PLEASE NOTE - The following is an excerpt from the petition filed in Federal District Court on behalf of Christopher Simmons.





FOURTH CLAIM FOR RELIEF

The confession of Christopher Simmons was involuntary and unconstitutionally obtained after interrogating officers:

(a) told Christopher that if he invoked his right to remain silent, the officer would testify about his refusal in court;
(b) refused to cease questioning Christopher after he told officers he did not want to talk;
(c ) promised Christopher leniency by telling him he was facing the death penalty but things would go better for him if he confessed; and
(d) for two hours continuously yelled at Christopher from within one foot of his face, repeatedly called him a liar, and eventually brought the seventeen year old high school student to tears,

all in violation of Christopher's rights to due process and the privilege against self-incrimination guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.

On September 10, 1993, five police officers in two patrol cars went to Fox High School and arrested Christopher Simmons, a seventeen year old student (Supp. Tr. 29, 47, 48). The officers restrained Christopher with handcuffs and put him in a patrol car (Supp. Tr. 31-32). The officers told him that he was under arrest and recited his Miranda rights (Supp. Tr. 31,33).

Once they arrived at the Police Station, three detectives entered an interrogation room where they screamed, lied, and misled Christopher in order to get the seventeen year old to confess (Supp. Tr. 49-50, 51, 52, 53-55, 67-83). For nearly two hours, the officers questioned Christopher, yelling into his face from a foot away to make him "uncomfortable" (Supp. Tr. 81, 50, 51, 52, 67, 83). They repeatedly called him a liar (Supp. Tr. 51, 52, 67, 83).

The detectives intentionally misled Christopher and lied to him during the interrogation, saying codefendant Charles Benjamin had been arrested (Supp. Tr. 53-55). Detective Shane Knoll looked at his watch and suggested the Benjamin was confessing (Supp. Tr. 49-50).

During the three detectives' interrogation, their commander, Lieutenant Edward Robertson entered the room and introduced himself (Supp. Tr. 58, 60-61, 64-65, 67-68, 85). The commander told Christopher that he was facing the death penalty and it would be in his "best interest" to cooperate and tell the truth (Supp. Tr. 58, 60, 61, 64-65, 85).

After the commander left, Knoll told Christopher to remember what Robertson told him (Supp. Tr. 86, 93). Knoll repeatedly warned Christopher he was facing the death penalty and it would be "best" or "better" for him if he talked and admitted his involvement (Supp. Tr. 58, 59, 62, 68, 69, 84).

The other two detectives also assured Christopher that it would be better for him to talk (Supp. Tr. 84-85).

Detective Knoll maintained that the officers had "read" Christopher his "rights" in the patrol car (Supp. Tr. 33), before they interrogated him (Supp. Tr. 34-37) and before the videotaped statement (Supp. Tr. 46). Indeed, they even had an advice of rights form, which they read and asked Christopher if he understood (Supp. Tr. 67-69).

Christopher initialed and signed the advice of rights form (Supp. Tr. 70), even though Knoll later admitted that the videotape shows Christopher shaking his head affirmatively when asked if he was "pressured" and negatively when asked if he was given the statement "freely" (Supp. Tr. 76-79).

Indeed, Christopher told officers he did not want to tell them anything (Supp. Tr. 56-57, 74). Nevertheless, they continued questioning him.

In spite of informing Christopher of these so-called "rights", Detective Knoll admitted that he told Christopher that if he chose to lie and not tell the truth and went to court, Knoll would get on the witness stand and would testify that during the interrogation, Christopher had denied any involvement (Supp. Tr. 70-71). Knoll told Christopher that if he did not confess and tell the truth, it might hurt him in court (would be used against him) (Supp. Tr. 71).

Finally, Christopher did confess to the crime (Supp. Tr. 39-45).

The threats to use his right to silence against him, promise of leniency and coercive tactics rendered Christopher's confession involuntary. Christopher, a seventeen year old, with no prior criminal history cried as the officers repeatedly badgered and threatened him (Supp. Tr. 77-79).

In the face of repeatedly being threatened with death, Christopher relied on the detectives' assurances that it would be "better" for him to confess (Supp. Tr. 58, 59, 62, 68, 69, 84, 85). Under all of the circumstances, Christopher's confession was involuntary.

The right to due process insures that a conviction will not be founded upon an involuntary confession. Jackson v. Denno, 378 U.S. 368, 376 (1964); State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986). The Fifth Amended privilege against self-incrimination applies to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964).

In Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), the Court recognized the fundamental importance of the Fifth Amendment and held that all suspects must be informed of their right to remain silent and their right to an attorney before being questioned by law enforcement officials.

Even more problematic is Officer Knoll's admission that when he questioned Christopher, he told him that if he did not tell the truth and confess (exercised his right to remain silent) and went to court, Knoll would get on the witness stand and testify about his denying any involvement (Supp. Tr. 70-71). Knoll even went so far as to say that if Christopher did not confess, it might hurt him in court (Supp. Tr. 71).

This interrogation was in direct violation of Miranda and violated Christopher's right to remain silent.

The record is uncontroverted -- after warning Christopher that he was facing the death penalty, officers told him that things would go "better" for him if he talked and admitted his involvement (Supp. Tr. 58, 59-62, 68, 69, 84, 85). Not one officer, but all three detectives and their commanding officer gave this assurance (Supp. Tr. 58, 59-60, 61, 62, 64-65, 68, 59, 84, 85). The only possible conclusion was that if he confessed he would not receive the death penalty.

This promise of leniency, "you're facing the death penalty and things will be better for you if you cooperate and confess," invalidates the subsequent confession as an involuntary act.

The threat to use the exercise of his right to silence against him and promise of leniency both should render Christopher's confession involuntary. But even if this Court does not find the threat or promise sufficient, all of the circumstances establish that under the totality of the circumstances Christopher Simmons' confession was involuntary. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (setting forth totality of circumstances test).

Christopher was young, only seventeen years at the time of the interrogation. He was only a high school student who was failing and ranked at the bottom of his class (Supp. Tr. 29, 47, 48; M.L.F. 332; H. Tr. 601-02).

Perhaps, even more compelling than his youth and lack of education was his lack of experience with the criminal justice system. He had no criminal history. Therefore, he was not experienced with police officers and was unfamiliar with his constitutional rights.

Another factor was the lack of valid or legitimate advice of his constitutional rights. Unquestionably, the record shows a formal reading of his Miranda rights. However, Officer Knoll admitted that he told Christopher that if he exercised his right to remain silent, the officers could testify about the interrogation and use his silence against him. This warning was directly contrary to the Miranda warnings, and at the very least, must have made the rights confusing and not understandable.

The length of detention is also a factor to be considered. Here, Christopher, after having been handcuffed and arrested, was interrogated for nearly two hours. This detention combined with the repeated and coercive tactics used in the questioning also show the confession was involuntary.

The coercive activity here included threats to use his silence against him and promises of leniency. The repeated threats that he was facing the death penalty were also improper attempts to intimidate. Arnett v. Lewis, 870 F.Supp. 1514, 1537 (D. Ariz. 1994). Three detectives yelled at him, calling him a liar when he maintained his innocence. They got in Christopher's face, less than one foot away. The detectives intentionally misled him, telling him lies. All of these coercive tactics were for one purpose, to extract a confession from Christopher.

As interrogators turn to subtle forms of psychological persuasion, mental condition is more significant in voluntariness calculation. Colorado v. Connelly, 479 U.S. 157 (1986). When all the factors are combined, the unmistakable conclusion is that Christopher's confession was involuntary.

In Arizona v. Fulminante, 499 U.S. 279 (1991), the Court found that the harmless error standard of Chapman v. California, 386 U.S. 18, 24 (1967) applies to coerced confessions. Under that standard, a reviewing court must be able to declare a belief that admission of the confession was harmless beyond a reasonable doubt. Fulminante, 499 U.S. at 296. "A confession is like no other evidence." Id. It is the most probative and damaging evidence that can be admitted against a defendant. Id. It has a profound impact on a jury. Id. Once a jury hears a confession, it cannot realistically disregard it. Id.

Here, the coerced confession was relied upon by the state to obtain its conviction. The state argued it at length in its closing argument (T.Tr. 1013, 1014, 1016, 1035, 1037). The only details of exactly how the crime was committed came from the confession.

The confession provided vital support for the aggravator that the victim was killed because she knew Christopher, saw his face and thus to prevent his lawful arrest (T.Tr. 1037, 1133-34). The prosecutor told the jury that the statement supported the aggravator and thus, death (T.Tr. 1133-34).

Without the confession, the state would have been left with the testimony of Brian Moomey and John Tessmer, two witnesses whose credibility was severely attacked (T.Tr. 842-73, 974-84). Moomey, a 29 year old convicted felon, hung out with kids, supplying them with drugs and alcohol (T.Tr. 836-37, 843, 848). He got drunk every night, often passed out and had memory problems (T.Tr. 839, 834-44, 845).

Tessmer was Moomey's best friend and admitted doing drugs and drinking with him (T.Tr. 975-76). Unlike Christopher, Tessmer had a criminal record (T.Tr. 980). He had threatened to kill a woman by threatening to shoot her in the head with a pistol (T.Tr. 980). When he testified, he was on probation for breaking into someone's house (T.Tr. 980). He was concerned that if he did not provide favorable testimony for the state he could be charged with conspiracy to murder (T.Tr. 982-83).

Even with Christopher's confession, the jury took four hours to deliberate and find Christopher guilty (T.Tr. 1049, 1050). Therefore, this Court cannot declare a belief, beyond a reasonable doubt, that admission of Christopher's confession was harmless.

Unquestionably, the confession was prejudicial in penalty phase. It was the sole evidence used by the state to support the aggravator, to prevent lawful arrest (T.Tr. 1037, 1133-34). Cf. United States v. McCullah, 76 F.3d 1087, 1102 (10th Cir. 1996) (erroneous admission of coerced confession was harmless in guilt phase, but not harmless in penalty phase). As a result, his conviction should be reversed, the cause remanded for a new trial in which the involuntary confession is not admitted. Alternatively, a new penalty phase should be granted.

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