State v. Garza

• Decision Date: 20 November 1992
• Docket Number: No. S-91-283,S-91-283
• Citation: 492 N.W.2d 32,241 Neb. 934
• Parties: STATE of Nebraska, Appellee, v. Christopher M. GARZA, Appellant.
• Court: Nebraska Supreme Court

Page 32

492 N.W.2d 32

241 Neb. 934

STATE of Nebraska, Appellee, v. Christopher M. GARZA, Appellant.

No. S-91-283.

Supreme Court of Nebraska.

Nov. 20, 1992.

Syllabus by the Court

1. Confessions: Proof. The State has the burden to establish by a preponderance of the evidence that a defendant's statement was voluntary and not given as the result of coercion.

2. Confessions: Police Officers and Sheriffs: Due Process. Coercive police conduct is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the 14th Amendment.

3. Confessions: Proof. Factors to be taken into consideration in determining whether there was coercive action, thus negating the voluntariness of a defendant's statement, include that (1) defendant is in custody at the time of the statement, (2) defendant is alone and unrepresented by counsel, (3) the promise or inducement is initiated by prosecuting officials as opposed to defendant or someone acting on his or her behalf, (4) defendant is aware of his or her constitutional and other legal rights, (5) the potentially incriminating statement is part of an abortive plea bargain, (6) the promise or inducement leading to the statement is fulfilled by prosecuting authorities, and (7) defendant is subjected to protracted interrogation or evidence appears on the record to show that coercion precludes the statement from being knowing and intelligent.

4. Confessions. The voluntariness of a statement is determined by considering all the circumstances.

5. Confessions: Police Officers and Sheriffs: Self-Incrimination. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

6. Police Officers and Sheriffs. Custodial interrogation takes place by questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way.

7. Miranda Rights. If the defendant is in fact in custody or his or her movement is restricted, the procedural safeguards under Miranda require the defendant to be told that (1) he or she has the right to remain silent, (2) anything said can and will be used in court, and (3) he or she may consult an attorney, retained or appointed, and has a right to have one present during interrogation.

8. Miranda Rights. The Miranda safeguards come into play whenever one in custody is subjected to either express questioning or its functional equivalent.

9. Miranda Rights: Police Officers and Sheriffs: Words and Phrases. The term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

10. Confessions. Whether a statement is voluntary or the result of State coercion or promise is a question of fact.

11. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the trial court's findings of fact unless those findings are clearly erroneous.

12. Motions to Suppress: Appeal and Error. In deciding whether a trial court's ruling on a motion to suppress is erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that the trial court has observed the witnesses testifying in regard to such motion.

13. Confessions: Appeal and Error. A trial court's preliminary determination that a statement was made voluntarily will not be disturbed on appeal unless clearly wrong.

14. Confessions: Police Officers and Sheriffs: Miranda Rights: Waiver. The admissibility of a conversation between an accused and the police after the accused's earlier invocation of the rights to counsel and to remain silent is determined by whether the accused initiated the conversation and, if so, whether the accused knowingly and intelligently waived those rights.

15. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and Error. An appeal from the denial of a transfer of a criminal case to juvenile court is reviewed for an abuse of discretion.

16. Criminal Law: Courts: Juvenile Courts: Jurisdiction. There is no arithmetical computation or formula required in a court's consideration of the statutory criteria or factors for transferring a criminal case to the juvenile court.

17. Criminal Law: Courts: Jurisdiction: Minors. For retention of a criminal case against a juvenile, the district court need not resolve every factor against the juvenile; neither are there any weighted factors.

18. Criminal Law: Courts: Juvenile Courts: Jurisdiction. The statutory criteria or factors specified by Neb.Rev.Stat. § 43-276 (Reissue 1988) to transfer a criminal case to the juvenile court impose a balancing test by which public protection and societal security are weighed against practical and not problematical rehabilitation of the juvenile.

19. Constitutional Law: Juries: Discrimination: Proof. In order to establish a prima facie violation of the fair-cross-section requirement under the Sixth Amendment, a defendant must show (1) that the group alleged to be excluded is a distinctive group in the community, (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.

20. Equal Protection: Discrimination: Proof. In equal protection challenges the burden is on a defendant to prove the existence of purposeful discrimination.

21. Juries: Discrimination: Proof. Purposeful discrimination may be established by proof of a disproportionate impact, which is demonstrated by showing that a defendant's cognizable racial group has not been summoned for jury service over an extended period of time or that his or her group is substantially underrepresented on the venire and that the venire was chosen under a practice providing the opportunity for discrimination.

22. Juries. A defendant has no right to a petit jury composed in whole or in part of members of his or her race.

23. Juries: Discrimination. The absence of members of a defendant's race on the jury, standing alone, does not support a claim of improper racial composition.

24. Constitutional Law: Equal Protection: Juries: Discrimination: Proof. A defendant cannot, under either a Sixth Amendment or an equal protection challenge, simply allege that no minorities are on the jury, but has the burden of establishing systematic exclusion and purposeful discrimination.

25. Juror Qualifications. A state may exclude aliens from jury service.

26. Due Process: Convictions: Proof. In order to comport with the Due Process Clause of the 14th Amendment, criminal convictions may be had only upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which a defendant is charged.

27. Due Process: Jury Instructions. When a trial court improperly defines reasonable doubt in its jury instructions, due process is not achieved.

28. Trial: Appeal and Error. An objection to the prosecutor's argument made after the jury has been instructed and has retired is untimely and will not be reviewed on appeal.

Michael T. Levy, of Levy & Lazer, P.C., Omaha, for appellant.

Don Stenberg, Atty. Gen., and J. Kirk Brown, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

Pursuant to a verdict, the defendant-appellant, Christopher M. Garza, was adjudged guilty of first degree murder, in violation of Neb.Rev.Stat. § 28-303 (Reissue 1989), and of using a firearm during the commission of a felony, in violation of Neb.Rev.Stat. § 28-1205 (Reissue 1989). He was thereafter sentenced to life imprisonment for the murder and to imprisonment for a period of not less than 6 2/3 nor more than 20 years for the use of the firearm, the sentences to run consecutively. Garza assigns seven errors, which combine to assert that the district court (1) wrongly failed to suppress his statements, (2) wrongly failed to transfer the case to the juvenile court, (3) wrongly failed to quash the jury panel, (4) wrongly instructed the jury, and (5) wrongly failed to grant a new trial because of the prosecutor's conduct. We affirm.

II. FACTS

When she was killed on March 21, 1990, the victim, Christina O'Day, was a 17-year-old high school senior. Garza, having been born on May 23, 1973, was then 16 years old, and Wayne K. Brewer, the other individual involved, see State v. Brewer, 241 Neb. 24, 486 N.W.2d 477 (1992), was then 18 years old.

Beginning in March 1989, the victim's employer started working the night shift and thus arranged for the victim to spend the night at her house to take care of her 8-year-old daughter. The victim would drive to the employer's house between 10:45 and 11:10 p.m. and park her automobile in the garage; the employer would then go to work. On Mondays, the employer usually attended a university class from 7 to 9:45 p.m. and would go to work directly from the university.

Garza had met Brewer in February 1990 at a local fast-food restaurant where they both worked. Shortly thereafter, the two became friends and began to do things together on a regular basis.

Garza claimed that on Monday, March 19, 1990, he and Brewer went to visit with Garza's mother. Since it appeared that his mother was asleep, Garza drove out of the area, but missed a turn and ended up on the street where the victim...