State v. Davis, 36201
| Decision Date | 11 November 1966 |
| Docket Number | No. 36201,36201 |
| Parties | STATE of Nebraska, Appellee, v. Donald Henry DAVIS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Separate informations filed against two or more defendants may be consolidated for trial if the defendants are charged with having participated in the same act or transaction that constitutes the offense.
2. The right to a separate trial now depends upon a showing that prejudice will result from a joint trial.
3. In the absence of a showing of an abuse of discretion, the ruling of the trial court upon a motion for severance will not be disturbed.
4. A confession of guilt is not admissible in evidence unless it is first shown to have been voluntarily made. Under Nebraska procedure the admission of a confession in evidence constitutes the trial court's independent determination that the confession is voluntary.
5. In determining whether a confession is voluntary the trial court should consider all of the evidence.
6. Where the accused was informed of his right to counsel and warned of his right to remain silent, and thereafter confesses to participation in a crime, there is no rule excluding the use of such a confession because of lack of counsel.
7. Where the evidence as to what occurred immediately prior to and at the time of the making of a confession shows that it was freely and voluntarily made and excludes the hypothesis of improper inducements or threats, the confession is voluntary and may be received in evidence.
Adolph Q. Wolf, Public Defender, Fred J. Montag, Michael McCormack, Bennett G. Hornstein, Lynn R. Carey, Jr., Asst. Public Defenders, Omaha, for appellant.
Charence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and NEWTON, District Judge.
The defendant, Donald Henry Davis, was convicted of murder in the perpetration of a robbery and sentenced to life imprisonment. His motion for new trial was overruled and he has appealed.
The robbery took place at the Sip' N-Chin Bar in Omaha, Nebraska, on August 18, 1964. The record shows that the defendant waited outside the bar in an Oldsmobile automobile owned by his father while Jerome Erving, Jr., Deborah Boston, and Nathaniel Hall entered the bar, committed the robbery, and shot and killed the bartender. After the robbery, Erving and Deborah Boston reentered the Oldsmobile outside the bar and Hall was picked up about a block west of the bar.
After the robbery the police broadcast a description of the Oldsmobile automobile. About 20 minutes later a southbound police cruiser observed it going north on Twenty-sixth Street. While the police cruiser was making a U-turn, the Oldsmobile turned east on a side street where it was abandoned. When found it contained a bottle of whisky that had been taken from the Sip' N-Chin Bar. The defendant was traced through the registration of the automobile. He was arrested at his girl friend's house shortly after 10 p.m. and taken to the police station.
Upon the motion of the State, the defendant's case was consolidated for trial with the cases of Deborah Boston and Jerome Erving, Jr. The first assignment of error relates to the consolidation of the cases for trial and the overruling of the defendant's later motions for severance.
The second assignment of error relates to the procedure which the trial court followed in determining whether the statements made by the defendant should be admitted in evidence. Identical assignments of error were considered in State v. Erving, Neb., 146 N.W.2d 216, and determined adversely to the contentions of the defendant. For the reasons stated in State v. Erving, supra, we find these two assignments of error to be without merit.
The third assignment of error relates to the admission in evidence of statements which the defendant made after his arrest. The defendant contends that the confessions were involuntary, were the fruit of an unlawful arrest, and that he was denied the right to counsel.
The first statement was made to Pitmon Foxall, a detective sergeant of the Omaha police department. Sergeant Foxall was permitted to testify over objection, after a foundational hearing had been held out of the presence of the jury, that he first talked with the defendant on the morning of August 19, 1964. At that time the defendant did not want to talk to sergeant Foxall so the conversation was brief and not more than 5 or 10 minutes in length. That evening sergeant Foxall again interviewed the defendant and obtained an oral statement as to his participation in the crime. Sergeant Foxall testified that on each occasion he had first advised the defendant of his right not to answer questions, that any statement he made might be used against him, and of his right to have a lawyer.
The second statement was made early the next morning to a deputy county attorney in the presence of a court reporter. The stenographic report of this interview shows that before the...
To continue reading
Request your trial
-
State v. Williams
...or confession constitutes the trial court's independent determination that the statement was voluntarily made. See State v. Davis, 180 Neb. 830, 146 N.W.2d 220, cert. den., 386 U.S. 998, 87 S.Ct. 1320, 18 L.Ed.2d 348. A finding by the trial court that a statement of an accused is voluntary ......
-
Erving v. Sigler
...details of the robbery and shooting have already been set forth in Davis v. Sigler, 415 F.2d 1159 (C.A.8th Cir. 1969), State v. Davis, 180 Neb. 830, 146 N.W.2d 220 (1966), and State v. Erving, supra, there is no need for extensive exposition of the facts of the crime Attention needs to be t......
-
Erving v. Sigler
...v. Erving, 180 Neb. 824, 146 N.W.2d 216 (1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1320, 18 L.Ed.2d 348 (1967), and State v. Davis, 180 Neb. 830, 146 N.W.2d 220 (1966) cert. denied, 386 U.S. 998, 87 S.Ct. 1320, 18 L.Ed.2d 348 Davis was later successful in securing a writ of habeas corpus ......
-
Davis v. Sigler, 19319.
...Neb. R.R.S. 1943 § 28-401 (1964). He received a life sentence. On appeal the judgment of conviction was affirmed. State v. Davis, 180 Neb. 830, 146 N.W.2d 220 (1966). Certiorari was denied. Erving v. Nebraska, 386 U.S. 998, 87 S.Ct. 1320, 18 L.Ed.2d 348 The homicide and Davis' presence in a......