State v. Thomas
| Decision Date | 30 January 2004 |
| Docket Number | No. S-02-1302.,S-02-1302. |
| Citation | 673 N.W.2d 897,267 Neb. 339 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Kelvin L. THOMAS, Appellant. |
Thomas C. Riley, Douglas County Public Defender, and Cheryl M. Kessell, Omaha, for appellant.
Jon Bruning, Attorney General, J. Kirk Brown, and Kimberly A. Klein, Lincoln, for appellee.
Kelvin L. Thomas appeals a district court order sentencing him for first degree murder, use of a deadly weapon to commit a felony, and being a felon in possession of a firearm. Thomas argues that (1) statements to the police were not voluntarily made because investigators indicated that he would receive a lower sentence if he told them the murder was not premeditated, (2) the statements should have been suppressed because he invoked his Miranda rights, and (3) the district court erred when it failed to suppress evidence because the application for a search warrant omitted facts affecting probable cause. We determine that the district court was not clearly erroneous in its conclusions. Accordingly, we affirm.
On November 30, 2001, Terrence Quinn, an employee of Victory Auto Sales in Omaha, was found lying on the office floor, bleeding. Quinn later died, and an autopsy revealed the cause of death as gunshot wounds to the head. Quinn also had a laceration on his forehead.
On December 2, 2001, John L. Williams called Crimestoppers with information about the death and agreed to come to the police station. Williams told the police that Thomas, a black male, had told Williams that he had robbed a person at the location of Victory Auto Sales and had a lot of money. Williams reported that Thomas had purchased a white 1978 Oldsmobile 98 for $1,500 and stereo equipment valued at $2,000 to $3,000. He also purchased a cellular telephone and new eyeglasses. According to Williams, Thomas did not have a job and, only 2 days before, could not afford a pack of cigarettes. Williams identified Thomas from a photographic lineup.
Williams stated that while in the car with Thomas on December 1, 2001, Thomas showed him a .22-caliber gun and stated that he needed to get rid of it and would either give it to Thomas' cousin or dispose of it in a park. The two stopped at the cousin's apartment and then left. After the stop at the apartment, Thomas told Williams that he had robbed and shot a man at a car dealership. Thomas stated that the man rushed him, that he struck the man with the gun, that the man kept coming, and that he eventually fired an unknown number of shots at the man. Williams also stated that Thomas often wore a black leather coat with a hood and black jeans.
Employees of Stereo West verified that on December 1, 2001, a man meeting Thomas' description who drove an older white Oldsmobile, with no plates, purchased stereo equipment for $2,294.29. The man used the name "Jamine Parker," wore a black coat with a hood, and told the employees that he had just bought the car. The employees were unable to positively identify Thomas from a photographic lineup.
Because of the information from Williams and the employees at Stereo West, a police investigator obtained a search warrant. The affidavit for the search warrant, however, failed to mention that employees at the store were unable to positively identify Thomas in a photographic lineup. The affidavit also failed to disclose that Williams was a convicted felon for theft by deception. After a search of Thomas' residence, officers seized items indicating that Thomas had made the purchases reported by Williams.
Thomas was arrested and taken to police headquarters for questioning by officers Donald Ficenec and Kevan Barbour. He was advised of his Miranda rights and agreed to make a videotape-recorded statement. Thomas initially denied involvement in the robbery and stated that he earned money by selling drugs and shooting dice. For the first 30 to 45 minutes, the police officers focused on minimizing Thomas' culpability by informing Thomas that sometimes a robbery could go bad and that sometimes the victim behaves "really stupid," rushes the robber, and then gets hurt.
The officers confronted Thomas with the evidence against him. The officers then focused on convincing Thomas that they understood how the death was unintentional and stressed that it was likely Quinn's fault because he rushed Thomas. In exhorting Thomas to tell the truth, the officers repeatedly stated that they could tell Thomas did not mean to kill Quinn and was not a "hard and cold criminal." Appealing to Thomas' good-heartedness, the officers pointed out evidence that Thomas had given his girl friend money and had bought her baby a coat. They further stressed that if the death was an accident, Thomas needed to tell his side of the story or people would think he was a "frickin' animal" and "hardened core criminal."
The following colloquy then occurred:
After this dialog, the officers returned to the theme that Thomas did not intend to kill anyone, and Thomas repeated that his life was gone. Ficenec then stated:
After these statements, Barbour asked what Thomas would do if he caught two employees stealing and one employee explained his need for money and was remorseful while the other denied it all and made up a silly excuse. Specifically, Barbour asked which employee Thomas would keep, and Thomas replied that he would keep the person who told the truth. The officers then returned for several minutes to the theme that Thomas had a "good heart" and did not mean for the shooting to occur.
Barbour then asked Thomas to "show me your heart" and stressed that Thomas did not want people to think he was a hardened core criminal. Shortly after, Thomas stated, "He tried to rush me" and "I got scared and I just started shooting." The following colloquy then occurred:
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