State v. Jackson

• Decision Date: 25 March 1980
• Docket Number: No. 42773,42773
• Citation: 290 N.W.2d 458,205 Neb. 806
• Parties: STATE of Nebraska, Appellee, v. Carvan D. JACKSON, Appellant.
• Court: Nebraska Supreme Court

Page 458

290 N.W.2d 458

205 Neb. 806

STATE of Nebraska, Appellee, v. Carvan D. JACKSON, Appellant.

No. 42773.

Supreme Court of Nebraska.

March 25, 1980.

Syllabus by the Court

1. Criminal Law: Right to Counsel: Evidence: Confessions. The applicable standard to determine the admissibility of statements made by an accused during a custodial interrogation is whether the accused intelligently, knowingly, and voluntarily waived his right to remain silent and his right to have counsel present at that time.

2. Criminal Law: Right to Counsel: Evidence: Confessions. The failure of police to notify counsel who represents the accused, when they have knowledge of the fact of such representation, will not render a statement made by accused inadmissible where the record reveals a voluntary relinquishment and waiver by the accused of his right to have counsel present during a custodial interrogation.

Alan L. Plessman, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Lynne Rae Fritz, Asst. Atty. Gen., Lincoln, for appellee.

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

BRODKEY, Justice.

Defendant, Carvan Jackson (Jackson), was charged in a multicount information with committing the offenses of: (1) Assault with intent to rob; (2) use of a firearm to commit a felony; and (3) shooting with intent to kill, wound, or maim. He was convicted of all the aforementioned offenses after trial to the jury; and was sentenced to imprisonment in the Nebraska Penal and Correctional Complex for a term of 2 years on the first count; for a term of 3 years on the second count, said sentence to be served consecutively to the sentence imposed for count one; and for a term of 3 years on the third count, to be served concurrently with the sentences imposed on the first and second counts. Furthermore, credit was given for 129 days spent in custody prior to sentencing, and costs of the action were taxed to Jackson. He has appealed those convictions to this court. We affirm.

In the early afternoon hours of December 12, 1978, two men entered a liquor store in Lincoln, Nebraska. In the store at that time were the manager of the store, a customer, and a liquor salesman. One of the two men produced a handgun and ordered the manager to open the cash register. As the manager was walking toward the register, he was shot by the man holding the weapon. Even though he was wounded, the manager attempted to open the cash register. However, these attempts proved futile because the register locked shut. Shortly thereafter, someone in the store yelled "let's go" and the two men left the store without taking anything.

The police were summoned and their investigative efforts uncovered footprints in the vicinity of the liquor store which led to a nearby residence. The person who lived in the first floor apartment of the residence allowed the police to enter and conduct a search of the apartment. A handgun was found in the bedroom of the apartment. This weapon was later tested and found to be the weapon used to wound the manager of the liquor store.

Among the various persons found in the apartment at the time of the search was defendant Jackson. He was placed under arrest following the discovery of the weapon. Prior to his transfer to the police headquarters, Jackson volunteered a statement to one of the policemen: "(W)e did it, we're the ones who did it. We were the ones that you are hunting for." Jackson was then transferred to the police headquarters where he later made a statement to the police.

A lineup concerning this case was conducted subsequent to the day of the robbery. At that time, the police department was informed that Jackson was being represented by counsel. On December 19, 1978, Jackson made a statement to Detective Richard Kohles of the Lincoln Police Department that it was his idea to rob the liquor store. The evidence as to whether Jackson was advised of his Miranda rights and whether he waived his right to have counsel present at the December 19, 1978, interrogation was conflicting. The aforementioned statements made by Jackson were introduced at trial by the State. Testimony of the persons inside the liquor store at the time of the robbery and of other persons in the neighborhood of the liquor store at the time was also adduced at trial. On the basis of the evidence presented at trial, the jury found Jackson to be guilty on all three counts. Sentencing was imposed as previously set forth.

Jackson thereafter appealed, assigning as error the trial court's failure to exclude the testimony of the police officers with reference to statements made by him to those officers. Specifically, counsel for Jackson contends that statements taken during interrogation of "in-custody" defendants after the police or prosecution are aware that defendant is represented by counsel are involuntary and inadmissible unless defendant's counsel first grants permission to the police to hold the interrogation.

In this case the State moved for summary affirmance pursuant to Rule 20-A(2), Revised Rules of the Supreme Court, 1977, on the ground that that issue had not been raised in Jackson's motion for a new trial presented in the trial court. We denied this motion but ordered the appellant and appellee to supplement their briefs, and to address the issue of whether the rule announced in People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968), should be held to be the law of this state. They have done so, and we now examine that issue.

In People v. Arthur, supra, a pre-Miranda case, the New York Court of Appeals reversed a conviction of attempted murder in the second degree. In that case it appears the defendant was arrested by police near a river and immediately confessed that he had thrown his son into the river. Defendant was then taken to police headquarters where he was interrogated by the police, after which a written statement was prepared. Defendant signed this statement at approximately 6:45 p. m., 11/4 hours after the crime occurred. It further appears that an attorney who had represented the defendant in another matter became aware of the arrest and went to police headquarters to advise the defendant. The attorney arrived at approximately 6:20 p. m. and informed the police of the attorney-client relationship between him and the defendant. However, he was not allowed to contact the defendant until after the statement had been signed. Following his meeting with the defendant, the attorney instructed the police that the defendant should not be further interrogated. The next day, the defendant made incriminating statements during an interrogation conducted outside his attorney's presence and without his attorney's knowledge. He was convicted at the trial in which those statements were introduced. The conviction was reversed by the Court of Appeals, which stated: "(I)n enunciating the fundamental right of the accused to be represented by counsel, we painted with broad strokes. Thus, in People v. Donovan, Judge Fuld, speaking for the court, stated at * * * (13 N.Y.2d 148, 151, 243 N.Y.S.2d 841, 843, 193 N.E.2d 628, 629 (1963)): '(W)e are of the opinion that, quite apartment from the Due Process Clause of the Fourteenth Amendment, this State's constitutional and statutory provisions pertaining to the privilege against self incrimination and the right to counsel * * *, not to mention our own guarantee of due process * * *, require the exclusion of a confession taken from a defendant, during a period of detention, after his attorney had requested and been denied access to him' (accord People v. Failla, 14 N.Y.2d 178, 180 (250 N.Y.S.2d 267, 269, 199 N.E.2d 366, 367 (1964))).

"(T)he principle which may be derived from the pre-Miranda (Miranda v. Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16 L.Ed.2d 694 (1966))) cases is that, once the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant, the accused's right to counsel attaches; and this right is not dependent upon the existence of a formal retainer.

"Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel (People v. Vella, 21 N.Y.2d 249 (287 N.Y.S.2d 369, 234 N.E.2d 422 (1967))). There is no requirement that the attorney or the defendant request the police to respect this right of the defendant." See, also, People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360 (1980), which extended protection to a defendant who had requested counsel but was not yet represented.

We note in passing that the Court of Appeals clearly based the Arthur rule on...