Opinion
No. 42125.
Filed July 31, 1979.
Appeal from the District Court for Lancaster County: HERBERT A. RONIN, Judge. Motion for rehearing overruled.
Richard L. Schmeling, for appellant.
Paul L. Douglas, Attorney General, and Judy K. Hoffman, for appellee.
SUPPLEMENTAL OPINION
The State has filed a motion for rehearing requesting that we reconsider our analysis concerning the admissibility of the testimony of Clark concerning statements made to him by the defendant while Clark was equipped with a transmitter. Upon further consideration we have concluded that our original opinion holding the testimony was admissible was in error.
At the time the statements were made, the defendant was confined in prison as a result of having been convicted and sentenced on other charges. Since Clark was acting as a police agent, this was custodial interrogation and the defendant was entitled to the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See, Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381; Beatty v. United States, 377 F.2d 181 (5th Cir., 1967), reversed, 389 U.S. 45, 88 S.Ct. 234; United States ex rel. Milani v. Pate, 425 F.2d 6 (7th Cir., 1970); State v. Peters, 545 S.W.2d 414 (Mo. App., 1976). Since the warnings were not given, the testimony of Clark as to the statements made by the defendant were inadmissible.
That part of our opinion in State v. Fuller, 203 Neb. 233, 278 N.W.2d 756, which held the testimony admissible is withdrawn. The motion for rehearing is overruled.
MOTION FOR REHEARING OVERRULED.