Floyd Robinson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-02202-COA
FLOYD ROBINSON
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
02/01/2007
HON. LEE J. HOWARD
OKTIBBEHA COUNTY CIRCUIT COURT
LESLIE S. LEE
JUSTIN TAYLOR COOK
GLENN S. SWARTZFAGER
LATISHA NICOLE CLINKSCALES
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF MURDER AND
SENTENCED TO LIFE IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 06/02/2009
EN BANC.
ROBERTS, J., FOR THE COURT:
¶1.
A jury sitting before the Oktibbeha County Circuit Court found Floyd Robinson guilty
of murdering his on-again, off-again girlfriend, Bridgette Moore. The circuit court sentenced
Robinson to life imprisonment in the custody of the Mississippi Department of Corrections.
Aggrieved, Robinson appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On November 30, 2005, a woman went to the Oktibbeha County Jail and asked
Deputy Sheriff Shannon Williams to go to a house and check on her friend, Bridgette.
Deputy Williams complied and went to Bridgette’s house in Starkville, Mississippi, where
he found Bridgette’s lifeless body. An autopsy later confirmed that Bridgette had died due
to a single gunshot that traveled through her spleen, her stomach, and lodged in her heart.
¶3.
Officers from the Starkville Police Department searched the crime scene and found
a brown paper bag, a black comb, and an unfired .25 caliber shell casing. Officers also found
blood on a cinder block that supported the steps to Bridgette’s house, blood on the third step
to the house, and two broken acrylic fingernails. Authorities focused their investigation on
Bridgette’s boyfriend, Robinson.
¶4.
Robinson was arrested at his home. During a subsequent interrogation, Robinson
signed a statement indicating that he and Bridgette struggled over a pistol and that the pistol
discharged during the struggle. That is, Robinson claimed that Bridgette’s death was an
accident that happened during an altercation. Dr. Steven Hayne testified that the fatal
gunshot entered Bridgette’s body through her left side, traveled from left to right and upward
at a thirty to thirty-five degree angle. The bullet went between two of Bridgette’s ribs,
through Bridgette’s spleen, stomach, liver, heart, and lung. The bullet came to rest in
Bridgette’s right chest cavity.
According to Dr. Hayne, the bullet was fired from
approximately twelve to eighteen inches from Bridgette’s body. Robinson testified that after
Bridgette was shot, she sat on the steps to her front door, and they had a conversation.
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However, Dr. Hayne testified that Bridgette would have lost consciousness in three to fifteen
seconds after she was shot. Additional facts and procedural history will be discussed in
greater detail as necessary. Suffice it to say, Robinson was indicted, tried, and convicted of
murder. After an unsuccessful post-trial motion for a judgment notwithstanding the verdict,
Robinson appeals.
ANALYSIS
I.
¶5.
ROBINSON'S FIFTH AMENDMENT RIGHTS
Robinson was interrogated after he was arrested. That interrogation was preserved
in the form of a DVD. At trial, the circuit court allowed the prosecution to play the DVD
recording of that interrogation before the jury. Robinson takes the position that the circuit
court erred because he invoked his right to have an attorney present, but the interrogating
officers ignored his request. Because Robinson did not raise this issue at trial, he is forced
to argue that the circuit court’s decision constituted plain error.
¶6.
“As a general rule, constitutional questions not asserted at the trial level are deemed
waived.” Williams v. State, 971 So. 2d 581, 590 (¶29) (Miss. 2007) (holding that an
appellant’s claim that he was questioned before he was informed of his Miranda rights was
procedurally barred when raised for the first time on appeal). Accordingly, this issue is
procedurally barred.
II.
¶7.
PRIOR-BAD-ACTS EVIDENCE
In his second issue, Robinson again takes exception to the prosecution’s use of the
DVD recording of his confession. Unlike his first issue, Robinson is not required to travel
under a plain-error theory. When the prosecution attempted to introduce the DVD recording
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of Robinson’s interrogation into evidence, Robinson’s attorney objected and argued that it
was inadmissible because during the interrogation, a law enforcement officer confronted
Robinson with a report, dated sometime after an alleged incident on May 24, 2003, from a
law enforcement officer identified only as “Officer Williams.” Officer Williams’s report
indicated that Marilyn McKinney gave a statement and reported that Robinson threatened to
kill her and that he put a gun to her head, pushed her, kicked her, and pulled out her hair.
Robinson’s attorney reasoned that the jury should not be permitted to hear that portion of the
interrogation because it tended to persuade the jury that, having been violent two years
earlier with one romantic interest, Marilyn, Robinson was more likely to have behaved
similarly with Bridgette, another romantic interest and the victim in this case.
¶8.
The prosecution argued that the DVD recording was admissible because it contained
evidence that Robinson and Bridgette had an increasingly violent relationship that culminated
in her death. The circuit court overruled Robinson’s objection. According to the circuit
court, “[t]he completeness of the issue that I have, that’s what they’re doing is interrogating
concerning a homicide. That is different than eliciting evidence of a prior crime or criminal
act. The objection and motion to suppress on that basis is overruled.” Robinson appeals and
claims the circuit court committed reversible error.
¶9.
As we review this issue, we are mindful that the circuit court judge “enjoys a
considerable amount of discretion as to the relevancy and admissibility of evidence.”
Shearer v. State, 423 So. 2d 824, 826 (Miss. 1982). We will not reverse the circuit court
judge unless he abused his discretion and caused Robinson to experience prejudice. Id.
¶10.
Pursuant to Mississippi Rule of Evidence 404(b):
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Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
The Mississippi Supreme Court has held that Rule 404(b) “exists to prevent the State from
suggesting that, since a defendant has committed other crimes previously, the probability is
greater that he is also guilty of the offense for which he is presently charged.” Jasper v.
State, 759 So. 2d 1136, 1141 (¶23) (Miss. 1999). “[E]ven when other-crimes evidence is
admissible under M.R.E. 404(b), it must pass through the ‘ultimate filter’ of M.R.E. 403.”
Id. at (¶24). Additionally, “when other-crimes evidence is admitted under M.R.E. 404(b) a
limiting instruction is required[.]” Id.
¶11.
In the event that “404(b) evidence is offered and there was an objection which is
overruled, the objection shall be deemed an invocation of the right to [an] M.R.E. 403
balancing analysis and a limiting instruction.” Id. “The court shall conduct [a Rule 403
balancing test] and, if the evidence passes that hurdle, give a limiting instruction unless the
party objecting to the evidence objects to giving the limiting instruction.” Id.
¶12.
On the DVD admitted into evidence and played for multiple hours before the jury, the
interrogating officer read Officer Williams’s report to Robinson and that report stated as
follows:
On the above date at approximately 20:52 hours, I, Officer Williams, took a
report from Ms. McKinney concerning her boyfriend. It says . . . Floyd
Robinson . . . constantly keeps threatening her about killing her. He’s always
talking to her [about] . . . taking her to the middle of nowhere, putting a gun
to her head and throat and telling her what he would do to her. On [May 24,
2003] . . . he took her to his house and started washing dishes and when she
told him she was going home, he started going ballistic and started to push,
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kick, and pull out her hair. He pulled a gun on her then[,] and once he settled
down, he just told her to leave. She left and went home and then called the
police.
After the interrogating officer read the report to Robinson, the interrogating officer
commented, “[m]y goodness. You got two women saying they felt like you were going to kill
them at one point in time – two separate times.”
¶13.
At trial, the prosecution argued that this information was admissible pursuant to this
Court’s decision in Moss v. State, 727 So. 2d 720 (Miss. Ct. App. 1998). The facts in Moss
are distinctly different from the facts in the present case. In Moss, the prosecution presented
evidence that the defendant abused his wife prior to killing her. Id. at 724-25 (¶17). That
evidence was admissible to demonstrate a continuing pattern of violence against the victim
that ultimately culminated in the victim’s death. Id. at 725 (¶19). See also Marbra v. State,
904 So. 2d 1169, 1176 (¶23) (Miss. Ct. App. 2004). In the case presently before us, the
challenged portion of the DVD at issue was that Robinson had previously been violent with
Marilyn, rather than Bridgette. That evidence does not tend to demonstrate a continuing or
escalating pattern of violence against Bridgette. Instead, it tends to persuade the jury that,
because Robinson was violent with Marilyn on May 24, 2003, he was more likely to have
been violent with Bridgette on November 30, 2005, and – by extension – he was more likely
to have been guilty of the allegations against him. Accordingly, we find that the circuit court
erred when it allowed the prosecution to submit that evidence to the jury. Be that as it may,
the issue now becomes whether Robinson experienced prejudice as a result. Shearer, 423
So. 2d at 826.
¶14.
Viewed in light of Robinson’s own testimony during direct examination, we must
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conclude that the error is harmless. Robinson testified that Bridgette confronted him with
a pistol, that he grabbed the pistol in self-defense, and that the pistol discharged accidentally
during their struggle. According to Robinson, Bridgette stated that she had been shot.
Robinson testified that Bridgette did not appear to be injured and that they talked for a brief
moment. Robinson said he then told Bridgette that he was going to leave because he was on
probation.
Robinson’s own attorney then asked Robinson to elaborate on his prior
convictions that led to his being on probation. Robinson responded and testified that he had
prior domestic violence convictions for abusing Bridgette and Marilyn. Because Robinson
testified as to his prior conviction for domestic violence against Marilyn, and used that prior
conviction as his justification for leaving Bridgette’s house after Bridgette was shot, we find
that Robinson did not experience any prejudice based on the revelation during the
interrogation that he had a prior conviction for domestic assault against Marilyn.
Accordingly, although we find that the circuit court erred, based on Robinson’s later
testimony, we find that the error was rendered harmless.
¶15.
The dissent argues that this logic is “syllogistically faulty circular reasoning.” With
due respect for the dissent and its opinion of our logical reasoning, we disagree. Robinson
was indicted for the premeditated murder of his girlfriend, Bridgette. Robinson’s defense
was based on the premise that the homicide was excusable due to accident and misfortune
as set forth in Mississippi Code Annotated section 97-3-17 (Rev. 2006). Stated differently,
Robinson claimed the pistol accidentally discharged during a domestic quarrel with Bridgette
and that Bridgette’s death occurred either while he was “doing a lawful act by lawful means,
with usual and ordinary caution, and without any unlawful intent” or while he was acting “in
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the heat of passion, upon any sudden and sufficient provocation.” Miss. Code Ann. § 97-317(a) and (b). To make such a claim of excusable homicide credible, Robinson had to
convince the jury that his flight from the scene, with the weapon, was logical. Reasonable
jurors could conclude that Robinson’s unexplained flight from the scene of Bridgette’s
shooting, whom he professed to love, without calling for assistance is incongruent with a
claim of accident. It is apparent Robinson interjected on his status as a prior convicted
domestic-violence offender on probation, which logically prohibited him from possessing
a weapon or being present at Bridgette’s home, as a strategic trial decision to attempt to
explain his otherwise unexplainable flight. Mississippi Rule of Evidence 103(a) instructs
that a trial court’s error in admitting otherwise inadmissible evidence or excluding otherwise
admissible evidence is not reversible error unless a substantial right of a party is affected.
Under the particular facts of this case, we fail to see how this error by the trial court was
anything but harmless.
III.
¶16.
CONFRONTATION CLAUSE
Robinson’s next assignment of error also involves the police report that was read
during Robinson’s interrogation. As previously mentioned, Marilyn gave a statement to
Officer Williams, and Officer Williams’s report was read to Robinson during Robinson’s
interrogation. Robinson claims the circuit court violated his right to confront witnesses
against him when it allowed the prosecution to play the DVD recording of the interrogation.
Robinson argues that, because he never had an opportunity to cross-examine Marilyn or
Officer Williams, when the circuit court allowed that portion of the DVD to be played before
the jury, the circuit court infringed upon his right to confront adverse witnesses. However,
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Robinson did not object to the DVD interrogation on the basis that he never had the
opportunity to cross-examine Marilyn or Officer Williams. Accordingly, this issue is
procedurally barred. Williams, 971 So. 2d at 590 (¶29).
IV.
¶17.
IMPEACHMENT WITH PRIOR CONVICTIONS
Robinson claims the prosecution improperly cross-examined him about his prior
convictions. According to Robinson, the prosecution’s questions about his prior convictions
for domestic assault were prohibited by Mississippi Rule of Evidence 609. Robinson admits
that his attorney did not object to the questions that he now takes issue with on appeal.
However, Robinson claims that the prosecution’s cross-examination amounts to plain error.
We disagree. This Court will not rule on an issue that was not first presented to the trial
court. Williams, 971 So. 2d at 590 (¶29). Due to a lack of a contemporaneous objection, this
issue is procedurally barred.
V.
¶18.
SELF-DEFENSE INSTRUCTION
Robinson’s proposed jury instruction designated as instruction D1(a) was a self-
defense instruction. The circuit court declined to grant the instruction. According to
Robinson, the circuit court committed reversible error in refusing the instruction.
¶19.
The Mississippi Supreme Court has described the appropriate standard of review as
follows:
When considering a challenge to a jury instruction on appeal, we do not review
jury instructions in isolation; rather, we read them as a whole to determine if
the jury was properly instructed. Similarly, this Court has stated that in
determining whether error lies in the granting or refusal of various instructions,
the instructions actually given must be read as a whole. When so read, if the
instructions fairly announce the law of the case and create no injustice, no
reversible error will be found. In other words, if all instructions taken as a
9
whole fairly, but not necessarily perfectly, announce the applicable rules of
law, no error results.
Smith v. State, 835 So. 2d 927, 934 (¶23) (Miss. 2002) (internal citations and quotations
omitted).
¶20.
Robinson did not present any evidence that he shot Bridgette in self-defense. The
evidence indicated that Bridgette aimed a pistol at Robinson, that Robinson grabbed the
pistol in self-defense, and that the pistol then discharged accidentally. Consequently,
Robinson was not entitled to a self-defense instruction for shooting Bridgette.
VI.
¶21.
DEFINITION OF REASONABLE DOUBT
In this issue, Robinson claims the circuit court allowed the prosecution to define
reasonable doubt during the prosecution’s closing argument. Robinson’s theory stems from
the following statement:
Let me tell you what this reasonable doubt – let my [sic] quantify that for you.
If you go to bed at night and you wake up in the morning and there’s snow all
over the ground, you can suppose a number of things. You can suppose a
bunch of Eskimos got a big tractor and they came down here in a trailer, and
they shoveled snow on your front yard or that the Army brought in a C-130
and dumped snow out as they flew over your house, but you don’t do that
because it’s not reasonable. It’s ludicrous. And so you say it snowed last
night. That’s what this reasonable doubt thing is all about, Ladies and
Gentlemen. That’s what it’s about. You weren’t there to see the snow. You
weren’t there to see this woman killed. But the question is was it shoveled out
or was it dumped out or did it actually snow that night? That’s the question.
Robinson concedes that he must travel under a plain-error theory, because his attorney did
not object to the statement at issue.
¶22.
We decline to review this issue for plain error. Our supreme court has held that “[i]f
no contemporaneous objection is made, the error, if any, is waived.” Slaughter v. State, 815
10
So. 2d 1122, 1131 (¶47) (Miss. 2002). We are under no obligation to review an assignment
of error when an objection was not made or when an objection was made untimely. Id.
VII.
¶23.
CUMULATIVE ERROR
In his final issue, Robinson claims the cumulative effect of the errors at trial requires
that this Court reverse the judgment of conviction and sentence. Although we found
harmless error in Issue II, we have found no other errors. It follows that there can be no
cumulative effect of errors that do not exist. As such, we find no merit to this issue.
¶24. THE JUDGMENT OF THE OKTIBBEHA COUNTY CIRCUIT COURT OF
CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.
LEE AND MYERS, P.JJ., GRIFFIS AND CARLTON, JJ., CONCUR. KING,
C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING,
BARNES AND ISHEE, JJ. MAXWELL, J., NOT PARTICIPATING.
KING, C.J., DISSENTING:
¶25.
The majority finds that the trial court committed error in allowing into evidence that
portion of Floyd Robinson’s recorded interrogation which discussed his involvement in
another crime substantially similar to that for which he was being tried. Having found this
to be error, the majority proceeds to minimize it by saying Robinson’s later mention of the
same matter transformed it into harmless error. Believing the majority to be in error, I
dissent.
¶26.
In order to understand why I believe the majority is wrong, it is necessary to first
know precisely what was said in the interrogation and second to place Robinson’s trial
testimony into the proper prospective.
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¶27.
During Robinson’s interrogation, the detective asked him about two prior allegations
of violence against girlfriends, one of whom was the murder victim in this case. The relevant
portion of that interrogation is transcribed as follows:
Detective 1: I want to read something, okay. This is the West Point Police
Department report that Bridgette Moore filed on April–on the 16th of April,
2004 at 00:11.
I, PFC Everette Cook, was dispatched to 1615 Mayhew Street in reference to a fight.
Upon arrival I spoke with a Ms. Bridgette Moore. She advised that her boyfriend,
Floyd Robinson, had beat her with his fist in her face and upper body. She also
advised that he choked her and she thought he was trying to kill her. She advised that
she got away by opening her truck door and running to his mother’s house. She then
called police.
Floyd was gone on my arrival. Bridgette came to the police department and
signed an affidavit on Floyd for simple domestic violence.
Detective 1: Now, I want you to let me read this other one to you, too. Let
me read this one to you, this is from of all people the other woman you have
been talking about.
On the above date at approximately 20:52 hours I, Officer Williams, took a
report from Mrs. McKinney concerning her boyfriend. It said Mrs. m-r-s
McKinney concerning her boyfriend, Floyd Robinson, who constantly keeps
threatening her about killing her. He’s always talking to her in the middle of
nowhere–taking her to the middle of, no I’m sorry he is always taking her in
the middle of nowhere putting a gun to her head and throat and telling her what
he would do to her. On the last evening 5-24-03 at approximately 16:30 to
17:00 hours, he took her to his house and started washing dishes. And when
she told him that she was going home, he went ballistic, and started to push,
kick and pull out her hair. He pulled a gun on her then, and once he settled
down he just told her to leave. She left and went home and then called the
police.
Detective 1: My goodness.
Floyd: That’s a lie, and I know that’s a lie.
Detective 1: Okay, you’ve got two women saying they felt like you were
going to kill them at one point or time. Two separate women.
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Floyd: What would I want to do that –
Detective 1: Do you not do a good job of managing them? Or what, you
don’t know how to talk to them? What happens?
Floyd: I don’t have no problem with no women.
Detective 1: Excuse me –
Floyd: A woman.
Detective 1: They have a problems with you, then right? You may not have
a problem with them.
Floyd: I talk to a lot of ladies.
Detective 1: Well, we are talking about the two, that you
Floyd: It don’t get that serious with me.
Detective 1: I’m sorry, cause, we are talking about the two that you have been
dealing with.
Floyd: Okay.
Detective 1: You been dealing with Mrs. Moore.
Floyd: Um-hum.
Detective 1: And she, you know you said that you didn’t have these incidents
in West Point. I got two different women saying you know, saying you are
doing these things to them. What do you say to them? What happened in that
in–explain to me–explain what happened. First–tell us what happened with
Mrs. McKinney? She said you were washing dishes. She said she was going
home and you go ballistic. You take her to the middle of nowhere, you pull
a gun on her, threaten her.
Detective 1: Now, here’s what I think, here’s what I think happened.
Detective 2: This sounds crazy, man.
Floyd: I’m like–a woman gonna tell you anything–they go over there and tell
you anything, they are going to say anything.
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Detective 2: This is true, this is true. Someone made mention of a gun.
Floyd: Huh?
Detective 2: Somebody made mention of a gun that they got from you last
year. Did you have a gun?
Floyd: Last year?
Detective 1: 2003.
Floyd: That was 2003.
Detective 1: Mrs. McKinney.
Detective 2: Where did you get a gun?
Floyd: I didn’t have no gun.
Detective 1: Who was she married to?
Floyd: Uh-huh, some fellow.
Detective 1: So you were seeing her when she was married ?
Floyd: Uh-huh.
Detective 1: So you weren’t truthful when I asked you?
Floyd: She was going through her divorce.
Detective 1: Okay, but she was married?
Floyd: Her and her husband had broken up about a year or so.
Detective 1:
divorced.
¶28.
M r s - they were going through a divorce, they weren’t
The foregoing information was placed before the jury as a part of the prosecution’s
case-in-chief, well prior to any testimony from Robinson. Once the prosecution introduced
this admittedly prejudicial material as part of its case-in-chief, Robinson sought to minimize
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the prejudicial effect of this improper testimony by offering an explanation. That explanation
is found in the testimony of Robinson which follows:
Q. What do you mean by you “B”?
A. My bitch. And I said, oh, Lord, here we go. I said, well, we ain’t fixing
to start all this. She said no, that’s where you were. That’s why you really
didn’t want to come over here because you just want to be with her. In my
mind I said, yeah, I did, but I said, well – we just kept on talking. I said, well,
I don’t know. You don’t hear me complaining about you with a man or
nothing. Why you keep hounding me down. I said I’m not bothering you. I
said why.
When I got up – I said, I’m fixing to get ready to out. I didn’t come over for
this here. I said I’m going to get ready to go. When I got up, she hit me in my
back. And she went and grabbed the phone. I said, oh, Lord, here we go with
the poli – with the phone again. I said go on and call the police. I said, well,
I’m gone.
I was leaving the house – I went and put my clothes on and leaving the house.
When I opened the door to leave and I said so I left my keys. Let me go back
and get my keys. I turned around to get my keys and I was getting my keys
and I looked up and she had the gun. I said what you doing? And she, well,
you going over to be with that bitch, ain’t you? I said this don’t make no
sense.
I said – and she got up close to me. That’s when I grabbed her hand, and we
started wrestling with the gun. And we fell outside the house. And we fell
outside, and that’s when the gun went off. And I said see there, this don’t
make no sense. I said – and really I thought I was shot, and she said she
thought she was shot. And I said, Bridgette, this don’t make no sense, and I
walked her back up to the steps. And she told me, said, she was kind of tired.
I said, Bridge, this don’t make no sense. I said, I’m fixing to go. I seen the
gun. I grabbed the gun. Said I’m fixing to go. I You know, the police come
around here. I’m already on probation. I said I’m fixing to go and I left. And
I said I’ll call you back.
When I got home, I tried to call her back. I called, and I didn’t get her answer.
It was busy. And after that, I said, well, I’m going to bed. She probably got
the police over there. And she mad and ain’t going to answer the phone. I
said, well, I’m going to bed and get me some sleep so I can go to work. I got
up that morning and went called again. I said the phone still busy. I said, well,
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she still mad with me.
I said, well, and I got in my car. It was about ten minutes after six that
morning. And I said, let me warm this car up ‘cause it’d been cutting off on
me. I said, well, let me call again. I said no. We ain’t going to worry about
it. I’m going to go on and go to work.
I started driving to work, and my car was cutting off on me. And I called my
boss and told him, I said, I’m probably going to be little late. I’m trying to get
my car fixed. My car keep cutting off on me. I’m out here on the bypass and
it’s cutting up. I have to sit – let it sit for awhile and then it will start back up.
And he said okay. He said, just come on in when you get a chance, and I said
all right.
I got the car – went it finally – I said, well, I’m going to try to take it over to
Mr. Logan. I’m getting a little late now. I said, I’ll get it over here. I went
over there, and he wasn’t there. And I said, well, I said, okay, I’ll just check
another time. I’ll try to do it again. I said let me try to go over to Bridgette’s
and see how she doing, see if she’s still mad at me.
I went over to her house, and I went up there and drove up to the house and
come out and walked out to the house. And the dog started to run (inaudible)
like that. I said, you know who this is. And I said, well, let me knock on the
door. I said she might not even open it.
I knocked on the door and I didn’t get no answer. I said let me see is it locked,
and I twisted the knob. It was open and then that’s when I saw her. And I
said, uh-oh. I thought, man. And just like that and I said, well, I closed the
door back. And I said, oh, Lord. And just like that. And I left. I said oh,
man, I got to go tell my father. Let him know. This ain’t – huh-uh.
And I got up to my – I sat at – I said I’m going to take my life this here. Them
folks going to think I did this here to her. I said, Lord, I feel like she dead.
Folks going to think I did it to her. And I said I’m already only probation;
ain’t got no business over there.
And I went out in the county. I was going to drink some beers and stuff to get
my nerve up, and I put the gun to my head and pulled the trigger, and it did not
shoot. And I said, well. I throwed the gun down in the water. I said, well, I’ll
go and get a gun. That’s when I went to my father’s house and got his and
tried to do the – I was going to do the same thing.
When I left my father’s house and I got ran off in the ditch, I pulled the trigger
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on it, and it didn’t shoot still. And I said what’s wrong? And I point the gun
down in the floorboard and it shot. And my father told me, son, it’s not worth
it. Ain’t no sense in you taking your life. And I thought about it and I said,
well, yeah. And I said, Lord, I don’t know. These folks going to think I done
did something. And I said, well.
I went on home. And I don’t know how I got home at that point, I really don’t,
because I had been drinking. And when I did make it home, the only thing –
it might have been about 1:30 or – about 1:30 or something, two I think. And
I went in the house and I sat there and I – next thing I know I was – it was
night, and I said, well, let me lay down and get me a little sleep. And I laid
down. I said, well, I said, I’m tired. And I laid down and got me some sleep.
And the next thing I know, I said, I heard a shot. I said, what the world is this
going on. I thought somebody shooting. And I said, I smell some gas or
something. And I said, this is down here. So I go up here and I – I was
upstairs, and I opened my window and went outside. And they said it’s the
police. And I said, the police? I said, oh, man.
And then they ran on the opposite side of the house. I said, no, I’m on this side
over here. And they came back over there and said come down. I got halfway
down out of the – in the tree, and they dragged me down to the ground. And
they said we’re arresting you for the murder of Bridgette Moore. And I said
what? And then I got in the car and I asked the officer, I said, sir, how long
y’all been out there? He said, man we been out there ever since – he said, it’s
been about five hours. I said –
Q. Let me stop you right there. I want to go back because you’ve been going
on for quite a while and I want to –
A. Sorry.
Q. No. No. No. I want to clarify some things that you mentioned in your
statement. You said that you were already on probation. Why were you on
probation?
A. It was because Bridgette and – it was for Bridgette Marilyn McKinney.
Q. When you say for Bridgette and for Marilyn, what do you mean?
A. It was like for the domestic violence situation.
Q. Had you been found guilty of domestic violence?
17
A. Well, I pled guilty to it. And only reason I pled guilty it because I had just
started working at Weyerhaeuser. And I said, well, I said, since I can’t take
off work to be coming back to court, I said, I’ll go ahead and plead guilty and
pay the fine and be through with it. That’s what I thought because I asked the
lady working at the desk at the police department in West Point. She told me,
said, that’s the best thing to –
BY MR. ALLGOOD: If your Honor please, I’m going to object to the
continual hearsay.
BY THE COURT: Sustained.
BY MS. CLINKSCALES: (Continuing)
Q. Floyd, did you ever go to trial on any of the domestic violence charges that
were filed against you?
A. No, I didn’t.
Q. Did any of the accusers ever appear with you and a judge on any of the
charges of domestic violence?
A. No, they didn’t.
¶29.
A careful reading of the record reveals that Robinson did not simply and carelessly
offer evidence of prior bad acts attributed to him. Instead, Robinson attempted to blunt the
prejudicial impact of the prosecution’s improper prior-bad-acts evidence by offering an
explanation for those events. It is Robinson’s efforts at blunting the prejudicial effect of the
improper prior-bad-acts testimony that the majority now claims turns the admission of that
improper evidence into harmless error. Such a claim can only be the result of syllogistically
faulty circular reasoning.
¶30.
The prosecution’s prior-bad-acts evidence was admitted prior to any testimony from
Robinson. The damage from this improper prior-bad-acts evidence was completed prior to
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any testimony from Robinson. The testimony by Robinson as to prior bad acts was presented
in an effort to place into perspective the improper prior-bad-acts evidence that was previously
introduced by the prosecution. Because the damage was done before Robinson’s attempt at
mitigation, I would reverse and remand for a new trial.
¶31.
In an apparent effort to camouflage its syllogistically faulty circular reasoning, the
majority seeks to place the responsibility for the admission of the improper prior-bad-acts
evidence upon Robinson by saying that: “Robinson’s defense was based on the premise that
the homicide was excusable due to accident and misfortune as set forth in Mississippi Code
Annotated section 97-3-17 (Rev. 2006).” “It is apparent Robinson interjected his status as
a prior convicted domestic violence offender on probation–logically prohibited from
possession of a weapon or from being present at Bridgette’s home–as a strategic trial
decision to attempt to explain his otherwise unexplainable flight.”
¶32.
The fallacy in the majority’s attempt at blaming Robinson is simple and straight
forward. Robinson did not present any defense until after the State had rested its case in
chief. The improper prior-bad-acts evidence was introduced by the State in its case-in-chief.
The State’s sole purpose in introducing this improper prior-bad-acts evidence was to prove
that Robinson killed Bridgette. Before Robinson uttered the first word in his defense, the
State had introduced the improper prior-bad-acts evidence, and the damage had been done.
Contrary to the opinion of the majority, once the damage has been done, it cannot be undone.
It especially cannot be undone by attempting to blame Robinson for the improper actions of
the prosecutor.
¶33.
For the foregoing reasons, I believe the appropriate action is to reverse and remand
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this matter for a new trial.
IRVING, BARNES AND ISHEE, JJ., JOIN THIS OPINION.
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