State v. Simmons

• Decision Date: 14 June 2004
• Docket Number: No. 25838.,25838.
• Citation: 360 S.C. 33,599 S.E.2d 448
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Kenneth SIMMONS, Appellant.

360 S.C. 33

599 S.E.2d 448

The STATE, Respondent, v. Kenneth SIMMONS, Appellant.

No. 25838.

Supreme Court of South Carolina.

Heard April 6, 2004.

Decided June 14, 2004.

Rehearing Denied August 9, 2004.

Assistant Appellate Defenders Robert M. Dudek and Eleanor Duffy Cleary, of South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, of Columbia; and Solicitor Walter M. Bailey, of Summerville, for respondent.

Acting Justice KITTREDGE:

Kenneth Simmons was convicted of murder, first degree burglary, armed robbery, and first degree criminal sexual conduct. He was sentenced to death and given consecutive sentences of life and two thirty-year terms on the remaining charges. We reverse the conviction and sentence for armed robbery, but otherwise affirm Simmons' convictions and sentences.

FACTS

On September 1, 1996, the battered body of an eighty-nine-year-old female, whom we will refer to as Ms. B,¹ was found bound and gagged on the kitchen floor of her home in Summerville. She had been raped, severely beaten, and strangled.

The crime went unsolved for more than a year until December 1997 when Simmons, who was incarcerated on other charges, confessed to the killing. He said he smoked crack and drank beer at a club before riding his bicycle home in the early morning hours on the day of the murder. Simmons saw Ms. B in her yard feeding her chickens and followed her into her house. Simmons pushed her and demanded money. Ms. B fell to the floor and hit her head. Simmons then hit her with a stick he had picked up on the back porch. He described the stick as being about two feet long and an inch and a half or two inches in diameter. Simmons raped Ms. B. She was "half and half" alive when he fled the scene.

The State's pathologist testified Ms. B died from blunt trauma and manual strangulation. She had multiple rib fractures caused by stomping or slamming, severe head trauma, and severe vaginal lacerations from the insertion of an object such as a stick or finger. She had semen in her vagina and also in her mouth. DNA testing indicated the semen taken from Ms. B's body was consistent with Simmons' DNA.

The jury found aggravating circumstances of criminal sexual conduct, kidnapping, armed robbery, physical torture, and burglary, and sentenced Simmons to death.

ISSUES

1. Did the State violate Doyle v. Ohio?

2. Was a juror improperly dismissed after the trial had begun? 3. Did the trial judge err in refusing to charge robbery as a lesser-included offense of armed robbery?

4. Was rebuttal evidence improperly excluded in the penalty phase?

DISCUSSION

1. Doyle v. Ohio

Because the State's case rested largely on Simmons' confession, the defense strategy during the guilt phase was to introduce expert testimony that Simmons was not mentally capable of understanding and waiving his Miranda² rights.

Dr. Jeffrey Vidic, a psychologist at the William S. Hall Institute,³ along with Dr. Thomas Behrman, a psychiatrist also employed at the Hall Institute, attempted to evaluate Simmons for competency on November 23, 1998. Drs. Vidic and Behrman testified as defense witnesses. Dr. Vidic was not satisfied Simmons possessed the ability to comprehend his Miranda warnings and therefore the competency exam could not proceed as planned. Dr. Vidic stated he could not formulate an opinion to a reasonable degree of certainty whether Simmons actually understood his rights or whether he was "malingering an inability to understand his rights." Dr. Behrman's testimony lent further support to Simmons' position, for he stated, based on his November 23 observations, that Simmons was not "able to explain his rights ... in a sufficient or meaningful fashion." Dr. Behrman specifically opined that on November 23 Simmons "lacked the ability to waive his rights for the purpose of the evaluation."

On cross-examination, Dr. Vidic testified over Simmons' objection that immediately after the aborted November 23 competency exam, he left a note for his intern, Ms. Skaggs, asking her to administer psychological tests to Simmons during a lunch break. The psychological testing requested by Dr. Vidic did not involve the facts of the case. Simmons refused to cooperate with the testing administered by Ms. Skaggs, invoking his "right" to speak with his lawyer. The State elicited this testimony in response to Simmons' position that he lacked the ability to understand and exercise the Miranda warnings and rights.

On appeal, Simmons argues the trial court erred in allowing the prosecutor's cross-examination in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). We disagree.

Doyle holds that the Due Process Clause prohibits the government from commenting on an accused's post-Miranda silence. Doyle rests on "the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial." South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). This same concept of fundamental unfairness prohibits the government from using a defendant's post-Miranda silence as proof of sanity to overcome an insanity defense. Wainwright v. Greenfield, supra; see also State v. Smith,

290 S.C. 393, 350 S.E.2d 923 (1986).

Doyle does not, however, create a per se rule requiring exclusion from evidence of a defendant's post-arrest, post-Miranda silence in all circumstances. As the Doyle court recognized:

It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest.

Id. at 619, n. 11, 96 S.Ct. 2240.

In Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), the Court further clarified Doyle:

Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.

447 U.S. at 408, 100 S.Ct. 2180. Other courts have found the Supreme Court's holding in Charles is not limited to situations involving inconsistent statements. See Splunge v. Parke, 160 F.3d 369 (7th Cir.1998)

(initial silence used to show police scrupulously honored defendant's rights); Allen v. State, 686 N.E.2d 760 (Ind.1997) (refusal to give written statement after oral statement used to show rights respected); Commonwealth v. Waite, 422 Mass. 792, 665 N.E.2d 982 (1996) (reassertion of silence used to show context in which questioning ended); State v. Correia, 707 A.2d 1245 (R.I.1998) (same).

The underpinnings of Doyle, and the need for its application, are diminished where a defendant waives his right to silence. Here, Simmons did not remain silent "as to the subject matter of his statements." Simmons, following a waiver of his Miranda rights, confessed to the murder of Ms. B in December 1997. Following the lone invocation of his right to remain silent in the context of the November 23, 1998, competency evaluation, Simmons again waived his Miranda rights and cooperated with a January 1999 evaluation. In this regard, in response to the defense strategy centered on Simmons' purported inability to comprehend the Miranda warnings, the State's targeted and narrow use of Simmons' recognition and exercise of his "right" to speak with counsel did not breach the implied assurance contained in Miranda. Simmons asserted his right to silence only in the context of the November 23 psychological examination. The limited evidence of Simmons' silence in this context was not "designed to draw meaning from silence" regarding the substantive crime and therefore does not violate Doyle. Charles, 447 U.S. at 409,

100 S.Ct. 2180.

This case is distinguishable from Greenfield. In Greenfield the evidence of the defendant's silence was used as substantive evidence of guilt in the prosecution's case-in-chief because the defendant pled not guilty by reason of insanity. Here, the evidence of Simmons' silence was not offered as substantive evidence of guilt but as evidence of malingering to rebut his claim that he was incapable of understanding his Miranda rights.

We thus conclude the State's use of evidence of Simmons' silence did not violate the fundamental fairness standard of Doyle.

2. Dismissal of juror

After jury selection, the trial judge informed the jury about sequestration and repeatedly admonished the jury not to discuss the case with anyone. Contact by jurors with family members, by telephone or otherwise, was to be monitored by the SLED team in charge of security and sequestration.

Before the end of the guilt phase, information regarding Juror C was brought to the court's attention. The trial judge noted for the record:

Captain Polk of SLED received a call from the wife of [Juror C] at which time the lady revealed to him that she was very concerned because she realized that the sister of the defendant, Kenneth Simmons, lived across the street from a piece of property that they owned on Congress Street in the Town of Summerville. And in the event that the jury returned a verdict of guilty or imposed the death penalty and they were going to build on a vacant lot across the street from the defendant's sister that it would perhaps cause consternation, fear, concern, or whatever.

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