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07/10/92 STATE NEBRASKA v. WAYNE K. BREWER

July 10, 1992

STATE OF NEBRASKA, APPELLEE,
v.
WAYNE K. BREWER, APPELLANT



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

As Corrected August 5, 1992.

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

SYLLABUS BY THE COURT

1. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the trial court's findings of fact unless those findings are clearly erroneous.

2. Confessions: Appeal and Error. A determination by a trial court that a statement was made voluntarily will not be disturbed on appeal unless clearly wrong.

3. Motions to Suppress: Appeal and Error. In deciding whether a trial court's ruling on a motion to suppress is erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that the trial court has observed the witnesses testifying in regard to such motion.

4. Motions to Suppress: Confessions: Proof. Although the burden of showing a confession to have been voluntary is upon the State, at a suppression hearing it need establish such only by a preponderance of the evidence.

5. Confessions: Evidence: Proof. In order to be ruled voluntary, it must be shown at a suppression hearing that a statement, admission, or confession 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 occurrence when the statement is made.

The opinion of the court was delivered by: Caporale

Following a jury trial, the defendant-appellant, Wayne K. Brewer, was adJudged guilty of first degree murder, in violation of Neb. Rev. Stat. § 28-303 (Reissue 1989). He asserts that the trial court erred in (1) overruling his motion to suppress his statements to the interrogating officers and (2) admitting those statements into evidence. We affirm.

In view of the narrow scope of the inquiry presented by the summarized assignments of error, a detailed recitation of the facts surrounding the murder giving rise to this appeal is not required.

We thus turn immediately to Brewer's contentions in connection with the first assignment of error, that his various statements to the interrogating officers should have been suppressed because he was denied counsel and because the statements were in any event not given intelligently, knowingly, and voluntarily.

The murder had taken place in the early morning hours of March 21, 1990, and a search for Brewer had begun. Brewer arrived at an office of the Douglas County sheriff with his mother at approximately 11 o'clock that night. He was not then under arrest; in fact, as Officer Gary Kratina, Brewer's mother, and Brewer himself testified, Brewer was told he could leave at any time. Even though Brewer was not then in custody, he was, nonetheless, at about 11:10 p.m., read a rights advisory form, which he initialed and signed. The form advised that the interrogator was a police officer; that Brewer had a right to remain silent and not make any statements or answer any questions, but that anything he said could and would be used in court; that he had a right to consult with a lawyer and have the lawyer present during questioning; and that if he could not afford a lawyer, one would be appointed for him by the court. The form included a statement that with the foregoing knowledge, Brewer was willing to talk with the interrogator.

According to Kratina, when Brewer signed the form he appeared to understand the questions, responded clearly, and did not seem to be under the influence of drugs or alcohol. Moreover, Kratina stated that no threats, force, promises, ...


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