In re Interest of Tyler F.
| Decision Date | 05 September 2008 |
| Docket Number | No. S-07-554.,S-07-554. |
| Citation | 276 Neb. 527,755 N.W.2d 360 |
| Parties | In re INTEREST OF TYLER F., a Child Under 18 years of age. State of Nebraska, Appellee, v. Tyler F., Appellant. |
| Court | Nebraska Supreme Court |
Richard J. Epstein and Nancy A. Rath, Omaha, for appellant.
Donald W. Kleine, Douglas County Attorney, Emily A. Beller, and Benjamin Pinaire, for appellee.
Tyler E, a minor, appeals his adjudication in the separate juvenile court of Douglas County on allegations of criminal impersonation, count I, and disturbing the peace, count II. According to the allegations, Tyler, posing as one Kimberly V., created an Internet posting to attract men interested in sexual encounters. Several men contacted Kimberly, a married mother of two children, using the contact information included in the post. After a bench trial, the juvenile court found counts I and II of the petition to be true and Tyler was found to be a child as defined by Neb. Rev. Stat. § 43-247(1) (Cum. Supp. 2006). This appeal followed. We affirm for the reasons set forth below.
Early in the fall of 2006, Kimberly and Tyler's family had a dispute for reasons that are not entirely clear from the record. In mid-October of that same year, Kimberly began receiving calls and visits to her home from men who were interested in having sexual relations with her. The men were responding to a message posted under Kimberly's name on "Craigslist," a Web site analogous to the classifieds section of a local newspaper. The Craigslist posting included statements that Kimberly was single and looking to have sexual intercourse with men, and also provided her home address and telephone number. The posting also included photographs of the exterior of Kimberly's home as well as graphic images of women posing nude and engaging in various sexual acts with men.
Kimberly contacted the Omaha Police Department. Officers Paul Milone and Eric Nordby investigated the incident. Based on information supplied by Craigslist and an Internet service provider, the officers determined that the Internet address of the computer used to generate the online posting belonged to Tyler's family's computer. Milone and Nordby then visited Tyler's parents at their home. Tyler's mother told officers that she did not really know how to use the computer. She also stated that Tyler, who was a few months "shy of his 15th birthday at the time, was the member of the household who used the computer most often. She then gave Milone and Nordby permission to speak with Tyler.
Milone and Nordby, dressed in plain clothes, went to Omaha Central High School (OCHS), where Tyler was enrolled. The officers made contact with an Officer Kelly, a uniformed police officer assigned to OCHS. Kelly asked the school's security guards to bring Tyler to his office. The guards contacted Tyler in his biology class and escorted him to Kelly's office. Milone, Nordby, and Kelly were waiting for Tyler inside the office. The office itself is a very small, windowless room. The door to the office was closed during the questioning. Kelly left the room before the questioning began.
By all accounts, the officers questioned Tyler for approximately 20 minutes. The officers never read Tyler his Miranda rights. Tyler initially told the officers that he had no knowledge of the Craigslist posting. However, Tyler eventually confessed after officers explained that the Internet address of the computer used to generate the posting belonged to his family's computer. After confessing to the crime, Tyler was allowed to return to class.
Prior to trial, Tyler attempted to suppress his confession. Milone and Nordby testified for the prosecution at the suppression hearing. Tyler conceded on the witness stand that the officers told him he was not under arrest. Nevertheless, Tyler testified that he did not feel free to leave the interview and that he believed he was obligated to answer the officers' questions. Regarding the details of the interrogation itself, Tyler's account of what transpired differs from the officers' accounts on three key details. First, Tyler testified that he was never told he was free to leave. Milone testified that he and Nordby specifically told Tyler he could leave at any time. Nordby corroborated Milone's testimony. Tyler also testified that the officers threatened to take him into a juvenile detention center for a period of 5 days if he did not "cooperate" with their investigation. Both officers, however, denied that such a threat was ever made. The court specifically credited the officers' testimony in both regards.
Tyler also testified at the suppression hearing that he saw the officers' weapons. However, Milone testified that his weapon was holstered at his hip on his belt and concealed by his suit jacket. Similarly, Nordby testified that he carried his weapon in a shoulder holster near his armpit and that his weapon was also concealed by his jacket during the interrogation. Both officers testified that they did not affirmatively flash their weapons at Tyler. The juvenile court never made a specific finding on this issue, except its more general conclusion that it found "the police officers were credible." It is also worth noting that at one point during the suppression hearing, the juvenile court observed on its own initiative that Tyler is a "large-framed young man." Ultimately, the juvenile court denied Tyler's motion to suppress his confession.
At trial, the prosecution presented testimony from Kimberly and Milone. Kimberly testified that she did not create the Craigslist posting herself. Milone recounted Tyler's confession over a renewed objection from Tyler's counsel. After the prosecution rested, Tyler moved to dismiss count I of the petition because it alleged a violation of "Neb. Rev. Stat. § 28-2608," a code section that does not exist. Tyler also moved to dismiss count II of the petition on the theory that it was third parties—the anonymous men who contacted Kimberly—that actually disturbed Kimberly's peace, not Tyler.
Regarding count I, the court noted that the language in count I was almost identical to that of Neb.Rev.Stat. § 28-608 (Cum Supp. 2006) and that an extra "2" was added through clerical error. Accordingly, the court felt that in the interest of justice, count I of the State's petition should be amended to reflect § 28-608 rather than "§ 28-2608." Regarding count II, the court overruled Tyler's motion to dismiss without explanation.
Having disposed of Tyler's motions, the court found Tyler guilty on both counts and ordered him to (1) apologize to Kimberly and her family; (2) refrain from using the Internet, e-mail, or other electronic devices which could send or receive messages of the sort involved in this case; (3) avoid any and all contact with Kimberly or her family; (4) reside in his parents' home and obey all of their rules; (5) have perfect attendance at school and turn in all classwork on time; (6) not associate with anyone not approved of by his parents; and (7) immediately inform his attorney and the court of any changes in his contact information. Tyler appeals his adjudication to this court.
Tyler assigns, restated, that the juvenile court erred when it (1) overruled Tyler's motion to suppress incriminating statements he made to officers, (2) became a witness on behalf of the prosecution by taking note of Tyler's physical stature, and (3) overruled Tyler's motions to dismiss counts I and II of the prosecution's petition.
Juvenile cases are reviewed de novo on the record, and the appellate court is required to reach a conclusion independent of the juvenile court's findings.1 However, when the evidence is in conflict, the appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other.2 In reviewing questions of law, an appellate court reaches conclusions independent of the lower court's ruling.3
In his first assignment of error, Tyler contends that incriminating statements he made to officers at OCHS should have been suppressed for two reasons. First, Tyler argues that use of the statements at trial violated his Fifth Amendment rights because he was not given Miranda warnings before officers elicited the confession. Second, Tyler believes the prosecution did not meet its burden to show that Tyler voluntarily made the incriminating statements.
In Miranda v. Arizona,4 the U.S. Supreme Court held that authorities must advise suspects that they have certain rights before subjecting them to a "custodial interrogation." If they do not, any incriminating statements obtained during the interrogation are prone to suppression.5 However, by limiting the sweep of Miranda to cases of custodial interrogation, the Court held that Miranda rights apply only "where there has been such a restriction on a person's freedom as to render him [or her] `in custody.'"6 In the absence of such restriction, authorities may freely question a suspect—and use any resulting statements at trial—even without advising a suspect of his or her Miranda rights. All parties agree that the officers did not advise Tyler of his Miranda rights. The question, then, is whether Tyler was in custody during the interrogation. If Tyler was in custody, then his confession should have been suppressed and its use at trial violated Tyler's Fifth Amendment rights.
In resolving whether a suspect was in police custody for Miranda purposes, "`the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.'"7 Whether the requisite degree of restraint occurred is to be determined "based on...
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