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05/23/86 STATE NEBRASKA v. DEREK W. DIXON

May 23, 1986

STATE OF NEBRASKA, APPELLEE,
v.
DEREK W. DIXON, APPELLANT



Appeal from the District Court for Douglas County: Robert V. Burkhard, Judge.

Krivosha, C.j., Boslaugh, Hastings, Caporale, Shanahan, and Grant, JJ. White, J., participating on briefs.

SYLLABUS BY THE COURT

1. Confessions: Evidence. Voluntariness is the ultimate test to use an accused's statement, admission, or confession as evidence in a criminal prosecution.

2. Confessions: Evidence. To be admissible an accused's statement, admission, or confession must have been freely and voluntarily made, and must not have been the product of or extracted by any direct or implied promise or inducement, no matter how slight.

3. Police Officers and Sheriffs: Confessions: Appeal and Error. Whether an officer has made a promise for a defendant's statement is a question of fact to be determined by a trial court -- a decision which will not be set aside unless clearly wrong.

4. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, the Supreme Court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed witnesses testifying regarding such motion to suppress.

5. Proximate Cause. Conduct is a cause of an event if the event in question would not have occurred but for that conduct; conversely, conduct is not a cause of an event if that event would have occurred without such conduct.

6. : Death: Proximate Cause: Intent. An act or omission to act is the proximate cause of death when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient, intervening cause, to the resulting death. It is unnecessary for proximate cause purposes that the particular kind of harm that results from the defendant's act be intended by him.

7. : Homicide: Proximate Cause. A victim's fatal heart attack, proximately caused by a defendant's felonious conduct toward that victim, establishes the causal connection between felonious conduct and homicide necessary to permit a conviction for felony murder in violation of Neb. Rev. Stat. § 28-303(2) (Reissue 1979).

8. Evidence: Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support the verdict.

The opinion of the court was delivered by: Shanahan

Derek W. Dixon appeals his first degree murder conviction by a jury in the district court for Douglas County. The information charged that Dixon "during the perpetration of, or attempt to perpetrate a burglary kill Susan K. Jourdan." Neb. Rev. Stat. § 28-303 (Reissue 1979) provides: "A person commits murder in the first degree if he kills another person . . . (2) in the perpetration of or attempt to perpetrate any sexual assault in the first degree, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary . . . ."

Susan Jourdan, age 76, lived alone in her South Omaha home. As recently as 1979, Jourdan had two surgical procedures pertaining to cancer, but, with occasional assistance from her family, did light housework. Around 10 a.m. on December 31, 1984, Jourdan's sister, Agnes Hamann, visited by telephone with Jourdan, who said she was going to fix some eggs for breakfast as soon as the sisters finished talking on the phone. Near 9 p.m. on December 31, Ms. Hamann telephoned her daughter, Virginia Hansen, and expressed concern that she had made numerous unanswered telephone calls to Jourdan. The next morning Ms. Hamann recontacted her daughter and again expressed concern that no one answered the telephone at the Jourdan house. Virginia Hansen and her husband went to the Jourdan residence around 10 a.m. on January 1, 1985, found the front door locked, but, looking through a window, saw the interior in "disarray." After unlocking the front door, Hansens entered and saw the telephone, with the receiver out of its cradle, lying in the doorway between the living room and kitchen. On further investigation Hansens found Jourdan, clad in a bathrobe and nightgown, face down on the kitchen floor. From a neighbor's house Hansens called paramedics and police. On arrival and finding Jourdan quite obviously dead, the paramedics made no attempt at resuscitation.

A police officer from a cruiser unit also arrived and found the kitchen door, as an entry at the rear of Jourdan's house, had been "kicked open," the house "ransacked," and the interior of the house was "very cold," noting the presence of ice in some pans in the kitchen sink. The cruiser officer summoned the homicide unit of the Omaha Police Department.

As part of their investigation on that morning of January 1, officers of the homicide unit examined the hollow-core, wooden kitchen door which allowed entry from the outside by way of an enclosed porch. A window in the kitchen door was shattered, and window glass was scattered immediately inside the doorway. The door itself was damaged. Below the area of the lock and doorknob, the hollow-core, wooden door was broken; that is, the lower part of the door was separated from the upper portion and was lying inside the kitchen. In the separated door panel was a jagged hole at the bottom left side.

Further investigation by the officers disclosed other pertinent facts. The cord from the living room telephone jack had been torn from the plug-attachment to the phone. The thermostat for the house's oil furnace was set at 78 degrees F, but the furnace was not operating. Officers restarted the furnace by using the reset button. Outside temperature was -11 degrees F. One officer found ice, approximately 3/8-inch thick, formed in kitchen utensils in the sink. Coin wrappers were found in the living room, coin banks had been rifled, and a wrapped roll of pennies was discovered near the kitchen exit. Drawers of various furniture items were open, and contents, such as papers and clothing, were strewn on the floor. A "space heater" was located, but not then in use, in the living room. A scorched pan containing three eggs was found on the kitchen stove with the burner on a low setting. Through "dust" for fingerprints, a latent palm print was "lifted" from the area at the kitchen door. Also, from the site of the hole in the broken kitchen door, police obtained a print from a shoe with a tread sole. The shoe print was later identified as the type from a Puma brand tennis shoe.

On the morning of January 5 the police crime laboratory identified the palm print as that of Derek Dixon, age 20, who had been arrested for robbery five times and use of a firearm in the commission of a felony once. A warrant was issued for Dixon's arrest on a charge of burglary. Later, on January 5 Omaha police were ...


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