State v. McCarthy, 84-422

• Decision Date: 03 August 1984
• Docket Number: No. 84-422,84-422
• Citation: 353 N.W.2d 14,218 Neb. 246
• Parties: STATE of Nebraska, Appellant, v. Joe McCARTHY, Appellee.
• Court: Nebraska Supreme Court

Page 14

353 N.W.2d 14

218 Neb. 246

STATE of Nebraska, Appellant, v. Joe McCARTHY, Appellee.

No. 84-422.

Supreme Court of Nebraska.

Aug. 3, 1984.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. Factfindings by the trial court on a motion to suppress will not be overturned on appeal unless clearly wrong.

2. Confessions: Miranda Rights. Statements made by a person not accused of a crime but in custody or otherwise deprived of his freedom of action in a significant way are not admissible in evidence unless the person has been advised of his Miranda rights.

Steven J. Moeller, Deputy Hall County Atty., Grand Island, for appellant.

John R. Hall of Anderson, Vipperman, Hinman, Hall & Kovanda, Grand Island, for appellee.

GRANT, Justice.

Pursuant to Neb.Rev.Stat. § 29-824 (Cum.Supp.1982), the State of Nebraska appeals the judgment of the Hall County District Court suppressing a statement made by defendant before Miranda warnings were read to him by police officers. The State admits the Miranda warnings were not given, but alleges warnings were unnecessary because the defendant was not in custody at the time of the statements and that, in any event, the warnings were unnecessary because there was an imminent danger to the public. For the reasons hereinafter set out, the order of the district court is affirmed.

On December 12, 1982, the Grand Island Police Department, with the help of officers from the Hall County Sheriff's Department and the Nebraska State Patrol, was investigating the possible homicide of Terry Atkinson. Jeff Benzel was a prime suspect. The authorities discovered that a car driven by Benzel had been seen at a residence occupied by Peggy McCarthy. The police suspected that Benzel was in the McCarthy residence, and they felt he was armed and dangerous. About 2:30 a.m. on December 13, 1983, the house was surrounded by various officers, including a S.W.A.T. team of the patrol. The officers surrounding the house were armed with shotguns, pistols, and "a high-powered rifle with scope." A spotlight was put in place, shining at the front door of the house. Peggy McCarthy was then called on the telephone, and she was told by the police to have all the people in the house come out, one at a time, with their hands in the air.

The people in the house did so. They were told to walk slowly toward the light and stop. They were patted down for weapons and told to enter a police van. Peggy McCarthy was the last to leave, and she informed the police that no other people were in the house. Five women, including Peggy's 9-year-old daughter, and two men (defendant and his brother Ed) left the house and entered the van. Guns were trained on those leaving the house.

The van was then driven to a police command post which had been established at the Al-Anon building, some three blocks from the residence. At the command post defendant was summoned from the van to go into the Al-Anon building. Two officers escorted him, one of whom was holding defendant's arm.

Inside the building, defendant was questioned by a captain of the police department. No guns were trained on him at the time. No Miranda warnings were given.

The police captain testified:

A. I told Joe McCarthy that we were investigating a homicide; we had reason to believe that Jeff Benzel was involved. I needed to know if Jeff Benzel was hiding in the house at 1921 West Fifth. I says, officers are going to go in there, I need to know if they're going to be confronted by him in that house, and I need to know now.

To this interrogation defendant replied, according to the police captain, "I haven't seen Jeff Benzel all night."

After receiving the answer the police captain then testified:

A. I told him not to lie to me. That I needed to know; for the safety of everybody involved in this investigation I needed to know if Jeff Benzel was in that house. If he wasn't in that house I needed to know where he went. I told him several times not to lie to me.

Q. What was his response to your second, basically, question?

A. I haven't seen Jeff Benzel all night.

Defendant testified the conversation between him and the police captain was as follows:

Q. (By Mr. Moeller) The only questions he was asking was in relation to where Jeff Benzel was; is that correct?

A. He asked me where he was and I said I didn't know.

Q. Did he ask you again where he was? Did he explain why it was important to him?

A. Then he asked me if I was with him. And I told him I don't want to get involved. He goes, were you with him, and I said no. He goes, you're lying.

Defendant was later charged with being an accessory to a felony. He then filed this motion to suppress his statements set out above.

The State states in its brief at 1 that "Miranda warnings need not be given to an individual who is not in custody who makes statements during an investigation." That is a sound statement of law, but does not address the issue in this case, which is, Was defendant in custody when he made his statement?

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the...