State v. Robinson

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 90,196

STATE OF KANSAS,

Appellee/Cross-appellant,

v.

JOHN E. ROBINSON, SR.,

Appellant/Cross-appellee.

SYLLABUS BY THE COURT

1.

A constitution-based claim for venue change can arise under a theory of presumed

or actual prejudice. Presumed prejudice occurs when pretrial publicity is so pervasive and

prejudicial that there can be no expectation of an unbiased jury pool in the community. In

deciding whether to presume prejudice under the Sixth Amendment to the United States

Constitution, an appellate court considers seven factors: (1) media interference with

courtroom proceedings; (2) the magnitude and tone of the coverage; (3) the size and

characteristics of the community in which the crime occurred; (4) the amount of time that

elapsed between the crime and the trial; (5) the jury's verdict; (6) the impact of the crime

on the community; and (7) the effect, if any, of a codefendant's publicized decision to

plead guilty. Actual prejudice occurs when the effect of pretrial publicity is so substantial

as to taint the entire jury pool.

2.

K.S.A. 22-2616(1) compels a venue change when the district judge is satisfied that

there exists in the county where the prosecution is pending so great a prejudice against

the defendant that he or she cannot obtain a fair and impartial trial in that county. The

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court considers nine factors in deciding whether community prejudice warrants a change

of venue under K.S.A. 22-2616(1): (1) the particular degree to which the publicity

circulated throughout the community; (2) the degree to which the publicity or that of a

like nature circulated to other areas to which venue could be changed; (3) the length of

time which elapsed from the dissemination of the publicity to the date of trial; (4) the care

exercised and the ease encountered in the selection of the jury; (5) the familiarity with the

publicity complained of and its resultant effects, if any, upon the prospective jurors or the

trial jurors; (6) the challenges exercised by the defendant in the selection of the jury, both

peremptory and for cause; (7) the connection of government officials with the release of

the publicity; (8) the severity of the offense charged; and (9) the particular size of the area

from which the venire is drawn.

3.

The Sixth and Fourteenth Amendments to the United States Constitution guarantee

criminal defendants the right to counsel of choice, and due process prohibits judicial

officers from punishing or retaliating against a defendant for exercising this right.

4.

Not every restriction on counsel's time or opportunity to investigate or to consult

with his or her client or to otherwise prepare for trial violates a defendant's Sixth

Amendment right to counsel. Only an unreasoning and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay violates the right to counsel,

and this right cannot be manipulated to impede the efficient administration of justice.

5.

Pursuant to K.S.A. 22-3401, continuances may be granted to either party for good

cause shown. In a criminal case, the decision to continue a case lies within the sound

discretion of the district court, but where a defendant claims the denial of continuance

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interfered with his or her ability to present a defense, an appellate court reviews the

question de novo.

6.

Where a continuance is sought to retain new counsel, a trial court considers the

following five factors: (1) whether a continuance would inconvenience witnesses, the

court, counsel, or the parties; (2) whether other continuances have been granted; (3)

whether legitimate reasons exist for the delay; (4) whether the delay is the fault of the

defendant; and (5) whether denial of a continuance would prejudice the defendant.

7.

The five factors used to consider a request for a continuance for the purpose of

retaining new counsel do not apply in situations where one of several defense attorneys

withdraws from the case and the defendant seeks a continuance to provide the remaining

members of the defense team additional time to prepare for trial but does not seek new

counsel.

8.

In this case, the trial court did not abuse its discretion in denying requests for a

continuance to provide appointed counsel, two experienced death penalty litigators,

additional time to prepare a guilt phase defense following the withdrawal of retained

counsel, where appointed counsel had represented defendant for nearly 7 months prior to

retained counsel's withdrawal; appointed counsel still had another 7 months to prepare

because the district judge had granted a previous, lengthy continuance; appointed counsel

had the benefit of the work prepared by their predecessors over the course of nearly 2

years; appointed counsel had adequate resources, including the two lead attorneys and

their two associate attorneys, one of whom entered his appearance following the

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withdrawal of retained counsel, an investigator, and several assistants; and defendant

never sought appointment of new counsel following retained counsel's withdrawal.

9.

When requesting a continuance to provide defendant additional time to develop a

mitigation defense for the penalty phase of a capital murder trial, defendant must make an

adequate proffer as to what mitigation evidence would be developed if relief were

granted.

10.

The Fourth Amendment to the United States Constitution requires that search

warrants be issued by a neutral and detached magistrate.

11.

The United States Supreme Court has recognized at least two circumstances in

which a magistrate fails to satisfy the neutral and detached requirement. First, a

magistrate who is involved in or who exercises law enforcement powers of the executive

branch lacks neutrality and detachment. Second, a magistrate with a direct pecuniary

interest in the outcome of the warrant proceedings also lacks neutrality and detachment.

12.

In assessing whether a magistrate lacks neutrality and detachment, an appellate

court considers whether the circumstances would offer a possible temptation to the

average judge to abandon the correct balance of consideration between the State and the

accused. In applying this standard, it conducts an individualized and contextual inquiry,

in light of the totality of the circumstances.

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13.

The circumstances here—when the issuing magistrate had prosecuted the

defendant 15 years earlier for unrelated financial crimes—do not establish a violation of

the neutral and detached magistrate requirement. The magistrate had disengaged

completely from law enforcement, had no involvement in any subsequent investigation or

prosecution of the defendant, and had no knowledge of the defendant's possible

involvement in other missing persons investigations; the former prosecution and current

capital murder investigation did not arise from a common investigation or single

transaction or event; and any overlapping facts between the magistrate's former

prosecution of defendant and the current investigation were not probative of the probable

cause determinations made by the magistrate.

14.

When K.S.A. 22-2503 and K.S.A. 22-2505 are read together and considered

alongside legislative amendments subsequent to the 1970 codification of the Kansas

Code of Criminal Procedure, it is evident the legislature intended that district judges

retain their pre-Code authority to issue search warrants executable statewide.

15.

In this case, Lenexa police exercised "their powers as law enforcement officers"

by planning, coordinating, and executing trash pulls from the defendant's Olathe

residence over the course of several weeks in furtherance of their investigation, and this

activity exceeded the officers' territorial jurisdiction pursuant to K.S.A. 22-2401a(2)(a).

16.

When a defendant seeks to suppress evidence based on a violation of state law

unrelated to the Fourth Amendment to the United States Constitution or § 15 of the

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Kansas Constitution Bill of Rights, application of the exclusionary rule does not

inevitably follow.

17.

K.S.A. 22-3216(1) provides a vehicle for defendants aggrieved by an unlawful

search and seizure to move to suppress evidence, but it does not compel the trial court to

grant such relief for any search conducted in violation of state law.

18.

The limitation on the territorial jurisdiction of city officers was intended to protect

the local autonomy of neighboring cities and counties, not to create an individual right.

19.

Where, as here, a search is conducted in violation of state law and the statute

violated does not vest the defendant with an individual right, does not contemplate

exclusion of evidence as a remedy, and its violation results in no cognizable injury to

defendant's substantial rights, suppression of the evidence is not an appropriate remedy.

20.

A written request for assistance directed to officers in other jurisdictions that is

signed by an officer from the requesting jurisdiction—Linn County in this case—satisfies

the requirements of K.S.A. 22-2401a(2)(b) and confers jurisdiction upon officers from

other jurisdictions to execute a search warrant in Linn County.

21.

K.S.A. 22-2401a(5) authorizes law enforcement officers in Johnson County to

execute search warrants countywide. Based on the plain language of this statute,

reinforced by the context and history giving rise to its enactment, Lenexa and Overland

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Park city police had territorial jurisdiction to execute warrants to search defendant's

residence and storage unit located within the city limits of Olathe.

22.

On the facts presented here, law enforcement officers did not search or seize trash

within the curtilage of defendant's home and defendant did not have a reasonable

expectation of privacy in his discarded trash, when it had been set out for collection near

the end of an asphalt parking area, against the curb line, and approximately 10 to 12 feet

outside of a fence that surrounded his residence.

23.

The Kansas Wiretap Act requires prosecutors seeking to intercept telephonic

communications to make a showing of necessity for this extraordinary investigative tool

by including in the wiretap application a complete statement on whether other

investigative procedures have been tried and failed or on why other methods reasonably

appear to be dangerous or unlikely to succeed if tried.

24.

The purpose of the necessity requirement for a wiretap is to assure that

wiretapping is not resorted to in situations where traditional investigative techniques

would suffice to expose a crime and to prevent law enforcement from using wiretaps as a

first step in an investigation.

25.

General allegations and boilerplate language fail to satisfy the necessity

requirement for a wiretap. However, an appellate court employs a standard of

reasonableness to evaluate the State's good-faith effort to use alternative investigative

means or its failure to do so because of danger or a low probability of success. Law

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enforcement officers are not required to exhaust every possible technique before resorting

to a wiretap—they must instead demonstrate that wiretapping is not the first meaningful

step in the investigation.

26.

In this case, general language in the State's wiretap application that the use of

search warrants would not further the goals of the investigation did not violate the

necessity requirement, where the application and supporting affidavit demonstrated that

law enforcement made a reasonable good-faith effort to utilize other available normal and

less intrusive investigative techniques before resorting to a wiretap, and a general

statement regarding the ineffectiveness of search warrants was supported by

particularized, case-specific information contained throughout the application and

affidavit.

27.

In this case, the trial court did not abuse its discretion or violate the defendant's

substantive rights under state or federal law in limiting voir dire on certain case-specific

facts where the defendant had the opportunity to formulate his own case-specific

questions in the juror questionnaire; the defense disclosed sensitive case-specific facts

during small group voir dire and inquired whether such facts rendered panelists biased;

defendant was allowed to question panelists during general voir dire on case-specific

evidence anticipated at trial; and the district judge limited voir dire only when the

questions required prospective jurors to prejudge the penalty issue based on a general

description of case-specific facts.

28.

The heightened reliability standard applied in death penalty appeals does not bar

the application of the invited error doctrine.

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29.

In capital murder trials, a prospective juror may be excluded for cause because of

his or her death penalty views if those views prevent or substantially impair the

performance of his or her duties as a juror. The same standard applies whether the

challenge is directed at death-leaning or life-leaning jurors.

30.

In this case, the trial court did not abuse its discretion in denying the defendant's

challenges for cause of veniremembers who expressed support or favor for the death

penalty. All of the veniremembers at issue professed their understanding of and fidelity to

the law, and the district judge's rulings were fairly supported by the record.

31.

In this case, the trial court did not abuse its discretion in denying the defendant's

challenges for cause of veniremembers who were allegedly biased by pretrial publicity.

The record fairly supports the district judge's findings that the veniremembers at issue

could set their opinions aside, adhere to the court's instructions, and render a verdict

based on the evidence.

32.

In this case, the trial court did not apply a more lenient standard of qualification to

jurors who supported the death penalty, in violation of defendant's substantive due

process rights. The record confirms the district judge's rulings were supported by the voir

dire testimony of the veniremembers at issue.

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33.

When improper or prejudicial remarks are made by one veniremember and heard

by other veniremembers during the jury selection process, the test of juror impartiality is

whether those jurors actually seated can lay aside their impressions or opinions and

render a verdict based on the evidence.

34.

The trial court did not abuse its discretion in this case in failing to strike all

panelists on a small group panel exposed to a juror's inflammatory comments about the

defendant when the juror's comments were isolated and not founded on any specialized

knowledge; the defendant failed to pursue curative measures; and the only panelist to

eventually serve on the jury declared his impartiality.

35.

The trial court did not abuse its discretion in this case in granting the State's

challenge of a juror who expressed strong opposition to the death penalty when she

consistently expressed uncertainty about her ability to fairly consider both sentencing

options.

36.

An appellate court employs a two-part balancing test in analyzing the propriety of

a district court's use of an anonymous jury identification system. First, there must be a

reason to protect the jurors from identification, a decision left to the trial court's

discretion. Second, the court must take reasonable precautions to minimize any

prejudicial effects.

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37.

In this case, the trial court did not abuse its discretion or violate the defendant's

substantial rights by employing a juror numbering system to identify veniremembers and

seated jurors when the district judge identified the potential for invasion of juror privacy

by the media or other overzealous individuals, particularly in the absence of

sequestration, as the reason for the system and expressly informed the jury that the

procedure was unrelated to juror safety.

38.

To establish the existence of a common scheme or course of conduct pursuant to

K.S.A. 21-3439(a)(6), the State must show that the alleged intentional and premeditated

murders are related to one another in some way.

39.

In this case, evidence that the defendant lured his victims with promises of

financial gain, employment, or travel; exploited them sexually or financially; used similar

methods to murder them and dispose of their bodies; and used similar methods of

deception to conceal the crimes was sufficient to support the jury's finding of the

existence of a common scheme or course of conduct.

40.

In this case, the entirety of the defendant's course of conduct, which straddled the

date of enactment of the capital murder statute, could be considered and was sufficient to

support the defendant's convictions on the capital murder charges under K.S.A. 21-

3439(a)(6) when at least one of the elements of the charged offense was not committed

until after the enactment of the capital murder statute.

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41.

When, as here, a defendant is charged and convicted of two counts of capital

murder, those convictions are multiplicitous when the State alleged and proved that all of

the murders were connected by the same common scheme or course of conduct and the

State did not allege or prove the existence of a separate, distinct common scheme or

course of conduct for each capital count.

42.

A conviction for first-degree murder of one of the victims included in a series of

murders alleged under a separate charge of capital murder is multiplicitous with a

conviction on the charge of capital murder.

43.

The State's complaint was not defective and did not fail to confer jurisdiction on

the district court in this case because the complaint as a whole was clear what the charges

were and that defendant was the person charged.

44.

The failure to lodge a contemporaneous objection to the admission of evidence

typically forecloses subsequent challenge on appeal. However, in capital murder appeals,

K.S.A. 21-4627(b), recodified as K.S.A. 2014 Supp. 21-6619(b), compels review of any

issue raised in defendant's brief, even if not preserved below. Yet this statute does not

require this court to treat the record other than as it is presented to us on appeal, and we

approach such compulsory review mindful that the defendant bears the burden of

demonstrating error on the record submitted.

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45.

Accurate printouts of e-mails are akin to duplicate originals and deemed valid

reproductions of electronically stored information for best evidence purposes under

K.S.A. 60-467(a), even when messages have been forwarded or contain message strings.

46.

E-mail exhibits found in a defendant's possession or under his or her control and

seized pursuant to a search warrant can be authenticated by law enforcement officers'

testimony describing the circumstances in which the writings were seized.

47.

Testimony that merely suggests a defendant intended to commit a crime falls

outside the scope of K.S.A. 60-455. The evidentiary restriction is triggered by evidence

that a person actually committed a crime or civil wrong on a specified occasion, not by

speculation.

48.

The trial court did not abuse its discretion in this case in allowing a detective to

testify to the number of tools seized during the search of the defendant's property when

the record establishes a logical connection between the tools, the defendant, and the

capital murder charges.

49.

The trial court properly refused to grant a mistrial in this case after a witness'

testimony deviated from the State's proffer when the district judge instructed the jury to

disregard the testimony.

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50.

The trial court did not abuse its discretion in this case in allowing a medical

examiner to testify that a fracture to a victim's right ulna was consistent with a defensive

injury when the evidence established the expert's qualifications to render such an opinion.

51.

In this case, the State offered sufficient evidence that the defendant took the victim

named in the aggravated kidnapping charge by way of deception with the specific intent

to inflict bodily injury upon her.

52.

Because the State's two theories as to how the defendant took the victim named in

the aggravated kidnapping charge by deception could support but one conviction, the

State did not rely on multiple acts in this case.

53.

The prosecutor erred in this case by suggesting a victim may have witnessed her

mother's murder before her own demise, but the isolated remarks did not prejudice the

defendant.

54.

The prosecutor erred in this case by asserting that the defendant ripped one

victim's baby out of her arms, but the remark did not prejudice the defendant.

55.

The phrases "common scheme" and "course of conduct" are commonly understood

and require no specific definition in jury instructions under K.S.A. 21-3439(a)(6). The

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lack of a statutory definition for the phrases "common scheme" and "course of conduct"

does not render the capital murder statute unconstitutionally vague.

56.

In this case, the trial court's instruction on venue was error, but the defendant

failed to establish that the jury would have reached a different verdict had the instruction

error not occurred.

57.

In this case, the cumulative effect of the identified guilt phase errors did not

substantially prejudice defendant or deny him a right to a fair trial.

58.

In this case, there is no reasonable possibility that a juror's use of a Bible during

penalty phase deliberations affected the jury's sentencing decision when the juror

consulted the Bible only outside of deliberations, he did not use or read from the Bible in

the jury room, he made an isolated remark about the Bible only after the jury's vote had

confirmed its unanimity as to sentence, and the district judge delivered a curative

instruction.

59.

In this case, the State's evidence demonstrated a nexus between defendant's killing

of more than one person and the charged capital offenses and was sufficient to establish

the existence of the multiple murder aggravating circumstance under K.S.A. 21-4625(2).

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60.

The prosecutor's closing argument comment on the defendant's demeanor was

error in this case, but it did not prejudice the defendant.

61.

The prosecutor's statement in this case that he would "bet" the victims' families

would not agree that defendant posed a low risk of violence in prison was error, but it did

not prejudice the defendant.

62.

In this case, the prosecutor's interrupted personalized attack of defense counsel's

argument was error, but it did not prejudice the defendant.

63.

The penalty phase instructions in this case did not create an unreasonable risk that

jurors would fail to recognize that they must find that aggravating factors outweighed

mitigating factors beyond a reasonable doubt in order to impose a death sentence.

64.

The penalty phase instructions in this case made clear that mitigating

circumstances were to be determined by each individual juror and did not need to be

found by all members of the jury in order to be considered by an individual juror.

65.

The penalty phase instructions in this case did not encourage a death verdict.

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66.

The penalty phase instructions in this case did not undermine the jury's historic

nullification power or otherwise create a reasonable likelihood that jurors would have

applied instructions in a way that prevented consideration of constitutionally relevant

evidence.

67.

The defendant was not improperly sentenced under a void capital sentencing

scheme under the facts in this case.

68.

In this case, the cumulative effect of the identified errors during the penalty phase

did not substantially prejudice the defendant or deny him the right to a fair penalty phase

proceeding.

69.

In this case, the trial court erred by designating Counts I through III as sexually

motivated in the journal entry of judgment where the State did not seek such a

designation and the district judge did not make supporting findings when pronouncing the

sentence from the bench.

Appeal from Johnson District Court; JOHN ANDERSON III, judge. Opinion filed November 6,

2015. Affirmed in part, reversed in part, vacated in part, and remanded with directions.

Paige A. Nichols, of Lawrence, argued the cause, and Joseph W. Luby, of Death Penalty

Litigation Clinic, of Kansas City, Missouri, was with her on the briefs for appellant/cross-appellee.

Steven J. Obermeier, senior deputy district attorney, and Jacob M. Gontesky, assistant district

attorney, argued the cause, and Christopher L. McMullin, chief deputy district attorney, Stephen M.

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Howe, district attorney, Natalie Chalmers, assistant solicitor general, Kristafer Ailslieger, deputy solicitor

general, and Derek Schmidt, attorney general, were with them on the briefs for appellee/cross-appellant.

The opinion of the court was delivered by

STEGALL, J.: John E. Robinson, Sr., was charged with multiple offenses related to

the murders of six women—killings that constituted parts of a common scheme or course

of conduct whereby Robinson would lure women to Johnson County with offers of

employment, travel, and other benefits; exploit them sexually, financially, or otherwise;

kill them and dispose of their bodies in a similar manner; and engage in various acts of

fraud, deceit, and manipulation to conceal his crimes. This common scheme or course of

conduct began in the mid-1980s and continued until Robinson's arrest in June 2000.

The State charged Robinson with two counts of capital murder, one count for the

intentional, premeditated murder of Suzette Marie Trouten (Count II) and the other for

the intentional, premeditated murder of Izabela Lewicka (Count III). The State alleged,

pursuant to K.S.A. 21-3439(a)(6), that the murders of Trouten and Lewicka were each

part of a common scheme or course of conduct that also included the intentional,

premeditated murders of Beverly J. Bonner, Sheila Faith, Debbie Faith, and Lisa Stasi.

The State also charged Robinson with aggravated kidnapping of Trouten (Count

I), theft of Vicki Neufeld's property (Count IV), first-degree premeditated murder of Lisa

Stasi (Count V), and aggravated interference with Stasi's parental custody (Count VI).

The jury convicted Robinson on all counts.

Following the guilt phase trial, a separate sentencing proceeding was held pursuant

to K.S.A. 21-4624(b). The penalty phase jury sentenced Robinson to death on each

capital murder conviction and that sentence was imposed by the trial court. Additionally,

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the trial court sentenced Robinson to 246 months in prison for the aggravated kidnapping

of Trouten, 7 months for the theft of Neufeld's property, a life sentence with parole

eligibility after 15 years for the first-degree premeditated murder of Stasi, and a pre-

sentencing guidelines sentence of 5 to 20 years or a postsentencing guidelines sentence of

13 months for the aggravated interference with Stasi's parental custody.

On appeal, Robinson has raised 19 general claims of reversible error covering the

entire proceeding below. Within these general claims, Robinson asserts a variety of sub-

claims. For simplicity, we number the general issues consecutively and address all claims

arising under each category. At the outset, we take the unusual step of noting that our

review of this matter—given its size and complexity—has been assisted and facilitated by

the diligence and professionalism of the trial judge, Judge Anderson, throughout the

proceedings below. Moreover, the decision we announce today is in large part a product

of Judge Anderson's conscientious commitment to Robinson's fair trial rights.

FACTUAL AND PROCEDURAL BACKGROUND – GUILT PHASE

Resolution of Robinson's claims on this appeal demands a comprehensive review

of the disturbing facts underlying his convictions and sentences.

John Robinson, Sr.

Robinson was a self-employed, but not entirely successful, entrepreneur. In the

1970s, he formed Hydro-Gro, Inc., a company that produced hydroponic vegetables. In

the 1980s, Robinson offered financial consulting services through his company Equi II.

His operations were interrupted when he was convicted of a nonperson felony and

incarcerated at the Western Missouri Correctional Center in Cameron, Missouri.

Following his release in the 1990s until his arrest, Robinson published a mobile home

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trade magazine called Manufactured Modular Home Living through his company

Specialty Publications.

Robinson lived with his wife Nancy in a three-bedroom modular home in Olathe,

inside Santa Barbara Estates—a large mobile home community. Robinson used

computers and e-mail extensively and also utilized a cell phone and pager. Nancy began

working as the on-site office manager at Santa Barbara Estates in 1997.

In the mid-1990s, Robinson acquired roughly 17 acres of property at a secluded

Linn County location. He moved a trailer onto the property in July 1998 and installed two

phone lines: one for his landline and one for his computer.

Though married to Nancy since 1964, Robinson's infidelity was an ongoing issue

in their marriage. In 1998, Nancy learned her husband was involved in bondage and

discipline, dominance and submission, sadism, and masochism (BDS&M) activities after

discovering fetish websites saved in his Internet browser history. Robinson shared stories

of his BDS&M liaisons with Carlos Ibarra, a maintenance employee at Santa Barbara

Estates, and showed him nude photographs of a girlfriend depicted in BDS&M poses.

Robinson's Victims

The State's capital murder theory in Counts II and III was that Robinson killed

Suzette Trouten and Izabela Lewicka, along with Sheila and Debbie Faith, Beverly

Bonner and Lisa Stasi, and that these killings were all connected, constituting parts of a

common scheme or course of conduct characterized by: (1) luring women with offers of

employment, travel, and other benefits; (2) exploiting them financially, sexually, or

otherwise; (3) killing them and disposing of their bodies in a similar manner; and (4)

concealing the crimes through acts of deception and fraud. The State alleged Robinson

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committed other crimes along the way, including the aggravated kidnapping of Trouten,

theft of Neufeld's property, first-degree murder of Stasi, and aggravated interference with

Stasi's parental custody.

1. Suzette Marie Trouten

Suzette Marie Trouten was the youngest of Carolyn and Harry Trouten's five

children. She lived near her mother in the Monroe, Michigan, area. The two were

extremely close and talked daily, even when Trouten was away.

Unbeknownst to her mother, Trouten was active in the BDS&M community. She

frequented BDS&M websites and chat rooms, created her own BDS&M web page, and

traveled out of state for BDS&M trysts.

In the mid-1990s, Trouten met Lore Remington, a Canadian resident who shared

Trouten's interest in BDS&M role playing games. Remington trained Trouten as a

"slave," the submissive partner in a BDS&M relationship, for these online games, and the

two became close friends. Remington introduced Trouten to her friend, Tami Taylor, who

also lived in Canada, shared an interest in BDS&M, and became another friend.

Trouten placed personal ads on BDS&M websites seeking a position as a "slave."

At that point, Trouten and Robinson began communicating by e-mail. In summer 1999,

Trouten told her mother that Robinson had offered her a job caring for his elderly father,

"Papa John." Trouten said Robinson and his father were selling off several companies

and Papa John needed nursing care as they traveled to various locations to close the deals.

Trouten said the job would pay $60,000 annually and require extensive travel to places

such as Switzerland and Belgium.

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In October 1999, Trouten traveled to Kansas City, telling her mother she had an

interview with Robinson. When she returned a few days later, Trouten told her mother

she did not like the idea of being away from home but had decided to take the job for 1

year to earn enough money to return to school. Trouten took a second trip to Kansas in

November, explaining she had to sign an employment contract and find a place to live.

Trouten shared the news of her employment opportunity with other friends and

family. She told Taylor she would be working for a man named John, who needed

someone to care for his elderly father, a wealthy businessman, while they traveled to

Europe and other destinations throughout the United States. Trouten told Remington she

would earn $6,500 per month and travel to places such as Australia and Hawaii working

for Robinson. Trouten gave similar reports to her aunt, father, and employer in Michigan.

In late 1999 and early 2000, Trouten prepared for the move to Kansas and her

upcoming travels. She researched colleges and other learning opportunities in

Switzerland and Belgium, telling her mother that Robinson said they would be overseas

long enough for her to take classes. Trouten completed a passport application. Just before

Trouten left, her aunt, Marshalla Chidester, helped Trouten create a list of her friends' and

family's contact information.

On or about February 12, 2000, Trouten left for Kansas, bringing along her two

beloved Pekingese dogs, Peka and Harry, in the moving truck Robinson had rented for

her. On February 14, Trouten arrived and checked into Room 216 at the Guesthouse

Suites in Lenexa. Robinson had reserved this room for 7 nights under his company's

name, Specialty Publications. The reservation was later extended for an additional week.

When Trouten checked into her room, hotel staff informed her of their no-pet

policy. On February 16, Robinson brought two Pekingese dogs, one named Harry and the

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other named Peka, for boarding at Ridgeview Animal Hospital in Olathe. Robinson said

the dogs belonged to his employee. In completing check-in paperwork, Robinson

indicated the dogs would be boarded through the end of February.

Once in Kansas, Trouten called her mother almost every day. Trouten told her

mother she had decided to put her belongings in storage, rather than find an apartment

immediately, because she and Robinson would be leaving on their trip soon. Trouten also

said their itinerary had changed. Rather than travel to Switzerland as originally planned,

they had decided to go to California, pick up Robinson's new yacht, and sail to Hawaii

first, so Robinson could relax before resuming his meetings.

Trouten and Remington continued to communicate daily on ICQ, an instant

messaging program on Yahoo. In these conversations, Trouten disclosed that she was in a

sexual relationship with Robinson. At trial, Robinson conceded that he and Trouten had

carried on a sexual, BDS&M relationship. The fact of this relationship was corroborated

by other evidence at trial, including several e-mails in which they discussed BDS&M; a

"slave" contract signed by Trouten, purportedly governing the terms of their master/slave

relationship; and a videotape of the two engaging in BDS&M sex.

The timeline of events on March 1 implicated Robinson in Trouten's

disappearance. Around 1 a.m. on March 1, Trouten called her mother at work and said

she and Robinson were leaving on their trip later that morning. Carolyn Trouten never

saw or spoke to her daughter again.

Trouten and Remington were also communicating via ICQ chat early that

morning. Remington ended her chat session with Trouten at 12:51 a.m. Remington never

saw or spoke to Trouten again.

23

At 11:43 a.m., a long-distance call was placed from Robinson's Linn County

trailer to Nancy Robinson's work phone.

At 2:13 p.m., Robinson picked up Trouten's dogs at the animal clinic in Olathe.

Employees said Robinson appeared to be agitated and in a hurry. He told one employee

he was in a rush to get to the airport. Robinson placed the dogs in a small kennel and left.

Trouten was not seen with Robinson or in his truck at the animal clinic.

At 2:24 p.m., Robinson's access code was used to gain entry through the security

gates at his Olathe storage unit, and the code was used to exit the facility 6 minutes later.

At 2:35 p.m., Olathe animal control officer Rodney E. McClain was dispatched to

Santa Barbara Estates after Robinson had instructed the office assistant to report two

dogs on the loose. McClain arrived 10 minutes later and saw two Pekingese dogs inside a

small-medium-sized carrying kennel located just outside the office. Both appeared to be

in good condition. McClain transported them to the local shelter. Trouten never claimed

her dogs.

Around 3 p.m., Isabel Clark, a housekeeper at the Guesthouse Suites,

observed a man matching Robinson's general physical description loading

Trouten's belongings from Room 216 into a truck matching the description of

Robinson's vehicle in the hotel parking lot. When she cleaned the room, Clark

noticed the linens and towels were stained with blood. However, she had observed

similar blood stains when she cleaned the room throughout Trouten's stay. Trouten

had an irregular menstrual cycle and would bleed heavily. Trouten told Remington

that she was experiencing a particularly long and heavy period at the end of

February.

24

Around 3:30 p.m., a hotel security camera captured Robinson checking out

of Trouten's room. Hotel staff confirmed Robinson was the person who checked

out of the room and paid the bill. Trouten was not with Robinson at the time, and

hotel employees did not see her at all on March 1.

A few days after Trouten had supposedly left for California, Carolyn Trouten

received a letter from her daughter. Its arrival was somewhat unusual, as Trouten

typically called her mother and did not write letters. The letter arrived in a pink envelope

postmarked from Kansas City on March 6, 2000. The envelope was addressed to Carolyn

Trouten, and the return address said only "Suzette Trouten." The handwritten letter was

dated February 28, 2000, and discussed Trouten's plans to leave for California with

Robinson. Carolyn Trouten believed the handwriting on the envelope and letter was her

daughter's. However, she found it unusual the envelope was postmarked Kansas City on

March 6 because Trouten said they were leaving on March 1. Suzette's father, who lived

in Florida, received a similar handwritten letter dated February 28, 2000, in an envelope

postmarked Kansas City on March 6, 2000.

Suspicious of the postmark date, Carolyn Trouten called Robinson, who said

Trouten had decided not to take the job. Robinson claimed she had met a man named Jim

Turner and left town with him. Jim Turner was one of Robinson's aliases.

A few weeks after receiving the first handwritten letter, Carolyn Trouten received

a second letter purportedly written by her daughter in an envelope postmarked from San

Jose, California. This time, the letter was typewritten with Trouten's name signed in

cursive at the bottom. Trouten's mother believed the signature was Trouten's. The letter

opened with the statement: "Well, I'm off on an adventure of a lifetime." Carolyn

Trouten was convinced Trouten did not draft the letter because the language, style,

wording, and typewritten format were wholly inconsistent with her daughter's writing.

25

Just before her April 9 birthday, Trouten's grandmother received a birthday card

purportedly written by Trouten. The card was in a green envelope postmarked San Jose,

California, on March 27, 2000. Trouten's aunt, Chidester, believed the mailing address on

the envelope was written in Trouten's handwriting but that the "S. Trouten" written in the

return address section of the envelope was not. Trouten's father also received a similar

typewritten letter in an envelope postmarked San Jose, California, March 27, 2000.

Unbeknownst to Trouten's family, Robinson had made arrangements in late March

2000 for Jean Glines to mail several letters for him from California. Glines was a former

employee of Nancy Robinson, who maintained a long-distance relationship with

Robinson by telephone and e-mail after she moved to California in 1997. Robinson asked

Glines to mail some letters for him from California as a favor. Glines, who had grown

tired of the relationship with Robinson, agreed to mail the letters if Robinson stopped

calling her. Glines received a package containing three pastel-colored envelopes from

Robinson on March 27. Glines noticed some of the letters were addressed to a person in

"Minnesota or Michigan," and there was no return address, only the name "Sue,"

"Suzette," or the initials "ST." Glines mailed the letters that day from Milpitas, where all

mail is sent to and postmarked San Jose, California.

Several weeks later, Trouten's family received a number of letters purportedly

authored by Trouten in envelopes postmarked Veracruz, Mexico, on May 19, 2000.

Trouten's aunt, Chidester, received one of these letters. She believed the address on the

envelope was written by Trouten, but the return address was not. The letter was

typewritten and dated May 5, 2000. It discussed Trouten's travels and was signed, "Love

you, Suzette." Chidester believed Trouten signed the letter, but she was convinced

Trouten did not draft it because the punctuation, style, and organization were not

26

characteristic of Trouten's writing. Trouten's niece, her grandmother, and her father

received similar letters postmarked May 19 from Veracruz, Mexico.

Once again, unbeknownst to Trouten's family, Robinson had made arrangements

for several letters to be mailed from Mexico in May 2000. Lidia Ponce lived in Veracruz,

Mexico. Her son, Carlos Ibarra, was a maintenance employee at Santa Barbara Estates

and did side jobs for Robinson. Ponce traveled to Olathe to visit her son at the beginning

of May. Robinson asked Ibarra to have his mother mail several letters from a resort when

she returned to Mexico. Robinson gave Ibarra several pastel-colored envelopes, which

Ibarra gave to his mother. Ponce returned to Mexico around May 10 and mailed the

letters from a hotel in Veracruz several days later after writing the sender's initials on the

envelopes as Robinson had instructed. At trial, Ponce examined the envelopes Trouten's

family had received and said they were consistent with the ones she had mailed from

Veracruz and that the writing on the return address appeared to be her own.

When law enforcement officers searched Robinson's storage unit in Olathe, they

found the contact list that Chidester helped Trouten create before moving to Kansas. This

list included the mailing addresses and, for some, birthday information for Trouten's

family members. The officers also seized a clear plastic folder containing 42 envelopes

preaddressed to members of Trouten's family, along with 31 pieces of pastel-colored

stationary with "Love you, Suzette" signed at the bottom. The officers also found over a

dozen pastel-colored envelopes with enclosed greeting cards and envelopes inside a

plastic Target sack. These envelopes were preaddressed to members of Trouten's family,

with "S. Trouten" written in the return address and the individual's birthday written in the

upper-right corner where postage is typically placed. There were also several letters with

generic greetings such as "Hi, dad" or "Hi, mom" handwritten at the top of stationary,

along with a number of blank envelopes, stationary, and greeting cards.

27

This was not the first time Robinson had prepared or coordinated deceptive letter

writing campaigns. In fall 1997, Robinson met Aleisia Cox through a personal ad she

placed in a local magazine. Sometime in 1998, Robinson offered Cox a job traveling with

him on business trips to London, Paris, and Australia. Before their scheduled departure,

he directed Cox to write letters to her mother and daughter as though she had already

arrived at each of these destinations, explaining there would not be time to write family

during the trips. Cox complied, crafting letters to her mother and daughter that were

written as though she were in Paris, London, and Australia. The trips never materialized,

and police found Cox's letters during the search of Robinson's Olathe residence 2 years

later.

Robinson's concealment of Trouten's disappearance was not limited to written

correspondence. On February 25, 2000, Robinson sent Trouten an e-mail message

requesting login and password information for all of her e-mail accounts. Trouten

provided the information in a reply e-mail. Robinson also had e-mail addresses for a

number of Trouten's friends and family members.

On the morning of March 2, 2000, the day after Trouten's disappearance,

Remington received an e-mail from Trouten's Hotmail account. The body of the message

said Trouten and her dogs had left on "the adventure of a lifetime." Remington responded

a few minutes later, sharing that she had ended the relationship with her former BDS&M

"master." Remington received a reply from Trouten's Hotmail account, referring

Remington to a new "master" at "eruditemaster@email.com." Remington contacted this

new "master" and began communicating with a man she came to know as Jim Turner.

On March 24, 2000, an e-mail from Trouten's Hotmail account was sent to several

members of Trouten's family, including her aunt, Chidester; her sister, Kim Padilla; her

brother, Michael Trouten; and her father's girlfriend. The message said Trouten had

28

written to her mother, that she had left on her trip, that she would not have online access

for some time, and that she would try to stay in touch when possible. Chidester was

convinced Trouten did not write the e-mail because the word choices, style, and format

were inconsistent with Trouten's writing. Chidester was also convinced Trouten would

have called her, rather than sending an e-mail, before leaving on such a trip. When law

enforcement officers searched Robinson's Olathe storage unit several weeks later, they

found the e-mail addresses for all four recipients attached to the contact list Trouten had

prepared with Chidester before moving to Kansas.

On April 27, 2000, Robinson, posing as Jim Turner, discussed Trouten's

disappearance in an e-mail to Remington, claiming that Trouten had stolen his credit

cards and that he had hired a private investigator to look into it. He also asked Remington

for information on all of Trouten's previous BDS&M partners. After consulting with law

enforcement, Remington provided the requested information via e-mail. Law

enforcement officers found a printed copy of this e-mail chain in Robinson's possession

during the search of his Olathe storage locker several weeks later.

Robinson used e-mail not only to conceal Trouten's disappearance, but also to lure

Trouten's friends into new BDS&M relationships. In March 2000, Remington told Taylor

she had been communicating with Jim Turner, who she initially believed to be a friend of

Trouten's employer, Robinson. Taylor jokingly told Remington to ask Jim Turner

whether he had any single friends interested in a BDS&M relationship. Remington did

just that, and Robinson, posing as Turner, said Taylor should contact "Tom" at

"preipo@usa.net."

Remington forwarded the name and e-mail address to Taylor, and Taylor sent

"Tom" an e-mail discussing her interest in BDS&M. When law enforcement officers

searched Robinson's Olathe residence, they found a note with the "preipo@usa.net" e-

29

mail address written on it. On March 17, 2000, Robinson, posing as Tom, responded to

Taylor's e-mail, describing himself as a "very aggressive and hard working businessman"

and outlining his ground rules for a BDS&M relationship. Taylor and Robinson, posing

as "Tom," continued to communicate and discuss BDS&M topics via e-mail. Robinson

also began calling Taylor. In one voicemail message, he told her he was changing his

"preipo@usa.net" e-mail address to "bdsm@hotmail.com." "Tom" told Taylor that she

would be well taken care of if she were his slave.

On May 28, 2000, Robinson, posing as "Tom," sent Taylor an e-mail from his new

"bdsm" Hotmail account, asking her to visit him in Kansas City. Unlike his earlier e-

mails, "Tom" signed this e-mail as "MASTER"—the same way this name/title appeared

in Robinson's other e-mail communications, including Robinson's February 25 e-mail to

Trouten and Jim Turner's April 27 e-mail to Remington.

Before committing to a visit, Taylor asked "Tom" for a reference from a past

slave, and Robinson, still posing as "Tom," told Taylor she could contact one of his

former slaves at "slavedancer@hotmail.com." Taylor e-mailed "slavedancer" seeking

information about "Tom" as a master. On May 31, Taylor received a response from the

"slavedancer" account, in which "Tom" was referred to as "MASTER" throughout. When

law enforcement officers searched Robinson's Olathe residence 2 days later, they found a

list of e-mail addresses and passwords, including "slavedancer@hotmail.com," written on

a sheet of legal paper. They also found e-mails confirming Robinson's registration of the

"slavedancer" name on several e-mail servers. Taylor received no further e-mail after

Robinson's arrest on June 2.

30

2. Izabela Lewicka

Izabela Lewicka was born in Poland on April 11, 1978. She moved to West

Lafayette, Indiana, with her family at the age of 11. She began studies at Purdue

University in fall 1996. She was interested in the arts and was an avid drawer and painter.

According to friends, Lewicka also had a strong interest in several alternative lifestyles,

including paganism, goth, and BDS&M.

In spring 1997, Lewicka told her friend, Jennifer Hayes, that an international book

agent in Kansas City had offered her a job doing secretarial work and had commissioned

her to illustrate BDS&M manuscripts. Lewicka said she planned to move to the Kansas

City area to be with this older, married man, who had also agreed to train her to become a

"dominant" in BDS&M relationships. Lewicka told Hayes he wanted her to call him

"master" and to maintain strict confidentiality. Lewicka seemed concerned when she

inadvertently told Hayes her master was named John.

While attending Purdue, Lewicka became friends with Dawn Carter and often

used her computer to access the Internet. Lewicka told Carter she had a job opportunity in

Kansas City illustrating and editing books. Lewicka said that a man named John, whom

she had met online, had a job and apartment for her and that they had plans to travel.

Lewicka told her parents she had a summer internship with a publishing company

in Kansas City, and if it led to a job, she might stay longer, but she did not rule out the

possibility of returning to Purdue for the fall 1997 semester. Lewicka said she would be

living at 9280 Metcalf in Overland Park and could be reached by e-mail.

On June 8, 1997, Lewicka left for Kansas in her car filled with belongings.

Lewicka's friends believed she moved to Kansas both for BDS&M training and work.

31

Once in Kansas, Robinson helped Lewicka establish herself. They leased a private

mailbox at Mailboxes, Etc., located at 9280 Metcalf in Overland Park—the same address

Lewicka had given her parents. Both Lewicka and Robinson were authorized to access

mail at the box. In October 1997, Robinson had his insurance agent write a 2-year auto

policy on Lewicka's vehicle, explaining she was an employee.

On November 14, Lewicka opened an account at Bank of America, where

Robinson also held a business account for Specialty Publications.

In February 1998, Robinson contacted Jennifer Boniedot, a property manager for

the Deerfield Apartment Complex in Olathe. Robinson said he needed a corporate

apartment for employees he would train before they were transferred to positions out of

state. In the rental application, Robinson identified himself and Lewicka as the

prospective occupants. He told Boniedot that he met Lewicka at a graphics trade show,

that she had been abused by her parents, and that he had adopted her. Robinson signed a

1-year rental agreement, from March 1, 1998, to February 28, 1999. Robinson paid rent

with a Specialty Publications' check, and Lewicka occupied the apartment through the

term of the lease.

In January 1999, just before the Deerfield Apartment lease expired, Robinson

contacted Julie Brown, a manager for A.J. Lang Property Management, to find an

apartment. Robinson said he was in the publication business and needed a corporate

apartment for female employees he trained from across the country. Robinson executed a

lease for a different apartment in Olathe (Edgebrook Apartment) for a term beginning

January 15, 1999, through January 31, 2000. Lewicka occupied the Edgebrook

Apartment, and Robinson paid the rent.

32

While in Kansas, Lewicka worked for Specialty Publications, handling advertising

graphics for Robinson's magazine. In 1998, Robinson told his publishing broker, Karen

Scott, he had hired his adopted daughter, Lewicka, as a graphic designer. Lewicka told

Pam Sadewhite, who owned a graphic arts company that did work for Robinson, that

Robinson was her uncle, but Sadewhite saw them flirting and touching one another in a

manner that suggested otherwise.

Lewicka often held herself out as Robinson's wife. Lewicka registered for an

introductory drafting class at Johnson County Community College under the name

Izabela Lewicka-Robinson and told her instructor that she was married to an older man.

She also identified herself as Izabela Robinson to employees of several local businesses.

Though not married, Lewicka and Robinson did share a BDS&M sexual

relationship, as evidenced by a BDS&M "slave" contract signed by Lewicka, along with

numerous nude photographs depicting her in BDS&M poses, seized from Robinson's

Olathe storage unit. Nancy Robinson learned of her husband's relationship with Lewicka

in 1997. She believed the relationship was different from Robinson's other affairs. In the

past, when Nancy had learned of an affair, Robinson had ended it immediately. This time,

the relationship continued, and Nancy thought Robinson would leave her for Lewicka.

However, Lewicka disappeared sometime in late summer or fall 1999. Earlier that

summer, Robinson convinced another paramour, Barbara Sandre, to move from Canada

to Kansas. On August 18, they executed a lease for an unfurnished duplex at Hunter's

Pointe, located on Grant Street in Overland Park (Grant Street Duplex). Sandre needed

furnishings for the duplex, and Robinson agreed to provide them. On August 23,

Robinson hired a moving company to deliver household items from Lewicka's Edgebrook

Apartment to Sandre's Grant Street Duplex. Over the next 2 weeks, Robinson brought

33

additional furnishings, including bedding and pillows, blankets, kitchen utensils, artwork,

and hundreds of books. Many of these items were later identified as Lewicka's property.

Robinson had also rekindled his relationship with Aleisha Cox earlier in 1999.

Later that year, Cox was unemployed and did not have permanent housing, so Robinson

invited her to stay at Lewicka's Edgebrook Apartment. Cox testified the apartment was

mostly vacant, but there were some boxes containing clothing and household items.

Robinson told Cox the girl that had been living there quit her job and ran off with her

boyfriend, leaving the clothes behind. Cox took some of the clothing, which was later

identified as Lewicka's. Cox declined Robinson's offer to stay at the apartment.

In September 1999, with several months remaining on the lease, Robinson

delivered September's rent for Lewicka's Edgebrook Apartment and notified the property

manager, Brown, that he had vacated the premises. Brown later inspected the unit and

found it to be mostly unkempt but noticed the two bedrooms had been cleaned

meticulously.

Law enforcement officers searched Lewicka's Edgebrook Apartment on October

12, 2000. Detective Sally Lane, a forensic chemist with the Johnson County Crime Lab

(JOCO Lab), found hundreds of small, reddish-brown spots on the wall of one bedroom

that presumptively tested positive for blood. The blood spots were roughly circular and

less than 1 millimeter in diameter. The pattern of stains ran from floor to ceiling and

approximately 4 to 5 feet in width, from the middle of the south wall all the way to the

east wall, with the highest concentration at waist to chest level. Lane took swabs from a

representative sampling of the spots and submitted them to the Kansas City, Missouri,

Regional Crime Lab (KCMO Lab) for further analysis, where Detective Frank Booth, a

DNA analysist, confirmed the genetic profile from the samples matched Lewicka's DNA.

34

Other circumstantial evidence corroborated Lewicka's disappearance in late

summer or early fall 1999 and Robinson's involvement. In September, Robinson called

his publishing broker, Scott, looking for a new graphic designer. Robinson told Scott that

Lewicka had been caught smoking marijuana and deported to Czechoslovakia. On

September 1, a $500 check payable to Specialty Publications was drawn on Lewicka's

account, leaving an available balance of $1. On September 3, the insurance policy

Robinson placed on Lewicka's vehicle lapsed because of nonpayment of premium.

After fall 1999, Lewicka was never seen at the local establishments she

patronized. During her time in Kansas, she shopped at A. Friendly's bookstore on 25 to

30 occasions. Lewicka stood out to the owner, Robert Meyers, because of her European

accent and interest in books about witch trials, horror, vampires, and medicinal plants.

Sometime before winter 1999, Lewicka came to A. Friendly's with a man Meyers

believed to be Robinson. Lewicka told Meyers she was moving and Robinson would be

buying her books after her move. Lewicka shopped there one more time prior to winter

1999, and Meyers never saw her again.

As with other victims, family members received suspicious correspondence after

Lewicka disappeared. Lewicka's father exchanged 25 to 30 e-mails with his daughter

after she moved to Kansas. Lewicka was spirited and fought with her parents for

autonomy and control over her life. When Lewicka responded to the e-mails, her tone

was consistently abrasive and short, asking her father, "What the hell do you want [?]"

and telling him to leave her alone. However, on April 14, 2000, Lewicka's father received

a different sort of e-mail from his daughter's account. The message said she and another

person had spent the last 2 weeks traveling the countryside in China. Unlike previous e-

mails, the tone of this message was respectful and polite. The final series of e-mails

Lewicka's father received from his daughter's account said she was traveling to overseas

locations.

35

3. Lisa Stasi

Lisa Stasi, formerly Lisa Elledge, was 18 years old when she began dating Carl

Stasi sometime after June 1983. Lisa married Carl in August 1984. She was pregnant at

the time. On September 3, 1984, Lisa Stasi gave birth to her first child, Tiffany Lynn, at

Truman Medical Center in Kansas City, Missouri. After Tiffany's birth, Stasi's marriage

crumbled and Carl reenlisted in the Navy. He reported for duty at Great Lakes Naval

Base, outside Chicago, Illinois, in early January 1985.

Around the time Stasi began dating Carl, Robinson was looking for a private

adoption opportunity for his younger brother, Donald Robinson, and Donald's wife,

Helen, who lived in the Chicago area. At a family reunion in 1983, Donald and Helen

told Robinson they were pursuing a private adoption. Robinson said he knew an adoption

attorney, Doug Wood, and would handle the process for his younger brother. In fall 1984,

Robinson told Donald and Helen a baby would be available in October. At Robinson's

direction, Donald sent him a $2,500 cashier's check payable to Robinson's business, Equi

II, allegedly to cover adoption-related fees. Robinson later said the birth mother had

decided not to place the child for adoption.

In November 1984, Robinson contacted Karen Gaddis, a social worker at Truman

Medical Center, and told her that he and several Johnson County businessmen had

developed a program to provide housing, transportation, daycare, and job training for

young mothers and their babies. Robinson said he needed referrals of Caucasian women

because the program already had African-American participants and needed racial

balance. Robinson was looking for a white woman in her teens or early 20s, who had a

newborn child, was struggling or disadvantaged, and had no family support or ties. In

January 1985, Robinson told Gaddis another organization, Hope House, had referred a

36

young lady to his program, and he had placed her at a motel in Kansas. Lisa Stasi's aunt,

Karen Moore, testified that she had contacted Hope House and took Stasi to the

organization just before January 1, 1985.

Family members last saw Stasi and Tiffany in early January 1985. Carl Stasi's

sister, Kathy Klingensmith, babysat Tiffany often. On January 8, Stasi dropped Tiffany

off at Klingensmith's home and told her she had met a man named John Osborne, who

was going to help her get a job and finish her GED. Stasi said she might even get to travel

as part of the job training program.

Stasi returned to Klingensmith's home to pick up Tiffany on January 9. When she

arrived, Stasi said John Osborne had paid for her to stay in a room at the Roadway Inn in

Overland Park. At approximately 2 p.m., Stasi called the front desk at the Roadway Inn

and gave the hotel receptionist Klingensmith's phone number in case Osborne called.

Osborne called Klingensmith's number soon thereafter and got directions to her home.

The weather was treacherous because of a strong snowstorm, but Osborne arrived at

Klingensmith's home at approximately 3 p.m. Stasi and Tiffany went with Osborne,

leaving Stasi's car parked outside Klingensmith's home. Less than 1 hour later, Stasi

called Klingensmith to tell her she had arrived safely at the motel. Klingensmith never

saw or heard from Stasi or Tiffany again. Stasi never returned for her car. Klingensmith

identified Robinson at trial as the man she knew as John Osborne.

Around 4:30 p.m., Stasi called her mother-in-law, Betty Stasi, in a panic, crying

and hysterical. Stasi said "they" were claiming that Betty Stasi planned to take Tiffany

away because Stasi was an unfit mother. Stasi's mother-in-law told her not to believe

what "they" were saying because it was not true. Stasi said "they" wanted her to sign four

blank sheets of paper. Betty Stasi told her not to sign anything. Stasi said "here they

come," and she hung up.

37

Betty Stasi never spoke to or saw Stasi or Tiffany again. A few days later, Betty

Stasi received a letter purportedly written by Stasi. It was typewritten and signed "Lisa"

at the bottom and said Stasi had left town to start a new life with Tiffany.

Nancy Robinson testified that in early January 1985, the day of the terrible

snowstorm, Robinson brought a baby to their home in Stanley. Robinson said that the

baby's name was Tiffany and that he received her through a private adoption for his

brother. Robinson called Donald and Helen and told them a baby was available

immediately. He said the birth mother had decided against adoption after delivery, but the

family did not support her decision, so she left the baby at a shelter and committed

suicide.

Donald and Helen flew to Kansas City on January 10. Robinson picked them up at

the airport in the late afternoon and drove them to the offices of Equi II in Overland Park,

where they signed legal paperwork, including a Petition for Adoption. After signing the

documents, Donald gave Robinson a $3,000 cashier's check payable to Doug Wood,

allegedly for further adoption expenses. Donald and Helen named the baby Heather

Tiffany Robinson. They returned to Chicago, along with the baby, the following day.

That same morning, Klingensmith called the Roadway Inn and learned Stasi's

room had been reserved under a name other than John Osborne. On January 11,

Klingensmith filed a missing persons report with the Overland Park Police Department.

Robinson's name surfaced early in the investigation. On February 1, 1985,

Overland Park detectives interviewed Robinson, who told them he was starting a

charitable organization to provide young mothers job training, food, and housing.

Robinson admitted he had placed Stasi at the Roadway Inn as part of that program.

38

However, he said Stasi had recently come to his office to give him the motel key.

Robinson said Stasi thanked him for the assistance and said she had made other

arrangements. Robinson claimed that Stasi and Tiffany left with a young Caucasian male

in an older model green car.

One week later, Robinson provided a similar story to his Missouri Parole and

Probation Officer, Steve Haymes. Robinson told Haymes he had placed Stasi at the

Roadway Inn, but on January 10, she and Tiffany came to his business with a man named

Bill and said they planned to start a new life together in Colorado.

To corroborate this story, Robinson paid Cora Holmes $800 in exchange for her

false statement to police. At Robinson's direction, Holmes told Overland Park detectives

that she had recently babysat Tiffany and learned Stasi had left for Arkansas with a man

named Bill Summers.

In July 1985, Donald and Helen received a package from Robinson containing

final adoption paperwork, including a Petition for Adoption, Decree of Adoption, birth

certificate, and other documents. The Petition appeared to be signed by attorney Douglas

Wood, who had handled over 100 adoptions in his career. Wood testified that he did not

prepare the document, that it deviated from his standard form, and that his signature had

been forged. Wood confirmed that he had never represented Robinson or any member of

his family in any adoption proceeding nor received payment from Robinson for such

legal work.

The Decree appeared to contain the signature of attorney Ronald Wood, who had

handled only three adoptions in his 23-year career. Ronald Wood testified that he never

signed the Decree. He had represented Robinson in other matters, and Robinson had

access to other examples of Wood's signature. The Decree also appeared to be signed by

39

Judge Michael H. Farley, but Judge Farley testified the decree was fraudulent and his

signature had been forged.

Both the Petition and Decree appeared to be notarized by Evi Gresham, who had

been in a BDS&M relationship with Robinson in the early to mid-1980s, but Gresham

had never seen the documents, her name was misspelled, and she was never a notary

public. Robinson had directed Gresham to sign numerous blank papers during their

relationship. Neither the Petition nor the Decree was found in the district court clerk's

official records.

After Robinson's arrest in 2000, Donald and Helen began to question the identity

of Heather's birth mother. Law enforcement compared Heather's footprints to the known

prints of Tiffany and found the prints matched, i.e., Heather Tiffany Robinson was

Tiffany, Stasi's biological daughter.

4. Beverly Bonner

Beverly Bonner lived in Cameron, Missouri, with her husband, Dr. William

Bonner, and their two sons. In 1992 and 1993, Bonner worked as a prison librarian at the

Western Missouri Correctional Center while Robinson was an inmate. William Bonner

was a prison physician who treated Robinson and other inmates.

In November 1993, Bonner filed for divorce. Toward the end of their marriage,

Bonner told her husband she was helping Robinson find property for a hydroponics

project. Bonner also said she planned to take a job with a company in Chicago.

Bonner was not seen by her family after her final divorce proceeding in February

1994. Bonner's brother, Louell Heath, invited Bonner to his September 1995 wedding,

40

but she did not attend. Bonner's oldest son died in October 1995, but she did not attend

his funeral.

After Bonner's disappearance, Robinson stole her alimony payments. In December

1993, Robinson, posing as Jim or James Turner, applied for a mailbox under Bonner's

name at The Mail Room in Olathe. The owner, Colleen Davis, identified Robinson at trial

as the person she knew as Turner. Robinson executed a lease for Box 182 under Bonner's

name on January 1, 1994. Robinson presented Bonner's identification and told Davis he

was collecting Bonner's mail while she worked in Australia. Davis never met Bonner and

only saw Robinson access the mailbox.

William Bonner paid his ex-wife $1,000 in monthly alimony for 18 months. He

timely mailed each alimony payment to Bonner's private mailbox in Olathe. Every

alimony check was deposited into Robinson's Hydro-Gro, Inc., business account at

Community Bank of Raymore, an account opened on February 1, 1994, with James A.

Turner and Beverly J. Bonner as the authorized signatories. Three latent prints lifted from

the original alimony checks matched Robinson's known prints.

Robinson attempted to conceal Bonner's disappearance with fraudulent

communications to her family. In January 1994, Bonner's brother, Larry Heath, received

a handwritten letter purportedly from Bonner that said she was starting a new career with

an international corporation in Chicago and that she would be traveling extensively, both

domestically and abroad. A few months later, Larry Heath received a typewritten letter

purportedly from Bonner, which was unusual because Bonner had always written letters

by hand. The letter said Bonner was working for "Jim Redmond" in the human resources

department of a large international corporation. Larry Heath continued to receive similar

typewritten letters every 3 to 4 months. Occasionally, he would respond, mailing

correspondence to Bonner's private mailbox. During the same time period, Louell Heath

41

received roughly half a dozen letters, which arrived in envelopes postmarked Australia,

France, the Netherlands, and Kansas City, Missouri. The letters were typewritten, often

discussed Bonner's travel overseas, and were signed in what Bonner's brothers believed to

be her handwriting.

In early 1997 the letters ceased. Bonner's family grew concerned and contacted

authorities to report her disappearance. Detective Frank Booth examined nine of the

envelopes mailed to Larry Heath. Eight of the envelopes had sufficient amylase to create

a full DNA profile, and each profile matched Robinson's known DNA.

5. Sheila Faith and Debbie Faith

Sheila Faith married John Faith, and the couple had a baby girl named Debbie

Lynn on October 17, 1978. Debbie was born with a number of birth defects, including

cerebral palsy, which limited her ability to walk and control her bladder, forcing her to

wear adult diapers later in life. Sheila's husband passed away in 1993, and Sheila moved

with Debbie from California to Pueblo, Colorado, to be closer to her friend, Nancy

Guerrero. Sheila and Debbie lived on Social Security and struggled financially.

According to Guerrero, Sheila was lonely and responded to personal ads in hopes

of meeting a companion. On several occasions, Sheila talked to Guerrero about her

interest in BDS&M but did not share details because Guerrero was uncomfortable with

the subject. Sheila's sister also believed she was interested in BDS&M.

In spring 1994, Sheila told Guerrero she had met a man named "John" from

Missouri. Sheila said "John" was a wealthy executive who promised to take her on a

cruise and put Debbie in private school. Sheila told her sister, Cathy Norman, that she

had met a man with a good job, that they planned to travel together, and that he planned

42

to buy Debbie a new wheelchair and accessible van. Norman said Shelia called him "Jim

Turner" either in a letter or during their last telephone conversation.

Sheila told Guerrero that she and Debbie were going to visit John. They planned to

be gone for about a month, spending a couple weeks with John in Missouri and then

traveling to Texas to visit family. Guerrero expected Sheila to return within a few weeks

because they had purchased tickets to the Colorado state fair, and Sheila planned to enter

a cross-stitched angel into the fair competition. While Sheila packed, Guerrero noticed

she did not take furniture, bedding, or other items one would need for an indefinite stay

elsewhere.

Neither Guerrero nor Sheila's sisters saw or spoke to Sheila or Debbie again after

they left Colorado to visit Robinson. Additionally, in 1995, Robinson gave one of his

paramours, Sandra Shields, a cross-stitched angel as a gift. Guerrero identified the item as

the piece Sheila Faith had made to enter into the state fair competition.

After Sheila and Debbie left, Sheila's sisters received letters purportedly written by

Sheila. In December 1994, Norman received a typewritten letter purportedly from Sheila

in an envelope postmarked Canada. The letter said Sheila had met a wonderful man

named Jim. Norman was convinced the letter was a fraud because Sheila always wrote

letters by hand and Sheila's signature appeared to be forged. Norman received another

letter the following December. Again, she was convinced Sheila did not write it because

of the typewritten format and the nature of the signature. Sheila's other sister, Michelle

Fox, also received a letter in an envelope postmarked outside the country. Fox

immediately suspected it was fraudulent because of the typed format, style, and unusual

signatures.

43

For years following their disappearance, Robinson stole Sheila's and Debbie's

social security benefit payments. In June 1994, just months after setting up a private

mailbox under Bonner's name, Robinson, posing as James Turner, set up another private

mailbox at the Mail Room—this time under the names Sheila and Debbie Faith. The

owner saw Robinson come to the mailbox at least once a month to collect two

government checks mailed to Sheila and Debbie Faith.

While the Faiths were living in Colorado, the Social Security Administration

(SSA) had mailed Sheila's and Debbie's benefit checks to a Pueblo, Colorado, address.

For the first half of 1994, these checks were often deposited into an account held at

Colorado National Bank. In June 1994, SSA received notice that Sheila's and Debbie's

mailing address had changed to the private mailbox in Olathe. SSA began mailing benefit

checks to this new address the following month.

From July 1994 to September 1995, the checks were deposited into Robinson's

Hydro-Gro, Inc., business account at Community Bank of Raymore—the same account

Robinson used to deposit Bonner's alimony checks. In fall 1995, Community Bank of

Raymore notified Robinson, a/k/a James Turner, that Social Security checks could not be

deposited into a business account. Thereafter, Robinson deposited the checks into his

Specialty Publications' accounts at other financial institutions.

Robinson also employed fraud and deceit to ensure Debbie's disability benefits

would continue. In August 1994, SSA received a completed disability review form for

Debbie, purportedly signed by Sheila Faith. Attached to the disability form was a medical

report confirming Debbie's ongoing physical impairment. The report appeared to be

signed by Dr. William Bonner, but he testified that he had never treated Debbie Faith,

had not prepared the report, and had never had an office at the address identified in the

document.

44

On June 7, 2000, law enforcement searched box 215 at The Mail Room and seized

envelopes containing the June 2000 SSA benefit checks for Sheila and Debbie Faith. Lyla

Thompson, a deputy with the JOCO Lab, developed several latent fingerprints from the

other SSA checks that matched Robinson's known prints.

6. Vickie Neufeld

Vickie Neufeld lived in Texas. She lost her job as a geriatric therapist in March

2000, and her financial situation was dire. Neufeld placed personal ads on BDS&M

websites and began e-mailing Robinson. Neufeld and Robinson discussed a potential

BDS&M relationship, and he sent her a slave contract to review.

On April 23, 2000, Robinson asked Neufeld to visit him in Kansas. Robinson said

he was a wealthy businessman with a history of helping other professional women get

established in the area. He promised to support her and said they possibly could pursue a

relationship.

Robinson arranged for Neufeld to stay at Extended Stay America in Overland

Park. She arrived on April 23, 2000. As Robinson had requested, she brought her own

sex toys along for the trip. Robinson and Neufeld engaged in sexual activity at various

times during her stay. On the morning of April 26, Robinson told Neufeld he was leaving

for a business trip in Israel and wanted to discuss a plan for her to move to Kansas.

Robinson said his business would pay movers to bring her belongings to Kansas that

weekend. Robinson asked Neufeld to leave her sex toys with him, explaining it would

give her extra incentive to return. Neufeld left behind her rattan-type canes and a mesh

bag full of sex toys, which she valued at $700.

45

Neufeld returned to Texas, but the movers never arrived. On May 22, 2000,

Neufeld asked Robinson to return her sex toys, but he did not comply. Neufeld filed a

police report, and law enforcement found Neufeld's sex toys several days later during the

search of Robinson's Olathe storage locker.

The Investigation

On March 25, 2000, the Overland Park Police Department took a missing person's

report regarding Trouten and transferred it to the Lenexa Police Department, which had

jurisdiction. Lenexa police created a multijurisdictional task force that quickly focused its

investigation on Robinson's activities. They employed numerous investigative

techniques, including surveillance, trash hits, consent searches, pen registers, wiretaps,

and search warrants, leading to Robinson's arrest on June 2, 2000.

On March 29 and 30, 2000, Deputy Daniel Rundle, a forensic chemist with the

JOCO Lab, searched Trouten's room at the Guesthouse Suites in Lenexa. Although

Rundle found several small bloodstains in the room, he admitted the search produced

nothing of evidentiary value.

On March 31, 2000, the Lenexa Police Department began searching trash left at

the curbside for collection at Robinson's Olathe residence. On April 4, officers found an

invoice for a package Robinson sent to Glines in California—the woman who mailed

letters postmarked from San Jose, California, at Robinson's request. On April 25,

investigators used a Deffenbaugh trash truck with the company's permission and

collected three bags of Robinson's trash. They recovered a telephone bill for service at

Robinson's Linn County property, which documented a long-distance call placed from

Robinson's trailer on the morning of Trouten's disappearance.

46

On May 22, 2000, law enforcement secured a court-ordered wiretap on Robinson's

cell phone. Law enforcement later intercepted a call from Robinson to Remington's

phone, which was answered by her minor son. During that call, Robinson identified

himself as "Jim." Later that afternoon, law enforcement intercepted another telephone call

from Robinson, posing as Jim Turner, to Remington. During this call, he said Trouten

had stolen his credit cards and withdrawn money from his accounts, and that his private

investigator had learned Trouten was in Mexico. He also said Carolyn Trouten had called

one of his friends, inquiring about her daughter's whereabouts.

On the morning of June 2, 2000, law enforcement secured a warrant to search

Robinson's Olathe residence and his Olathe storage unit. Robinson was arrested that

morning just before officers executed the search warrants.

During the search of Robinson's residence, law enforcement officers seized a

number of incriminating items, including books on creating false identities; a Home

Depot credit card bearing the name "James A. Turner"; IRS Form 1099 statements for

Sheila and Debbie Faith; Roadway Inn receipts with "Lisa Stasi" written on them,

reflecting payment for lodging in January 1985; an IRS form signed by "Beverly J.

Bonner"; documents identifying "James Turner" and "John Robinson" as affiliated with

Equity Financial Group and Hydro-Gro, Inc.; papers and handwritten notes with e-mail

addresses associated with the victims and their families; and e-mail communications

between Trouten and Robinson.

During the search of Robinson's Olathe storage unit, law enforcement officers

seized several items relevant to the disappearances of Trouten, Lewicka, and Sheila and

Debbie Faith. First, several items were immediately identifiable as Trouten's, including

her Social Security card, Michigan driver's license, birth certificate, high school diploma,

Sam's Club membership card, American Red Cross certification card, passport

47

application, and prescription medication. Law enforcement officers also found numerous

personal items that family members identified as Trouten's property, including her

jewelry boxes, jewelry, collectible items, nursing textbooks, and a journal with the name

"Suzette" inside. A number of items also evidenced Trouten's BDS&M relationship with

Robinson, including a slave contract, a sex tape, nude photographs, and e-mails.

Several items were also immediately identifiable as Lewicka's, including her

Polish passport, Kansas driver's license, Social Security card, resident alien card, Olathe

Public Library card, high school diploma, Indiana vehicle registration, and a document

appointing Robinson as her power of attorney. Law enforcement officers also found

several personal items that family members later identified as Lewicka's.

Additionally, law enforcement officers seized 1998 IRS Form 1099 statements for

Sheila and Debbie Faith, along with photocopies of their SSA benefit checks for

September 1997. Finally, police found a slave contract Neufeld had signed, along with

her sex toys.

On the morning of June 3, 2000, law enforcement officers secured a warrant from

Johnson County District Judge Larry McClain to search Robinson's Linn County

property. The search began that morning and continued for roughly 1 full week.

Around 1 p.m. on June 3, Johnson County Sheriff's Detective Herald Hughes

learned a cadaver dog alerted on two yellow, metal barrels on the property. The barrels

were located out in the open, just to the south of a wooden shed located several yards to

the southwest of the trailer on the property. Hughes opened the barrels and confirmed

each contained the remains of a human body.

48

The barrels were transported to the Shawnee County morgue, where Shawnee

County Deputy Coroner Donald Pojman conducted autopsies on June 4. The body

removed from the first barrel was that of Trouten. It was mildly decomposed, unclothed,

and lying in a fetal position inside the barrel. There was a soft, nylon rope tied around the

head with a piece of cloth underneath covering the nose and mouth, which Pojman

believed to be a blindfold that had slipped below the eyes. There were two visible

injuries: a tear to the skin near the left armpit inflicted postmortem and an oval-shaped

defect on the left side of the head, which Pojman believed to be lethal. Pojman concluded

the cause of death was a blow to the left side of the head with a hard object. Forensic

odontologist Daniel Winter confirmed Trouten's identity with her known dental records.

Pojman then conducted the autopsy of the body in the second barrel, later

identified as Lewicka. The body was moderately decomposed, lying in a fetal position,

partially covered with a pillow, and clothed with a short-sleeve nightshirt. Inside the

barrel, Pojman saw three pieces of gray or silver duct tape. He observed two blunt-force

injuries to the skull, either of which could have been lethal. He noted the injuries were

similar to Trouten's. Winter confirmed Lewicka's identity with her known dental records.

Back in Linn County, deputies from the JOCO Lab discovered a variety of

incriminating trace evidence inside Robinson's trailer. First, Deputy Allen Hamm found a

paper towel inside the kitchen sink with a reddish-brown stain that presumptively tested

positive for blood. Detective Booth, KCMO Lab, determined the genetic profile from the

blood on the paper towel matched Trouten's DNA profile. Booth testified that this genetic

profile occurs in only 1 in 6 billion people.

Booth also found eight hair strands on the paper towel. Booth compared them to

known samples from Trouten and Robinson and opined that they were common to

Trouten and not Robinson. Booth admitted that, unlike DNA testing, comparative hair

49

analysis cannot yield a positive identification. However, he explained the methodology is

still useful in excluding individuals or including them among a group of people that share

similar hair characteristics. Additionally, Booth obtained a root from one of the hair

samples and successfully acquired a genetic profile that produced a match to Trouten.

Hamm found reddish-brown stains on wallboard in the kitchen that presumptively

tested positive for blood. Booth confirmed that the genetic profile from the wallboard

stains matched Trouten's DNA. Booth also found two hairs in the samples, both of which

were common to Trouten and not Robinson. Hamm also collected swabs of a stain on a

long piece of trim board in the kitchen area of the trailer. Booth found two hairs and two

fragments in these swabs that were common to Trouten and not Robinson.

Johnson County Sheriff's Deputy Andrew Guzman found a roll of duct tape inside

a green plastic trash container in the south bedroom. The tape appeared to be similar to

the strands of duct tape found inside the barrel containing Lewicka's body. Investigators

saw a reddish-brown stain on the roll of duct tape, and Booth's subsequent testing

confirmed the genetic profile produced a match to Lewicka's DNA. Deputy Thompson

lifted one latent print from the roll of duct tape that did not match Robinson's known

prints. Thompson compared the print to several crime scene investigators' known prints

but found no match. Due to the state of decomposition of Lewicka's body, Thompson was

unable to compare the print to Lewicka's. Thompson saw what appeared to be another

partial print with some ridge detail on the roll of duct tape, but it was too incomplete to

be of value.

In addition to trace evidence, law enforcement officers seized a number of

Trouten's belongings from inside Robinson's trailer. In the living room area, Guzman

found a box with an "EZ Set" label on it and a box with a "Big Boy" label on it that

contained glassware, oil lamps, figurines, and other collectable items. Carolyn Trouten

50

confirmed that many of these items belonged to Suzette Trouten. Thompson developed a

number of latent prints from items in the EZ Set box that matched Robinson's known

prints.

On June 5, 2000, law enforcement officers executed a warrant to search a

Raymore, Missouri, storage unit, rented by Robinson. In December 1993, Robinson had

rented unit F-10 at Stor-Mor For Less in Raymore. He leased the unit under Beverly

Bonner's name, claiming that Bonner was his sister and that he was storing her

belongings while she worked in Australia. The leasing agent recalled Robinson saying

Bonner worked for an agricultural company with "Hydro" in its name. Robinson leased

this unit through the summer of 1996. In January 1994, Robinson leased a second unit, E-

2, under Bonner's name and maintained that lease through the date of his arrest.

Law enforcement officers began searching unit E-2, and within 10 minutes, they

smelled a foul odor that they associated with a decomposing body.

In the back of the locker, officers saw three barrels. The first was black and sealed

with a gray lid. They opened the top and discovered a body inside. The two other barrels

were located in front of the black barrel. They were covered with a large plastic sheet,

and cat litter had been sprinkled around the outside of the barrels inside the plastic. Some

of the litter appeared to have absorbed a dark fluid. The barrels were wrapped together

with two additional pieces of plastic sheeting held up with pieces of duct tape. Thompson

examined the plastic sheeting and duct tape and developed four latent prints of value.

Three of the latent prints matched Robinson's known prints, and one was not identified.

The officers did not open the second and third barrels but suspected they too contained

human remains.

51

All three barrels were transported to the Jackson County Medical Examiner

Thomas Young. Young conducted an autopsy on the body inside the first barrel, later

identified as Beverly J. Bonner. The body was curled up inside the barrel and fully

dressed for cold weather. Young believed the body had been stored for a long period of

time because most external features were blurred and the internal organs were hard to

distinguish. The body had substantial trauma to the head caused by multiple blows from a

blunt object with a rounded surface, consistent with a hammer. Young opined that any

number of these blows could have resulted in death. On June 7, 2000, forensic

odontologist Ronald Grier confirmed the victim was Bonner.

Next, Young conducted an autopsy on the body contained one of the two barrels

wrapped in plastic, later identified as Sheila Faith. The body was an adult female, fully

clothed. Young believed the state of decomposition was consistent with the death having

occurred 5 to 6 years prior but admitted no precise date of death could be determined.

The body had multiple injuries to the head caused by blunt-force trauma consistent with

infliction by a hammer. Young opined that any number of these blows could have been

fatal. Young also observed a fracture of the right forearm, specifically the right ulna,

which he testified to be consistent with a defensive wound. Grier confirmed the victim

was Sheila Faith.

Finally, Young conducted the autopsy on the body found inside the third barrel,

later identified as Debbie Faith. The body was fully clothed, and the subject was wearing

an adult disposable diaper. Young believed the victim was a teenager because x-rays

revealed that several growth discs had not closed. Again, Young testified that the state of

decomposition was consistent with the death having occurred 5 to 6 years prior but

admitted no precise date could be determined. The victim had sustained at least three

blows to the head, each of which could have been fatal, inflicted by a blunt object with a

52

rounded surface, consistent with a hammer. Using known dental x-rays, Young opined

the victim was Debbie Faith.

Lisa Stasi's body has never been found.

On June 9, law enforcement officers searched the Grant Street Duplex with

Sandre's consent. They seized a number of items belonging to Lewicka, including two

sets of bedding, an antique Polish coffee grinder, a Hungarian espresso machine, and a

black journal with handwriting and sketches. Investigators noticed one of the sets of

bedding matched the pattern on the pillowcase found inside the barrel containing

Lewicka's body. The bedding also matched the pattern depicted in nude photographs of

Lewicka found in Robinson's Olathe storage unit.

Hanging on the wall of the duplex was a framed oil painting with the signature

"John '92" and the initials "JR" at the top. There were also two pencil drawings displayed

in the spare bedroom signed "John 2000" and the initials "JR" underneath. Lewicka's

friend Carter, who had cataloged Lewicka's artwork and was familiar with her paintings

and drawings, recognized the framed painting as Lewicka's artwork. Lewicka's friend

Hayes also identified the pencil drawings as Lewicka's work.

Law enforcement officers seized several books purchased from A. Friendly's,

where Lewicka was a frequent patron. The owner, Meyers, specifically recalled selling

two of the books to Lewicka.

The Trial

On June 2, 2000, the State filed its Complaint against Robinson, charging him

with two counts of aggravated sexual battery and one count of theft. The State amended

53

its Complaint on June 13, adding one count of aggravated kidnapping and two counts of

capital murder. The State filed its Second Amended Complaint on July 28, adding one

charge of premeditated first-degree murder and one charge of aggravated interference

with parental custody. On August 31, 2000, the State filed its Third Amended Complaint,

supplementing allegations in the existing counts.

At preliminary hearing, the State put on evidence supporting the eight counts in

the Third Amended Complaint. District Judge John Anderson III found probable cause

lacking and dismissed Count IV, aggravated sexual battery of J.M. Judge Anderson

renumbered the remaining seven counts, which were tried to the jury.

Jury selection began on September 16, 2002. Judge Anderson empanelled the jury

on October 4, and trial commenced on October 7. At the close of the State's evidence,

Judge Anderson granted defendant's motion for directed verdict on Count IV, aggravated

sexual battery of Vicki Neufeld. On October 25, 2002, the defense rested. That same day,

the State filed a Fourth Amended Complaint charging Robinson only with the counts

from the Third Amended Complaint that survived Robinson's motion for directed verdict.

The following six counts were submitted to the jury on October 28, 2002: Count

I, aggravated kidnapping of Suzette Trouten; Count II, capital murder of Suzette Trouten;

Count III, capital murder of Izabela Lewicka; Count IV, felony theft of Vicki Neufeld's

property; Count V, premeditated first-degree murder of Lisa Stasi; and Count VI,

aggravated interference with Lisa Stasi's parental custody. On October 29, 2002, the jury

returned a unanimous verdict convicting Robinson on all counts.

54

PRETRIAL AND GUILT PHASE ISSUES

1. VENUE

Robinson argues pretrial publicity was so pervasive and prejudicial in Johnson

County that it resulted in actual prejudice to his right to trial by a fair and impartial jury

in violation of his rights under the Sixth and Fourteenth Amendments to the United States

Constitution. He also claims Judge Anderson abused his discretion by refusing to transfer

venue to another county pursuant to K.S.A. 22-2616(1).

Additional Factual and Procedural Background

1. First Motion for Venue Change

Robinson first moved for a change of venue on January 17, 2002. At the January

30, 2002, evidentiary hearing, defendant presented testimony from venue experts, along

with the results of a venue study prepared by Lisa Dahl of Litigation Consultants, Inc.

The study was based on three telephone surveys: one of 400 Johnson County

residents, one of 200 Harvey County residents, and one of 200 Ellis County residents.

Dahl selected Johnson County, which had a population of 464,083 at the time, because it

was the venue of origin. She selected Harvey County, which had a population of 35,737,

as one of the control groups because its county seat, Newton, was a bedroom community

to Wichita, much like Olathe was a bedroom community to Kansas City. She selected

Ellis County, which had a population of 28,731, as another control group because it was

geographically removed from the venue of origin and other metropolitan areas, yet its

demographic makeup and crime rates were comparable to Johnson County. Dahl testified

the number of respondents in each county was statistically sufficient to extrapolate results

55

to the general population within a 5 percent margin of error in Johnson County and 7 to 8

percent margin in the control counties.

The surveys' results showed 94 percent of the respondents in Johnson County were

aware of this case, compared to 80 percent in Harvey County and 64 percent in Ellis

County. Further, 67 percent of those surveyed in Johnson County held an overall opinion

that the defendant was "definitely guilty" or "probably guilty." In contrast, 50.5 percent

of the Harvey County respondents and 35.5 percent of the Ellis County respondents held

similar opinions. As to respondents' views of the strength of the evidence of defendant's

guilt, 72.3 percent of the Johnson County respondents believed it to be "overwhelming"

or "strong." Half of the respondents in Harvey County and only 35.5 percent of

respondents in Ellis County believed likewise. Also, 68 percent of Johnson County

respondents had knowledge of case facts beyond those presented in the survey, compared

to only 23 percent in Harvey County and 27.3 percent in Ellis County.

Dahl testified that the surveys' results were generally statistically significant.

However, in the three counties surveyed, there was no statistically reliable difference in

sentencing opinions among respondents who recalled the case.

Dahl admitted she was not interested in exploring whether respondents could set

aside preconceived opinions and serve as impartial jurors. In fact, none of the 38

questions in the surveys explored respondents' ability to assess the case impartially.

Robinson also called Ronald Dillehay, a professor of psychology at the University

of Nevada-Reno with expertise in the design and analysis of venue studies and jury

selection procedures. Dillehay testified that the design of Dahl's venue surveys was

scientifically valid and conformed to generally accepted practices in the field. Dillehay

also testified that the absence of questions exploring respondents' ability to serve as

56

impartial jurors did not invalidate the venue study. In support, he cited studies in the

fields of psychology and social science that suggest humans struggle to set aside

preconceived opinions but will confirm their ability to do so when asked. Thus, Dillehay

said such questions produce a lack of response variance sought in reliable questionnaires.

Dillehay acknowledged the survey data showed a very high level of awareness and

prejudgment of the case in Johnson County and then discussed possible options to

counteract such prejudice, including: (1) change of venue; (2) importing jurors from

outside Johnson County; (3) delay; (4) enhanced voir dire; (5) additional peremptory

challenges; and (6) judicial instructions.

Dillehay believed delay and judicial instructions would be ineffective due to the

high levels of awareness and prejudgment. As to the option of enhanced voir dire,

Dillehay explained that the court could overcome juror minimization, which he described

as a tendency on the part of jurors during voir dire to downplay what they learned from

the media coverage and the impact it had on their prejudgment and/or impartiality, by

allowing attorneys to ask prospective jurors extensive, probing voir dire questions.

Dillehay explained that enhanced voir dire would require participation of attorneys, lots

of questions, and small groups consisting of no more than four to six people, facilitating

an environment where prospective jurors would be forthcoming. While effective,

Dillehay believed enhanced voir dire would be too onerous from a logistical or

administrative perspective, describing it as "very laborious and very time-consuming."

On the second day of the evidentiary hearing, continued to March 6, 2002, the

defense played 2 hours of televised news coverage of the case broadcast within the first 2

weeks of the discovery of bodies on Robinson's Linn County property in June 2000. In

the motion, defendant had also submitted articles about the case published by the Kansas

City Star from June 6, 2000, to July 27, 2001. During this time period, the Kansas City

57

Star published 72 stories. More than half of them were published in the same month the

story broke. Coverage gradually dissipated and was nearly nonexistent at the end of 2000

and early 2001. Thereafter, the majority of the coverage shifted from reports about

Robinson and the crimes to trial coverage.

Judge Anderson denied the motion in a March 12, 2002, order, explaining:

"Despite the extraordinary amount of attention this case has received from the public and

in the press thus far, the Court is not convinced that the defendant cannot obtain a fair

trial. Johnson County is a large county with a sophisticated pool of potential jurors. The

Court is confident that appropriate voir dire and jury selection methods will result in a

fair and impartial jury that will decide the case on the evidence presented in court and on

its merits. The presumption of innocence and the right to a fair trial are of the utmost

importance to the rule of law in this country. The system simply does not function

without it. If it becomes apparent during voir dire that an impartial jury cannot be found,

the Court will not be reluctant to order a change of venue."

2. Renewed Motion for Venue Change after Voir Dire

On October 3, 2002, after completing voir dire, Robinson filed "Defendant's

Renewed Motion for Change of Venue, or, in the Alternative, to Discharge the Jury

Panel," arguing that voir dire had proven inadequate to overcome community bias.

At the outset of jury selection, roughly 1,200 Johnson County residents were

issued summonses and ordered to appear in four groups of 300, but the district judge later

released the final two panels. Veniremembers completed a juror questionnaire

(questionnaire) prepared by the parties, eliciting their views on pretrial publicity, the

death penalty, and other case-specific facts and issues.

58

With the agreement of the parties, the trial court conducted jury selection in four

phases. In the first phase, Judge Anderson called prospective jurors in groups of 60 to

explore and rule on hardship challenges.

In the second phase, Judge Anderson assigned jurors to six-member panels to

conduct small group voir dire on pretrial publicity and death penalty topics. After the

parties completed voir dire of each panel, the district judge ruled on challenges for cause.

From September 18 to October 1, 2002, the parties examined 43 panels made up of 259

veniremembers. Nearly all had some knowledge of the case. Judge Anderson passed only

83 of the 259 panelists to the third phase of jury selection.

A majority of these disqualified panelists, 167 of 259 (64 percent), were excused

for cause based on preconceived opinions of the case, firm death penalty opinions (both

for and against), or both. Specifically, 74 of the 259 panelists (28.5 percent) were excused

based solely on firm opinions due to exposure to pretrial publicity, 72 panelists (27.7

percent) were excused based solely on firm opinions regarding the death penalty, and 21

additional panelists (8.1 percent) were excused on both pretrial publicity and death

penalty grounds. In total, 95 of the 259 panelists were excused, in whole or part, due to

bias related to pretrial publicity and 93 panelists were excused, in whole or part, based on

their disqualifying death penalty opinions. Judge Anderson liberally excused panelists

holding preconceived opinions, granting 92 of the 100 challenges defendant asserted on

this basis.

Nine of the 259 panelists (3.4 percent) were excused because of previously

undisclosed hardships or grounds unrelated to pretrial publicity or the death penalty.

Of the 83 panelists passed to general voir dire, 52 were passed without any

challenge for cause asserted by either party. The 31 other panelists were passed over the

59

objection of one of the parties—4 from the State and 27 from defendant. However,

Robinson challenged 19 of these 27 based on death penalty views and 8 on grounds

related to bias arising from exposure to media coverage.

During general voir dire, Judge Anderson passed 65 of the 83 panelists, excusing

18 on grounds unrelated to pretrial publicity. However, the district judge needed only 51

panelists to seat a jury of 12 with 5 alternates. The parties agreed to release the 14 jurors

with the highest assigned juror numbers. Juror 440, whom Robinson had previously

challenged unsuccessfully on pretrial publicity grounds, was 1 of the 14 panelists

released. This left only 7 prospective jurors on the final panel that defendant had

challenged unsuccessfully on grounds of bias arising from exposure to pretrial publicity.

In the final phase of jury selection, the parties exercised peremptory challenges.

Among those jurors seated, 11 of 12 were passed by the parties without any objection

based on preconceived opinions of guilt, and all jurors confirmed their ability to serve

impartially. Defendant had challenged only one of the seated jurors, Juror 39, on grounds

of bias related to pretrial publicity. Eight of the 12 jurors were passed for cause without

challenge from either party (Jurors 87, 92, 131, 147, 214, 246, 302, and 309).

At the start of the eighth day of trial, Juror 214 was excused because of an

emergency medical hardship in her family and was replaced by Alternate Juror 340. The

parties had passed Juror 340 without challenge.

While every seated juror was familiar with the case, most had limited exposure to

the media's coverage. All but two members of the jury characterized their exposure to

pretrial publicity as minimal, passing, or light; and several members said they saw

coverage when the story first broke 2 years earlier and their recollection of the reported

facts had diminished over time.

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After hearing argument on the renewed motion for venue change on October 4,

2002, the trial judge denied the motion, finding the jury selection process had yielded a

fair and impartial jury.

3. Second Renewed Motion for Venue Change

On October 7, 2002, just before opening statements, defendant renewed his motion

to change venue for a second time. Defense counsel explained that earlier that morning,

he entered Judge Anderson's chambers and noticed a copy of that morning's Olathe Daily

News sitting in the reception area. The front page of the newspaper contained Robinson's

photograph, and the newspaper's banner headline read "Robinson to face his jury" and the

subheading read "Defense says trial should be moved." Defense counsel explained that

when he emerged from chambers, the jury walked past him, coming within 2 feet of the

paper, which was face up on the reception counter. The defense believed jurors could

have seen the headlines, warranting a venue change.

The trial court denied the second renewed motion for venue change, finding that

he had "no idea" whether any jurors saw the newspaper, but even if they did, there was no

prejudice in light of the content and given the media's extensive reporting on defendant's

motion to change venue earlier that spring.

4. Third Renewed Motion for Venue Change

Defendant renewed his motion to change venue for a third time on October 9,

2002, explaining that a local radio personality had been giving away T-shirts outside the

courthouse as a publicity stunt that morning. The front of the T-shirts read "Roll Out the

Barrels! Of Evidence," and the back read "John E. Robinson Trial 2002."

61

Judge Anderson found that none of the jurors were exposed to the publicity stunt

or T-shirts because of safeguards the court had taken, including bringing jurors into the

courthouse through a secluded entry away from the incident. Judge Anderson denied the

motion, concluding the incident did not affect jurors "in any way, shape or form."

Legal Framework and Standard of Review

Robinson argues the district judge's denial of his change of venue motions violated

his constitutional right to an impartial jury.

The Sixth Amendment guarantees an accused "[i]n all criminal prosecutions" the

right to a trial by "an impartial jury." U.S. Const. amend VI. This protection is

incorporated into and made applicable to the States through the due process provision of

the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 153-58, 88 S. Ct. 1444,

20 L. Ed. 2d 491 (1968).

A constitution-based claim for venue change can arise under a theory of presumed

or actual Sixth Amendment prejudice. State v. Longoria, 301 Kan. 489, 506, 343 P.3d

1128 (2015). "'[A]ctual prejudice,' occurs 'where the effect of pretrial publicity

manifested at jury selection is so substantial as to taint the entire jury pool.'" State v.

Carr, 300 Kan. 1, 57, 331 P.3d 544 (2014) (quoting Goss v. Nelson, 439 F.3d 621, 628-

29 [10th Cir. 2006]), cert. granted in part 135 S. Ct. 1698 (2015). "'In cases of actual

prejudice, "the voir dire testimony and the record of publicity [must] reveal the kind of

wave of public passion that would have made a fair trial unlikely by the jury that was

impaneled as a whole." [Citations omitted.]'" 300 Kan. at 57.

"Jury selection is a task 'particularly within the province of the trial judge.'" Carr,

300 Kan. at 75 (quoting Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S. Ct. 1017, 47 L. Ed.

62

2d 258 [1976]). A district judge's ruling on juror impartiality "is entitled to special

deference." 300 Kan. at 75. Accordingly, we review claims of actual prejudice under the

abuse of discretion standard. 300 Kan. at 75. "An abuse of discretion can occur in one of

three ways—when the trial court makes an error of law; bases its decision on facts not

supported by the evidence; or makes an arbitrary, fanciful, or unreasonable decision."

Longoria, 301 Kan. at 509.

Defendant also challenges Judge Anderson's rulings under the Kansas change of

venue statute, K.S.A. 22-2616(1). As with claims of actual prejudice, we review the trial

court's ruling under the statute for abuse of discretion. Longoria, 301 Kan. at 509.

Actual Prejudice

Robinson advances five arguments in support of his actual prejudice challenge,

arguing that the trial court abused its discretion by: (1) failing to acknowledge

uncontroverted social science evidence that individuals cannot set aside preconceived

opinions; (2) applying K.S.A. 22-2616 contrary to the Sixth Amendment; (3) finding voir

dire eliminated those with bias; (4) failing to acknowledge the media's interference with

proceedings; and (5) failing to acknowledge jurors' failure to abide by admonitions.

1. Did the trial court's findings ignore social science research?

Robinson argues the district judge erroneously denied the venue change motion in

light of uncontroverted expert witness testimony describing social science studies that

suggest people struggle to genuinely set aside preconceived beliefs. Given this testimony,

Robinson believes Judge Anderson's finding that voir dire could overcome community

bias is unsupported by record evidence.

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There are several problems with Robinson's argument. First, it fails to place the

expert witness' testimony in its proper context. During the evidentiary hearing, the

defense asked its expert witness, Dillehay, whether Dahl's venue questionnaire was valid

even though it failed to explore respondents' ability to set aside their opinions of the case.

Dillehay opined that such questions were properly excluded from the surveys because

they do not produce reliable survey data. In support of this opinion, Dillehay identified

several studies suggesting humans' struggle to genuinely set aside preconceived beliefs

yet will attest to their ability to do so. Dillehay did not attempt to extrapolate these

findings as support for the broader proposition that Robinson advances here—that anyone

who forms an opinion of the case is thereafter unalterably tainted and rendered

unqualified to serve as a juror. In fact, the Supreme Court has observed that empirical

studies support the opposite conclusion. Gentile v. State Bar of Nevada, 501 U.S. 1030,

1054-55, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) ("Empirical research suggests that in

the few instances when jurors have been exposed to extensive and prejudicial publicity,

they are able to disregard it and base their verdict upon the evidence presented in court.").

More importantly, Dillehay later testified that this phenomenon, which he called

"juror minimization," could be overcome by employing enhanced voir dire techniques.

Dillehay opined that enhanced voir dire would facilitate open, genuine responses from

veniremembers, enabling the district judge to identify and remove those rendered

unqualified to serve due to preconceived opinions of guilt. This testimony provides

record support for Judge Anderson's finding that "appropriate voir dire and jury selection

methods will result in a fair and impartial jury." For these reasons, the ruling is supported

by substantial, competent evidence and does not constitute an abuse of discretion. See

State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142 (2012) (trial court abuses

discretion where substantial competent evidence does not support a finding upon which a

legal conclusion rests).

64

2. Did the trial court apply an incorrect legal standard?

Robinson next argues the trial court applied an "impossibility of fair trial" standard

under K.S.A. 22-2616(1) rather than the Sixth Amendment "reasonable likelihood" of an

unfair trial standard embraced by the Supreme Court. See Sheppard v. Maxwell, 384 U.S.

333, 363, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966) ("But where there is a reasonable

likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should . . .

transfer it to another county not so permeated with publicity.").

Robinson relies on language from the trial court's order denying the first venue

change motion, which concluded that "[d]espite the extraordinary amount of attention

this case has received from the public and in the press thus far, the Court is not convinced

that the defendant cannot obtain a fair trial." (Emphasis added.) Robinson believes the

use of the term "cannot" proves the district judge employed an "impossibility" standard to

defendant's venue change motion.

However, this language merely tracks the venue change statute itself, which

compels the court to transfer venue where prejudice against defendant is so great that he

or she "cannot obtain a fair and impartial trial in that county." (Emphasis added.) K.S.A.

22-2616(1).

We disposed of a substantively similar challenge in Carr, where defendant argued

Kansas' venue change statute improperly elevated the standard of proof from "reasonable

likelihood" of an unfair trial to an "absolute certainty" of an unfair trial by compelling a

venue change only when defendant cannot obtain a fair trial. 300 Kan. at 80. However,

we observed in Carr that Kansas courts consistently apply a "reasonable certainty"

standard of proof (i.e., "'reasonable certainty' that the defendant cannot obtain a fair trial

in the ordinary venue") to challenges under Kansas' venue change statute and found this

65

standard to be wholly consistent with the Supreme Court's "reasonable likelihood"

standard. 300 Kan. at 80-81. Carr disposes of Robinson's challenge because it is founded

on Judge Anderson's reference to the same statutory language at issue there.

Defendant also contends Judge Anderson's order is erroneous because it fails to

address the constitutionally based venue challenge apart from his statutory challenge.

However, the trial court's memorandum decision addressed the motion to change venue

under "K.S.A. 22-2616, § 10 of the Kansas Constitution's Bill of Rights, and the Sixth

and Fourteenth Amendments to the United States Constitution." While the order does not

make separate findings between the statutory and constitutionally based theories in the

motion, "defendant[ ] never sought a more complete recitation or writing to explain Judge

[Anderson's] venue rulings; and, if [he] thought the findings were insufficient for

appellate review, [he] had an obligation to do so." Carr, 300 Kan. at 65. Robinson's

failure to do so forecloses his challenge. See Longoria, 301 Kan. at 506 (Where

defendant fails to "object to the adequacy of the trial court's factual findings, we assume

that the trial court made the findings necessary to deny the change of venue.").

3. Did voir dire prove ineffective to overcome prejudice?

In his third actual prejudice argument, Robinson claims the trial court erred by

failing to recognize that jury selection only confirmed the need to change venue. This

challenge goes to the heart of the question of actual Sixth Amendment prejudice.

"When faced with a claim of actual prejudice, a trial court must 'review the media

coverage and the substance of the jurors' statements at voir dire to determine whether a

community-wide sentiment exists against the defendant. Negative media coverage by

itself is insufficient to establish actual prejudice.'" Longoria, 301 Kan. at 508 (quoting

Carr, 300 Kan. 1, Syl. ¶ 6).

66

In reviewing a claim of actual prejudice, we examine "'"whether the judge had a

reasonable basis for concluding that the jurors selected could be impartial."'" Carr, 300

Kan. at 74-75.

Robinson first argues the character and composition of the jury panel, as well as

the members of his jury, demonstrate actual prejudice. To the contrary, Judge Anderson's

jury selection procedures proved to be successful in identifying bias and removing those

veniremembers adversely affected by pretrial publicity.

During the second phase of jury selection, the district judge, consistent with the

recommendation of Robinson's expert, Dillehay, assigned veniremembers to small group

panels consisting of six members and allowed counsel for the parties to question them

extensively on pretrial publicity and death penalty topics. Through this process, Judge

Anderson excused 95 of the 259 panelists, roughly 37 percent, in whole or in part,

because of firm opinions of guilt arising from exposure to pretrial publicity. Of the 83

panelists passed to the third phase of jury selection, general voir dire, Robinson had

challenged only 8 unsuccessfully on grounds related to pretrial publicity or preconceived

opinions of guilt.

Robinson argues 52 of the 83 panelists (nearly 63 percent) passed to the third

phase were biased. However, this calculation includes jurors who merely expressed a

belief in capital punishment, even if they had not formed opinions about the case as a

result of exposure to pretrial publicity. Robinson's selection criteria were also overly

broad, including jurors who expressed a belief or a "leaning" toward the belief that

Robinson was guilty or made statements Robinson believed to be "suggestive of such a

belief" either during voir dire or merely in their questionnaire responses. Robinson claims

28 of the 83 panelists held opinions of guilt (either exclusively or in addition to views in

support of capital punishment). Yet, he challenged only 8 of the 83 panelists on such

67

grounds. The discrepancy between Robinson's calculation and his actual challenges for

cause highlights the unreliability of defendant's calculations.

Moreover, the members of defendant's jury were well qualified. The jury consisted

of 11 members who entered the box without preconceived opinions of the case, and all

confirmed their ability to set aside personal views and decide the case on the evidence at

trial. Most jurors had minimal exposure to the media's coverage of the case, and none

expressed community hostility toward Robinson.

Defendant argues that 8 of the 12 members of the jury were biased. However,

defendant's count suffers the same methodological flaws identified above—it includes

jurors based solely on their death penalty views unrelated to pretrial publicity and the

selection criteria were overly broad. Excluding those jurors defendant counted based

solely on their alleged opinion regarding sentence, Robinson identified only four jurors

(Jurors 39, 87, 246, and 302) who purportedly held preconceived opinions of guilt.

However, a review of their voir dire testimony confirms their impartiality.

Juror 39 agreed there had been a lot of media coverage, mostly adverse to

Robinson. When defense counsel asked whether the coverage had caused her to form any

opinions about defendant's guilt, Juror 39 said, "Well, from what I've read, it seems that

the crimes that were committed were committed by him. Again, that's just based on what

I've read and what I've heard on the news." Even so, Juror 39 confirmed her ability to set

these facts and opinions aside and committed to holding the State to its burden of proof at

trial. When questioned on the subject again during general voir dire, Juror 39 understood

she would have to disregard all media facts and start with a clean slate at trial and

confirmed her willingness and ability to presume defendant innocent.

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Juror 87 testified that she had formed no opinion of guilt and could set aside all

media reported facts in response to questioning from both parties. In the questionnaire,

she said that the published reports did not look good for defendant but shared that people

only get half the story in the paper and those reports are unbalanced and one-sided. She

also clarified that she had not personally decided Robinson was guilty and would set

aside media information and render a verdict based on the evidence. Defendant did not

challenge Juror 87 for cause.

Juror 246, in questionnaire responses, said that she had no idea about Robinson's

guilt or innocence, that if he did commit the crimes he was very sick, and that based

solely on the media's coverage it appeared there was a probability of guilt. Even so, Juror

246 confirmed in response to questioning that she remained unsure as to defendant's guilt

or innocence. Juror 246 said her memory of media reported facts had faded over time.

Even if the evidence at trial refreshed her recollection of media facts, Juror 246 said she

would not consider them or allow them to influence her decision. She understood the

applicable burden of proof and confirmed she would acquit Robinson if the State failed to

meet its burden. Defendant did not challenge Juror 246 for cause.

Juror 302 said she was unsure as to Robinson's guilt or innocence in questionnaire

responses. She felt the media had portrayed Robinson as guilty but clarified this was not

necessarily her view. Juror 302 was confident she could set aside media-reported facts

and decide the case on the evidence. Defendant did not challenge Juror 302 for cause.

Based on his extensive jury selection procedures and the voir dire testimony of

seated jurors, Judge Anderson had a reasonable basis for concluding that the jurors

selected could be impartial. State v. Ruebke, 240 Kan. 493, 500-01, 731 P.2d 842

("Unless we are to assume that (1) the jurors selected to try the defendant violated their

oath when they swore that they could give the defendant a fair trial or (2) an individual

69

can commit a crime so heinous that news coverage generated by that act will not allow

the perpetrator to be brought to trial, the defendant has not established substantial

prejudice."), cert. denied 483 U.S. 1024 (1987); see Gardner v. Galetka, 568 F.3d 862,

890 (10th Cir. 2009) (holding that there was no actual prejudice even though 55 percent

of prospective jurors had formed an opinion about guilt, and 4 of 12 impaneled jurors

indicated that they thought defendant was guilty, where all indicated they could decide

the case on the evidence alone); Hale v. Gibson, 227 F.3d 1298, 1320 (10th Cir. 2000)

(defendant must show more than that the juror had a preconceived notion of guilt; he

must show that the juror had such a fixed opinion that he or she could not judge

impartially).

Robinson suggests the jurors' declarations of impartiality were unreliable in light

of the extensive and unfavorable media attention. However, we have emphasized that

"[n]egative media coverage by itself is insufficient to establish actual prejudice." Carr,

300 Kan. 1, Syl. ¶ 6. Only in rare and extreme cases will the court disregard juror

declarations of impartiality in favor of a finding of actual prejudice.

For example, in Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 6 L. Ed. 2d

751 (1961), the media unleashed a barrage of newspaper headlines, articles, cartoons, and

pictures against defendant leading up to trial. These stories examined defendant's prior

convictions, announced his identification in a police lineup, reported that he had been

placed at the scene of the crime, and explained that "the six murders were solved but

petitioner refused to confess." 366 U.S. at 725. On the day before trial, the media

reported that Irvin had admitted to the murder of the victim in the case, as well as other

murders. The press also reported that defendant offered to plead guilty to avoid the death

penalty. The trial court excused 268 of the 430 veniremembers (62 percent) based on

their bias, and 8 of 12 jurors entered the box with preconceived opinions of guilt. Given

70

these circumstances, the Supreme Court found it improper to rely on juror representations

of impartiality. 366 U.S. at 727-28.

Since Irvin, the Supreme Court has twice considered and rejected claims that juror

declarations of impartiality should be set aside. See Patton v. Yount, 467 U.S. 1025,

1029-30, 1033-34, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984) (although 77 percent of

veniremembers admitted they carried opinions of guilt and 8 of the 14 jurors and

alternates admitted the same, declarations of impartiality were reliable because passage of

time had minimized jurors' conviction in opinions); Murphy v. Florida, 421 U.S. 794,

800-01, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975) (refusing to set aside the jurors'

declarations of impartiality where the voir dire testimony did not reflect the wave of

community hostility present in Irvin).

In Carr, we considered but declined the invitation to second-guess jurors'

assurances of impartiality under facts comparable to Robinson's:

"The jury pool here was far less polluted by preconceptions on guilt; in Irvin, 90 percent

of potential jurors believed the defendant was guilty. Here, [the trial judge] was not

forced to excuse 60 percent of the jury pool at the outset. The number of jurors ultimately

seated who had to set aside their earlier opinions was half of that who would have had to

do so in Irvin; and none of them expressed community outrage. We also are reassured

here by the protective measures taken by [the trial judge], including use of jury

questionnaires and individual voir dire." 300 Kan. at 78-79.

As in Carr, Irvin is distinguishable on the facts. In Irvin, the trial court dismissed

62 percent of the entire venire based on firmly held opinions of guilt. Here, the figure was

37 percent. Only a small percentage of the 83 panelists passed to general voir dire had

been challenged based on preconceived opinions of guilt. Nearly all, 11 of 12 jurors,

entered the box having formed no such opinion of defendant, a vast improvement over

71

Irvin, where 8 of 12 jurors held preconceived opinions of guilt, and even better than in

Carr, where 4 of 12 held preconceived opinions. With few exceptions, jurors did not

actively follow the media coverage, and media facts did not contain the "smoking-gun"

reports of particular concern in Irvin, such as confessions, results of lie-detector tests, and

offers to plead guilty to avoid the death penalty. Judge Anderson seated jurors who had

formed no opinions, "who had forgotten or would need to be persuaded again." Patton,

467 U.S. at 1034.

In sum, Judge Anderson exercised great care in designing an enhanced jury

selection process. As defendant's expert, Dillehay, predicted, the process proved to be a

highly effective tool for combating the impact of potentially prejudicial pretrial

publicity—one that yielded a qualified and impartial jury. As such, Judge Anderson had

reasonable grounds to accept jurors' declarations of impartiality in this case, and

Robinson has failed to demonstrate actual prejudice. See Gardner, 568 F.3d at 887-90

(finding no Sixth Amendment prejudice where four jurors had formed opinions of guilt,

protective measures trial court implemented during jury selection added credibility to the

juror's declarations of impartiality); Hale, 227 F.3d at 1332-33 (refusing to set aside

declarations of impartiality where half of jurors entered box with opinions of guilt, but

voir dire did not uncover "an atmosphere of hostility toward the defendant, nor did the

trial court have a difficult time in seating the jury").

4. Did media interference demonstrate actual prejudice?

Robinson argues the media's interference with courtroom proceedings necessitated

a finding of actual prejudice.

First, he suggests media saturation hit the courthouse steps when a local radio

station conducted a publicity stunt by handing out "Roll out the Barrels of Evidence" T-

72

shirts outside the courthouse during trial—the incident giving rise to the third renewed

venue change motion. However, Robinson does not dispute Judge Anderson's factual

finding that the jury was not exposed to this incident, and that, therefore, it could not

have affected the jurors' impartiality. We defer to the district judge's findings and concur

with his legal conclusion. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011)

(applying deference to trial court factual findings in motion to withdraw plea).

Second, Robinson suggests the media coverage reached the court's chambers on

October 7, 2002, when jurors had the opportunity to view the front page of that morning's

copy of the Olathe Daily News—the incident giving rise to the second renewed venue

change motion. Defendant failed to establish that any juror actually saw the article, and

even if a juror or jurors had, we have no basis in the record to disagree with Judge

Anderson's finding that the content was not prejudicial. See State v. Bible, 175 Ariz. 549,

566-67, 858 P.2d 1152 (1993) (finding no error in denying motion to change venue where

appellant failed to demonstrate publicity resulted in actual prejudice).

Finally, Robinson suggests media coverage spilled into the courtroom itself when

jurors were exposed to prejudicial comments during voir dire. Robinson explains that

during questioning of one small group panel, a veniremember said she sensed that she

was "in the presence of evil" around Robinson. Defendant acknowledges this prospective

juror was excused but argues Juror 298, who served on the jury, was subjected to the

comment. Of course, the statement in question was made by a prospective juror, not

publicized by the media, and Juror 298's voir dire responses confirmed she had formed no

opinion of guilt and was committed to deciding the case based on the evidence. Not

surprisingly, defendant did not challenge Juror 298 as biased by pretrial publicity.

Similarly, defendant argues that Juror 184, who served on the jury, heard a fellow

panelist describe Robinson as a "predator." Again, this comment was made by a fellow

73

veniremember, not publicized by the media. Juror 184 entered the box without any

preconceived opinion of Robinson's guilt, and defendant did not challenge this juror for

cause on grounds related to bias or exposure to pretrial publicity.

Robinson offers no further examples of media interference during court

proceedings, and none are apparent from the record. Robinson fails to demonstrate actual

prejudice.

5. Did jurors ignore admonitions, demonstrating actual prejudice?

Finally, Robinson suggests veniremembers' refusal to abide by the district judge's

admonitions to avoid media coverage necessitated a finding of actual prejudice.

Defendant believes prospective jurors did not follow this admonishment because several

panelists knew they would not be sequestered, a fact allegedly reported in the media,

before the district judge made the announcement.

The record does not support defendant's deduction-based argument. Judge

Anderson expressly found that court administrators informed several veniremembers of

the fact they would not be sequestered before the district judge made the announcement.

Robinson does not dispute this finding. Moreover, defendant fails to establish that any

member of his jury actually failed to comply with the district judge's admonitions. While

it is concerning that some prospective jurors may have learned the trial court's position on

sequestration from media sources, this does not establish actual prejudice, given the

extensive protective measures Judge Anderson implemented throughout jury selection

and the character and composition of jurors ultimately seated.

74

Statutory Venue Challenge

Independently, Robinson argues Judge Anderson abused his discretion in denying

his motions under Kansas' venue change statute.

K.S.A. 22-2616(1) compels a venue change where the district judge "is satisfied

that there exists in the county where the prosecution is pending so great a prejudice

against the defendant that he cannot obtain a fair and impartial trial in that county." The

burden falls on defendant to show prejudice in the community, not as a matter of

speculation but as a demonstrable reality. State v. McBroom, 299 Kan. 731, 746, 325 P.3d

1174 (2014).

A court considers nine factors in deciding whether community prejudice has

reached levels warranting a change of venue under K.S.A. 22-2616(1):

"[1] the particular degree to which the publicity circulated throughout the community; [2]

the degree to which the publicity or that of a like nature circulated to other areas to which

venue could be changed; [3] the length of time which elapsed from the dissemination of

the publicity to the date of trial; [4] the care exercised and the ease encountered in the

selection of the jury; [5] the familiarity with the publicity complained of and its resultant

effects, if any, upon the prospective jurors or the trial jurors; [6] the challenges exercised

by the defendant in the selection of the jury, both peremptory and for cause; [7] the

connection of government officials with the release of the publicity; [8] the severity of

the offense charged; and [9] the particular size of the area from which the venire is

drawn." State v. Higgenbotham, 271 Kan. 582, 592, 23 P.3d 874 (2001).

On the record before the court, the first, second, fifth, and eighth factors favored

transfer of venue out of Johnson County at the time Judge Anderson ruled on the

motions. The first factor weighed in favor of venue change because Dahl's surveys

evidenced widespread circulation of the pretrial publicity throughout the community. The

75

second factor weighed slightly in favor of changing venue as the surveys demonstrated

that case recognition was not as extensive in Harvey and Ellis Counties. Even so,

recognition of the case outside the venue of origin was extremely high, with 80 percent of

Harvey County residents and 64 percent of Ellis County residents expressing recognition

of the case. Thus, the weight of this factor in the overall analysis is diminished. As to the

fifth factor, Dahl's venue study suggests media coverage had an effect on prospective

jurors because 67 percent of respondents believed defendant was "probably" or

"definitely" guilty. Regarding the eighth factor, Robinson was charged with two counts of

capital murder and one count of first-degree murder. "[T]he most serious charged

offenses could not have been more severe or their potential consequences more

irreversible." Carr, 300 Kan. at 82.

Five factors, including the third, fourth, sixth, seventh, and ninth, favored denial of

each of defendant's motions for venue change. The third factor weighed against a change

of venue as more than 2 years had lapsed between the time the story first broke in June

2000, when media coverage was at its height, and Robinson's trial in October 2002, when

coverage had dissipated. The fourth factor weighed heavily against a change of venue

because Judge Anderson took great care in designing and implementing his four-phase

jury selection process. The sixth factor, challenges exercised, weighed in favor of

denying a venue change. Judge Anderson granted 92 of defendant's 100 challenges

asserted on pretrial publicity grounds. Of those jurors unsuccessfully challenged, all but

one, Juror 39, was removed by peremptory challenge. Regarding the seventh factor, the

media coverage was not materially connected to government officials. Robinson suggests

that the prosecutor participated in press conferences, but none of the media-published

facts defendant contends to be uniquely prejudicial were connected to the prosecution.

Finally, the ninth factor weighed against a venue change because Johnson County had

one of the largest population bases in the state from which to draw the venire.

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The statutory venue challenge in Carr provides a useful comparison because there

the same expert witness produced nearly identical survey results in a capital murder trial

situated in one of the largest metropolitan areas in the state. In every relevant category

(case recognition, opinion of guilt, and strength of evidence), the survey responses in

Carr revealed case recognition and prejudgment at levels higher than or equal to those in

this case. 300 Kan. at 49. Even so, the majority held that Judge Paul Clark did not abuse

his discretion under K.S.A. 22-2616 in denying defendants' motions for venue change.

300 Kan. at 82. Given the similarity between the two cases, Carr offers compelling

support for Judge Anderson's rulings.

In fact, the rulings are all the more defensible here because, unlike Carr,

Robinson's venue expert, Dillehay, opined that enhanced voir dire could effectively

inoculate the effects of extensive pretrial publicity. While Dillehay believed "enhanced

voir dire" would be infeasible from an administrative perspective, Judge Anderson was

undaunted, implementing the very type of voir dire process Dillehay described. The

process was lengthy but, in hindsight, proved highly effective in identifying and

removing those rendered unqualified by their exposure to pretrial publicity.

Our other case precedents offer additional support for Judge Anderson's rulings.

See State v. Longoria, 301 Kan. 489, 510-12, 348 P.3d 1128 (2015) (reasonable person

could have agreed with denial of motion to change venue despite fact that 97 percent of

respondents recognized the case and some panelists held strong opinions of guilt);

McBroom, 299 Kan. at 750-52 (no error in denial of venue change where nearly 70

percent of respondents believed defendant "probably" or "definitely" guilty); State v.

Verge, 272 Kan. 501, 505-08, 34 P.3d 449 (2001) (no error in denying venue change

where 96.7 percent of Dickinson County residents recalled the case; 71.7 percent had

talked about the case; and 64 percent believed Verge was "definitely" or "probably"

guilty); Higgenbotham, 271 Kan. at 593-95 (no error in denial of venue change where

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95.7 percent of Harvey County respondents recalled the case, 60.6 percent believed

defendant was guilty, and 53 percent believed there was evidence of guilt); State v.

Jackson, 262 Kan. 119, 129-32, 936 P.2d 761 (1997) (finding no error in denial of venue

change where 89.7 percent of respondents recalled the case and 60 percent had formed

opinion of guilt); State v. Anthony, 257 Kan. 1003, 1007, 1014-15, 898 P.2d 1109 (1995)

(affirming denial of motion to change venue where 97 percent of Salina residents had

heard of case, 63.8 percent felt evidence of guilt was strong or overwhelming, and more

than half unsure of impartiality); State v. Swafford, 257 Kan. 1023, 1035-36, 897 P.2d

1027 (1995) (companion case to Anthony).

Given the mix of evidence on the nine factors relevant to K.S.A. 22-2616(1) and

recognizing that some factors weighed in favor of venue change, while others weighed

against such relief, we conclude that reasonable judges could have agreed with Judge

Anderson's decision to deny the requested motions to change venue under the statute. See

Longoria, 301 Kan. at 512; Carr, 300 Kan. at 84. Thus, we find no abuse of discretion.

Presumed Prejudice

On appeal, defendant advanced only two theories supporting his venue challenge:

actual prejudice under the Sixth Amendment and abuse of discretion under Kansas' venue

change statute. However Robinson's first motion to change venue on Sixth Amendment

grounds was pursued prior to voir dire—a point at which a claim of actual prejudice

under the Sixth Amendment was premature. Defendant's supporting memorandum relied,

in part, on a presumed prejudice theory. Furthermore, in a Rule 6.09 (2014 Kan. Ct. R.

Annot. 52) letter to this court, defendant cites the United States Supreme Court's most

recent opinion addressing presumed prejudice, Skilling v. United States, 561 U.S. 358,

381-85, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010).

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"[Because this is a death penalty case, this court is empowered to notice and

discuss unassigned potential errors under K.S.A. 201[4] Supp. 21-6619(b)." Carr, 300

Kan. at 16. Independently, the Kansas statute compels the court, with regard to sentence,

to determine "[w]hether the sentence of death was imposed under the influence of

passion, prejudice or any other arbitrary factor." K.S.A. 2014 Supp. 21-6619(c)(1). In the

interests of justice, we consider presumed prejudice as a potential unassigned error on

appeal.

Presumed prejudice occurs "'where the pretrial publicity is so pervasive and

prejudicial that we cannot expect to find an unbiased jury pool in the community. We

"presume prejudice" before trial in those cases, and a venue change is necessary.'" Carr,

300 Kan. at 57.

In deciding whether to presume prejudice, courts consider seven factors

enunciated in Skilling, 561 U.S. at 381-85:

"(1) media interference with courtroom proceedings; (2) the magnitude and tone of the

coverage; (3) the size and characteristics of the community in which the crime occurred;

(4) the amount of time that elapsed between the crime and the trial; (5) the jury's verdict;

(6) the impact of the crime on the community; and (7) the effect, if any, of a

codefendant's publicized decision to plead guilty." Carr, 300 Kan. at 62

In reviewing presumed prejudice claims, "we apply a mixed standard of review,

examining the trial court's findings of fact for substantial competent evidence and the

ultimate legal conclusion drawn from the facts—whether to presume prejudice—de

novo." Longoria, 301 Kan. at 506.

Turning to the first Skilling factor, defendant argued in his second and third

renewed motions to change venue that a media circus spilled into the courtroom.

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However, as set forth in defendant's actual prejudice challenge, defendant failed to

demonstrate any prejudice from the T-shirt and Olathe Daily News incidents giving rise

to these motions.

As to the second Skilling factor, Robinson argues the media reported prejudicial

facts that were inadmissible at trial, such as Robinson's white-collar criminal history; his

connection to other missing persons; his involvement with other women; and his

prosecution for fraud and murder in Missouri. However, the presumed prejudice doctrine

"cannot be made to stand for the proposition that juror exposure to information about a

state defendant's prior convictions or to news accounts of the crime with which he is

charged alone presumptively deprives the defendant of due process." Murphy, 421 U.S. at

799. The pretrial publicity included in the record was predominantly fact-based reporting.

See Longoria, 301 Kan. at 507 (factor weighs against venue change where reporting is

more fact based than inflammatory). There were no "smoking-gun" reports, such as

confessions of defendant, results of lie detector testing, or defendant's offer to plead

guilty to avoid the death penalty. See Skilling, 561 U.S. at 382-83 (the lack of "evidence

of the smoking-gun variety" weighed against a finding of presumed prejudice).

Moreover, Dahl's venue study suggested that some of these media facts were not widely

recognized by the community or the level of recognition was similar to that in other

venues.

The third Skilling factor—the size and characteristics of the community—weighed

against a finding of presumed prejudice because Johnson County is one of the largest

counties in the state, with close to half a million residents.

Regarding the fourth Skilling factor, more than 2 years had elapsed from the time

the story first broke and the start of trial. Even so, survey results more than 1 year after

Robinson's arrest showed a high degree of case recognition. This factor is inconclusive or

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weighed slightly against a finding of presumed prejudice. See Longoria, 301 Kan. at 507-

08 (factor weighed against venue change where case recognition high but memory of

details had faded); Carr, 300 Kan. at 68 (factor inconclusive where substantial time

elapsed but evidence of juror recollection remained high at voir dire).

The fifth Skilling factor, the jury's verdict, was unknown at the time the district

judge ruled and carries no weight in the analysis. See Longoria, 301 Kan. at 508.

On the sixth Skilling factor, none of the publicity of record clearly addresses the

impact of the crimes on the community. The record includes two articles warning of the

dangers of online dating in the aftermath of the crimes, but these reports reflect opinions

of a law enforcement officer and a journalist rather than community-wide sentiment. On

the other hand, Dahl's venue study revealed a high level of case recognition, suggesting

the crimes generated interest and were followed by members of the community. Thus this

factor may have weighed slightly in favor of a finding of presumed prejudice.

The seventh and final Skilling factor—publicized confession of a codefendant—

does not factor into the analysis because Robinson alone was charged with the offenses in

this action and the State never charged any codefendant. Cf. Carr, 300 Kan. at 69.

In the end, only the sixth Skilling factor weighed in favor of a finding of presumed

prejudice. The fifth and seventh factors were not relevant to the analysis, and the fourth

factor was inconclusive at best. The first, second, and third Skilling factors weighed

against a finding of presumed prejudice at the time Judge Anderson ruled on each

motion.

"The bar facing the defendant wishing to prove presumed prejudice from pretrial

publicity is extremely high." United States v. McVeigh, 153 F.3d 1166, 1182 (10th Cir.

1998), disapproved on other grounds by Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999).

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Relief is granted only in those rare cases "where publicity 'created either a circus

atmosphere in the court room or a lynch mob mentality such that it would be impossible

to receive a fair trial.'" Goss v. Nelson, 439 F.3d 621, 628 (10th Cir. 2006) (quoting Hale

v. Gibson, 227 F.3d 1298, 1332 [10th Cir. 2000]). Based on our de novo review, and

considering the Skilling factors in light of the evidence, the record does not establish that

"an irrepressibly hostile attitude pervaded the community." Stafford v. Saffle, 34 F.3d

1557, 1567 (10th Cir. 1994). Thus Judge Anderson did not err in failing to presume

prejudice under the Sixth Amendment. See Longoria, 301 Kan. at 508; Carr, 300 Kan. at

65-70.

2. CONTINUANCE

Defendant next challenges the trial court's denials of his continuance motions. He

believes Judge Anderson denied them to penalize him for exercising his right to counsel

of choice. Independently, Robinson argues the rulings constitute an abuse of discretion.

Additional Factual and Procedural Background

On June 14, 2000, Judge Anderson appointed Kansas' Death Penalty Defense Unit

(DPDU) to represent Robinson. The State filed its notice to pursue a death penalty phase

sentencing proceeding, along with its alleged aggravating circumstance on March 2,

2001. The DPDU actively litigated the case for 13 months, investigating the charges,

filing 39 substantive motions, and defending Robinson at preliminary hearing.

1. Substitution of Counsel

On July 18, 2001, attorney Bob L. Thomas entered his appearance as attorney of

record for Robinson. Later that day, the DPDU filed a motion to withdraw. At the July

23, 2001 hearing, Judge Anderson made inquiry regarding Thomas' qualifications.

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Thomas had practiced as a licensed attorney for about 1 year before entering his

appearance in this case. In the year, he had served as lead counsel on two noncapital jury

trials. Thomas had hired a private investigator and planned to add several legal assistants

but confirmed he would be the only attorney on the defense team.

Judge Anderson observed that Thomas did not meet Kansas Board of Indigents'

Defense Services' qualification standards for appointment to a capital case and that

Robinson's Sixth Amendment right to representation by counsel of choice had to be

tempered by his right to competent and effective counsel. To balance these competing

interests, the district judge explored the possibility of having the DPDU remain in the

case as cocounsel. Thomas and defendant were willing to consent to such an

arrangement, with the understanding that Thomas would serve as lead counsel. The

DPDU declined, arguing that the arrangement was unworkable and that Robinson was no

longer eligible for DPDU assistance.

At a continued hearing on July 27, 2001, Judge Anderson granted the DPDU's

motion to withdraw and announced his intention to appoint capital defense qualified

cocounsel to assist Thomas. Neither Robinson nor Thomas objected.

On August 2, the trial court entered orders appointing Patrick Berrigan and Sean

O'Brien, both of whom had extensive capital defense litigation experience, as cocounsel

in this case for the purpose of representing Robinson "[d]uring the prosecution and trial

of said felony defendant, including sentencing." No party objected to these orders. Judge

Anderson set the matter over for 1 month to give the newly formed defense team time to

review motions and to give Berrigan time to recover from heart bypass surgery. O'Brien's

associate attorney, Joseph Luby, and Berrigan's associate attorney, Jason Billam, also

served as members of Robinson's defense team.

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2. First Motion for Continuance

On September 20, 2001, Robinson filed his first motion to continue trial, citing

extensive discovery, cocounsel's commitment in other cases, and the need to develop a

mitigation case—including gathering mitigation evidence; investigating the State's

aggravating circumstance; considering the possibility of psychological and neurological

evaluations; interviewing defendant's family for testimony in the sentencing phase; and

conducting a thorough background investigation of Robinson's educational, medical,

employment, and criminal histories—in support of the requested relief. Defense counsel

claimed it needed "as much as a year to adequately prepare this case for trial" and

requested the setting be moved from January 14 to September 16, 2002.

At the September 21, 2001, hearing, Judge Anderson emphasized that if he

granted the continuance, the new trial date would be a firm setting and no further

continuance would be granted absent "extraordinary" circumstances. After confirming

that defense counsel had evaluated their schedules and understood any new trial date

would be firm, Judge Anderson granted the motion and reset trial for September 16,

2002.

3. Thomas' Withdrawal and Second Motion for Continuance

On February 21, 2002, Thomas filed a motion to withdraw after receiving the

State's February 13 supplemental discovery, which included documents indicating

Marvin Ray, Thomas' former client, had offered to be a cooperating witness for the State.

Later that same day, Robinson filed his second motion for continuance, arguing

that counsel Berrigan and O'Brien (appointed counsel) and Thomas (retained counsel)

had an agreement as to the division of labor in the case, whereby retained counsel was

handling the guilt phase and appointed counsel the penalty phase. Robinson argued

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Thomas' withdrawal, combined with appointed counsels' obligations in other cases, made

it impossible to prepare Robinson's defense before the September 16, 2002, trial setting.

Appointed counsel requested a 4-month continuance.

After confirming with Robinson that he was discharging Thomas as counsel of

record, Judge Anderson granted Thomas' motion to withdraw and denied the continuance

motion during a February 28 hearing.

4. Robinson's Third Request for Continuance

On July 18, 2002, Robinson filed a third motion for continuance, alleging that

discovery complications made it impossible to prepare Robinson's guilt phase defense

before the September trial setting. On July 25, the trial court held an evidentiary hearing.

a. Discovery Delays

Phil Gibson, an investigator for the defense team, testified that it would take

substantial time to complete witness interviews because of the State's massive endorsed

witness list, which included roughly 600 witnesses, 79 of whom had been endorsed after

the February 2001 preliminary hearing. However, the State had later provided a "will

call" list that narrowed down those most likely to testify to around 200.

Dean Stettler, Robinson's DNA expert, testified to delays related to the State's

DNA disclosures. Stettler was engaged to evaluate law enforcement's DNA testing

procedures and advise the defense on the need for independent testing. On March 22,

2002, he rece

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