State v. Robinson
| Decision Date | 06 July 1977 |
| Docket Number | No. 41063,41063 |
| Citation | 198 Neb. 785,255 N.W.2d 835 |
| Parties | STATE of Nebraska, Appellee, v. Booker Leon ROBINSON, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2. The determination of whether a statement was voluntarily made necessarily turns upon the consideration of whether or not the totality of the circumstances demonstrates the voluntariness or involuntariness of the statement.
3. To be admissible, a statement or confession must be free and voluntary. It must not be extracted by any sort of threats or violence, nor obtained by any direct or indirect promises, however slight, nor by the exertion of any improper influence.
4. An accused has a constitutional right to a public trial by an impartial jury, and where it appears to the Supreme Court that the accused has not been afforded a fair trial, it is the duty of the Supreme Court to grant a new trial.
5. The retention or rejection of a juror is a matter of discretion for the trial court.
6. If the trial court is informed of matters during trial which might reasonably constitute grounds for a challenge for cause of one or more jurors, it is the duty of the court to hear evidence and examine the jurors and determine whether any juror might be subject to disqualification for cause. A failure to inquire under such circumstances constitutes such fundamental unfairness as to jeopardize the constitutional guarantee of the right to trial by an impartial jury. Any lowering of those constitutional standards strikes at the very heart of the jury system.
7. Police reports, affidavits, and other information may be considered by the trial judge in sentencing and such information is properly included in a presentence investigation report compiled pursuant to section 29-2261, R.R.S.1943.
T. Clement Gaughan, Public Defender, Richard L. Goos, Chief Deputy Public Defender, and Paul M. Conley, Deputy Public Defender, Lincoln, for appellant.
Paul L. Douglas, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
The defendant appeals from a conviction of second degree murder. He assigns as error: The trial court refused to suppress certain statements of the defendant obtained while he was in custody; a mistrial should have been granted since several jurors overheard a conversation questioning the credibility of a State's witness; and finally, the presentence investigation contained materials outside the scope of that allowed by section 29-2261(3), R.R.S. 1943.
On February 2, 1976, at about 6 p.m., the defendant shot and killed Archie Robinson in a parking lot in Lincoln. The shooting was the result of an argument over a marijuana swindle. The defendant used a handgun which he had purchased earlier that day. Immediately after the shooting, the defendant left the scene on foot. He traveled several blocks to a bar where he called a cab. When the cab arrived, defendant instructed the driver to go to the residence of Ricky Barnes, a friend of the defendant. While there, the defendant disposed of the handgun in a nearby garage. Subsequently, the defendant and Barnes got in the cab and instructed the driver to take them to Omaha. The cab was intercepted by the Nebraska State Patrol at a filling station in Sarpy County. The defendant was placed under arrest, read the Miranda warnings, and taken to the Sarpy County jail.
Approximately 11:20 p.m., Officer Ideen of the Lincoln police department entered the defendant's cell. Ideen advised the defendant that he would like to talk with him about the incident which had happened in Lincoln, the incident for which the defendant had been arrested. Ideen also told the defendant that he would advise him of his rights. The defendant replied that he did not want to talk about the incident there but would talk about it in Lincoln. Ideen then chatted briefly with the defendant and began to leave the room. As Ideen was on his way out, the defendant asked: " 'The dude died at the hospital, huh?' " Ideen answered that the victim had died.
Ideen then called Inspector LaPage who was in Lincoln and, at about 11:30 p.m., reentered the defendant's cell. Ideen advised that the police were concerned about the location of the weapon and that he would like to question the defendant as to its location. The Miranda rights card was then read to the defendant. After the defendant was asked if he waived the services of a lawyer, he stated that he did not want to talk about it. Ideen then stopped the questioning of the defendant.
At about 12:15 a.m. the defendant was transported back to Lincoln. Upon arrival at the Lincoln City-County jail, the defendant was met by Lt. Maxey of the Lincoln police. Maxey informed the defendant that he and the county attorney would like to talk with him. Robinson answered, "Okay." At about 1:45 a.m. on February 3, 1976, the defendant was taken to the county attorney's office. The Miranda rights were again read to the defendant. The defendant admitted the shooting of Archie Robinson. The interview ended at about 2:30 a.m. The county attorney then asked to get a written statement. The defendant agreed. The county attorney then advised the defendant that he would be taken to a hospital for blood and urine tests and that afterwards they could get the written statement.
Robinson was taken to a hospital and returned at about 3:30 a.m. Maxey asked the defendant to make a written statement. The defendant answered that he was too tired and that he would do it in the morning. He was returned to his cell.
At about 8 a.m., Officer Van Butsel contacted the defendant and took him to the county attorney's office. The defendant was again advised of his Miranda rights. Subsequently, the defendant made a written statement in which he confessed to the shooting of Archie Robinson.
Defendant was charged by information of first degree murder. He entered a plea of not guilty and the cause was set for trial before a jury. On the second day of the trial, one of the jurors reported that he had heard remarks from some persons who had been in the courtroom to the effect that one of the witnesses was lying. The juror had heard the remarks as he was leaving the courtroom. The defense immediately moved for a mistrial. The trial judge noted that any possible prejudice would be against the State because the witnesses that day had been prosecution witnesses. The motion was denied. The judge questioned each juror individually whether he heard the remarks and, if so, would the remarks affect that juror's ability to be fair and impartial. Another juror and one alternate juror had heard the remarks. All three stated that the remarks would not impair their ability to be fair and impartial. The trial continued and, at the conclusion of jury deliberations, a verdict of guilty of second degree murder was rendered.
Defendant contends that the trial court erred in its determination not to exclude from evidence statements which had been made by the defendant at the Sarpy County jail and at the Lincoln City-County jail. The defendant argues that the statement made at the Sarpy County jail should be excluded because the police did not observe his rights as guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, he quotes the following language from that opinion: The trial court, following a Jackson-Denno hearing, ruled that any statement made at the Sarpy County jail was made freely, voluntarily, intelligently, and understandingly.
The statement made at the Sarpy County jail was volunteered by the defendant. The question came as Ideen was leaving the cell. Clearly, it was a voluntary statement. In Miranda v. Arizona, supra, it is stated: "Volunteered statements of any kind are not...
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