from the District Court of Sweetwater County The Honorable
Nena James, Judge
of the State Public Defender: Diane Lozano, State Public
Defender; Tina N. Olson, Chief Appellate Counsel; David E.
Westling, Senior Assistant Appellate Counsel. Argument by Mr.
K. Michael, Wyoming Attorney General; David L. Delicath,
Deputy Attorney General; Christyne M. Martens, Senior
Assistant Attorney General; Caitlin F. Young, Assistant
Attorney General; Joshua C. Eames, Assistant Attorney
General. Argument by Mr. Eames.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
A jury found Gabriel Tate guilty of numerous counts of first
degree sexual assault, of battery, and of unlawful contact
without bodily injury. He appeals those convictions, claiming
that certain statements he made while in custody should have
been suppressed because of a Miranda violation. He
also contends that he was not provided a speedy trial. We
1. Did the district court err in denying Tate's motion to
suppress statements he made to a nurse during a sexual
Tate denied a speedy trial as required by W.R.Cr.P. 48 and
the Sixth Amendment to the United States Constitution?
Because the facts surrounding the sexual assault are not
pertinent to this appeal, we will provide only a brief
summary of the terrible event. A woman ("E.W.")
invited Tate to her house one evening while he was passing
through Rock Springs. They had previously met when Tate was
dating E.W.'s friend, and after that they kept in contact
through social media. While their time at E.W.'s house
began affably, by the evening's end E.W. had been
threatened, choked, beaten, urinated on, and sexually
violated in various ways. Tate documented his sadistic
behavior by taking pictures throughout the incident with a
cell phone and sending them to others. After he left, E.W.
called police and reported the incident.
Tate was arrested on June 17, 2014. Before being interviewed
by law enforcement while in custody, he was read his
Miranda rights, and he was also provided a document
setting forth those rights and a waiver of them. Tate stated
that he understood his rights, orally agreed to waive them,
and signed the waiver. He then spoke with three separate law
enforcement officers about the incident.
Approximately three hours after he had been read his
Miranda rights and law enforcement interviews began,
Tate was transported to the local hospital for an examination
to obtain biological samples pursuant to a search warrant. At
the hospital, Tate signed a written consent form that
confirmed that he agreed to participate in the examination,
that he understood the evidence being collected could be used
in a potential criminal prosecution, and that he could refuse
any portion of the examination.
After he signed the consent form, a sexual assault nurse
examiner began the examination. At the beginning, she asked
Tate a few open-ended questions-basically why he was there
for an examination and why a police officer was present. Tate
later volunteered incriminating statements about the incident
with E.W. He indicated that he had played head games with her
to get her to have sex with him, that he had threatened her
that he had family who would hurt her if she didn't have
sex or said anything afterward, and that he was
"ex-military and a bad ass." A police officer
was present for the examination, but did not participate in
On June 19, 2014, the State filed an information charging
Tate with four counts of first degree sexual assault, one
count of kidnapping, and one count of unlawful contact
without bodily injury. A public defender was appointed the
same day. Tate waived his right to a preliminary hearing on
June 24, and the matter was bound over to the district court.
The next day, June 25, his attorney filed Tate's first
demand for a speedy trial. Arraignment in the district court
was scheduled for June 30.
When Tate appeared for arraignment, his attorney expressed
concerns about his client's competency and fitness to
proceed, and requested that proceedings be stayed pending an
evaluation by the Wyoming State Hospital. The district court
agreed to enter an order for the requested examination, and
instructed defense counsel that the order should require the
evaluation to be done within thirty days. Because of the
concerns about his fitness to proceed, Tate was not
arraigned. This was quite proper, because the court had no
way of knowing if Tate could enter a knowing and voluntary
plea without the benefit of an evaluation.
Unfortunately, roughly three months passed before Tate's
attorney filed the required written motion for an order for
the evaluation and suspension of proceedings on September 24,
2014. The district court granted that motion two
days later, ordered the competency examination to be
conducted at the Wyoming State Hospital, and suspended
proceedings pending the completion of the examination and the
The state hospital evaluated Tate on December 23, 2014, and
submitted a report finding him fit to proceed on January 8,
2015. On February 11, 2015, Tate was arraigned
and pled not guilty to all charges. On the same day, he filed
a second demand for speedy trial. Trial was set for April 7,
A hearing was held on February 20 concerning the State's
intent to offer W.R.E. 404(b) evidence of a prior alleged
sexual assault, and the district court entered an order which
is not challenged in this appeal. However, during that
hearing, there was discussion about the State obtaining
transcripts from a proceeding against Tate in a different
state. On March 16, the State requested that the trial date
be continued to allow prosecutors more time to track the
transcripts down. The district court agreed to the request
and reset the trial for July 6, 2015. The defense did not
object to the continuance.
On April 1, 2015, the State moved to amend the information to
include an additional eight counts arising from the incident
with E.W. It proposed to add five additional counts of first
degree sexual assault and two counts of battery. The district
court held a hearing on the motion and allowed the amendment,
and the State filed the amended information on May 29.
Tate moved to suppress the statements he made to the nurse
during the examination following his arrest a week before
trial. He alleged, inter alia, that his rights under
Miranda v. Arizona had been violated. A suppression
hearing was held the next day, and the district court denied
the motion. It reasoned that the statements were admissible
because: (1) the nurse was not acting as an agent of the
police as she was following independent medical protocols and
procedures; and (2) Tate had been previously advised of his
Miranda rights by law enforcement and had waived those rights
just hours before he spoke with her.
A four-day jury trial began on July 6, 2015. On July 9, the
jury returned a verdict of guilty on all counts, except one
kidnapping charge. The district court sentenced Tate to eight
to twenty years in prison on each of the nine first-degree
sexual assault counts, with all to be served consecutively.
With regard to the misdemeanor counts, he was also sentenced
to six months in jail for the two battery charges and the
unlawful contact without bodily injury charge, to be served
concurrently with the sentences for the felony sexual assault
charges. Judgment and sentence was entered on
August 11, 2015.
Tate timely perfected this appeal.
Suppression of ...