Simmons v. State

• Decision Date: 15 July 2003
• Docket Number: No. 01-250.,01-250.
• Citation: 72 P.3d 803,2003 WY 84
• Parties: James Lynn SIMMONS, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

72 P.3d 803

2003 WY 84

James Lynn SIMMONS, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-250.

Supreme Court of Wyoming.

July 15, 2003.

Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel, Representing Appellant.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney

General; and Sean W. Scoggin, Special Assistant Attorney General, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] A jury convicted James Simmons, Jr. of child abuse and intimidating a witness. Mr. Simmons appeals, claiming prosecutorial misconduct, insufficiency of the evidence, and denial of a fair trial because of remarks made by a spectator during a witness' testimony and because the jury saw him in shackles. We hold the prosecutor's repeated attempts to introduce evidence of prior bad acts combined with his repetition of the inaudible testimony from the state's prime witness constituted prosecutorial misconduct requiring reversal and remand for a new trial.

ISSUES

[¶ 2] Mr. Simmons raises the following issues:

I. Did the trial court err in forcing [Mr. Simmons] to walk to the witness stand, in front of the jury, while shackled, after defense counsel had requested a brief recess to unshackle [him], when the crux of the trial court's "reason" for doing so was that the trial was moving too slowly and [Mr. Simmons'] trial counsel should have made the request sooner?

II. Was [Mr. Simmons] denied a fair trial, and therefore due process of law, when a courtroom spectator audibly called one of the defense witnesses a "liar" as the defense witness testified, and the trial court did nothing to cure the problem?

III. Did the prosecutor commit misconduct by violating the trial court's pretrial order, referencing juvenile conduct of [Mr. Simmons], questioning the alleged victim... about unnoticed prior bad acts of [Mr. Simmons], arguing [Mr. Simmons'] character as a reason to convict and repeatedly leading the alleged victim-witness ... throughout the course of her testimony (and repeating her answers to the jury)?

IV. Was there insufficient evidence to convict [Mr. Simmons], given the manner in which the jury was instructed?

The state restates the issues as follows:

I. Whether [Mr. Simmons] was prejudiced by walking to the witness stand in front of the jury while shackled?

II. Whether [Mr. Simmons] was denied a fair trial when a courtroom spectator whispered "liar" to her husband as a defense witness testified?

III. Did the prosecutor commit prejudicial misconduct when he asked questions regarding [Mr. Simmons'] prior bad acts and when he repeated the answers of a witness during direct examination?

IV. Was there sufficient evidence to convict [Mr. Simmons], in light of the manner in which the jury was instructed on the elements of the crimes with which he was charged?

FACTS

[¶ 3] Mr. Simmons and his girlfriend, Natalia Bradford, are the parents of two young children: a boy, B.S.; and a girl, A.S. At the time of the events giving rise to this case, B.S. was twenty months old, and A.S. was three years old. In the late morning of March 29, 2001, a neighbor came to Mr. Simmons' apartment in Casper. B.S. met her at the door. The neighbor noticed bruises on B.S.'s face and dried blood around his lips and ear. She asked Ms. Bradford what happened. Receiving no response, the neighbor took the children upstairs to her apartment. Once upstairs, she and her husband noticed more bruising on B.S.'s body. They telephoned the Department of Family Services (DFS). Sometime later, two police officers arrived along with Joanne Robinson, an investigator from DFS. In the meantime, Ms. Bradford had retrieved the children and taken them back downstairs.

[¶ 4] The officers and Ms. Robinson went to Mr. Simmons' apartment, observed B.S., and questioned Mr. Simmons about the bruises on the boy's forehead and back. The testimony concerning Mr. Simmons' response was somewhat inconsistent. Ms. Robinson testified Mr. Simmons told her B.S. fell down a lot, hitting his head and back. John Hatcher, a Casper police officer, testified Mr. Simmons said B.S. threw a fit the night before in which he flung himself down onto the floor and hit his head on a toy. Law enforcement took the boy into protective custody and turned him over to DFS. Ms. Robinson took him to the hospital where he was examined by Mel Meyer, the emergency room physician. Dr. Meyer's report reflected the following assessment of B.S.'s condition: dehydration, multiple contusions/abrasions, prominent subarachnoid space, and neglect/abuse. Dr. Meyer testified B.S. had suffered nonaccidental trauma, meaning the bruises were not the result of falling down. He also testified the subarachnoid space was consistent with previous trauma.

[¶ 5] Patrick Carr, the lead detective on the case, arrived at the hospital while B.S. was being examined. Officer Carr spoke to Mr. Simmons, who was in the hospital waiting room. Mr. Simmons told Officer Carr that B.S. fell down a lot and had tantrums in which he banged his head against the wall. Officer Carr asked Mr. Simmons if he would come down to the police station for a more thorough interview. Mr. Simmons agreed. An interview was conducted at the police station, and Mr. Simmons again denied causing B.S.'s injuries.

[¶ 6] The next morning, Officer Carr interviewed Ms. Bradford, who initially told him the same story as Mr. Simmons. Toward the end of the interview, however, she said Mr. Simmons had on occasion put B.S. in the corner and held his head against the wall and had done so on March 28, 2001. In addition, after initially denying that Mr. Simmons ever spanked the boy, she changed her story and said he had spanked B.S. in the past. She also advised the officer that she was planning to leave Mr. Simmons.

[¶ 7] Officer Carr then interviewed Mr. Simmons again who was initially cooperative and willing to answer questions. During this interview, Officer Carr confronted Mr. Simmons with the new information obtained from Ms. Bradford. Mr. Simmons said he did put B.S. in the corner but did not do so forcefully and he held him by his shoulders, not his head. He also admitted spanking B.S. on his diaper. When Officer Carr asked him about Ms. Bradford's plans to leave him, Mr. Simmons said he did not wish to speak anymore and requested an attorney. Officer Carr concluded the interview and placed Mr. Simmons under arrest.

[¶ 8] The following Monday, Ms. Bradford came back to the station and asked to speak with Officer Carr. During this interview, she told him she lied during the previous interview because Mr. Simmons had threatened to kill her if she told the truth. Now that he was in jail, she said she felt safe in coming forward with the truth. She said Mr. Simmons was coming down from "cranking" on March 28, 2001, they got into a fight, and he began hurting B.S. She said Mr. Simmons forced B.S. into the corner and, whenever the boy turned or tried to walk away, Mr. Simmons grabbed him by the head and forced him back, holding his forehead against the walls. She further reported Mr. Simmons repeatedly grabbed B.S., picked him up, and threw him on the bed. She also said he kicked the boy in the stomach when he was down on the floor. She told Officer Carr that, when she tried to intervene, Mr. Simmons hit her and pulled out a clump of her hair.

[¶ 9] Mr. Simmons was charged with child abuse, intimidating a witness, and battery. The latter two charges were based upon Ms. Bradford's allegations that Mr. Simmons threatened to kill her if she told the truth and hit her when she attempted to intervene in his abuse of B.S. Mr. Simmons was tried before a jury beginning July 30, 2001. On August 1, 2001, the jury found Mr. Simmons guilty of child abuse and witness intimidation and acquitted him of battery. The trial court sentenced him to serve two consecutive terms of not less than forty-eight months nor more than sixty months in the Wyoming State Penitentiary.

DISCUSSION

A. Prosecutorial Misconduct

[¶ 10] Mr. Simmons contends prosecutorial misconduct occurred at several stages during the trial. He claims the prosecutor repeatedly solicited prohibited testimony concerning prior bad acts, improperly referred to prior bad acts during his closing argument, and committed misconduct by repeating Ms. Bradford's testimony in response to his questions. Mr. Simmons asserts the cumulative effect of these instances of misconduct denied him a fair trial.

[¶ 11] Looking first to the assertion that the prosecutor solicited testimony of prior bad acts, we find the following relevant facts in the record. Prior to trial, defense counsel filed a motion asking the state to provide notice of its intent to introduce evidence of prior bad acts under W.R.E. 404(b). The record contains no such notice, leaving us to conclude the state did not notify the court or the defense that it intended to introduce such evidence. Although there are references by the trial court to pretrial rulings prohibiting evidence of prior bad acts, we have been unable to locate any such ruling in the record before us.

[¶ 12] At trial, during the state's redirect examination of Ms. Bradford, the following exchange occurred:

Q Was he on probation in Texas?

[DEFENSE COUNSEL]: Objection, Your Honor, I don't know how this is relevant.

THE COURT: I'll sustain on relevancy.

. . . .

Q Now, had you related the incident that occurred on March 28th, was there any other incident where the Defendant had attacked you in that manner?

[DEFENSE COUNSEL]: Objection, Your Honor. We're once again going beyond the scope of the original direct and now we're going into matters that could be 404(b) evidence of prior bad acts that hadn't been noticed.

[PROSECUTOR]: Your Honor, I think I made the same objection, her

...