State v. Saylor, 85-724
| Citation | 392 N.W.2d 789,223 Neb. 694 |
| Decision Date | 29 August 1986 |
| Docket Number | No. 85-724,85-724 |
| Parties | STATE of Nebraska, Appellee, v. James M. SAYLOR, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Confessions: Right to Counsel. If a defendant indicates during the course of custodial interrogation the desire to consult with an attorney before answering any questions, interrogation must cease until an attorney is present.
2. Criminal Law: Arrests. The ultimate inquiry regarding the custodial status of a suspect is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.
3. Criminal Law: Police Officers and Sheriffs: Arrests. A policeman's unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.
4. Constitutional Law: Right to Counsel: Confessions. Once the sixth amendment right to counsel has attached, the State must honor that right and may not secretly and deliberately interrogate the defendant in the absence of counsel. 5. Constitutional Law: Right to Counsel. A person's 6th and 14th amendments right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.
6. Constitutional Law: Right to Counsel. The right to counsel attaches at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.
7. Constitutional Law: Right to Counsel. The sixth amendment right to counsel does not attach until after the initiation of formal charges.
8. Constitutional Law: Right to Counsel. The purpose of the sixth amendment is to assure in any criminal prosecution that the accused shall not be left to his own devices in facing the prosecutorial forces of organized society.
Patrick W. Healey and Susan Jacobs, Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.
The defendant, James M. Saylor, was convicted of second degree murder and sentenced to life imprisonment. He has appealed and has assigned as error the overruling of his motion to suppress statements made by him to Jeffrey Menard and David Timm.
The defendant's grandmother, Lena C. Saylor, was found dead in her home in Lincoln, Nebraska, on April 27, 1984. A neighbor had observed a white male in his late teens or early twenties running from Mrs. Saylor's home at about 5:30 a.m. that morning. The police were called shortly thereafter. The parties stipulated that the pathologist who performed the autopsy on Lena Saylor's body would testify with a reasonable degree of medical certainty at trial that the cause of her death was respiratory arrest, and while Mrs. Saylor could have died of natural causes, the cause of the respiratory arrest was most probably smothering.
Following Lena Saylor's death, Jeffrey Menard and David Timm, friends and associates of the appellant, notified police authorities about conversations between the appellant and themselves in which the defendant had indicated that he was thinking about killing his grandmother so that he could receive an expected inheritance.
On Saturday, April 28, 1984, Detective Sorensen of the Lincoln Police Department asked the defendant to come to the police station to be fingerprinted. The defendant arranged to meet Sorensen that afternoon and voluntarily went to the station at about 12:35 or 12:40 p.m. The defendant was then fingerprinted but not released. The defendant was taken to the chief of police's office, where he signed a Miranda warning and waiver form at 1:05 p.m. and was then questioned. Within a short period of time the detective's questions became accusatory. At that point, approximately 1:35 to 1:40 p.m., the defendant stated that he did not wish to be questioned further unless an attorney was present. The defendant was then placed in a holding cell but was not permitted to contact an attorney. He was kept in police custody at the station until 8 or 8:30 that evening.
During the time at the police station, the defendant estimated that he requested counsel on 15 to 20 occasions but was never given the opportunity to call a lawyer. He testified at the suppression hearing that each time he requested the assistance of counsel, Detective Sorensen would attempt to reengage him in discussions about Lena Saylor's death, despite the fact that he had not been given the opportunity to contact counsel. He also testified that Detective Peschong informed him that he was under arrest. There is no evidence that the defendant made any incriminating statements regarding his grandmother's death while in custody at the police station between 12:35 and 8:30 p.m Sometime after 8 that evening, two police detectives drove the appellant to his parents' home. During this trip, the defendant asked to be taken to his girlfriend's home. The detectives refused to do so. One of the detectives told the defendant that he would not be taken there because his driving privileges had been suspended and the detective did not want the defendant to drive the truck he had left at her home.
When the defendant arrived at his parents' house, he found Menard and Timm in the kitchen talking with his mother.
Following their conversations with the police concerning Saylor's prior statements about killing his grandmother, Menard and Timm had agreed to go to Saylor's home and attempt to engage him in conversation about Lena Saylor's death. Menard agreed to wear a microphone and transmitter capable of picking up any conversation between the three men. Although reluctant at first, Menard and Timm agreed to take the wire in and engage the defendant in conversation because the police had informed them that Saylor had accused them of somehow being involved in the death.
Before entering the home, Menard and Timm were instructed by the police on how to achieve the best transmission to a receiver located in a nearby patrol car. The police also suggested ways of initiating conversation about the death, such as telling the defendant they had been required to submit to a polygraph examination and that they had informed the police of the defendant's prior statements.
Sometime after the defendant's arrival at the house, it was suggested that the three men go for beer. Upon their return they went to the defendant's basement bedroom, where they drank beer, listened to music, and engaged in conversation. Menard and Timm stayed with the defendant for 1 to 2 hours, and during this time, incriminating statements made by the defendant were transmitted to and recorded by the police. In one of the statements, the defendant indicated that he had hired someone to kill his grandmother. The defendant was arrested 10 to 15 minutes after Menard and Timm left the Saylor home. He was permitted to meet with an attorney for the first time the next morning.
The defendant was originally charged with first degree murder. On December 7, 1984, he filed a motion to suppress all statements made by him to Menard and Timm on April 28, 1984, and all recordings of any such statements. The motion alleged that the statements had been obtained in violation of the defendant's privilege against self-incrimination and his right to counsel as guaranteed by the 5th, 6th, and 14th amendments to the U.S. Constitution and by article I, §§ 3 and 12, of the Nebraska Constitution. The motion also alleged that the statements had been obtained in violation of the defendant's right to privacy. The motion was denied on April 2, 1985.
The information was amended to charge second degree murder, when the defendant agreed to a bench trial. At the trial, tape recordings of the April 28 statements were received in evidence over objection.
The defendant contends that the trial court erred in (1) denying his motion to suppress, because the recordings of the conversations with Menard and Timm were obtained in violation of his right against compelled self-incrimination and his right to effective assistance of counsel, and in (2) receiving the recordings in evidence over objection and in rendering judgment and sentence based thereon.
With regard to the contention that the recorded statements were obtained in violation of Saylor's 5th and 14th amendment rights against compelled self-incrimination, the 5th amendment in pertinent part provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V.
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the U.S. Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination."
Certain procedural safeguards were then set out by the Miranda Court, including the now familiar Miranda warnings. Included as a safeguard was the rule that if a defendant indicates during the course of custodial interrogation the desire to consult with an attorney before answering any questions, interrogation must cease until an attorney is present. This view was reaffirmed in Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981): "[A]n accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." See, also, State v. Joy, 218 Neb. 310, 353 N.W.2d 23 (1984). If Saylor had made incriminating statements...
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83 Hawai'i 443, State v. Luton, 18084
...proceedings have been initiated against accused by way of formal charge, indictment information or arraignment); State v. Saylor, 223 Neb. 694, 392 N.W.2d 789, cert. denied, 481 U.S. 1038, 107 S.Ct. 1975, 95 L.Ed.2d 815 (1986) (holding that the sixth amendment right to counsel does not atta......
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State v. Ball, S-05-175.
...its prosecutorial focus on a defendant, the Sixth Amendment right to counsel attaches. But as this court recognized in State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 (1986), the U.S. Supreme Court has gradually abandoned Escobedo, concluding that the Sixth Amendment right to counsel does not......
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State v. Robinson
...circumstances arises as an incident of the fifth amendment right against self-incrimination. As said in State v. Saylor, 223 Neb. 694, 701-02, 392 N.W.2d 789, 794-95 (1986), cert. denied 481 U.S. 1038, 107 S.Ct. 1975, 95 L.Ed.2d 815 (1987), quoting Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. ......
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State v. Victor
...the degree associated with such an arrest. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 (1986). "Determinations as to whether a person has been seized, in the constitutional sense, are questions of fact." State v. Bo......
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Neb. Const. art. I § I-3 Due Process of Law; Equal Protection
...setting was not clearly wrong; thus, police did not violate defendant's constitutional right against self-incrimination. State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 Due process is afforded defendant in capital case by the traditional trial to court or jury, the presentence report on defen......
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Neb. Const. art. I § I-3 Due Process of Law; Equal Protection
...setting was not clearly wrong; thus, police did not violate defendant's constitutional right against self-incrimination. State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 Due process is afforded defendant in capital case by the traditional trial to court or jury, the presentence report on defen......
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§ I-3. Due Process of Law; Equal Protection
...setting was not clearly wrong; thus, police did not violate defendant's constitutional right against self-incrimination. State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 Due process is afforded defendant in capital case by the traditional trial to court or jury, the presentence report on defen......
-
§ I-3. Due Process of Law; Equal Protection
...setting was not clearly wrong; thus, police did not violate defendant's constitutional right against self-incrimination. State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 Due process is afforded defendant in capital case by the traditional trial to court or jury, the presentence report on defen......