State v. Caha, 37009
| Decision Date | 28 February 1969 |
| Docket Number | No. 37009,37009 |
| Citation | 184 Neb. 70,165 N.W.2d 362 |
| Parties | STATE of Nebraska, Appellee, v. Francis S. CAHA, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A confession given to a police officer in a patrol car while defendant was being questioned concerning an unsolved crime of statutory rape was not the product of a process of interrogation aimed at eliciting incriminating statements from the defendant and was admissible, despite the lack of a warning to the defendant of his right to remain silent where the police officer merely asked the defendant to explain any relationship he may have had with the prosecutrix.
2. In a prosecution for rape where no request for such an instruction is made, it is not error for the trial court to fail to instruct on the lesser included offenses.
A. Q. Wolf, Public Defender, Bennett G. Hornstein, Asst. Pub. Defender, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
The defendant was convicted in the district court for Douglas County of the crime of statutory rape and sentenced to a term of imprisonment. The defendant has appealed.
There is no contention that the evidence is insufficient to sustain the verdict. In fact, there is little dispute in the facts except that defendant asserts that the prosecutrix a girl of the age of 14 years, voluntarily participated and that there was no penetration. Whether or not the prosecutrix voluntarily participated is not a material issue in the case. Whether or not there was penetration is a material issue on which the evidence is in conflict. On the issue of penetration, the prosecutrix testified that there was, which is supported by the evidence of a medical expert that male sperm was found in her vaginal canal shortly after the incident occurred. Defendant denies that there was any penetration which is supported to some extent by the testimony of the medical expert to the effect that the hymen of the prosecutrix was not ruptured. The medical expert further stated that a ruptured hymen does not always result from penetration. Statements made by the defendant to a police officer in which he admitted sexual relations with prosecutrix were received in evidence, the admissibility of which constitutes one of the assignments of error in the appeal.
The evidence shows that defendant persuaded or forced the prosecutrix to enter his car a short distance from her home. Defendant was a stranger to her and she described him to the police shortly after the occurrence. She described him primarily as wearing an army jacket. She had difficulty in describing defendant otherwise because of darkness and poor eyesight. She described the car as a two-door 1961 or 1962 red Chevrolet. The interior was black with black headrests. With this information, the police searched for a car with the description given. Such a car was found parked in a parking lot on the north side of the Taylor Florist Shop, although it was a later model than stated by the prosecutrix. The investigating officer observed an army fatigue jacket on the front seat of the locked car by looking through the window. The car belonged to the defendant who was employed by the Taylor Florist Shop.
The officer, Detective Sergeant John B. Gallagher, went into the Taylor Florist Shop and found that defendant worked there. Gallagher waited for defendant to return from making a delivery at which time he was asked to come outside. Gallagher testified that he talked with the defendant about his car, his family, and matters of general interest. He then gave the Miranda warnings which he recited on the witness stand in which he made no mention of defendant's right to remain silent. Defendant then told the officer about picking up the prosecutrix and engaging in sexual relations with her down near the Missouri River, some distance from the point of the pickup. He said the girl voluntarily participated in the sexual act.
Defendant was taken to the police station where, admittedly, the Miranda warnings were properly given before he was interrogated. The contention here is that Gallagher talked to defendant in his police cruiser car, that he was then in custody, and the Miranda warnings were required to be given at that time. We point out, however, that Gallagher had found a car meeting the description as given by the prosecutrix. He obtained the name of the owner of the car and proceeded to locate the owner without any information connecting it or its owner with the crime of statutory rape. He says he gave the Miranda warnings before inquiring about the alleged rape and, when asked to repeat what he told the defendant in the way of warnings, failed to mention that defendant had a right to remain silent.
The issue here is whether or not the action of the officer was investigative or an in-custody interrogation. If it was purely investigative, the Miranda warnings are not required to be given. If it was in-custody interrogation, they are required to be given. , Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. In the last-cited case it is said:
In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the court said:
Officer Gallagher testified that he asked defendant to come outside the flower shop in order that he might talk to him. They sat in the cruiser car which was parked beside defendant's car in the parking lot. The officer testified that defendant was under arrest, but the time of the arrest is not stated. Defendant was never told, so far as the record shows, when he was placed under arrest. Before asking the defendant about having the prosecutrix in his car the night before, the officer positively asserts that he gave the Miranda warnings in accordance with the Rights Advisory Form used by the Omaha Police Department. He was then asked what was contained in the Rights Advisory Form and he left out the requirement that defendant be informed of his right to remain silent. The officer testified that after giving the Miranda warnings, he said: "Tell me about the girl you had in your car last night," and defendant told the story to which the officer testified. With reference to the nature of the interrogation, the officer was asked: 'Now at the time you...
To continue reading
Request your trial
-
Cummings v. State
...the fact that an officer does not tell a suspect that he is under arrest is a circumstance tending to negate custody. State v. Caha, 184 Neb. 70, 165 N.W.2d 362 (1969). In the present case, the defendant was not under arrest, was never told that he was under arrest and had no reason to beli......
-
State v. Smith
...920 (1975); State v. Maxwell, 193 Neb. 807, 229 N.W.2d 195 (1975); State v. Warner, 187 Neb. 335, 190 N.W.2d 786 (1971); State v. Caha, 184 Neb. 70, 165 N.W.2d 362 (1969); Guerin v. State, 138 Neb. 724, 295 N.W. 274 (1940); Haynes v. State, 137 Neb. 69, 288 N.W. 382 (1939); McIntyre v. Stat......
-
Shaffer v. State
...to leave the interview at any time. The interview was conducted in the police car merely as a matter of convenience. State v. Caha, 184 Neb. 70, 165 N.W.2d 362 (1969), cert. denied 397 U.S. 939, 90 S.Ct. 949, 25 L.Ed.2d 119 (1970). Thus, Miranda warnings were not Appellants object to the ad......
-
State v. Lewis
...rule. Mere presence of an individual in a police vehicle does not necessarily amount to a custodial detention. See State v. Caha, 1969, 184 Neb. 70, 165 N.W.2d 362. It may be said that a police officer, by reason of the office itself, as the representative of governmental authority does car......