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08/12/88 STATE NEBRASKA v. COURTNEY W. STARKS

August 12, 1988

STATE OF NEBRASKA, APPELLEE,
v.
COURTNEY W. STARKS, APPELLANT



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

Filed; As amended September 2, 1988

Hastings, C.j., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, JJ.

SYLLABUS BY THE COURT

1. Constitutional Law: Prisoners. Although prisoners do not forfeit all of their rights under the fourth amendment upon incarceration, they do not retain the same measure of protection afforded nonincarcerated individuals.

2. Constitutional Law: Prisoners. A prisoner lawfully in custody, and thus deprived of his freedom, has no constitutional basis for complaining about the identity of those assigned by the arresting authority to hold him.

3. Arrests: Police Officers and Sheriffs: Words and Phrases. A person who is already under arrest and in police custody cannot be "rearrested." An arrest presumes that the person arrested was at liberty, free from police custody, before the arrest. This premise does not hold when the subject is already in custody of law enforcement officers.

4. Immunity: Witnesses: Prosecuting Attorneys. Neb. Rev. Stat. § 29-2011.02 (Reissue 1985) does not authorize a grant of immunity to any witness except upon the motion of the prosecuting attorney.

The opinion of the court was delivered by: Boslaugh

The defendant, Courtney W. Starks, was convicted of first degree murder and use of a weapon to commit a felony. He was sentenced to life imprisonment for the murder and to 6 2/3 to 20 years on the weapons charge, the sentences to run consecutively.

He has appealed and contends that the trial court erred in failing to suppress his confession because it was the product or "fruit" of an illegal arrest, and in refusing to grant immunity to a defense witness regarding his encounter with the defendant on the night of the crime.

The record shows that on the evening of July 31, 1986, the victim, Linda Wierzbicki, stopped to visit with a friend, Connie Sutherland. The two decided to meet at Wierzbicki's apartment later that evening for drinks and Discussion. Sutherland estimated that Wierzbicki left at approximately 11:45 p.m.

Sometime around midnight, Scott Johnson heard a car pull into the parking lot located north of his apartment. About a minute later he heard a woman scream two or three times from the parking lot area. Johnson looked out his door and saw someone lying or bending over on the parking lot. He went to shut off his living room light so that no one could see him looking out. As he returned to the door to look out, he heard someone running. He looked outside, but did not see anybody. He then decided to look around the parking lot. While in the parking lot, he noticed a person walk past him approximately 5 or 6 feet away. He described the person as a black male, 6 feet tall and approximately 160 pounds, with short hair, dark pants, and a short-sleeved shirt with stripes. Johnson returned to his balcony and then saw a dark-colored Pontiac Trans Am automobile with retractable headlights accelerate rapidly and leave the parking lot. At that time he did not see the victim lying in the parking lot.

Danette Chase, who was staying at Johnson's apartment that evening, also saw a black male approximately 5 feet 10 inches tall, weighing 150 to 160 pounds, with short hair. She saw him get into a dark-colored Pontiac Trans Am or Firebird automobile and leave the parking lot very fast.

Meanwhile, Sutherland had tried calling the victim's apartment twice and received no answer. She arrived at the apartment building at approximately 1:45 a.m. and parked her car in the parking lot. She started walking toward the building when she saw the victim's body lying halfway under a parked car. An autopsy indicated that the victim had been stabbed repeatedly with a strong, very sharp knife and that her death was caused by external hemorrhaging from these wounds.

Shortly after the murder, at 12:17 a.m., Officer Donald J. Fiala, Jr., of the Omaha Police Division received a call regarding a personal injury motor vehicle accident at 35th and L Streets. Upon arriving, he saw a badly mangled black Pontiac Trans Am automobile. The driver of the vehicle, the defendant Courtney Starks, was taken to University Hospital for treatment. Starks was informed that he was under arrest for driving while intoxicated, and a blood sample was drawn at the hospital. Sometime after 2 a.m., Officer Fiala transported the defendant to the police station for booking on several outstanding traffic warrants he had discovered. In the morning the defendant was sentenced to 30 days in jail and fined $500, and his license was suspended for 1 year.

That afternoon, as a result of a phone call, Officer James Wilson and Officer Clyde Nutsch attempted to locate defendant and discovered that he was incarcerated at the Douglas County corrections unit on traffic warrants. The officers signed the defendant out of the corrections unit and transported him to the Central Station, about 3 1/2 blocks away. After reaching the station, Officer Wilson informed the defendant of his Miranda rights. The defendant did not request an attorney, did not invoke his right to remain silent, and agreed to talk with the officers. During questioning the defendant gave the officers a taped confession regarding the murder, which was received in evidence at trial.

With respect to the first assignment of error, the defendant argues that Officers Wilson and Nutsch arrested him at the Douglas County Correctional Center and transported him to Omaha police headquarters for questioning, when they lacked probable cause to believe he had committed the murder, and therefore his confession was the product of an illegal arrest which should have been suppressed. Specifically, he argues that the only ...


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