State v. Seberger

CONCLUSION
We conclude that the evidence supported Fuller’s conviction,
including the finding that “sexual contact,” as defined under the
relevant statutes, occurred. The district court did not err when
it affirmed the county court’s rulings denying Fuller’s motions
based on insufficient evidence and affirmed his conviction. We
therefore affirm Fuller’s conviction and sentence as affirmed by
the district court.
A ffirmed.
StAte of NebrASkA, Appellee , v.
frANciS l. Seberger , AppellANt.
779 N.W.2d 362
Filed March 19, 2010. 	No. S-09-476.
1. Motions to Suppress: Confessions: Constitutional Law: Appeal and Error. In
reviewing a motion to suppress a confession based on the claimed involuntariness
of the statement, 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 to meet the constitutional standards, how-
ever, is a question of law, which an appellate court reviews independently of the
trial court’s determination.
2. Confessions. To be admissible, a statement or confession of an accused must
have been freely and voluntarily made.
3. ____. A defendant who objects that a statement was involuntary is entitled to a
hearing in which both the underlying factual issues and the voluntariness of the
statement are actually and reliably determined.
4. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective
assistance of counsel raised for the first time on direct appeal do not require
dismissal ipso facto; the determining factor is whether the record is sufficient to
adequately review the question.
Appeal from the District Court for Sarpy County: WilliAm
b. ZASterA, Judge. Affirmed.
James R. Mowbray and Jeffery A. Pickens, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
576 	279 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

H eAvicAN, 	c.J., 	WrigHt, 	coNNolly, 	gerrArd, 	StepHAN,
mccormAck , and miller-lermAN, JJ.
gerrArd, J.
Francis L. Seberger was convicted of first degree murder
in connection with the death of his wife, Debbie Seberger
(Debbie), and sentenced to life imprisonment. This is Seberger’s
direct appeal from his conviction and sentence. The primary
issue in this appeal is whether the trial court erroneously failed
to make specific findings regarding the voluntariness of some
of Seberger’s statements to police.
BACkGROUND
Taken in the light most favorable to the State,1 the record
establishes the following sequence of events, which began
on May 31, 1997: Seberger and Debbie were estranged, and
Seberger had called Debbie’s residence several times that eve-
ning. Seberger went to a convenience store and filled a can with
gasoline. A short time later, two calls were received by the 911
emergency dispatch service. The first was from Debbie, who
reported that someone was trying to force entry into her resi-
dence. The second was from Debbie’s neighbor, who reported
a fire at Debbie’s residence.
Police and fire department personnel responded, and police
encountered Seberger driving away from the residence when
they arrived. A fire in the house was quickly suppressed.
Debbie was found in the front yard with severe burns, and
Seberger made several angry remarks toward her. Seberger had
also been burned. Investigators determined that the fire was
caused by the ignition of a flammable liquid, such as gaso-
line, and gasoline was found on Debbie’s clothing, Seberger’s
clothing, and carpeting from the residence. Debbie told a nurse
that someone had poured gasoline on her. During subsequent
interviews with law enforcement, Seberger admitted that he
had sprayed Debbie with gasoline, although he did not clearly
admit to igniting the gasoline.
1 See State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
STATe v. SeBeRGeR 	577
Cite as 279 Neb. 576

Debbie died on July 1, 1997, as a result of her burn inju-
ries. Seberger was charged by information with arson in the
first degree and first degree murder, on both premeditated and
felony murder theories. Seberger filed a motion to suppress
statements that he had made in the ambulance and hospital
on the night of the incident, in an interview with police at
the hospital on June 2, and in an interview with police and
fire investigators on June 4. Specifically, Seberger asked for
a hearing “for the purpose of determining which, if any, of
his pretrial admissions or statements were given voluntarily,
intelligently, or understandingly” and to suppress “any and
all pretrial statements, admissions, [or] confessions . . . which
were not given voluntarily, intelligently, or understandingly,
or which were obtained in violation of his rights under
the Fourth, Fifth or Fourteenth Amendments to the United
States Constitution.”
A hearing was held, and the trial court sustained Seberger’s
motion in part, and overruled it in part. The court suppressed
the statements Seberger made on May 31, 1997, “finding that
in the totality of the circumstances, Miranda wasn’t given
and that the statements were not freely and voluntarily and
intelligently made, so those [statements] will be suppressed.”
But with respect to the later statements, the court found that
“Miranda was given, that the waiver was freely, voluntarily and
intelligently made, and those statements are not suppressed.”
The court made a journal entry to much the same effect, find-
ing that on May 31, “the required constitutional rights were
not afforded [Seberger] nor where [sic] the statements freely,
voluntarily, or intelligently made,” but overruling the motion to
suppress the June 2 and 4 statements.
Seberger waived his right to a jury trial, and the case was
tried to the court. Consistent with its pretrial rulings, the court
overruled Seberger’s objections at trial to evidence of his June
2 and 4, 1997, statements to police. Seberger did not testify in
his own defense. Seberger asked the court to find him guilty
of manslaughter, not murder. Nonetheless, while Seberger was
found not guilty of arson, he was convicted of premeditated
first degree murder. After a capital sentencing hearing, Seberger
was sentenced to life imprisonment.
578 	279 NeBRASkA RePORTS

The State attempted to appeal from the sentencing panel’s
decision not to impose the death penalty, but we found that
the State had no statutory authority to do so and dismissed the
State’s appeal.2 Seberger filed a brief of appellee, through trial
counsel, but did not perfect an appeal of his own. Seberger
filed a motion for postconviction relief through new counsel.
The postconviction court found that Seberger had been denied
his right to a direct appeal by ineffective assistance of direct
appeal counsel and awarded Seberger a new direct appeal. This
is that appeal.
ASSIGNMeNTS OF eRROR
Seberger assigns, consolidated and restated, that
(1) the district court erred by failing to make a determina-
tion with respect to the voluntariness of Seberger’s June 2 and
4, 1997, statements to his interrogators, and for overruling
his objections when evidence and testimony concerning those
statements were received at trial, in violation of his rights
as guaranteed by the 5th and 14th Amendments to the U.S.
Constitution; and
(2) he was denied effective assistance of counsel because his
trial counsel (a) advised him to waive his right to a jury trial,
(b) advised him not to testify at trial, and (c) failed to offer
evidence that Debbie sold oil-based candles and had an inven-
tory of such candles that could have been the ignition source
of the fire.
STANDARD OF RevIeW
[1] In reviewing a motion to suppress a confession based
on the claimed involuntariness of the statement, 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,
which an appellate court reviews independently of the trial
court’s determination.3
2 See State v. Seberger, 257 Neb. 747, 601 N.W.2d 229 (1999).
3 See State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).
STATe v. SeBeRGeR 	579
Cite as 279 Neb. 576

ANALySIS
[2,3] Seberger’s first assignment of error is directed at the
trial court’s purported failure to rule on the voluntariness of
his June 2 and 4, 1997, statements to authorities. To be admis-
sible, a statement or confession of an accused must have been
freely and voluntarily made.4 And a defendant who objects that
a statement was involuntary is entitled to a hearing in which
both the underlying factual issues and the voluntariness of the
statement are actually and reliably determined.5
In this appeal, Seberger does not argue that his statements
were actually involuntary. Rather, he argues only that the trial
court failed to make the necessary finding that his statements
were voluntary, so the case should be remanded to the dis-
trict court for additional findings on voluntariness. He claims
that the trial court’s ruling addressed his Miranda rights,6 but
not voluntariness. And he argues that under State v. Kula,7
the court was required to determine whether his statements
were voluntary.
We find no merit to Seberger’s argument. First, we do not
agree with his interpretation of the trial court’s ruling on his
motion to suppress. The trial court’s focus on Miranda was
hardly inconsistent with a determination of whether the state-
ments were voluntary. It is a violation of the Due Process
Clause to use a defendant’s involuntary statement against him
at a criminal trial,8 while the constitutional guidelines estab-
lished by Miranda are intended to secure a defendant’s Fifth
Amendment right against self-incrimination.9 But the U.S.
4 State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on other
grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
5 See id.
6 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. ed. 2d 694
(1966).
7 State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000).
8 Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. ed. 2d 290
(1978).
9 Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. ed. 2d
405 (2000).
580 	279 NeBRASkA RePORTS

Supreme Court has explained that Miranda safeguards are
intended to ensure that
the police do not coerce or trick captive suspects into
confessing, to relieve the “‘inherently compelling pres-
sures’” generated by the custodial setting itself, “‘which
work to undermine the individual’s will to resist,’” and as
much as possible to free courts from the task of scrutiniz-
ing individual cases to try to determine, after the fact,
whether particular confessions were voluntary.10
Thus, while compliance with Miranda does not conclusively
establish the voluntariness of a subsequent confession, “cases
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 dictates of
Miranda are rare.”11 So the trial court’s discussion of whether
Seberger had been given Miranda warnings, and properly
waived them, was entirely relevant to evaluating the voluntari-
ness of Seberger’s statements.
And when the trial court’s ruling is read as a whole, it is
clear that the court considered and rejected Seberger’s chal-
lenge to the voluntariness of his statements. The U.S. Supreme
Court has explained that although a trial court’s conclusion
that a statement was voluntary must be clear from the record,
the U.S. Constitution does not require the court to write formal
findings of fact or write an opinion.12 Seberger’s motion, and
the arguments of counsel, obviously raised the question of vol-
untariness. And with respect to the May 31, 1997, statements
that the court did suppress, the court explained that it was con-
sidering “the totality of the circumstances whether those state-
ments were freely, voluntarily and intelligently made.” And
the court concluded both that “Miranda wasn’t given and that
10 Berkemer v. McCarty, 468 U.S. 420, 433, 104 S. Ct. 3138, 82 L. ed. 2d
317 (1984) (emphasis supplied).
11 Id., 468 U.S. at 433 n.20. Accord, Dickerson, supra note 9; U.S. v.
Guanespen-Portillo, 514 F.3d 393 (5th Cir. 2008).
12 See, Mincey, supra note 8; Sims v. Georgia, 385 U.S. 538, 87 S. Ct. 639,
17 L. ed. 2d 593 (1967).
STATe v. SeBeRGeR 	581
Cite as 279 Neb. 576

the statements were not freely and voluntarily and intelligently
made, so those [statements] will be suppressed.”
It is impossible to conclude that the trial court excluded the
May 31, 1997, statements because they were not voluntary, but
then forgot to consider the voluntariness of the June 2 and 4
statements. Instead, it is apparent that when the context of the
motion to suppress and suppression hearing are considered,
the court’s denial of the motion necessarily rejected Seberger’s
objection that his statements were not voluntary.13
Seberger also argues that the trial court’s ruling was insuf-
ficient because it did not make detailed findings of historical
fact. He correctly notes that in State v. Osborn,14 we stated that
even though no statute required an articulation of the factual
conclusions upon which the denial of a motion to suppress was
based, that did not mean that “other considerations” may not
require findings of fact.15 So, noting that “findings of fact may
be indispensible to a proper appellate review,”16 we held that
trial courts were to “articulate . . . their general findings when
denying or granting a motion to suppress.”17
But we also stated that the “degree of specificity required
will vary, of course, from case to case.”18 And we found in
Osborn that our review of the matter could proceed on the
record before us, concluding that there was no clear error in the
“factual findings and legal conclusions implicit in the district
court’s decision.”19
Obviously, for the reasons articulated in Osborn, it is better
practice for trial courts to articulate their findings of fact and
law completely, on the record. But Osborn does not require
reversal or remand of every case in which a trial court’s find-
ings could have been more complete. And more pertinent
13 See Mincey, supra note 8.
14 State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996).
15 Id. at 66, 547 N.W.2d at 145.
16 Id.
17 Id. at 67, 547 N.W.2d at 145.
18 Id.
19 Id.
582 	279 NeBRASkA RePORTS

to this case, Osborn plainly acknowledges that the extent to
which the trial court should articulate its findings is dependent
upon the circumstances of the case. In Osborn, the concern
we expressed was that “we might not know whether the trial
court rejected a defendant’s factual contentions or had acted on
some legal basis.”20 This was because in Osborn, at the hear-
ing on the motion to suppress, there were sharp conflicts in
the testimony and evidence regarding the circumstances of the
defendant’s interrogation.21
The same cannot be said in this case, where the circum-
stances of the interview were largely undisputed. Seberger has
directed us to no meaningful dispute regarding the historical
facts, nor is one apparent from the record. And whether those
facts suffice to meet constitutional standards is a question of
law.22 Under the circumstances, the trial court’s ruling was
sufficient, and our review of the record reveals no basis to dis-
agree with the trial court’s conclusion.
Nor does State v. Kula23 support Seberger’s position. In
Kula, the statements at issue had been made to a private citi-
zen, not law enforcement. Although the defendant challenged
the voluntariness of the statements, the trial court did not rule
on the issue, because it found that no hearing or determination
of voluntariness was required for statements made to private
citizens. But on appeal, we explained that to be admissible,
an accused’s statements to a private citizen must be voluntary.
So, we concluded that the trial court had erred in failing to
make a threshold ruling on the voluntariness of the defendant’s
statements.24 But the issue in Kula was not the sufficiency
of the trial court’s ruling on voluntariness—it was the trial
court’s clear decision, on the record, not to make a ruling on
voluntariness.25 And, as explained above, the court’s ruling on
20 Id.
21 See id.
22 See Goodwin, supra note 3.
23 See Kula, supra note 7.
24 See id.
25 See id. See, also, Sims, supra note 12.
STATe v. SeBeRGeR 	583
Cite as 279 Neb. 576

voluntariness was sufficient in this case.26 Therefore, we find
no merit to Seberger’s first assignment of error.
[4] Seberger’s second assignment of error involves claims
of ineffective assistance of trial counsel. Claims of ineffective
assistance of counsel raised for the first time on direct appeal
do not require dismissal ipso facto; the determining factor is
whether the record is sufficient to adequately review the ques-
tion.27 Seberger concedes that the record in this appeal is insuf-
ficient to evaluate his claims, and we agree. The State argues
that the record is sufficient to conclude that Seberger was not
prejudiced by his waiver of a jury trial, because Seberger’s
strategy of admitting to manslaughter was more likely to suc-
ceed at a bench trial, and the result of a jury trial would likely
have been the same.
But counsel’s advice to waive a jury trial can be the source
of a valid claim of ineffective assistance, not only when the
advice is unreasonable, but also when counsel interferes with
his or her client’s freedom to decide to waive a jury trial.28
even if we could conclude on this record that trial counsel’s
advice was reasonable, we cannot determine whether trial
counsel interfered with Seberger’s freedom to decide to waive
a jury trial. And the record is plainly insufficient to evaluate
the strategic choices implicated by Seberger’s other ineffec-
tive assistance claims. Therefore, we do not consider his final
assignment of error.
CONCLUSION
We find no merit to Seberger’s argument that the trial court
erroneously failed to consider the voluntariness of his June
2 and 4, 1997, statements. And the record is insufficient to
evaluate his claims of ineffective assistance of trial counsel. We
affirm Seberger’s conviction and sentence.
A ffirmed.
26 See Mincey, supra note 8.
27 State v. Sellers, ante p. 220, 777 N.W.2d 779 (2010).
28 See State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
584 	279 NeBRASkA RePORTS