State v. Turner ( 2014 )

Nebraska Advance Sheets
STATE v. TURNER 249
Cite as 288 Neb. 249
State of Nebraska, appellee, v. Endre B. Turner,
also known as Andre B. Turner, appellant.
___ N.W.2d ___
Filed May 30, 2014. No. S-13-846.
1. Motions to Suppress: Confessions: Constitutional Law: Appeal and Error. In
reviewing a motion to suppress a confession based on the claimed involuntariness
of the statement, an appellate court applies a two-part standard of review. With
regard to historical facts, an appellate court reviews the trial court’s findings for
clear error. Whether those facts suffice to meet the constitutional standards, how-
ever, is a question of law, which an appellate court reviews independently of the
trial court’s determination.
2. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
3. Confessions: Due Process. The Due Process Clause of U.S. Const. amend. XIV
and the due process clause of Neb. Const. art. I, § 3, preclude admissibility of an
involuntary confession.
4. Confessions. Whether a confession or statement was voluntary depends on the
totality of the circumstances.
5. Confessions: Police Officers and Sheriffs: Due Process. Coercive police activ-
ity is a necessary predicate to the finding that a confession is not voluntary within
the meaning of the Due Process Clause of the 14th Amendment.
6. Confessions: Proof. The State has the burden to prove that a defendant’s state-
ment was voluntary and not coerced.
7. Confessions. A defendant’s confession may be involuntary and inadmissible if
obtained in exchange for a promise of leniency.
8. ____. An improper promise of leniency will not render a confession involuntary
unless it overcomes the defendant’s free will and impairs his or her capacity for
self-determination.
Appeal from the District Court for Douglas County: James T.
Gleason, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Douglas
A. Johnson, and Ryan Locke, Senior Certified Law Student,
for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
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Cassel, J.
INTRODUCTION
Endre B. Turner appeals from his convictions for first
degree murder, use of a deadly weapon to commit a felony, and
possession of a weapon by a prohibited person. The charges
against Turner arose from the shooting of Richard Harrison
during the burglary of Harrison’s home. Turner argues that
his confession to the shooting and burglary was involuntary
because it was the product of threats, coercion, and induce-
ments of leniency made by police officers. We find no merit
to this argument. Although officers misrepresented that felony
murder would receive a lesser sentence than premeditated
murder, after reviewing the totality of the circumstances sur-
rounding the confession, we conclude that the misinformation
regarding possible sentences did not overcome Turner’s will
and cause him to confess. We therefore affirm his convictions
and sentences.
BACKGROUND
On September 29, 2011, Harrison’s mother returned home
from work and found Harrison lying on the floor of his bed-
room. She could not find a pulse and noticed blood in his
bedroom closet, where his head and upper body were lying.
She called the 911 emergency dispatch center, and paramed-
ics pronounced Harrison dead when they arrived at the scene.
The autopsy of Harrison’s body revealed that he had been
shot multiple times by a .22-caliber firearm with a right-
hand twist.
Harrison’s mother informed police officers that the televi-
sion in Harrison’s bedroom had been moved and that several
of Harrison’s possessions were missing. These missing pos-
sessions included a “PlayStation 3” video game system and
an “HTC Evo” cell phone. Officers obtained the serial number
of the missing PlayStation, and the police department’s pawn
unit began to monitor local pawnshops for a PlayStation with a
matching serial number.
Following up on a comment posted to an online article
regarding Harrison’s death, officers made contact with a wit-
ness who saw a man running from Harrison’s home on the
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afternoon of the shooting and burglary. Brian Jones was
driving eastward on Grand Avenue in Omaha, Nebraska, at
approximately 3 or 4 p.m. As he approached the top of a
hill, he saw a man “coming up running off the front porch or
front step” of Harrison’s home. The man “hit the ground” and
then stopped and looked in Jones’ direction. Jones described
that the man was black, had a light complexion, was about 6
feet tall with a medium build, and had a tattoo on the side of
his neck.
The police department’s pawn unit then matched the serial
number of Harrison’s PlayStation to a PlayStation that had
been pawned on October 24, 2011. Officers obtained the
pawned PlayStation, the pawn card, and surveillance footage
showing the individuals who had pawned the PlayStation. The
pawn card established that the PlayStation had been pawned by
Jasmine Coleman. However, the pawnshop’s surveillance foot-
age showed that Coleman had been accompanied by a black
male with a light complexion.
The pawned PlayStation was tested for fingerprints, and a
match was returned. The fingerprints were identified as belong-
ing to Turner, and Turner’s parole officer confirmed that Turner
was the black male accompanying Coleman on the pawnshop’s
surveillance footage. Jones, the witness who saw a man run-
ning from Harrison’s home on the day of the shooting and
burglary, identified Turner as the man he saw in a photographic
lineup and at trial.
Officers learned that Turner was scheduled to meet with his
parole officer on November 9, 2011, and so decided to inter-
view him at the parole office on that day and to simultaneously
execute a search warrant for his residence. Upon execution of
the warrant, officers were informed that Turner and Coleman
resided in the basement of the residence. In a basement bed-
room, officers discovered a .22-caliber revolver in a backpack
in the bedroom closet and a charger for an HTC Evo cell phone
on a nightstand. Testing of the revolver confirmed that it had a
right-hand twist.
Turner’s interview at the parole office was conducted by
Sgt. Donald Ficenec and Det. Daryl Krause of the Omaha
Police Department. Turner was advised of his Miranda rights,
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and he agreed to speak with the officers. The officers first
questioned Turner on where he had obtained the PlayStation
that he and Coleman pawned on October 24, 2011. But Turner
denied any involvement in the burglary of Harrison’s home or
in Harrison’s death. Ficenec then advised him that a .22-caliber
revolver had been found in his home and claimed that ballistics
testing would confirm that the revolver had fired the bullets
recovered from Harrison’s body.
The officers next attempted to ascertain how the shooting
occurred, informing Turner that they knew what happened and
who did it, but not “how it all went down and why.” In order
to obtain this information, the officers represented that “[i]t
makes a difference” how the shooting occurred:
Ficenec: It makes a difference if you go and break into
somebody’s house because you got a personal revenge
against this guy. Let’s say that this guy you found out
had, I don’t want to say something that’s—I don’t mean
to offend you—let’s say that this guy, you had found
out that this guy had an affair with [Coleman]. So you
were pissed off at him, so you were going to go over
there and you were going to go get him because of that,
okay. That’s one thing. All you’re trying to do, you got
out of jail, you don’t have much money, you’re trying
to get started again with the jobs and stuff—it takes a
while to get some paychecks and get some money set
aside. So you revert back to your old M.O.—your old
habits. Maybe you’re only going to do this for a little
while until you get back on your feet, who knows? But
you go in, you get surprised. You don’t want to hurt any-
body, you don’t intend to hurt anybody. But you go in
there, you get surprised, you just got out of jail, you’re
trying to start all over. What I’m saying is, you can see
how that’s a big difference between something like that,
and something like I said if we find out that maybe he
knew [Coleman]. Maybe he had had some phone—some
contacts with [Coleman], you know. There would be a
big difference between the one case and the other, right?
What I’m saying is, I can’t crawl into your head. So I
don’t know exactly—cause I wasn’t there—I can prove
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who did it. I can collect all the evidence, like the DNA
evidence at the house to show that you were in the house.
I can prove—you know—do the ballistics testing to show
that that’s the gun.
Turner: (indiscernible)
Ficenec: I can get the evidence to prove it, alright—
Turner: But how?
Ficenec: But what I’m saying is—what I’m saying
is—if I wasn’t there, I can’t tell you exactly how it went
down. And that makes a big difference.
The officers then focused on convincing Turner that they
knew the shooting was unintentional and that Turner was not
an evil person. They confronted Turner with various lies he
had told them, claiming that the lies made him look like a
bad, evil person. But Turner continued to maintain his inno-
cence. However, after the officers discovered the presence
of Harrison’s HTC Evo cell phone on Turner’s person, they
returned to their previous theme that it would make a differ-
ence whether the shooting was accidental or premeditated—
indicating that Turner would receive a lesser sentence if the
shooting had not been planned:
Turner: Man, I’m going to get life for this shit.
Krause: No, you’re not.
Turner: (Indiscernible) thousand, I’m going to get a
hundred years.
Ficenec: I’m going to tell you this. I can’t tell you
what the potential penalty could be. I mean I’m not
going to bullshit you. Could you potentially get life?
Is that a possibility? I mean, I’m not a judge, I’m not
a prosecutor.
Turner: Yeah.
Ficenec: So what I’m saying is, it could be a possibil-
ity. That’s why I’m trying to tell you, it’s such a big dif-
ference how and why this happened . . . .
....
Ficenec: To illustrate it if, “All I’m trying to do is
go in there and take his PlayStation I don’t want any
trouble. I don’t want to hurt anybody. I just want to go
in there and take his PlayStation when things go bad and
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I get surprised and I react and I make a mistake.” That’s
one thing. It’s another thing that, “I knew this person. I
had a grudge against this person. I didn’t like this per-
son. I went in there because I wanted this person dead.”
I mean, that’s what I’m saying. It’s two hugely different
circumstances even though it’s the same result in the
end. And when you go to court, when it comes time for
a judge—we’ve got all the evidence to prove it. We’ve
been laying a lot of it out there for you. Well, when you
go to court and it comes time for a judge to decide, “Is
this a case where somebody deserves life in jail?” that’s
going to be part of the consideration. . . . I’m not trying
to put words in your mouth, but that’s just why it makes
sense to me that this probably was a situation where you
didn’t intend to hurt anybody, you didn’t want to hurt
anybody, where like I said, you got surprised, things
went bad, and you got scared. So that’s all—that’s what
I’m saying. There’s a big difference, okay? You can have
the same charge that one person gets life for and then
another person gets ten years for.
Krause: Or 1 to 10. What he’s basically saying, to sum
it up in layman’s terms, because we do a lot of the legal
jargon, you may not, sometimes things are accidents,
sometimes things are not. You hate him, you didn’t like
what he was doing, not an accident. Going in, trying to
get a PlayStation, “Oh, fuck,” accident. Those are differ-
ent. The end result is the same, what led up to it is differ-
ent. That’s what people look at.
After this exchange, the officers again emphasized that
Turner did not want to look like an evil person, and they
exhorted him to “do the right thing”:
Krause: Help me explain it, okay? You have to think
what’s good now. I mean, what’s your mom and dad
going to think? They’re going to think you’re evil and
you tried to do this? You know what I’m saying, man?
Turner: (indiscernible)
Krause: That’s not—you’re getting worked up, Bud.
Don’t do that.
Turner: I don’t know, man.
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Krause: Then do the right thing now.
Turner: I might be in jail for a long-ass time.
Krause: You might not. Don’t think about that. I don’t
know, okay? I’m with you right here. I don’t know the
circumstances that’s going to happen, but I do know that
you want to tell me, I can see it, because you know what
happened was wrong and you’re not a bad person. You
believe in God, right?
....
Krause: This is your soul you’re talking about. If you
know you didn’t mean to do it, then just tell me.
Turner: I didn’t.
Krause: Then explain the circumstances and help me
explain and show everybody that this is not what hap-
pened. Help me because I’m the only one . . . that can
help you explain and back up what you’re laying out how
this—that you didn’t meant to do this, because right now
it looks like you meant to do it by lying to me and—
Turner: But I didn’t though.
....
Turner: It was just, like—fuck it, man, it was spur of
the moment.
Turner then confessed the details of the shooting and bur-
glary. He was taken to the police department, where officers
interviewed him for several more hours. While Turner was in
the interview room at the police department, officers permit-
ted Coleman to enter and speak with him. Turner stated to
Coleman, “I’m about to get like, life.”
Turner was charged with first degree murder, use of a
deadly weapon to commit a felony, and possession of a deadly
weapon by a prohibited person. Before trial, Turner moved
to suppress on multiple grounds any and all statements made
by him to police officers, including that the statements were
involuntary. The district court conducted a hearing on Turner’s
motion and found that “his in[-]custodial interrogation did not
produce any statements as a result of any force, any threat
of force or any promises of any kind.” It therefore overruled
his motion. Turner renewed his objection at trial, and it was
again overruled.
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The jury returned a verdict finding Turner guilty on all
charges. He was sentenced to life imprisonment on the mur-
der conviction, a minimum and maximum term of 40 years’
imprisonment on the use of a deadly weapon conviction, and
a minimum and maximum term of 3 years’ imprisonment
on the possession of a deadly weapon conviction. Turner
timely appeals.
ASSIGNMENTS OF ERROR
Turner assigns that the district court erred in overruling
his motion to suppress and in admitting his confession into
evidence at trial, because his confession was the product
of threats, coercion, and inducements of leniency made by
police officers.
STANDARD OF REVIEW
[1] In reviewing a motion to suppress a confession based
on the claimed involuntariness of the statement, an appel-
late court applies a two-part standard of review. With regard
to historical facts, an appellate court reviews the trial court’s
findings for clear error. Whether those facts suffice to meet
the constitutional standards, however, is a question of law,
which an appellate court reviews independently of the trial
court’s determination.1
ANALYSIS
[2] Turner assigns that his confession to the shooting and
burglary was involuntary because it was the product of threats,
coercion, and inducements of leniency made by police officers.
However, the argument in his brief on appeal focuses solely on
his assertion that his confession was induced by promises of
leniency. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error to be considered by an appellate court.2 We therefore
limit our review to whether Turner’s confession was involun-
tary as the product of promises of leniency.
1
State v. Landis, 281 Neb. 139, 794 N.W.2d 151 (2011).
2
State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).
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[3-6] We first recall governing principles of law pertaining
to the admissibility of a confession. The Due Process Clause
of U.S. Const. amend. XIV and the due process clause of Neb.
Const. art. I, § 3, preclude admissibility of an involuntary
confession.3 Whether a confession or statement was volun-
tary depends on the totality of the circumstances.4 Coercive
police activity is a necessary predicate to the finding that a
confession is not voluntary within the meaning of the Due
Process Clause of the 14th Amendment.5 The State has the
burden to prove that a defendant’s statement was voluntary
and not coerced.6
Turner argues that his confession was involuntary because
it was induced by an implied promise that he would receive a
lesser sentence if he confessed that the shooting was acciden-
tal. As evidence of this implied promise, he points to Ficenec’s
statements that it made “a big difference” how and why the
shooting occurred and to Krause’s statement that the possible
penalty could be 1 to 10 years’ imprisonment if the shooting
was accidental. He claims that these statements constituted
an implied promise of leniency which overcame his will and
caused him to confess. He further argues that the officers’
statements were deceptive because first degree murder encom-
passes felony murder—which does not require a showing of
malice, intent, or premeditation.
Turner is correct in his assertion that the officers deceived
him during the course of the interview at the parole office.
Ficenec’s statements as to there being “a big difference” how
and why the shooting occurred, and specifically Krause’s
statement that Turner could get 1 to 10 years’ imprisonment if
the shooting was accidental, incorrectly indicated that felony
murder would receive a lesser sentence than premeditated
murder. These statements were deceptive because both felony
3
State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004), abrogated on
other grounds, State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
4
State v. Ray, 266 Neb. 659, 668 N.W.2d 52 (2003).
5
Landis, supra note 1.
6
Thomas, supra note 3.
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murder and premeditated murder constitute murder in the first
degree,7 and both may be treated as either a Class I or Class IA
felony,8 punishable by death or life imprisonment.9
[7,8] But the fact that the officers deceived Turner during
the course of the interview does not end our analysis. We have
recognized that a defendant’s confession may be involuntary
and inadmissible if obtained in exchange for a promise of
leniency.10 However, an improper promise of leniency will
not render a confession involuntary unless it overcomes the
defendant’s free will and impairs his or her capacity for self-
determination.11 Thus, whether the confession was voluntary
in this case turns upon whether the misinformation regard-
ing possible sentences overcame Turner’s will and caused
him to confess. And as noted above, our determination as to
whether a confession was voluntary depends on the totality of
the circumstances.
We have previously noted that a deceptive statement regard-
ing possible sentences is only one of several factors to be
considered.12 In State v. Thomas,13 we determined that the
defendant’s confession was voluntary and not caused by mis-
information regarding possible sentences due to the presence
of three factors. These factors included that (1) the officers
returned to previous themes between the discussion of possible
penalties and the defendant’s confession, (2) the defendant
indicated a knowledge that he could receive life imprisonment
for the crime both before and after his confession, and (3) the
confession occurred after an officer indicated that he did not
know what sentence would be imposed.14
7
See Neb. Rev. Stat. § 28-303 (Reissue 2008).
8
See id.
9
See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012).
10
State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993).
11
Smith v. Bowersox, 311 F.3d 915 (8th Cir. 2002); Thomas, supra note 3.
12
See Thomas, supra note 3.
13
Id.
14
Id.
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We find that Thomas controls our determination as to the
voluntariness of the confession in this case. Each of the factors
we identified in Thomas is present and leads us to the con-
clusion that the misinformation regarding possible sentences
did not overcome Turner’s will and cause him to confess.
However, in relying upon the factors identified in Thomas, we
must first note that our standard of review has since changed.
In Thomas, we reviewed the district court’s determination that
the defendant voluntarily confessed for whether the court was
clearly wrong.15 As noted above, our current standard of review
entails two parts: We review the trial court’s findings of histori-
cal fact for clear error and independently decide whether those
facts suffice to meet constitutional standards.16 However, this
change does not affect the applicability of the above factors to
our analysis of the confession in this case.
As in Thomas, Turner’s confession did not follow the dis-
cussion in which the officers misrepresented that a lesser sen-
tence would be imposed for felony murder. Rather, his confes-
sion was immediately preceded by the officers’ return to the
prior theme of Turner not being a bad, evil person; Krause’s
exhortation to “do the right thing”; and the colloquy regard-
ing Turner’s belief in God and the fate of his soul. Thus, the
dialog immediately preceding Turner’s confession supports
the conclusion that his confession was primarily motivated by
remorse and a desire to do the right thing—not to receive a
lesser sentence.
As to the second factor we identified in Thomas, Turner
indicated both before and after his confession that he was
aware he could receive a sentence of life imprisonment. Before
Turner confessed at the parole office, he stated, “Man, I’m
going to get life for this shit.” And after he confessed and was
transferred to the police department, Turner stated to Coleman,
“I’m about to get like, life.” Thus, this factor indicates that
Turner did not believe his confession precluded him from
receiving life imprisonment.
15
See id.
16
See Landis, supra note 1.
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Finally, like the defendant in Thomas, Turner confessed
after officers stated that they did not know what sentence
would be imposed. In response to Turner’s statement, “I’m
going to get a hundred years,” Ficenec replied, “I can’t tell
you what the potential penalty could be. I mean I’m not
going to bullshit you. Could you potentially get life? Is that
a possibility? I mean, I’m not a judge, I’m not a prosecu-
tor.” And during the colloquy immediately preceding Turner’s
confession, Krause stated, “I don’t know, okay?” in response
to Turner’s assertion that he “might be in jail for a long-ass
time.” Thus, although they incorrectly indicated that felony
murder would receive a lesser sentence, the officers made no
representations as to what sentence Turner would receive if
convicted. This factor supports the conclusion that Turner’s
confession was not motivated by a belief that he would
receive a particular sentence.
Although not acknowledged in Turner’s brief, at oral argu-
ment, he recognized the applicability of Thomas to this case.
But he attempted to distinguish Thomas on the basis of the
close proximity between the misinformation regarding pos-
sible sentences and his confession. Specifically, he claimed
that he confessed only 39 seconds after Krause indicated
that the possible penalty for felony murder could be 1 to 10
years’ imprisonment.
We disagree that this case is distinguishable from Thomas
on the basis that only 39 seconds separated Turner’s confes-
sion from the misinformation regarding possible sentences.
First, our opinion in Thomas makes no mention of the specific
period of time that passed between the misinformation regard-
ing possible sentences and the defendant’s confession in that
case. We noted only that the officers returned “for several
minutes” to the previous theme of the defendant’s being a
good person before he confessed.17 And Turner admitted at
oral argument that he was unaware of how much time passed
between the misinformation regarding possible sentences and
the defend­ nt’s confession in Thomas.
a
17
Thomas, supra note 3, 267 Neb. at 345, 673 N.W.2d at 904.
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Second, we disagree that Turner’s confession immediately
followed Krause’s statement that the penalty for felony murder
could be 1 to 10 years’ imprisonment. Although Turner fol-
lowed Krause’s statement by asking what could happen to him
if he was to say that the shooting was accidental, he did not
expressly confess to the shooting and burglary until approxi-
mately 3 minutes 35 seconds after Krause’s statement. And as
noted above, during this period immediately before his confes-
sion, the officers returned to the previous theme of Turner’s
not being a bad, evil person and exhorted him to do the right
thing and to consider how he would be perceived. We therefore
find Turner’s argument that this case is distinguishable from
Thomas to be unpersuasive.
We do not find this case to be distinguishable from Thomas
in any relevant way. In both cases, officers misrepresented
that felony murder would receive a lesser sentence than pre-
meditated murder and used the same “big difference” language.
However, in each case, the confession was immediately pre-
ceded by themes other than possible sentences, the defendant
demonstrated knowledge that he could receive a life sentence
before and after he confessed, and the confession followed
statements by officers that they did not know what sentence
would be imposed. Although we do not condone the decep-
tive tactics used by the officers in this case, the totality of the
circumstances demonstrates that the misinformation regarding
possible sentences did not overcome Turner’s will and cause
him to confess. We therefore find no merit to Turner’s argu-
ment that his confession was involuntary, and so we affirm his
convictions and sentences.
CONCLUSION
Although Turner is correct in his assertion that police
officers deceived him as to the potential penalty for felony
murder, the totality of the circumstances shows that this misin-
formation did not overcome his will and cause him to confess.
The dialog immediately preceding Turner’s confession demon-
strates that his primary motivation was remorse and a desire
to do the right thing. Additionally, the officers denied any
knowledge of the sentence Turner would receive, and Turner
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indicated that he knew he could receive life imprisonment
notwithstanding his confession. We therefore conclude that
Turner’s confession was voluntary and, thus, properly admis-
sible at trial. We affirm his convictions and sentences.
Affirmed.