Francisus Arnaz Robinson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-01178-COA
FRANCISUS ARNAZ ROBINSON
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
04/11/2007
HON. JERRY O. TERRY, SR.
HARRISON COUNTY CIRCUIT COURT
MELVIN G. COOPER
OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
CONO A. CARANNA II
CRIMINAL - FELONY
CONVICTED OF COUNT I, FORCIBLE
SEXUAL INTERCOURSE, AND
SENTENCED TO TWENTY-FIVE YEARS;
COUNT II, SEXUAL BATTERY, AND
SENTENCED TO TWENTY-FIVE YEARS
TO RUN CONSECUTIVELY TO THE
SENTENCE IN COUNT I; AND COUNT III,
BURGLARY OF A DWELLING, AND
SENTENCED TO FIFTEEN YEARS TO RUN
CONSECUTIVELY TO THE SENTENCE IN
COUNT II, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 10/14/2008
BEFORE LEE, P.J., ROBERTS AND CARLTON, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
A jury sitting before the Harrison County Circuit Court found Francisus Arnaz
Robinson guilty of forcible sexual intercourse, sexual battery, and burglary of a dwelling.
In effect, the circuit court sentenced Robinson to a total of sixty-five years in the custody of
the Mississippi Department of Corrections. Aggrieved, Robinson appeals and claims the
circuit court erred when it (1) denied his motion to suppress a DNA test, (2) denied his
motion for a mistrial based on a statement made by a witness for the prosecution, and (3)
denied his motion for a judgment notwithstanding the verdict. Additionally, Robinson claims
the cumulative effect of the errors mandates reversal. Finding no error, we affirm the
judgment of the circuit court.
FACTS AND PROCEDURAL HISTORY
¶2.
In the early morning hours of October 30, 2004, sixty-three-year-old R.B. heard a
strange noise coming from her window unit air conditioner. Before R.B. could call 911, a
man entered her house through the window. R.B. tried to defend herself with a knife, but the
intruder disarmed her, threw her to the ground, and tore off her clothes. R.B.’s attacker raped
her and forced her to perform oral sex. Before he left, the assailant tore R.B.’s phone to
pieces and exited through her window. R.B. used a tissue to collect some of the attacker’s
semen. She then went to a neighbor’s house and called the Gulfport Police Department.
¶3.
On December 23, 2004, Sergeant Christopher Parrish of the Gulfport Police
Department was dispatched to the scene of a subsequent but separate burglary complaint.
As Sergeant Parrish made his way to the scene, he saw a dark blue sedan parked on the side
of the road near the location of the burglary. The driver of that car suddenly turned on the
car’s headlights and left the area at a high rate of speed. Sergeant Parrish followed the car.
¶4.
After the car stopped in the parking lot adjacent to an apartment complex, Sergeant
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Parrish approached the car and found Robinson inside. Robinson appeared to be asleep.
Sergeant Parrish called for backup, and Officer Tommy Payne responded. Sergeant Parrish
and Officer Payne asked Robinson to get out of his car. Robinson consented to a search of
his car, but Robinson was not arrested at that time.
¶5.
Approximately one month later, Sergeant George Chaix conducted a follow-up
interview with R.B. R.B. told Sergeant Chaix that one night during the summer before she
was burglarized and raped, a “dark[-]colored full[-]size car” drove by her house between
fifteen and twenty times. Sergeant Chaix remembered that Robinson was in a dark blue
sedan the night Sergeant Parrish encountered him near a separate burglary scene
approximately two miles from R.B.’s house.
¶6.
The next morning Sergeant Chaix and Detective Heather Dailey went to Robinson’s
house. Due to a recent surge of burglaries and attempted and successful sexual assault
crimes in a relatively small area, Sergeant Chaix sought to confirm or exclude Robinson as
a suspect.
Sergeant Chaix and Detective Dailey asked Robinson whether he would
accompany them to Memorial Hospital at Gulfport (MHG) to give a blood sample. Robinson
agreed. Detective Dailey drove her car to MHG. Robinson rode in the front passenger seat,
and Sergeant Chaix rode in the backseat.
¶7.
Once they arrived at MHG, Sergeant Chaix asked Robinson to execute a voluntary
consent form to indicate his consent to have his blood drawn. Sergeant Chaix did not have
a common “voluntary consent for body search” form. Instead, Officer Chaix used a modified
“consent to search” form, which he read to Robinson verbatim. That form read as follows:
I, Francisus Robinson, having been informed of my constitutional right to not
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have a search made of the premises hereinafter mentioned without a search
warrant, and of my right to refuse to consent to such a search, hereby
authorized Det. Sgt. Chaix and Det. Heather Dailey, Police Officers of the
Gulfport Police Department, City of Gulfport, County of Harrison, State of
Mississippi, to conduct a complete search of my body located at for blood
sample.1
Robinson signed the consent form and agreed to have his blood drawn. A subsequent DNA
test indicated that Robinson’s DNA matched the DNA of the man who attacked and raped
R.B.
¶8.
A Harrison County grand jury returned an eleven-count indictment against Robinson
for alleged crimes against five victims; one of whom was R.B. To be precise, Robinson was
charged with three counts of sexual battery, six counts of burglary of a dwelling, forcible
sexual intercourse, and attempted forcible sexual intercourse.2
¶9.
Pretrial, Robinson filed a motion to suppress the evidence that stemmed from the
voluntary consent form he executed prior to having his blood drawn. Robinson’s strategy
was clear. A successful motion to suppress that evidence would have precluded admission
of the DNA test that found his DNA was the same as that of R.B.’s attacker. The circuit
court denied Robinson’s motion to suppress the DNA evidence. However, Robinson had
also successfully moved to have a psychological evaluation, and the hearing on his motion
1
Italicized portions of the consent form indicate that they were handwritten.
Additionally, because Sergeant Chaix did not have the common “voluntary consent for a
body search” form, the word “premises” was struck through and the word “body” was
handwritten above the word premises. During the suppression hearing, Sergeant Chaix and
Detective Dailey testified that Sergeant Chaix made that change before he read the form to
Robinson and before Robinson signed the form.
2
Robinson successfully moved to sever those counts based on the identity of the
victims.
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to suppress took place prior to the evaluation BY Marc L. Zimmermann, Ph.D.
¶10.
Dr. Zimmermann evaluated Robinson the day after the circuit court denied Robinson’s
motion to suppress. Based on Dr. Zimmermann’s conclusion that Robinson was mildly
retarded, Robinson filed a motion to reconsider his motion to suppress. Robinson intended
to argue that the DNA test should be suppressed because he was not capable of knowingly
and voluntarily consenting to have his blood drawn.
¶11.
In response, the prosecution filed its own successful motion for a psychological
evaluation, and William Gasparrini, Ph.D., evaluated Robinson.
Dr. Gasparrini also
concluded that Robinson was mildly retarded. However, expert testimony presented during
the hearing on Robinson’s motion for reconsideration indicated that Robinson was capable
of understanding that he did not have to consent to have his blood drawn. The circuit court
ultimately denied Robinson’s motion for reconsideration, and Robinson went to trial for
forcible sexual intercourse, sexual battery, and burglary of a dwelling.
¶12.
As previously mentioned, the jury found Robinson guilty of all three counts, and the
circuit court sentenced Robinson to twenty-five years for forcible sexual intercourse, twentyfive years for sexual battery, and fifteen years for burglary. Additionally, the circuit court
set each sentence to run consecutively. That is, the circuit court sentenced Robinson to a
total sentence of sixty-five years. Robinson filed an unsuccessful post-trial motion for a
judgment notwithstanding the verdict. Aggrieved, Robinson now appeals.
ANALYSIS
I.
WHETHER THE CIRCUIT COURT ERRED WHEN IT OVERRULED
ROBINSON’S MOTION TO SUPPRESS HIS VOLUNTARY CONSENT TO TAKE
A BLOOD SAMPLE.
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¶13.
Robinson raises two issues within this heading. First, Robinson claims the DNA
evidence should have been suppressed because no one read him the standard Miranda
warnings before his blood was drawn.3 Second, Robinson claims the circuit court erred when
it denied his motion to reconsider suppression of the DNA evidence because he was
incapable of knowingly and voluntarily consenting to give blood. As we review both of
Robinson’s claims, we are mindful of the standard of review that accompany both issues.
“In reviewing the denial of a motion to suppress, we must determine whether the trial court’s
findings, considering the totality of the circumstances, are supported by substantial credible
evidence.” Moore v. State, 933 So. 2d 910, 914 (¶9) (Miss. 2006). “Where supported by
substantial credible evidence, this Court shall not disturb those findings.” Id.
A.
¶14.
Was a Miranda warning necessary before Robinson consented?
Robinson’s blood sample was obtained without a warrant. By virtue of the United
States Constitution and the Mississippi Constitution, citizens are afforded the right to be
secure from unreasonable and warrantless searches and seizures. U.S. Const. amend. IV;
Miss. Const. art. 3, § 23. There are exceptions to this rule. A warrant is not required when
one voluntarily consents to a search. Moore, 933 So. 2d at 916 (¶18). Additionally, the
familiar Miranda warnings are not required prior to a consent search unless “consent is given
after a detention, illegal or otherwise, such as being taken to the police station.” Jones v.
3
In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held
that the Fifth and Fourteenth Amendments prohibit compelled self-incrimination, and prior
to custodial interrogation, an accused must be advised of his right to remain silent and of his
right to counsel.
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State, 607 So. 2d 23, 29 (Miss. 1991).
¶15.
Robinson argues that he was entitled to a Miranda warning because he was detained
before he executed the voluntary consent. We disagree. “[I]t would be unrealistic to
characterize every encounter between a citizen and a police officer as a seizure.” Id. at 27
(citing United States v. Mendenhall, 446 U.S. 544, 554-55 (1980)). During the first hearing
on Robinson's motion to suppress, Sergeant Chaix and Detective Dailey testified that before
they left Robinson’s house, they asked Robinson whether he would accompany them to
MHG so they could get a sample of his blood. Detective Dailey specifically stated that
Robinson verbally consented to have his blood drawn before they went to the hospital.
Detective Dailey drove her car to the hospital. It is undisputed that Robinson rode in the
front passenger seat, and Sergeant Chaix sat in the backseat. There was absolutely no
testimony or other evidence presented at the first suppression hearing that supported a finding
that Robinson was detained before he executed the consent form.4 Consequently, it was not
necessary to give Robinson the standard Miranda warnings before he executed the voluntary
consent form, and the circuit court did not commit reversible error when it declined to
suppress the evidence that resulted from the blood sample.
4
During the hearing on Robinson’s motion for reconsideration, Robinson testified
that he did not feel compelled to accompany Sergeant Chaix and Detective Dailey.
However, he also testified that he went with them because “they told me to come.”
Robinson went on to testify that no one told him where they were going before they left.
Robinson’s reconsideration motion was based solely on the theory that Robinson lacked the
mental capacity to knowingly and voluntarily execute the consent form. Accordingly, there
is nothing in the record that indicates that the circuit court reopened evidence as to whether
Robinson was detained before he consented. Therefore, whether it was necessary to give
Robinson a Miranda warning prior to executing the voluntary consent form was not at issue
during the reconsideration hearing, and we will not consider those matters in our analysis.
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B.
¶16.
Did Robinson possess the capacity to consent?
Robinson claims the circuit court erred when it found that he voluntarily consented
to have his blood drawn. According to Robinson, the circuit court erred when it declined to
find that his diminished mental capacity precluded the possibility that he knowingly and
voluntarily consented. We disagree.
¶17.
“Consent must be voluntary and absent diminished capacity in order to be valid.”
Jones, 607 So. 2d at 28. “Consent is valid only where a person knowingly and voluntarily
waives the right not to be searched.” Moore, 933 So. 2d at 916 (¶19). When a defendant
consents to a search and later claims that consent was invalid due to impaired consent or
diminished capacity, that defendant bears the burden of proving his claim. Id. at (¶20).
¶18.
Whether a person voluntarily consented to the search is “a question of fact to be
determined by the total circumstances.” Id. (citation omitted). “Those considerations
include: whether the circumstances were coercive, occurred while in the custody of law
enforcement or occurred in the course of a station house investigation.” Id. Other factors
for consideration are “the individual’s maturity, impressionability, experience and
education.” Id. Additionally, “the court should consider whether the person was excited,
under the influence of drugs or alcohol, or mentally incompetent.” Id.
¶19.
There was no evidence that Robinson was excited or that he was under the influence
of drugs or alcohol. During the initial suppression hearing, there was no evidence that
anyone coerced Robinson’s consent.
We have already determined that the evidence
presented during the first suppression hearing demonstrated that Robinson was not in custody
at the time he executed the written consent form. During the hearing on Robinson’s motion
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for reconsideration – in which the sole issue was whether Robinson had the mental capacity
to consent – Robinson testified that he wanted to leave the hospital, but he was not allowed
to do so. Sergeant Chaix and Detective Dailey disputed Robinson’s testimony. “The trial
judge has sole authority in determining witness credibility. Such a determination should not
be overturned without a substantial showing that the trial judge was manifestly wrong.”
Moore, 933 So. 2d at 918 (¶24). Because there was substantial evidence that supported the
circuit court’s decision, we cannot find that the circuit court was manifestly wrong.
¶20.
As for Robinson’s maturity, impressionability, experience, education, and mental
competency, the circuit court was required to weigh conflicting evidence. Robinson was
twenty-three years old when he was arrested, and twenty-five when Dr. Zimmermann and
Dr. Gasparrini evaluated him. Robinson was married and employed. Robinson left school
after an unsuccessful third attempt at the ninth grade. Additionally, Robinson had to repeat
the first grade. Robinson was in special education classes for four years, but his school
records indicated that he was placed in special education classes for hearing problems. Still,
Dr. Gasparrini opined that Robinson’s school records were consistent with a finding that he
suffered from mild developmental retardation.
¶21.
In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the United States Supreme Court held
that the execution of mentally retarded offenders is prohibited by the Eighth Amendment.
Atkins cited two definitions of “mental retardation.” Id. at 308 n.3. The Mississippi Supreme
Court cited those definitions in Hughes v. State, 892 So. 2d 203, 214 (¶32) (Miss. 2004). The
first definition was from the “American Association on Mental Retardation (AAMR).” Id.
According to the AAMR:
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Mental retardation refers to substantial limitations in present functioning. It is
characterized by significantly subaverage intellectual functioning, existing
concurrently with related limitations in two or more of the following
applicable adaptive skill areas: communication, self-care, community use,
self-direction, health and safety, functional academics, leisure, and work.
Id. That definition also required that mental retardation manifest before age eighteen. Id.
(citations omitted). The second definition was that of the American Psychiatric Association:
The essential feature of Mental Retardation is significantly subaverage general
intellectual functioning (Criterion A) that is accompanied by significant
limitations in adaptive functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure,
health, and safety (Criterion B). The onset must occur before age 18 years
(Criterion C). Mental Retardation has many different etiologies and may be
seen as a final common pathway of various pathological processes that affect
the functioning of the central nervous system.
Id. (citations omitted).
¶22.
In his report, Dr. Zimmermann concluded that Robinson was retarded pursuant to the
three criteria detailed by the American Psychiatric Association. Dr. Zimmermann concluded
that Robinson had an IQ of 68 with a five-point margin of error. Dr. Gasparrini reached a
similar conclusion. Both experts opined that Robinson was mildly retarded. “A per se
involuntariness finding may be appropriate in the case of moderate or severe retardation [but
it] clearly is not appropriate where, as here, the individual is mildly mentally retarded.” Neal
v. State, 451 So. 2d 743, 756 n.8 (Miss. 1984). Dr. Zimmermann testified that, in his
opinion, Robinson signed the consent form because he thought he had to sign it. However,
Dr. Zimmermann also testified that Robinson could understand something as simple as “you
don’t have to do this if you don’t want to.” Dr. Gasparrini also testified that Robinson should
have been able to understand that he had a right to refuse consent. Sergeant Chaix and
10
Detective Dailey both testified that Sergeant Chaix read the voluntary consent form to
Robinson.
Sergeant Chaix and Detective Dailey further testified that Robinson was
cooperative. If the consent occurred while the defendant was being generally cooperative,
the consent is more likely to be voluntary. Moore, 933 So. 2d at 916-17 (¶20). After careful
consideration, because there was substantial evidence that, based on the totality of the
circumstances, Robinson knowingly and voluntarily executed the voluntary consent form,
we cannot find that the circuit court was manifestly wrong when it denied Robinson’s motion
for reconsideration.
II.
WHETHER THE CIRCUIT COURT ERRED WHEN IT OVERRULED
ROBINSON’S MOTION FOR A MISTRIAL.
¶23.
During the prosecution’s case-in-chief, Sergeant Chaix testified that he told Robinson
that “he was suspected in a series of crimes - in a crime, rather. I’m sorry, a crime.”
Robinson’s attorney objected, and the circuit court sustained that objection. Robinson’s
attorney also requested a mistrial. The circuit court declined to grant a mistrial, but the
circuit court instructed the jury that it was to “disregard ‘a series.’” Robinson claims the
circuit court committed reversible error. “The decision to declare a mistrial is within the
sound discretion of the trial judge.” Brent v. State, 632 So. 2d 936, 941 (Miss. 1994). This
Court will not overturn a decision to deny a motion for mistrial unless the circuit court
abused its discretion. Bass v. State, 597 So. 2d 182, 191 (Miss. 1992). The pertinent rule
regarding a request for a mistrial is as follows:
Upon motion of any party, the court may declare a mistrial if there occurs
during the trial, either inside or outside the courtroom, misconduct by the
party, the party’s attorneys, or someone acting at the behest of the party or the
party’s attorney, resulting in substantial and irreparable prejudice to the
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movant’s case.
URCCC 3.12.
¶24.
We cannot find that the circuit court abused its discretion when it declined to find
substantial and irreparable prejudice to Robinson’s case. First, it is entirely possible that the
jury could have taken Sergeant Chaix’s statement and his subsequent correction as a simple
mistake by Sergeant Chaix. Second, Robinson was on trial incident to a multi-count
indictment. Because Robinson was on trial for three charges, the jury could have taken
Sergeant Chaix’s statement regarding a series of crimes as precisely the multiple charges for
which Robinson was on trial. Finally, the circuit court instructed the jury to disregard
Sergeant Chaix’s statement, and the jury is presumed to follow the circuit court’s
instructions. Moore v. State, 787 So. 2d 1282, 1291 (¶30) (Miss. 2001). “To presume
otherwise would be to render the jury system inoperable.” Id. Accordingly, we find no merit
to this issue.
III.
WHETHER THE CIRCUIT COURT ERRED WHEN IT OVERRULED
ROBINSON’S MOTION FOR A JUDGMENT NOTWITHSTANDING THE
VERDICT.
¶25.
In his brief, Robinson cites and quotes the correct law regarding a motion for
judgment notwithstanding the verdict. Likewise, Robinson cites the correct standard of
review. However, Robinson’s entire argument in support of this issue is “the trial court was
in error when it denied [his] motion for a [j]udgment [n]otwithstanding the [v]erdict, or in
the alternative, a [n]ew [t]rial.”
¶26.
Pursuant to the Mississippi Rules of Appellate Procedure, an appellant’s argument
“shall contain the contentions of [the] appellant with respect to the issues presented, and the
12
reasons for those contentions, with citations to the authorities, statutes, and parts of the
record relied on.” M.R.A.P. 28(a)(6) (emphasis added). Robinson completely failed to
elaborate on why he contends the evidence was insufficient to convict him. His generalized
and conclusory argument is insufficient to satisfy the requirements of Rule 28(a)(6).
Accordingly, this issue is procedurally barred.
IV.
WHETHER THE CUMULATIVE EFFECT OF THE ALLEGED ERRORS
MANDATES REVERSAL.
¶27.
We have found no individual error. It follows that there can be no cumulative effect
of errors that do not exist. Consequently, there is no merit to this issue.
¶28. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, FORCIBLE SEXUAL INTERCOURSE, AND
SENTENCE OF TWENTY-FIVE YEARS; COUNT II, SEXUAL BATTERY, AND
SENTENCE OF TWENTY-FIVE YEARS TO RUN CONSECUTIVELY TO THE
SENTENCE IN COUNT I; AND COUNT III, BURGLARY OF A DWELLING, AND
SENTENCE OF FIFTEEN YEARS TO RUN CONSECUTIVELY TO THE
SENTENCE IN COUNT II, ALL IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS,
BARNES, ISHEE AND CARLTON, JJ., CONCUR.
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