Simmons v. State

• Decision Date: 29 February 1996
• Docket Number: No. 24932,24932
• Citation: 912 P.2d 217,112 Nev. 91
• Parties: Brian SIMMONS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 217

912 P.2d 217

112 Nev. 91

Brian SIMMONS, Appellant, v. The STATE of Nevada, Respondent.

No. 24932.

Supreme Court of Nevada.

Feb. 29, 1996.

Rehearing Denied May 30, 1996.

William G. Rogers and Mark E. Haines, Carson City, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Robert E. Estes, District Attorney, and Keith Loomis, Special Deputy District Attorney, Lyon County, for Respondent.

OPINION

STEFFEN, Chief Justice.

Appellant Brian Simmons, a friend and high school classmate of murder victim Jason Kopack, challenges his jury convictions of first-degree murder with use of a deadly weapon, burglary, and possession of an explosive device, on Fourth and Sixth Amendment grounds, and also contends that his new trial motion should have been granted because the State suppressed evidence favorable to his defense. Concluding that Simmons' contentions are without merit, we affirm.

FACTS

On the morning of February 23, 1993, fifteen-year-old Jason Kopack was murdered in Lyon County, Nevada. The Lyon County Sheriff's office investigation of the crime scene indicated no signs of a struggle, but the victim's body revealed an oval-shaped wound in the back of the left shoulder. The investigating officers initially believed that Jason had been mortally wounded with a crowbar or blunt instrument and began searching the premises for such an implement. During the course of the investigation, officers contacted Kopack's neighbors for additional clues. One neighbor, a Mr. Bradley, who lived only thirty feet from the victim's trailer, reported that he had heard nothing out of the ordinary during the previous night. There was no written report generated from this interview, and the substance of the conversation with Bradley was not relayed to the defense.

X-rays of the victim revealed the presence of several # 6 shotgun pellets, and plastic wadding from a 20-gauge shotgun was recovered from the body during the subsequent autopsy. Jason had apparently been shot from a distance of two to eighteen feet at around 1:30 a.m., the same time that Jason's father was startlingly awakened by what he thought was wind-related noise or a cat jumping on the roof of a shed.

At school during the morning of the same day, Simmons, who had reportedly become preoccupied with Satanism, mutilation, rape and killing, ¹ attended school and told or suggested to three friends that he had killed Jason. Simmons' friend, Mike O. (hereafter "Mike"), testified that Simmons explained the details of his activities leading up to the shooting, and admitted to Mike O. that he, Simmons, had shot Jason. Another of Mike O.'s acquaintances, Dan, testified that Simmons told him that there were now only four left on the list of five that Simmons had earlier told Dan that he intended to kill. This corroborated Mike O.'s testimony indicating that Simmons had told him, about two weeks before the killing, that Simmons had made a list of five people he planned to kill Another friend by the name of Michael B. had been previously advised in some detail by Simmons of his plans to murder a "long-hair" (the victim had long hair), and that he hoped to do it by staying awake and driving his mother's car to the victim's house if it had enough gasoline. On the same morning, Michael said he saw Simmons approaching and asked him why he was smiling. Simmons told him that he would soon find out. These three witnesses reported Simmons' comments to sheriff's officers. ²

including the victim, Jason. Dan also testified overhearing Simmons tell Mike O. that "I did it, I did it," and that he was so close he could not have missed. In addition, Dan overheard Simmons telling Mike O. that he wanted to tell everybody, but knew that he would be caught if he did.

On February 25, 1993, sheriff's deputies searched Simmons' residence pursuant to a search warrant. In Simmons' closet, they found a recently-fired shotgun containing an expended 20-gauge Federal Firearms # 6 shotgun shell (with a non-Federal primer). ³ They also discovered in a plastic bag wet shoes with a tread design resembling a sheriff's deputy's description of the tread imprinted on the snow near the entry to Jason's trailer. Additionally, the officers seized a pack of filterless cigarettes, a bottle of oil allegedly used in an attempt to burn down the Kopack residence, journals with Satanic symbols, books on Satanism, including the book Witchcraft, and a derringer. The search also uncovered a pipe bomb, which was later disposed of by a bomb squad.

Simmons was subsequently arrested and charged with murder with the use of a deadly weapon, burglary, and possession of an explosive device. Appointed counsel invoked Simmons' Sixth Amendment right not to be questioned without counsel, and a notation to that effect was entered on Simmons' jail folder.

While Simmons was in jail, Simmons' girlfriend, Jessica, and one of his best friends (Mike O.), talked at school. Mike O. testified that Jessica told him that Simmons wanted to talk to him by telephone. After school, Mike O. asked his father what he should do, and his father told him to report the matter to Officer John Arndell at the Lyon County Sheriff's office. The officers, desiring to record Simmons' version of events, obtained judicial approval to intercept the telephone conversation after the court found probable cause to believe that Simmons would discuss In calling from the jail, Simmons knew that the conversation was subject to interception by jail authorities. During his call to Mike O., Simmons professed innocence and vowed revenge against the conspirators who had caused his plight. Apart from threatening people who had gone to the police and speaking in threatening tones, Simmons never made an incriminating remark. He mentioned that only he, Satan and God knew what actually happened. Occasionally, Simmons would question Mike O. on how long someone could survive a gunshot wound or a suffocation or other issues involving death. These somewhat desultory statements were uttered after Simmons perused the coroner's reports. Simmons appeared to be trying to contrast facts that he believed were inconsistent with his arrest. Aside from these remarks, the conversation was a typical one between two friendly teenagers. ⁴

                the pending charges.  Mike O. testified that he consented to the intercept "[t]o see--in case [Simmons] said anything about Jason, and just for my protection and my family's protection."   Mike O., his father and Officer Arndell testified that Mike O. was told that he did not have to accept Simmons' call and that no agreement concerning lenient treatment for Mike O.'s prior substance abuse convictions was ever mentioned.  Prior to the conversation, Officer Arndell instructed Mike O. not to intentionally seek to obtain incriminating evidence from Simmons, but rather to just be a listening post.  During the conversation, however, Officer Arndell did nothing to restrain Mike O. from eliciting incriminating information
                

Before trial, Simmons moved to prohibit the State from admitting the recorded telephone conversation in evidence. Simmons insists that the State knowingly violated his Sixth Amendment right to counsel by recording the conversation. Specifically, Simmons underscores the first excerpt where Mike O. states, "Did Jason move or anything?" as an example of Mike's effort to elicit incriminating information.

The district court denied Simmons' motion, finding that: (1) the State's involvement with Mike O. was not sufficient to create an agency relationship; (2) there was no agreement between the State and Mike O.; (3) the State did not instruct Mike O. to elicit information from Simmons; (4) Mike O. voluntarily chose to receive Simmons' call, and (5) Mike O. never elicited incriminating information during the intercepted communication. Therefore, the district court concluded that Simmons did not show that the statements were deliberately elicited from Simmons by an agent of the State.

In closing argument, the State used the conversation to depict Simmons as threatening and anxious to inflict punishment on those who conspired to put him in jail. Additionally, the State posited to the jury:

[I]s that tone that you heard on that conversation, is that consistent with an innocent boy wrongfully accused of a serious crime? Absolutely not. That tone is consistent with a person who has committed a murder and is doing everything he can to desperately work his way out of it.

Simmons also sought, unsuccessfully, to have the district court suppress all items taken from his home, including the book Witchcraft, from which the State read excerpts at trial to demonstrate that Simmons was involved in Satanistic rituals. In denying Simmons' motion to suppress, the district court found that all items had been properly seized and removed from Simmons' house and that the book Witchcraft was both in plain view and constituted relevant evidence.

At trial, Simmons did not deny telling his friends of his "hit" list, but testified that he referred to the names on the list only as characters in the game "Dungeons and Dragons." He insisted that all of his talk about Satan and Satanism was also simply part of the game. Simmons also testified that his friends lied about him telling them that he killed Jason.

During trial, the State informed the defense, for the first time, that a video tape Soon after the jury commenced its deliberations, the jurors submitted a note to the judge asking, "Did anyone hear the dog barking the night of February 23 in the area of the KOPACK residence?" The court discussed the question with counsel and all agreed that the question would not be answered. After deliberating for a total of ninety minutes, the jury found Simmons guilty of all charges.

recording of the crime scene had been made on the morning of Jason's death. This tape was admitted into evidence and, among other things, the judge noted the sounds of dogs barking...