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State v. Robertson

Court of Appeals of Utah

May 17, 2018

State of Utah, Appellee,
Thad Douglas Robertson, Appellant.

          Fifth District Court, Cedar City Department The Honorable G. Michael Westfall No. 131500082

          B. Kent Morgan, Attorney for Appellant

          Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.


         ¶1 Seeking a reaction from his friend sitting nearby, Defendant Thad Douglas Robertson pulled out a concealed revolver and pointed it at his girlfriend's head. Then he pulled the trigger. The revolver fired. He later claimed that the gun, which he had owned for nearly three decades, "startled" him by going off. Defendant then turned the firearm on his friend and shot him. Twice. Both the girlfriend and the friend died. Appealing from his convictions for aggravated murder, Defendant claims that the trial court and his defense counsel made missteps relating to the jury voir dire process, that the evidence was insufficient to support his convictions, and that he was deprived of the effective assistance of counsel at trial. We reject his claims and affirm his convictions.


         ¶2 Defendant and his Girlfriend spent Valentine's Day at her house, where Defendant was living. The next morning, they awoke and smoked methamphetamine before Defendant left for a time. When he returned, Friend-whom Defendant had not seen in six months-was at the house. Friend asked, "Can I invite you in?, " which "upset [Defendant] greatly" because, "[w]ell, wouldn't it upset you if a guy showed up and invited you into your own home?" So Defendant again left the house.

         ¶3 When he returned to the home the second time that day, Defendant could hear Girlfriend and Friend talking in the living room. He claimed that they got quiet as soon as he opened the door, which further irritated Defendant. His response was to go to his bedroom and retrieve his revolver, concealing it in the waistband of his pants.

         ¶4 Returning to the living room, Defendant, assuming "there was some sort of an affair going on, " asked Friend how long it "had been going on." According to Defendant, Girlfriend then said, "Oh, no, [Friend]. He knows that we're sleeping together." But Defendant said Girlfriend was "probably just being sarcastic, " as she "was very sarcastic." He nevertheless pulled the gun out and pointed it at Girlfriend's head, looking at Friend to see his reaction. Then Defendant pulled the trigger, shooting Girlfriend in the head.

         ¶5 Defendant later asserted that he believed the cylinder under the hammer in the revolver was empty, so he was "startled" when the gun went off.

         ¶6 After shooting Girlfriend, Defendant looked at Friend, who had "started to come up out of his seat." Defendant "turned the gun on him, fearing that [Friend] was going to come after [Defendant]" and shot him, causing Friend to stumble and fall. When Friend "started to try and get up again, " Defendant shot him a second time, reasoning again, "I thought [Friend] was going to come after me."

         ¶7 According to Defendant, he then went to Girlfriend and touched her head, covering his hand with blood. He originally thought she was dead, but upon moving closer, he noticed that she was still breathing. Defendant later claimed that he kissed Girlfriend on the forehead before asking, "[W]hat have I done?"

         ¶8 Defendant claimed he then called his daughter on the phone, telling her he was calling to say goodbye and to ask her to manage his finances because he was going to commit suicide. He explained that Girlfriend had been shot and mentioned that "somebody else possibly could have been shot." Defendant ended the call by saying that Girlfriend was making noise so he had to go. Daughter testified that throughout the phone call, Defendant was calm. Aside from the content of the conversation, it seemed "like a normal phone call."

         ¶9 Daughter called the police to report that her father was suicidal. Police responded to Girlfriend's house, where they saw Defendant pacing in front of the house, smoking a cigarette. He initially told police that when he entered the house, he found that two people had been shot. He claimed that he did not know the man who had been shot but explained that his girlfriend had been shot and had a handgun; he gave police the impression that Girlfriend was the shooter and was still armed.

         ¶10 The police wanted to provide aid to the injured parties but were faced with Defendant's claim that the shooter was still inside the house with a gun. They thus determined that it was a "high risk" situation and directed medical personnel to delay entering the home. A SWAT team was called in.

         ¶11 Meanwhile, police questioned Defendant, trying to better understand the situation inside the house. Defendant "was a bit hesitant" to provide information and was "elusive" in his answers. When police asked Defendant why he had not called 911 when he first discovered Girlfriend's injuries, he claimed, "She raised up the gun and I thought she might shoot me, so I went back [into] the bedroom." He further claimed that Girlfriend was suicidal and had earlier taken a large quantity of pills.

         ¶12 Police went on to question Defendant about his conversation with Daughter, asking why he had told her that he had shot two people. He said he did not remember saying that to Daughter and, in fact, did not know why he would have said that.

         ¶13 The SWAT team, followed by medical personnel, eventually entered the house. They observed Girlfriend sitting with her head against the couch, holding her hands by her face, her eyes swollen shut. Her hands were "shaking uncontrollably" and she kept repeating, "Let me die. Leave me alone. Let me die alone." Defendant's revolver was in her lap. Girlfriend was transported to the hospital, where she died four days later. Friend was dead when medical personnel entered the house.

         ¶14 Subsequent police investigation uncovered that Defendant had not called Daughter immediately after shooting Girlfriend and Friend. Instead, he had left the scene, visited his mother's house, then called Daughter when he returned to Girlfriend's house. Defendant had left a handwritten note at his mother's house, giving his mother power of attorney and directing the distribution of his belongings to his children. Defendant eventually admitted to police that he wrote the note after shooting Girlfriend and Friend.

         ¶15 The State charged Defendant with, among other charges, aggravated murder for the deaths of Friend and Girlfriend. At trial, a firearms expert testified that it is easy to tell which cylinders in Defendant's revolver are loaded because the rim of the cartridge protrudes slightly out of and above the cylinder. Defendant had owned the revolver used in the shootings for twenty-eight years.

         ¶16 The case was tried to an eight-member jury. Voir dire was conducted in two sessions: one in court and one in-chambers. While Defendant was present during the first round of voir dire, he elected not to be present during the latter part, which took place in-chambers. Before the in-chambers voir dire began, defense counsel noted on the record that Defendant agreed not to be present, and the trial court advised Defendant that he had a right to be present during jury selection. Defendant told the court that he trusted his attorney, and the court found that Defendant "knowingly and voluntarily waived his right to be present at voir dire."

         ¶17 The State did not seek the death penalty, having filed the charges as noncapital first degree felonies. The jury convicted Defendant as charged, finding him guilty of two counts of aggravated murder, one count of possession of a controlled substance in a drug-free zone, one count of possession of a firearm by a restricted person, and one count of possession of drug paraphernalia in a drug-free zone. The trial court sentenced Defendant to two consecutive sentences of life without parole for the aggravated murders and ...

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