State v. Goodwin

CONCLUSION
We find that based on the predicate offense of intentional
assault, the evidence was sufficient to support the trial court’s
judgment that Tucker was guilty of use of a weapon to com-
mit a felony. There being no further issues raised by Tucker
in his petition for further review, we affirm the judgment of
the Court of Appeals, which affirmed the judgment of the
trial court.
A ffirmed.
STATe v. gOOdWIN 	945
Cite as 278 Neb. 945
StAte of NebrASkA, Appellee , v.
JordAN m. G oodwiN, AppellANt.
774 N.W.2d 733
Filed November 20, 2009. 	No. S-08-1159.
1. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and Error. A
trial court’s denial of a motion to transfer a pending criminal proceeding to the
juvenile court is reviewed for an abuse of discretion.
2. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Words and Phrases.
The district court and the separate juvenile court have concurrent jurisdiction over
felony prosecutions of a juvenile, defined as a person who is under the age of 18
at the time of the alleged criminal act.
3. Courts: Juvenile Courts: Jurisdiction. In determining whether a case should
be transferred to juvenile court, a court should consider those factors set forth in
Neb. Rev. Stat. § 43-276 (Reissue 2004). In order to retain the proceedings, the
court does not need to resolve every factor against the juvenile; moreover, there
are no weighted factors and no prescribed method by which more or less weight
is assigned to each specific factor. It is a balancing test by which public protec-
tion and societal security are weighed against the practical and nonproblematical
rehabilitation of the juvenile.
4. Courts: Juvenile Courts: Jurisdiction: Evidence. When a court’s basis for
retaining jurisdiction over a juvenile is supported by appropriate evidence, it can-
not be said that the court abused its discretion in refusing to transfer the case to
the juvenile court.
5. 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 suffice
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

to meet the constitutional standards, however, is a question of law, which an
appellate court reviews independently of the trial court’s determination.
6. Miranda Rights: Waiver. Miranda rights can be waived if the suspect does so
knowingly and voluntarily.
7. ____: ____. A valid Miranda waiver must be voluntary in the sense that it was the
product of a free and deliberate choice and made with a full awareness of both
the nature of the right being abandoned and the consequences of the decision to
abandon it.
8. ____: ____. In determining whether a Miranda waiver is knowingly and vol-
untarily 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.
9. Miranda Rights: Right to Counsel. In order to require cessation of custodial
interrogation, the subject’s invocation of the right to counsel must be unambig-
uous and unequivocal.
10. 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.
11. Confessions: Proof: Police Officers and Sheriffs. The prosecution has the bur-
den to prove by a preponderance of the evidence that incriminating statements by
the accused were voluntarily given and not the product of coercion. In making
this determination, a totality of the circumstances test is applied, and 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. An additional factor to consider is whether the suspect is a minor, but
this factor is not determinative.
12. Confessions: Police Officers and Sheriffs. Coercive police activity is a neces-
sary predicate to a finding that a confession is not voluntary.
13. Confessions. The confession of an accused may be involuntary and inadmissible
if obtained in exchange for a promise of leniency.
14. Confessions: Police Officers and Sheriffs. Under certain circumstances, a prom-
ised benefit might be inferred from an officer’s statement to an accused, if such
an inference is reasonable. In any circumstance, the benefit offered to a defendant
must be definite and must overbear his or her free will in order to render the
statement involuntary.
15. ____: ____. Mere advice or exhortation by the police that it would be better for
the accused to tell the truth, when unaccompanied by either a threat or promise,
does not make a subsequent confession involuntary.
16. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
17. Judgments: Appeal and Error. On questions of law, a reviewing court has an
obligation to reach its own conclusions independent of those reached by the
lower courts.
18. Jury Instructions: Lesser-Included Offenses. Step instructions which require
consideration of the most serious crime charged before consideration of lesser-
included offenses are not erroneous.
946 	278 NebRASkA RePORTS

Appeal from the district Court for douglas County: J ruSSell
derr, Judge. Affirmed.
Thomas C. Riley, douglas County Public defender, for
appellant.
Jon bruning, Attorney general, and erin e. Tangeman for
appellee.
H eAvicAN, 	c.J., 	wriGHt, 	coNNolly, 	G errArd, 	StepHAN,
mccormAck , and miller-lermAN, JJ.
StepHAN, J.
After giving a statement to police in which he admitted fir-
ing shots which killed a 6-year-old girl, Jordan M. goodwin
was charged in the district court for douglas County with
first degree murder and use of a firearm in the commission of
a felony. goodwin was 14 years 3 months of age at the time
of the shooting. The district court denied goodwin’s motion
to transfer his case to juvenile court and goodwin’s motion
to suppress a statement he gave to police. goodwin was tried
before a jury. His defense was that he fired the fatal shots,
but that he did so without the intent to kill and was therefore
guilty only of manslaughter. After the jury received a step
instruction which permitted it to find goodwin guilty of first
degree murder, guilty of second degree murder, guilty of man-
slaughter, or not guilty, the jury returned a verdict of guilty of
second degree murder. The jury also found goodwin guilty of
the related weapons charge. The court entered judgment on the
convictions and sentenced goodwin to 50 to 50 years’ impris-
onment on the second degree murder conviction and to a con-
secutive term of 10 to 10 years’ imprisonment on the weapons
charge, with credit given for time served. This is goodwin’s
direct appeal.
I. bACkgROUNd
The fatal shooting occurred in the late afternoon of October
5, 2007, outside an Omaha residence. The exact circumstances
of the shooting were disputed at trial. generally, however, the
record shows that on the day of the shooting, goodwin, who
STATe v. gOOdWIN 	947
Cite as 278 Neb. 945

had previously run away from an enhanced treatment group
home where he had been placed following a juvenile court
delinquency adjudication, was living in a rented duplex with
two adults to whom he was not related. All three sold drugs out
of the residence.
earlier in the afternoon of the shooting, goodwin was
involved in an argument with Maya Mack in the presence
of several other persons who were gathered in a garage near
Mack’s home. At one point during the argument, goodwin
pointed a handgun in Mack’s direction. Mack told him not
to point the gun at her unless he planned to use it, and a wit-
ness to the argument told Mack not to worry because the gun
was not loaded. Mack then threw a container of spray paint
at goodwin. After Mack left the gathering, goodwin told
another person who was present that he needed ammunition for
the handgun.
Later that afternoon, Mack was driven by her stepsister,
Alexis Holford, to a home located in Mack’s neighborhood for
the purpose of buying marijuana. Mack’s friend brianna Russ
and 6-year-old Alazia Alford were also passengers in the vehi-
cle driven by Holford. As Holford’s vehicle arrived, a vehicle
driven by Michael Coleman, in which goodwin and another
person were passengers, pulled out of a parking space behind
the house and parked nearby. Holford parked in the vacated
parking space, and Mack and Russ exited the vehicle and began
walking toward the rear entrance of the house. As she walked,
Mack shouted something to goodwin and Coleman, who were
still in their vehicle. Moments later, Mack and Russ heard
gunfire, and Mack turned to see goodwin standing outside
the vehicle and shooting at them. both women were struck by
gunshots, Russ in the left leg and Mack in the left arm. Neither
was seriously injured. Holford, who was still seated in the
vehicle, also observed goodwin shooting. Immediately after
the shots were fired, Coleman and goodwin left the scene in
the vehicle driven by Coleman.
At least two of the shots fired by goodwin entered the
rear window of the vehicle which Mack and Russ had exited,
striking and killing Alford. The record generally reflects that
948 	278 NebRASkA RePORTS

goodwin did not know that Alford was in the vehicle at the
time of the shooting. before giving her own statement to
police, Russ called goodwin and informed him that he had
“killed the little girl.” He responded that he had not intended
to do so.
Additional background information will be included in our
discussion of each of goodwin’s assignments of error.
II. ANALYSIS
1. motioN to trANSfer to JuveNile court
(a) Additional background
Shortly after charges were filed, goodwin filed a motion
requesting the district court to waive jurisdiction and transfer
the case to the separate juvenile court. The district court con-
ducted an evidentiary hearing on the motion. The evidence
presented at that hearing reflects that goodwin was born
on June 23, 1993. In June 2004, he was charged in juvenile
court with third degree arson, a misdemeanor, and placed on
juvenile diversion. In 2006, after he was charged in juvenile
court with disorderly conduct, goodwin was referred for a
comprehensive child and adolescent assessment, which was
conducted in October 2006 by Visinet, Inc. The evaluators
noted that goodwin had an extensive history of behavior
problems in school and at home, where he lived with his
grandmother. He admitted use of alcohol on an episodic basis
and daily use of marijuana. The evaluators recommended
therapeutic foster care placement, a regular substance abuse
education course, and placement in an alternative school
program due to his “history of aggressive and noncompliant
behavior at school.”
goodwin was reevaluated by Visinet in March 2007 after
being charged with use of a weapon to commit a felony and
discharge of a firearm at an occupied building. At that time,
goodwin was being held at the douglas County Youth Center.
evaluators 	recommended 	that 	goodwin 	participate 	“in 	an
enhanced treatment group home program that will address his
behavioral concerns while providing him with increased struc-
ture and ongoing supervision.” The Office of Juvenile Services
STATe v. gOOdWIN 	949
Cite as 278 Neb. 945

(OJS) took custody of goodwin and placed him in a group
home, where he received individual and group therapy, saw a
psychologist, and received chemical dependency counseling.
On two occasions, goodwin did not return to the group home
after receiving weekend passes, requiring issuance of capias
warrants to secure his return.
On approximately September 5, 2007, goodwin again ran
away from the group home. After this, a group home therapist
noted that goodwin’s whereabouts were unknown and that
he “will need a locked facility until he is ready to positively
function in the community once again. He will also need to be
checked for chemical abuse.”
On September 18, 2007, goodwin was apprehended on a
shoplifting charge and placed in a juvenile youth center in
Council bluffs, Iowa, pending transport back to Nebraska.
during transport on September 21, goodwin told the trans-
portation officer that he needed to use the restroom; when he
was allowed to do so, he escaped. goodwin’s OJS caseworker
reestablished contact with him after his arrest following the
shooting, and she saw him monthly at the douglas County
Youth Center, where he was held. She testified that goodwin
was “[u]nfriendly” and “very rude and disrespectful” during
these visits and that he blamed her for the fatal shooting.
grady Porter, the chief deputy probation officer in douglas
County, testified that when a juvenile is adjudicated in a delin-
quency case, he or she can be placed on probation, placed with
the department of Health and Human Services, placed with
OJS, or committed to a secure juvenile correctional facility.
Porter testified that commitment to a secure facility is for an
indefinite period and that the longest stay in such a facility
that he was aware of was approximately 18 months. Porter was
unaware of any facility that would accept a juvenile adjudi-
cated of first or second degree murder.
In its written order denying goodwin’s motion to transfer,
the district court found, after examining all the relevant fac-
tors, that goodwin’s contacts with the juvenile system had not
resulted in his rehabilitation and that the best interests of the
public required keeping him in custody beyond the period of
his minority.
950 	278 NebRASkA RePORTS

(b) Assignment of error and
Standard of Review
[1] goodwin contends that the district court erred in denying
his motion to transfer his case to the separate juvenile court.
A trial court’s denial of a motion to transfer a pending crimi-
nal proceeding to the juvenile court is reviewed for an abuse
of discretion.1
(c) disposition
[2] The district court and the separate juvenile court have
concurrent jurisdiction over felony prosecutions of a juvenile,
defined as a person who is under the age of 18 at the time of the
alleged criminal act.2 When a felony charge against a juvenile
is filed in district court, the juvenile may file a motion request-
ing that court to waive its jurisdiction to the juvenile court for
further proceedings under the Nebraska Juvenile Code.3 The
district court “shall” transfer the case unless a sound basis
exists for retaining jurisdiction.4 The burden of proving a sound
basis for retention lies with the State.5
At the time the district court considered goodwin’s motion,
it was statutorily required to consider the following factors:
(1) The type of treatment such juvenile would most likely
be amenable to; (2) whether there is evidence that the
alleged offense included violence or was committed in
an aggressive and premeditated manner; (3) the motiva-
tion for the commission of the offense; (4) the age of the
juvenile and the ages and circumstances of any others
involved in the offense; (5) the previous history of the
juvenile, including whether he or she had been convicted
of any previous offenses or adjudicated in juvenile court,
1 State v. Jones, 274 Neb. 271, 739 N.W.2d 193 (2007); State v. Reynolds,
247 Neb. 608, 529 N.W.2d 64 (1995).
2 Neb. Rev. Stat. §§ 43-245(4) and 43-247 (Cum. Supp. 2006).
3 Neb. Rev. Stat. §§ 43-261 (Reissue 2004) and 29-1816 (Reissue 1995);
State v. Phinney, 235 Neb. 486, 455 N.W.2d 795 (1990).
4 §§ 43-261 and 29-1816. See, also, State v. Doyle, 237 Neb. 60, 464
N.W.2d 779 (1991).
5 State v. Doyle, supra note 4.
STATe v. gOOdWIN 	951
Cite as 278 Neb. 945

and, if so, whether such offenses were crimes against the
person or relating to property, and other previous history
of antisocial behavior, if any, including any patterns of
physical violence; (6) the sophistication and maturity of
the juvenile as determined by consideration of his or her
home, school activities, emotional attitude and desire to
be treated as an adult, pattern of living, and whether he or
she has had previous contact with law enforcement agen-
cies and courts and the nature thereof; (7) whether there
are facilities particularly available to the juvenile court for
treatment and rehabilitation of the juvenile; (8) whether
the best interests of the juvenile and the security of the
public may require that the juvenile continue in secure
detention or under supervision for a period extending
beyond his or her minority and, if so, the available alter-
natives best suited to this purpose; (9) whether the victim
agrees to participate in mediation; (10) whether there is a
juvenile pretrial diversion program established pursuant
to sections 43-260.02 to 43-260.07; and (11) such other
matters as the county attorney deems relevant to his or
her decision.6
[3] In order to retain the proceedings, the court does not
need to resolve every factor against the juvenile; moreover,
there are no weighted factors and no prescribed method by
which more or less weight is assigned to each specific factor.7
It is a balancing test by which public protection and societal
security are weighed against the practical and nonproblematical
rehabilitation of the juvenile.8
In this case, the district court issued a 12-page order explain-
ing its consideration and weighing of various factors set forth
in § 43-276. The court noted that goodwin had been in the
juvenile court system for several years and that treatment
efforts had been unsuccessful. It found that there was some
evidence the shooting was premeditated and that the evidence
6 Neb. Rev. Stat. § 43-276 (Reissue 2004).
7 State v. Jones, supra note 1.
8 Id.
952 	278 NebRASkA RePORTS

showed that goodwin intended to shoot at Mack. Although the
court considered the fact that goodwin was only 14 years old
at the time of the offense, it also found that he had “significant
contacts” with the juvenile court and that his educational his-
tory was “replete with violent incidents.” It expressly found
that “[e]fforts at treatment have been ignored.”
The district court also found that goodwin had “demon-
strated that he desires to live on his own and on his own terms.”
The court found that based on goodwin’s unsuccessful reha-
bilitation and supervision within the juvenile system, it did not
appear that he could be rehabilitated prior to reaching the age
of 19, when juvenile court jurisdiction would end. based on
its consideration of all the § 43-276 factors, the district court
refused to transfer the proceeding to juvenile court.
In this appeal, goodwin does not argue that any of the dis-
trict court’s findings were factually incorrect. Instead, he chal-
lenges the weighing process employed by the court in reaching
its conclusion. He argues that the evidence before the court
suggested manslaughter, not murder, and that the State failed
to present evidence that goodwin was not amenable to further
treatment which could be provided through the juvenile court.
goodwin contends the district court should have afforded
greater weight to the facts that he has lacked parental guidance
and support throughout his life and that he has significant men-
tal health and substance abuse issues. goodwin argues that the
only factor weighing against transfer to juvenile court was the
violent nature of the charged offense.
[4] We do not consider lightly goodwin’s youth and his dis-
advantaged upbringing. but neither can we ignore the violent
nature of the crime, goodwin’s previous history of violent and
aggressive behavior, and his failure to respond positively to
corrective treatment offered through the juvenile justice system
prior to the shooting. When a court’s basis for retaining juris-
diction over a juvenile is supported by appropriate evidence, it
cannot be said that the court abused its discretion in refusing to
transfer the case to the juvenile court.9 because there is ample
evidence to support each of the findings which led the district
9 State v. Reynolds, supra note 1.
STATe v. gOOdWIN 	953
Cite as 278 Neb. 945

court to deny goodwin’s motion to transfer, we cannot and do
not conclude that it abused its discretion.
2. StAtemeNt to police
(a) Additional background
At approximately 8 p.m. on the day of the shooting, goodwin,
accompanied by his grandmother, arrived at the Omaha central
police station and asked to speak to an officer. det. Christopher
Perna had received information about the homicide and was
aware that witnesses had identified goodwin as the shooter.
Perna and det. doug Herout took goodwin and his grand-
mother to an interview room. The room was approximately
8 by 12 feet in size with one door and no windows. A sign
outside the room stated that the room was subject to audio and
video recording.
goodwin and his grandmother were left alone in the room
for approximately 6 minutes. The detectives then entered and
began speaking with goodwin and his grandmother. The inter-
view was videotaped. goodwin’s grandmother told the detec-
tives that she was his legal guardian. Prior to interviewing
goodwin, Perna used an Omaha Police department form to
advise goodwin of his Miranda rights. The detectives directed
the questions from the rights advisory form to goodwin, and
he answered. When the officers informed goodwin that he had
the right to an attorney, his grandmother identified goodwin’s
attorney by name and stated that she would need to call the
attorney, but neither she nor goodwin requested that the attor-
ney be present. No other mention of an attorney was made, and
both goodwin and his grandmother stated they were willing to
talk to the officers.
goodwin originally told the officers that he generally stayed
to himself and had no friends. Perna told him to either “be
straight” with them or say he could not answer a question.
Perna stated that he knew a lot of the answers to his questions
already, so he would know when goodwin was being honest.
goodwin then said that he had been at a shopping mall that
day, alone, buying shoes and shirts. He said that after leav-
ing the mall, he visited a girl whom he refused to identify.
The officers asked why goodwin thought he was there for
954 	278 NebRASkA RePORTS

questioning. He replied that his grandmother had told him he
was accused of murder and that he was “surprised.” The offi-
cers told him that his name had come up in the investigation
and that someone had identified him as the shooter. They said
there was a “good chance” there was no intent to kill the child,
that the shooter was just intending to send a message, and that
the death was a “tragic accident.” goodwin almost immediately
began crying and said that he just wanted to shoot in the air to
scare Mack and Russ and that he did not mean to shoot at the
car. At that point, his grandmother asked to stop the interview,
and it was stopped.
goodwin filed a pretrial motion to suppress the statement
he gave to the police. He argued that the statement was inad-
missible because it was obtained without a voluntary waiver
of his right to counsel and was the product of police coercion
and inducement. After conducting an evidentiary hearing, the
district court denied the motion. The videotaped statement was
received in evidence at trial over goodwin’s objection and pub-
lished to the jury.
(b) Assignments of error and
Standard of Review
goodwin contends that the district court erred in receiving
his statement in evidence, because (1) he had not made a know-
ing, voluntary, and intelligent waiver of his right to counsel and
his privilege against self-incrimination and (2) the statement
was not voluntary, but, rather, was a product of police coercion
and inducements of leniency.
[5] 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,10 an appel-
late 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 suffice to meet
the constitutional standards, however, is a question of law,
10 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. ed. 2d 694
(1966).
STATe v. gOOdWIN 	955
Cite as 278 Neb. 945

which an appellate court reviews independently of the trial
court’s determination.11
(c) disposition
(i) Did Goodwin Voluntarily Waive His Miranda
Rights Before Making His Statement?
In Miranda v. Arizona,12 the Supreme Court held that
authorities must employ procedural safeguards during a cus-
todial interrogation to protect a suspect’s privilege against
self-incrimination. Specifically, authorities must advise an indi-
vidual in custody that he has the right to remain silent and the
right to an attorney.13 In its order overruling goodwin’s motion
to suppress, the district court noted the State’s argument that
goodwin was not in custody at the time of the interview, but it
did not address this issue, because it found that goodwin had
waived his Miranda rights. On appeal, the State does not argue
that goodwin was not in police custody at the time of his state-
ment. Accordingly, we assume he was in custody and focus our
review on the waiver issue.
[6-8] Miranda rights can be waived if the suspect does so
knowingly and voluntarily.14 A valid Miranda waiver must be
voluntary in the sense that it was the product of a free and
deliberate choice and made with a full awareness of both the
nature of the right being abandoned and the consequences of
the decision to abandon it.15 In determining whether a waiver
is knowingly and voluntarily made, a court applies a totality
of the circumstances test.16 Factors to be considered include
the suspect’s age, education, intelligence, prior contact with
authorities, and conduct.17
11 State v. Hilding, ante p. 115, 769 N.W.2d 326 (2009); State v. Rogers, 277
Neb. 37, 760 N.W.2d 35 (2009).
12 Miranda v. Arizona, supra note 10.
13 Id.; In re Interest of C.H., 277 Neb. 565, 763 N.W.2d 708 (2009).
14 State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).
15 Id., citing Colorado v. Spring, 479 U.S. 564, 107 S. Ct. 851, 93 L. ed. 2d
954 (1987).
16 See State v. Walker, supra note 14.
17 Id.
956 	278 NebRASkA RePORTS

based upon principles articulated by the U.S. Supreme
Court in In re Gault,18 goodwin argues that the district court
did not adequately consider the significance of his youth in
determining that he voluntarily waived his rights prior to his
inculpatory statement to police. In In re Gault, the Court held
that constitutional procedural safeguards, including the privi-
lege against self-incrimination and the right to counsel, are
applicable in juvenile delinquency proceedings which may
result in commitment to an institution in which the juvenile’s
freedom is curtailed. The Court noted that “admissions and
confessions of juveniles require special caution,”19 and fur-
ther stated:
If counsel was not present for some permissible reason
when an admission was obtained, the greatest care must
be taken to assure that the admission was voluntary, in the
sense not only that it was not coerced or suggested, but
also that it was not the product of ignorance of rights or
of adolescent fantasy, fright or despair.20
goodwin argues that because of his youth, police should have
conducted further inquiries beyond the familiar Miranda warn-
ings to ensure that goodwin fully understood the potential
consequences of waiving his rights and making a statement to
police about his involvement in the shooting. goodwin urged
the trial court and now this court to adopt the following posi-
tion taken by the American bar Association:
“Youth should not be permitted to waive the right to
counsel without consultation with a lawyer, and only after
a full inquiry by a court into the youth’s comprehension
of that right and his or her capacity to make the choice
intelligently and understandingly. Any waiver of counsel
must be in writing and made of record.”21
This court has utilized the “totality of the circumstances test”
to determine whether there has been a voluntary and effective
18 In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. ed. 2d 527 (1967).
19 Id., 387 U.S. at 45.
20 Id., 387 U.S. at 55.
21 brief for appellant at 27-28.
STATe v. gOOdWIN 	957
Cite as 278 Neb. 945

waiver of Miranda rights by adults22 and juveniles23 alike. We
have employed the same test in the different but related context
of determining whether a juvenile has knowingly and intelli-
gently waived the right to counsel in juvenile proceedings.24 In
another related context, we have noted that while the minority
of an accused is a factor to consider in determining the volun-
tariness of a confession, it is not determinative.25 because the
age, education, and intelligence of an accused are included
within the totality of circumstances which a court must assess
in determining whether there has been a knowing and voluntary
waiver of Miranda rights prior to a custodial interrogation, a
court necessarily exercises “special caution” with respect to
juveniles.26 Accordingly, we decline to modify the totality of
the circumstances test for determining the voluntariness of
Miranda waivers by minors.
The district court’s findings of historical fact are not clearly
erroneous; they are fully supported by the record. goodwin
came to the police station with his grandmother, who was also
his legal guardian, after she learned that he had been impli-
cated in the shooting and advised him to cooperate with the
investigation. After obtaining preliminary information from
goodwin, Perna explained that because there were accusa-
tions directed at goodwin and they were in a police facility,
he needed to advise goodwin of his rights before asking fur-
ther questions. Perna asked goodwin if he understood what
Miranda rights were, and goodwin acknowledged that he
did. before questioning, goodwin further acknowledged his
understanding that Perna was a police officer, that goodwin
had a right to remain silent and not answer questions, that
anything goodwin said could be used against him in court,
that goodwin had a right to consult with a lawyer and have a
lawyer present during questioning, and that if goodwin could
22 See, e.g., State v. Walker, supra note 14.
23 State v. McDonald, 195 Neb. 625, 240 N.W.2d 8 (1976).
24 In re Interest of Dalton S., 273 Neb. 504, 730 N.W.2d 816 (2007).
25 State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000).
26 See In re Gault, supra note 18.
958 	278 NebRASkA RePORTS

not afford a lawyer, one would be appointed for him. After
receiving these advisements and indicating that he understood
them, goodwin agreed to speak to police. There is nothing in
the record to indicate that goodwin was impaired by drugs
or alcohol at the time of the questioning. As noted above,
goodwin’s prior contacts with law enforcement authorities are
well-documented, although the record does not reflect whether
he was ever previously advised of his Miranda rights or sub-
jected to custodial interrogation.
[9] In order to require cessation of custodial interrogation,
the subject’s invocation of the right to counsel must be unambig-
uous and unequivocal.27 Statements such as “‘[m]aybe I should
talk to a lawyer’”28 or “‘I probably should have an attorney’”29
do not meet this standard. goodwin made no statement invok-
ing his right to counsel. We conclude that his grandmother’s
comment regarding goodwin’s attorney did not constitute an
unambiguous and unequivocal invocation of goodwin’s right
to counsel on his behalf. based upon our independent review
of the totality of the circumstances, we likewise conclude that
goodwin knowingly and voluntarily waived his Miranda rights
before talking to police about the shooting.
(ii) Was Goodwin’s Statement to
Police Voluntary?
[10-12] 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.30 The prosecution
has the burden to prove by a preponderance of the evidence that
incriminating statements by the accused were voluntarily given
and not the product of coercion.31 In making this determina-
tion, a totality of the circumstances test is applied, and factors
27 Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. ed. 2d 362
(1994); State v. Hilding, supra note 11.
28 Davis v. United States, supra note 27, 512 U.S. at 455.
29 State v. Hilding, supra note 11, ante at 117, 769 N.W.2d at 330.
30 In re Interest of Tyler F., 276 Neb. 527, 755 N.W.2d 360 (2008); State v.
Garner, supra note 25.
31 See id.
STATe v. gOOdWIN 	959
Cite as 278 Neb. 945

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.32 An
additional factor to consider is whether the suspect is a minor,
but this factor is not determinative.33 Coercive police activ-
ity is a necessary predicate to a finding that a confession is
not voluntary.34
The pertinent historical facts are essentially undisputed.
goodwin came to the police station with his grandmother, who
was seated next to him throughout the police questioning. Perna
told goodwin that his name had come up during the investiga-
tion and that he needed to “be straight” in answering ques-
tions about his activities that day. Several minutes later, after
goodwin had denied any involvement, Perna told him that a
witness had identified him as the shooter. Perna said he thought
there was a “good chance” that the shooter did not know there
was a child in the car and that he did not intend to kill her.
both officers characterized the event as a “tragic accident,” and
Herout stated, “No one means to kill an innocent kid.” At that
point, goodwin stated that he did not intend to shoot the girl in
the car and stated that it was an accident. His grandmother then
terminated the interview, which had lasted approximately 25 to
30 minutes. Prior to that time, goodwin had not requested that
the interview be stopped or indicated that he did not understand
what was taking place.
goodwin argues that the officers’ comments about the lack
of intent to kill and their characterization of the shooting as a
tragic accident were “‘minimizing’ tactics” which amounted
to an implicit promise that punishment would be less severe
if goodwin admitted his involvement.35 In rejecting this argu-
ment, the district court noted that the officers’ “reference to
the crime being an ‘accident’ was unaccompanied by any other
32 State v. Ray, 266 Neb. 659, 668 N.W.2d 52 (2003).
33 See id. See, also, State v. Garner, supra note 25; State v. Chojolan, 253
Neb. 591, 571 N.W.2d 621 (1997).
34 State v. Ray, supra note 32; State v. Garner, supra note 25.
35 brief for appellant at 33.
960 	278 NebRASkA RePORTS

express threats or promises and was made in the context of
a continued effort by the officers to urge [goodwin] to tell
the truth.”
[13-15] The confession of an accused may be involuntary
and inadmissible if obtained in exchange for a promise of
leniency.36 For example, in State v. Smith,37 we held that a
police officer’s statement that he would attempt to have the
case transferred to juvenile court if the 15-year-old defendant
cooperated with police was an inducement which rendered the
subsequent confession involuntary. No such promise of leni-
ency was expressly made in this case. but we have recognized
that under certain circumstances, a promised benefit might be
inferred from an officer’s statement to an accused, if such an
inference is reasonable.38 In any circumstance, “the benefit
offered to a defendant must be definite and must overbear his
or her free will in order to render the statement involuntary.”39
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.40
based upon our independent review, we conclude that no
implied promise of leniency can reasonably be inferred from
the questioning techniques utilized by the detectives. There
was no suggestion of any definite benefit which goodwin
could expect to receive in exchange for his statement. The
references to lack of intent and a “tragic accident” were
made in the context of the detectives’ efforts to persuade
goodwin to truthfully explain his involvement in the shoot-
ing. Although the record suggests that the detectives may have
been downplaying the circumstances as a technique to get
goodwin to tell the truth, this fact alone does not amount to
36 State v. Garner, supra note 25.
37 State v. Smith, 203 Neb. 64, 277 N.W.2d 441 (1979).
38 State v. Garner, supra note 25.
39 Id. at 50, 614 N.W.2d at 327. See, also, State v. Ray, supra note 32; State
v. Walker, 242 Neb. 99, 493 N.W.2d 329 (1992).
40 State v. Garner, supra note 25.
STATe v. gOOdWIN 	961
Cite as 278 Neb. 945

an implied promise of leniency or persuade us that goodwin’s
will was overborne.41
based upon our independent review of the historical facts as
determined by the district court, and which we find to be sup-
ported by the record, we conclude that goodwin’s statement to
police was voluntary and admissible at trial.
3. Step iNStructioNS
(a) Additional background
In the formal jury instructions, the jury was told that count I
of the information charged goodwin with first degree murder.
The jury was informed that under this count, it could find
goodwin (1) guilty of first degree murder, (2) guilty of second
degree murder, (3) guilty of manslaughter, or (4) not guilty.
One jury instruction set out the material elements the State
needed to prove beyond a reasonable doubt in order to convict
goodwin of first degree murder, e.g., an intentional killing
done purposely with deliberate and premeditated malice. It
then stated:
If you find from the evidence beyond a reasonable
doubt that each of the foregoing material elements . . .
is true, it is your duty to find [goodwin] guilty of the
crime of murder in the first degree done purposely and
with deliberate and premeditated malice, and you shall so
indicate by your verdict.
If, on the other hand, you find that the State has failed
to prove beyond a reasonable doubt any one or more of
the material elements . . . it is your duty to find [goodwin]
not guilty of the crime of murder in the first degree. You
shall then proceed to consider the lesser-included offense
of murder in the second degree . . . .
The instruction then set forth the material elements of second
degree murder, e.g., an intentional killing without premedi-
tation. It then stated:
The State has the burden of proving beyond a reason-
able doubt each and every one of the foregoing material
41 See id.
962 	278 NebRASkA RePORTS

elements for conviction of the crime of murder in the
second degree.
If you find from the evidence beyond a reasonable
doubt that each of the foregoing material elements . . .
is true, it is your duty to find [goodwin] guilty of the
crime of murder in the second degree done intentionally
but without premeditation, and you shall so indicate by
your verdict.
If, on the other hand, you find that the State has
failed to prove any one or more of the material elements
. . . it is your duty to find [goodwin] not guilty of the
crime of murder in the second degree. You shall then
proceed to consider the lesser-included offense of man-
slaughter . . . .
The jury instruction then set forth the material elements for
manslaughter, e.g., an unintentional killing while in the com-
mission of an unlawful act. goodwin objected to the giving of
this step instruction on the ground that it violated his right to
due process, but he did not request an alternative instruction.
The jury was also instructed on the doctrine of transferred
intent as follows: “When one attempts to kill a certain person
but by mistake or inadvertence kills a different person, the
crime, if any so committed, is the same as though the person
originally intended to be killed had been killed.”
during its deliberations, the jury sent a written question
to the trial judge, asking: “do we have to agree or disagree
una[n]imously on the presence of or lack of intent before mov-
ing on to the lesser count?” After consultation with counsel,
and with their concurrence, the judge submitted a supplemen-
tal jury instruction in response to the question, stating: “The
instructions that you have embody all of the law to be applied
in this case.”
(b) Assignment of error and
Standard of Review
[16,17] goodwin contends that the district court erred in giv-
ing the “acquittal first” step instruction to the jury, because it
deprived him of his due process right to have the jury consider
his defense to the charges. The determination of whether the
STATe v. gOOdWIN 	963
Cite as 278 Neb. 945

procedures afforded an individual comport with constitutional
requirements for procedural due process presents a question of
law.42 On questions of law, a reviewing court has an obligation
to reach its own conclusions independent of those reached by
the lower courts.43
(c) Resolution
[18] We have long held that step instructions which require
consideration of the most serious crime charged before con-
sideration of lesser-included offenses are not erroneous.44 We
have noted that such instructions provide “‘for a more logical
and orderly process for the guidance of the jury in its delib-
erations.’”45 goodwin contends that this practical justification
must yield to the principle that “[w]hether rooted directly in
the due Process Clause of the Fourteenth Amendment . . . or
in the Compulsory Process or Confrontation clauses of the
Sixth Amendment, . . . the Constitution guarantees crimi-
nal defendants ‘a meaningful opportunity to present a com-
plete defense.’”46 goodwin contends that the step instruction
deprived him of the right to present the defense that he fired
the shots without an intent to kill and was therefore guilty
only of manslaughter, because it required the jury to acquit
him of first and second degree murder before considering the
offense of manslaughter. He argues that just as an evidence
rule requiring exclusion of certain evidence may violate a
42 State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).
43 State v. Arterburn, 276 Neb. 47, 751 N.W.2d 157 (2008).
44 See, e.g., State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006); State
v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004); State v. Mowell, 267 Neb
83, 672 N.W.2d 389 (2003); State v. Buckman, 259 Neb. 924, 613 N.W.2d
463 (2000); State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), over-
ruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31
(1998).
45 State v. Jones, supra note 44, 245 Neb. at 828, 515 N.W.2d at 658, quoting
State v. Wussler, 139 Ariz. 428, 679 P.2d 74 (1984).
46 Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. ed. 2d 636
(1986), quoting California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81
L. ed. 2d 413 (1984).
964 	278 NebRASkA RePORTS

defendant’s constitutional right to a complete defense,47 the
“acquittal first” step instruction given in this case violated his
due process right to present his defense that he acted without
intent to kill.
In State v. Jones,48 we held that an “acquittal first” step
instruction similar to that given in this case did not prevent
the jury from considering the defendant’s contention that he
was guilty only of manslaughter. We reasoned that although
the jury’s final verdict must be unanimous, the instruction
did not require the jury, in its preliminary deliberation and
discussion, to unanimously decide that the defendant was
not guilty of a greater offense before considering a lesser-
included offense. In the years since Jones, courts in other
states have approved or disapproved the giving of “acquit-
tal first” step instructions based upon various statutory and
policy considerations,49 but we have been directed to no
case holding such instructions to be unconstitutional. The
Arizona Supreme Court has directed trial courts to abandon
the “acquittal first” instruction approved in State v. Wussler,50
which we cited with approval in Jones, in favor of an instruc-
tion which permits a jury to render a verdict on a lesser-
included offense if, after full and careful consideration of
the evidence, it is unable to reach agreement with respect to
the greater charged offense.51 but the court characterized this
change as “procedural in nature” and stated that “we remain
persuaded that the acquittal-first requirement does not violate
the United States or Arizona Constitutions.”52 Other courts
47 Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. ed. 2d
503 (2006).
48 State v. Jones, supra note 44.
49 See, e.g., Green v. State, 119 Nev. 542, 80 P.3d 93 (2003); State v. Mays,
158 N.C. App. 563, 582 S.e.2d 360 (2003); People v. Helliger, 96 N.Y.2d
462, 754 N.e.2d 756, 729 N.Y.S.2d 654 (2001).
50 State v. Wussler, supra note 45.
51 State v. LeBlanc, 186 Ariz. 437, 924 P.2d 441 (1996).
52 Id. at 439-40, 924 P.2d at 443-44.
STATe v. gOOdWIN 	965
Cite as 278 Neb. 945

have also held that “acquittal first” step instructions are not
constitutionally deficient.53
We reach the same conclusion. The step instruction did not
prevent the jury from considering the critical issue of whether
goodwin had formed an intent to kill when he fired the fatal
shots. Unlike the circumstances presented in Holmes v. South
Carolina,54 goodwin was not precluded from offering evidence
to support his theory of defense. Nor was his lawyer restricted
in any way from arguing that goodwin did not intend to kill
anyone and was therefore guilty of the lesser offense of man-
slaughter. In the end, the jury had to decide whether goodwin
acted with the requisite intent, and it was free to consider all
evidence bearing on that issue in its deliberations with respect
to first and second degree murder. The step instruction did
not violate goodwin’s constitutional right to present a com-
plete defense.
For completeness, we note goodwin’s argument that the step
instruction given in this case was based upon NJI Crim. 14.06
and that NJI2d Crim. 3.1, the current pattern instruction for
lesser-included offenses, does not utilize the language requir-
ing the jury to find a defendant not guilty of a greater offense
before considering a lesser offense. NJI2d Crim. 3.1 includes
a listing of the offenses which the jury is to consider and the
elements of each offense. It then instructs the jury:
You must separately consider in the following order
the crimes of (here insert crimes charged beginning with
the greatest and listing included crimes in sequence).
For the (here insert greatest crime) you must decide
whether the state proved each element beyond a reason-
able doubt. If the state did so prove each element, then
you must find the defendant guilty of (here insert great-
est crime) and [stop]. If you find that the state did not so
prove, then you must proceed to consider the next crime
in the list, the (here insert first lesser included). You must
53 See Catches v. United States, 582 F.2d 453 (8th Cir. 1978). See, also,
United States v. Moccia, 681 F.2d 61 (1st Cir. 1982); People v. Zwiers, 191
Cal. App. 3d 1498, 237 Cal. Rptr. 123 (1987).
54 Holmes v. South Carolina, supra note 47.
966 	278 NebRASkA RePORTS

proceed in this fashion to consider each of the crimes in
sequence until you find the defendant guilty of one of the
crimes or find (him, her) not guilty of all of them.55
Neither party requested that this instruction be given in this
case. Although we find no constitutional infirmity or other error
in the step instruction that was given, we conclude that NJI2d
Crim. 3.1 provides a clearer and more concise explanation of
the process by which the jury is to consider lesser-included
offenses, and we encourage the trial courts to utilize the current
pattern instruction in circumstances where a step instruction on
lesser-included homicide offenses is warranted.56
III. CONCLUSION
For the reasons discussed, we conclude that goodwin’s
assignments of error are without merit, and we affirm the judg-
ment of the district court.
A ffirmed.
55 NJI2d Crim. 3.1b.
56 See State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
STATe v. MACek 	967
Cite as 278 Neb. 967
StAte of NebrASkA, Appellee , v.
mArk A. mAcek , AppellANt.
774 N.W.2d 749
Filed November 20, 2009. 	No. S-08-1196.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
2. Collateral Attack: Jurisdiction. Collateral attacks on previous proceedings are
impermissible unless the attack is grounded upon the court’s lack of jurisdiction
over the parties or subject matter.
3. Sentences: Prior Convictions: Drunk Driving: Time. Under Neb. Rev. Stat.
§ 60-6,197.02(1)(a) (Reissue 2008), a conviction may be counted as a prior con-
viction for purposes of enhancement if it is for a violation that was committed
within the previous 12 years.
4. Sentences: Prior Convictions: Proof. In order to prove a prior conviction for
purposes of sentence enhancement, the State has the burden to prove the fact of