State v. Connelly , 307 Neb. 495 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/30/2020 12:07 AM CDT
- 495 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
State of Nebraska, appellee, v.
Jeremiah L. Connelly, appellant.
___ N.W.2d ___
Filed October 16, 2020. No. S-19-1139.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a
statement based on its claimed involuntariness, including claims that
law enforcement procured it by violating 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. Regarding historical facts, an appellate
court reviews the trial court’s findings for clear error. Whether those
facts meet constitutional standards, however, is a question of law,
which an appellate court reviews independently of the trial court’s
determination.
2. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
prohibits the use of statements derived during custodial interrogation
unless the prosecution demonstrates the use of procedural safeguards
that are effective to secure the privilege against self-incrimination.
3. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
Under the Miranda rule, a “custodial interrogation” takes place when
questioning is initiated by law enforcement after a person has been
taken into custody or is otherwise deprived of his or her freedom of
action in any significant way.
4. ____: ____: ____. The term “interrogation” under Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), refers not only
to express questioning, but also to any words or actions on the part of
the police (other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an incriminat-
ing response from the suspect.
- 496 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
5. ____: ____: ____. A police officer’s course of inquiry related to and
responsive to a volunteered remark by the accused is not “interrogation”
for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966).
6. Confessions: Appeal and Error. In making the determination of
whether a statement is voluntary, a totality of the circumstances test
is applied, and the determination reached by the trial court will not be
disturbed on appeal unless clearly wrong.
7. Confessions: Evidence: Proof. To meet the requirement that a defend­
ant’s statement, admission, or confession was made freely and volun-
tarily, the evidence must show that such statement, admission, or confes-
sion was not the product of any promise or inducement—direct, indirect,
or implied—no matter how slight.
8. Confessions: Mental Competency. Mental illness, like age, education,
and intelligence, is a relevant factor in the totality test when evaluating
the voluntariness of a statement.
9. ____: ____. No per se rule invalidates the volunteered statement of a
mentally ill defendant. Instead, such statement is subject to the general
rule that a statement freely and voluntarily given without any compel-
ling influences is admissible.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Leslie E. Cavanaugh for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
NATURE OF CASE
The appellant, Jeremiah L. Connelly, filed a motion to sup-
press in the district court for Douglas County, Nebraska, seek-
ing to have statements he made to law enforcement suppressed
in violation of his Miranda rights. The district court denied
Connelly’s motion, finding Connelly’s pre-Miranda statements
- 497 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
were not made in response to an interrogation and his post-
Miranda statements were made voluntarily. We affirm.
BACKGROUND
Initial Arrest
On September 21, 2018, Omaha police officers Kirk Weidner
and Mark Pruett were on routine patrol in the area of 90th
Street and Bedford Avenue in Omaha, Nebraska. While patrol-
ling the area, Weidner and Pruett observed a car exit a parking
lot, cross two lanes of traffic, and run a stoplight. Upon pursu-
ing the car, the officers observed the car parked in an alleyway
and saw the driver exit the vehicle and head north. As Weidner
and Pruett approached the vehicle, they received information
from Omaha police dispatch of a report of a stolen car match-
ing the description of the car they were observing. The officers
gave chase on foot and apprehended the fleeing driver, later
identified as Connelly.
Sgt. Tammy Mitchell, with the Omaha police’s auto theft
unit, instructed Weidner and Pruett to transport Connelly to the
police station for an interview. Connelly was placed in hand-
cuffs and put in the back of the cruiser, but was not read his
Miranda rights.
Once Weidner, Pruett, and Connelly arrived at the police
station, they waited in the lobby because all of the interview
rooms were occupied. In the lobby, Connelly voluntarily pro-
vided the officers with information about the auto theft. He
told Weidner, “You guys are worried about this petty auto theft
when you should be worried about her life.” When Weidner
asked, “Whose life?” Connelly responded with a name that
Weidner did not recognize. Connelly was then turned over to
Mitchell for an interview.
Mitchell Interview
Mitchell and a detective entered the interview room where
Connelly was seated. Mitchell noticed that Connelly had his
jeans rolled up to his knees and that his legs were red and
swollen. The interview proceeded as follows:
- 498 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
5:43:19 P.M.
Mitchell: Are you having an allergic reaction, you
think?
Connelly: I don’t know. It started Monday.
Pruett: He said it was from a sunburn, being outside all
day yesterday, and then he said he had (inaudible) in the
knees from running, so.
Connelly: No, it’s not from running.
Mitchell: Okay, what happened?
5:43:34 P.M.
Connelly: It’s from dumping her body in Fremont,
that’s what it’s fucking from. “Mister-I-nearly-record-
everything,” piece of shit (referring to Pruett, one of the
arresting officers). Hero of the fucking day out there, he
don’t listen to a damn word.
Mitchell: Well, tell me, I’ll listen.
Connelly: He wants to give a shit about fucking cars all
day dude, who cares about fucking cars?
Mitchell: Nobody does.
Connelly: Jeanna Wilcoxen. J-E-A-N-N-A, dude.
Mitchell: How do you know her?
Connelly: She’s in Fremont, that’s how I know her.
Mitchell: Okay, what’s she doing in Fremont? Is she
in danger?
Connelly: You can’t help her no more.
Mitchell: What do you mean?
Connelly: She’s laying out there. You can fly over and
find . . . (interrupted by Mitchell).
Mitchell: What do you mean? She—how do you spell
“Jeanna?” J-E-A-N-N-A? Is that right?
Connelly: Wilcoxen.
Mitchell: Is she missing? Do we need to go help
somebody—
Connelly: Don’t nobody even know dude?
Mitchell: Nobody knows she’s missing?
- 499 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
Connelly: That’s the fucked up part. . . . They don’t
even know she’s fucking gone.
Mitchell: What do you mean by gone?
Connelly: Like I ain’t never getting out of here and
just want this shit to stop. I don’t know . . . I’ll tell you
whatever you want to know.
Mitchell: I gotta know if she’s safe.
Connelly: I’ll tell you whatever you want to know.
....
Connelly: No, it ain’t what he said, dude. It’s her, dude.
It’s what I did to her.
Mitchell: Alright, it looks like it. What did you do
to her?
Connelly: It’s coming back threefold.
Mitchell: What happened?
Connelly: Sunday night. From the laundromat on Q
....
Mitchell: Yeah. Tell me.
Connelly: She just wouldn’t listen man.
Connelly: Whatever I do comes back on me three
times. (Connelly looks at his swollen legs and says,
“Dude, look at that. You ever seen that shit?”)
Mitchell: Tell me about Jeanna.
Connelly: She’s in Fremont. She’s laying there at the
end of the road. I don’t do drugs.
Mitchell: Alright.
....
Connelly: Half, bunch of her stuff is in Columbus.
Mitchell: Half of her stuff is in Columbus?
Connelly: Just laying out in the truckstop. Some more
of it is in South Omaha. Laying in an alley.
Mitchell: So you mean she was moving out? You were
helping her move out?
Connelly: That’s where I threw it.
Mitchell: Oh, that’s where you threw it. Why’d you
throw her stuff in an alley?
- 500 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
Connelly: Why’d I burn the van up the other day?
Mitchell: I don’t know. I don’t know anything about a
van. Tell me about that.
Connelly: My ’87 G20 van.
Mitchell: Yeah.
Connelly: That they found (inaudible) torched over
there in South Omaha.
Mitchell: Yeah.
Connelly: They seen me running from it with whatever
I could carry.
Mitchell: Why did that happen?
Connelly: Because it had her in it. It had her in it.
....
Mitchell: What do you mean you had her? You gave
her a ride?
Connelly: I had her in it for 3 or 4 hours. Gave her a
ride to Fremont. Dumped her in the fucking ditch. Don’t
nobody care about that girl, dude?
Mitchell: Is she alive?
Connelly: No, she’s not.
At about 51⁄2 minutes into the interview, Mitchell sent the
detective out of the interview room. Connelly then stated that
his legs were sunburned because he was outside for 2 hours the
day before, contemplating jumping off a bridge to his death.
The following exchange occurred:
Mitchell: Why’s that? Why would you do that?
Connelly: . . . If I smothered her . . . if I smothered
her and told her that’s the best way to go out of all the
ways to get killed, I oughta be able to man up and do it
to myself right after.
Mitchell: So is that what happened to her?
Connelly: She got a duct-taped mask and she’s laying
in Fremont at the end of a road in a ditch.
....
Mitchell: What? Do you know what road you were
driving on?
- 501 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
Connelly: It ain’t covered. She’s not covered up . . .
that’s the fucked up part.
Mitchell: What is she wearing?
Connelly: Duct tape.
Connelly starts to cry as he recounts how he “duct-taped”
her, told her he was not going to rape her, and explained he
just wanted to take “her money and her dope,” but that things
got out of hand. Approximately 45 minutes into the interview,
a homicide unit detective, David Preston, took over and led the
remainder of the interview.
Preston Interview
Preston obtained Connelly’s date of birth and address, and
for the first time, he read Connelly his Miranda rights and
asked if, having been informed of his rights, he would still be
willing to speak with him. Connelly answered yes, and Preston
filled out a rights advisory form, which Connelly did not
sign. Preston showed Connelly a map of Fremont, Nebraska,
to assist in finding Jeanna Wilcoxen’s location. Preston then
asked Connelly to “start back from the beginning” and to
explain “what happened actually.” While recounting his story,
Connelly made reference to a “beast” and hearing voices:
6:49:18 P.M.
Connelly: All this shit she’s been through. It was just
perfect . . . I told her either way, the beast gets her or I get
her, this is perfect (inaudible) right here.
Preston: A beast, what are you referring to?
Connelly: Just like, I don’t know, the beast, the hunger.
Preston: Your hunger?
Connelly: Doesn’t feel like me. It doesn’t feel like me
at all. It feels like two or three versions of people (inau-
dible) that I pissed off somehow. I don’t really realize
how I pissed them off but it felt like them when the actual
incident happened, when I’m giving verbal directions and
telling her all this shit, being aggressive to maintain con-
trol of the situation but staying calm. The staying calm
- 502 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
part was me, that was like, so it was like one, two, three
. . . three driving forces, dude, just like dominating.
Preston: It wasn’t emotionally you, it physically was
you?
Connelly: It was me, emotionally, I’m not trying to
make it deeper than it is. It was my buddy Chicken Bone
and my buddy Kona, are floating around in my head,
every time I spoke, I sounded like them. It was distinc-
tive. It’s like knowing the names to the voices you hear.
Not crazy people who don’t know the names. I wronged
both these guys and I don’t remember how or why they
got so mad at me when we were such good buds in the
beginning and what they’re doing here and now involved
in this and then my stay calmness on top of that was the
end of her, it’s what destroyed her. It’s simple. I’m not
trying to get all psychological and shit.
Connelly then went on to explain how he killed Wilcoxen.
At the conclusion of Connelly’s interview, because the location
of Wilcoxen’s body still could not be determined, Weidner,
Pruett, and Preston took Connelly to Fremont in an attempt to
locate Wilcoxen. Wilcoxen’s body was eventually discovered
in an area very close to what Connelly had described. Connelly
also directed the officers to 53rd & Y Streets in Omaha, advis-
ing that was the location where the murder had occurred. He
then took them to an alley at 34th & K in Omaha where they
found a tablet computer belonging to Wilcoxen that Connelly
had discarded. Connelly then led Preston to Council Bluffs,
Iowa, and to Columbus, Nebraska, to look for Wilcoxen’s cell
phone and his cell phone, but attempts to locate the cell phones
were unsuccessful. The State later charged Connelly with first
degree murder and tampering with physical evidence.
Motion to Suppress
Connelly filed a motion to suppress the statements he made
to law enforcement. Connelly argued in support of his motion
that (1) the statements were obtained without Connelly’s
- 503 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
being properly advised of his right to counsel and his right
against compulsory self-incrimination; (2) the statements were
obtained without a knowing, intelligent, and voluntary waiver
of his right to counsel and his right against compulsory self-
incrimination; (3) the statements were not voluntary in that
they were the product of threats, coercion, or inducements of
leniency practiced upon him by law enforcement; and (4) the
statements were the fruit of an unlawful arrest.
In a written order, the district court denied Connelly’s
motion to suppress. First, the district court found that prob-
able cause existed to support a warrantless arrest of Connelly.
Second, the district court found Connelly’s pre-Miranda state-
ments made to law enforcement were voluntary and not the
result of an interrogation. The court determined the overall
demeanor of Connelly’s interview indicated that Connelly was
voluntarily providing information to law enforcement and that
thus, Mitchell was not interrogating Connelly. Further, the
court pointed out that when Mitchell inquired about Connelly’s
swollen legs, he responded that he had sustained the injuries
from “‘dumping her body in Fremont.’” The court noted there
was no reason that Mitchell should have reasonably expected
that her question would likely elicit an incriminating response.
The district court further found that Connelly’s pre-Miranda
statements were admissible under the public safety excep-
tion, also referred to as the “rescue doctrine,” to the Miranda
requirements. 1
Third, for the sake of completeness, the district court found
that even if Mitchell’s pre-Miranda interview amounted to an
interrogation, Connelly’s post-Miranda interview would still
be admissible because it did not rise to the level of a two-step
interrogation. Fourth, the district court found that under the
totality of the circumstances, Connelly knowingly and volun-
tarily waived his Miranda rights. Fifth, the district court found
1
See New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550
(1984).
- 504 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
that the State met its burden in proving, by a preponderance
of the evidence, that Connelly’s confession was voluntary. The
court determined there was no evidence presented to suggest
Connelly’s confession was the product of threats, coercion,
or inducements of leniency. The court noted that instead,
Connelly was cooperative with law enforcement and often vol-
unteered information beyond what was requested.
Trial and Sentencing
A jury found Connelly guilty of first degree murder and tam-
pering with physical evidence. The court sentenced Connelly to
consecutive terms of life imprisonment without the possibility
of parole for the first degree murder conviction and of 2 to 2
years’ imprisonment for the tampering with physical evidence
conviction. Connelly appeals.
ASSIGNMENTS OF ERROR
Connelly assigns, consolidated and restated, that (1) the
district court erred in overruling the motion to suppress both
his pre-Miranda and post-Miranda statements and (2) there
was insufficient evidence to prove, beyond a reasonable doubt,
Connelly’s statements were made voluntarily.
STANDARD OF REVIEW
[1] In reviewing a motion to suppress a statement based on
its claimed involuntariness, including claims that law enforce-
ment procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, 2 an appellate court
applies a two-part standard of review. Regarding historical
facts, an appellate court reviews the trial court’s findings for
clear error. Whether those facts meet constitutional standards,
however, is a question of law, which an appellate court reviews
independently of the trial court’s determination. 3
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
3
State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). See State v.
Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
- 505 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
ANALYSIS
No Custodial Interrogation
Connelly argues his confession to Mitchell was a “non-
Mirandized” statement made during a custodial interrogation
because Mitchell’s questions were designed to elicit an incrimi-
nating response from him. Neither party contests that Connelly
was in custody during each interview. As such, we focus
on whether Connelly was subject to an interrogation by law
enforcement. For the reasons set forth below, we affirm the
trial court’s denial of Connelly’s motion to suppress his pre-
Miranda statements, because we find Connelly volunteered
those statements and was not subject to an interrogation.
[2] Miranda prohibits the use of statements derived during
custodial interrogations unless the prosecution demonstrates
the use of procedural safeguards that are effective to secure the
privilege against self-incrimination. 4 The safeguards provided
by Miranda “‘come into play whenever a person in custody
is subjected to either express questioning or its functional
equivalent.’” 5
[3,4] This court, in State v. Rodriguez, 6 stated that under
the Miranda rule, a “custodial interrogation” takes place when
questioning is initiated by law enforcement after a person has
been taken into custody or is otherwise deprived of his or her
freedom of action in any significant way. We have also stated
that the term “interrogation” under Miranda refers not only
to express questioning, but also to any words or actions on
the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect. 7 An
4
State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007). See Miranda,
supra note 2.
5
Bormann, supra note 3, 279 Neb. at 326, 777 N.W.2d at 835.
6
See Rodriguez, supra note 4.
7
Id.; State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000). See Rhode
Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).
- 506 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
objective standard is applied to determine whether there is an
interrogation within the meaning of Miranda. 8
[5] The relevant question to be asked is, “‘Would a reason-
able and disinterested person conclude that police conduct,
directed to a suspect or defendant in custody, would likely elicit
an incriminating response from that suspect or defendant?’” 9
If the answer is yes, then there is interrogation requiring the
recitation of Miranda warnings. 10 However, we have excluded
from the definition of interrogation a police officer’s course of
inquiry related to and responsive to a volunteered remark by
the accused. 11
In Rodriguez, while in custody, the defendant made incrimi-
nating statements to a police officer before the officer could
finish advising him of his Miranda rights. 12 The defendant’s
remarks were made in an abrupt, rambling manner and not
in response to any questioning by the officer. We determined,
after a review of the interview tape, that the officer made sev-
eral remarks that seemed focused toward calming the defend­
ant rather than eliciting information, including telling him
that he believed him. 13 We held that “[s]tatements made in a
conversation initiated by the accused or spontaneously volun-
teered by the accused are not the result of interrogation and
are admissible.” 14 We affirmed the trial court’s admittance
of the defendant’s statements because the statements were
spontaneous, excited remarks, which were not the result of
police compulsion. 15
8
Bormann, supra note 3.
9
Id. at 327, 777 N.W.2d at 836 (quoting State v. Gibson, 228 Neb. 455, 422
N.W.2d 570 (1988)).
10
Bormann, supra note 3.
11
Buckman, supra note 7. See, also, State v. Lamb, 213 Neb. 498, 330
N.W.2d 462 (1983).
12
Rodriguez, supra note 4.
13
Id.
14
Id. at 944, 726 N.W.2d at 171.
15
Rodriguez, supra note 4.
- 507 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
In State v. Lamb, 16 after being placed in a holding cell and
before any Miranda warnings had been given to him, the
defendant told the police officer that he shot his wife. The
defendant then asked the officer, “‘How would you like it?’”
to which the officer replied, “‘What do you mean by that?’” 17
The defendant then replied, “‘I got tired of seeing her suffer
so I shot her.’” 18 The officer later testified that at the time
he asked the question, he was concerned about whether the
defend­ant was uncomfortable, ill, or angry about being placed
in the holding cell. We agreed with the trial court in the case
that the officer’s question was a neutral and spontaneous one,
not one calculated to obtain a confession. We also determined
the officer’s question did not place the defendant under a
compulsion to speak because the defendant was the one who
initiated the conversation and the officer simply requested
clarification of the defendant’s statement. 19
The facts concerning Connelly’s statements to Mitchell
are substantially the same as the statements made in both
Rodriguez and Lamb. 20 A review of the interview tape shows
an agitated Connelly volunteering incriminating statements
before his Miranda warnings could be read to him.
Mitchell’s first question to Connelly concerned his red and
swollen legs. Connelly responded that it was from “dump-
ing [Wilcoxen’s] body.” Mitchell’s question was a neutral
and spontaneous question not intended to elicit a confession,
and Connelly’s statement was spontaneously volunteered. The
interview tape also shows that Connelly appeared frustrated
that the officers only cared about cars, rather than about a
missing woman. This is evident when Connelly tells Mitchell
that Pruett would not “listen to a damn word,” to which
16
Lamb, supra note 11.
17
Id. at 501, 330 N.W.2d at 465.
18
Id.
19
See id.
20
See, Rodriguez, supra note 4; Lamb, supra note 11.
- 508 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
Mitchell simply tells him that she will listen to him. Mitchell’s
limited inquiry cannot be characterized as a knowing attempt to
elicit an incriminating statement from Connelly. When Mitchell
did ask Connelly clarifying questions, they were often related
to and responsive to Connelly’s volunteered statements. At the
time of these questions, law enforcement was not yet aware of
the murder. There is no evidence in the record that Connelly
was under any compulsion to speak about the murder.
Accordingly, although Connelly was in custody and his
Miranda rights had not yet been read to him, his statements
to Mitchell were not made in response to a custodial interro-
gation. Therefore, the district court did not err in finding that
no custodial interrogation took place prior to the recitation of
Connelly’s Miranda rights.
Public Safety Exception
The district court found the public safety exception, also
referred to as the “rescue doctrine,” which has been adopted
by the U.S. Supreme Court, to be an appropriate exception to
admit Connelly’s pre-Miranda statements. 21 However, neither
the rescue doctrine nor the public safety exception has yet been
adopted by Nebraska appellate courts.
In New York v. Quarles, 22 the U.S. Supreme Court held that
a public safety exception to the Miranda requirements applies
when police ask a subject questions necessary to protect the
public or police from immediate danger. Because we deter-
mine that Connelly’s statements were not the result of police
questioning, we need not address the applicability of the public
safety exception. An appellate court is not obligated to engage
in an analysis that is not necessary to adjudicate the case and
controversy before it. 23
21
See Quarles, supra note 1.
22
Id.
23
State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019), cert. denied ___
U.S. ___, 140 S. Ct. 545, 205 L. Ed. 2d 345 (2019).
- 509 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
Post-Miranda Statements
Connelly argues his post-Miranda statements made to Preston
should be suppressed because detectives deployed an “ask first,
warn later” tactic disapproved of by the U.S. Supreme Court
in Missouri v. Seibert, 24 and because the Miranda warnings he
received did not cure the damage that was done.
In Seibert, the U.S. Supreme Court considered a police
protocol in which a suspect was interrogated without Miranda
warnings until the suspect confessed, at which point, the offi-
cer would give Miranda warnings, ask for a waiver, and get
the suspect to repeat the pre-Miranda confession. 25 The Court
explained that the underlying assumption with the “question-
first” tactic was that
with one confession in hand before the warnings, the
interrogator can count on getting its duplicate, with tri-
fling additional trouble. Upon hearing warnings only in
the aftermath of interrogation and just after making a
confession, a suspect would hardly think he had a gen­
uine right to remain silent, let alone persist in so believ-
ing once the police began to lead him over the same
ground again. 26
The plurality opinion held that such tactic effectively threat-
ens to thwart the purpose of Miranda by reducing the risk that
a coerced confession would be admitted. 27
However, as we have already determined, there was no pre-
Miranda interrogation by Mitchell, and as such, there was no
“question-first” tactic here. Therefore, the district court did
not err in determining Connelly’s post-Miranda interview was
admissible because it did not rise to the level of a two-step
interrogation.
24
Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643
(2004).
25
Id.
26
Id., 542 U.S. at 613.
27
Seibert, supra note 24. See, also, Miranda, supra note 2.
- 510 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
Voluntariness of Statements
Connelly’s final assignment of error is that there was insuf-
ficient evidence presented to the jury to support its conclusion
that his statements were voluntary.
[6] The especially damning nature of a confession requires
the State to prove that an accused’s statement was voluntary
before it is admissible. 28 In making this determination, a total-
ity of the circumstances test is applied, and the determination
reached by the trial court will not be disturbed on appeal unless
clearly wrong. 29
[7] To meet the requirement that a defendant’s statement,
admission, or confession was made freely and voluntarily, the
evidence must show that such statement, admission, or con-
fession was not 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 of the circumstances and factors surrounding the occur-
rence when the statement is made. 30
[8,9] Connelly relies on our decision in State v. Dickson, 31
where we cited to the Supreme Court’s decision in Rhode
Island v. Innis 32 and stated that mental illness, like age, educa-
tion, and intelligence, is a relevant factor in the totality test
when evaluating the voluntariness of a statement. However, we
also stated that no per se rule invalidates the volunteered state-
ment of a mentally ill defendant. 33 We held that such statement
is subject to the general rule that a statement freely and volun-
tarily given without any compelling influences is admissible. 34
28
See State v. Walker, 242 Neb. 99, 493 N.W.2d 329 (1992).
29
State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000).
30
Walker, supra note 28.
31
State v. Dickson, 223 Neb. 397, 389 N.W.2d 785 (1986).
32
Innis, supra note 7.
33
Dickson, supra note 31.
34
See id.
- 511 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CONNELLY
Cite as 307 Neb. 495
Connelly argues that his statements about hearing voices,
his uncorroborated statements about discarding his cell phone
in Columbus and disposing of evidence in Council Bluffs, his
confusion while searching for Wilcoxen’s body near Fremont,
and his erratic jumping from one subject to another indicated
a mental illness sufficient to make his incriminating statements
involuntary. However, a review of the interview tape indicates
that Connelly described his crimes in detail, that his state-
ments tracked chronologically, and that he understood what he
was saying. Additionally, no evidence was offered to indicate
that Connelly suffered from a mental illness or that he was
under the influence of drugs or alcohol at the time the state-
ments were given. Neither was there evidence that Connelly’s
confession was the product of threats, coercion, or induce-
ments of leniency.
Furthermore, the district court instructed the jury that it must
disregard any statement from Connelly if it found that the State
did not prove beyond a reasonable doubt that Connelly under-
stood what he was saying and freely and voluntarily made the
statement under all surrounding circumstances. An appellate
court does not resolve conflicts in the evidence, pass on cred-
ibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact. 35 Connelly’s argument that his statements
were not made voluntarily is without merit.
CONCLUSION
For the foregoing reasons, we affirm the order of the district
court denying Connelly’s motion to suppress. We conclude that
Connelly’s pre-Miranda statements were made voluntarily and
not in response to a custodial interrogation. We further con-
clude there was sufficient evidence for a jury to find Connelly
made his post-Miranda statements voluntarily.
Affirmed.
35
State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).