State v. Tiffany Lynn Simmons

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 6, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP22-CR Cir. Ct. No. 2016CF2778

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TIFFANY LYNN SIMMONS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: CAROLINA STARK, Judge. Affirmed.

Before Brash, P.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Tiffany Lynn Simmons appeals the judgment
entered on her guilty pleas to first-degree intentional homicide and kidnapping, as
No. 2020AP22-CR

a party to the crimes.1 Her sole claim on appeal is that the circuit court erred when
it denied her suppression motion. See WIS. STAT. § 971.31(10) (2019-20).2 We
disagree and affirm the judgment.

I. BACKGROUND

¶2 The State charged Simmons with first-degree intentional homicide,
hiding a corpse, and kidnapping, all as a party to a crime. The complaint alleged
that Simmons and her boyfriend, Shanta Pearson, kidnapped and murdered Tess
White and then burned the corpse. White’s burned remains eventually were found
in a field in South Dakota. Simmons and Pearson fled to Colorado, where they
were arrested following a traffic stop.

¶3 After being taken into custody, Simmons and Pearson were
interviewed by officers on June 8, 2016. Simmons subsequently sought to
suppress her statements.

¶4 During the suppression hearing, Detective Heather Stuettgen and
Detective Caleb Porter testified. Detective Stuettgen testified that the police began
the interview with Simmons by reading her rights under Miranda v. Arizona, 384
U.S. 436, 473-74 (1966), and Simmons indicated that she understood them.
Simmons invoked her right to silence and the police officers immediately stopped
questioning her. Simmons was returned to her cell.

1
The Honorable Carolina Stark entered the judgment of conviction. The Honorable
Jeffrey A. Conen denied Simmons’ suppression motion.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP22-CR

¶5 Detective Porter testified that Pearson waived his Miranda rights
and told officers that he would confess only if he and Simmons were in the same
room. After determining that more than two hours had passed from the time
Simmons’ interview had ended, the police then brought her into the same room as
Pearson. Detective Porter explained that he felt that bringing Simmons into the
same room as Pearson “was the best way to continue questioning” Pearson and get
his confession. Thus, Detective Porter “honor[ed Pearson’s] request to have
Tiffany Simmons brought into the same room[.]” Detective Porter acknowledged
that at the same time, he was “attempting to reinitiate the questioning of”
Simmons.

¶6 The detectives who were interviewing Pearson were not the same
ones who had initially interviewed Simmons. When Simmons was brought to the
room, Detective William Sheehan advised her of her Miranda rights, and
Simmons again said she did not want to answer questions. According to Detective
Porter, at that point, Pearson looked at her “and in a questioning manner said,
‘No?’” Simmons asked him what he wanted to do. He responded that “he was not
going to be confessing without her, and then he asked her what she wanted to do.”
According to Detective Porter, “that went back and forth until finally she said,
‘Fine, I’ll talk.’” He testified that the exchange between Pearson and Simmons
lasted approximately twenty seconds.

¶7 After Simmons said she would talk, the police did not read her
Miranda rights again. Instead, Detective Porter said, “You know your rights. Do
you want to make a statement?” Simmons agreed that she was willing to speak
with the officers who then proceeded to question both she and Pearson. Both of
them provided incriminating statements, and Simmons admitted killing White.

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No. 2020AP22-CR

¶8 The circuit court denied the motion to suppress, concluding that
police did not violate Simmons’ Fifth Amendment rights. The court found that
Simmons was brought into the room with Pearson more than two hours after she
initially invoked her right to silence, that after she was in the room with Pearson,
she again invoked her right to silence, and that there was a “20-second timeframe”
between that invocation and when she agreed to talk to police. By bringing the
two suspects into the room together, the court found “the main focus” was to get
Pearson’s confession. The court additionally found “that either Mr. Pearson was
going to give the entire confession as a result of meeting with Ms. Simmons” in
the same room, or admit that he was “a major participant” in the crime. Bringing
Simmons into the same room as Pearson was “driven by Mr. Pearson,” and the
fact that police obtained Simmons’ voluntary confession was a “super bonus.”

¶9 After the circuit court denied her suppression motion, Simmons pled
guilty to first-degree intentional homicide and kidnapping.

II. DISCUSSION

¶10 On appeal, Simmons challenges the denial of her motion to suppress.
“We apply a two-step standard of review when reviewing a motion to suppress.
First, we review the circuit court’s findings of fact, and uphold them unless they
are clearly erroneous. Second, we review de novo the application of constitutional
principles to those facts.” State v. Martin, 2012 WI 96, ¶28, 343 Wis. 2d 278, 816
N.W.2d 270 (emphasis added, citations omitted).

¶11 “Both the United States and Wisconsin Constitutions protect persons
from state compelled self-incrimination.” State v. Cummings, 2014 WI 88, ¶46,
357 Wis. 2d 1, 850 N.W.2d 915 (citation omitted); see also U.S. CONST. amend.
V; WIS. CONST. art. I, § 8. “The critical safeguard of the right to silence is the

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right to terminate questioning by invocation of the right to silence.” State v.
Hartwig, 123 Wis. 2d 278, 284, 366 N.W.2d 866 (1985).

¶12 A suspect’s right to remain silent includes both the initial right to
remain silent and the right to cut off questioning. State v. Markwardt, 2007 WI
App 242, ¶24, 306 Wis. 2d 420, 742 N.W.2d 546. If the right is unequivocally
asserted, police must “scrupulously” honor a suspect’s decision to “cut off
questioning.” See id., ¶¶24, 26. “If the suspect does not unambiguously invoke
his or her right to remain silent, the police need not cease their questioning of the
suspect.” Id., ¶28. Further, questioning can start again if the suspect reinitiates
communication with police. See Edwards v. Arizona, 451 U.S. 477, 484-85
(1981).

¶13 In Michigan v. Mosley, 423 U.S. 96 (1975), the United States
Supreme Court set forth several factors to analyze whether the resumption of
questioning was permissible. See id. at 104-07. The Mosley factors are:

(1) The original interrogation was promptly terminated.
(2) The interrogation was resumed only after the passage of
a significant period of time. (In Mosley it was two hours).
(3) The suspect was given complete Miranda warnings at
the outset of the second interrogation. (4) A different
officer resumed the questioning. (5) The second
interrogation was limited to a crime that was not the subject
of the earlier interrogation.

Hartwig, 123 Wis. 2d at 284. The factors do not constitute a rigid test; instead,
they provide a framework for determining whether the right to silence was
scrupulously honored. See id. at 284-85.

¶14 We conclude that the Mosley factors support the conclusion that
police scrupulously honored Simmons’ right to silence. First, police promptly
terminated the original interrogation of Simmons after she invoked her right to

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silence. Second, a significant period of time—more than two hours—passed
between Simmons’ first invocation and when officers brought her into the room
with Pearson. The third and fourth factors are met because Simmons was given
her Miranda warnings again; she stated, “All right, I’ll talk”; Detective Porter then
reminded her of her rights; and she was questioned by different officers than those
who conducted the first interrogation.

¶15 While the fifth Mosley factor was not met, that is not determinative
of whether Simmons’ right to silence was scrupulously honored. See State v.
Bean, 2011 WI App 129, ¶¶30-31, 337 Wis. 2d 406, 804 N.W.2d 696 (concluding
that the fact that fifth Mosley factor was not met did not mean defendant’s right to
silence was not scrupulously honored, when all other factors were met). “It is not
determinative, absent other evidence of police overbearing or coercive tactics, that
all of the Mosley factors were not satisfied.” State v. Turner, 136 Wis. 2d 333,
360, 401 N.W.2d 827 (1987). There is no evidence of police overbearing or
coercive tactics here.

¶16 We additionally reject Simmons’ contention that the police violated
her right to silence at the joint interrogation when, after her invocation, the officers
allowed Pearson to speak with her. She likens the police conduct in this case to
the police conduct at issue in United States v. Lafferty, 503 F.3d 293 (3rd Cir.
2007).

¶17 In that case, Lafferty’s boyfriend told police that if he and Lafferty
could talk privately, they would tell police about the crime at issue and that he and
Lafferty wanted to speak to police together. Id. at 297. Before questioning them
together, police read them both their Miranda rights, but Lafferty did not waive
her rights. Id. During the joint questioning, Lafferty’s boyfriend incriminated

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No. 2020AP22-CR

himself and Lafferty. Id. Lafferty “was silent for the most part, … [but] did
respond to questions directly addressed to her,” and she “occasionally explained
and/or clarified answers that [her boyfriend] gave, and indicated that she agreed
with some of [his] answers[.]” Id. The Third Circuit court held that police did not
scrupulously honor Lafferty’s right to remain silent “inasmuch as Lafferty did not
join in any of [her boyfriend]’s requests or express her willingness to be
interrogated after asserting the privilege.” Id. at 305.

¶18 In contrast to Lafferty, Simmons, after invoking her right to silence,
reinitiated the conversation and affirmatively agreed to talk twenty seconds after
the police read her Miranda rights and proceeded to voluntarily confess.3 During
the twenty seconds that lapsed, the police did not interrogate her. Her mere
presence in the room with Pearson was not the “functional equivalent” of an
interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). As
described by the circuit court, Simmons’ volunteered statement amounted to a
“super bonus.” “Volunteered statements of any kind are not barred by the Fifth
Amendment[.]” See Arizona v. Mauro, 481 U.S. 520, 529 (1987) (citation
omitted).

¶19 Simmons’ right to remain silent was scrupulously honored, and the
circuit court properly denied her motion to suppress. In light of this conclusion,
we need not address the State’s argument that any error was harmless.

3
Simmons additionally asserts that the State “gets it wrong” by claiming she reinitiated
the interrogation. She points to Detective Porter’s testimony that he was attempting to reinitiate
the questioning of Simmons. However, “[o]fficers do not interrogate a suspect simply by hoping
that he will incriminate himself.” Arizona v. Mauro, 481 U.S. 520, 529 (1987).

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By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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