State v. Porter
| Decision Date | 25 May 1990 |
| Docket Number | No. 89-492,89-492 |
| Citation | 235 Neb. 476,455 N.W.2d 787 |
| Parties | STATE of Nebraska, Appellee, v. Brian D. PORTER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Convictions: Confessions: Due Process. A defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession.
2. Confessions: Evidence. To be admissible in evidence, an accused's statement, admission, or confession must have been freely and voluntarily made, and must not have been the product of or extracted by any direct or implied promise or inducement, no matter how slight.
3. Motions to Suppress: Pretrial Procedure: Appeal and Error. In order to preserve a question concerning the admissibility of evidence for review on appeal, it is necessary to object at trial to the admission of evidence even though it was earlier considered at a hearing on a motion to suppress, which motion was overruled.
4. Criminal Law: Trial: Evidence: Appeal and Error. An error in admitting or excluding evidence in a criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless it can be said that the error was harmless beyond a reasonable doubt.
5. Indictments and Informations: Joinder: Trial. Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. If it appears that a defendant or the State would be prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint for trial together, the court may order an election for separate trials of counts, indictments, informations, or complaints or provide whatever other relief justice requires. Neb.Rev.Stat. § 29-2002 (Reissue 1989).
6. Trial: Joinder: Appeal and Error. A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal in the absence of an abuse of discretion.
7. Trial: Joinder: Indictments and Informations. If the offenses involved were of the same or similar character, they can be joined in one information, and the trial court can order that they be tried together.
8. Trial: Joinder: Evidence: Appeal and Error. Joinder is not prejudicial error where evidence relating to both offenses would be admissible in a trial of either offense separately.
9. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings are clearly erroneous.
10. Criminal Law: Identification Procedures: Due Process. An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law.
11. Criminal Law: Identification Procedures: Due Process. The initial inquiry is whether an identification procedure was suggestive. A determination of suggestiveness is based on the totality of the circumstances. Once it has been determined that a lineup was not suggestive, the due process inquiry into the lineup is at an end.
12. Trial: Evidence: Appeal and Error. A trial court's ruling on the relevancy of evidence will not be disturbed on appeal unless there has been an abuse of discretion.
13. Robbery: Words and Phrases. A person commits robbery if, with the intent to steal, he forcibly and by violence, or by putting in fear, takes from the person of another any money or personal property of any value whatever.
14. Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
15. Robbery: Evidence: Proof. Evidence of a robbery victim's injuries and treatment is relevant to prove an element of the crime of robbery, i.e., force and violence.
16. Rules of Evidence: Words and Phrases. Unfair prejudice in the context of Neb.Rev.Stat. § 27-403 (Reissue 1989) means a tendency to suggest a decision on an improper basis.
17. Criminal Law: Right to Counsel: Misdemeanors: Convictions: Impeachment. The 6th and 14th amendment right to counsel extends only to those misdemeanor prosecutions where the defendant is actually imprisoned. Where no imprisonment is involved, an uncounseled misdemeanor conviction may be used for the purpose of impeachment.
Michael F. Gutowski, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Susan M. Ugai, North Platte, for appellee.
Because a police officer improperly obtained a confession from Brian D. Porter which was used against him at his jury trial, we vacate Porter's sentences and reverse his convictions on two counts of robbery.
On each count, an elderly woman was knocked to the ground and robbed of her purse. Porter was convicted and sentenced to two 5-year consecutive terms of imprisonment. He was given credit on his sentence for 65 days for the time he had spent in jail.
The cause is remanded to the district court for Douglas County for a new trial on both counts.
Between 8 and 8:30 a.m. on October 16, 1988, an Omaha police sergeant observed a black male, with an object clutched under his shirt, running around the west side of the officer's vehicle. Because of the man's suspicious behavior, the police sergeant began following him. The officer was soon informed by radio that there had been a robbery nearby. Porter was apprehended, arrested, and taken to the Omaha police station. There, Porter was advised of his Miranda rights, which he waived. He was interviewed. He denied any connection with the robbery. Porter was lodged in jail.
The next morning, Porter was again advised of his Miranda rights, which he again waived. The defendant was then interrogated in the presence of three Omaha police officers. An interrogating police officer informed Porter that if he confessed, it could help him and that it would look better for him. Porter confessed, among others, the two robberies of which he was convicted. After again being apprised of his Miranda rights and waiving them, Porter gave a tape-recorded statement to the police, in which he again confessed that he was the perpetrator of the robberies of which he was ultimately convicted.
After a hearing, Porter's pretrial motion to suppress his confessions was overruled. His objection at trial to the admission of his taped confession was also overruled. The jury returned guilty verdicts on the two robbery counts.
At the hearing on Porter's pretrial motion to suppress his confessions, the three Omaha police officers testified that no threats or promises had been made to Porter to induce him to confess. Porter testified that when he was interrogated, he was told by a police officer that "if I cooperated with them [the officers], the judge would be easier on me then." Porter said he was also told by a police officer before his taped confession: "Remember now that I am going to tell the judge that you were cooperating all the way 100% and, like I said, it is going to go easier on you if you go into court being cooperative rather than being an asshole or a hard ass like this." The trial court obviously believed the officers rather than Porter and overruled the defendant's motion to suppress his oral and taped confessions.
At Porter's jury trial, only two of the officers present at his interrogation testified. The first officer testified without objection that Porter told him that he had grabbed a purse from one victim and that the victim had fallen down. Thereupon, Porter renewed his pretrial objection that his statements were not freely and voluntarily given and were the result of inducements of leniency made by members of the Omaha Police Division to Porter in exchange for his statements. The officer testified that no one in his presence offered Porter anything in exchange for his statement. Again, the trial court overruled Porter's objection.
The next police officer to be called as a witness at Porter's jury trial had earlier testified at the suppression hearing that he was the primary interrogator of Porter. During the pretrial suppression hearing and on direct examination at trial, the officer testified he had not made any promises to Porter to obtain his confessions. At his trial, Porter again renewed his objection to the reception in evidence of his confessions. On cross-examination at trial, the primary interrogator testified that he advised Porter that it could help him if he confessed and that it would look better for him if he did confess. The questions and answers on cross-examination of the officer were as follows:
Q. You did tell him that it would help him if he would confess, didn't you?
A. It could help him.
Q. You did tell him that?
A. I said that it could help him, yes.
Q. In fact, you mentioned at one point in the tape, "I am sure the judge will take that into consideration"?
A. Yes, sir.
Q. So basically you told him that it could help him if he confessed and if he told you what he did that you would be a lot easier on him?
A. That it would look better for him.
Q. That it would look better for him?
A. Right.
Q. And you were telling him that even before he admitted doing anything on either of these robberies?
A. I was probably telling that all the way through in talking about all of the robberies.
Before a confession given while a defendant is in custody may be admitted into evidence, the State must prove by a preponderance of the...
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