ATTORNEY FOR APPELLANT
Louis W. Denney
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
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
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 Shermans 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 Gougeons car
keys, Robinette escorted Sherman at gunpoint to Gougeons 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 dont 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
Robinettes 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 Robinettes 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 Robinettes second interview with police. Defense counsel
again objected, arguing that, in view of Robinettes 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, Im 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 havent 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 Robinettes
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 courts attempt to rectify its error
In Doyle v. United States, the United States Supreme Court held that the
Due Process Clause of the Fourteenth Amendment is violated when the defendants post-arrest
and post-Miranda silence is used to impeach the defendants 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 defendants 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
defendants post-arrest silence for impeachment purposes and its use as evidence of the
defendants 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 defendants state of mind shortly after he shot his father. The
defendants sanity was an issue in the trial. 632 N.E.2d at 341-42.
In Wilson, as evidence of the defendants sanity, the State elicited testimony
as to the defendants 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 Robinettes demeanor and carriage and that they should disregard the second videotape
The use of a defendants post-Miranda silence to impeach a defendants exculpatory explanation
or to prove a defendants 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 Robinettes 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.
Her two videotaped statements, in which she repeats, I dont 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.
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 Robinettes 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 defendants 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 Robinettes 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
defenses psychiatric testimony that Robinettes 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 Robinettes sanity at the time of the shooting. As discussed
above, because the tape contained Robinettes repeated seemingly sane attempts to assert her
rights, we cannot conclude that it had no effect on the resolution of
The State alternatively argues that evidence of Robinettes 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 defendants 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 defendants Miranda rights. Indeed, Wainwright
would be meaningless if the State were correct. The States 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
The admission of these videotapes was reversible error.
Robinette is therefore entitled
to a new trial.
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, Robinettes 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.
See footnote The evidence did not lead only to the conclusion
that Robinette was insane when the crimes were committed. Although several medical
professionals testified on Robinettes 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 Shermans 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
Robinettes convictions, there is no double jeopardy bar to retrial.
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.
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. Johns 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 Robinettes
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. Im 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. Ive sat here for two hours and a
half trying to talk to me with you. You havent opened up
at all. . . . Sit back like I am and talk with
me, will you? Will you do that? Weve offered to get
you something to drink, something to eat, youve turned us down. . .
. Weve done everything to be nice to you. Nobodys 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. Were going to be here. Youre
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, were putting together a second team to come in here, and theyll
talk to you about Michael. . . . You can twist. You
can turn. You can say, I dont want to talk about it.
It doesnt matter. . . . We need you to just
go ahead and get this over with.
. . . .
This, this is something thats not going to go away. Its going
to be here, and were going to talk about it, and you might
as well just get, cleanse your system a little bit.
. . . .
Youre not even trying to deny that you, those allegations that you murdered
him. So whats that, whats that tell us right there? There
must be some truth to it because if youre innocent youd be sitting
there telling us that . . . .
. . . .
Were not going to go away. Were 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 were investigating something
thats happened. Its really bad, okay? It involves a human life,
okay? You know about it, so you need to tell us what
you know about it. Im tired of dancing around, dancing around the
subject here. Were in for a very serious thing, and Im not
going to sit here and cater to you because you act like youre
mad, you dont want to talk about it. Well, were here to
talk about it. Okay? Now I want you to talk to
me about this.
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.
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.
We would note that Robinettes 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).