Sands Apts. murder trial: Judge denies motion for mistrial

tchitwood@ledger-enquirer.comOctober 31, 2013 

The inadvertent mention of a defendant's criminal history caused a delay Wednesday in the murder trial of Timothy Leshan Robinson and Dana Michael Kessler as defense attorneys asked Muscogee Superior Court Judge William Rumer to declare a mistrial.

Prosecutors are not to mention a defendant's criminal record because it risks prejudicing jurors who might think someone who previously committed a crime would likely commit another. In this instance, Assistant District Attorney Sadhana Dailey was showing a video recording of police questioning Robinson the evening of his arrest in the April 6, 2012, fatal shooting of Jeffrey Morgan.

The recording captured Robinson talking to Detective Katina Williams about his outstanding warrants. Jurors heard Robinson say he was wanted for criminal trespass and simple battery, both misdemeanors.

Defense attorneys said it was the second time in the murder trial that a defendant's criminal record came up. A detective earlier testified that police tracked down the suspects by checking their outstanding warrants. The attorneys argued this repeated introduction of defendants' past offenses warranted a mistrial.

Had Rumer declared a mistrial, the trial would have ended, the jury would have been dismissed, and prosecutors would have had the option of trying the case again with a new jury.

After hearing arguments outside the jury's presence, Rumer decided to deny the defense motion for a mistrial. Court precedents show such an error can be remedied by instructing jurors to disregard what they heard about Robinson's warrants, he said.

Stacey Jackson, Robinson's attorney, told Rumer such a curative instruction would not erase what jurors heard. "Once the bell has already been rung, it cannot be unrung," Jackson said.

Much of Wednesday’s testimony came from detectives who questioned the suspects after they were arrested on Easter Sunday 2012, two days after Morgan’s fatal shooting on Good Friday at the Sands Apartments, 1213 Martin Luther King Jr. Blvd.

As Kessler’s defense attorney Kathryn Rhodes claimed her client signed a “false confession” because he was drunk and exhausted the night police questioned him, Dailey asked Detective Wayne Fairburn about the suspect’s behavior. Fairburn said Kessler showed no signs of intoxication: He walked steadily, spoke without slurring, and emitted no odor of alcohol.

Rhodes then asked about Fairburn’s method of interrogation, playing the video recording to show the detective getting close to Kessler and raising his voice, asking whether Kessler was a cold-blooded killer who should go to prison for life, or whether he unintentionally shot Morgan and “just needed a little rehabilitation.” The detective also mentioned that police had DNA evidence and recordings from a security camera that showed Kessler at the crime scene.

Fairburn admitted to Rhodes that police had no surveillance video placing Kessler at the crime scene. As for DNA evidence, that could mean blood from the victim or DNA from the marijuana the two suspects are accused of stealing from Morgan, Fairburn said.

Jackson, who maintains his client was only a witness, had Fairburn confirm police found no marijuana and no weapons on Robinson when they arrested him. Detective Stuart Carter testified that he persuaded Kessler to confess about 5 a.m. April 9, 2011, after establishing a rapport with the suspect, who expressed remorse at having shot Morgan. “He cried. I cried during the interview,” Carter said.

A recording of the interview showed Carter rearranging chairs at police headquarters so Kessler could show him how the shooting happened. Robinson had called Morgan to set up the meeting in the apartments parking lot so Kessler could buy marijuana, though Kessler intended to rob Morgan. “It was supposed to be a robbery-type thing,” Kessler told Carter on the video.

Kessler arrived at the apartments with Robinson and Edward Trevor Love, who was driving Kessler’s gray Mitsubishi. Kessler and Robinson got into the back seat of Morgan’s blue Mazda, where Kessler pulled out a .45-caliber pistol and pointed it between the front seats at Morgan, Kessler told Carter.

He told the detective Morgan turned and reached for the gun with his left hand, and the weapon fired. He was unaware the bullet had gone through Morgan’s right arm and into his chest, Kessler said. He thought he’d shot Morgan in the leg, he said.

Kessler got out, walked around to the driver’s door and ordered Morgan to get out. “I can’t! I can’t!” he said Morgan screamed, so he reached in, dragged Morgan out and fled in Morgan’s car.

Detective Williams, who questioned Robinson, testified that he admitted arranging the drug deal and being in Morgan’s car when the fatal shot was fired. He told her he then ran to the Mitsubishi in which he and Love sped away, leaving Kessler in Morgan’s car.

The three met nearby on Talley Avenue, where they got the marijuana out of Morgan’s car and left it there, its engine still running. Under Jackson’s questioning, Williams said Robinson began to cry during the interview, saying he “hates what happened to Jeff,” and that he had expected no violence, just an exchange of marijuana and money.

Besides murder, Kessler and Robinson face charges of aggravated assault, armed robbery, hijacking a motor vehicle, using a firearm to commit a crime and possessing marijuana.

Love, who was arrested this past June 12 in Phenix City, is not on trial because he still is being held on charges in Russell County.

Related stories:

Sands Apts. murder trial: Jury hears about final moments of victim's life

Sands Apts. murder trial: Opening arguments expected Tuesday

Columbus police: Two charged in Friday homicide at Sands Apartments

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