State v. Schroeder

777 N.W.2d 793

279 Neb. 199

STATE of Nebraska, appellee, v. Patrick W. SCHROEDER, appellant.

No. S-07-972.

No. S-07-973.

Supreme Court of Nebraska.

January 15, 2010.

James R. Mowbray and Robert W. Kortus, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.

Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Patrick W. Schroeder was convicted of first degree felony murder, use of a deadly weapon to commit a felony, and forgery in the second degree. The forgery was charged in a separate indictment, but was consolidated with the other charges for trial. The charges relate to the death and robbery of Kenneth F. Albers on April 14, 2006, and a forged check written on Albers' account and deposited into Schroeder's account 3 days before the murder. Schroeder argues that he could not receive a fair trial 40 miles away from where a first trial resulted in a hung jury, that his confessions and incriminating evidence found as a result of the confessions were inadmissible, that the joinder of the forgery and first degree murder charges impermissibly presented the jury with evidence of premeditation when he was not charged with premeditated murder, and that the jury should have been instructed on lesser-included offenses. For the reasons set forth below, we affirm.

BACKGROUND

Albers lived alone on a farmstead just outside of Pawnee City, Nebraska. At approximately 6:45 a.m. on Friday, April 14, 2006, a farmhand arrived at Albers' house to report for work. Albers could not be found. There was blood in the house, primarily located between Albers' bedroom and a hall closet. Law enforcement was contacted and later discovered an empty lockbox inside the hall closet. The key to the lockbox was still in the lock, and the key and the edge of the lockbox were covered in Albers' blood. More blood was found on the ground inside a machine shed near the house. Albers' body was eventually discovered at the bottom of a well located on the farmstead. A pathologist testified that the cause of death was multiple blows to the head by a blunt instrument.

SCHROEDER'S ARREST AND CONFESSION

Schroeder had worked for Albers from May 2002 until Schroeder was fired in August 2002. On April 11, 2006, a check written on Albers' account, made out to Schroeder for the sum of $1,357, had been deposited into Schroeder's bank account. On April 13, the day before Albers' death, Albers had signed an affidavit reporting that he had neither signed nor authorized the check.

A witness said that at approximately 6:20 a.m. on April 14, 2006, she saw a red pickup parked alongside the highway near Albers' farmstead. At approximately 7:20 a.m., Schroeder pulled his wife's red pickup into the gas station across the street from his house and gave the owner $1,000 in cash to pay an outstanding balance on his account. The station owner testified that while Schroeder had always made payments in cash, he had never received a payment from Schroeder over $50. It had been a significant period of time since Schroeder had made any payments at all.

Schroeder was arrested on the evening of April 14, 2006, on a charge of forgery. At the time of his arrest, Schroeder was carrying $1,700 in cash. Schroeder was first interviewed by Investigator Joel Bergman on April 15 at 9 p.m. in the Otoe County jail. Bergman informed Schroeder of his Miranda rights, and Schroeder waived those rights. Bergman initially told Schroeder that he was being questioned about the forgery, but Schroeder brought up Albers' murder, which he claimed he had heard about while watching the news. He asked Bergman about the truth of news reports that he was a person of interest in the investigation of Albers' murder. Bergman confirmed that those reports were true.

Bergman asked Schroeder for ideas as to who might be responsible for the crime. He also asked Schroeder to clarify some facts, especially the amount of cash that Schroeder had spent recently. Schroeder asserted that he had sold some calves to Albers and that the check was legitimate. Schroeder seemed surprised when Bergman informed him that Albers had reported the check as a forgery. Schroeder claimed the cash he had been spending came from his family's savings. Schroeder appeared confident and ridiculed Bergman for attempting to seek an explanation for every penny Schroeder had recently spent.

Schroeder suggested to Bergman other possible suspects for Albers' murder. He claimed he was possibly being framed. Apparently eager to prove his innocence, Schroeder volunteered to take a polygraph examination. Bergman responded: "I appreciate the offer for the polygraph ... it's something we're trying to get set up ... to ... let you have that opportunity ... to prove that you didn't have anything to do with it." Otoe County does not have a polygraph machine.

When Bergman returned to the theme of Schroeder's expenditures, gently implying that it was suspicious that Schroeder had had $3,000 "floating around" in the past 2 days, all in "hundies," Schroeder became angry and indignant. Schroeder replied, "So what? So? That's the end of this conversation. I'm done." Bergman later testified that he understood this statement to mean Schroeder "was done talking to [him] for the time being" and that he intended to honor Schroeder's request.

Bergman said "okay." But he added a "wrap up type statement": "Well, [Albers] was killed for his money. We know that." Bergman later testified that he wanted to explain "why [he had been] asking the questions [he] was asking." Schroeder responded to Bergman's wrap-up statement by saying, "For what? A fucking check? Is that what you're saying or what?" Bergman stated that no, he meant the cash at Albers' home.

Schroeder shook his head, said something inaudible, and the tone of the conversation again relaxed. The interview appeared to be over. Schroeder and Bergman prepared to leave the interview room. As they did so, Bergman asked Schroeder whether he was still willing to take the polygraph. Schroeder said "yeah," and Bergman said they would get it set up. Bergman asked if Schroeder had any further questions, to which Schroeder responded that he wanted to know when he would be going to court on the forgery charge, and the two left.

Schroeder's first polygraph examination was on April 17, 2006, in Lincoln. Before administering the test, the examiner, Investigator David Heidbrink, went over Schroeder's Miranda rights with him. Schroeder signed both a rights advisory form and a waiver and release form. Heidbrink explained that it was important that the test be taken of Schroeder's own free will. Schroeder affirmed that it would be. Heidbrink informed Schroeder he could stop the questioning at any time. He further explained that Schroeder had a right to counsel, and when Schroeder specifically asked if he needed an attorney, Heidbrink told him that was "entirely up to [Schroeder]."

When Schroeder admitted that he had only slept 3 hours the night before, Heidbrink expressed concern that this might affect the examination, but they proceeded. During the examination, Schroeder denied any involvement in the murder, but he admitted to the forgery. The tests were ultimately inconclusive as to whether he was being truthful. Heidbrink informed Schroeder that because the results were inconclusive, he could retake the examination if he wanted to. Schroeder questioned Heidbrink about whether the examination was truly inconclusive or whether they were just trying to get him to admit to more. When he was satisfied with Heidbrink's explanation, Schroeder agreed to retake the examination the following day.

Before the second polygraph examination, Heidbrink again reviewed Schroeder's Miranda rights with him. Schroeder again signed a waiver of his Miranda rights and also a polygraph examination release form. During the examination, Schroeder repeated the limited admission he had made the day before.

After the test, Bergman joined Heidbrink to inform Schroeder that the results showed he was being deceptive. In this post-polygraph interview, Heidbrink explained: "[F]or some reason either you're holding back on us and not being completely truthful or maybe it's a possibility you didn't actually do this, but you were there." Heidbrink explained further: "I mean, I don't know, it's something we're gonna have to talk about." Bergman expressed sympathy for Schroeder's financial situation and also his belief that Schroeder knew something about what had happened on April 14, 2006. Without further prompting, Schroeder agreed to tell the investigators "everything" on the condition that they first give him a chance to meet with his wife. They agreed.

As Bergman and Heidbrink tried to get in touch with Schroeder's wife to arrange the meeting, they engaged in smalltalk with Schroeder and discussed picking up food on the way to meet his wife. Unsolicited, Schroeder asked the investigators what kind of charges he might be facing. When they informed Schroeder that they did not know until they knew more about what happened, Schroeder admitted that the murder "wasn't self defense." During this time, Schroeder also revealed where the rest of the money was hidden in his wife's pickup and commented, "I probably said more than I probably should have without a lawyer, but oh well, I did what I did, now I'll pay for it."

Schroeder was taken to the Pawnee County sheriff's office to meet with his wife. After the meeting with his wife, Schroeder gave the investigators a detailed confession to the crimes. Schroeder explained that "[i]n a certain sense," the forged check and the subsequent murder were connected to each other. Schroeder explained he was "tired of pinching pennies." He had brought a change of clothing on the day of the murder and robbery, because he knew that if he and Albers met face to face, ...