Simmers v. State, No. 96-276

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore TAYLOR; GOLDEN
Citation943 P.2d 1189
PartiesThomas SIMMERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Docket NumberNo. 96-276
Decision Date21 August 1997

Page 1189

943 P.2d 1189
Thomas SIMMERS, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 96-276.
Supreme Court of Wyoming.
Aug. 21, 1997.

Page 1192

Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Jason M. Tangeman, Assistant Appellate Counsel, for Appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Sr. Assistant Attorney General; Georgia L. Tibbetts, Sr. Assistant Attorney General; Mary Beth Wolff, Special Assistant Attorney General, for Appellee.

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

GOLDEN, Justice.

Thomas Simmers (Simmers) appeals from the judgments and sentences 1 convicting him

Page 1193

of twelve counts of second degree sexual assault in violation of WYO. STAT. § 6-2-303(a)(v). Based on testimony concerning his conduct with three young victims, a jury found him guilty of all charges brought against him. Simmers claims his two confessions were involuntary and should have been suppressed, the trial should have been severed as to each victim, the court erred in admitting improper hearsay testimony and the young victims were not competent to testify in court. Finding the trial court did not abuse its discretion or commit any legal errors, we affirm the judgments and sentences.
ISSUES

Appellant Simmers submits the following issues for our review:

I. Whether the appellant's confession to Detective Bilkie was involuntary thus violating the appellant's right against self-incrimination under the Fifth Amendment of the United States Constitution and Art. 1, § 11 of the Wyoming Constitution?

II. Whether statements made by the appellant to Deputy Crowder while the appellant was being processed for incarceration should have been suppressed as they were involuntary and violated the appellant's right against self-incrimination under the Fifth Amendment of the United States Constitution and Art. 1, § 11 of the Wyoming Constitution?

III. Whether the trial court abused its discretion in allowing Susan Kotowicz, a licensed social worker, to testify to hearsay statements made [by] the child victim SS?

IV. Whether the trial court erred in refusing to sever the three charges of second degree sexual assault?

V. Whether the trial court erred in finding the child witness[es] AJ and AB competent to testify at trial?

In its brief, Appellee State of Wyoming presents the following statement of the issues:

I. Did the district court properly refuse to suppress the statements Appellant made to law enforcement?

II. Did the district court err in allowing Susan Kotowicz to testify regarding the statements made to her by one of the child victims?

III. Did the district court properly deny Appellant's motion to sever the criminal cases for purposes of trial?

IV. Did the district court abuse its discretion in allowing the child victims, AJ and AB, to testify at trial?

FACTS

While watching a television show concerning child sexual abuse, AJ told his mother that he had been forced to suck Simmers' penis at the day care run by Simmers' mother. On December 11, 1995, AJ's father reported the incident to the Cheyenne Police Department. When an officer contacted Simmers concerning AJ's allegations, Simmers denied them and provided a statement to that effect. Shortly thereafter, a Cheyenne police detective asked Simmers to come to the police station for a follow-up interview, and Simmers complied with that request.

At the beginning of the interview, the detective informed Simmers of the allegations against him and advised him of his Miranda rights, both verbally and in writing. Simmers stated that he understood his rights and signed a written waiver of rights form. Simmers then agreed to talk to the detective regarding the charges against him.

Simmers initially denied the allegations against him; however, as the interview progressed, he asked the detective to turn off the tape recorder. While the tape recorder was turned off, Simmers and the detective discussed potential consequences, including

Page 1194

the likelihood of probation, if the allegations were true. The detective told Simmers that probation is always a possibility. After an eighteen minute break, the tape recorder was turned back on and Simmers then admitted that, on four separate occasions, Simmers had asked AJ to suck his penis. Simmers acknowledged that AJ did not appear to like what occurred. He also admitted that he told AJ not to tell anyone about what happened.

When the detective asked Simmers if this conduct happened with any other children, Simmers first asked for something to drink. The detective turned off the tape recorder. After a nine minute break, the tape recorder was turned back on and Simmers admitted to numerous other incidents involving the other two victims, SS and AB. Simmers reported details similar to the incidents with AJ. Simmers admitted to making SS suck his penis on three occasions and to making AB suck his penis on five occasions. On a later date, the detective interviewed AB. He also obtained video taped interviews of AJ and SS, using the children's parents to conduct the interview.

Simmers was arrested on December 27, 1995, and transported to the Laramie County Detention Center. He seemed extremely upset while he was being processed for incarceration, or "booked," by the sheriff's deputy. The deputy performed a routine risk assessment of Simmers, whereupon Simmers admitted he was considering suicide. The deputy took Simmers into an interview room and, while trying to calm him, suggested that Simmers remember that he had not been convicted of the crimes he was charged with yet. At that point Simmers admitted his guilt to the deputy. The deputy advised Simmers not to say anything which might further incriminate him.

Simmers filed several motions before trial, including a motion to suppress, as involuntary, the statements he made to the detective, a motion to sever the cases as to each child for trial purposes and a motion for a hearing to determine whether the minor victims were competent to testify at the trial. The motions to sever and to suppress were denied after a hearing. Before allowing the testimony of the child victims, the district court held a hearing to determine their competency to testify concerning the alleged criminal offenses. The court found AJ and AB sufficiently competent to testify, but disallowed the testimony of SS. In lieu of direct testimony from SS, the district court, over Simmers' objection, allowed a licensed social worker to testify regarding the statements made to her by SS.

At trial AB and AJ testified about their encounters with Simmers, and the social worker testified about statements made to her by SS. The detective and the sheriff's deputy also testified about the incriminating statements Simmers made to them. Finally, AJ's father, SS's father, and AB's mother testified that the children were enrolled at the Simmers' day care during the time periods the sexual assaults were alleged to have occurred. The jury returned a guilty verdict on all twelve counts against Simmers. This appeal timely followed.

DISCUSSION

Statements to Law Enforcement Officials

In Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the United States Supreme Court determined that voluntariness of a confession is a legal question meriting independent consideration, not a factual issue which we presume is correct. Stone v. State, 745 P.2d 1344, 1348 (Wyo.1987). Therefore, we undertake a de novo review of a district court's ruling on a motion to suppress a statement for involuntariness. State v. Evans, No. 96-104, 944 P.2d 1120 (Wyo.1997) (citing Stone, 745 P.2d at 1348). However, factual findings made by the district court on a motion to suppress are not disturbed unless they are clearly erroneous. Evans at 1124. In light of the trial court's opportunity to hear the evidence and assess the credibility of the witnesses, evidence is viewed in the light most favorable to the district court's determination. Witt v. State, 892 P.2d 132, 140 (Wyo.1995) (quoting Wilson v. State, 874 P.2d 215, 218 (Wyo.1994)).

Simmers claims that his confession to the detective was involuntary because it was the

Page 1195

product of police coercion and deception. He contends that he was coerced into confessing by the detective's non-adversarial, friendly interrogation style and by a promise of leniency in sentencing, specifically a mention of the possibility of probation. Simmers also argues that the court improperly applied a reasonable person standard when it determined his statement was voluntary because his impaired mental ability led him to believe he had been promised probation, even though a reasonable person of ordinary intelligence may not have believed he had been promised probation.

The Fifth and Fourteenth Amendments of the United States Constitution and Article 1, Sections 6 and 11 of the Wyoming Constitution require confessions, admissions and statements to be voluntary. See Kolb v. State, 930 P.2d 1238, 1242 (Wyo.1996); Black v. State, 820 P.2d 969, 971 (Wyo.1991); Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964). Satisfying the requirements set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not resolve the question of voluntariness. Evans at 1125. "A confession may be found involuntary because of the means used to obtain it." Id; see also Dice v. State, 825 P.2d 379, 387 (Wyo.1992) (State must prove that statement was not obtained in violation of the Miranda doctrine and that the statement was given voluntarily, citing Colorado v. Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 519, 93 L.Ed.2d 473 (1986)). A coerced confession is considered untrustworthy and cannot be used for any purpose in a trial against the person making the statement. Evans at 1125.

The voluntariness of an accused's statements is determined...

To continue reading

Request your trial
50 practice notes
  • Snyder v. State, S-20-0245
    • United States
    • United States State Supreme Court of Wyoming
    • October 12, 2021
    ...104, 110, 106 S.Ct. 445, 449-50, 88 L.Ed.2d 405 (1985) ; Doyle [v. State ], 954 P.2d [969,] at 972 [(Wyo. 1998)] ; Simmers v. State , 943 P.2d 1189, 1194 (Wyo. 1997) ; [State v. ] Evans , 944 P.2d [1120,] at 1124 [(Wyo. 1997)]. On review, however, we will not disturb the trial court's findi......
  • Pena v. State, No. 03-13.
    • United States
    • United States State Supreme Court of Wyoming
    • October 6, 2004
    ...de novo. Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449-50, 88 L.Ed.2d 405 (1985); Doyle, 954 P.2d at 972; Simmers v. State, 943 P.2d 1189, 1194 (Wyo.1997); Evans, 944 P.2d at 1124. On review, however, we will not disturb the trial court's findings of fact unless clearly erroneous.......
  • Griggs v. State, No. S–14–0200.
    • United States
    • United States State Supreme Court of Wyoming
    • February 2, 2016
    ...and is sensi[tive] to the obligations of the oath taken before testifying.' " Mersereau, ¶ 6, 286 P.3d at 104, quoting Simmers v. State, 943 P.2d 1189, 1199 (Wyo.1997). It is a witness's intelligence, not his age, that determines whether he is competent to testify. Id., citing Baum v. State......
  • People v. Lara, No. 112370.
    • United States
    • Supreme Court of Illinois
    • February 7, 2013
    ...by the corpus delicti rule.” (Emphasis added.) Id. ¶ 85 Another state that has followed this rule is Wyoming. In Simmers v. State, 943 P.2d 1189 (Wyo.1997), the defendant confessed to having three minors, A.B., A.J., and S.S., perform oral sex on him while they attended his mother's day car......
  • Request a trial to view additional results
50 cases
  • Snyder v. State, S-20-0245
    • United States
    • United States State Supreme Court of Wyoming
    • October 12, 2021
    ...104, 110, 106 S.Ct. 445, 449-50, 88 L.Ed.2d 405 (1985) ; Doyle [v. State ], 954 P.2d [969,] at 972 [(Wyo. 1998)] ; Simmers v. State , 943 P.2d 1189, 1194 (Wyo. 1997) ; [State v. ] Evans , 944 P.2d [1120,] at 1124 [(Wyo. 1997)]. On review, however, we will not disturb the trial court's findi......
  • Pena v. State, No. 03-13.
    • United States
    • United States State Supreme Court of Wyoming
    • October 6, 2004
    ...de novo. Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449-50, 88 L.Ed.2d 405 (1985); Doyle, 954 P.2d at 972; Simmers v. State, 943 P.2d 1189, 1194 (Wyo.1997); Evans, 944 P.2d at 1124. On review, however, we will not disturb the trial court's findings of fact unless clearly erroneous.......
  • Griggs v. State, No. S–14–0200.
    • United States
    • United States State Supreme Court of Wyoming
    • February 2, 2016
    ...and is sensi[tive] to the obligations of the oath taken before testifying.' " Mersereau, ¶ 6, 286 P.3d at 104, quoting Simmers v. State, 943 P.2d 1189, 1199 (Wyo.1997). It is a witness's intelligence, not his age, that determines whether he is competent to testify. Id., citing Baum v. State......
  • People v. Lara, No. 112370.
    • United States
    • Supreme Court of Illinois
    • February 7, 2013
    ...by the corpus delicti rule.” (Emphasis added.) Id. ¶ 85 Another state that has followed this rule is Wyoming. In Simmers v. State, 943 P.2d 1189 (Wyo.1997), the defendant confessed to having three minors, A.B., A.J., and S.S., perform oral sex on him while they attended his mother's day car......
  • 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