The Kemmerer babysitter accused of beating a 5-year-old girl to death last November says the confession she made to police can't be used at trial because she was on too many pain medications to voluntarily waive her right against self-incrimination.
She's asking the Lincoln County District Court judge to remove her confession from the evidence pool at her upcoming trial, saying her intoxication level made her statements involuntary and coerced.
Cheri Marler, 52, is charged with one count of first-degree murder and two counts of child abuse in the death of a 5-year-old girl, and the alleged beating of her younger sister. She was babysitting both girls at her Kemmerer home Nov. 22, 2022, when she called police to report the older girl had fallen down the stairs.
Police found a little girl, cold to the touch and unconscious, with rib injuries, old and new head injuries, a broken back, cuts, scrapes and “countless bruises” on her body, according to an evidentiary affidavit filed in the case.
The girl died hours later.
Because, Pain Meds
In a Nov. 21 motion by her attorney Elisabeth Trefonas, Marler is asking the Lincoln County District Court judge to strike from the evidence pool statements she made to police one year prior.
She alleges she was on heavy pain medication during her interview at the Kemmerer Police Department, that police knew she was on the meds, and yet they elicited a confession from her anyway.
“Ms. Marler was taken into an investigation room and asked numerous questions by several officers,” the filing says. “Officers were informed that Ms. Marler was on heavy pain medication. She was even permitted to take additional medication during the interview.”
Marler has severe medical issues for which she has traveled to get care repeatedly throughout her prosecution.
The judge has set a Friday hearing to hear argument on both sides of Marler’s challenge. If Marler wins, Lincoln County Deputy Attorney John Bowers would not be able to raise Marler’s confession as evidence at her Jan. 22 trial.
Miranda
Police interviewed Marler for about eight minutes before moving her to a different interview room and advising her of her Miranda rights last November, Trefonas’ filing says.
Kemmerer Police Chief Mike Kahre sat in the interview room while Officer Ryan Popp read Marler her rights.
“Do you understand each of these rights I explained to you? Having each of these rights in mind do you wish to talk to me?” asked Popp, according to the filing.
Trefonas’ filing insists that Marler had taken too many pain medications to understand her rights and therefore shouldn’t have been questioned then.
“It does not appear that Ms. Marler understood or had a full acknowledgement that she understood her rights,” the filing says. “In her response, even if limited, it does not appear that under such heavy medication, she voluntarily waived her rights.”
Nope
Bowers countered in a Dec. 8 filing, saying police were respectful, calm and provided a comfortable atmosphere to Marler – and that she confessed voluntarily.
Marler chose “voluntarily” to go to the police department to make a statement, Bowers’ filing says, adding that police told her she was free to leave and the door was unlocked.
Kahre read Marler’s Miranda rights to her “at the onset of the interview,” and a Wyoming Division of Criminal Investigation agent also confirmed that Marler understood her right to remain silent, and was waiving it, Bowers’ filing says.
The prosecutor described Marler’s body language and responses as clear and receptive.
“She demonstrated that she understood her Miranda advisement and voluntarily chose to make a statement to the officers,” says Bowers’ filing. “Her speech was not slurred, nor were there other indications that she did not understand the questioning or her waiver of her Constitutional rights.”
A Little Fifth Amendment Law
The government cannot use confessions elicited by coercion at a trial.
Before police can question a suspect whom they have confined, they must inform the suspect of her Miranda rights, which include the right to remain silent.
Whether a suspect was too intoxicated or impaired to properly waive her right against self-incrimination is one factor in the “totality of circumstances” judges review to determine if a confession was coerced.
The government has a duty to prove by a preponderance of the evidence that Marler gave her confession voluntarily, not in an unknowing impulse warped by pain medication.
However, as Bowers’ filing notes, the judge can’t nullify Marler’s confession as “involuntary” without proof that police acted to coerce it.
‘Clapping’
In one discussion with police, Marler reportedly admitted that she’d slapped and hit the girl five to 10 times “in a clapping motion.”
“(She) explained it as though she was clapping with (the girl’s) head in the middle,” the affidavit relates. The girl then went into a different room to lie down.
Marler walked in and found the girl unconscious, with a large amount of mucous coming from her nostrils, says the affidavit. Marler then called 911 and reported that the girl had fallen down the stairs.
Marler also told the police she’d beaten the girl with kitchen utensils the day prior, the affidavit relates from her interview.
Clair McFarland can be reached at clair@cowboystatedaily.com.
