the end of the opinion, we reiterated that no one circumstance
rendered the confession involuntary, and we cautioned that "a broad reading of our
opinion today is expressly discouraged." 279 Kan. at 44.

Recently, in Stone we reaffirmed Swanigan's strong admonition to consider the
totality of circumstances in determining the voluntariness of a confession. In Stone, as in
Swanigan, this court reversed the trial court's denial of a motion to suppress statements
made by the defendant in a custodial interview based upon the totality of the
circumstances, including: (1) the defendant appeared exhausted during the interrogation,
which began at 1 a.m., and several of his responses were garbled and disorganized; (2)
the detective made misleading and ultimately untrue statements regarding finding the
defendant's semen on the pajamas of the 9-year-old victim; (3) the detective implied that
if the defendant told the truth, the length of his sentence could be affected; and (4) the
detective said the defendant would be viewed as a sexual predator unless he confessed.
See Stone, 291 Kan. at 22-33.

Here, in arguing his statements were involuntary, Robinson relies almost solely on
statements made by the detectives in his interrogation. Specifically, he focuses on the
24



officers' suggestions implying that if he told the truth, he could avoid the death penalty
and decision makers would view him in a more favorable light.

The trial court, which heard the testimony of the officers and watched the full
video of Robinson's interview, concluded that while the detectives "played toward Mr.
Robinson's emotions" to elicit information and persuade him to tell the truth, they did not
induce any false statements through promises.

Arguably, the statements Robinson objects to here were implied offers to convey
his cooperation to the prosecutor, rather than threats to convey his lack of cooperation. As
discussed above, only the latter implicate the defendant's right to remain silent.

Nevertheless, even if we disagreed with the trial court's characterization and ruling
regarding the propriety of these statements, that conclusion would not require suppression
of Robinson's statements. Instead, Swanigan and Stone dictate that a law officer's threat
to convey a defendant's lack of cooperation, while inconsistent with the defendant's right
to remain silent, does not render a confession involuntary per se. Rather, such threats are
only "one factor to be considered in the totality of the circumstances." Swanigan, 279
Kan. at 37.

Here, while detectives repeatedly confronted Robinson with the evidence, there is
no suggestion that they lied about the evidence during any point in the interview, as did
the officers in Swanigan. And although Robinson indicated during the interview that he
was "tired" and could not "keep [his] head up," it is clear from the transcript and
recording of the interview that Robinson responded appropriately and coherently to
questions asked, and he did not appear to be overly tired or under the influence of drugs
or alcohol.

25



Nor is there any evidence suggesting Robinson had a low intellect or was
susceptible to anxiety like the defendant in Swanigan. Instead, the trial court found
Robinson had above average intelligence and responded articulately to questions. And
nothing in the record suggests the duration of the interview was excessive or that
Robinson was denied any request to communicate with the outside world or to eat, drink,
or use the bathroom during the course of the interview.

Significantly, Robinson's own testimony at the suppression hearing supports the
voluntariness of his statements. Robinson not only testified that he understood and
waived his Miranda rights, but that the Miranda rights had been read to him on five prior
occasions. Robinson told the court that based on his past experience, he knew he could
stop the questioning at any time.

Further, Robinson testified at the suppression hearing that he was able to think for
himself during the interview and that while he understood that detectives wanted him to
admit that he hired Gentry and Burnett to kill C.B., he never admitted any of those facts.
Moreover, Robinson specifically agreed with the prosecutor's statement that Robinson
was "not so overwrought or pushed around by Detective Gilmore to admit the things
[Gilmore] wanted [him] to say."

Under the totality of the circumstances, we conclude the trial court did not err in
finding Robinson's statements to detectives were voluntary, and we affirm the trial court's
denial of Robinson's motion to suppress his statements.

The trial court correctly admitted C.B.'s hearsay statements, although for the wrong
reason.

Robinson next contends the district court erred in finding that several hearsay
statements C.B. made to her friends were admissible under the forfeiture by wrongdoing
26



exception to the Confrontation Clause of the Sixth Amendment to the United States
Constitution.

Before trial, the State moved to determine the admissibility of hearsay statements
C.B. made to her friends in the months preceding her murder regarding her relationship
with Robinson and statements she made in the days leading up to her murder regarding
her plans to meet with Robinson. The State argued C.B.'s statements were nontestimonial
and admissible under both the forfeiture by wrongdoing exception to the right of
confrontation and K.S.A. 60-460(d)(3). At the motion hearing, defense counsel agreed
the statements were nontestimonial but asserted Robinson's "right to confrontation and . .
. his right to object to any hearsay statements the State plans to offer."

The trial court admitted the statements under the forfeiture by wrongdoing
exception, citing Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488
(2008). The court found the evidence presented at the preliminary hearing was sufficient
to establish by a preponderance of the evidence that Robinson procured C.B.'s absence in
order to prevent her from being a witness against him regarding the potential rape charge.

Robinson renewed his objection to the admission of C.B.'s hearsay statements at
trial, arguing the evidence did not support application of the forfeiture by wrongdoing
exception. The trial court reaffirmed its prior ruling and granted Robinson a continuing
objection. As a result, the trial court permitted the State to introduce (1) C.B.'s statements
to her friend A.K. that C.B. had sexual intercourse with Robinson when C.B. was age 13,
as well as on other occasions after her 14th birthday; (2) C.B.'s statements to A.K.
regarding her plans to meet Robinson on the Friday of her death; (3) messages between
C.B. and Robinson leading up to her death; and (4) C.B.'s text messages to, and
conversations with, A.K. and M.D. indicating she left the skating rink with Gentry and
that she expected him to take her to meet Robinson.
27




After the State rested, Robinson unsuccessfully moved to strike all of C.B.'s
hearsay statements, again arguing the evidence did not support application of the
forfeiture by wrongdoing exception.

The trial court erred in applying the forfeiture by wrongdoing exception.

On appeal, Robinson concedes C.B.'s statements were nontestimonial but argues
the trial court erred in admitting the hearsay statements because K.S.A. 60-460 contains
no hearsay exception based on forfeiture by wrongdoing. Alternatively, Robinson argues
the exception does not apply because the evidence does not support the trial court's
finding that Robinson killed C.B. with the intent to prevent her from being a witness
against him.

Preliminarily, the State contends Robinson did not properly preserve this issue for
appeal because Robinson did not object at trial on the ground that Kansas does not
recognize a statutory hearsay exception for forfeiture by wrongdoing. Instead, he argued
only that the exception did not apply based on the evidence in this case. Alternatively, the
State contends the evidence supports the trial court's application of the forfeiture by
wrongdoing exception and the trial court properly found that by making C.B. unavailable,
Robinson waived all hearsay objections to the admission of C.B.'s statements. Finally, the
State urges us to uphold the trial court's ruling as "right for the wrong reason," because
C.B.'s hearsay statements were admissible under K.S.A. 60-460(d)(3).

When reviewing a trial court's decision to admit evidence, we first determine
whether the evidence is relevant. See K.S.A. 60-401(b); K.S.A. 60-407(b); State v.
Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Once relevance is established, our
28



standard of review depends upon which rule the trial court applied to determine the
admissibility of the evidence at issue. 288 Kan. at 383.

Ordinarily, we review the admission of hearsay evidence for an abuse of
discretion. State v. Miller, 284 Kan. 682, 708, 163 P.3d 267 (2007). However, the issue of
whether the trial court complied with specific statutory requirements for admitting
evidence requires statutory interpretation, which we review de novo. State v. Gonzalez,
282 Kan. 73, 80, 145 P.3d 18 (2006). Similarly, we review de novo whether an
evidentiary ruling violated a defendant's constitutional rights. See State v. White, 279
Kan. 326, 332-33, 109 P.3d 1199 (2005).

Hearsay is defined by statute as "[e]vidence of a statement which is made other
than by a witness while testifying at the hearing, offered to prove the truth of the matter
stated." K.S.A. 60-460. The admissibility of hearsay is governed either by the federal and
state Constitutions or by statute, depending on the type of hearsay at issue.

The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides that, in all criminal prosecutions, the accused shall enjoy the right
to be confronted with the witnesses against him or her. The Kansas Constitution Bill of
Rights also protects a criminal defendant's right to confront the witnesses against him or
her. The Confrontation Clause only bars admission of testimonial hearsay. Davis v.
Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). If a hearsay
statement is found to be testimonial, it must be excluded unless a court finds that the
declarant is unavailable as a witness and that the defendant had a prior opportunity to
cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354,
158 L. Ed. 2d 1777 (2004); State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 (2007).

29



Additionally, even if a defendant had no prior opportunity to cross-examine the
declarant, testimonial hearsay may be admitted under the forfeiture by wrongdoing
exception if the court finds, by a preponderance of the evidence, that the defendant
procured that declarant's absence with the intent to prevent the declarant from testifying
against the defendant. See Giles, 554 U.S. at 361-69; State v. Jones, 287 Kan. 559, 567-
69, 197 P.3d 815 (2008).

However, 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." Davis, 283 Kan.
at 575.

Here, both parties agree that the challenged statements were nontestimonial.
Because the statements were nontestimonial and the Confrontation Clause was not
implicated, the trial court erred in admitting the statements under the forfeiture by
wrongdoing exception to the Confrontation Clause. Instead, the court should have
considered whether the statements were admissible under any of the statutory hearsay
exceptions found in K.S.A. 60-460. See Davis, 283 Kan. at 575.

C.B.'s hearsay statements were admissible under K.S.A. 60-460(d)(3).

As noted above, Robinson argues on appeal that K.S.A. 60-460 does not contain
an exception for forfeiture by wrongdoing. The State argues Robinson failed to properly
preserve this ground for objection by failing to raise it below. But we need not resolve
these arguments. Instead, we may resolve the issue presented based on the State's
argument to the trial court—an argument it maintains on appeal—that C.B.'s hearsay
statements were admissible under K.S.A. 60-460(d)(3).

30



Even though the trial court did not consider this exception, we may do so. And if
we determine C.B.'s hearsay statements were admissible under K.S.A. 60-460(d)(3), we
can affirm the trial court's ruling as correct for the wrong reason. See State v. Vasquez,
287 Kan. 40, 58-59, 194 P.3d 563 (2008) (holding victim's nontestimonial hearsay
statements were admissible under 60-460[d][3] and declining to address trial court's
admission of the statements under the forfeiture by wrongdoing exception).

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 to
distort." K.S.A. 60-460(d)(3).

Here, C.B. clearly was unavailable as a witness, and we must determine only
whether C.B. made the challenged statements (1) at a time when she recently had
perceived the matter about which the statements were made and while her recollection
was clear, and (2) in good faith prior to the commencement of the action and with no
incentive to falsify or distort.

Regarding C.B.'s statements to A.K. about the nature of her relationship with
Robinson, A.K. testified that when she and C.B. were both 13 years old, she was at C.B.'s
home one afternoon when she and C.B. went for a walk. While on their walk, Robinson
picked them up a few blocks from C.B.'s house and drove them to an apartment. A.K.
stayed in the car while C.B. and Robinson went inside. After C.B. and Robinson returned
to the car, Robinson drove the girls back to where he picked them up and the girls walked
back to C.B.'s home. There, C.B. told A.K. she had sexual intercourse with Robinson at
the apartment. Also, as C.B. changed clothes, she showed A.K. the panties she had been
31



wearing and said that Robinson's sperm was on her panties. A.K. also testified C.B. later
told her about subsequent sexual encounters with Robinson.

C.B.'s statements to A.K. about her sexual encounter with Robinson at the
apartment were made immediately after the encounter at a time when her recollection
was clear. And there is no suggestion that C.B.'s statements were not made in good faith
or were made with an incentive to falsify or distort. Thus, C.B.'s statements about her
sexual encounters with Robinson before she turned 14 were admissible under K.S.A. 60-
460(d)(3).

A.K.'s testimony is unclear as to whether C.B.'s reports of later sexual encounters
with Robinson were made at or near the time of the encounters. Nevertheless, any error in
admitting these statements was harmless in light of Robinson's concession he had sex
with C.B. on multiple occasions after she turned 14.

Regarding C.B.'s statements about her plans to meet Robinson, A.K. testified that
when she and C.B. were together on the Wednesday before C.B.'s murder, A.K. saw C.B.
instant messaging with Robinson about meeting him on Thursday. C.B. later told A.K.
she did not meet with Robinson on Thursday, but that she had made plans to meet with
him on Friday.

C.B.'s statements to A.K. regarding her plans to meet Robinson were admissible
under K.S.A. 60-460(d)(3) because C.B. made the statements at a time when she had
recently perceived the events about which the statements were made and while her
recollection was clear. Again, we find no evidence suggesting C.B. made these
statements in bad faith or with an incentive to falsify or distort.

32



Robinson also generally challenges as hearsay "[a]lleged messages between C.B.
and [Robinson] leading up to her death," but he fails to identify the specific statements he
challenges. We will not speculate as to the statements Robinson seeks to challenge. See
State v. Bryant, 285 Kan. 970, 977-78, 179 P.3d 1122 (2008) (appellate courts may
decline to address alleged errors when the appellant fails to specify which facts or
statements support the alleged error).

Finally, we find that C.B.'s statements to A.K. and M.D., whether made verbally
or via text message, about her plans to meet with Robinson and about leaving the skating
rink with Gentry, were statements made about the events immediately preceding her
death as those events were occurring and also are admissible under K.S.A. 60-460(d)(3).

Because the challenged statements were all admissible under K.S.A. 60-460(d)(3),
the district court did not err in denying Robinson's motion to suppress C.B.'s statements,
and we affirm the trial court's decision as correct for the wrong reason.

The trial court did not abuse its discretion in admitting photographs of C.B.'s body and
grave.

Robinson argues the trial court abused its discretion in admitting gruesome and
repetitious photographs of C.B.'s body after it was found in the shallow grave. And, as
evidence that he was prejudiced by this error, Robinson points out that several jurors
emotionally reacted to the photographs. The State argues that because the photographs
were relevant to establish the violent nature of the crime and to corroborate witness'
testimony, the trial court did not abuse its discretion in admitting the photographs.

In reviewing the admission of photographic evidence, we first determine whether
the photographs are relevant. We review claims that photographs were overly repetitious,
gruesome, or inflammatory for abuse of discretion. Riojas, 288 Kan. at 387.
33




"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based." State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (citing State v. Gonzalez,
290 Kan. 747, 755-56, 234 P.3d 1 [2010]).

The party asserting an abuse of discretion bears the burden of showing such an
abuse of discretion. See State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).

Robinson challenges the admission of 17 crime-scene photographs. Twelve of
those photographs—Exhibits 120-131—depicted C.B.'s body as it was found in the
shallow grave and as it was exhumed. The remaining five photographs—Exhibits 134-
138—depicted C.B.'s body after it was exhumed, focusing primarily on the Playstation
cord tied around her neck.

Before admitting the photographs, the district court conducted a hearing outside
the presence of the jury. At the hearing, Robinson objected to the photographs as
duplicative, repetitious, gruesome, and more prejudicial than probative. The trial court
agreed that many of the photographs were gruesome and pointed out that the
photographs—like most evidence in a criminal prosecution—prejudiced the defendant.
The trial court admitted the photographs, however, after concluding the photographs were
relevant to show the manner of death and were more probative than prejudicial.

Robinson contemporaneously objected to the admission of the photographs,
preserving this issue for appeal. Further, after the court had admitted a majority of the
photographs, defense counsel noted for the record that several jurors were either weeping
34



or crying during the State's presentation of the photographs. The court agreed that it had
observed some weeping in the courtroom but found that reaction was not inappropriate
considering the nature of the photographs.

As noted, our first task is to determine whether the photographs were relevant. See
K.S.A. 60-401(b); Riojas, 288 Kan. at 387. All relevant evidence is admissible under
K.S.A. 60-407(f) unless it is otherwise precluded by statute, constitutional provision, or
court decision. State v. Baker, 287 Kan. 345, 363, 197 P.3d 421 (2008).

We have applied some general principles when considering the relevancy of
photographs in a homicide case. For instance, 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. State v. Parker, 277 Kan. 838, 847, 89 P.3d 622 (2004).

Additionally, 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. Riojas, 288 Kan. at 387. While we have stated that the "'wholesale
admission of similar grotesque and bloody photographs which add nothing new to the
state's case'" is improper, a photograph need not be excluded simply because it is
gruesome. State v. Hernandez, 284 Kan. 74, 99, 159 P.3d 950, cert. denied 552 U.S. 1025
(2007) (quoting State v. Clark, 218 Kan. 18, 24, 542 P.2d 291 [1975]). Finally,
photographs may be relevant to corroborate other evidence. Baker, 287 Kan. at 364-65.

Here, the State introduced the challenged photographs through Butler County
Sheriff's Detective Kelly Herzet, who was present as C.B.'s body was exhumed. Herzet
35



testified that just before the body was exhumed, he received a call from Detective Kent
Bauman regarding C.B.'s missing person case. Bauman told Herzet that C.B. was last
seen wearing white flip-flops. According to Herzet, as C.B.'s body was then exhumed,
officers discovered a white flip-flop, which appeared to have been "tossed in on the west
side of the body after [it was] put in the grave." Herzet identified Exhibit 120 as a
photograph of the flip-flop as it was discovered. Further, Herzet testified that Exhibits
121 and 122 showed the progression of the excavation and the discovery of the second
flip-flop.

Additionally, Herzet testified that Exhibits 123-131 demonstrated the progression
of the excavation of the burial site from various angles, the discovery of a cord and
plastic bags tied around C.B.'s neck, and the depth of the grave. Exhibits 132-138
depicted C.B.'s body after it was exhumed and provided closer views of the plastic bags
over C.B.'s head and the Playstation cord tied at the back of her neck.

In addition to establishing the manner and circumstances of C.B.'s death, the
photographs clearly corroborated several aspects of Gentry's testimony, including (1) the
digging of a shallow grave on the day of the murder; (2) the purchasing of items at
Walgreens on the night of the murder; (3) the use of a VCR or TV-type cord to strangle
C.B. from behind; (4) the placement of a plastic Walgreens bag over C.B.'s head; (5) the
placement of C.B.'s body face down in the grave; and (6) the tossing of C.B.'s flip-flop
sandals into the grave after placing her body in the grave.

We agree with the trial court that while the photographs may have been gruesome,
and a few repetitious, the photographs nevertheless were relevant and admissible to
demonstrate the manner and violent nature of C.B.'s murder and to corroborate Gentry's
testimony regarding several details of the murder. And while the record demonstrates that
the photographs elicited emotional responses from some jurors, that fact does not change
36



our assessment of the relevancy and admissibility of the photographs. The trial court did
not abuse its discretion in admitting the photographs.

The district court did not err in denying Robinson's motion for a new judge.

Robinson next claims the district court's denial of his motion for a change of trial
judge violated his right to due process as guaranteed by the Fourteenth Amendment to the
United States Constitution. Robinson argues that his affidavit in support of his motion
established that the trial judge had an appearance of bias, while the trial judge's erroneous
ruling permitting the admission of gruesome and repetitious photographs established
actual bias. The State contends Robinson's affidavit was insufficient to establish that the
trial court had a duty to recuse. And because the trial court correctly admitted the
photographs, the State contends Robinson has not established actual bias.

We review de novo whether a trial court's ruling violated a criminal defendant's
right to due process. State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008).

Nearly a year before the jury trial, Robinson sought a change of the trial judge,
District Judge Benjamin Burgess, pursuant to K.S.A. 20-311d(a), generally asserting the
trial judge could not provide him with a fair trial. After the trial judge denied his request,
Robinson filed an affidavit in support of his motion pursuant to K.S.A. 20-311d(b) and
(c), identifying six instances in which the trial judge allegedly demonstrated "personal
bias and prejudice." Robinson generally argued his concerns fell squarely within K.S.A.
20-311d(c)(5), which provides, in relevant part, that a party may have grounds to support
a motion for a new judge when "[t]he party or the party's attorney filing the affidavit has
cause to believe and does believe that on account of the personal bias, prejudice or
interest of the judge such party cannot obtain a fair and impartial trial."

37



Pursuant to K.S.A. 20-311d(b), District Chief Judge Michael Corrigan heard oral
arguments on Robinson's motion for a change of judge before denying the motion. The
chief judge concluded that a reasonable person with knowledge of the relevant
circumstances would determine that the defendant could obtain a fair and impartial trial
from the trial judge. Further, the chief judge found Robinson's affidavit in support of his
motion alleged legally insufficient grounds to change the assigned trial judge.

In the past, when a district judge has refused to recuse based upon the defendant's
request, this court has applied a two-part test to determine whether the defendant received
a fair trial or whether the defendant's due process rights were violated by that refusal.
First, we considered whether the trial judge had a duty to recuse from the case because
the judge was biased, prejudiced, or partial. If so, we considered whether the trial judge's
failure to recuse resulted in actual bias or prejudice warranting setting aside the judgment
of the trial court. See State v. Sappington, 285 Kan. 176, 190, 169 P.3d 1107 (2007).

More recently, in the civil context, we clarified that the second part of the two-part
test does not always require a showing of actual bias to prove a due process violation.
Davenport Pastures v. Board of Morris County Comm'rs, 291 Kan. 132, 144-46, 238
P.3d 731 (2010). Instead, "due process is violated when, under all the circumstances of
the case, the 'probable risk of actual bias [is] too high to be constitutionally tolerable.'"
291 Kan. at 146 (quoting Withrow v. Larking, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed.
2d 712 [1975]).

Although we have not yet applied this clarification of the two-part judicial bias
test in the criminal context, we see no valid reason to apply a different standard in the
criminal context where the same due process considerations exist. Thus, when a criminal
defendant alleges judicial bias, we restate our test as follows: First, the defendant must
show that the trial judge has a duty to recuse. Second, the defendant must show actual
38



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.

The trial judge did not have a duty to recuse.

Applying the first prong of the test here, we note that a judge has a duty to recuse
from any case "in which the judge's impartiality might reasonably be questioned,
including . . . : (1) The judge has a personal bias or prejudice concerning a party."
Supreme Court Rule 601B, Kansas Code of Judicial Conduct, Canon 2, Rule 2.11(A)(1)
(2011 Kan. Ct. R. Annot. 699).

When reviewing the legal sufficiency of an affidavit in support of a motion for a
change of judge, we have 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. [Citation omitted.] 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.
[Citation omitted.]" State ex rel. Stovall v. Meneley, 271 Kan. 355, 385, 22 P.3d 124
(2001).

In his appeal brief, Robinson refers to only three of the six allegations he asserted
in his affidavit and claims these allegations were sufficient to establish the appearance of
bias creating a duty to recuse. The first instance occurred during a hearing on Robinson's
motion for new counsel when the trial judge stated:
39




"I certainly understand all the ramifications and implications of the motion and
the effect it has on others in that regard. I would just make an observation of the fact as a
former member of the Kansas Parole Board I dealt with many, many family members of
murder victims. The human being in me is very empathetic in that regard and I note
[C.B.'s mother] is in the courtroom this morning. However, as a judge you set that [aside]
and you take a very objective approach and deal with the issues objectively and honestly
in the forth rightness [sic]."

Robinson contends the trial judge's statement regarding his past membership on
the parole board and his empathy for victims established the judge's personal bias and
prejudice toward Robinson. But Robinson fails to discuss the context in which the
statements were made.

Earlier in the hearing on Robinson's motion for appointment of new counsel, the
trial judge acknowledged that Robinson was charged with capital murder and stated that
the court would review the motion "with the highest level of scrutiny" and "do everything
in [its] power" to provide Robinson a fair trial. Later in the hearing, the trial judge
advised Robinson that if the court granted his motion for new counsel, the trial likely
would be delayed. Further, the judge explained that the delay would be charged to
Robinson for speedy trial purposes and Robinson would remain in custody during the
delay.

In ruling on Robinson's request for appointment of new counsel, the trial judge
noted that it had no reason to believe that defense counsel had not acted in a "forth right
[sic], candid and honest" manner. Nevertheless, the judge again emphasized that
Robinson faced a capital murder charge, and therefore the court concluded it would err
on the side of caution and permit defense counsel to withdraw. The court then appointed
new counsel per Robinson's request.
40




We do not condone the trial judge's statements regarding his former membership
on the parole board, and we expressly discourage judges from referencing their personal
background or experiences when ruling on matters before them. That said, it is clear that
when read in context, the trial court's superfluous statements were not sufficient to
establish personal bias or prejudice against Robinson. Instead, the trial judge's comment
about being "empathetic" was aimed at explaining to the victim's family that the court
understood how the family might view the delay caused by the court's decision to grant
Robinson's motion for new counsel.

As an additional ground supporting his motion, Robinson points out that in a
written response to a letter from Robinson expressing concerns about the judge's ability
to provide a fair trial, the trial judge said:

"As to the issue you raise, I simply point out that one thing many members of the
general public do not fully understand is that lawyers, and judges alike, are often required
to set aside their own personal views to properly deal with issues they're presented. In my
experience both lawyers and judges do this and, yet, still remain true to the task
undertaken."

We do not agree with Robinson's claim that these statements reflect the trial
judge's bias and prejudice toward Robinson. Instead, the statements reiterate the trial
judge's lack of bias as well as his understanding of a judge's obligation to set aside any
personal views.

Finally, as further evidence of the trial judge's bias, Robinson points to the
following statements made by the trial judge during a motion hearing on the admissibility
of antemortem photographs:

41



"Well, I am aware of the heightened degree or level of scrutiny that is utilized by
appellate courts in examining issues in capital cases. . . . The rules of admissibility of
exhibits remain the same. . . . If the State's theory is believed by the jury they could
conclude that Mr. Robinson set into motion the chain of events that led to [C.B.'s] death.
Accordingly, all those events up to and including her death are relevant evidence to be
admitted in the case.
. . . .
"As counsel on both sides know in my prior experience I served several years as
assistant U.S. attorney and U.S. attorney. Frankly, I was on one or two occasions accused
of, quote, overkill, unquote, in regard to the submission of evidence to a jury, and my
argument always was that I as a prosecutor had the burden of proof beyond a reasonable
doubt, which is the highest legal standard, . . . so as a prosecutor having that burden you
do try to put in everything that could possibly be used to persuade the jury that your proof
is sufficient beyond a reasonable doubt. And these photographs are no different. . . . But,
again, without in the context of the trial itself seeing the photographs, I will not make any
advance ruling as to this issue, and accordingly, for the purpose of deciding this particular
issue, I'll just simply deny it for the reasons that I have stated on the record subject to
further scrutiny during the course of trial."

Again, the trial judge's references to his former prosecutorial career were
unnecessary, and the comments may have been perceived by Robinson as an indication of
bias in favor of the prosecution. But we do not apply a subjective standard in considering
a judge's duty to recuse. Instead, the facts alleged in an affidavit to support a request for a
new trial judge must be "facts that would create reasonable doubt concerning the court's
impartiality . . . in the mind of a reasonable person with knowledge of all the
circumstances. " Meneley, 271 Kan. at 385.

When taken in context and considered objectively, it is clear the trial judge
individually and thoroughly assessed the motion. Further, the court correctly recognized
that in a death penalty case, the rules of evidence are not altered, even though the
appellate court applies a higher degree of scrutiny.
42




Under the circumstances presented here, the chief judge did not err in concluding
that Robinson's allegations were legally insufficient to create a reasonable doubt in the
mind of a reasonable person concerning the trial judge's impartiality. Thus, the trial judge
had no duty to recuse, and we affirm the denial of Robinson's motion for a new trial
judge.

The trial court did not erroneously instruct the jury on the State's burden of proof.

Next, Robinson claims the trial court erred when it instructed the jury as follows:

"Ordinarily, a person intends all of the usual consequences of his or her voluntary
acts. This inference may be considered by you along with all the other evidence in the
case. You may accept or reject it in determining whether the State has met its burden to
prove the required criminal intent of the defendant. This burden never shifts to the
defendant."

See PIK Crim. 3d 54.01.

Robinson argues this instruction permitted the jury to disregard the burden of
proof instruction on the element of intent, effectively relieving the State of its burden to
prove intent and shifting that burden to defendant.

As the State points out, Robinson's general objection at trial—"[W]e don't believe
[PIK Crim. 3d 54.01] needs to be given in this case"— did not distinctly state the grounds
for the objection as required by K.S.A. 22-3414(3) and failed to encompass the
arguments Robinson now raises on appeal. Thus, we apply a clearly erroneous standard
of review. See State v. Ellmaker, 289 Kan. 1132, 1138-39, 221 P.3d 1105 (2009), cert.
43



denied 130 S. Ct. 3410 (2010) (clearly erroneous standard applies when party objects to
instruction at trial on one ground but asserts a different ground on appeal).

"An instruction is clearly erroneous only if the reviewing court is firmly convinced
there is a real possibility the jury would have rendered a different verdict if the trial error
had not occurred." State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).

As Robinson concedes, in State v. Stone, 253 Kan. 105, 107, 853 P.2d 662 (1993),
we approved the same instruction challenged here. There, the defendant argued the
instruction violated his constitutional right to due process because it "relieved the State
from proving the intent-to-kill element of second-degree murder." 253 Kan. at 106. We
disagreed, concluding the instruction "clearly states the burden of proof never shifts to
the defendant" and "creat[es] a permissible inference of intent rather than an improper
rebuttable presumption." 253 Kan. at 107; see also Martinez, 288 Kan. 451-52 (finding
that instruction containing same language Robinson objects to here was not clearly
erroneous when it specifically informed the jury it was never to shift the burden of proof
to the defendant).

Similarly, in this case the challenged instruction specifically stated that the burden
of proof never shifted to the defendant. Under these circumstances, we conclude the
instruction was not clearly erroneous.

Robinson is not entitled to be resentenced under the identical offense doctrine.

Finally, Robinson claims the identical offense doctrine requires that he be
resentenced for his capital murder conviction in accordance with the lesser penalty
applicable to the crime of first-degree premeditated murder because "the elements of
44



aiding and abetting first-degree premeditated murder, and capital murder by murder for
hire, are effectively identical."

The State argues Robinson's claim is flawed because he compares one criminal
offense—capital murder—to a principle of criminal liability—aiding and abetting—
rather than comparing the elements of two criminal offenses as required for application of
the doctrine.

We review de novo whether the identical offense doctrine applies in a given case.
State v. Sandberg, 290 Kan. 980, 984, 235 P.3d 476 (2010).

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." 290 Kan. at 982. The doctrine
applies only when two separate criminal offenses are compared. 290 Kan. at 985.

Here, the State charged Robinson with capital murder in violation of K.S.A. 21-
3439(a)(2) which proscribes the "intentional and premeditated killing of any person
pursuant to a contract or agreement to kill such person or being a party to the contract or
agreement pursuant to which such person is killed." Thus, on a charge of capital murder
under subsection (a)(2) the State ordinarily is required to prove the defendant (1)
intentionally killed another person, (2) with premeditation, (3) pursuant to a contract or
an agreement to kill such person. But if the defendant was not the person who committed
the act of killing another, the State is required to prove (1) the victim was intentionally
killed, (2) the killing was premeditated, (3) the killing was done pursuant to a contract or
agreement, and (4) the defendant was a party to the contract or agreement. See K.S.A. 21-
3439(a)(2); PIK Crim. 3d 56.00-A, Notes on Use ("In the case of murder for hire, any
party to the contract or agreement is guilty of capital murder.").
45




Robinson identifies the purported identical offense in this case as first-degree
murder in violation of K.S.A. 21-3401(a) under a theory of aiding and abetting. K.S.A.
21-3205(1) provides that "[a] person is criminally responsible for a crime committed by
another if such person intentionally aids, abets, advises, hires, counsels or procures the
other to commit the crime." But aiding and abetting is not a separate crime in Kansas.
Instead, it extends criminal liability to a person other than the principal actor. See State v.
Spangler, 38 Kan. App. 2d 817, 830, 173 P.3d 656 (2007).

Despite the specific language used in K.S.A. 21-3205(1), when a defendant is
prosecuted under the theory of aiding and abetting the State is not required to prove the
defendant actually "hired" or "procured" another to commit the crime. Instead, "to
establish guilt on the basis of aiding and abetting, the State is required to show that a
defendant knowingly associated with the unlawful venture and participated in such a way
as to indicate that [the defendant] was facilitating the success of the venture." Baker, 287
Kan. at 366.

Accordingly, to obtain a conviction for first-degree murder under the theory that
the defendant aided and abetted the murder, the State is required to prove (1) the victim
was intentionally killed, (2) the killing was premeditated, and (3) the defendant
"knowingly associated with" the killing "and participated in such a way as to indicate that
[the defendant] was facilitating the success of" the killing. See K.S.A. 21-3401(a); K.S.A.
21-3205(1); Baker, 287 Kan. at 366; PIK Crim. 3d 56.01. These elements are not
identical to the elements of the charged crime of capital murder based on a murder-for-
hire theory. See K.S.A. 21-3439(a)(2). Thus, Robinson is not entitled to resentencing
under the identical offense doctrine.

Affirmed.