State v. Ross, 36513

• Citation: 183 Neb. 1,157 N.W.2d 860
• Decision Date: 05 April 1968
• Docket Number: No. 36513,36513
• Parties: STATE of Nebraska, Appellee, v. Lannie E. ROSS, Appellant.
• Court: Supreme Court of Nebraska

Page 860

157 N.W.2d 860

183 Neb. 1

STATE of Nebraska, Appellee, v. Lannie E. ROSS, Appellant.

No. 36513.

Supreme Court of Nebraska.

April 5, 1968.

Syllabus by the Court

1. Where the court properly admits evidence of a confession challenged as involuntary by defendant's evidence, it is prejudicial error to fail to submit to the jury for its determination, under appropriate instructions, the factual question of whether defendant's alleged confession was voluntary, in which event it would be considered as any other evidence, or whether it was involuntary, which event it should be wholly rejected and disregarded.

2. The rule is well established in this jurisdiction that it is the duty of the trial court to instruct the jury on the law of the case whether requested to do so or not.

3. The question of the voluntariness of an oral or written confession is an essential fact issue. Our law requires its ultimate resolution by the jury.

4. Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

5. The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not inquire in individual cases whether the defendant was aware of his rights without a warning being given.

6. Whatever the background of the person interrogated, a warning at the time of the interrogation is indispenable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.

John E. North, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

SPENCER, Justice.

This is an appeal from a manslaughter conviction which arises out of an incident on March 2, 1966, at the Gridiron Bar in Omaha, Nebraska.

The defendant arrived at the bar sometime around 3 p.m., and spent the next 3 hours drinking beer and playing pool. Sometime after 6 p.m., defendant became involved in a dispute with a woman at the bar, accusing her of taking $10 of his change which he had left on the bar when he went to the restroom. This woman, who was a friend of the bartender, testified that both she and the defendant were intoxicated at the time. The bartender, Robert Goedert, the deceased, became involved in the argument when he refused to call the police in connection with the dispute. Goedert, who had been serving someone seated at a table, walked behind the serving bar, picked up a 45-caliber revolver, and fired it either at the floor or at the defendant. There is a dispute as to whether this bullet his the floor near the defendant or struck the defendant. It was the defendant's testimony that the bullet struck him in the left shoulder, fracturing his clavicle. He further testified that after this shot, he went about 3 feet to his jacket which was hanging on a nearby booth, secured a 22-caliber automatic from the jacket, and began shooting at Goedert and continued to do so until the gun was empty, when he fell down. Without question, Goedert fired the first shot. There is a dispute as to whether defendant was hit a second time before he started shooting, and whether he pulled the gun from his pant's pocket or secured it from his jacket.

A police officer took a statement from defendant about 8 p.m. that same night at the hospital while the defendant was in the operating room being prepared for surgery. The officer testified that defendant told him the bartender fired a shot into the floor, and that defendant then reached into his right front pocket for his gun and started shooting. The officer admitted under cross-examination that defendant was squirming and moaning, was in quite a bit of pain, and possibly was under sedation. The attending doctor testified defendant was in considerable pain from his wounds; that the resident doctor had been giving him fluids and blood; and that he was in shock at the time he entered the hospital.

The officer's testimony, which is uncorroborated is that he advised the defendant who he was; told him he wanted to talk to him in regard to the shooting at the Gridiron Bar; that under the Constitution defendant had a right not to answer any question that he asked him; and that defendant interrupted him, saying: "Well, I know this, I know that. I will tell you about what I know.' Then I says, 'You also have a right to an attorney.' He says, 'I am aware of this. I just want to tell you about what happened." The officer then recited what he claims the defendant told him, including the following: 'He said he had been in the bar all day, drinking; * * * The argument became very violent, and the bartender took and picked up a gun from behind the bar and fired a shot into the floor at him. He said he walked--reached in his right front pocket and pulled his gun and shot the bartender.' On cross-examination, this officer stated defendant told him his jacket was out in his car. All the other testimony, both for the State and for the defense, has the jacket hanging near the third booth from the west in the bar.

Another officer went to the hospital at 5:30 p.m. the next day, ostensibly to question defendant about a coat found in the bar. When he arrived in the room, there were two other police officers present. He testified that defendant was conscious, and that he told defendant he was a police officer and wanted to ask some questions regarding a coat picket up at the bar following the shooting. On cross-examination, the officer admitted he had been told defendant was under sedation. The doctor testified defendant was being given demerol.

This officer testified he attempted to advise defendant of his constitutional rights and defendant got angry, told him he knew his rights better than the officer did, and explained them to him. The officer was not asked what the defendant told him his rights were, nor were the other two officers who were present called to corroborate this testimony. A portion of the statement taken is as follows: 'He said the bartender and he engaged in an argument, and the bartender told him if he wanted the police the phone was at the door, to call them himself. He told me that they argued further and the bartender produced a gun from behind the bar and fired a shot. He told me that he then returned to the area of the pool table where he had a jacket hung and took a gun from the pocket of the jacket. He then returned toward the bar, and he was shooting as he came toward the bar. He said he continued walking and walked on out of the bar. He had been hit by some shots from the bartender as he was returning the fire. He told me he continued from the bar to the apron of a service station, where he fell down.' The officer was then asked: 'Q. With reference to the first shot that the bartender fired, did the defendant, Ross, say that this shot hit him? A. No, sir.' Defendant has no recollection of either officer ever talking to him. The testimony of the State's eyewitness is that defendant fell to the floor of the bar. This witness further observed defendant lying on his stomach in the back doorway. Defendant was subsequently found lying on the apron of a nearby service station.

Doctor Carl W. Sasse, Jr., who was the doctor on call at the Douglas County Hospital when defendant was brought in, testified that defendant was shot in the left shoulder; that this bullet went through his clavicle and lodged in his back; and that he also had a bullet hole in the right side of his abdomen and several bullet holes in his left side. The entrance to the wound in the shoulder was from the front. The entrance to the wound to the abdomen was on the right. It went through the large bowel and through the blood supply of the small bowel, and out the left side. There were several bullet holes in the small bowel. Doctor Sasse was asked if the stomach...