State v. Irwin

• Citation: 214 N.W.2d 595,191 Neb. 169
• Decision Date: 25 January 1974
• Docket Number: No. 38515,38515
• Parties: STATE of Nebraska, Appellee, v. Harold J. L. IRWIN, Appellant.
• Court: Supreme Court of Nebraska

Page 595

214 N.W.2d 595

191 Neb. 169

STATE of Nebraska, Appellee, v. Harold J. L. IRWIN, Appellant.

No. 38515.

Supreme Court of Nebraska.

Jan. 25, 1974.

Syllabus by the Court

1. The brief detention of a citizen based upon an officer's reasonable suspicion that criminal activity may be afoot is permissible for the purpose of limited inquiry in the course of routine investigation, and any incriminating evidence which comes to that officer's attention during this period of detention may become a reasonable basis for effecting a valid arrest.

2. Probable cause justifying an arrest without warrant exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing the offense has been committed and that the defendant committed it.

3. The existence of probable cause must be determined by a practical and not by any technical standard.

4. A peace officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a felony. § 29--404.02, R.S.Supp., 1972.

5. In the context of this case where it is possible that the questioning officer took the defendant's remark that 'maybe I should talk to an attorney' not as a request that the interrogation cease but as a passing remark, there was no denial of counsel under Miranda.

6. Before admissions or confessions may be considered as evidence of guilt, the evidence pertaining to the making thereof must be such as will justify a finding by a jury beyond a reasonable doubt that they were freely, voluntarily, and intelligently made.

7. If a defendant is in custody of law enforcement officers or otherwise deprived of his freedom in a material way by such officers at the time a confession or admissions are made, the evidence must be such as to permit the jury to find beyond a reasonable doubt that prior to making such admissions or confessions the Miranda warnings were given and that the defendant knowingly and intelligently affirmatively waived his rights.

8. In determining whether the State has shown the admissibility of custodial statements by the requisite degree of proof, this court will accept the factual determination and credibility choices made by the trial judge unless they are clearly erroneous and in so doing we will look to the totality of the circumstances.

9. The determination by the trial court of the admissibility of a confession by a preponderance of the evidence is not inconsistent with the mandate of proof of guilty beyond a reasonable doubt.

10. A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court and its ruling will not be disturbed unless a clear abuse of discretion is shown.

11. When the defense invites a responsive rebuttal argument which might otherwise be prejudicial, it cannot complain.

12. If the evidence warrants a finding by the trial court that a defendant is a sexual sociopath and would not be benefited by treatment he should be committed in accordance with the sexual sociopath act for an indefinite period in the Nebraska Penal and Correctional Complex.

13. The sexual socipath act, sections 29--2901 to 29--2910, R.S.Supp., 1972, is constitutional. We construe the act to provide that when a defendant who has been committed under the indefinite commitment provisions thereof is found to be no longer a sexual sociopath, any sentence which the court may impose for the original conviction may not exceed the maximum sentence for the sexual crime of which he was found guilty less any time the defendant has been committed under the provisions for indefinite commitment.

Gene C. Foote, II, Hastings, John A. Wolf, Grand Island, for appellant.

Clarence A. H. Meyer, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

CLINTON, Justice.

On February 17, 1972, the defendant was found guilty by a jury of six charges of rape and one of robbery. The offenses each occurred on separate dates from April 21, 1969, to February 21, 1971, and all occurred in or near Hastings in Adams County, Nebraska. All the charges were tried together. On the last offense, the robbery (which was accompanied by an unsuccessful sexual assault), the defendant was sentenced to a term of 20 to 25 years. At that time proceedings under the sexual sociopath act, sections 29--2901 to 29--2910, R.S.Supp., 1972, were pending. The defendant appealed the sentence. The trial court declined to proceed with the proceedings under sections 29--2901 et seq., R.S.Supp., 1972, on the theory it had lost jurisdiction because of the appeal on the robbery count. We heard the appeal and without decision retained jurisdiction on the robbery charge but remanded the cause for sexual sociopath proceedings because we felt the appeal was premature since no sentence had been imposed or other final determination made on six of the counts of the information. Dodge v. People, 4 Neb. 220; Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853. On remand the hearings under the sexual sociopath act were held, at the conclusion of which, a jury having been waived by the defendant, the court found that the defendant was a sexual sociopath; that the defendant could not benefit from treatment; and that the defendant be committed to the Nebraska Penal and Correctional Complex for an indefinite period pursuant to the provisions of section 29--2906, R.S.Supp., 1972. From this finding and judgment of the court, the defendant has now appealed and we have before us all seven charges. The first five errors claimed here on appeal are common to all the charges. The sixth and seventh relate only to defendant's commitment to an indefinite term under the sexual sociopath statute.

The errors assigned and argued here are that the trial court erred: (1) In denying the defendant's motion to suppress a confession and certain other evidence because all these were the fruit of an illegal arrest; (2) in denying suppression of the confession because the defendant was unlawfully deprived of counsel contrary to Miranda; (3) in permitting the confession to be received in evidence because it was obtained by promises expressed or implied and the exertion of improper influence; (4) in denying the defendant's motion for a change of venue; (5) in denying defendant's various motions for mistrial; (6) in its finding that the defendant was a sexual sociopath and could not benefit by further treatment; and (7) that sections 29--2901 to 29--2910, R.S.Supp., 1972, are unconstitutional. We affirm.

An outline of events preceding the defendant's arrest and immediately following the arrest up to the time of his arraignment in the county court as known by the investigating officers and as shown by the evidence adduced at the suppression hearing before the District Judge is necessary for the disposition of the first three assignments.

As already noted, the series of offenses occurred from April 21, 1969, to February 21, 1971. The defendant was apprehended on Friday, October 1, 1971. Bobbie D. Henry, a deputy sheriff of Adams County for 7 1/2 years and a member of the Hastings police department for 7 years prior to that, had among his duties been assigned to investigate the rapes. It was an investigation in which both the sheriff's office and police department participated. Gary W. Hansel, criminal investigator for the Nebraska State Patrol, was on call in connection with the investigation and had been participating for about a year prior to October 1, 1971.

The crimes had followed a pattern. Access was gained to the various homes by stealth or in some cases by breaking. Evidence indicated that in some instances there was prior window peeping. In each instance prior to a sexual assault a demand was made for money which the victims might have in their homes or on their person. After the money was obtained the sexual assault took place. On each occasion save one the perpetrator used a weapon (a gun, knife, or other sharp object), or physical violence, or both, to impose his will and accomplish his purpose. Save in the last case he wore a mask or otherwise kept his face from observation of the victim and up until October 1, 1971, no victim had seen the uncovered fact of the perpetrator.

There had also occurred in or near Hastings, Nebraska, a number of burglaries shortly prior to October 1, 1971. Some of these had occurred in the neighborhood where Irwin was first observed on the night he was apprehended. There had also been reports of a prowler or prowlers in the neighborhood just a couple of nights before. The neighborhood was residential.

In connection with one of the rapes and robberies a description of an automobile used by the perpetrator had been obtained. This description fitted that of an automobile owned by the defendant and in which he was observed on October 1, 1971. The defendant and his car had previously been observed by Hansel near the scene of two burglaries which had taken place at an earlier time.

The defendant Irwin had prior to October 1, 1971, been considered a possible suspect by Henry and the other law enforcement official because they knew of his having had a record of sexual offenses in McCook where he had formerly lived and of his having been as a consequence committed to the State Hospital at Hastings for treatment.

Hugh Elliott, who had lived in Hastings for almost 60 years and had been an automobile dealer there all his adult life, lived at 124 University in the city of Hastings. During the months of August and September 1971 he observed on several nights a week and on almost every Friday night a small sports coupe which was parked near his residence. It would show up about dark and was usually gone by 10:30 or 11 o'clock p.m. At first it was parked in what had been an alley at a point which was unlighted because the street light was burned out. The light was replaced and thereafter the...