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01/29/93 STATE NEBRASKA v. SCOTT L. SMITH

January 29, 1993

STATE OF NEBRASKA, APPELLEE,
v.
SCOTT L. SMITH, APPELLANT



Appeal from the District Court for Sarpy County: Ronald E. Reagan, Judge.

As Corrected July 28, 1993. As Corrected December 22, 1993.

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

SYLLABUS BY THE COURT

1. Confessions: Police Officers and Sheriffs: Self-Incrimination. Statements stemming from custodial interrogation may not be used in prosecuting a defendant unless it is demonstrated that procedural safeguards were used to secure the privilege against self-incrimination.

2. Police Officers and Sheriffs: Words and Phrases. Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

3. Constitutional Law: Police Officers and Sheriffs: Self-Incrimination: Right to Counsel. To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel.

4. Police Officers and Sheriffs: Right to Counsel: Waiver. When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights.

5. Police Officers and Sheriffs: Right to Counsel. When an accused has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

6. Confessions: Self-Incrimination: Right to Counsel: Waiver. Once the right to counsel and the right to remain silent have been invoked by a defendant, the defendant cannot be persuaded to waive his rights, and there is a strong presumption against waiver. If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.

7. Self-Incrimination: Right to Counsel: Waiver. The determination of whether a defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel depends upon the particular facts surrounding the case, including the background, experience, and conduct of the accused.

8. 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 of fact are clearly erroneous.

9. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly 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 witnesses testifying in regard to such motion.

The opinion of the court was delivered by: Grant

After a jury trial in the district court for Sarpy County, defendant, Scott L. Smith, was convicted of the first degree murder of his mother, Linda Smith; the first degree murder of his sister, Amy Smith; and the attempted first degree murder of his father, Lynn Smith. Additionally, defendant was convicted of the use of a firearm in the commission of each of the felonies. After a sentencing hearing, defendant was sentenced to a life term for each of the murders and to 20 years in prison for the attempted murder, with the provision that each of these terms would be served concurrently. Defendant was also sentenced to a term of 5 years in prison for the use of a firearm in each felony, with the provision that these sentences would be served consecutively to each of the felony sentences.

Defendant timely appealed to this court, where he assigns a single error: "The Court erred as a matter of law in failing to suppress and exclude from evidence the confession given by ...


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