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Scattershot attack on conviction for criminal damage to property and armed robbery misses marks

State v. Clifton Robinson, 2014AP1575-CR, 3/31/15, District 1 (not recommended for publication); click here for briefs and docket

The court of appeals here rejects a barrage of challenges to Robinson’s conviction for criminal damage to property and armed robbery with use of force–everything from a Batson challenge, to severance issues, to the sufficiency of evidence, to the admission of prejudicial evidence and more.

Batson challenge.  The State used a peremptory strike to remove the last Black juror from the jury panel at voir dire.  Robinson said the strike was based on the juror’s race, thus violating the Equal Protection Clause and Batson v. Kentucky, 476 U.S. 79 (1986). The State gave a race-neutral explanation for its decision–the juror wasn’t paying attention. The trial court accepted that reason, and, according to the court of appeals, Robinson cited nothing to prove the finding clearly erroneous. Slip op. ¶11.

Sufficiency of evidence. the criminal complaint named D.S. as the “victim” in this case, but the State presented its case through a witness named W.H., who never testified that the property that was criminally damaged belonged to D.S. Robinson thus claimed there was insufficient evidence to support the jury’s conviction for criminal damage to property. The court of appeals held that under §943.01(1) the State was not required to prove who owned the property only that someone other than Robinson owned it. Slip op. ¶14.

Severance. Robinson didn’t move for severance, but on appeal he argued that the trial court should have severed the criminal damage charge from the armed robbery charge. But the two incidents were part of the same continuous event. This satisfied §971.12(1), governing severance, and any prejudice to Robinson was outweighed by the public’s interest in having “a single trial against Robinson for acts that were inextricably intertwined with one another.” Slip op. ¶17.

Prejudicial evidence. At trial, the State asked an officer to identify a photo of Robinson taken on the night of the incident at issue. The original photo showed Robinson “flipping the bird,” but that was redacted from the version shown to the jury. Robinson argued that the trial court should have excluded the photo because it was cumulative and prejudicial. But the court of appeals held that its admission was proper: it allowed the jury to assess whether Robinson was one of the people observed in surveillance tapes and whether a witness was credible, and it was not prejudicial because “the bird” had been redacted. Slip op. ¶15.

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