State v. Johnson, 020521 NESC, S-19-1226

Docket NºS-19-1226
Opinion JudgeMILLER-LERMAN, J.
Party NameState of Nebraska, appellee, v. Thomas E. Johnson, Jr., appellant.
AttorneyThomas C. Riley, Douglas County Public Defender, and Allyson A. Mendoza for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
Judge PanelHeavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Case DateFebruary 05, 2021
CourtSupreme Court of Nebraska

308 Neb. 331

State of Nebraska, appellee,

v.

Thomas E. Johnson, Jr., appellant.

No. S-19-1226

Supreme Court of Nebraska

February 5, 2021

1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court's determination.

2. Identification Procedures: Due Process: Appeal and Error. A district court's conclusion whether an identification is consistent with due process is reviewed de novo, but the court's findings of historical fact are reviewed for clear error.

3. Verdicts: Insanity: Appeal and Error. The verdict of the finder of fact on the issue of insanity will not be disturbed unless there is insufficient evidence to support such a finding.

4. Sentences: Appeal and Error. Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits.

5. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

6. Constitutional Law: Miranda Rights: Self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prohibits the use of statements derived during custodial interrogation unless [308 Neb. 332] the prosecution demonstrates the use of procedural safeguards that are effective to secure the privilege against self-incrimination.

7. __:__: __. The safeguards provided by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

8. __:__:__. The safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), ensure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process. If the suspect indicates that he or she wishes to remain silent or that he or she wants an attorney, the interrogation must cease.

9. Miranda Rights: Right to Counsel: Police Officers and Sheriffs: Self-incrimination. In order to require cessation of custodial interrogation, the subject's invocation of the right to counsel must be unambiguous and unequivocal.

10. Miranda Rights: Police Officers and Sheriffs: Words and Phrases. Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a "custodial interrogation" takes place when questioning is initiated by law enforcement after a person has been taken into custody or is otherwise deprived of his or her freedom of action in any significant way.

11. __: __:__. The term "interrogation" under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), 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.

12. __:__:__. An objective standard is applied to determine whether there is an interrogation within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

13. Identification Procedures: Due Process: Police Officers and Sheriffs. When considering whether due process prohibits the admission of an out-of-court identification at trial, the trial court must first decide whether the police used an unnecessarily suggestive identification procedure. If they did, the court must next consider whether the improper identification procedure so tainted the resulting identification as to render it unreliable and therefore inadmissible.

14. Constitutional Law: Identification Procedures: Due Process. The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.

[308 Neb. 333] 15. Trial: Identification Procedures: Police Officers and Sheriffs: Motions to Suppress. Suppression of identification evidence on the basis of undue suggestion is appropriate only where the witness' ability to make an accurate identification is outweighed by the corrupting effect of improper police conduct. When no improper law enforcement activity is involved, it suffices to test the reliability of identification testimony at trial, through the rights and opportunities generally designed for that purpose, such as the rights to counsel, compulsory process, and confrontation and cross-examination of witnesses.

16. Identification Procedures. A determination of impermissible sugges-tiveness of an identification procedure is based on the totality of the circumstances.

17. Criminal Law: Insanity: Proof. Generally, under Nebraska's common-law definition, the insanity defense requires proof that (1) the defendant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and consequences of his or her actions or that he or she did not know the difference between right and wrong.

18. __: __:__. Under Neb. Rev. Stat. § 29-2203(1) (Reissue 2016), the defendant carries the burden to prove the insanity defense by a preponderance of the evidence.

19. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

20. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.

21. __. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

Appeal from the District Court for Douglas County: Horacio J. Wheelock, Judge.

Thomas C. Riley, Douglas County Public Defender, and Allyson A. Mendoza for appellant.

[308 Neb. 334] Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Thomas E. Johnson, Jr., appeals his convictions and sentences in the district court for Douglas County for five counts of robbery, five counts of use of a weapon (not a firearm) to commit a felony, one count of assault in the second degree, and one count of attempted escape. Johnson claims on appeal that the district court erred when it overruled his motion to suppress statements he made while in custody and evidence of witness identifications from the photographic lineups (photo lineups), when it found that he had not proved his defense of insanity, and when it imposed excessive sentences. We reject each of Johnson's assignments of error, and we therefore affirm Johnson's convictions and sentences.

STATEMENT OF FACTS

Between June 15 and 21, 2015, a string of robberies took place at five different businesses in Omaha, Nebraska. Each robbery involved a knife being used to threaten the victim, and victims in all the robberies gave descriptions of the assailant that were similar in terms of race, age, height, weight, and hair. Three of the five robberies occurred when the victim was alone; in one robbery, there were two other individuals present; and in the final robbery, two employees were robbed. In most of the robberies, the assailant used the knife only to threaten the victims, but in one robbery, a struggle ensued and the assailant stabbed the victim in the upper arm, shoulder, and neck several times. During the struggle, the victim bit the assailant's hand.

Surveillance video from the robbery in which the victim had been stabbed was released to local media. Johnson's [308 Neb. 335] stepdaughter contacted police to report that her son had seen the surveillance video on television and recognized Johnson as the suspect. She also reported that she had seen bite marks on Johnson's hand, which was consistent with reports that the stabbing victim had bitten the suspect's hand in the struggle. At approximately 7 a.m. on June 23, 2015, police officers went to the home that family members shared with Johnson. After officers spoke with family members, Johnson's wife directed them to where Johnson was sleeping. Officers woke Johnson and observed that he matched the physical description of the suspect and that he had bite marks on his hand.

Police officers took Johnson into custody and transported him to police headquarters to be interviewed by Det. Jon Martin, who was investigating the string of robberies. After Martin read Johnson his Miranda rights, Johnson...

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