State v. Bormann

State of NebraSka , appellee , v.
kyle J. bormaNN, appellaNt.
777 N.W.2d 829
Filed January 29, 2010. 	No. S-08-1281.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights:
Appeal and Error. In reviewing a motion to suppress a confession based on the
claimed involuntariness of the statement, including claims that it was procured in
violation of 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. With regard to historical facts, an appellate
court reviews the trial court’s findings for clear error. Whether those facts suf-
fice to meet the constitutional standards, however, is a question of law, which an
appellate court reviews independently of the trial court’s determination.
2. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
3. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
4. Miranda Rights. The safeguards provided by Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come into play whenever a person in
custody is subjected to either express questioning or its functional equivalent.
5. Constitutional Law: Arrests: Miranda Rights: Words and Phrases. A person
is in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), when there is a formal arrest or a restraint on one’s
freedom of movement to the degree associated with such an arrest.
6. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
“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) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.
7. Miranda Rights: Words and Phrases. Interrogation occurs when a person is
placed under a compulsion to speak.
8. Miranda Rights. It is an unwarranted extension of Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), to say that an unwarned statement
so taints the investigatory process that a subsequent voluntary and informed
waiver is ineffective for some indeterminate period.
9. Confessions: Due Process. The Due Process Clause of U.S. Const. amend. XIV
and the due process clause of Neb. Const. art. I, § 3, preclude admissibility of an
involuntary confession.
10. Confessions: Proof. The State has the burden to prove that a defendant’s state-
ment was voluntary and not coerced.
11. Confessions: Police Officers and Sheriffs: Due Process. Coercive police activ-
ity is a necessary predicate to the finding that a confession is not voluntary within
the meaning of the Due Process Clause of the 14th Amendment.
320 	279 NEbrASkA rEPorTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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12. Constitutional Law: Due Process. The determination of whether procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
Appeal from the District Court for Douglas County: G erald
e. moraN, Judge. Affirmed.
Thomas C. riley, Douglas County Public Defender, for
appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
H eavicaN, 	c.J., 	WriGHt, 	coNNolly, 	G errard, 	StepHaN,
mccormack, and miller-lermaN, JJ.
WriGHt, J.
I. NATUrE oF CASE
kyle J. bormann was convicted of second degree murder
and use of a firearm to commit a felony. He was sentenced
to a term of 60 years to life in prison for the murder and a
consecutive term of 20 to 30 years for use of the firearm.
He appeals.
II. SCoPE oF rEVIEW
[1] In reviewing a motion to suppress a confession based on
the claimed involuntariness of the statement, including claims
that it was procured in violation of 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. With regard to his-
torical facts, we review the trial court’s findings for clear error.
Whether those facts suffice to meet the constitutional standards,
however, is a question of law, which we review independently
of the trial court’s determination. State v. Goodwin, 278 Neb.
945, 774 N.W.2d 733 (2009).
[2,3] Whether jury instructions given by a trial court are cor-
rect is a question of law. State v. Robinson, 278 Neb. 212, 769
N.W.2d 366 (2009). When dispositive issues on appeal present
questions of law, an appellate court has an obligation to reach
an independent conclusion irrespective of the decision of the
court below. Id.
STATE v. bormANN 	321
Cite as 279 Neb. 320

III. FACTS
on January 20, 2008, brittany Williams was shot and killed
as she sat in her car in the drive-through lane of a fast-food
restaurant in omaha, Nebraska. The bullet came from north of
the restaurant and passed through the front passenger window,
striking her in the head.
Police officers arrived at approximately 8:40 p.m. and used
yellow police tape to preserve the crime scene. An alley imme-
diately to the east of the restaurant was cordoned off. A vehicle
driven by a male came south in the alley and drove through
the crime scene tape. The vehicle then turned back and trav-
eled north.
officers pursued the vehicle into a parking lot several
blocks north of the restaurant. The vehicle was driven over a
curb and was resting against a picnic table just north of the
parking lot. The driver got out of the vehicle holding a rifle.
He discarded the rifle and ran. officers caught up with him,
and he was taken into custody. The rifle was secured and taken
into evidence.
The male was handcuffed, and a search was conducted.
Police found a spent shell casing in his jacket pocket. officers
detected a strong odor of alcohol, and the male had difficulty
walking to the cruiser, where he was placed in the back seat.
At that point, the male was asked to provide his name and
address and was identified as bormann. He was asked no fur-
ther questions, but he leaned forward from the back seat and
said he wanted to tell the officer “what was going on.” The
officer told bormann to sit back and relax.
Another officer standing immediately outside the cruiser
told bormann he was under arrest and not to ask any ques-
tions, but bormann spoke again. Frustrated, the officer told
bormann to “shut the [expletive] up.” The officer in the cruiser
told bormann, “I am not asking you any questions, but if you
want to talk, I’m listening.” bormann said that he had been at
home watching a professional football game on television and
that he became upset due to officiating calls by the referees.
bormann said he became further upset, found his deer rifle,
got into the car, and drove around. The officer in the cruiser
said that bormann “abruptly ended by saying [he] didn’t shoot
322 	279 NEbrASkA rEPorTS

anybody.” bormann had not been given the warnings required
by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966), at that time.
bormann was transported to the omaha Police Department’s
headquarters by a third officer. Without being questioned,
bormann asked the third officer which team he preferred in the
football game bormann had been watching. A short while later,
bormann volunteered that he was “sorry for everything that
happened tonight.”
At police headquarters, bormann was placed in an interview
room. A videotape recording of the interview was received
into evidence at trial over bormann’s objection. The video-
tape shows that bormann was left alone for about 8 minutes
before a detective entered and asked bormann for identifica-
tion. bormann said he had none. The detective left, returned
with a notepad, and asked bormann for his name, date of
birth, address, telephone number, and Social Security number.
bormann was again left alone for about 20 minutes.
When the detective returned, bormann had his head down
on the table and appeared to be asleep. The detective roused
bormann and asked if he had any sharp instruments in his pos-
session. The detective reviewed the biographical information
he had obtained previously from bormann and offered him
water. The detective left the room, returned with water, and
left again.
Approximately 	8 	minutes 	later, 	the 	detective 	returned.
bormann asked to call his parents. The detective said he would
call them if it was necessary after he and bormann talked for
a while. bormann was again asked for biographical informa-
tion, including his age, name, date of birth, address, and pre-
vious address. bormann described where he had lived for the
prior several years and where he had attended high school.
The detective explained that the questions were to ensure that
bormann understood English. bormann said that he had good
grades in high school and had attended 1 year of college.
bormann stated that he can read but has problems with com-
prehending what he has read.
bormann said he understood what the detective was say-
ing. He described his history of drug use and stated he had
STATE v. bormANN 	323
Cite as 279 Neb. 320

used marijuana a few weeks earlier. While in college, he used
cocaine and had been charged with possession. He was not
using cocaine at the time but had recently abused inhalants. He
said he had been drinking that night while watching football on
television and had consumed a bottle of whiskey.
bormann was asked whether he took any prescription medi-
cation and whether he had any disabilities. He denied taking
any medication other than Tylenol for headaches. bormann
was advised that the detective was trying to determine whether
bormann understood what was going on and to make sure
bormann understood what was being said.
The detective said he wanted to give bormann a chance
to talk. At that point, about 1 hour after the videotape began,
bormann was read the Miranda rights advisory. He signed the
rights advisory form and eventually acknowledged that he had
committed the homicide by shooting from his parked car into
Williams’ vehicle. He was unable to explain any reason for
the shooting.
bormann was charged with first degree murder and use of a
deadly weapon to commit a felony. A motion to suppress his
statements was overruled. The trial court found that bormann’s
statements in the police cruiser were not the product of interro-
gation and did not require Miranda warnings because bormann
was not being interrogated. The court found no evidence of a
police practice intended to elicit an incriminating response. The
officer’s direction to sit back and relax did not compel bormann
to talk. There was no evidence that bormann was susceptible to
persuasion. The court found that bormann persisted in talking
even when he was directed to remain quiet.
The trial court found that bormann’s statement while being
transported to police headquarters was made freely and vol-
untarily. His statement that he was “sorry for everything that
happened tonight” was spontaneous and therefore admissi-
ble. The court concluded that because bormann’s statement
in the cruiser was admissible, his videotaped statement at
police headquarters was not derivative of an earlier inadmis-
sible statement.
The trial court found the videotaped statement was admis-
sible as a “‘routine booking exception’” to Miranda and that
324 	279 NEbrASkA rEPorTS

the questions asked at the beginning of the interview fell within
the routine booking exception. Although questions were asked
about bormann’s use of drugs and alcohol, the questions were
asked to determine whether bormann was able to answer ques-
tions at that time.
The trial court determined that a brief reference to the death
penalty made during the questioning of bormann at police
headquarters did not make his videotaped statement involuntary.
The court found that the detective referred to the death penalty
only briefly and did not use it as a threat or inducement.
The jury found bormann guilty of second degree murder and
use of a weapon to commit a felony. He was sentenced to a
term of 60 years to life in prison on the murder conviction and
a consecutive term of 20 to 30 years for the firearm conviction.
He appeals.
IV. ASSIGNmENTS oF Error
bormann’s assignments of error, summarized and restated,
claim that the trial court erred in admitting his statements into
evidence. He argues the court erred in admitting the statement
made in the police cruiser, because he was not given Miranda
warnings prior to the statement. He claims that the videotaped
statement was made without a knowing, voluntary, and intel-
ligent waiver of the right to counsel and the right against
self-incrimination and that the questioning exceeded the scope
of the exception to Miranda for routine booking questions.
bormann also alleges that the videotaped statement at police
headquarters was the product of threats, coercion, or induce-
ments of leniency, in violation of the Due Process Clauses of
the federal and state Constitutions. bormann also claims that
the court erred in giving a step jury instruction which deprived
him of the due process right to have the jury consider his
defense to the charges.
V. ANALYSIS
1. admiSSioN of StatemeNtS
(a) Police Cruiser
The first officer testified that bormann was placed in the
back seat of the police cruiser and asked to provide his name
STATE v. bormANN 	325
Cite as 279 Neb. 320

and address. on two occasions, bormann said he would like to
talk. He was told to sit back and relax and not to ask any ques-
tions. bormann appeared calm. He had watery eyes that were
slightly bloodshot, and there was an odor of alcohol on his per-
son. bormann then volunteered that after becoming frustrated
about the officiating of the football game he was watching,
he got out his deer rifle and drove around. He said he had not
shot anyone.
The second officer, who was standing outside the cruiser,
testified that bormann said he had been at home watching a
football game, drinking, and getting upset with the referee
because of some of the officiating calls he made. bormann
said that as the game progressed, he became more and more
upset. He got dressed, grabbed his rifle, and started driving
around. He finished his statement by saying, “I didn’t shoot
anybody tonight.” bormann argues his statement was inadmis-
sible because he had not been given the Miranda warnings.
[4,5] The safeguards provided by Miranda “come into play
whenever a person in custody is subjected to either express
questioning or its functional equivalent.” State v. McKinney,
273 Neb. 346, 364, 730 N.W.2d 74, 90 (2007). Miranda warn-
ings are required only when there has been such a restriction
on one’s freedom as to render one “‘in custody.’” State v.
McKinney, 273 Neb. at 364, 730 N.W.2d at 90-91, quoting
State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003). A per-
son is in custody for purposes of Miranda “when there is a
formal arrest or a restraint on one’s freedom of movement to
the degree associated with such an arrest.” State v. McKinney,
273 Neb. at 364, 730 N.W.2d at 91. bormann was handcuffed
and placed in the back seat of a police cruiser. His freedom of
movement was restrained. It is not disputed that he was in cus-
tody at the time he made the statements to the officers in and
near the cruiser.
[6] We then consider whether bormann was interrogated
while in the police cruiser. “‘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) that the police should know are
reasonably likely to elicit an incriminating response from the
326 	279 NEbrASkA rEPorTS

suspect.” State v. Rogers, 277 Neb. 37, 54, 760 N.W.2d 35, 52
(2009). In Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S.
Ct. 1682, 64 L. Ed. 2d 297 (1980) (emphasis in original), the
U.S. Supreme Court stated:
A practice that the police should know is reasonably
likely to evoke an incriminating response from a suspect
thus amounts to interrogation. but, since the police surely
cannot be held accountable for the unforeseeable results
of their words or actions, the definition of interrogation
can extend only to words or actions on the part of police
officers that they should have known were reasonably
likely to elicit an incriminating response.
We have held that “[s]tatements made in a conversation
initiated by the accused or spontaneously volunteered by the
accused are not the result of interrogation and are admissible.”
State v. Rodriguez, 272 Neb. 930, 944, 726 N.W.2d 157, 171
(2007). In addition, the definition of interrogation excludes
“a course of inquiry related and responsive to a volunteered
remark.” Id.
In interpreting Rhode Island v. Innis, supra, this court has
stated that an objective standard is applied to determine whether
there is interrogation within the meaning of Miranda. See State
v. Gibson, 228 Neb. 455, 422 N.W.2d 570 (1988). The question
to be answered is as follows:
Would a reasonable and disinterested person conclude that
police conduct, directed to a suspect or defendant in cus-
tody, would likely elicit an incriminating response from
that suspect or defendant? . . . If the answer is “yes,” there
is interrogation requiring the Miranda warning before
a defendant’s incriminating response is constitutionally
admissible as evidence against the defendant.
Id. at 463, 422 N.W.2d at 575.
both officers in and near the cruiser testified that bormann’s
statements while he was in the cruiser were volunteered. Neither
of the officers elicited a response by beginning a conversation
with bormann. He was asked for his name and address in
order for the officers to conduct a background check on him.
This information was collected for arrest and did not require
Miranda warnings.
STATE v. bormANN 	327
Cite as 279 Neb. 320

[7] Neither officer took any action that elicited an incrimi-
nating response from bormann. The officers cannot be held
accountable for bormann’s response. They asked no ques-
tions beyond obtaining information for identification purposes.
“[I]nterrogation occurs when a person is placed under a com-
pulsion to speak.” State v. Rodriguez, 272 Neb. at 943, 726
N.W.2d at 171. bormann was not compelled to talk to the offi-
cers by their actions or statements. He voluntarily asked to talk
to the officers, who discouraged him from doing so. bormann
continued to talk even when he was told not to speak. There
was no interrogation in the police cruiser.
We conclude that bormann was not subjected to interroga-
tion while sitting in the police cruiser at the scene or while
being transported to police headquarters. The statements made
by bormann were voluntary and were not the result of interro-
gation. Therefore, they were admissible. The trial court did not
err in allowing such statements to be admitted into evidence.
(b) Interview room
bormann claims that the videotaped statement at police
headquarters should be inadmissible because it includes 20
minutes of questioning before he was administered the Miranda
warnings. The trial court found the statement to be admissible.
See Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110
L. Ed. 2d 528 (1990) (routine booking exception allows col-
lection of questions to secure biographical data necessary to
complete booking or pretrial services without administration of
Miranda warnings).
We conclude that the information obtained went beyond the
collection of facts necessary for routine booking. However, this
does not mean that the evidence was inadmissible. The infor-
mation, while beyond that necessary for a routine booking, was
obtained in order to determine if bormann was competent to
talk to police.
Information obtained in initial questioning is not necessarily
considered interrogation under Miranda. U.S. v. Brown, 101
F.3d 1272 (8th Cir. 1996). The court stated:
“A request for routine information necessary for basic
identification purposes is not interrogation under Miranda,
328 	279 NEbrASkA rEPorTS

even if the information turns out to be incriminating. only
if the government agent should reasonably be aware that
the information sought, while merely for basic identifica-
tion purposes in the usual case, is directly relevant to the
substantive offense charged, will the question be subject
to scrutiny.”
Id. at 1274, quoting United States v. McLaughlin, 777 F.2d 388
(8th Cir. 1985).
bormann was in an interrogation room for about 45 minutes
before the Miranda rights were administered. He was alone
for more than 15 minutes before the detective entered and
asked for identification. bormann had none, and the detective
obtained a notepad and asked bormann for his name, date of
birth, address, telephone number, and Social Security number.
The detective left, returned, and asked bormann if he had any
sharp instruments in his possession. biographical information
was reviewed, and bormann was offered water. The detective
left to retrieve the water, returned with it, and left again.
The detective returned and again asked for biographical
information. bormann voluntarily described where he had lived
for the previous several years. The detective asked bormann
about his educational background to ensure that bormann
understood the questions.
because the detective smelled the odor of alcohol, he asked
for bormann’s drug and alcohol history. bormann said he had
last used marijuana a few weeks earlier. He had previously used
cocaine and had once been charged with possession. bormann
said he had recently abused inhalants. bormann said he had
been drinking that night while he was watching a football game
and had consumed a bottle of whiskey.
The detective said he was trying to determine whether
bormann understood what was happening. He asked whether
bormann had taken any prescription medication and whether
he had any disabilities. bormann denied taking any medication
other than Tylenol for headaches.
The detective said he wanted to give bormann a chance to
talk. bormann then said he had possession of a high-powered
rifle that night, but that he had not shot at any police. At that
point, about 1 hour after the videotape began, the detective
STATE v. bormANN 	329
Cite as 279 Neb. 320

read the Miranda rights advisory to bormann, and he signed
the rights advisory form.
In reviewing a motion to suppress a confession based on the
claimed involuntariness of the statement, including claims that
it was procured in violation of 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. With regard to historical facts,
we review the trial court’s findings for clear error. Whether
those facts suffice to meet the constitutional standards, how-
ever, is a question of law, which we review independently of
the trial court’s determination. State v. Goodwin, 278 Neb. 945,
774 N.W.2d 733 (2009).
The issue is whether bormann’s statements prior to being
given the Miranda warning tainted his waiver such that the
statements cannot be said to be freely and voluntarily given.
[8] “It is an unwarranted extension of Miranda to say that
an unwarned statement ‘so taints the investigatory process that
a subsequent voluntary and informed waiver is ineffective for
some indeterminate period.’” State v. Ray, 266 Neb. 659, 665,
668 N.W.2d 52, 57 (2003), quoting Oregon v. Elstad, 470 U.S.
298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). We conclude
that bormann’s pre-Miranda statement did not render his post-
Miranda statements inadmissible.
The pre-Miranda questions concerned basic identification
and bormann’s ability to understand the nature of the question-
ing. bormann smelled of alcohol and had consumed an entire
bottle of whiskey the day of the shooting. He had previously
told police that he had a high-powered rifle and that he had
not shot at any police. This statement cannot be said to have
tainted the voluntariness of his waiver. bormann’s statement
concerning his drug use was not related to the shooting inci-
dent and provided basic information relating to his physical
and mental condition.
The trial court did not err in finding that bormann’s video-
taped statement was voluntary. The questioning prior to the
time bormann was given his Miranda advisory did not affect
the 	voluntariness 	of 	bormann’s 	post-Miranda 	statements.
330 	279 NEbrASkA rEPorTS

bormann freely and voluntarily executed the waiver of his
Miranda rights.
(c) Product of Threats, Coercion, or Inducements
bormann argues that the videotaped statement was inad-
missible because it was the product of threats, coercion, or
inducements. He claims his due process rights were vio-
lated when the detective mentioned the death penalty during
the interrogation.
After bormann was given the Miranda warnings, he was
asked to describe his activity that day. bormann stated he
had slept until 3:30 p.m. and then began watching football.
bormann said he started drinking during an earlier football
game. He did not remember more than the first quarter of the
second game, but said he became upset when the team he was
a fan of was losing. He did not remember the reason he left
his house.
During the interview, bormann continued to deny that he
remembered any of his actions. Gradually, he recalled details
of the day. He admitted that he fired the rifle while sitting in
the driver’s seat of his vehicle. bormann stated he did not know
why he left his house. The detective asked bormann what his
target was, because he wanted to make sure that bormann did
not go out looking for a specific person, which would be pre-
meditated murder. bormann was asked if he understood the
meaning of premeditated murder. The detective stated, “That
means death penalty.” bormann did not respond. The interview
continued for another 30 minutes, at which time bormann
admitted that he shot at a car in the drive-through lane of a
fast-food restaurant.
[9,10] bormann argues that the detective’s comments about
the death penalty made bormann’s statement involuntary.
A statement of a suspect, to be admissible, must be
shown by the State to have been given freely and volun-
tarily and not to have been the product of any promise or
inducement—direct, indirect, or implied—no matter how
slight. However, this rule is not to be applied on a strict,
per se basis. rather, determinations of voluntariness are
based upon an assessment of all of the circumstances and
STATE v. bormANN 	331
Cite as 279 Neb. 320

factors surrounding the occurrence when the statement
is made.
State v. McPherson, 266 Neb. 734, 740-41, 668 N.W.2d 504,
511 (2003). The Due Process Clauses of the U.S. and Nebraska
Constitutions preclude admissibility of an involuntary confes-
sion. State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000),
citing U.S. Const. amend. XIV and Neb. Const. art. I, § 3. The
State has the burden to prove that a defendant’s statement was
voluntary and not coerced. State v. Garner, supra. In determin-
ing whether a Miranda waiver is knowingly and voluntarily
made, a court applies a totality of the circumstances test.
Factors to be considered include the suspect’s age, education,
intelligence, prior contact with authorities, and conduct. State
v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).
In State v. Garner, 260 Neb. at 46, 614 N.W.2d at 325, a
detective told the defendant, a 15-year-old who was suspected
of killing an elderly woman, that people would “‘want to stick
you in the electric chair and burn your butt forever for killing
an 83-year-old white woman, when there may be more to it
than that.’” The defendant then confessed to the murder.
on appeal, the defendant contended that his confession was
involuntary because it was the product of threats, coercion, and
inducements of leniency. He argued that his age, the time of
day, and the fact he had no attorney or parent present affected
the voluntariness of his confession. We stated that the confes-
sion of an accused may be involuntary and inadmissible if
obtained in exchange for a promise of leniency. “However,
mere advice or exhortation by the police that it would be bet-
ter for the accused to tell the truth, when unaccompanied by
either a threat or promise, does not make a subsequent confes-
sion involuntary.” State v. Garner, 260 Neb. at 50, 614 N.W.2d
at 327. In order to render a statement involuntary, any benefit
offered to a defendant must be definite and must overbear his
or her free will. Id. We concluded that because the detective
did not refer to the death penalty in connection with an explicit
threat or promise of leniency, the confession was not involun-
tary. Id.
[11] The U.S. Supreme Court has held that “coercive police
activity is a necessary predicate to the finding that a confession
332 	279 NEbrASkA rEPorTS

is not ‘voluntary’ within the meaning of the Due Process
Clause of the Fourteenth Amendment.” Colorado v. Connelly,
479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).
“‘[The] circumstances surrounding the statement and the char-
acteristics of the individual defendant at the time of the state-
ment are potentially material considerations . . . .’” State v.
Ray, 266 Neb. 659, 666, 668 N.W.2d 52, 57 (2003).
In the case at bar, the detective’s reference to the death pen-
alty was not made as a threat or inducement. He was pointing
out to bormann the seriousness of the crime and differentiating
premeditated murder from other grades of homicide. The video-
tape does not suggest that the detective’s actions resulted in
bormann’s will being overborne.
The trial court’s findings of historical fact are not clearly
erroneous. They are fully supported by the record. based upon
our independent review of the totality of the circumstances,
we conclude that the videotaped statement by bormann was
voluntary. The trial court did not err in admitting the videotape
into evidence.
2. Step Jury iNStructioN
bormann’s final assignment of error claims the trial court
erred in giving a step jury instruction that deprived him of his
due process right to have the jury consider his defense to the
charges. The jury was given the following instruction:
Under Count I of the Information, depending on evi-
dence which you find that the State has proved beyond a
reasonable doubt, you may find . . . bormann:
(1) Guilty of murder in the first degree; or
(2) Guilty of murder in the second degree; or
(3) Guilty of manslaughter; or
(4) Not guilty.
The instruction included three sections, each of which
spelled out the material elements for the three grades of homi-
cide. Each instruction then stated that if the jury found from
the evidence beyond a reasonable doubt that each and every
one of the material elements set out in that section was true,
the jury should find the defendant guilty of that crime. Each
instruction went on to state: “If, on the other hand, you find
STATE v. bormANN 	333
Cite as 279 Neb. 320

that the State has failed to prove beyond a reasonable doubt
any one or more of the material elements” in that section, the
jury should find bormann not guilty of that crime. The instruc-
tion then directed the jury to “proceed to consider the lesser-
included offense.”
[12] bormann’s theory of defense was that he lacked the
intent to kill and that, therefore, he could only have been found
guilty of manslaughter. He claims that the step instruction vio-
lated his due process rights because it did not allow the jury to
consider his theory. The determination of whether procedures
afforded an individual comport with constitutional require-
ments for procedural due process presents a question of law.
State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009). on
questions of law, a reviewing court has an obligation to reach
its own conclusions independent of those reached by the lower
courts. Id.
In State v. Goodwin, supra, we recently addressed an argu-
ment similar to bormann’s argument. We agreed with other
courts which have held that so-called acquittal first step
instructions are not constitutionally deficient. As with State v.
Goodwin, supra, the step instruction given in this case did not
prevent the jury from considering the critical issue of whether
bormann had formed an intent to kill when he fired the fatal
shot. bormann was not precluded from offering evidence to
support his theory of defense, nor was his counsel restricted
from arguing that bormann did not have the intent to kill
and should therefore be found guilty of the lesser offense
of manslaughter.
There was no prejudice to bormann when the jury acquitted
him of first degree murder. Pursuant to the step instruction,
the jury was then required to consider whether the State had
proved all the elements of second degree murder. once the
jury found that the State had proved each element of second
degree murder beyond a reasonable doubt, bormann’s defense
of manslaughter was no longer relevant. The jury found that
bormann intentionally killed Williams. The step instruction did
not violate bormann’s constitutional right to present a com-
plete defense. It was perfectly logical for the jury to conclude
334 	279 NEbrASkA rEPorTS

that when bormann pointed and fired his high-powered rifle at
Williams, he possessed the intent to kill.
VI. CoNCLUSIoN
The trial court did not err in admitting bormann’s statements
into evidence or in its instructions to the jury. The convictions
and sentences are affirmed.
affirmed.
koCoNTES v. mcqUAID 	335
Cite as 279 Neb. 335
loNNie l. kocoNteS, appellaNt, v.
SeaN k. mc Q uaid aNd edWard t.
buJaNoWSki , appelleeS.
778 N.W.2d 410
Filed January 29, 2010. 	No. S-09-235.
1. Libel and Slander. Whether a communication is privileged by reason of its char-
acter or the occasion on which it was made is a question of law.
2. Appeal and Error. An appellate court resolves questions of law independently of
the determination reached by the court below.
3. Pleadings: Appeal and Error. An appellate court reviews de novo a lower
court’s dismissal of a complaint for failure to state a claim.
4. Pretrial Procedure: Appeal and Error. on appellate review, decisions regarding
discovery are generally reviewed under an abuse of discretion standard.
5. Judges: Words and Phrases. A judicial abuse of discretion exists when reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition.
6. Rules of the Supreme Court: Pleadings. Dismissal under Neb. Ct. r. Pldg.
§ 6-1112(b)(6) should be granted only in the unusual case in which a plaintiff
includes allegations that show on the face of the complaint that there is some
insuperable bar to relief.
7. Pleadings: Appeal and Error. When analyzing a lower court’s dismissal of a
complaint for failure to state a claim, an appellate court accepts the complaint’s
factual allegations as true and construes them in the light most favorable to
the plaintiff.
8. Libel and Slander. An absolutely privileged communication is one for which, by
reason of the occasion on which it was made, no remedy exists in a civil action
for libel or slander.
9. ____. Absolute privilege attaches to defamatory statements made incident to, and
in the course of, judicial or quasi-judicial proceedings if the defamatory matter
has some relation to the proceedings.