Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/01/2025 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
State of Nebraska, appellee, v.
Sirtommy J. Sutton, appellant.
___ N.W.3d ___
Filed August 1, 2025. No. S-23-967.
1. Rules of the Supreme Court: Notice: Appeal and Error. Whether a
party has complied with the notice requirements of Neb. Ct. R. App.
P. § 2-109(E) (rev. 2024) is determined de novo upon a review of the
record.
2. Motions to Suppress: Confessions: Constitutional Law: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a statement based on a claim 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), an
appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear
error. Whether those facts meet constitutional standards, however, is a
question of law, which an appellate court reviews independently of the
trial court’s determination.
3. Confessions. It is a mixed question of law and fact whether a custodial
interrogation has occurred.
4. Right to Counsel: Self-Incrimination. It is a mixed question of law
and fact whether there has been an unambiguous invocation of the right
to remain silent or to have counsel.
5. ____: ____. It is a mixed question of law and fact whether invocation
of the rights to remain silent or to have counsel have been scrupulously
honored.
6. Constitutional Law: Miranda Rights: Waiver: Appeal and Error.
Whether the Miranda warnings that were given were sufficient to form
the basis of a knowing and intelligent waiver of the Fifth Amendment is
reviewed de novo, but whether the waiver, based on the totality of the
circumstances, was voluntary is reviewed for clear error.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
7. Confessions: Appeal and Error. A district court’s finding and determination that a defendant’s statement was voluntarily made will not be set
aside on appeal unless this determination is clearly erroneous.
8. Motions to Suppress: Appeal and Error. In determining whether a
trial court’s findings on a motion to suppress are clearly erroneous, the
reviewing court recognizes the trial court as the trier of fact and takes
into consideration that the trial court has observed the witnesses testifying regarding the motion.
9. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion
by the trial court.
10. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal
and Error. Without strict compliance with Neb. Ct. R. App. P. § 2-109(E)
(rev. 2024), an appellate court will not address a constitutional challenge
to a statute.
11. ____: ____: ____: ____. The constitutionality of a statute for purposes
of article V, § 2, of the Nebraska Constitution and Neb. Ct. R. App. P.
§ 2-109(E) (rev. 2024) includes both facial and as-applied challenges.
12. ____: ____: ____: ____. Strict compliance with Neb. Ct. R. App. P.
§ 2-109(E) (rev. 2024) is necessary whenever a litigant challenges the
constitutionality of a statute, regardless of how that constitutional challenge may be characterized.
13. Constitutional Law: Statutes: Legislature: Appeal and Error. When
the appeal challenges the constitutionality of an act explicitly permitted
by a statute, it is a case “involving the constitutionality of an act of the
Legislature,” as described in article V, § 2, of the Nebraska Constitution,
because a declaration by an appellate court that the act complained of on
appeal is unconstitutional would necessarily render unconstitutional the
statute that explicitly authorizes the act.
14. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal
and Error. A litigant cannot avoid the requirements of Neb. Ct. R.
App. P. § 2-109(E) (rev. 2024) and the concurrent requisite scrutiny for
invalidating statutory provisions merely by failing to cite to the statute
that authorizes the constitutionally challenged act.
15. ____: ____: ____: ____. Whenever an appellate court must determine
the constitutionality of a statute in deciding an appeal, the party filing
the brief explicitly or implicitly challenging the statute must strictly
comply with Neb. Ct. R. App. P. § 2-109(E) (rev. 2024) or else the matter necessarily implicating the statute will not be addressed.
16. Constitutional Law: Miranda Rights: Self-Incrimination. To counter
the inherent pressures of custodial interrogation, Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), prohibits the use
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
of statements derived during custodial interrogation unless the prosecution demonstrates the use of procedural safeguards that are effective to
secure the privilege against self-incrimination embodied in the Fifth
Amendment.
17. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
Under the Miranda rule, a “custodial interrogation” occurs when questioning is initiated by law enforcement after a suspect has been taken
into custody or is otherwise deprived of freedom of action in any significant way.
18. ____: ____: ____. The term “interrogation” under Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), refers not only to
express questioning, but also to any words or actions on the part of the
police, other than those normally attendant to arrest and custody, which
the police should know are reasonably likely to elicit an incriminating
response from the suspect.
19. ____: ____: ____. An “interrogation” does not include a police officer’s
course of inquiry related to and responsive to a volunteered remark by
the accused.
20. ____: ____: ____. An “interrogation” does not include accurate statements made by an officer to an individual in custody concerning the
nature of the charges to be brought.
21. Miranda Rights: Police Officers and Sheriffs. An objective standard
is applied to determine whether there is an interrogation within the
meaning of Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed.
2d 694 (1966).
22. Constitutional Law: Right to Counsel: Self-Incrimination: Police
Officers and Sheriffs. If a suspect invokes a constitutional right to
remain silent or to the services of an attorney, the authorities must scrupulously honor the invocation.
23. Right to Counsel. Before a suspect in custody can be subjected to further interrogation after requesting an attorney, there must be a showing
that the suspect initiated dialogue with the authorities.
24. Miranda Rights: Waiver. A valid Miranda waiver must be both voluntary in the sense that it was the product of a free and deliberate choice
and made with a full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it.
25. ____: ____. Whether a knowing and voluntary waiver has been made is
determined by looking to the totality of the circumstances.
26. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
considering and applying the relevant factors, as well as any applicable
legal principles in determining the sentence to be imposed.
27. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
28. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
29. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason,
and evidence.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
Joseph L. Howard, of Dornan, Troia, Howard, Breitkreutz,
Dahlquist & Klein, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Melissa R.
Vincent for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
The defendant was convicted by a jury of discharging a
firearm at an occupied motor vehicle and the use of a firearm
to commit that felony. He argues on appeal that the district
court erred in finding he knowingly and voluntarily waived
his Miranda rights and that his statements to law enforcement
after he signed a waiver were voluntary. He also argues that
the statutory jury selection process systematically excluded
racial groups. Lastly, the defendant asserts the court abused its
discretion by imposing excessive sentences. We affirm.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
BACKGROUND
Sirtommy J. Sutton was charged by information with (1)
first degree murder, a Class IA felony, in violation of Neb.
Rev. Stat. 28-303 (Cum. Supp. 2024); (2) discharging a firearm at an inhabited house, occupied building, or occupied
motor vehicle, a Class ID felony, in violation of Neb. Rev.
Stat. § 28-1212.02 (Reissue 2016); and (3) two counts of use
of a firearm to commit a felony, both Class IC felonies, in
violation of
Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Reissue
2016). Sutton’s charges arose out of a shooting that occurred
in the early morning hours at Sutton’s mother’s residence in
Omaha, Nebraska. Two vehicles were struck by gunfire in the
area; one vehicle’s passenger, Jermaine Watkins, was shot and
survived, and the other vehicle’s driver, Jennifer Hickman, was
shot and killed.
Evidence Presented at Trial
At trial, the State’s theory of the case was that the shooting of Hickman’s and Watkins’ vehicles occurred at the same
time. The State alleged that Sutton and others were equipped
with multiple firearms in front of Sutton’s mother’s residence
(the Sutton residence) when Sutton discharged a firearm at an
occupied motor vehicle. The State contended that, in doing
so, Sutton aided and abetted in the first degree murder of
Hickman.
The theory of Sutton’s defense was that two separate shootings had occurred, with Hickman’s death resulting from the
first shooting, and Watkins’ injuries resulting from the second shooting 20 minutes later. Sutton alleged that he was not
involved in the first shooting and that, in the second, he had
discharged his firearm at Watkins’ vehicle in self-defense.
Law enforcement officers testified they responded to a
“ShotSpotter” activation, which had indicated 19 shots had
been fired. Approximately 20 minutes before, there had been
two other activations in the area.
Upon their arrival in the area, law enforcement officers
found a vehicle with its headlights on that had collided with
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
a fence. The vehicle’s driver, Hickman, was unresponsive
with a gunshot wound and was later pronounced dead. Law
enforcement officers were also notified of a second victim,
Watkins, who had arrived at a hospital with gunshot wounds
that he sustained near the location where the “ShotSpotter”
was activated.
Law enforcement officers established a perimeter around the
scene. Sutton and his brother drove up to officers who were
positioned near the Sutton residence. Sutton informed them
that he had been involved in a shooting at the Sutton residence. Sutton relayed that he was presently armed and had law
enforcement remove his gun from his person.
Once he had exited his vehicle, Sutton explained to the
officers at the scene that his mother had shot someone in
self-defense a day or two before and that someone had threatened to kill her in retaliation. Sutton explained that, shortly
before officers arrived on the scene, a vehicle had pulled up
and stopped in front of the Sutton residence. Sutton’s cousin,
who was at the Sutton residence, asked who it was. Sutton ran
to the front of the Sutton residence, heard gunshots and saw
sparks, took cover, unholstered his gun, and fired about seven
or eight shots at the vehicle.
Sutton was eventually transported to a police station and
placed in an interview room, where he was ultimately interviewed. During the interview, Sutton reiterated to law enforcement that his mother had shot an individual in self-defense
1 or 2 days before. Sutton stated that in the evening or early
morning hours before the shootings, he and his brother visited the Sutton residence to check on his mother because she
had received death threats. Sutton brought two handguns, an
“AR-15 rifle,” and numerous rounds of ammunition to the
Sutton residence so his mother could protect herself. He gave
his mother two of these firearms and kept the handgun that he
carries on his person.
In the interview, Sutton described two separate shooting
incidents. He told law enforcement that when he and his
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
brother were about to leave, he went outside to the front of
the Sutton residence. He saw two vehicles driving toward
each other on the street, and they stopped as if their occupants
were talking to each other. Sutton looked away and then heard
three gunshots. When Sutton looked back, he saw one vehicle
slowly turning down the street near the location where law
enforcement later put a perimeter around the scene. A couple
of minutes later, Sutton saw a man walking down the street
carrying “things.” Sutton believed that the vehicle slowly turning had been shot. Sutton stated he was not involved in this
first shooting.
After that first shooting, Sutton’s cousin, Sutton’s mother’s
boyfriend, and two others joined him outside at the front of the
Sutton residence. Sutton stated that his cousin may have had
his AR-15 rifle at that time.
About 20 minutes after the first shooting, Sutton saw a vehicle on the street slow down, turn off its headlights, and stop in
front of the Sutton residence. Sutton believed there were two
people in the vehicle. He heard someone in the vehicle ask,
“Who is that?” Law enforcement reminded Sutton that he had
told officers at the scene it was his cousin who asked, “Who
is that?” Sutton reiterated that he heard, “Who is that?” come
from the vehicle.
After Sutton heard “Who is that?” he heard three gunshots
and saw a flash from the vehicle’s passenger side windows.
Sutton took cover, unholstered his gun, fired seven to eight
shots toward the vehicle, and then retreated to the side of the
Sutton residence to reload his gun. Sutton knew that some
of his bullets had hit the vehicle. After Sutton fired at the
vehicle, it quickly drove off. Thereafter, Sutton and his brother
left the Sutton residence and found law enforcement to discuss
the shooting.
Law enforcement testified at trial that a day or two before
Sutton’s shooting, Sutton’s mother reported she had shot a
man in self-defense. Sutton’s sister described the incident.
She testified she had joined her mother and her brother in
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
picking up some of her younger sisters from a dance class,
which was held at a woman’s house. When Sutton’s sister and
her brother went to the door of the residence, a man opened
the door. The man was apparently at the house because
he was the father of the woman’s child. The man asked,
“[W]hat?” and immediately slammed the door in their faces.
Sutton’s sister and brother knocked on the door again. The
man aggressively came back to the door after he had “put
[a firearm] in his pants.” He physically attacked Sutton’s
brother. As Sutton’s brother was defending himself against
the man, Sutton’s sister put her younger sisters in the vehicle.
Sutton’s mother, who witnessed the altercation, then got out
of the vehicle and tried to defend her son. When the man
grabbed his firearm, Sutton’s mother shot the man once, striking him in his abdomen. Sutton’s mother, brother, and sisters
then drove to the police station.
Sutton’s sister testified that about 2 or 3 hours after the man
was shot, she and her mother were “tagged” in a “[l]ive video”
on social media by the woman who held dance lessons in her
house. In the video, the woman made threats and implied that
she or others were going to seek revenge for the shooting.
Sutton’s sister showed the video to Sutton, and they both took
the threats seriously.
Law enforcement testified that after interviewing Sutton’s
mother and the man she had shot, they made no arrests, but
their investigation remained open. The man and his family
were upset that no arrest had been made, but law enforcement
was not concerned about the possibility of any retaliation.
A witness to the shooting on August 1, 2021, testified at
trial that she observed four or five men standing in front of a
residence in the area before hearing multiple gunshots.
Watkins and his friend testified that before the shooting,
Watkins was sitting in the passenger seat of his vehicle and
his friend was driving. Watkins told his friend to pull over
because his vehicle was in the wrong gear, and his friend
stopped the vehicle near the Sutton residence. As Watkins’
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
friend changed gears, multiple shots were fired at the passenger side of the vehicle, and the friend quickly drove to the
hospital with Watkins, who had been shot in the arm and leg.
Law enforcement did not recover any shell casings or other
evidence from the street in front of the Sutton residence to
indicate that guns had been fired from either Hickman’s or
Watkins’ vehicles. Firearms were not found in either Hickman’s
or Watkins’ vehicles, and Watkins and his friend both testified
that they were unarmed at the time of the shooting.
Law enforcement found multiple firearms hidden in the
Sutton residence, including an AR-15 rifle. Sutton and his
cousin were included as likely contributors to the mixture of
DNA present on the rifle. Law enforcement located 28 shell
casings of different calibers outside of the Sutton residence—6
of the casings were fired from the gun that law enforcement
removed from Sutton, 15 from the AR-15 rifle, and 7 from
an unrecovered firearm. The handgun that law enforcement
removed from Sutton and the multiple firearms they found in
the Sutton residence were all excluded from having fired the
three projectiles recovered from or near Hickman’s vehicle.
Motion to Suppress
Before trial, Sutton moved to suppress the statements he
made to law enforcement in his interview at the police station,
asserting that the statements occurred after he had invoked
his right to counsel and was coerced by law enforcement into
waiving it. Ultimately, the district court denied Sutton’s motion
to suppress and later overruled his renewed motion at trial.
At the hearing on the motion, law enforcement’s body
camera video of Sutton’s conversation with two nearby officers at the scene was offered and received into evidence. The
video showed that after an officer removed Sutton’s gun from
his person, the officer instructed Sutton to exit his vehicle.
Sutton invited the officer to perform a pat-down search of
his person. While the officer performed the search, Sutton
was leaning with his hands against the passenger side of his
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319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
vehicle. Sutton then conversed with the two officers at the
scene and his brother, who was still in the vehicle, about the
events leading up to the shooting. Sutton’s hands remained on
the vehicle.
After answering questions from the officers, Sutton mentioned that he was instructed to call law enforcement by a
weapons association, which affords its members legal representation for claims of discharging their firearms in self-defense. Sutton then asked if he could move toward the back
of his vehicle, which the officers permitted. An officer moved
toward the back of the vehicle with Sutton and instructed him
where to stand. The other officer accompanied Sutton’s brother
and moved to the driver’s side of the vehicle. While Sutton
pulled out his membership card for the weapons association
and turned on his phone, he continued to answer questions.
Shortly after, Sutton expressed that he wanted to contact an
attorney, gesturing with the card. During this time, Sutton was
not in handcuffs or officially placed under arrest.
Sutton then called the weapons association. During Sutton’s
call, the officer accompanying him told Sutton that he should
“hold off on the phone call right now” and that he would have
the chance to do it later. The officer continued to ask Sutton
questions about the shooting, which he answered, but none
of those statements are challenged on appeal. Eventually, law
enforcement officers handcuffed Sutton, explaining it was per
department policy, and advised him that he was being detained
for an interview.
Once Sutton had been transported from the scene to the
police station, he was placed in an interview room where he
remained for a total of about 18 hours. Law enforcement officers did not question Sutton because they believed Sutton had
invoked his right to counsel at the scene. Sutton asked to make
a phone call, and an officer told him that he could not do so
at that time. Later, when the officer confirmed with Sutton
that he had asked for an attorney, Sutton responded that the
officer at the scene had told him to “call [the attorney] right
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319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
after.” Sutton was held in the interview room during this time
so that law enforcement could determine what, if any, charges
were appropriate. Sutton appeared to have slept most of this
time and was provided food, water, and bathroom breaks.
Meanwhile, law enforcement continued its investigation, processing the crime scene and conducting interviews.
After approximately 15 hours, law enforcement officers
informed Sutton he would be arrested for criminal homicide
and use of a firearm to commit a felony. Sutton expressed
confusion, and an officer explained that law enforcement could
not provide any details or ask him any questions because he
had requested an attorney.
Sutton then asked the officer what would happen if he were
to discuss the case. The officer responded that law enforcement
would then know what had happened from Sutton’s perspective, but the officer did not know whether the discussion would
change the facts of the case.
The officer again explained to Sutton that he was being
charged with a felony. Sutton responded that he would talk
with law enforcement about what happened. When the officer
asked for clarification, Sutton reiterated that he was willing to
talk about the case.
Sutton asked if he would still go to jail if he talked about
the matter, and the officer expressed that, although he would
gain Sutton’s perspective from the discussion, he could not
guarantee that the facts of the case would change. Sutton
expressed confusion and asked about the evidence in the case.
The officer explained that if Sutton wanted to discuss the
case with him without counsel, the officer needed to understand that Sutton was clear about the choice he was making.
The officer also told Sutton that before discussing the case,
Sutton needed to be read his Miranda rights, understand those
rights, and understand that he was changing his decision concerning speaking without counsel.
Sutton again asked if he would still go to jail if he talked
to law enforcement. The officer explained that, at that time,
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319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
there was enough probable cause to arrest Sutton. Other than
gaining Sutton’s perspective, the officer did not know what
would change because they had not had the conversation.
The officer stated that he could not promise Sutton that there
would be a different result if he spoke with law enforcement.
The officer offered to retrieve a “Miranda form” to read
over with Sutton. The officer told Sutton that after reading
over the Miranda form, Sutton could still decide not to discuss
the case without an attorney. The officer asked Sutton whether
he wanted more time to think about his decision. Sutton
responded that he wanted to talk to law enforcement about the
shooting.
After law enforcement returned to the interview room to go
over the Miranda waiver form with Sutton, they confirmed
with him that he had been advised of the charges that they
were “ultimately going to book [him] into the corrections for
today.” Sutton was then advised of his Miranda rights. Sutton
orally waived his Miranda rights and signed a written Miranda
waiver form.
Law enforcement testified that Sutton was not offered any
gifts or inducement to compel him to speak and that Sutton
did not express any duress or request counsel during his postMiranda interview.
The district court found that Sutton’s statements were not
obtained in violation of his rights. It reasoned that when
Sutton requested counsel at the crime scene, he was not in
custody or subject to interrogation, and that therefore, he did
not invoke his right to counsel. Even if Sutton had effectively
invoked his right to counsel, law enforcement would not have
violated that right because Sutton was not interrogated until
after he “indicated that he wanted to talk,” was informed of his
Miranda rights, and knowingly and voluntarily waived those
rights. The court further found that Sutton’s statements to law
enforcement were voluntary and not the product of coercion.
Further details of the district court’s findings will be set forth
in our analysis.
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319 Nebraska Reports
STATE V. SUTTON
Cite as 319 Neb. 581
Jury Selection
After voir dire was completed and before trial commenced,
a hearing was held on an oral motion by Sutton alleging the
systematic exclusion of minorities from the jury panel. Sutton,
who is African-American, requested that the court strike the
panel and “impanel” a new one, because there were no minorities on the jury panel and it was not a fair cross-section of the
community, which he alleged violated his right to a jury trial
guaranteed by the Constitution of the United States. 1
The only evidence presented at the hearing was the testimony of the clerk of the district court for Douglas County,
who was questioned on the statutory process of selecting and
summoning potential jurors. 2 The clerk testified she serves as
the jury commissioner for Douglas County and oversees the
drawing of potential jurors from the county to comprise jury
panels. 3 The clerk explained that, by statute, potential jurors
are drawn randomly from a combined list of the county’s
registered voters and its state identification card and driver’s
license holders. 4 The clerk stated that the statutorily prescribed
procedure does not factor in any demographic information of
potential jurors.
Neb. Rev. Stat. § 29-2004(2) (Cum. Supp. 2024) provides:
“In all cases, except as may be otherwise expressly provided,
the accused shall be tried by a jury drawn, summoned, and
impaneled according to provisions of the code of civil procedure . . . .” Under the Jury Selection Act, 5 the jury system
is meant to ensure, among other things, that “[a]ll persons
selected for jury service are selected at random from a fair
1
See U.S. Const. amend. VI and XIV. See, also, Taylor v. Louisiana,
419
U.S. 522,
95 S. Ct. 692,
42 L. Ed. 2d 690 (1975); Duncan v. Louisiana,
391 U.S. 145,
88 S. Ct. 1444,
20 L. Ed. 2d 491 (1968).
2
See, generally,
Neb. Rev. Stat. §§ 25-1644 to 25-1678 (Cum. Supp. 2024).
3
See § 25-1647.
4
See § 25-1654.
5
§ 25-1644.
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Cite as 319 Neb. 581
cross section of the population of the area served by the court”
and “[n]o citizen is excluded from jury service in this state as
a result of discrimination based upon race, color, religion, sex,
national origin, or economic status.” 6 Section 25-1649 requires
that “the lists of grand and petit jurors shall be made up and
jurors selected for jury duty in the manner prescribed in the
Jury Selection Act.” The act defines “[j]ury list” as a list or
lists of names of potential jurors drawn from the master key
list for possible service on grand and petit juries, the “[j]ury
management system” as “an electronic process in which individuals are randomly selected to serve as grand or petit jurors,”
the “[m]aster key list” as “the list of names selected using the
key number pursuant to section 25-1654,” and the “[c]ombined
list” as “the list created pursuant to section 25-1654 by merging the lists of names from the Department of Motor Vehicles
and from election records into one list.” 7 Section 25-1654
provides:
(1) Each December, the Department of Motor Vehicles
shall make available to each jury commissioner a list
. . . containing the names, dates of birth, addresses, and
motor vehicle operator license numbers or state identification card numbers of all licensed motor vehicle operators and state identification card holders nineteen years of
age or older in the county. . . .
(2) When required pursuant to subsection (3) of this
section or when otherwise necessary or as directed by
the judge or judges, the jury commissioner shall create a
combined list by merging the separate lists described in
subsection (1) of this section and reducing any duplication to the best of his or her ability.
(3) In counties having a population of seven thousand
inhabitants or more, the jury commissioner shall produce
a combined list at least once each calendar year. . . .
6
§ 25-1645.
7
§ 25-1646.
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STATE V. SUTTON
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(4) The jury commissioner shall then create a master
key list by selecting from the combined list the name
of the person whose numerical order on such list corresponds with the key number and each successive tenth
name thereafter. The jury commissioner shall certify that
the master key list has been made in accordance with the
Jury Selection Act.
Under § 25-1655, the jury commissioner may use a manual
jury selection process or a jury management system to draw
names of potential jurors from the master key list.
The clerk conceded it was theoretically possible to have
a different system that used census data to determine demographic information of potential jurors within individual Zone
Improvement Plan (ZIP) Codes to account for the higher
density of particular racial demographics in particular areas
of the county. The clerk believed the racial demographics of
particular ZIP Codes in Douglas County varied in densities,
but she was “uncomfortable making such an assertion without
actually looking at the data.” The clerk also conceded other
factors that could possibly be responsible for racial underrepresentation, including poverty, voter registration, driver’s
license issuance, and felony convictions.
The clerk reiterated that the combined list from which potential jurors are selected under the statutory scheme does not
capture their demographics. She did not utilize location data
to select potential jurors because doing so is not prescribed
by statute. Instead, they use a software-generated “randomizer
process” to pull people from the lists. The clerk testified that
no steps are undertaken by the clerk or any staff to “highlight,
minimize, or pull out people based on how they look.” Because
the lists involved “have zero demographic data,” there was no
information about a person’s race.
Sutton argued to the court that although “[t]here’s nothing
affirmative . . . that’s happening in terms of making” the venire
an “underrepresentation” of the diversity of the population,
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under “the statute and the way that it’s implemented here,”
there is a system in place that is “indifferent to the fact that
there are densely populated diverse communities.” This, argued
Sutton, “creates a result where there’s predominantly white
juries, that is systemic.” The statutory system “creates venires
that are not fair cross sections of the community because the
location data is not taken into account with respect to densely
populated diverse communities.”
The court denied Sutton’s motion challenging the jury panel.
The court reasoned that there was no showing the alleged
underrepresentation of the jury panel was due to systematic
exclusion in the selection process of potential jurors, and the
clerk “clearly established that there was not . . . anything done
by the clerk’s office to get an improper racial composition.”
Verdicts and Sentencing
Following trial, the jury acquitted Sutton of first degree
murder and a related count of use of a firearm to commit a
felony. However, the jury returned guilty verdicts for discharging a firearm at an occupied motor vehicle and the related
count of use of a firearm to commit a felony, thereby implicitly rejecting his self-defense claim. The district court accepted
the jury’s verdicts and ordered that a presentence investigation
be completed.
At Sutton’s sentencing hearing, the district court heard counsel’s arguments and Sutton was granted allocution. In pronouncing Sutton’s sentences, the court stated it had considered,
among other things, the information in the completed presentence investigation report, the trial evidence, and the relevant
sentencing factors. The court stated:
In order to determine an appropriate sentence, I have
to take all of these things into consideration. It’s not just
based on the facts of this case. It’s not just based on a
lack of a record. It’s everything in a combination. . . .
[T]here’s a very wide range here. As you know, . . . some
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of these factors are aggravating, and some are mitigating,
so it’s kind of a balance to see what is appropriate.
The court sentenced Sutton to consecutive terms of imprisonment of 10 to 14 years for discharging a firearm at an occupied motor vehicle and 5 to 10 years for the related use of a
firearm conviction.
ASSIGNMENTS OF ERROR
Sutton assigns, restated, that the district court erred (1) in
admitting his custodial interrogation statements in violation
of the Fifth Amendment, (2) in finding that the racial composition of the jury pool was not the result of the systematic
exclusion or purposeful discrimination of underrepresented
racial minorities, and (3) in abusing its discretion by imposing
excessive sentences.
STANDARD OF REVIEW
[1] Whether a party has complied with the notice requirements of Neb. Ct. R. App. P. § 2-109(E) (rev. 2024) is determined de novo upon a review of the record. 8
[2] In reviewing a motion to suppress a statement based
on a claim that law enforcement procured it by violating the
safeguards established by the U.S. Supreme Court in Miranda
v. Arizona, 9 an appellate court applies a two-part standard of
review. 10 Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. 11 Whether those facts
meet constitutional standards, however, is a question of law,
8
State v. Catlin, 308 Neb. 294,
953 N.W.2d 563 (2021).
9
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694
(1966).
10
See, State v. Johnson,
308 Neb. 331,
953 N.W.2d 772 (2021); State v.
Rogers,
277 Neb. 37,
760 N.W.2d 35 (2009); State v. Burdette,
259 Neb.
679,
611 N.W.2d 615 (2000). See, also, Berghuis v. Thompkins,
560 U.S.
370,
130 S. Ct. 2250,
176 L. Ed. 2d 1098 (2010).
11
Id.
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which an appellate court reviews independently of the trial
court’s determination. 12
[3] It is a mixed question of law and fact whether a custodial
interrogation has occurred. 13
[4] It is a mixed question of law and fact whether there has
been an unambiguous invocation of the right to remain silent
or to have counsel. 14
[5] It is a mixed question of law and fact whether invocation of the rights to remain silent or to have counsel have been
scrupulously honored. 15
[6] Whether the Miranda warnings that were given were
sufficient to form the basis of a knowing and intelligent waiver
of the Fifth Amendment is reviewed de novo, 16 but whether the
waiver, based on the totality of the circumstances, was voluntary is reviewed for clear error. 17
[7] A district court’s finding and determination that a defend
ant’s statement was voluntarily made will not be set aside on
appeal unless this determination is clearly erroneous. 18
[8] In determining whether a trial court’s findings on a
motion to suppress are clearly erroneous, the reviewing court
recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed the witnesses testifying regarding the motion. 19
[9] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 20
12
Id.
13
See State v.
Rogers, supra note 10.
14
See
id.
15
See
id.
16
State v. Fernando-Granados,
268 Neb. 290,
682 N.W.2d 266 (2004).
17
See State v. Walker,
272 Neb. 725,
724 N.W.2d 552 (2006).
18
State v. Miller,
312 Neb. 17,
978 N.W.2d 19 (2022).
19
Id.
20
State v. Barnes,
317 Neb. 517,
10 N.W.3d 716 (2024).
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ANALYSIS
Jury Venire
Sutton assigns and argues that the district court erred in
finding that his jury venire’s racial composition was not caused
by the systematic exclusion or purposeful discrimination of
underrepresented racial minorities. Though he does not explicitly challenge any particular statute, Sutton argues it is unconstitutional systematic exclusion for the clerk of the court to
continue to use the statutory method of selecting the juror
pool when the clerk’s office knows African Americans predominantly reside in certain areas and ZIP Codes in Douglas
County, that the master list method summons jurors equally
from all areas of Douglas County, and that the result of the
master list method creates disproportionately higher numbers
of white jurors and predominantly white juries. Under the Jury
Selection Act, the clerk of the court lacks discretion to select
the jury panel differently from the manner prescribed in the
act—which is the manner Sutton argues amounts to a systematic exclusion of African Americans from jury pools. Albeit
implicitly, Sutton is challenging the constitutionality of the
Jury Selection Act.
[10-12] An appellant challenging the constitutionality of a
statute must strictly comply with § 2-109(E). 21 Without strict
compliance with § 2-109(E), this court will not address a constitutional challenge to a statute. 22 Section 2-109(E) provides
in relevant part:
Cases Involving Constitutional Questions. A party who
asserts that a Nebraska statute is unconstitutional under
the Nebraska Constitution or the U.S. Constitution must
file and serve notice thereof with the Clerk. This notice
requirement applies to an appellant, appellee, crossappellant, or cross-appellee if it is the party asserting
that a Nebraska statute is unconstitutional. Such notice
21
State v. Denton, 307 Neb. 400,
949 N.W.2d 344 (2020).
22
Id.
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may not be filed until the appeal is docketed. Such notice
shall be filed by the party and accepted by the Clerk
before the filing of the party’s brief.
The constitutionality of a statute for purposes of article V,
§ 2, of the Nebraska Constitution and § 2-109(E) includes
both facial and as-applied challenges. 23 Strict compliance with
§ 2-109(E) is necessary whenever a litigant challenges the
constitutionality of a statute, regardless of how that constitutional challenge may be characterized. 24
[13-15] Thus, it does not matter if the litigant explicitly or
implicitly challenges a statute. 25 When the appeal challenges
the constitutionality of an act explicitly permitted by a statute,
it is a case “involving the constitutionality of an act of the
Legislature,” as described in article V, § 2, of the Nebraska
Constitution, because a declaration by this court that the act
complained of on appeal is unconstitutional would necessarily render unconstitutional the statute that explicitly authorizes the act. 26 A litigant cannot avoid the requirements of
§ 2-109(E) and the concurrent requisite scrutiny for invalidating statutory provisions merely by failing to cite to the statute
that authorizes the constitutionally challenged act. 27 Whenever
we must determine the constitutionality of a statute in deciding an appeal, the party filing the brief explicitly or implicitly
challenging the statute must strictly comply with § 2-109(E)
or else the matter necessarily implicating the statute will not
be addressed. 28
Sutton did not file and serve notice of his Jury Selection Act
challenge. Accordingly, we cannot consider Sutton’s assignment of error that implicitly challenges its constitutionality.
23
Smith v. Wedekind, 302 Neb. 387,
923 N.W.2d 392 (2019).
24
State v.
Denton, supra note 21.
25
See
id. See, also, e.g., State v.
Catlin, supra note 8.
26
See Smith v.
Wedekind, supra note 23.
27
Id.
28
State v.
Catlin, supra note 8.
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Motion to Suppress
Next, Sutton argues the district court erred in overruling
his motion to suppress his custodial interrogation statements
made after he waived his Miranda rights, asserting that those
statements were elicited in violation of the Fifth Amendment
right against self-incrimination. He does not raise in his
assignment of error the 6th Amendment right to counsel,
Due Process under the 14th Amendment, or violation of any
statutory right. Sutton argues the statements were inadmissible
under the Fifth Amendment because law enforcement did not
scrupulously honor his clear and unambiguous invocation of
his right to counsel, in violation of the prophylactic protections of the Fifth Amendment right established by Miranda
and its progeny. Sutton also argues that, under the totality of
the circumstances, his will was overborne by police coercion
such that both his waiver of his Miranda rights and subsequent statements were involuntary. 29 We find no merit to
either argument.
[16] To counter the inherent pressures of custodial interrogation, Miranda prohibits the use of statements derived
during custodial interrogation unless the prosecution demonstrates the use of procedural safeguards that are effective to
secure the privilege against self-incrimination embodied in
the Fifth Amendment. 30 In determining whether statements
have been made in violation of Miranda, we apply a two-part
standard of review. 31 Regarding historical facts, an appellate
court reviews the trial court’s findings on historical facts for
29
See Dickerson v. United States, 530 U.S. 428,
120 S. Ct. 2326,
147 L. Ed.
2d 405 (2000).
30
State v.
Johnson, supra note 10; State v. Connelly,
307 Neb. 495,
949
N.W.2d 519 (2020). See Miranda v.
Arizona, supra note 9.
31
See, State v.
Johnson, supra note 10; State v.
Rogers, supra note 10; State
v.
Burdette, supra note 10. See, also, Berghuis v.
Thompkins, supra note
10; Thompson v. Keohane,
516 U.S. 99,
116 S. Ct. 457,
133 L. Ed. 2d 383
(1995).
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clear error and whether those facts meet constitutional standards independently of the trial court’s determination. 32
Miranda requires law enforcement to give a particular set of
warnings to a person in custody before interrogation, including that the suspect has the right to remain silent, that any
statement the suspect makes may be used as evidence against
him or her, and that the suspect has the right to an attorney,
either retained or appointed. 33 These warnings are considered
prerequisites to the admissibility of any statement made by a
defendant during custodial interrogation. 34
[17-21] Under the Miranda rule, a “custodial interrogation”
occurs when questioning is initiated by law enforcement after
a suspect has been taken into custody or is otherwise deprived
of freedom of action in any significant way. 35 The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police,
other than those normally attendant to arrest and custody,
which the police should know are reasonably likely to elicit an
incriminating response from the suspect. 36 An “interrogation”
does not include a police officer’s course of inquiry related
to and responsive to a volunteered remark by the accused. 37
An “interrogation” also does not include accurate statements
made by an officer to an individual in custody concerning the
nature of the charges to be brought. 38 An objective standard is
32
Id.
33
See, State v. Benson,
305 Neb. 949,
943 N.W.2d 426 (2020); State v.
Schriner,
303 Neb. 476,
929 N.W.2d 514 (2019).
34
State v.
Benson, supra note 33.
35
See, Miranda v.
Arizona, supra note 9; State v. Vaughn,
314 Neb. 167,
989
N.W.2d 378 (2023); State v.
Johnson, supra note 10; State v.
Connelly,
supra note 30.
36
State v.
Vaughn, supra note 35; State v.
Johnson, supra note 10; State v.
Connelly, supra note 30.
37
See State v.
Connelly, supra note 30.
38
See, U.S. v. Collins,
683 F.3d 697 (6th Cir. 2012); Alvarez v. McNeil,
346
Fed. Appx. 562 (11th Cir. 2009).
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applied to determine whether there is an interrogation within
the meaning of Miranda. 39
[22] Only once Miranda warnings are given can the suspect
voluntarily, knowingly, and intelligently waive these rights. 40
And if a suspect invokes a constitutional right to remain silent
or to the services of an attorney, the authorities must scrupulously honor the invocation. 41
[23] Thus, a suspect who has “expressed his desire to deal
with the police only through counsel, 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.” 42 This rule is “designed to protect an accused in police
custody from being badgered by police officers.” 43 Before a
suspect in custody can be subjected to further interrogation
after requesting an attorney, there must be a showing that the
“suspect himself initiate[d] dialogue with the authorities.” 44
[24] When a dialogue is initiated and an interrogation follows after the suspect has “expressed his desire to deal with
the police only through counsel,” “the burden remains upon
the prosecution to show that subsequent events indicated a
waiver of the Fifth Amendment right to have counsel present
during the interrogation.” 45 A valid Miranda waiver must be
both “voluntary in the sense that it was the product of a free
and deliberate choice and made with a full awareness both of
39
State v.
Johnson, supra note 10; State v.
Connelly, supra note 30.
40
See Miranda v.
Arizona, supra note 9.
41
See State v. Thomas,
267 Neb. 339,
673 N.W.2d 897 (2004).
42
Edwards v. Arizona,
451 U.S. 477, 484-85,
101 S. Ct. 1880,
68 L. Ed. 2d
378 (1981). See, also, Oregon v. Bradshaw,
462 U.S. 1039,
103 S. Ct.
2830,
77 L. Ed. 2d 405 (1983); State v. Larsen,
255 Neb. 532,
586 N.W.2d
641 (1998).
43
Oregon v.
Bradshaw, supra note 42,
462 U.S. at 1044.
44
Id. (internal quotation marks omitted).
45
Id. (internal quotation marks omitted).
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the nature of the right being abandoned and the consequences
of the decision to abandon it.” 46 A waiver is voluntary if it is
the product of a free and deliberate choice rather than through
intimidation, coercion, or deception. 47
[25] Whether a knowing and voluntary waiver has been
made is determined by looking to the totality of the circumstances. 48 Factors to consider include the tactics used by the
police, the details of the interrogation, and any characteristics
of the accused that might cause his or her will to be easily
overborne. 49 These characteristics of the accused include age,
education, intelligence, prior contact with authorities, and conduct. 50 Whether the Miranda warnings that were given were
sufficient to form the basis of a knowing and intelligent waiver
of the Fifth Amendment is reviewed de novo, 51 but whether the
waiver, based on the totality of the circumstances, was voluntary is reviewed for clear error. 52
In Oregon v. Bradshaw, 53 the U.S. Supreme Court found
that the defendant, who had invoked his Miranda right to
counsel, initiated further conversation with law enforcement
and that his waiver of his Miranda rights was knowing and
voluntary. When the defendant in Bradshaw invoked his right
to counsel following a Miranda advisement, law enforcement
immediately terminated the conversation. Sometime later,
without having yet been given the opportunity to confer with
an attorney and while being transferred to the county jail, the
46
State v.
Walker, supra note 17,
272 Neb. at 733,
724 N.W.2d at 561
(internal quotation marks omitted).
47
State v.
Benson, supra note 33; State v. Hernandez,
299 Neb. 896,
911
N.W.2d 524 (2018).
48
See, State v.
Connelly, supra note 30; State v.
Benson, supra note 33.
49
State v. Goodwin,
278 Neb. 945,
774 N.W.2d 733 (2009).
50
State v.
Walker, supra note 17.
51
State v.
Fernando-Granados, supra note 16.
52
See State v.
Walker, supra note 17.
53
Oregon v.
Bradshaw, supra note 42.
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defendant asked a police officer, “Well, what is going to happen to me now?” 54 The officer responded that the defendant
did not have to talk to him, reminding the defendant that he
had requested an attorney, and that “I don’t want you talking to
me unless you so desire . . . since you have requested an attorney, . . . it has to be at your own free will.” 55 The defendant
said he understood and was willing to do whatever he could to
clear up the matter. The following day, he was again advised
of his Miranda rights and signed a written waiver of those
rights, after which he made the statements at issue.
The U.S. Supreme Court explained, “Although ambiguous,
the respondent’s question in this case as to what was going to
happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a
necessary inquiry arising out of the incidents of the custodial
relationship.” 56 The Court thereby determined there had been
no violation of the “Edwards rule” respecting police initiation
of a conversation following the invocation of the Miranda
right to counsel. 57
The Court said the next inquiry was whether “the purported
waiver was knowing and intelligent and found to be so under
the totality of the circumstances, including the necessary fact
that the accused, not the police, reopened the dialogue with
the authorities.” 58 Based on the trial court’s findings that the
police made no threats, promises, or inducements to talk;
that the defendant was properly advised of and understood
his rights; and that, within a short time after requesting an
attorney, he changed his mind without any impropriety on the
part of the police, the Court found no error in the trial court’s
54
Id.,462 U.S. at 1042 (internal quotation marks omitted).
55
Id.
56
Id.,462 U.S. at 1045-46.
57
Id.,462 U.S. at 1046.
58
Id. (internal quotation marks omitted).
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finding that the waiver was knowing and voluntary. As a
result, the defendant’s statements were held to be admissible.
In State v. Smith, 59 we similarly held that the defendant’s
statements made after he reinitiated a conversation with law
enforcement following invocation of the Miranda right to
counsel were admissible. While being detained and after
being read his Miranda rights, the 19-year-old suspect said
he wished to have a lawyer present, after which the officers
did not interrogate him. While en route to the county jail, an
officer, whom the defendant knew, informed the defendant
that if he did not want to make a statement about what happened, she would not ask him about it. They instead made
general conversation. When the defendant asked the officer if
Nebraska had the death penalty and she confirmed it did, the
defendant began to cry. After arriving at the jail and before the
defendant was booked and placed in a holding cell, the officer
told the defendant she would be around the jail for a while
if he wanted to talk. Approximately 10 to 15 minutes later,
before any contact with counsel, the defendant informed an
officer he wished to speak with the officer he knew. That officer went to the cell and asked what the defendant wanted to
talk about. He said he wished to make a statement. The officer
read the Miranda rights advisory form to the defendant, and
the defendant wrote “yes” and initialed that he was willingly
waiving the services of an attorney.
We held, first, that the defendant initiated the conversation,
evincing a willingness for a generalized discussion about the
investigation and not merely a necessary inquiry arising out
of the incidents of the custodial relationship. Second, we held
that the State had sustained its burden of proving that under
the totality of the circumstances, including the background,
experience, and conduct of the accused, a valid waiver of
the right to counsel was knowingly and intelligently made.
Despite the defendant’s suffering from post-traumatic stress
59
State v. Smith, 242 Neb. 296,
494 N.W.2d 558 (1993).
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disorder and being “at least somewhat mentally deficient,” 60
we held that the trial court did not clearly err in its findings
that the defendant knowingly and intelligently waived his
Miranda rights.
The State argues that Sutton anticipatorily invoked his
Miranda right not to be interrogated without counsel present,
because he made the invocation before being subjected to a
custodial interrogation. Despite law enforcement’s repeated
statements to Sutton after he was placed in custody, acknowledging he had invoked his Miranda right to counsel, the
State argues the prophylactic mandate that an invocation of
a Miranda right be scrupulously honored therefore did not
apply. 61 The district court agreed but, alternatively, found that
if Sutton properly invoked his Miranda right to counsel, his
Miranda rights were not violated. We need not decide here
whether Sutton’s invocation was effective, because we affirm
the district court’s decision that even if Sutton effectively
invoked his Miranda right to counsel, he reinitiated the conversation with law enforcement, expressing a willingness to
engage in a generalized discussion about the investigation.
Furthermore, we hold that the district court did not clearly err
in finding that, before making the statements at issue, Sutton
knowingly and intelligently waived his Miranda rights and
that the challenged statements were voluntary.
The record supports the district court’s conclusion that
law enforcement scrupulously honored Sutton’s invocation
of the Miranda right to counsel by declining to discuss the
investigation with him due to his invocation. Immediately
before Sutton’s initiation of dialogue with the authorities, law
enforcement simply informed Sutton of his homicide charge,
which is an action normally attendant to arrest and custody
60
Id. at 304, 494 N.W.2d at 564.
61
See, e.g., Charette v. State, 980 N.W.2d 310 (Minn. 2022); State v.
Hambly, 307 Wis. 2d 98,
745 N.W.2d 48 (2008).
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and, therefore, outside the scope of interrogation. 62 Instead
of ending his response at “Okay,” Sutton went on to inquire,
unprompted, about his charge and what would happen if he
talked with law enforcement. Sutton first expressed his confusion and questioned his charge by stating, “I’m confused. . . .
About what?” He then posed a hypothetical question regarding what would happen if he talked with law enforcement,
stating, “So, if we was to talk about it . . . .”
Like the defendant’s question in Bradshaw, 63 “Well, what
is going to happen to me now?” Sutton’s questions evinced
a willingness and desire for a generalized discussion about
law enforcement’s investigation. Sutton’s volunteered remarks
indicated he wanted to know why he was charged with homicide and whether talking with law enforcement would impact
his charges, which are not merely necessary inquiries arising from his custody. And law enforcement was careful not
to interrogate Sutton during their conversation with Sutton
before he was advised of and waived his Miranda rights. After
Sutton initiated the conversation with his first question, law
enforcement simply responded to Sutton’s numerous inquiries, which were the driving force behind the conversation.
Law enforcement only asked a few questions to clarify what
Sutton meant with his statements about wanting to talk to law
enforcement and to determine whether he wanted to go over
the Miranda waiver form. These questions also only occurred
after Sutton had expressed his desire to talk, and their purpose was to clarify what Sutton was expressing, not to elicit
incriminating information from him. Notably, the record does
not suggest that law enforcement did or said anything during
the pre-Miranda conversation that they should have known
would be reasonably likely to elicit an incriminating response
from Sutton.
62
See, U.S. v. Collins, supra note 38; Alvarez v.
McNeil, supra note 38.
63
Oregon v. Bradshaw, supra note 42,
462 U.S. at 1042 (internal quotation
marks omitted).
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Neither party disputes that Sutton’s subsequent Miranda
waiver was knowingly made; Sutton was carefully informed
of his rights through law enforcement’s use of the Miranda
waiver form. Sutton instead argues that law enforcement
coerced him into waiving his rights by detaining him for
15 hours without access to an attorney, not providing him
the opportunity to use the phone, giving him only a slice of
pizza, holding him in the interview room with the light on
and without a bed, and intentionally catching him off guard
when informing him that he would be arrested for homicide.
Sutton further alleges that law enforcement manipulated him
by implying he had only two options: (1) waive his Miranda
rights, talk to law enforcement without counsel, and potentially avoid arrest, or (2) maintain his invocation, continue to
wait in the interview room without counsel, and be arrested
for homicide.
Contrary to what Sutton suggests, the record demonstrates
that law enforcement did not frame Sutton’s options as either
(1) waiving his right and possibly avoiding arrest or (2)
maintaining his invocation and being arrested for homicide.
Instead, law enforcement explained that Sutton could waive
his rights and talk without counsel but repeatedly told him that
the only thing that would change would be law enforcement’s
learning Sutton’s perspective. Throughout the conversation,
law enforcement continuously stressed they were unsure
whether Sutton’s statements about the incident would impact
the facts of the case or whether he would go to jail, because
they had not had the conversation with him. Law enforcement
informed Sutton that, regardless, they had enough probable
cause to arrest him and that his homicide charge was a felony,
which he would have to be arrested and “see a judge for.”
Most notably, after law enforcement returned to the interview
room to go over the Miranda waiver form with Sutton, they
confirmed with him that he had been advised of the charges
that they were “ultimately going to book [him] into the corrections for today.”
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Furthermore, as the district court found in its order denying
Sutton’s motion to suppress, law enforcement did not make
any promises or guarantees to Sutton during their pre-Miranda
conversation. Law enforcement explicitly stated they could
not promise a different result if Sutton talked. Law enforcement did not tell Sutton whether talking would help or hurt
him. They even told Sutton that they could not make him any
promises because it is “basically illegal.” Clearly, law enforcement expressed that Sutton’s decision to talk without counsel
would not guarantee that he would walk free that day, and they
repeatedly advised Sutton that they could not guarantee him
an outcome or promise him anything.
The district court did not clearly err in finding that Sutton
was not deprived of food or sleep. As the court noted, Sutton
appears to have slept during most of the time he was alone
in the interview room, and he was provided a slice of pizza,
which he never ate. Regarding Sutton’s attentiveness, the court
did not clearly err in finding that, during the interrogation,
Sutton seemed alert, understood what was happening, and did
not appear to be impacted by how long he had been in custody. In fact, the court found that Sutton’s body language and
demeanor during the interrogation seemed very similar to how
he had conducted himself at the scene when he approached
law enforcement.
Lastly, the court found the length of detention in the interview room did not negate the voluntariness of Sutton’s waiver
of his Miranda rights. We agree. As indicated by cases in other
jurisdictions, 64 such a period of time in an interview room is
insufficient to render a Miranda waiver involuntary on its own.
The district court did not clearly err in finding law enforcement
had not, as defense counsel suggested, worn Sutton down to
compel a waiver.
64
See, U.S. v. Carpentino, 948 F.3d 10 (1st Cir. 2020); People v. Collins,
106
A.D.3d 1544,
964 N.Y.S.2d 393 (2013); People v. Hales,
272 A.D.2d 984,
709 N.Y.S.2d 276 (2000).
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We acknowledge that refusing to allow a suspect to contact
an attorney is a relevant circumstance in the totality of the
circumstances surrounding the voluntariness of a waiver of
Miranda rights. 65 But it is not decisive and must be weighed
in light of all the surrounding circumstances. Law enforcement delayed, but did not refuse, Sutton’s apparent requests to
contact an attorney. The record does not indicate this was out
of any intent to coerce Sutton into making a statement without
the presence of counsel, and the district court did not clearly
err in finding that Sutton “seemed quite aware of what was
happening and understood the situation when he eventually
decided to talk,” expecting that he could be held for 48 hours
while law enforcement investigated the shooting.
Considering Sutton’s level of sophistication and experience
with law enforcement, his demonstrated awareness of what was
happening, the absence of any threats or false promises by law
enforcement, law enforcement’s offer to give Sutton more time
to think about whether he really wanted to waive his Miranda
rights before proceeding further, and the thoroughness of the
Miranda advisory and waiver that occurred before any of the
statements at issue, the district court did not err in concluding
that, in light of all the surrounding circumstances, Sutton’s
Miranda waiver was knowingly and voluntarily made.
Sutton also appears to more broadly challenge the voluntariness of his statements under traditional standards. As explained
by the U.S. Supreme Court in Dickerson v. United States, 66
“The requirement that Miranda warnings be given does not,
of course, dispense with the voluntariness inquiry.” However,
“‘[c]ases in which a defendant can make a colorable argument
that a self-incriminating statement was “compelled” despite
the fact that the law enforcement authorities adhered to the
65
See, e.g., People v. Leverson,
2024 IL App (1st) 211083,
256 N.E.3d 1138,
482 Ill. Dec. 174 (2024).
66
Dickerson v. United States, supra note 29,
530 U.S. at 444.
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dictates of Miranda are rare.’” 67 We agree with the district
court that this is not one of those rare cases.
The district court did not err in denying Sutton’s motion to
suppress and in admitting his custodial interrogation statements
at trial.
Excessive Sentences
Lastly, Sutton argues the district court imposed excessive
sentences. Although he does not dispute that his sentences fall
within the statutory sentencing limits, he argues that his belief
that he was acting in self-defense and his low-risk-level scores
warranted lighter sentences. An appellate court will not disturb
a sentence imposed within the statutory limits absent an abuse
of discretion by the trial court. 68 We hold that the district court
did not abuse its discretion.
[26-28] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion in
considering and applying the relevant factors, as well as any
applicable legal principles in determining the sentence to be
imposed. 69 In determining a sentence to be imposed, relevant
factors customarily considered and applied are the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social
and cultural background, (5) past criminal record or record of
law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. 70 The appropriateness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s
67
Id., quoting Berkemer v. McCarty,
468 U.S. 420,
104 S. Ct. 3138,
82 L.
Ed. 2d 317 (1984).
68
State v.
Barnes, supra note 20.
69
Id.
70
Id.
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demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. 71
Sutton was convicted of discharging a firearm at an occupied motor vehicle, a Class ID felony, and use of a firearm
to commit a felony, a Class IC felony, for which he received
respective imprisonment terms of 10 to 14 years and 5 to 10
years. Statutory sentencing guidelines permit imprisonment
for 5 to 50 years for Class IC felonies and for 3 to 50 years
for Class ID felonies. 72 Thus, Sutton’s sentences are not only
within the statutory limits, but they are also on the lower ends
of the ranges for permitted imprisonment durations.
In pronouncing Sutton’s sentences, the district court stated
that it had considered, among other things, the relevant sentencing factors, the evidence from trial, and the information
in the presentence investigation report. The court stressed
how some of these factors were aggravating and others were
mitigating, which affected its analysis of what sentences were
appropriate for Sutton. Sutton’s alleged belief that he was acting in self-defense was addressed during trial and in the presentence investigation report, which also contained Sutton’s
“LS/CMI” assessment scores. Although Sutton seemingly
requests for us to reweigh the factors he alleges the district
court inadequately assessed, it is not this court’s function to
conduct a de novo review of the record to determine what
sentences we would impose. 73
[29] An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. 74 When considering the factors that Sutton mentions, as well as the other information surrounding his case,
71
Id.; State v. King,
316 Neb. 991,
7 N.W.3d 884 (2024).
72
Neb. Rev. Stat. § 28-105 (Cum. Supp. 2024).
73
State v.
King, supra note 71.
74
State v.
Barnes, supra note 20.
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we cannot find that the district court abused its discretion. We
affirm his sentences.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
