State v. Haynie

Citation239 Neb. 478,476 N.W.2d 905
Decision Date15 November 1991
Docket NumberNo. 90-453,90-453
PartiesSTATE of Nebraska, Appellee, v. Tony L. HAYNIE, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Police Officers and Sheriffs: Arrests: Probable Cause. When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect is committing or has committed a crime, the officer has probable cause to arrest without a warrant. The key to a lawful arrest without a warrant is reasonable or probable cause to believe that a person has committed a crime.

2. Police Officers and Sheriffs: Arrests: Probable Cause. A peace officer has statutory authority to arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a felony.

3. Police Officers and Sheriffs: Arrests: Probable Cause. Neb.Rev.Stat. § 29-404.03 (Reissue 1989) provides that in determining whether reasonable cause exists to justify an arrest, a law enforcement officer may take into account all facts and circumstances, including those based upon any expert knowledge or experience which the officer in fact possessed, which a prudent officer would judge relevant to the likelihood that a crime has been committed and that the person to be arrested has committed it, and for such purpose the officer may rely on information he receives from any informant whom it is reasonable under the circumstances to credit, whether or not at the time of making the arrest the officer knows the informant's identity.

4. Police Officers and Sheriffs: Arrests: Probable Cause. Neb.Rev.Stat. § 29-404.03 (Reissue 1989) provides that an anonymous tip may be considered along with other facts and circumstances to determine reasonable cause.

5. Constitutional Law: Search and Seizure: Arrests: Probable Cause. Under certain circumstances an anonymous letter can provide probable cause requisite to a search warrant, and the fourth amendment to the U.S. Constitution makes no distinction in the standards applicable to a determination of probable cause for arrest and probable cause for search and seizure.

6. Probable Cause: Warrants. It is necessary to examine the totality of the circumstances for determining whether an informant's tip establishes probable cause for issuance of a warrant.

7. Constitutional Law: Search and Seizure: Arrests: Probable Cause. Anonymous tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise "perfect crimes." While a conscientious assessment of the basis for crediting such tips is required by the fourth amendment, a standard that leaves virtually no place for anonymous citizen informants is not.

8. Search and Seizure: Arrests: Probable Cause. When considering the sufficiency of probable cause based on information supplied by an informant, it is important to distinguish the police tipster, who acts for money, leniency, or some other selfish purpose, from the citizen informer, whose only motive is to help law officers in the suppression of crime. Reliability still must be shown, but it may appear by the very nature of the circumstances under which the incriminating information became known.

9. Confessions: Evidence: Proof. A statement of a suspect, to be admissible, must be shown by the State to have been given freely and voluntarily and not to have been the product of any promise or inducement--direct, indirect, or implied--no matter how slight. However, this rule is not to be applied on a strict, per se basis. Rather, determinations of voluntariness are based upon an assessment of all of the circumstances and factors surrounding the occurrence when the statement is made.

10. Confessions: Proof. Some of the material considerations in determining the voluntariness of statements made by defendants in the context of inducements by prosecuting authorities include whether (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.

11. Confessions: Appeal and Error. Whether a defendant's statements resulted from an officer's promise is a question of fact. In determining whether the findings made by the trial court in that regard are clearly wrong, the Supreme Court takes into consideration that the trial court observed the witnesses testify during the hearing.

12. Confessions: Appeal and Error. Voluntariness of an admission or confession is determined by the totality of the circumstances, and a determination by the trial court that a confession was made voluntarily will not be overturned on appeal unless clearly wrong.

13. 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.

14. Sentences: Appeal and Error. As a general rule, a sentence imposed within the limits prescribed by statute will not be set aside as excessive absent an abuse of discretion.

15. Sentences. Generally, it is within the trial court's discretion to direct that sentences imposed for separate crimes be served consecutively.

16. Sentences. In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime.

17. Sentences. It is the minimum portion of an indeterminate sentence which measures its severity.

18. Sentences. A sentence imposed on a criminal defendant ought not exceed the minimum period consistent with protection of the public, gravity of the offense, and rehabilitative needs of the defendant.

19. Criminal Law. One of the primary functions of the criminal law is to protect individuals and society from the depredations of the criminally bent.

Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, and Phillip G. Wright, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Elaine A. Chapman, Lincoln, for appellee.

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

HASTINGS, Chief Justice.

Defendant, Tony L. Haynie, appeals from the bench trial convictions of six counts of robbery and one count of attempted robbery and his sentences to consecutive terms of imprisonment totaling not less than 68 nor more than 185 years. He assigns as error the admission of his confession into evidence and the excessiveness of the sentences.

Thirteen robberies had occurred in Omaha in which the suspect had been identified as a tall and slender black male around 20 years of age with short hair. The suspect was reported to have a red eye and used a cloth covering over his arm to conceal an alleged weapon. An anonymous tip was provided naming the defendant as the alleged robber. The anonymous caller described the defendant as a thin 28-year-old black male, 6 feet 1 inch tall, with short hair. According to the caller the suspect was unemployed, but had large sums of money and had told friends that he was going to rob 7 Eleven stores to pay for drugs. Robberies had in fact occurred at a 7 Eleven store, a Goodrich Dairy store, and doughnut, pharmacy, and grocery stores, and a robbery had been attempted at a Kwik Shop. The caller said that the suspect had a red eye as a result of a fight with "Crips," was known as Tony and Slim, and could be found occasionally at 4226 Wirt Street.

Police officers who had investigated the robberies reported that the suspect was unemployed, but had money and used crack cocaine. Following receipt of the anonymous tip a general police broadcast was issued for Haynie's arrest. The defendant was not found at the Wirt Street address, but neighbors described a car in which they had seen Haynie. After a police officer located the car, the defendant was found at a residential address and arrested. The defendant was advised of his constitutional rights and indicated that he was willing to make a statement. The defendant then confessed to committing 13 robberies. The interrogating officer denied that he made any promises or threats in exchange for the defendant's statement, but said that he told the defendant during the questioning that he would make a report and indicate that the defendant talked freely, without any hesitation, and that would probably be taken into consideration on how many cases were filed against him. The defendant in fact was 6 feet 3 inches tall, weighed 172 pounds, was 29 years of age, and had a red eye when he was arrested.

Defendant made a pretrial motion to suppress all statements made by him to police officers because they were not freely and voluntarily made, were coerced by threats and promises, and were the fruit of an unlawful arrest. The motion was overruled, the defendant waived his right to a jury trial, and the parties stipulated that the police reports would be the only evidence adduced at trial. However, defendant renewed his objection to the admission of his statement. Other than the claimed excessiveness of the sentences, this is the only issue in dispute. The presentence investigation report revealed that the defendant had been fined $25 in 1985 for a welfare fraud...

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