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State v. Turner

Supreme Court of Nebraska

May 30, 2014

STATE OF NEBRASKA, APPELLEE,
v.
ENDRE B. TURNER, ALSO KNOWN AS ANDRE B. TURNER, APPELLANT

Page 70

Appeal from the District Court for Douglas County: JAMES T. GLEASON, Judge.

Thomas C. Riley, Douglas County Public Defender, Douglas A. Johnson, and Ryan Locke, Senior Certified Law Student, for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 71

[288 Neb. 250] Cassel, J.

INTRODUCTION

Endre B. Turner appeals from his convictions for first degree murder, use of a deadly weapon to commit a felony, and possession of a weapon by a prohibited person. The charges against Turner arose from the shooting of Richard Harrison during the burglary of Harrison's home. Turner argues that his confession to the shooting and burglary was involuntary because it was the product of threats, coercion, and inducements of leniency made by police officers. We find no merit to this argument. Although officers misrepresented that felony murder would receive a lesser sentence than premeditated murder, after reviewing the totality of the circumstances surrounding the confession, we conclude that the misinformation regarding possible sentences did not overcome Turner's will and cause him to confess. We therefore affirm his convictions and sentences.

BACKGROUND

On September 29, 2011, Harrison's mother returned home from work and found Harrison lying on the floor of his bedroom. She could not find a pulse and noticed blood in his bedroom closet, where his head and upper body were lying. She called the 911 emergency dispatch center, and paramedics pronounced Harrison dead when they arrived at the scene. The autopsy of Harrison's body revealed that he had been shot multiple times by a .22-caliber firearm with a right-hand twist.

Harrison's mother informed police officers that the television in Harrison's bedroom had been moved and that several of Harrison's possessions were missing. These missing possessions included a " PlayStation 3" video game system and an " HTC Evo" cell phone. Officers obtained

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the serial number of the missing PlayStation, and the police department's pawn unit began to monitor local pawnshops for a PlayStation with a matching serial number.

Following up on a comment posted to an online article regarding Harrison's death, officers made contact with a witness who saw a man running from Harrison's home on the [288 Neb. 251] afternoon of the shooting and burglary. Brian Jones was driving eastward on Grand Avenue in Omaha, Nebraska, at approximately 3 or 4 p.m. As he approached the top of a hill, he saw a man " coming up running off the front porch or front step" of Harrison's home. The man " hit the ground" and then stopped and looked in Jones' direction. Jones described that the man was black, had a light complexion, was about 6 feet tall with a medium build, and had a tattoo on the side of his neck.

The police department's pawn unit then matched the serial number of Harrison's PlayStation to a PlayStation that had been pawned on October 24, 2011. Officers obtained the pawned PlayStation, the pawn card, and surveillance footage showing the individuals who had pawned the PlayStation. The pawn card established that the PlayStation had been pawned by Jasmine Coleman. However, the pawnshop's surveillance footage showed that Coleman had been accompanied by a black male with a light complexion.

The pawned PlayStation was tested for fingerprints, and a match was returned. The fingerprints were identified as belonging to Turner, and Turner's parole officer confirmed that Turner was the black male accompanying Coleman on the pawnshop's surveillance footage. Jones, the witness who saw a man running from Harrison's home on the day of the shooting and burglary, identified Turner as the man he saw in a photographic lineup and at trial.

Officers learned that Turner was scheduled to meet with his parole officer on November 9, 2011, and so decided to interview him at the parole office on that day and to simultaneously execute a search warrant for his residence. Upon execution of the warrant, officers were informed that Turner and Coleman resided in the basement of the residence. In a basement bedroom, officers discovered a .22-caliber revolver in a backpack in the bedroom closet and a charger for an HTC Evo cell phone on a nightstand. Testing of the revolver confirmed that it had a right-hand twist.

Turner's interview at the parole office was conducted by Sgt. Donald Ficenec and Det. Daryl Krause of the Omaha Police Department. Turner was advised of his Miranda rights, [288 Neb. 252] and he agreed to speak with the officers. The officers first questioned Turner on where he had obtained the PlayStation that he and Coleman pawned on October 24, 2011. But Turner denied any involvement in the burglary of Harrison's home or in Harrison's death. Ficenec then advised him that a .22-caliber revolver had been found in his home and claimed that ballistics testing would confirm that the revolver had fired the bullets recovered from Harrison's body.

The officers next attempted to ascertain how the shooting occurred, informing Turner that they knew what happened and who did it, but not " how it all went down and why." In order to obtain this information, the officers represented that " [i]t makes a difference" how the shooting occurred:

Ficenec: It makes a difference if you go and break into somebody's house because you got a personal revenge against this guy. Let's say that this guy you found out had, I don't want to say something that's--I don't mean to offend you--let's say that this guy, you

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had found out that this guy had an affair with [Coleman]. So you were pissed off at him, so you were going to go over there and you were going to go get him because of that, okay. That's one thing. All you're trying to do, you got out of jail, you don't have much money, you're trying to get started again with the jobs and stuff--it takes a while to get some paychecks and get some money set aside. So you revert back to your old M.O.--your old habits. Maybe you're only going to do this for a little while until you get back on your feet, who knows? But you go in, you get surprised. You don't want to hurt anybody, you don't intend to hurt anybody. But you go in there, you get surprised, you just got out of jail, you're trying to start all over. What I'm saying is, you can see how that's a big difference between something like that, and something like I said if we find out that maybe he knew [Coleman]. Maybe he had had some phone--some contacts with [Coleman], you know. There would be a big difference between the one case and the other, right? What I'm saying is, I can't crawl into your head. So I don't know exactly--cause I wasn't there--I can prove [288 Neb. 253] who did it. I can collect all the evidence, like the DNA evidence at the house to show that you were in the house. I can prove--you know--do the ballistics testing to show that that's the gun.
Turner: (indiscernible)
Ficenec: I can get the evidence to prove it, ...

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