State v. Boyer

• Decision Date: 02 April 1982
• Docket Number: No. 44325,44325
• Citation: 318 N.W.2d 60,211 Neb. 139
• Parties: STATE of Nebraska, Appellee, v. William R. BOYER, Appellant.
• Court: Nebraska Supreme Court

Page 60

318 N.W.2d 60

211 Neb. 139

STATE of Nebraska, Appellee, v. William R. BOYER, Appellant.

No. 44325.

Supreme Court of Nebraska.

April 2, 1982.

Syllabus by the Court

1. Arrests. A warrantless arrest can be made only if there exists reasonable cause to believe a felony has been committed and the person to be arrested is guilty of the offense.

2. Confessions. To be admissible in evidence, a confession must be freely and voluntarily given. It cannot be induced by promises, or coerced by threats.

3. Confessions. A "totality of the circumstances" test is followed in which factors such as age, mental condition, education, the atmosphere in which the interrogation is conducted, and any other factor which may bear on the question is considered in determining "knowing voluntariness."

4. Confessions. A person under the influence of drugs may be unable to knowingly and voluntarily make a valid, useful confession.

5. Confessions: Appeal and Error. A finding by the trial court that a statement made by the accused is voluntary will not ordinarily be set aside on appeal unless clearly erroneous.

6. Criminal Law: Venue: Appeal and Error. A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court and its ruling will not be disturbed on appeal unless a clear abuse of discretion is shown.

7. Juror Qualifications: Appeal and Error. In order to predicate error on the overruling of a challenge for cause, there must be a showing that the objectionable juror was forced upon the challenging party and sat on the jury because such party had exhausted his preemptory challenges.

8. Evidence: Criminal Law: Constitutional Law. The State's suppression of evidence favorable to and requested by an accused violates due process where the evidence is material, irrespective of the good or bad faith of the prosecution.

9. Evidence: Criminal Law: Constitutional Law. The proper standard of materiality is constitutionally violated if the omitted evidence creates a reasonable doubt of guilt that did not otherwise exist.

10. Evidence: Criminal Law: Words and Phrases. "Suppression" means nondisclosure of evidence that the prosecutor, and not the defense attorney, knew to be in existence.

Leo J. Eskey of Eskey & Gless, Fremont, for appellant.

Paul L. Douglas, Atty. Gen. and Terry R. Schaaf, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

CAPORALE, Justice.

A jury found the defendant-appellant, William R. Boyer, guilty of murder in the first degree. The District Court entered judgment on the verdict and sentenced the defendant to life imprisonment.

The defendant asserts the trial court erred in (1) admitting his confession into evidence, claiming it to have been the product of an illegal arrest and not voluntarily made; (2) failing to change venue; (3) failing to grant a mistrial due to the prosecution's failure to produce certain evidence upon motion of the defendant; and (4) submitting the question of guilt to the jury as the evidence was insufficient. We find the assignments of error to be without merit and affirm.

On July 15, 1980, around 9:30 a. m., the Fremont 911 emergency operator received a call from a male voice which stated his mother had fallen and needed a rescue squad at 2145 North I Street, the residence of both the victim and the defendant in this case. When the rescue squad arrived, they discovered the victim had been shot rather than had fallen. It appeared, because of the presence of broken glass at the front door, as though forcible entry had been made into the home. It was learned a neighbor had seen the victim's son, William, around the house that morning. The neighbor had been alerted by the victim, Donna Boyer, to call Donna at work if William should show up. The neighbor did so. In light of this information, the police issued a broadcast over local radio announcing they were seeking William Boyer for purposes of questioning. Around 1:15 p. m. that same day the defendant voluntarily appeared at the Fremont Police Department. After being put in the captain's office, he was greeted by Detective Tellatin and led to an interview room where he was promptly arrested and read his Miranda rights. Defendant answered various questions revealing that he understood each of his rights, knew any statement he made could be used against him, and waived all his rights, including the right to have an attorney present. Immediately following, Boyer confessed to the crime. He consented to having his car searched and told the police the shotgun he used was in the back seat of his car. The car was searched, and a weapon was found.

The evidence reveals the defendant had an argument with his parents the evening prior to the murder and had spent the night sleeping in his car. He was outside that morning when his mother arrived home after receiving a phone call at work. She told him not to go into the house. In spite of her warning, he ran into the house, into his bedroom, and locked the bedroom door behind him. He got a shotgun out of his closet and loaded it. Mrs. Boyer knocked on the door, demanding entrance. The defendant opened the door, at which time the victim told him to pack his suitcase and leave the house. At that time the defendant retrieved the gun from under his bed and shot her.

As part of the defendant's first assignment of error, he contends he was arrested illegally, without probable cause, and as such his confession should be excluded as "fruit of the poisonous tree." The police did not have an arrest warrant at the time of arrest. A warrantless arrest can be made only if there exists reasonable cause to believe a felony has been committed and the person to be arrested is guilty of the offense. State v. Coleman, 197 Neb. 186, 247 N.W.2d 627 (1976). Obviously, the discovery of a gunshot victim indicates a felony was committed. In addition to that, the Boyers had two children, a son and a daughter. In light of the fact the 911 call was made by a male voice referring to the victim as his mother, the inference it was the defendant who called was a strong one. After checking with neighbors, the police learned that one of them, a Mary Pollock, had talked to the victim on the morning of her murder. Mrs. Boyer had told her neighbor that her son, the defendant, was not to be around the house, and if he should appear, she, the victim, was to be called at work. The defendant did appear, and the neighbor did call as instructed. The neighbor thought Mrs. Boyer indicated she was coming home. Further, broken glass in the front door indicated forcible entry and points to defendant. Lastly, the 911 caller left the house after making the call. These facts in combination provide adequate probable cause to arrest defendant. There was no "fruit of the poisonous tree."

As part of the first assignment of error, the defendant also argues his confession was involuntary. To be admissible in evidence, a confession must be freely and voluntarily given. It cannot be induced by promises, or coerced by threats. State v. Muenchau and Brown, 209 Neb. 552, 308 N.W.2d 824 (1981). State v. McDonald, 195 Neb. 625, 240 N.W.2d 8 (1976). The defendant argues that the shock of his mother's death, his arrest, his previous history of psychiatric problems, and the influence of amphetamines combined to render him unable to make a knowing and voluntary confession. A "totality of the circumstances" test is followed in which factors such as age, mental condition, education, the atmosphere in which the interrogation is conducted, and any other factor which may bear on the question are considered in determining "knowing voluntariness." State v. Smith, 203 Neb. 64, 277 N.W.2d 441 (1979); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977). See, also, Wilson v. Sigler, 333 F.Supp. 594 (D.Neb.1971), aff'd 449 F.2d 1352 (8th Cir. 1971).

The Supreme Court of the United States has held a person under the influence of drugs may be unable to knowingly and voluntarily make a valid, useful confession. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Beecher v. Alabama, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1972); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In each of these three cases cited by the defendant, the confessor was under the influence of some type of pain killer to relieve the pain of police gunshot wounds. The drugs were either administered by the police or hospital personnel. Therefore, no doubt existed as to whether the defendant in those cases was actually under the influence of the drug, unlike the situation at bar where the defendant alleges self-ingested amphetamines. The record reflects that though the defendant appeared somewhat nervous, and at one point appeared as though he were going to cry, he nonetheless maintained good composure under the circumstances. He understood the questions, the questions were not leading, he was in control of his responses, he was not confused, and his answers had a logical nexus to the questions. There is nothing to suggest that the illness he suffered from ingesting insecticide some 3 years earlier affected his answers. The defendant was promised nothing for his confession, nor was he threatened. The record establishes he fully understood his rights.

A finding by the trial court that a statement made by the accused is voluntary will not ordinarily be set aside on appeal unless the finding is clearly erroneous. State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979). The trial court's decision that the confession was voluntary is amply supported by the evidence.

The defendant next alleges the court erred in failing to grant a change of venue because of extensive local pretrial publicity. In this state, a motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court and its ruling will not be...