Uniform “Reasonable Probability” Harmless‑Error Standard Adopted; Defendant’s Absence from Suppression Hearing Deemed Harmless; Confession Upheld as Voluntary

Introduction

In Cheri Lynn Marler v. State of Wyoming, 2025 WY 115 (Wyo. Oct. 22, 2025), the Wyoming Supreme Court affirmed convictions for first-degree murder and child abuse arising from the beating death of a five-year-old child, AN. Two appellate issues dominated the appeal: whether the trial court erred in finding Ms. Marler’s confession voluntary and admissible, and whether it erred by holding the suppression hearing in her absence while she was hospitalized.

The Court’s opinion does two significant things. First, on the merits, it applies Wyoming’s well-settled totality-of-the-circumstances framework to uphold the voluntariness of a confession obtained after extensive but noncustodial interviewing, despite the defendant’s consumption of prescribed pain medication and an officer’s assurance that she would not be jailed that night. Second—and more consequential doctrinally—the Court clarifies Wyoming’s harmless-error jurisprudence by expressly embracing a single, uniform “reasonable probability” prejudice inquiry for harmless-error analysis across categories of error and allocation of burdens, while also concluding that the State satisfied the more exacting “harmless beyond a reasonable doubt” standard in this case.

Summary of the Opinion

Voluntariness and suppression: The Court held de novo that, under the totality of the circumstances, the State met its burden to show that Ms. Marler’s statements were voluntary. The interrogation setting was noncustodial; she received and understood Miranda warnings; she was repeatedly told she was free to leave; she took multiple breaks (including outside to smoke, where she began confessing); officers made no threats; and her demeanor and motor function showed lucidity notwithstanding therapeutic doses of oxycodone and gabapentin. The trial court’s factual findings were not clearly erroneous. Suppression was properly denied.
Right to be present: The district court proceeded with the suppression hearing without the defendant, who was hospitalized. The Supreme Court held the record did not establish a knowing, voluntary, and intelligent waiver of presence. Proceeding without her was therefore constitutional error—but harmless. The Court concluded there was no reasonable probability of prejudice from her absence, and further held that any error was harmless beyond a reasonable doubt.
Precedential refinement: In a pivotal footnote, the Court declared that Wyoming will apply a uniform “reasonable probability” prejudice inquiry in harmless-error review going forward, “regardless of who bears the burden of proving or disproving prejudice,” extending and harmonizing its prior reasoning in Sullivan v. State, 2025 WY 5. Applying that standard here, the Court found no reasonable probability that the outcome of the suppression ruling would have been different had Ms. Marler been present.

Factual and Procedural Background

On November 25, 2022, Ms. Marler called 911 reporting AN had fallen down stairs and was not breathing. Responders observed extensive facial bruising and cyanosis. AN was flown to a Utah hospital and died early the next morning. Police asked Ms. Marler—who was not under arrest—to come to the station, where she received Miranda warnings and was interviewed for approximately six hours by local officers and later DCI agents.

Throughout, officers told her she was free to leave. She took restroom and cigarette breaks; at least once she smoked with her husband without officers present. After Chief Kahre returned in the late evening, he pressed inconsistencies, assured her, “No matter what you tell me tonight, I’m not going to take you to jail tonight,” and she confessed—first outside while smoking, then again inside—describing striking AN with a metal spatula and wooden utensil, boxing her face with open hands, and pushing or kicking her. She left the station after the confession and was arrested the next day, following AN’s death.

Charged with first-degree murder and child abuse, she moved to suppress her statements, arguing custodial interrogation, intoxication from prescribed medications, and a lack of a knowing and voluntary Miranda waiver. She also challenged voluntariness due to pain and desire to end questioning. At the scheduled suppression hearing, she was absent because she was in the ER; defense counsel consented to proceeding, anticipating no testimony from her. The court denied suppression. At trial, the confession video was admitted. The jury was instructed it must disregard any involuntary statement. It convicted on both counts. This appeal followed.

In-Depth Analysis

I. Voluntariness of the Confession

A. Legal framework

The Court reaffirmed that both the Fifth Amendment and the Wyoming Constitution (Art. 1, §§ 6 and 11) prohibit the use of involuntary statements and require suppression of confessions extracted by coercion or improper influence. The voluntariness inquiry is a de novo legal question decided under the totality of the circumstances, with deference to the trial court’s factual findings unless clearly erroneous.

The opinion restates Wyoming’s multi-factor test (derived from Carter v. State, 2010 WY 136; Pena v. State, 2004 WY 115; and Goulart v. State, 2003 WY 108), assessing:

Custody/free-to-leave status and awareness;
Miranda warnings and understanding/waiver;
Opportunity to confer with counsel or others;
Whether statements were volunteered vs. elicited;
Presence of threats or promises;
Method, tone, length, and place of interrogation;
Defendant’s mental/physical condition and background.

B. Application to the record

Noncustodial setting and Miranda: Although one DCI agent remarked the interview was in a “custodial setting,” the Court treated custody as an objective inquiry and credited the record showing she was repeatedly told she was free to leave, the room was not locked, and she in fact exited to smoke and ultimately left the station after confessing. Miranda warnings were given and acknowledged.
Absence of threats; mitigative assurance: Officers made no threats. Chief Kahre’s assurance—“I’m not going to take you to jail tonight”—did not render the confession involuntary. The Court treated it as noncoercive, noting it was honored in fact and served to reduce custodial pressure.
Breaks and voluntariness outside: She took multiple bathroom and cigarette breaks, including with her husband, and initiated incriminating statements outside the station while seated on the sidewalk—an environment inconsistent with overbearing coercion.
Mental/physical state: Despite therapeutic doses of oxycodone and gabapentin and complaints of pain, officers observed no impairment. She walked unaided, spoke clearly, followed questions, and manipulated objects (e.g., lighting cigarettes) without difficulty. A long-time acquaintance (the Chief) testified she was “the Cheri [he] knew.”
Length and tone: Although the overall evening was long and multiple officers participated, the Court found no evidence of punitive tactics, deprivation, or threats. One agent raised his voice, but the overall tenor remained within permissible bounds.

Synthesizing these factors—and comparing to upholding cases (Carter; Snyder v. State, 2021 WY 108) and suppression cases (Evans, 944 P.2d 1120; Frias v. State, 722 P.2d 135)—the Court concluded her will was not overborne. The trial court’s credibility findings stood, even though the State did not introduce the full video at the suppression hearing; detailed eyewitness testimony sufficed, and the confession video played at trial corroborated the circumstances.

C. Takeaway on voluntariness

The opinion reinforces that:

Miranda warnings and noncustodial circumstances strongly weigh toward voluntariness—even where officers administer Miranda prophylactically.
Therapeutic medication use does not per se undermine voluntariness absent observed cognitive or motor impairment.
Assurances such as “you will not be jailed tonight,” without more, do not amount to coercive promises of leniency; indeed, they can mitigate coercion when honored.
Confessions initiated in an open, nonconfined space (e.g., outside while smoking) support the noncoercive character of the exchange.

II. Right to Be Present at the Suppression Hearing

A. The right and waiver

Under Wyoming law, a defendant has a constitutional right to be present at critical stages. Whether a stage is “critical,” whether the right is waivable, and whether waiver was knowing, voluntary, and intelligent are reviewed de novo. The Court contrasted:

Castellanos v. State, 2023 WY 97: refusal to leave a jail cell to attend a pretrial hearing constituted a voluntary waiver (circumstances within the defendant’s control);
Maupin v. State, 694 P.2d 720: hospitalization rendered the absence involuntary.

Here, the defendant’s ER visit and hospitalization placed nonattendance beyond her control; on this record, there was no knowing and intelligent waiver—despite defense counsel’s consent to proceed and a reference to W.R.Cr.P. 43(c). The Court therefore assumed constitutional error.

B. Harmless-error analysis and the clarified standard

The Court then applied harmless-error review, citing Skinner v. State, 2001 WY 102, and Seeley v. State, 959 P.2d 170: the State bears the burden to show that the defendant’s absence did not prejudice the defense. Importantly, the opinion squarely addresses inconsistent articulations of the harmless-error prejudice test in Wyoming. Earlier cases used “reasonable possibility”; Sullivan v. State, 2025 WY 5, called the difference between “reasonable possibility” and “reasonable probability” illusory where the appellant bears the burden. This opinion extends the harmonization, announcing:

Wyoming courts will use a single “reasonable probability” prejudice inquiry in harmless-error analyses “regardless of who bears the burden of proving or disproving prejudice.”

Applying that test, the Court rejected three asserted prejudices from the defendant’s absence:

Bathroom detail: Whether she used the restroom alone—contrary to a witness’s recollection—was a minor point and immaterial to the totality analysis, given repeated “free to leave” advisements and the outdoor confession.
Post-interview lodging: Where she went after the interview (a motel with her husband) was either neutral or supportive of noncoercion; knowing it would not have helped the defense.
Lost opportunity to testify: The record reflected a strategic decision that she would not testify at the suppression hearing; counsel stated she was “not expecting any testimony” from the defendant and that the hearing could proceed as argument. The notion that her presence would have changed this strategy was speculative and contrary to the record.

On that basis, the Court found no reasonable probability of prejudice. It then added that any error was harmless beyond a reasonable doubt—a Chapman-level assurance that the outcome would be unchanged even under the more stringent standard typically applied to some constitutional errors.

III. Precedents and Their Influence

Chambers v. Florida, 309 U.S. 227: Due process prohibits use of coerced confessions. This case anchors the constitutional foundation for voluntariness analysis.
Evans, 944 P.2d 1120 (Wyo. 1997): Suppression proper where interrogation techniques were aggressive and accusatory; used to show the opposite end of the spectrum and to contrast the noncoercive tone here.
Frias, 722 P.2d 135 (Wyo. 1986): Language comprehension deficiencies can render a confession involuntary; illustrates a different kind of overborne will absent here.
Carter, 2010 WY 136; Snyder, 2021 WY 108: Sustained voluntariness despite intoxication/sleep deprivation (Carter) and mental health history/lengthy interview (Snyder) when totality showed lucidity, Miranda compliance, nonthreatening tone, and nonrestraint. These cases were the principal analogues the Court relied on to uphold voluntariness.
Pena, 2004 WY 115; Rice, 2004 WY 130; Goulart, 2003 WY 108; Rodriguez, 2018 WY 134: Wyoming’s due process and self-incrimination precedents reiterating that involuntary statements violate state and federal constitutions.
Castellanos, 2023 WY 97; Maupin, 694 P.2d 720: Contrasting authorities on what constitutes voluntary absence for presence-right waivers.
Wall, 2019 WY 2; Seeley, 959 P.2d 170; Skinner, 2001 WY 102: Harmless-error and right-to-be-present cases providing the analytic scaffolding for the Court’s harmless-error assessment here.
Sullivan v. State, 2025 WY 5: The springboard for adopting a uniform “reasonable probability” prejudice inquiry in harmless-error analysis; Marler extends this uniformity to all harmless-error contexts, regardless of burden allocation.

IV. Legal Reasoning: How the Court Reached Its Decision

Totality controls voluntariness: Rather than parsing any single factor (length of interview, medication, raised voices, or an assurance of no arrest), the Court resolved voluntariness through a holistic appraisal: noncustodial milieu, Miranda advisements and understanding, free movement with breaks, an outdoor confession, absence of threats, observed lucidity, and a subsequent, delayed arrest.
Objective custody assessment: The Court implicitly reaffirmed that an officer’s label (“custodial setting”) does not itself determine custody; the objective circumstances and the person’s freedom of movement control.
Promises and voluntariness: The assurance of “no jail tonight” was treated as an ameliorative statement—especially since it was kept—rather than an improper promise of leniency.
Presence-right error but harmless: Even assuming constitutional error (no valid waiver), the Court asked whether the absence created a reasonable probability of prejudice to the suppression ruling. Finding none, the Court affirmed. It also expressly stated the error was harmless beyond a reasonable doubt, eliminating doubt under multiple articulations of harmlessness.
Uniform harmless-error standard: By adopting the “reasonable probability” formulation “going forward” across harmless-error analyses, the Court provides clarity and methodological consistency for future appellate reviews, while acknowledging that some contexts (like constitutional error with State’s burden) will often be recited in Chapman terms. Marler’s analysis shows these formulations can coexist: courts can analyze prejudice using the “reasonable probability” framework and, where appropriate, also confirm harmlessness beyond a reasonable doubt.

V. Practical Impact and Future Applications

A. Confession litigation

Police practice: Advising interviewees that they are free to leave, maintaining unlocked rooms, honoring breaks, and avoiding threats remain crucial to withstanding voluntariness challenges. Notably, assurances about nonarrest that are honored do not inherently taint a confession.
Defense strategy: Claims of medication-induced impairment must be corroborated by observable cognitive or motor deficits or record evidence of confusion. The presence of Miranda warnings and a noncustodial setting will be potent State arguments under Wyoming law.
Record-building: Even if a full video is not introduced at a suppression hearing, detailed officer testimony can suffice, though best practice remains to create as complete a record as possible.

B. Presence at pretrial hearings

Critical-stage errors are reviewable for harmlessness: Proceeding without a hospitalized defendant can be error absent a valid waiver, but reversal will require a showing (or, when the State bears the burden, a failure to negate) a reasonable probability of prejudice.
Counsel’s on-the-record strategy matters: Express statements that a defendant will not testify can foreclose prejudice arguments based on hypothetical testimony; make strategic choices explicit and purposeful.
Best practices for trial courts: When a defendant is ill or hospitalized, consider contemporaneous findings about necessity of live testimony, explore remote appearance, and ensure a clear, informed waiver where possible. While Marler affirms without reversal, it underscores the value of a robust record to avoid even assumed error.

C. Harmless-error doctrine

Uniform standard: Litigants should expect Wyoming appellate courts to frame prejudice under a “reasonable probability” analysis across harmless-error contexts, simplifying briefing and aligning standards. Marler extends Sullivan’s harmonization to cases where the State bears the harmless-error burden.
Dual articulation remains possible: Courts may still recite Chapman’s “harmless beyond a reasonable doubt” for constitutional errors while conducting a “reasonable probability” prejudice analysis. Marler models how both can be satisfied on the same record.

VI. Complex Concepts Simplified

Voluntariness vs. Miranda: Miranda warnings protect against custodial interrogation without advisement, but a confession must also be voluntary under due process. A noncustodial, warned, and lucid statement is often—but not always—voluntary; coercive tactics can still invalidate it.
“Custody” for Miranda: Custody is judged objectively—would a reasonable person feel they were not free to end the questioning and leave? An officer’s subjective label is not controlling.
Harmless error: Not every constitutional misstep requires reversal. If the error likely did not affect the outcome (no “reasonable probability” of prejudice), the conviction stands. For certain constitutional errors, courts also assess whether the State proved the error harmless beyond a reasonable doubt. Marler clarifies Wyoming will use a consistent reasonable-probability lens to assess prejudice while also, where appropriate, confirming harmlessness under Chapman.
Right to be present: Defendants generally have the right to be present at critical stages (like suppression hearings). They can waive it, but waiver must be knowing, voluntary, and intelligent. Hospitalization typically negates voluntary absence.

Conclusion

Marler is a significant Wyoming Supreme Court decision for two reasons. On the facts, it reaffirms that a confession given in a demonstrably noncustodial, nonthreatening environment—despite length, raised voices at times, and the defendant’s use of prescribed medication—can be voluntary where the suspect is lucid, advised of rights, and repeatedly told she may leave. A specific assurance that the suspect would not be jailed that night did not constitute coercion, particularly when honored.

Doctrinally, Marler provides needed clarity to Wyoming’s harmless-error jurisprudence. Leaning on Sullivan, the Court expressly adopts a uniform “reasonable probability” prejudice test across harmless-error analyses, regardless of burden allocation, and then finds the presence violation harmless both under that test and beyond a reasonable doubt. Going forward, practitioners should brief harmless-error prejudice under the “reasonable probability” framework, anticipate that courts may still speak in Chapman terms for constitutional errors, and build records that squarely address prejudice (or its absence) under both articulations.

The decision underscores that voluntariness remains a holistic, fact-specific inquiry and that presence-right errors at pretrial proceedings, while serious, will not yield reversal absent a meaningful likelihood that the absence altered the suppression outcome. The judgment is affirmed.