ATTORNEY FOR APPELLANT
Louis W. Denney
Muncie, Indiana
ATTORNEYS FOR APPELLEE
Karen Freeman-Wilson
Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
GLENDA GAIL ROBINETTE, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 48S00-9910-CR-614
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Dennis D. Carroll, Judge
Cause No. 48D01-9809-CF-226
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
January 11, 2001
BOEHM, Justice.
At a jury trial, Glenda Robinette was found guilty of murder,
criminal confinement, and burglary resulting in bodily injury. The trial
court entered a verdict of guilty but mentally ill and sentenced Robinette
to fifty-five, ten, and thirty years, respectively, to be served
concurrently. Because the trial court erroneously admitted videotaped
statements Robinette made after being Mirandized and asserting her right to
remain silent, we reverse and remand for a new trial.
Factual and Procedural Background
Robinette and Michael Gougeon had dated for five years when Gougeon
ended their relationship and started dating Carrie Sherman. In the wee
hours of September 6, 1998, Gougeon and Sherman were asleep at Sherman’s
house when Sherman awoke to see Robinette standing beside her bed holding a
gun. Sherman told Robinette to hand her the gun and woke up Gougeon, who
walked across the room, turned on the light, and also directed Robinette to
surrender the gun. Robinette then shot Gougeon five times. After locating
Gougeon’s car keys, Robinette escorted Sherman at gunpoint to Gougeon’s
parked car and ordered Sherman into the car. Sherman complied. Robinette
then drove about six blocks to a church parking lot where she ordered
Sherman into the trunk. After driving some distance more, Robinette
abandoned the automobile. Sherman was discovered nine to eleven hours
later by passers-by who heard her knocking and screaming from inside the
trunk.
Three days later, Robinette turned herself in to police in
Pendleton. She was then transferred to Anderson, where she was twice
interviewed by the police after being Mirandized. She refused to sign
Miranda waivers and asserted her right to remain silent nearly fifty times
during the course of these interviews, stating, “I don’t want to talk about
it.” Despite her unmistakable assertion of this right, she was
interrogated first for three hours and fifteen minutes and a second time
for forty-five minutes. The videotapes of Robinette’s interrogations were
admitted into evidence over the objections of defense counsel and are the
basis of this appeal.
I. Admission of Videotapes
At trial, the State moved for admission of a videotape of Robinette’s
first interview with Anderson police officers. Defense counsel objected on
the ground that it had not been clarified whether Robinette had formally
waived her Miranda rights. The trial court admitted the videotape. The
State later moved for admission of a videotape of Robinette’s second
interview with police. Defense counsel again objected, arguing that, in
view of Robinette’s use of profanity during questioning, the prejudice of
having the videotape admitted outweighed its relevance under Indiana Rule
of Evidence 403. Defense counsel also pointed out that Robinette had a
constitutional right to remain silent that had been exercised and ignored
by police. After noting that Robinette had raised the affirmative defense
of mental disease or defect, the State argued that it was significant that
Robinette had understood her rights and responded appropriately to
questions. The State further asserted that the videotape was probative of
her “awareness of her surroundings, awareness of what was going on” close
to the time frame of the murders and that the statement, “I’m not talking
to you about it,” rebutted her contention that she had no memory of the
incident. The trial court agreed with the State, proclaiming that “we have
a responsibility to let [the State] put [the videotape] on . . . to rebut
some of the things that psychiatrists say in their reports . . . . I
haven’t read the cases, but the notes suggest that the insanity issue
trumps everything else.”
After the videotapes had been admitted, the trial court, realizing its
error, gave a limiting instruction with regard to the first videotape to
the effect that the jury should consider it for the “limited purpose of
judging Miss Robinette’s physical appearance, carriage and demeanor at the
time that first tape was made.” The trial court further instructed the
jury to disregard completely the second videotape. Robinette argues that
the trial court’s attempt to rectify its error was insufficient.
In Doyle v. United States, the United States Supreme Court held that
the Due Process Clause of the Fourteenth Amendment is violated when the
defendant’s post-arrest and post-Miranda silence is used to impeach the
defendant’s exculpatory explanation at trial. 426 U.S. 610, 619 (1976).
The Court explained, “[W]hile it is true that the Miranda warnings contain
no express assurance that silence will carry no penalty, such assurance is
implicit to any person who receives the warnings.” Id. at 618. In
Wainwright v. Greenfield, the Supreme Court extended the rule in Doyle to
apply to the use of a defendant’s post-arrest silence as evidence of
sanity. 474 U.S. 284, 295 (1986). The Court concluded that there was no
viable distinction between the use of the defendant’s post-arrest silence
for impeachment purposes and its use as evidence of the defendant’s sanity.
Rather, “[i]n both situations, the State gives warnings to protect
constitutional rights and implicitly promises that any exercise of those
rights will not be penalized.” Id. at 292.
This Court had occasion to address Doyle and Wainwright in Lynch v.
State, 632 N.E.2d 341 (Ind. 1994), and Wilson v. State, 514 N.E.2d 282
(Ind. 1987). In Lynch, at the outset of his interrogation by police, the
defendant had asserted his right not to be questioned without an attorney
present. A tape of the interrogation was admitted for the purpose of
establishing the defendant’s state of mind shortly after he shot his
father. The defendant’s sanity was an issue in the trial. 632 N.E.2d at
341-42. In Wilson, as evidence of the defendant’s sanity, the State
elicited testimony as to the defendant’s exercise of his right to remain
silent and his right to consult with an attorney. 514 N.E.2d at 283.
Relying on Doyle and Wainwright, this Court reversed both of these
convictions and remanded for new trials. The same result is required here.
The State does not seriously defend the admissibility of the
videotapes. Rather, the State argues that any error was harmless because
the jury was subsequently instructed that it was to use the first videotape
only for purposes of observing Robinette’s demeanor and carriage and that
they should disregard the second videotape altogether.
The use of a defendant’s post-Miranda silence to impeach a defendant’s
exculpatory explanation or to prove a defendant’s sanity is subject to
harmless error analysis. Chapman v. California, 386 U.S. 18, 23 (1967)
(“The question is whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction.”)
(citation omitted); Thomas v. State, 910 F.2d 1413, 1414-15 (7th Cir. 1990)
(“All the psychiatric evidence indicated insanity, though how strongly was
a question for the jury. So we cannot dismiss as harmless the error in
admitting the evidence of his silence.”). Under the harmless error
analysis, the State bears the burden of establishing that the federal
constitutional error was harmless beyond a reasonable doubt. Brecht v.
Abrahamson, 507 U.S. 619, 629-30 (1993) (citing Chapman, 386 U.S. at 24);
Rawley v. State, 724 N.E.2d 1087, 1090 (Ind. 2000). In analyzing whether a
Doyle violation is harmless beyond a reasonable doubt, this Court examines
five factors: (1) the use to which the prosecution puts the post-arrest
silence; (2) who elected to pursue the line of questioning; (3) the quantum
of other evidence indicative of guilt; (4) the intensity and frequency of
the reference; and (5) the availability to the trial judge of an
opportunity to grant a motion for mistrial or give curative instructions.
Bieghler v. State, 481 N.E.2d 78, 91-92 (Ind. 1985) (quoting United States
v. Massey, 687 F.2d 1348, 1353 (10th Cir. 1982)).
We cannot conclude that the State has proved beyond a reasonable doubt
that the admission of Robinette’s post-Miranda silence as evidence of her
sanity was harmless. Robinette offered substantial testimony to the effect
that she suffered from a condition rendering her unable to recall or
appreciate the crimes she committed.[1] Her two videotaped statements, in
which she repeats, “I don’t want to talk about it,” dozens of times could
have easily left jurors with the impression that Robinette had enough of
her wits about her to recognize that it was not to her benefit to speak
with police. On these tapes she provided the police with general
information such as her name, age, and address, yet declined to speak about
the crimes with which she was charged. Jurors listened to her repeated
refusals to answer for four hours, during which time she was badgered and
chastised by police for being uncooperative and occasionally responded
belligerently.[2]
Given that Robinette produced experts willing to testify to her lack
of mental capacity at the time of the crimes and that the only other
evidence of Robinette’s sanity around the time of the crime was the
testimony of Sherman, the admission of the videotapes could have easily
contributed to her conviction. Cf. Thomas, 910 F.2d at 1414-15 (reversing
where psychiatric testimony indicated insanity and only evidence of sanity
was defendant’s silence after being Mirandized, his request for counsel,
and his “outwardly calm appearance”). Instructions to consider the first
videotape only for the purpose of observing Robinette’s demeanor and to
disregard the second videotape fell well short of curing the harm.
The State argued that observations of her demeanor were relevant to
rebut the defense’s psychiatric testimony that Robinette’s catatonia was a
natural continuation of a state that began at the time of the crime.
Relevancy is beside the point. Even confessions are suppressed if obtained
in violation of Miranda rules. Obviously they are highly relevant, but the
Constitution prohibits use of post-Miranda statements, relevant or not.
The only real issue presented by the State is the possibility of harmless
error. But the principal issue in the case was Robinette’s sanity at the
time of the shooting. As discussed above, because the tape contained
Robinette’s repeated seemingly sane attempts to assert her rights, we
cannot conclude that it had no effect on the resolution of that issue.
The State alternatively argues that evidence of Robinette’s sanity is
proper because Robinette has opened the door by raising the insanity
defense. Although it is correct that “[a] plea of insanity opens the door
for the admission of testimony about the defendant’s entire life,” Shepherd
v. State, 547 N.E.2d 839, 841 (Ind. 1989), raising the insanity defense
does not allow the admission into evidence of testimony obtained in
violation of a defendant’s Miranda rights. Indeed, Wainwright would be
meaningless if the State were correct. The State’s argument that the error
is harmless because Robinette said nothing incriminating about the charges
against her is specious. Robinette did not deny she committed the acts.
Rather, Robinette argued that she had done these things, but was insane at
the time. Her invocation of her right to remain silent bore directly on
that issue.
The admission of these videotapes was reversible error.[3] Robinette
is therefore entitled to a new trial.[4]
II. Sufficiency of the Evidence
Robinette argues that the evidence was insufficient to support a
conviction of guilty but mentally ill. If so, double jeopardy would
preclude a retrial. Thompson v. State, 690 N.E.2d 224, 237 (Ind. 1997).
Because Robinette does not dispute that she committed these crimes,
Robinette’s contention in effect amounts to the claim that she should have
been found not responsible by reason of insanity. Ind.Code § 35-36-2-3
(1998). In order to succeed on an insanity defense, a defendant must prove
by a preponderance of the evidence, id. § 35-41-4-1(b), that she was, “as a
result of mental disease or defect, . . . unable to appreciate the
wrongfulness of the conduct at the time of the offense.” Id. § 35-41-3-6.
A defendant appealing the rejection of an insanity defense must
demonstrate that the evidence was without conflict and led only to the
conclusion that the defendant was insane when the crime was committed.
Weeks v. State, 697 N.E.2d 28, 29 (Ind. 1998). A determination of insanity
is a question for the trier of fact and the jury is free to disregard the
testimony of experts and rely upon that of lay witnesses. Gambill v.
State, 675 N.E.2d 668, 672 (Ind. 1996) (quoting Barany v. State, 658 N.E.2d
60, 63-64 (Ind. 1995)).
Here, the jury found Robinette guilty of murder, criminal
confinement, and burglary as a Class A felony, but the trial court entered
a verdict of guilty but mentally ill.[5] The evidence did not lead only to
the conclusion that Robinette was insane when the crimes were committed.
Although several medical professionals testified on Robinette’s behalf and
agreed that Robinette suffered from mental illness, not all of them were
willing to state with absolute certainty that Robinette was unaware of her
actions at the time of the crime. More importantly, Sherman testified at
trial that she had not observed anything indicating that Robinette did not
know what she was doing. She testified that Robinette remained “calm”
throughout the entire episode. The erroneously admitted tapes supported
this. Sherman also testified that Robinette directed Sherman out the back
door instead of the front, asked for a drink, and reloaded the gun before
driving away. According to Sherman, after Sherman spoke to Robinette about
Sherman’s son, Robinette told her that was why she had not shot her yet.
The jury was free to conclude that the evidence before it did not indicate
that Robinette was unable to appreciate the wrongfulness of her conduct at
the time of the offense. Because there is sufficient evidence to support
Robinette’s convictions, there is no double jeopardy bar to retrial.
Conclusion
The judgment of the trial court is reversed and this cause is
remanded for proceedings consistent with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] Robinette was initially deemed incompetent to stand trial on December
7, 1998. She was committed to the Department of Mental Health in Madison
County. In March 1999, she was determined to be competent and in April was
returned to the Madison County Detention Center pending further order of
the trial court. Robinette raised the defense of insanity and presented
the testimony of several psychiatrists and psychologists. Dr. Gary L.
Crawley, who had evaluated Robinette and determined she was incompetent to
stand trial, testified that, when he examined her in October of 1998,
Robinette was unable to provide him with “information of meaningful []
events that had happened recently” and that “[s]he may well have been
mentally ill, severely and psychiatrically impaired at the time the crimes
are alleged.” Dr. Julie Nethercutt, a clinical psychologist, also examined
Robinette in October 1998 and concluded “that she was not able at that time
to assist in her defense or . . . fully understand what she was facing.” A
psychiatrist for the Center for Mental Health in Anderson, Dr. Gregory B.
Richardson, testified that he did not believe Robinette was able to
“understand the wrongfulness of her conduct” and was “psychotic and
virtually completely unconscious of the event.” Richardson examined
Robinette in September of 1998 when she was brought to the psychiatric ward
of St. John’s Hospital in Anderson after deteriorating into a catatonic
state in jail. At that point Robinette was uncommunicative, unresponsive
to pain, and was not eating. Dr. Robert Holt, another psychiatrist at the
Center for Mental Health, testified that he had provisionally diagnosed
Robinette with a “dissociative disorder.” Finally, Robinette offered the
testimony of Dr. Susan Spencer, a private practice psychologist, who
concluded that Robinette was suffering from a mental disease or defect at
the time of the offense and was not aware of her actions.
She was not capable of understanding . . . , not aware of what she was
doing, but she was unable to understand the consequences or the
importance of that behavior, what that might mean to someone else or
to her. I guess a way to put it simply is this woman was not there
when that happened.
The State did not present any expert evidence of its own regarding
Robinette’s sanity.
[2] Although Robinette repeatedly stated she “did not want to talk about
it,” Anderson police officers continued their attempts to get her to speak:
I need to ask you some questions, okay? And I need some answers. . .
. . Will you do that for me? Huh? Will you do that for me, Gail?
Please? Gail! Gail! Gail, wake . . . Look at me. . . . Will you
answer some questions if we ask them? Huh? Will you? Gail, will you
answer some questions if we ask them? Please? Gail. Gail. I’m
going to keep asking you, please, will you answer some questions and .
. . if we ask them. Huh? Answer me instead of ignoring me.
. . . .
This is pretty frustrating. I’ve sat here for two hours and a half
trying to talk to me with you. You haven’t opened up at all. . . .
Sit back like I am and talk with me, will you? Will you do that?
We’ve offered to get you something to drink, something to eat, you’ve
turned us down. . . . We’ve done everything to be nice to you.
Nobody’s forced you or coerced you or threatened you or anything like
that.
. . . .
You try to hide, and you . . . I keep telling you that (inaudible) not
going away. We’re going to be here. You’re going to hear us over and
over again, and in a few minutes, Detective Benson and I are going to
get tired. And you know what, we’re putting together a second team to
come in here, and they’ll talk to you about Michael. . . . You can
twist. You can turn. You can say, “I don’t want to talk about it.”
“It doesn’t matter.” . . . We need you to just go ahead and get this
over with.
. . . .
This, this is something that’s not going to go away. It’s going to be
here, and we’re going to talk about it, and you might as well just
get, cleanse your system a little bit.
. . . .
You’re not even trying to deny that you, those allegations that you
murdered him. So what’s that, what’s that tell us right there? There
must be some truth to it because if you’re innocent you’d be sitting
there telling us that . . . .
. . . .
We’re not going to go away. We’re not going to take you back to the
jail right now because we have some things we need to discuss here,
okay? Something bad has happened, and we’re investigating something
that’s happened. It’s really bad, okay? It involves a human life,
okay? You know about it, so you need to tell us what you know about
it. I’m tired of dancing around, dancing around the subject here.
We’re in for a very serious thing, and I’m not going to sit here and
cater to you because you act like you’re mad, you don’t want to talk
about it. Well, we’re here to talk about it. Okay? Now I want you
to talk to me about this.
[3] At trial, defense counsel conceded that he had not objected to the
admission of the first videotape even though a review of the record seems
to indicate a clear objection on the specific ground that there was no
determination as to whether Robinette had waived her rights after being
Mirandized. Thus, we have employed a harmless error analysis. In the
absence of an objection at trial, this Court employs a fundamental error
analysis. See, e.g., Wilson, 514 N.E.2d at 284. Analyzing the admission
of the first videotape employing fundamental error would be unlikely to
change the result here.
[4] Because Robinette is entitled to a new trial, we do not address the
propriety of her argument that the trial court should have ordered a
mistrial even though it was not requested by either party. For the same
reason, we do not address her contention that the trial court erred in
proceeding to trial without a formal order of competency.
[5] We would note that Robinette’s convictions for murder and burglary as a
Class A felony appear to raise a claim under the Indiana Double Jeopardy
Clause. See Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Robinette has
not raised this issue so we decline to address it. See Roop v. State, 730
N.E.2d 1267, 1270 n.2 (Ind. 2000).