Kolb v. State, No. 95-167

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore TAYLOR; LEHMAN
Citation930 P.2d 1238
Decision Date20 December 1996
Docket NumberNo. 95-167
PartiesTommy J. KOLB, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Page 1238

930 P.2d 1238
Tommy J. KOLB, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 95-167.
Supreme Court of Wyoming.
Dec. 20, 1996.

Page 1239

Sylvia Hackl, State Public Defender; and Deborah Cornia, Appellate Counsel, argued, for Appellant (Defendant).

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Barbara L. Boyer, Senior Assistant Attorney General, argued, for Appellee (Plaintiff).

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN, * and LEHMAN, JJ.

LEHMAN, Justice.

Convicted by jury and sentenced to two consecutive life terms in prison, Tommy J. Kolb appeals his convictions for first degree murder, W.S. 6-2-101(a) (Cum.Supp.1993),

Page 1240

and aggravated kidnaping, W.S. 6-2-201(a)(iii)(d) (1988). He presents the issues:

Did the trial court abuse its discretion when it refused to allow expert testimony on the defense theory of the case?

Did the trial court err when it failed to suppress the statements made by the Appellant which were obtained in violation of his constitutional rights?

Did the trial court err when it admitted the hearsay testimony of Carl Haler?

Was the evidence insufficient to support a conviction for first degree murder?

Was Appellant denied effective assistance of counsel due to trial counsel's deficient performance?

We affirm.

The 19-year-old victim, Ms. Sallani, attended Sheridan College during the day and worked the late shift at a local convenience store. On March 12, 1993, she reported to work and left as usual. The following morning, Ms. Sallani's car was discovered near her apartment with her personal effects strewn on the ground beside her car. Family and friends reported her missing.

Carl Haler, whose testimony is the source of Mr. Kolb's third issue, told the police he visited with Ms. Sallani at the convenience store on the evening she disappeared. He spent an hour visiting with her and overheard her telephone conversation with someone named "John." When Mr. Haler called her near midnight, he heard someone come into the store and say, "I'm John." Ms. Sallani then told Haler she had to go. Days later, after news of her disappearance spread, a local rancher told police that a young man had appeared at his home along Big Goose Creek around 3:00 a.m. on the morning of March 13 to ask for help in pulling his Bronco from a ditch. The police contacted a towing service and discovered Mr. Kolb was the young man whose vehicle had been pulled from the ditch.

The police interviewed several people, including Mr. Kolb who said he had been looking for a party on Red Grade Road and slid off the road near Big Goose Creek on the evening Ms. Sallani disappeared. He denied knowing Ms. Sallani or going to the convenience store. Despite extensive search and rescue efforts, Ms. Sallani was not found. However, nearly one year later, on March 29, 1994, her jacket was discovered along Big Goose Creek. Following this discovery, police re-interviewed Mr. Kolb. Mr. Kolb's story from the year before remained consistent. Then, on June 5, a boy swimming in Big Goose Creek discovered the frontal plate of Ms. Sallani's skull. Eventually more body parts were found.

On July 28, the police again approached Mr. Kolb, asking that he come into the police station after work to speak with them. Mr. Kolb arrived around 5:00 p.m. During the course of the evening, Mr. Kolb confessed three times on tape to killing Ms. Sallani. These tapes were played for the jury. Following Mr. Kolb's second taped confession, he was arrested for kidnaping and murdering Ms. Sallani.

Prior to trial, Mr. Kolb sought to suppress the tapes, arguing the confessions were involuntarily given and were the product of a custodial interrogation which occurred in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Mr. Kolb's testimony contradicted the police testimony of whether Mr. Kolb was "mirandized," whether he was physically free to leave prior to his confessions, and when he invoked his right to an attorney. Following the suppression hearing, the district court found that Mr. Kolb had been timely "mirandized" before his confessions, that the confessions were voluntarily given, and that he had intelligently and knowingly waived his Miranda rights before confessing.

Miranda warnings require police to inform an accused during custodial interrogation that he may remain silent, that anything said may be used against him in court, and that he is entitled to an attorney, either retained or appointed. Because claims of involuntary confessions and Miranda violations require this court to review the totality of the circumstances surrounding such claims, Glass v. State, 853 P.2d 972, 976 (Wyo.1993) and Thompson v. Keohane, --- U.S. ----, ----, 116 S.Ct. 457, 464, 133 L.Ed.2d 383 (1995), a detailed account of relevant facts is developed below.

Page 1241

DISCUSSION OF ISSUES

Admissibility of Expert Testimony

Mr. Kolb first argues that the trial court abused its discretion in refusing to allow expert testimony regarding "false confession syndrome." Mr. Kolb had sought to introduce this testimony pursuant to W.R.E. 702, which allows an expert witness to testify in the form of an opinion or otherwise if the scientific, technical or specialized information upon which the testimony is based will assist the trier of fact to understand the evidence or determine a fact in issue. The district court, after receiving the proffered testimony of the psychological expert and arguments of counsel, ruled that the testimony would not assist the jury and prohibited such testimony.

We resolve issues of evidentiary rulings under an abuse of discretion standard. Witt v. State, 892 P.2d 132, 137 (Wyo.1995). The discretionary range entrusted to the district court for evidentiary rulings on proposed expert testimony is set by W.R.E. 702, and these rulings remain undisturbed unless the appellant demonstrates an abuse of discretion. Yung v. State, 906 P.2d 1028, 1037 (Wyo.1995). Thus, Mr. Kolb must demonstrate that the district court acted in a manner which exceeded the "bounds of reason under the circumstances." DeWitt v. State, 917 P.2d 1144, 1148 (Wyo.1996).

Against this standard of review, the following facts are relevant. The police interviewed Mr. Kolb on three occasions over a sixteen-month period: shortly after Ms. Sallani disappeared on March 13, 1993; on March 30, 1994, soon after her coat was discovered; and on July 28, 1994, a month after her frontal skull plate was discovered. In the first interview, Mr. Kolb denied knowing Ms. Sallani or ever being in the convenience store. His story in the second interview remained consistent with his first interview.

On the third interview, Mr. Kolb's story began to shift. He suddenly admitted he had been to the convenience store, but continued to deny he ever knew Ms. Sallani. However, he soon admitted that he not only knew her but had met with her after she got off work on the night she disappeared. When law enforcement asked for consent to search his Bronco, Mr. Kolb indicated they might find Ms. Sallani's blood in the vehicle. He said they had playfully wrestled and she had developed a nose bleed. Finally, after further questioning, Mr. Kolb declared, "Let's get this over with," and admitted he had brutally slain Ms. Sallani.

Mr. Kolb made several confessions, three of which were recorded by the police. The recordings indicated that Mr. Kolb met Ms. Sallani at a local park after she finished work on the night she disappeared. Mr. Kolb said they had a brief and limited sexual encounter and he later followed her to her home. He reported becoming enraged that she had gone home rather than to a party. He choked her into unconsciousness and threw her into his Bronco. As she regained consciousness during the drive, he hit her face and head with his fists and a hammer in order to kill her. He lost control of his Bronco while striking her, slid into a ditch and was knocked unconscious. When he regained consciousness, he spotted Ms. Sallani running toward Big Goose Creek. He chased and caught her after she became hung up on a fence. She escaped temporarily by slipping out of her jacket and, again, ran for her life. Unfortunately for Ms. Sallani, she fell as she reached the creek, where Mr. Kolb caught and drowned her.

At trial Mr. Kolb retracted his confessions, testifying he had falsely incriminated himself just so he could get through the interrogation. In order to strengthen his testimony, he sought to introduce expert testimony regarding "False Confession Syndrome." The prosecution objected, and the district court conducted a pretrial hearing to receive testimony from a psychologist. When asked about the scientific basis for "False Confession Syndrome," the psychologist testified it is not a syndrome, but is better understood as a collection of reasons why people may give false confessions. A syndrome, he testified, is a cluster of symptoms which indicate an underlying cause, which in this case would be a psychopathology. The psychologist further testified he had no training regarding "False Confession Syndrome"; "False Confession

Page 1242

Syndrome" is not a diagnostic term in psychology; there were no psychological studies supporting "False Confession Syndrome" upon which he could base his testimony; and a retracted confession does not necessarily indicate the confession was false. The district court concluded the proposed testimony was scientifically unreliable and would not assist the jury with understanding the evidence nor in deciding a fact in issue. The court, however, was willing to take judicial notice that false confessions do occur and, if the evidence warranted it, would permit the defense to make that argument during closing.

Against this backdrop, Mr. Kolb fails to demonstrate how the district court exceeded the bounds of reason in...

To continue reading

Request your trial
42 practice notes
  • Pena v. State, No. 03-13.
    • United States
    • United States State Supreme Court of Wyoming
    • October 6, 2004
    ...before any of the accused's statements, made during custodial interrogation, can be used against the accused at trial. Kolb v. State, 930 P.2d 1238, 1243 (Wyo.1996); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Failure to comply with these procedural safeguards re......
  • Ryan v. State, No. 98-279.
    • United States
    • United States State Supreme Court of Wyoming
    • October 8, 1999
    ...a reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred. Kolb v. State, 930 P.2d 1238, 1247 (Wyo.1996); Kerns v. State, 920 P.2d 632, 641 (Wyo.1996). To demonstrate harmful error, the defendant must show prejudice under "circ......
  • Commonwealth v. DiGiambattista
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 6, 2004
    ...944 (Me. 1987) (seeing no probative value in "abstract, vague and speculative" testimony regarding false confessions); Kolb v. State, 930 P.2d 1238, 1242 (Wyo. 1996) (deeming such testimony to be "scientifically unreliable"). But see United States v. Hall, 974 F. Supp. 1198, 1205 (C.D. Ill.......
  • People v. Matheny, No. 01SA355.
    • United States
    • Colorado Supreme Court of Colorado
    • May 20, 2002
    ...at *1, 1998 Va.App. Lexis 618, at *4 (Va.Ct.App. Dec.8, 1998); State v. Potter, 197 W.Va. 734, 478 S.E.2d 742, 752 (1996); Kolb v. State, 930 P.2d 1238, 1243 As the preceding discussion demonstrates, the obligation to independently review mixed questions of law and fact that implicate const......
  • Request a trial to view additional results
42 cases
  • Pena v. State, No. 03-13.
    • United States
    • United States State Supreme Court of Wyoming
    • October 6, 2004
    ...before any of the accused's statements, made during custodial interrogation, can be used against the accused at trial. Kolb v. State, 930 P.2d 1238, 1243 (Wyo.1996); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Failure to comply with these procedural safeguards re......
  • Ryan v. State, No. 98-279.
    • United States
    • United States State Supreme Court of Wyoming
    • October 8, 1999
    ...a reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred. Kolb v. State, 930 P.2d 1238, 1247 (Wyo.1996); Kerns v. State, 920 P.2d 632, 641 (Wyo.1996). To demonstrate harmful error, the defendant must show prejudice under "circ......
  • Commonwealth v. DiGiambattista
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 6, 2004
    ...944 (Me. 1987) (seeing no probative value in "abstract, vague and speculative" testimony regarding false confessions); Kolb v. State, 930 P.2d 1238, 1242 (Wyo. 1996) (deeming such testimony to be "scientifically unreliable"). But see United States v. Hall, 974 F. Supp. 1198, 1205 (C.D. Ill.......
  • People v. Matheny, No. 01SA355.
    • United States
    • Colorado Supreme Court of Colorado
    • May 20, 2002
    ...at *1, 1998 Va.App. Lexis 618, at *4 (Va.Ct.App. Dec.8, 1998); State v. Potter, 197 W.Va. 734, 478 S.E.2d 742, 752 (1996); Kolb v. State, 930 P.2d 1238, 1243 As the preceding discussion demonstrates, the obligation to independently review mixed questions of law and fact that implicate const......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT