State v. George

• Decision Date: 12 March 1982
• Docket Number: No. 44063,44063
• Citation: 317 N.W.2d 76,210 Neb. 786
• Parties: STATE of Nebraska, Appellee, v. Joseph S. GEORGE, Jr., Appellant.
• Court: Nebraska Supreme Court

Page 76

317 N.W.2d 76

210 Neb. 786

STATE of Nebraska, Appellee, v. Joseph S. GEORGE, Jr., Appellant.

No. 44063.

Supreme Court of Nebraska.

March 12, 1982.

Syllabus by the Court

1. Arrests. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), will be applied retroactively as the uniform decision of our cases to the extent it applies to all cases not final April 15, 1980.

2. Arrests. It is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home.

3. Confessions. The standards to determine the admissibility of statements made after an illegal arrest are: (1) The administration of the Miranda warnings to the defendant prior to the statement; (2) The temporal proximity of the arrest and the confession; (3) The intervening circumstances between the initial detention and the challenged statements; (4) The purpose and flagrancy of the official misconduct; and (5) The voluntariness of the statement must be established.

Dennis R. Keefe, Lancaster County Public Defender, and Richard L. Goos, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Bernard L. Packett, Lincoln, for appellee.

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

WHITE, Justice.

The appellant, Joseph S. George, Jr., appeals from a conviction based upon a jury verdict finding him guilty of first degree sexual assault of a person under the age of 16 years. The trial court sentenced George to the Nebraska Penal and Correctional Complex for a term of not less than 14 years nor more than 20 years, said sentence to run consecutive to a current term being served.

The appellant assigns the following errors: (1) The trial court erred in failing to find that the appellant's arrest was effectuated without probable cause in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); (2) The trial court erred in failing to suppress certain statements made by the appellant to a police officer shortly after his arrest; (3) The court erred in failing to grant a motion for mistrial based on comments made by the prosecutor during opening statements; and (4) The court erred in concluding that Payton v. New York, supra, had no application to the appellant's case.

The evidence established that on August 6, 1979, the victim, a 10-year-old boy, while on his way to a friend's home approximately 2 blocks away, was approached by a man, later identified as the appellant, who asked him if he wanted to make some money packing glasses. The appellant offered the victim $20 to go to a vacant apartment. Once in the apartment, the victim was threatened with a knife. According to the victim's testimony, he was forced, at knifepoint, to engage in oral copulation with the appellant. The victim further testified that after engaging in oral copulation, the appellant forced him to lie face down on a bed and spread his legs, at which time the appellant attempted anal intercourse on the victim. The victim reported the assault to his mother who immediately called the police. The victim reported the assault to the police, gave a composite description of the suspect, showed the police the apartment in which the assault occurred, and was taken to Lincoln General Hospital for examination.

Approximately 1 week after the incident, Officer John Winkler of the Lincoln Police Department received information from a confidential informant that the appellant was involved in the sexual assault. The confidential informant told Winkler "an individual came to his place of business and gave him the information about an acquaintance having some trouble in regards to sexually assaulting an individual. She described the individual and the individual that gave me the information stated that those particular parties come into his place of business and he was well aware of what had happened and with this information he called me." The officer further testified that while he did not personally know the informant, the informant knew the appellant's fiancee and she was the person who told the informant that appellant was responsible for the sexual assault. The informant also knew the victim and his mother.

With this information, Officer Winkler set up a photographic lineup consisting of the appellant's mug shot and three other mug shots. The victim positively identified George as the person who had assaulted him.

Without obtaining a warrant, Officer Winkler went to the apartment occupied by the appellant and his fiancee to effectuate an arrest. The officer testified that he went to the apartment with the specific intent of arresting the appellant. The officer further testified that George answered the door and he, the officer, informed George that he would have to come to police headquarters. The record does not clearly establish whether Officer Winkler entered the apartment. However, defense counsel asked: "I mean at least when you walked in and said he had to come to the station, he was not free to leave?" Officer Winkler replied: "Right, he couldn't leave." Officer Winkler never denied defense counsel's implication that he entered the apartment.

George was immediately conveyed to police headquarters, placed in an interrogation room, and shortly thereafter was read his Miranda warnings. George then gave Officer Winkler a statement, orally confirming the events of the assault as related by the victim immediately after the assault. In the statement George stated that he did not remember if he had forced the victim to engage in oral copulation with him. In response to a question of whether he attempted anal intercourse with the victim, George stated he did not remember if he did this or not. At trial, appellant testified on his own behalf and denied that there was any penetration.

Appellant contends that his arrest was made without probable cause and therefore the statements obtained from him at police headquarters are inadmissible as the "fruit of the poisonous tree" and should have been excluded from evidence. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Appellant further contends that his warrantless arrest was illegal under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), since it took place in his apartment and there was no showing of exigent circumstances or a consensual arrest.

Payton was decided subsequent to the trial and conviction but prior to appellant's sentencing and ruling on his motion for new trial. Throughout the proceedings, defense counsel asserted the inadmissibility of the statements. Defense counsel asserted that the statements were inadmissible since they were obtained in violation of the appellant's Miranda rights and further on the ground that the arrest was made without probable cause. The appellant testified that he had requested counsel and had been refused access to counsel.

We find no merit in appellant's contention that his arrest was made without probable cause. Nebraska statutes provide that an officer may arrest without a warrant when it appears that a felony has been committed and there are reasonable grounds to believe that the person arrested has committed the offense. Neb.Rev.Stat. § 29-404.02 (Reissue 1979). At the time of the arrest, the arresting officer had sufficient information linking the appellant to the sexual assault. The officer had a description of the appellant from the victim, a description of the place where the assault took place, information from a medical examination which revealed some evidence of trauma to the victim's anus and the presence of secretions consistent with the appellant's blood type on the victim's underwear. In addition to this, the officer had reliable information from a confidential informant that the appellant had committed the sexual assault. The officer had a photograph of the appellant which was consistent with the descriptions given by the victim and the informant. Finally, the victim positively identified the appellant in a photographic lineup. Based on this information, Officer Winkler had probable cause to believe that a felony had been committed and that the appellant had committed the felony.

Appellant's contentions that the photographic array was tainted because three of the four pictures contained men with long hair and beards while the appellant's hair is short and he has only a mustache is well taken. The array itself appears to be tainted; however, in looking at the totality of the circumstances, the victim had a good look at his assailant and gave an accurate description. The lineup was not prejudicial since the victim had an independent basis from which he made a positive identification. The more serious question arises, however, with respect to the actual arrest of the appellant at his apartment. Officer Winkler testified that he had no reason to believe that the appellant was about to leave town and gave no evidence that would justify the court to find that the circumstances were exigent. Officer Winkler was not permitted to answer the question, "Why did you not go and get an arrest warrant?"

In State v. Smith, 209 Neb. 505, 308 N.W.2d 820 (1981), we left open the question of whether Payton should be applied retroactively. While not expressly applying Payton, this court has, in several cases before it, impliedly followed the Payton ruling. In State v. Schlothauer, 207 Neb. 663, 300 N.W.2d 194 (1981), a verdict was rendered prior to the Payton decision but the case was before this court when Payton was finally decided. This court remanded to determine whether or not there were exigent circumstances justifying the entry into the home and whether the subsequent arrest was consensual.

In State v. Resler, 209 Neb. 249, 306 N.W.2d 918 (1981), this court cited Payton as standing for the proposition that a police officer who has not obtained either an arrest or search warrant cannot...