                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                      STATE V. WILLIAMS


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                               STATE OF NEBRASKA, APPELLEE,
                                             V.
                               DAION J. WILLIAMS, APPELLANT.


                           Filed October 15, 2013.   No. A-12-846.


       Appeal from the District Court for Douglas County: W. RUSSELL BOWIE III, Judge.
Affirmed.
       Thomas C. Riley, Douglas County Public Defender, for appellant.
       Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.


       INBODY, Chief Judge, and IRWIN and RIEDMANN, Judges.
       RIEDMANN, Judge.
                                      INTRODUCTION
        Daion J. Williams appeals his conviction of second degree murder on the grounds that his
confession was involuntary and improperly admitted at trial. He raises two issues with his
confession. The first issue is that he did not knowingly waive his Fifth Amendment right against
self-incrimination when the interrogating officer did not specifically inform him that the court
would appoint him an attorney prior to police questioning. The second issue is that the police
rendered his confession involuntary by threatening and/or promising leniency in exchange for his
confession. We hold that Williams voluntarily waived his right against self-incrimination and
that the police did not promise him leniency in exchange for his confession. Accordingly, we
affirm Williams’ conviction of second degree murder.
                                       BACKGROUND
      The night before he was murdered, Bryant T. Morgan spent the night at Alea Douglas’
home in her bedroom. The next day, Morgan went to his job as a bellringer for the Salvation


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Army. While he was away, Douglas invited over Williams, with whom she had maintained an
“on-again, off-again” relationship for years. Douglas and Williams went upstairs to her bedroom
and were in her bed when Morgan unexpectedly came home from work early and walked into the
bedroom. The two men exchanged some words about the situation.
        Around this time, Williams’ friend showed up at the Douglas residence and left with
Williams. Morgan walked outside to the porch and sat down in a chair. Williams and his friend
went to Williams’ stepmother’s home, where Williams called Douglas and asked her if Morgan
wanted to fight. Williams later returned to Douglas’ house with two friends. They went inside for
a brief period. As the three were leaving, gunshots were fired at Morgan and he was shot.
Douglas’ mother and aunt tried to stop Morgan’s bleeding while Douglas called the police.
Morgan was transported to the hospital, where he was pronounced dead.
        The next month, Williams was arrested on the charge of first degree murder, taken into
custody, and transported to the Omaha Police Department headquarters. He was placed in a
homicide interview room and questioned by Officers Daryl Krause and Candace Phillips and Sgt.
Donald Ficenic.
        The officers then read Williams his Miranda rights from their standard Omaha Police
Department’s rights advisory form. As part of the standard advisement, Officer Krause informed
him that he had a right to an attorney during questioning and that the court would appoint an
attorney if he could not afford one. Officers Krause and Phillips questioned Williams for a few
hours. Williams initially denied involvement in Morgan’s death. Williams ultimately confessed
to the murder, however, after Sergeant Ficenic began questioning him and explained to him the
various charges he could face and their associated penalties. He also explained to Williams that
the difference between the various charges was the justification for the killing and suggested that
Morgan might have taken an aggressive action that provoked Williams’ response. Williams then
confessed to the murder. As he was being arrested, he asked whether he continued to face the
charge of first degree murder. Sergeant Ficenic informed him that he would continue to face the
same charges “for now,” but that his ultimate charges would depend on “how things shake out
down the road.”
        Williams subsequently filed a motion to suppress and exclude the statements he gave to
the police from use against him in court. Williams argued that he was not properly advised of his
right to counsel and his right against compulsory self-incrimination, that the statements were
obtained without a knowing and voluntary waiver of his right to counsel and his right against
self-incrimination, and that the statement was the product of threats, coercion, or inducements of
leniency. The trial court held a hearing on the motion to suppress.
        At the hearing, Officer Krause testified that he read Williams his Miranda rights from the
standard form and that Williams appeared to understand, did not ask questions, and agreed to
speak. The trial court determined that Williams was adequately informed of his Miranda rights
and that his statements to the police were voluntary. Accordingly, the trial court denied
Williams’ motion to suppress. The case proceeded to trial.
        At trial, Sergeant Ficenic testified about his interrogation of Williams and the State
offered the video of the interrogation into evidence. Williams properly renewed his constitutional
objection to the statement on the grounds presented at the pretrial hearing on the motion to
suppress. Williams also testified in his own defense. He denied shooting Morgan and explained


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that he confessed because he believed the police were going to charge him with first degree
murder regardless of what he told them. He said that when Sergeant Ficenic discussed the
different penalties with Williams, he understood Sergeant Ficenic to be offering him a choice
between life in prison or a few years for manslaughter. He explained that the officers’ discussion
of the evidence they had against him left him no option other than confessing. Williams said that
he asked Sergeant Ficenic whether his charges were still the same after the confession, because
Sergeant Ficenic suggested Williams tell him it happened in self-defense and he would drop the
charges to manslaughter.
        The jury convicted Williams of second degree murder and the use of a deadly weapon to
commit a felony. Williams was sentenced to 50 to 60 years’ imprisonment for second degree
murder to be served consecutively with a sentence of 20 years’ imprisonment for use of a deadly
weapon to commit a felony.
        Williams timely filed this appeal.
                                 ASSIGNMENTS OF ERROR
       Williams argues on appeal, renumbered, that the trial court erred in denying his motion to
suppress his statement to the police because (1) the statement was the product of threats,
coercion, or inducement of leniency, and (2) the statement was involuntary because Williams
was not sufficiently advised of his right to the appointment of counsel.
                                          ANALYSIS
Involuntary Waiver of Fifth Amendment Rights.
        Williams argues that the trial court erred in overruling his motion to suppress the
statement he gave to police and subsequently admitting the statement at trial, because he was not
properly advised of his legal rights prior to giving the statement. In particular, Williams argues
that the Omaha Police Department’s rights advisory form did not inform him that the court
would appoint him an attorney before or during police interrogation if he could not afford one.
He challenges the form as insufficient for failing to include that information.
        In reviewing a motion to suppress a statement based on its claimed
involuntariness--including claims that law enforcement procured it by violating the safeguards
established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966)--we apply a two-part standard of review. State v. Nave, 284 Neb. 477, 821
N.W.2d 723 (2012). We review the trial court’s findings of historical facts for clear error. Id.
Whether those facts meet constitutional standards, however, is a question of law, which we
review independently of the trial court’s determination. Id.
        In Miranda v. Arizona, supra, the U.S. Supreme Court sought to protect the Fifth
Amendment privilege against compelled self-incrimination from the inherently compelling
pressures of custodial interrogation. To protect the privilege, the Court required law enforcement
officers to give a particular set of warnings to a person in custody before interrogation: that he
has a right to remain silent, that any statement he makes may be used as evidence against him,
and that he has the right to an attorney, either retained or appointed. Id.
        In this case, Officer Krause read Williams his rights verbatim from the Omaha Police
Department’s rights advisory form. Officer Krause informed Williams that he had the right to a


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lawyer during questioning and that the court would appoint one if he could not afford one.
Williams also indicated that he understood he would be able to speak with an attorney when he
informed Officer Phillips that he would need to consult an attorney prior to agreeing to take a lie
detector test.
        In State v. Nave, supra, the Nebraska Supreme Court had considered Williams’ exact
argument: that the Omaha Police Department’s rights advisory form did not sufficiently inform
the defendant of his right to be appointed an attorney before and during interrogation. In State v.
Nave, 284 Neb. at 495, 821 N.W.2d at 737, the Nebraska Supreme Court determined that
        the officer’s failure to expressly state that [the defendant] was entitled to appointed
        counsel before questioning was immaterial. When police told [the defendant] that he had
        “the right to consult with a lawyer and have the lawyer with him during the questioning,”
        that statement impliedly included the right to consult with the lawyer before the
        questioning. And that is enough under Miranda.
        As in State v. Nave, supra, the police in this case informed Williams that he had a right to
an attorney prior to questioning, which impliedly included the right to consult with the lawyer
before the questioning. This warning was sufficient under the guidelines set forth in Miranda v.
Arizona, supra.
        Because Williams received sufficient warning of his constitutional rights, the trial court
did not err in overruling his motion to suppress and admitting his statement at trial.
Involuntary Confession.
        In determining the correctness of a trial court’s ruling on a motion to suppress evidence
claimed to be constitutionally inadmissible, an appellate court will uphold the trial court’s
findings of fact unless those findings are clearly erroneous. State v. Martin, 243 Neb. 368, 500
N.W.2d 512 (1993). In reviewing a trial court’s findings on a suppression motion, an appellate
court recognizes the trial court as the finder of fact and takes into consideration that the trial
court has observed witnesses testifying regarding such motion. Id. An appellate court, therefore,
does not reweigh the evidence or resolve conflicts in the evidence. Id. Accordingly, a trial court’s
determination that a defendant’s statement was voluntarily made will not be set aside on appeal
unless such a determination is clearly erroneous. Id.
        The Due Process Clause of the U.S. Constitution and the due process clause of the
Nebraska Constitution preclude the admissibility of an involuntary confession. See State v.
Martin, supra. See, also, Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908
(1964); State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985). The State has the burden to
establish that the defendant’s statements are voluntary and not coerced. State v. Chojolan, 253
Neb. 591, 571 N.W.2d 621 (1997).
        A confession is voluntary if it is “‘the product of an essentially free and unconstrained
choice by its maker.’” State v. Martin, 243 Neb. at 376, 500 N.W.2d at 516-17 (1993) (quoting
Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961)). On the other
hand, a confession is involuntary if the declarant’s “‘will has been overborne and his capacity for
self-determination critically impaired.’” Id. To properly determine if a defendant confessed
because his will was overborne, a court must examine all the circumstances surrounding the
confession. State v. Martin, supra.


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        In the circumstance where police obtain a confession in exchange for a promise of
leniency, the confession may be inadmissible. State v. Garner, 260 Neb. 41, 614 N.W.2d 319
(2000). A police officer does not promise leniency by merely advising that it would be better for
the accused to tell the truth. Id. Rather, to promise leniency, a police officer must offer to
perform or withhold some definite future action, within his control, that will have an impact
upon the suspect he is interrogating. Id. A confession is, therefore, involuntary if, “‘from the
perspective of the defendant, [a police officer’s] statements included a promise of a benefit
which, in the defendant’s understanding, the [officer] could either grant or withhold.’” State v.
Martin, 243 Neb. at 379, 500 N.W.2d at 518 (quoting U.S. v. Fraction, 795 F.2d 12 (3d Cir.
1986)). Similarly, a confession is involuntary and therefore inadmissible if it is coerced by
threats, including the threat of a harsh punishment. State v. Chojolan, 253 Neb. 591, 571 N.W.2d
621 (1997).
        Our review of the record reveals that the police did not expressly or impliedly threaten or
promise to take any type of action in exchange for Williams’ confession. Sergeant Ficenic told
Williams that although he could prove Williams killed Morgan, he did not know why. He
advised Williams that his reason for his actions would determine whether he was convicted of
murder in the first degree or second degree or manslaughter and informed Williams of the range
of penalties associated with those charges. Rather than threatening or promising Williams
anything, Sergeant Ficenic explained to Williams that his explanation would be taken into
account, “not tonight by us, it will be taken into consideration by the judge, the prosecutor, and
the jury.” Sergeant Ficenic also cautioned Williams that he could not put himself in the position
of the judge, prosecutor, or jury and tell Williams what they would think of his explanation. He
did state, however, that in his opinion, it would make sense if Williams were acting in
self-defense. Sergeant Ficenic also told Williams that his explanation for his actions would
become suspect if he did not provide it that night.
        The police officers’ statements did not render Williams’ confession involuntary merely
because they referenced different potential penalties. See State v. Garner, supra. Although
Williams testified that he understood Sergeant Ficenic to be offering him the choice between life
in prison or a few years in prison, Sergeant Ficenic warned him that he did not know what the
judge, jury, or prosecutor would think of Williams’ explanation. Sergeant Ficenic promised
nothing. For this reason, it does not matter that the police informed Williams that they thought he
acted in self-defense, because they stated that they would not be the ones to reduce Williams’
charge. Williams made a calculated decision to confess to killing Morgan and to justify his
actions in the hopes that his confession would bolster his credibility and result in a lesser charge.
Unfortunately for Williams, the gamble did not pay off as well as he hoped it might.
        Even if the police officers’ tactics placed Williams in a position where, as he suggests, he
had no choice but to confess because he believed that the police could prove he murdered
Morgan, we cannot say that Williams’ confession was involuntary. The police laid out the
evidence and the possible charges, and Williams chose to proceed a certain way in the hopes that
it would render the best result. The police implied that a better result was a possibility but did not
promise that a better result would occur.
        Williams argues that we must view his case with special caution because he was 17 years
old at the time of his confession. We must take special care to ensure that a juvenile’s admission


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is voluntary. State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009). In this case, however,
although Williams was 17, he demonstrated familiarity with the proceedings. He stated that he
understood his rights from his prior experiences with police officers and the legal system.
Additionally, when asked whether or not he wanted to take a lie detector test, Williams
effectively exercised his constitutional rights by informing the police that he would first need to
speak with his attorney.
        Accordingly, the trial court did not clearly err in finding Williams’ confession was
voluntary nor did it err in admitting his confession at trial.
                                         CONCLUSION
        The trial court did not clearly err in admitting Williams’ confession into evidence.
Although Williams was not specifically informed that he had a right to an appointed attorney
prior to police interrogation, the police did advise him that he had a right to an attorney for
questioning and that the court would appoint him an attorney if he could not afford one. This
advisement sufficiently conveyed that Williams had a right to an appointed attorney prior to
interrogation. Additionally, Williams’ confession was not rendered involuntary by police
statements that the various charges and penalties Williams could face hinged on his explanation
for the crime. Accordingly, we affirm Williams’ conviction of second degree murder.
                                                                                     AFFIRMED.




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