State v. Bormann

CourtSupreme Court of Nebraska
Citation777 N.W.2d 829,279 Neb. 320
Docket NumberNo. S-08-1281.,S-08-1281.
PartiesSTATE of Nebraska, appellee, v. Kyle J. BORMANN, appellant.
Decision Date29 January 2010
777 N.W.2d 829
279 Neb. 320
STATE of Nebraska, appellee,
Kyle J. BORMANN, appellant.
No. S-08-1281.
Supreme Court of Nebraska.
January 29, 2010.

[777 N.W.2d 832]

Thomas C. Riley, Douglas County Public Defender, for appellant.

Jon Bruning, Attorney General, and James D. Smith, for appellee.




Kyle J. Bormann was convicted of second degree murder and use of a firearm to commit a felony. He was sentenced to a term of 60 years to life in prison for the murder and a consecutive term of 20 to 30 years for use of the firearm. He appeals.


In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, including claims that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an appellate court applies a two-part standard of review. With regard to historical facts, we review the trial court's findings for clear error. Whether those facts suffice to meet the constitutional standards, however, is a question of law, which we review independently of the trial

777 N.W.2d 833

court's determination. State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).

Whether jury instructions given by a trial court are correct is a question of law. State v. Robinson, 278 Neb. 212, 769 N.W.2d 366 (2009). When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. Id.

279 Neb. 322


On January 20, 2008, Brittany Williams was shot and killed as she sat in her car in the drive-through lane of a fast-food restaurant in Omaha, Nebraska. The bullet came from north of the restaurant and passed through the front passenger window, striking her in the head.

Police officers arrived at approximately 8:40 p.m. and used yellow police tape to preserve the crime scene. An alley immediately to the east of the restaurant was cordoned off. A vehicle driven by a male came south in the alley and drove through the crime scene tape. The vehicle then turned back and traveled north.

Officers pursued the vehicle into a parking lot several blocks north of the restaurant. The vehicle was driven over a curb and was resting against a picnic table just north of the parking lot. The driver got out of the vehicle holding a rifle. He discarded the rifle and ran. Officers caught up with him, and he was taken into custody. The rifle was secured and taken into evidence.

The male was handcuffed, and a search was conducted. Police found a spent shell casing in his jacket pocket. Officers detected a strong odor of alcohol, and the male had difficulty walking to the cruiser, where he was placed in the back seat.

At that point, the male was asked to provide his name and address and was identified as Bormann. He was asked no further questions, but he leaned forward from the back seat and said he wanted to tell the officer "what was going on." The officer told Bormann to sit back and relax.

Another officer standing immediately outside the cruiser told Bormann he was under arrest and not to ask any questions, but Bormann spoke again. Frustrated, the officer told Bormann to "shut the [expletive] up." The officer in the cruiser told Bormann, "I am not asking you any questions, but if you want to talk, I'm listening." Bormann said that he had been at home watching a professional football game on television and that he became upset due to officiating calls by the referees. Bormann said he became further upset, found his deer rifle, got into the car, and drove around. The officer in the cruiser said that Bormann "abruptly ended by saying [he] didn't shoot

279 Neb. 323

anybody." Bormann had not been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at that time.

Bormann was transported to the Omaha Police Department's headquarters by a third officer. Without being questioned, Bormann asked the third officer which team he preferred in the football game Bormann had been watching. A short while later, Bormann volunteered that he was "sorry for everything that happened tonight."

At police headquarters, Bormann was placed in an interview room. A videotape recording of the interview was received into evidence at trial over Bormann's objection. The videotape shows that Bormann was left alone for about 8 minutes before a detective entered and asked Bormann for identification. Bormann said he had none. The detective left, returned with a notepad, and asked Bormann for his name, date of birth, address, telephone

777 N.W.2d 834

number, and Social Security number. Bormann was again left alone for about 20 minutes.

When the detective returned, Bormann had his head down on the table and appeared to be asleep. The detective roused Bormann and asked if he had any sharp instruments in his possession. The detective reviewed the biographical information he had obtained previously from Bormann and offered him water. The detective left the room, returned with water, and left again.

Approximately 8 minutes later, the detective returned. Bormann asked to call his parents. The detective said he would call them if it was necessary after he and Bormann talked for a while. Bormann was again asked for biographical information, including his age, name, date of birth, address, and previous address. Bormann described where he had lived for the prior several years and where he had attended high school. The detective explained that the questions were to ensure that Bormann understood English. Bormann said that he had good grades in high school and had attended 1 year of college. Bormann stated that he can read but has problems with comprehending what he has read.

Bormann said he understood what the detective was saying. He described his history of drug use and stated he had

279 Neb. 324

used marijuana a few weeks earlier. While in college, he used cocaine and had been charged with possession. He was not using cocaine at the time but had recently abused inhalants. He said he had been drinking that night while watching football on television and had consumed a bottle of whiskey.

Bormann was asked whether he took any prescription medication and whether he had any disabilities. He denied taking any medication other than Tylenol for headaches. Bormann was advised that the detective was trying to determine whether Bormann understood what was going on and to make sure Bormann understood what was being said.

The detective said he wanted to give Bormann a chance to talk. At that point, about 1 hour after the videotape began, Bormann was read the Miranda rights advisory. He signed the rights advisory form and eventually acknowledged that he had committed the homicide by shooting from his parked car into Williams' vehicle. He was unable to explain any reason for the shooting.

Bormann was charged with first degree murder and use of a deadly weapon to commit a felony. A motion to suppress his statements was overruled. The trial court found that Bormann's statements in the police cruiser were not the product of interrogation and did not require Miranda warnings because Bormann was not being interrogated. The court found no evidence of a police practice intended to elicit an incriminating response. The officer's direction to sit back and relax did not compel Bormann to talk. There was no evidence that Bormann was susceptible to persuasion. The court found that Bormann persisted in talking even when he was directed to remain quiet.

The trial court found that Bormann's statement while being transported to police headquarters was made freely and voluntarily. His statement that he was "sorry for everything that happened tonight" was spontaneous and therefore admissible. The court concluded that because Bormann's statement in the cruiser was admissible, his videotaped statement at police headquarters was not derivative of an earlier inadmissible statement.

The trial court found the videotaped statement was admissible as a "`routine booking exception'" to Miranda and that

777 N.W.2d 835
279 Neb. 325

the questions asked at the beginning of the interview fell within the routine booking exception. Although questions were asked about Bormann's use of drugs and alcohol, the questions were asked to determine whether Bormann was able to answer questions at that time.

The trial court determined that a brief reference to the death penalty made during the questioning of Bormann at police headquarters did not make his videotaped statement involuntary. The court found that the detective referred to the death penalty only briefly and did not use it as a threat or inducement.

The jury found Bormann guilty of second degree murder and use of a weapon to commit a felony. He was sentenced to a term of 60 years to life in prison on the murder conviction and a consecutive term of 20 to 30 years for the firearm conviction. He appeals.


Bormann's assignments of error, summarized and restated, claim that the trial court erred in admitting his statements into evidence. He argues the court erred in admitting the statement made in the police cruiser, because he was not given Miranda warnings prior to the statement. He claims that the videotaped statement was made without a knowing, voluntary, and intelligent waiver of the right to counsel and the right against self-incrimination and that the questioning exceeded the scope of the exception to Miranda for routine booking questions. Bormann also alleges that the videotaped statement at police headquarters was the product of threats, coercion, or inducements of leniency, in violation of the Due Process Clauses of the federal and state Constitutions. Bormann also claims that the court erred in giving...

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