Opinion
No. A-12-046
01-15-2013
STATE OF NEBRASKA, APPELLEE, v. DILLON A. SHADLE, APPELLANT.
Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant. Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge. Affirmed.
Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
IRWIN, MOORE, and PIRTLE, Judges.
MOORE, Judge.
INTRODUCTION
Dillon A. Shadle was convicted in the district court for Sarpy County of one count of burglary. On appeal, Shadle asserts that the district court erred in denying his motion to suppress, that the district court erred in admitting his statements to police into evidence, and that the evidence at trial was insufficient to find him guilty. For the reasons set forth herein, we affirm.
BACKGROUND
An information filed on May 4, 2011, charged Shadle with one count of burglary, in violation of Neb. Rev. Stat. § 28-507 (Reissue 2008), a Class III felony, and one count of theft by unlawful taking, in violation of Neb. Rev. Stat. §§ 28-511(1) (Reissue 2008) and 28-518(2) (Cum. Supp. 2012), a Class IV felony. These charges were based on the allegation that Shadle unlawfully entered a residence from which he stole a laptop computer.
Motion to Suppress.
Shadle filed a motion to suppress, asserting that the laptop was seized from his home in violation of his right against unreasonable search and seizure because there was no probable cause to enter the property, no warrant for the search of the residence, no warrant for his arrest, no consent by Shadle to enter the residence, and no exigent circumstances. Shadle also alleged that his verbal and written statements to the police should be suppressed because he was not properly informed of his Miranda rights, his statements were not voluntary, and his statements were obtained in violation of his right to counsel. At the hearing on the motion, the court received into evidence the DVD of Shadle's interview with law enforcement, the rights advisory form read to Shadle at the beginning of his interview, and Shadle's written statement. The court also heard testimony from Deputy Sheriff Eldon Stull. The evidence from the suppression hearing is summarized below.
On March 15, 2011, a laptop was reported missing as the result of a burglary at a residence in Springfield, Nebraska. A neighbor witnessed an individual matching Shadle's description leaving the residence. Stull attempted to contact Shadle at his residence over the next few days, but was unsuccessful, so Stull left his business card at the residence. Almost a month later, Shadle contacted Stull by telephone, and the two made plans to meet at Shadle's residence in a couple of days to talk about the case. Stull and another officer went to Shadle's residence, and Stull asked Shadle if he would come to the sheriff's office to talk. Shadle agreed and rode in the front seat of Stull's vehicle to the sheriff's office. Stull did not tell Shadle that he had to go with him to the sheriff's office or that anything bad would happen if he declined.
At the sheriff's office, Stull and Shadle went to an unlocked interview room. Stull testified that Shadle was able to leave if he wanted to. Stull advised Shadle of his Miranda rights, and Shadle agreed to speak with him. The rights advisory form was signed by Shadle. The interview lasted for approximately 1 hour and was recorded. Stull testified that he did not raise his voice during the interview.
A review of the recorded interview shows that Shadle initially denied involvement in the burglary and theft. Shadle expressed concern over spending time in jail and losing his job if he admitted to the crimes. Stull told Shadle that he could not prevent what would happen with the "jail part" of the matter, but that the judge and attorneys would look at his admission as an attempt to "make it right." When Shadle indicated that he did not want to turn out like his uncle "who spent years in jail," Stull responded that "[t]his ain't gonna be years in jail. A laptop, what 500 bucks?" Stull continued to encourage Shadle to "make it right" and get on the "right track" with his life. Shadle agreed that he would rather do the right thing, but that he would rather "pass on the jail part." Stull responded that "[w]e'd all like to pass on the jail part," but if Shadle made a mistake, he was going to have to pay for it one way or another. Shadle thereafter admitted to taking the laptop and told Stull that the laptop was in the basement of his home in a black-and-white backpack.
At the conclusion of the interview, Shadle agreed to provide a written statement. The statement, written on the sheriff's department "voluntary statement form," contained the Miranda advisement, which Shadle initialed, and contained Shadle's handwritten narrative of the events in question. Specifically, Shadle stated that he was at home watching television and was bored, so he thought he should go steal something. He called the house that was eventually burglarized to make sure no one was home, and then he walked over to the house. Shadle knocked on the door, then went inside and looked for something worth stealing. He saw the laptop, picked it up, and walked home. When he returned home, he hid the laptop. After providing the written statement, Shadle was then placed in custody.
After the interview, Shadle provided his mother's telephone number so that Stull could contact her to retrieve the laptop. Stull had previously met Shadle's mother, and she confirmed her identity when Stull contacted her by telephone. Stull understood that Shadle's mother was the homeowner. She was unable to meet Stull at her home at that time. She told Stull that her older son, Shadle's brother, would meet Stull at the residence to retrieve the laptop. When Stull arrived at the residence, Shadle's brother had already retrieved the laptop from the basement and had it sitting on a coffee table or couch in the front room. Shadle's brother pointed to the laptop and said, "There it is." He also showed Stull the black-and-white backpack and described where he found it in the house. Stull then took custody of the laptop.
At the conclusion of the evidence, the district court found that there was sufficient permission to recover the laptop and overruled that portion of the motion to suppress. The court took the remainder of the motion under advisement. On August 15, 2011, the district court entered an order denying Shadle's motion to suppress. The court found that the DVD of Shadle's interview showed that Shadle was properly advised of his rights and that Shadle acknowledged and signed a rights advisory form.
Jury Trial.
A jury trial was held on November 15 and 16, 2011. The State dismissed count II, theft by unlawful taking, and proceeded to trial on only the charge of burglary.
Marilyn Inserra testified that around 11:30 a.m. on March 15, 2011, she was sitting on her deck on the back of her house. She observed a teenager walking toward a neighbor's house across the street. He wore a red, hooded sweatshirt and approached the front door of the house. Inserra knew the family who lived there and knew that the children who lived there should have been in school at that time. Five minutes later, she watched the teenager exit the house carrying a black box with a cord or wire that looked like a video game system. Inserra thought that something about what she witnessed was not right, so she followed the teenager in her car to a house approximately four blocks away. She then returned home and called the police.
Deputy Jason Janda and Sgt. Robert Hillabrand responded to Inserra's report of a possible burglary. Janda and Hillabrand proceeded to the house Inserra observed the teenager enter. Shadle answered the door, and officers observed no other individuals in the house at that time. Shadle told the officers that he had not left the house at all that day. From the entryway of the home, the officers observed a video game system lying on the floor and a red, hooded sweatshirt on a bed in one of the front bedrooms. Shadle stated that the bedroom and the sweatshirt were his.
Janda left and made contact with the owner of the burglarized residence. When Janda arrived, one of the owner's children reported that nothing was missing from the home. Later in the day, the owner reported that there was a laptop missing and provided Janda with the serial number and a receipt indicating the laptop's purchase price was $749.99. Janda and Hillabrand returned to Shadle's house and made contact with Shadle and his parents. Janda clarified that they were looking for a laptop and not a video game system. Shadle repeated that he was home all day, never left, and had no knowledge of the laptop. Shadle and his parents consented to Hillabrand's request to look in Shadle's bedroom, but the laptop was not found.
Stull's testimony at trial regarding his contact and eventual interview with Shadle was essentially the same as his testimony at the suppression hearing. Stull confirmed that he read Shadle his Miranda rights using the rights advisory form and that Shadle signed the form. The State offered the rights advisory form into evidence, which was received over Shadle's objection based on the motion to suppress and on foundation.
The DVD of the interview was not offered into evidence, but Stull testified to additional details concerning the interview. Shadle denied involvement in the theft of the laptop several times during the hour-long interview. When Stull was asked about Shadle's admission, Shadle's attorney objected based on the motion to suppress, which objection was overruled. Shadle was concerned about spending time in jail and losing his job. Stull testified that he told Shadle that he knew that Shadle had made a mistake and that he would need to pay for it in some way. Stull told Shadle that the judge and attorneys would see he was cooperating with the investigation and that there was no way to avoid jail, but this was a chance to make it right. Stull asked Shadle whether he took the laptop, to which Shadle responded yes and that it was in the basement of his house in a black-and-white backpack. Stull testified that he did not make any promises to get Shadle to confess.
After the interview concluded, Shadle agreed to make a written statement. Shadle's attorney objected to Stull's testimony regarding the written statement on the basis of the motion to suppress, which objection was overruled. The voluntary statement form was received in evidence over Shadle's objection on the basis of his motion to suppress and on foundation.
Stull again testified about contacting Shadle's mother and obtaining her permission to retrieve the laptop from her home. Shadle objected to this line of questioning based upon foundation, relevance, hearsay, and the right to confront and cross-examine, which objections were overruled. Stull's testimony at trial regarding retrieving the laptop from the Shadle residence was consistent with his testimony at the suppression hearing.
The owner of the burglarized residence testified that she was familiar with Shadle. Shadle had previously been to her home with one of her sons on at least two occasions. She testified that she did not give Shadle permission to enter her home on March 15, 2011, or on any date. When the laptop was returned to the owner, she was unable to turn it on and was not able to fix it.
Following deliberations, the jury found Shadle guilty of burglary. The district court accepted the jury's verdict and ordered a presentence investigation. A sentencing hearing was held on January 9, 2012. The court found that Shadle was not a suitable candidate for probation and sentenced him to a term of imprisonment of 1 to 4 years, with credit for 55 days of time served. Shadle subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Shadle asserts that (1) the district court erred in overruling his motion to suppress, because there was no probable cause or valid consent to enter the home and seize the laptop; (2) the district court erred by admitting Shadle's verbal and written statements into evidence, because they were induced by promises of leniency; (3) the district court erred in admitting Shadle's written statement because he was not informed of his Miranda rights again after giving an involuntary verbal confession; and (4) the conviction was not supported by sufficient evidence.
STANDARD OF REVIEW
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Wollam, 280 Neb. 43, 783 N.W.2d 612 (2010). Regarding historical facts, an appellate court reviews the trial court's findings for clear error. Id. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination. Id.
In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, including claims that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part standard of review. State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009). With regard to historical facts, an appellate court reviews the trial court's findings for clear error. Id. 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. Id.
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009). Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Id.
ANALYSIS
Search and Seizure.
Shadle argues that the "search of [his] bedroom and the seizure of the laptop was invalid because [his] mother had no authority to give consent to the search of [Shadle's] bedroom" and that the State failed to prove that the consent of Shadle or his mother was given voluntarily, because the police did not obtain a written consent form. Brief for appellant at 9. We conclude that because Shadle failed to object to the admission of this evidence on the basis that the search was unlawful, he has failed to preserve this issue for appeal.
When Stull testified at trial about contacting Shadle's mother to obtain permission to recover the stolen laptop, Shadle objected to the questioning on the grounds of foundation, relevance, hearsay, and the "right to confront and cross-examine." Shadle did not renew an objection based upon the motion to suppress until the next line of questioning, which was about statements Shadle made to Stull during the interview and not about consent to retrieve the laptop.
After a pretrial hearing and order overruling a defendant's motion to suppress, the defendant, to preserve the issue on appeal, must object at trial to the admission of the evidence which was the subject of the suppression motion. State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006). Shadle failed to object to Stull's testimony on the basis that the evidence was derived from an unlawful search and seizure and thus failed to preserve this argument on appeal.
Even if Shadle had preserved this argument, we conclude that the trial court's factual finding that permission to enter the home and retrieve the laptop was given by Shadle's mother to law enforcement was not clearly erroneous. See State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996) (prosecution may justify warrantless search by proof of voluntary consent given by third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected). We note that Shadle's assertion that law enforcement entered his private bedroom to retrieve the laptop is incorrect as the evidence shows that the laptop was in the front room of the residence when Stull retrieved it from Shadle's brother. We reject Shadle's first assignment of error.
Statements to Law Enforcement.
Shadle argues that the district court erred in admitting Shadle's statements to police, and he argues that his statements were rendered involuntary by the officer's promise of leniency.
A statement of a suspect, to be admissible must be shown by the State to have been given freely and voluntarily and not to have been the product of any promise or inducement--direct, indirect, or implied--no matter how slight. However, this rule is not to be applied on a strict, per se basis. Rather, determinations of voluntariness are based upon an assessment of all the circumstances and factors surrounding the occurrence when the statement is made.State v. McPherson, 266 Neb. 734, 740-41, 668 N.W.2d 504, 511 (2003). The State has the burden to prove that a defendant's statement was voluntary and not coerced. State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010). In determining whether a Miranda waiver is knowingly and voluntarily made, a court applies a totality of the circumstances test. Id. Factors to be considered include the suspect's age, education, intelligence, prior contact with authorities, and conduct. Id.
Shadle argues that his case is analogous to State v. Porter, 235 Neb. 476, 455 N.W.2d 787 (1990), in which the primary interrogator told the defendant that it could help him if he confessed and that it would look better for him if he confessed. At one point, the interrogator said that he was sure the judge would take that into consideration. The court held that the interrogator's statements constituted implied promises of leniency which rendered the defendant's confession involuntary. The instant case is distinguishable from Porter because Stull emphasized that he could not prevent what was going to happen regarding a jail sentence, only that the judge and attorneys may take Shadle's cooperation into consideration. See State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993) (police officer's express promise to inform prosecutor of defendant's cooperation did not render defendant's statement involuntary because officer did not specifically state or imply that defendant would legally benefit from his statement).
The confession of an accused may be involuntary and inadmissible if obtained in exchange for a promise of leniency. State v. Bormann, supra. However, mere advice or exhortation by the police that it would be better for the accused to tell the truth, when unaccompanied by either a threat or a promise, does not make a subsequent confession involuntary. Id.; State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000). In order to render a statement involuntary, any benefit offered to a defendant must be definite and must overbear his or her free will. Id.
Based upon our independent review, we conclude that no implied promise of leniency can reasonably be inferred from the questioning techniques utilized by Stull. There was no suggestion of any definite benefit which Shadle could expect to receive in exchange for his admission. Although the record indicates that Stull postured that Shadle would not spend "years" in jail, this statement was made in the context of the relatively minor value of the stolen laptop. This statement alone does not amount to an implied promise of leniency or persuade us that Shadle's will was overborne. In fact, most of Stull's statements were implying that Shadle would feel better himself if he told the truth and did the right thing to get his life back on the "right track."
Because we find that Shadle's verbal confession was voluntary, we need not address Shadle's third assignment of error that the involuntary verbal confession tainted the written confession. We find no error in the admission of the testimony concerning Shadle's verbal confession or in the receipt of the written statement.
Sufficiency of Evidence.
Shadle next asserts that the evidence was insufficient to support a burglary conviction. Shadle argues only that the motion to suppress should have been granted and that, if it had, there would have been insufficient evidence upon which to convict him. Because we have concluded that the motion was properly overruled, this argument by Shadle has no merit. Further, our review of the record shows that there was sufficient evidence to find that Shadle unlawfully entered the residence that was burglarized with the intent to steal property in violation of § 28-507.
CONCLUSION
The district court did not err in overruling Shadle's motion to suppress. The evidence was sufficient for the jury to convict Shadle of burglary.
AFFIRMED.