State v. Rogers

Full title: STATE OF NEBRASKA, APPELLEE, v. APRIL ROGERS, APPELLANT

Court: Supreme Court of Nebraska

Date published: Jan 30, 2009

277 Neb. 37 (Neb. 2009)

760 N.W.2d 35

Opinion

No. S-07-085.

Filed January 30, 2009.

1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights: Appeal and Error. 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 to meet the constitutional standards, however, is a question of law which an appellate court reviews independently of the trial court's determination.

2. Constitutional Law: Self-incrimination. The Fifth Amendment gives one the right to remain silent unless that person chooses to speak in the unfettered exercise of his or her own will.

3. ____: ____. If a suspect indicates in any manner, at any time prior to or during questioning, that he or she wishes to remain silent, the interrogation must cease.

4. ____: ____. The mere fact that a suspect may have answered some questions or volunteered some statements on his or her own does not deprive him or her of the right to refrain from answering any further inquiries until he or she has consulted with an attorney and thereafter consents to be questioned.

5. Miranda Rights: Police Officers and Sheriffs: Self-incrimination. A suspect must articulate his or her desire to cut off questioning with sufficient clarity such that a reasonable police officer under the circumstances would understand the statement as an invocation of the right to remain silent.

6. ___: ___: ___. The rights provided by Miranda v. Arizona. 384 U.S. 436. 86 S. Ct. 1602. 16 L. Ed. 2d 694 (1966). and its progeny, including the right that the police scrupulously honor one's invocation of the right to remain silent, are only applicable in the context of a custodial interrogation.

7. 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 ami custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

8. Arrests: Words and Phrases. Being "in custody" does not require an arrest, but refers to situations where a reasonable person in the defendant's situation would not have felt free to leave — and thus would feel the restraint on freedom of movement of the degree associated with a formal arrest.

9. Miranda Rights. The relevant inquiry in determining "custody" for purposes of Miranda rights, is whether, given the objective circumstances of the interrogation. a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.

10. ___. Two inquiries are essential to the determination of whether an individual is in custody for Miranda purposes: (I) an assessment of the circumstances surrounding the interrogation and (2) whether, given those circumstances, a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and leave.

11. Self-incrimination. A suspect has the right to control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.

12. Criminal Law: Self-incrimination: Appeal and Error. In considering whether a suspect has clearly invoked the right to remain silent, an appellate court reviews not only the words of the criminal defendant, but also the context of the invocation.

13. Self-incrimination: Police Officers and Sheriff's. Relevant circumstances considered in determining whether a suspect clearly invoked the right to remain silent include the words spoken by the defendant and the interrogating officer. the officer's response to the suspect's words, the speech patterns of the suspect, the content of the interrogation, the demeanor and tone of the interrogating officer, the suspect's behavior during questioning, (he point at which the suspect allegedly invoked the right to remain silent, and who was present during the interrogation.

14. Self-incrimination. Statements made by the suspect after an invocation of the right to cut off questioning may not generally be used to interject ambiguity where originally there was none.

15. ___. A suspect is not required to use special or ritualistic phrases to invoke the right to remain silent.

16. Self-incrimination: Police Officers and Sheriffs. The police do not scrupulously honor a suspect's invocation of the right to remain silent when they press on with little or no cessation in the interrogation.

17. Trial: Evidence: Confessions: Appeal and Error. The admission of an improperly obtained confession is a trial error, and thus its erroneous admission is subject to the same harmless error standard as other trial errors.

18. Verdicts: Appeal and Error. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but. rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

19. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.

20. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.

Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge. Reversed and remanded for a new trial.

Steven J. Lefler, of Lefler Law Office, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

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

MCCORMACK, J.

NATURE OF CASE

April Rogers was convicted of intentional child abuse resulting in death, a class IB felony,¹ and sentenced to life imprisonment. The primary issue presented in this appeal is whether Rogers' admission to hurting Alex Tay should have been suppressed. The record shows that when Rogers was interrogated by police, she tried to assert her constitutional right to remain silent, but the police ignored her and continued to interrogate her until she was pressured into confessing. This violated clearly established decisions of the U.S. Supreme Court, which we are bound to follow. Therefore, we find that Rogers' confession was procured in violation of her Fifth Amendment right against self-incrimination, and we reverse the conviction and remand the cause for a new trial.

1 See Neb. Rev. Stat. § 28-707 (Cum. Supp. 2004).

BACKGROUND

Rogers was convicted after a bench trial held on a stipulated record. The evidence presented at the trial showed that on Monday, December 5, 2005, Rogers was babysitting in her home for 6-month-old Alex, as well as seven other children under the age of four. Lionel Tay, Alex's father, left Alex and his brother in Rogers' care at approximately 7:30 a.m. When Alex was dropped off, he appeared healthy and had no unusual symptoms. With the exception of an ongoing acid reflux problem, Alex had no significant medical history.

Around 10 a.m., Rogers called Lionel at work. Lionel could hear gasping sounds in the background as Rogers told him she was sorry, but that she had gone upstairs to make cereal for another child and that when she returned, she observed an 18-month-old child sitting on Alex's neck. Lionel rushed to Rogers' house.

When Lionel arrived approximately 12 minutes later, Rogers again told him, "'I'm sorry, I'm sorry.'" Lionel found that Alex was stiff and rigid, his eyes were closed, and he was gasping for breath. Lionel asked Rogers to call the 911 emergency dispatch service, and Alex was airlifted to Creighton University Medical Center. Alex was later transported to Children's Hospital, where he died on December 8, 2005.

A police officer arrived at the scene and spoke with Rogers. Rogers reported to the officer that she had laid Alex on the carpeted area of the basement and gone upstairs to get milk and cereal for the children. When she went back downstairs approximately 5 minutes later, she observed an 18-month-old child bouncing and sitting on Alex's neck, straddling his head. She stated that she picked Alex up and noticed he was having trouble breathing, so she contacted Lionel. Another officer, Eric Sellers, later arrived at Rogers' house, and Rogers repeated this story to him. The two officers then went to the hospital to check on Alex's status.

At the hospital, the officers were informed that Alex had suffered a head injury and was being scheduled for immediate surgery to relieve blood pressure on his brain. A medical report dated December 5, 2005, explains: "The patient likely received blunt trauma injury to the head while at day care earlier this morning." Medical reports, dated December 5 and 6, diagnosed Alex as suffering from a "massive" traumatic brain injury resulting in an acute subdural hematoma. The hematoma was more marked posteriorly, but extended all the way from the anterior to the posterior of the brain. An ophthalmologic examination also found eye hemorrhages "consistent with nonaccidental trauma." Because of the density of the hematoma, an examination on December 6 indicated that the injury had occurred within the past 0 to 4 days. Additionally, "chronic" hematomas were found in Alex's brain. The medical findings were determined to be "diagnostic of repeated episodes of inflicted trauma as a result [sic] of shaken baby and[/]or shaken impact baby syndrome." The report of an autopsy conducted on December 9 attributed the cause of Alex's death to "blunt trauma to the head."

Rogers was first asked to go to the Douglas County sheriff's office to be interviewed on Tuesday, December 6, 2005. At that time, the police had apparently not yet been informed of Alex's chronic brain injuries. Rogers met with Officer Brenda Wheeler in the polygraph room with the intention of conducting a polygraph examination. But when Rogers indicated that she might be pregnant, the polygraph was postponed. It is apparent from the record that a polygraph examination could not be performed if Rogers was pregnant, although the record does not explain why. Wheeler still spoke with Rogers about the events of December 5.

Rogers explained to Wheeler that when the children first arrived in the morning, they ate breakfast. Alex went down for a nap shortly after arriving and slept in a "Pack-N-Play" until 9:15 a.m. Rogers said that when he woke up, she changed his diaper and the diaper of another child Alex's age. She put the other child in a "bouncy seat." Although Rogers had at least one other bouncy seat and two "saucers" nearby, she left Alex on the floor. Rogers could not provide Wheeler with any explanation for why she had done this.

Rogers explained that she then left all the children in the basement unattended while she went to get Alex and the other toddler's bottles, left the bottles to warm, went to the master bedroom to turn off the television, and looked in the freezer to consider what to make for lunch. Rogers told Wheeler that when she returned downstairs, she noticed that an 18-month-old child was straddling Alex's neck and that Alex was having trouble breathing. Rogers elaborated that she sometimes played "horsey" with the children. The interview ended, and Rogers returned home.

Following this interview, Wheeler received a telephone call from one of Alex's physicians, who advised Wheeler that Alex had been diagnosed with acute subdural hematomas and that there was evidence of two or three old subdural hematomas that were approximately 7 to 10 days old. The doctor clarified for Wheeler that Rogers' story of a child sitting or bouncing on Alex's neck was inconsistent with the severity of Alex's injuries.

By Wednesday, December 7, 2005, the police knew that Alex might not survive his injuries and had evidence that those injuries had occurred at Rogers' residence on Monday, December 5. In light of this, Sellers and another officer went to Rogers' home and asked her and her husband to come to the station for a second interview. Sellers told Rogers that the interview would probably take only about 20 or 30 minutes.

Rogers agreed and arrived at the station shortly thereafter. Her husband was separated from her to wait in the lobby. Sellers took Rogers to a small, windowless room in a secure area. There, Sellers read Rogers her Miranda rights, which she waived. There is no evidence at this point, or at any time thereafter, Rogers was told that she was not under arrest or that she was free to leave the station.

Shortly after Rogers waived her Miranda rights, Rogers and Sellers were asked by another officer to move to a different area, because of a prisoner transport. They moved to the polygraph room, where Rogers sat in a polygraph chair with her back generally to the wall, facing in the general direction of the door. The polygraph chair was placed at the end of a desk, with the back of the chair angled slightly in front of the desk.

Initially, Sellers sat at the desk facing Rogers. He took notes as he asked Rogers routine questions about the events of December 5, 2005. Rogers repeated the story she had told Wheeler the day before. This continued for about 35 minutes. Sellers then offered Rogers a glass of water and left her in the room, where she stayed in the polygraph chair waiting for about 8 minutes. When Sellers returned, he gave Rogers a glass of water and explained that they had a panel of doctors who had told them that a child could not have caused Alex's injuries. He asked Rogers to "brainstorm" about anything else that might have occurred.

Soon after, Wheeler entered the room. She immediately pulled up a chair and sat in front of Rogers, placing herself between Rogers and the door to the room. There was nothing between them, and Wheeler leaned close to Rogers. Sellers remained in the room, but moved to a different position, standing at the opposite corner of the desk and its adjacent wall. Wheeler explained that she had spent the entire morning at Children's Hospital and had spoken to the doctors and spoken in great detail with Alex's parents. She relayed to Rogers that she had discovered nothing unusual had occurred the morning before Alex's parents took him to Rogers' house. Wheeler explained to Rogers that based on what the doctors were saying, she knew something had happened at Rogers' house that Rogers was not telling her.

The mood of the interview began to change, and Rogers became more quiet, repeatedly answering that she did not know what had happened. Wheeler explained that she did not think Rogers had meant to hurt Alex but that with all the children she was watching, anyone could have been pushed "over the top." Wheeler stated that she already knew something "aggressive" happened, but now she just needed to know why. If Rogers was just overwhelmed, then that was "explainable."

Rogers said she would never hurt Alex, and Wheeler responded that even if all the children had combined their efforts, they would not have had the force sufficient to cause the injuries Alex had suffered. Wheeler told Rogers that only an adult could have inflicted the force necessary to hurt Alex in this manner and that the injury occurred close to the time that Alex began seizing. Wheeler then reminded Rogers that she was the only adult there at that time. When Rogers stated that she did not hurt Alex, Wheeler responded, "[T]he evidence is clear that you did." When Rogers said she did not know what had happened, Wheeler told Rogers that she did not believe her.

Sellers interjected with a gentler tone and explained that Alex was going to be fine. Sellers stated that the other parents were simply concerned about whether their children were in danger. Sellers suggested that maybe some sort of accident had occurred, such as accidentally dropping Alex. This, he explained, was not a crime and would be understandable to the other parents. Sellers started to ask Rogers questions about possible accidents that could have occurred that day. Wheeler took up this line of inquiry as well, explaining: "I'm giving you a way out here to tell me what else happened in your house."

Rogers denied that any accident had occurred, and Wheeler repeated that if they could not go to the doctors with a logical explanation for what happened, then it looked "very, very bad" for Rogers. Wheeler then spoke for some time, while Rogers remained generally quiet and repeated at several points that she did not know what had happened.

Sellers again began to speak to Rogers about possible accidents, and Wheeler left the room. Sellers moved to where Wheeler had been sitting and told Rogers he knew Rogers was a good person. Approximately 1 hour 12 minutes into the interview, Rogers began to cry. She informed Sellers that she had fallen down the stairs while holding Alex. After comforting Rogers, Sellers left, explaining that he had to go talk to his boss and that he would be right back. Rogers remained sitting in the polygraph chair for approximately 5 minutes while she waited for Sellers. When Sellers returned, he knocked on the door, and Rogers stood up for the first time since the interview had begun, let Sellers in, and immediately sat back down. Sellers mentioned that the door locked from the inside. He then began to ask some simple followup questions, but soon Wheeler walked back into the room.

Wheeler immediately went to Rogers and gave her a hug. She sat down in front of Rogers, very close to her, and grasped both of Rogers' hands. Wheeler then said firmly, "We have one more step to take here, don't we?" Wheeler explained that they had spoken with the doctors and had determined that Alex's injuries were caused by his head's being moved at a velocity much greater than what would have occurred by his falling down the stairs. Wheeler continued to sit in front of Rogers, grasping both Rogers' hands, for another 10 minutes while she questioned her. Rogers repeatedly responded that she did not hurt Alex.

Wheeler informed Rogers, for the first time, that not only did the doctors find the acute injury that had occurred on December 5, 2005, but they had also found some older injuries. These, Wheeler explained, obviously were not caused by a fall down the stairs on December 5. Rogers' story, Wheeler told her, had to match the medical evidence. Wheeler eventually left the room again. As she left, Wheeler stated that she knew Rogers had a good rapport with Sellers. Wheeler explained firmly that she expected Rogers to tell Sellers the truth, "and I mean the whole truth this time."

Rogers did not, however, confess to Sellers. Almost 2 hours into the interview, Sellers again left Rogers alone in the room, saying he would be right back. As he left, Sellers explained to Rogers that the door to the polygraph room locked automatically from the inside and that he did not have a key. So he asked that Rogers let him in if he knocked and further explained, "so you can get out if you need to, I just can't get in." Rogers did not attempt to leave.

Almost immediately after Sellers left, Wheeler let herself back into the room with her key and resumed her position directly in front of Rogers. Wheeler started to talk to Rogers about themes of honesty and integrity. She eventually returned to the theme of the medical evidence and how they both knew that Rogers was not telling the truth. In the face of these accusations, Rogers became increasingly withdrawn and despondent. At one point, after Wheeler repeatedly accused Rogers of holding something back, Wheeler stated: "We're not going to get to the bottom of this until I get the whole truth." Rogers responded: "No, I'm not. I'm done. I won't."

But Wheeler continued to talk to Rogers about how what "really happened" was going to "eat" at Rogers "forever and ever." Wheeler told Rogers that the doctors needed to know the truth in order "to know best how it happened, and it wasn't a fall down the stairs. Something else happened." Rogers answered: "Yes, it was. I didn't — I — I'm not talking no more."

Wheeler responded, "Well, just listen then." And Rogers sat quietly while Wheeler spoke to her at length. Wheeler was eventually able to reengage Rogers in conversation, and, some 2 hours after the interview began, Rogers confessed. Rogers eventually told Wheeler that while Alex was lying on his back on the floor, she had grabbed him by both sides of his head and neck and shaken him. When asked, Rogers said that she thought she slammed Alex's head onto the floor each time she shook him. She also admitted to having shaken Alex on at least two prior occasions.

Rogers was not arrested on that day and was allowed to return home that night. The next day, after Alex died, an arrest warrant was issued.

At trial, Rogers filed a motion to suppress any statements she made during her interviews with investigators. Rogers claimed in her motion that her statements were not voluntarily given, her free will had been overridden, her statements were not trustworthy, she did not have an attorney present, and she had been misled by investigators before and during the interview.

At the hearing on the motion, Wheeler and Sellers both testified, and the videotape of the December 7, 2005, interview was entered into evidence. When Rogers' attorney asked Wheeler why she did not stop the interview when Rogers said she was done talking, Wheeler testified that they were trained to continue to interview suspects until the suspect says, "'I want a lawyer' or something to that effect. 'Attorney', 'lawyer', or 'I want to leave', something to the effect of 'charge me or let me leave.' Something like that. And she said neither."

The motion to suppress was overruled, and Rogers was convicted and sentenced to life imprisonment. She appeals.

ASSIGNMENTS OF ERROR

Rogers assigns that the district court erred in (1) overruling her motion to suppress her statement made to investigators, (2) imposing an excessive sentence, and (3) overruling her motion to declare that the mandatory minimum sentence of 20 years' imprisonment for child abuse resulting in death is unconstitutional because it violates the Equal Protection Clause and the Separation of Powers Clause.

STANDARD OF REVIEW

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,² we apply 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, however, is a question of law which we review independently of the trial court's determination.³

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 See, United States v. Bajakajian, 524 U.S. 321, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998); Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995).

Mixed questions of law and fact are generally defined as those that have a factual component, but that cannot be resolved without applying the controlling legal standard to the historical facts.⁴ In State v. Thomas ⁵ and State v. Mata,⁶ we said that "[r]esolution of ambiguity in the invocation of the constitutional right to remain silent is a question of fact." To the extent that the ambiguity derives from conflicting evidence of the historical facts, such as the surrounding circumstances or what was actually said, this statement is correct. However, insofar as we have suggested that we should also treat as a question of fact the trial court's legal conclusion on whether the suspect invoked the right to remain silent, based on the application of those circumstances to the rubric of Miranda, we erred.

4 See id.

5 State v. Thomas, 267 Neb. 339, 350, 673 N.W.2d 897, 908 (2004).

6 State v. Mata, 266 Neb. 668, 684, 668 N.W.2d 448, 467 (2003).

Thus, while we recognize that we have not always been precise in distinguishing issues of historical fact from questions of law within these mixed questions of law and fact,⁷ for purposes of clarity and uniformity, we expressly do so now. It is a mixed question of law and fact whether a statement was voluntarily made,⁸ whether a custodial interrogation has occurred,⁹ whether sufficient Miranda warnings were given to the suspect,¹⁰ whether properly advised Miranda rights were thereafter waived,¹¹ whether there has been an unambiguous invocation of the right to remain silent or to have counsel,¹² and whether invocation of those rights has been scrupulously honored.¹³ All these questions involve the application of the facts surrounding the confession to the constitutional rubric mandated by the U.S. Supreme Court, and are reviewed under the two-point standard of review set forth above.¹⁴

7 See, e.g., State v. Mata, supra note 6 (resolution of ambiguity in invocation of right to remain silent question of fact); State v. Ray, 241 Neb. 551, 489 N.W.2d 558 (1992) (determination that statement made voluntarily not disturbed unless clearly wrong).

8 See, Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985); U.S. v. Walker. 272 F.3d 407 (7th Cir. 2001); Beavers v. State, 998 P.2d 1040 (Alaska 2000); People v. Jablonski, 37 Cal. 4th 774, 126 P.3d 938, 38 Cal. Rptr. 3d 98 (2006); People v. Mathenx, 46 P.3d 453 (Colo. 2002); State v. Fields, 265 Conn. 184, 827 A.2d 690 (2003): State v. Bitch, 83 Haw. 308. 926 P.2d 599 (1996); Light v. State, 547 N.E.2d 1073 (Ind. 1989): Gorge v. State, 386 Md. 600. 873 A.2d 1171 (2005); State r. Miller, 573 N.W.2d 661 (Minn. 1998); State v. Cooper. 124 N.M. 277, 949 P.2d 660 (1997): State v. Hxde. 352 N.C. 37, 530 S.E.2d 281 (2000); State v. Acrematu, 338 Or. 302, 108 P3d 1139 (2005); Com. v. Templin, 568 Pa. 306, 795 A.2d 959 (2002); State v. Morato, 619 N.W.2d 655 (S.D. 2000); State v. Mabe, 864 P.2d 890 (Utah 1993); Midkiff v. Com., 250 Va. 262, 462 S.E.2d 112 (1995); State v. Singleton, 218 W. Va. 180, 624 S.E.2d 527 (2005); State v. Clappes. 136 Wis. 2d 222, 401 N.W.2d 759 (1987); Simmers v. State, 943 P.2d 1189 (Wyo. 1997).

9 See, e.g., State v. Mata, supra note 6; State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000). See, also, U.S. v. Moreno-Flores, 33 F.3d 1164 (9th Cir. 1994); People v. Matheny, supra note 8; State v. Spencer, 149 N.H. 622, 826 A.2d 546 (2003); State v. Juarez, 120 N.M. 499, 903 P.2d 241 (N.M.App. 1995).

10 State v. Fernando-Granados, 268 Neb. 290, 682 N.W.2d 266 (2004).

11 See, U.S. v. Nanrtez-Gomez. 489 F.3d 970 (9th Cir. 2007); People v. Platt, 81 P.3d 1060 (Colo. 2004); State v. Jaco, 130 Idaho 870, 949 P.2d 1077 (Idaho App. 1997); State v. Lockhart, 830 A.2d 433 (Me. 2003); State v. Dominguez-Ramirez, 563 N.W.2d 245 (Minn. 1997); State v. Barren, 130 N.M. 227. 22 P.3d 1177 (2001); State v. Ramirez-Garcia, 141 Ohio App. 3d 185. 750 N.E.2d 634 (2001); Quinn v. Com., 25 Va. App. 702. 492 S.E.2d 470 (1997); State v. Jennings, 252 Wis. 2d 228. 647 N.W.2d 142 (2002).

12 See, U.S. v. Rodriguez, 518 F.3d 1072 (9th Cir. 2008); U.S. v. Uribe-Galindo, 990 F.2d 522 (10th Cir. 1993); Munson v. State, 123 P.3d 1042 (Alaska 2005); People v. Quezada, 731 P.2d 730 (Colo. 1987); Cuervo v. State, 967 So. 2d 155 (Fla. 2007); People v. Howerton, 335 Ill. App. 3d 1023, 782 N.E.2d 942, 270 Ill. Dec. 383 (2003); State v. Grant, 939 A.2d 93 (Me. 2008); People v. Glover, 87 N.Y.2d 838, 661 N.E.2d 155, 637 N.Y.S.2d 683 (1995); State v. Holcomb, 213 Or. App. 168, 159 P.3d 1271 (2007); Com. v. Redmond, 264 Va. 321, 568 S.E.2d 695 (2002); State v. Jennings, supra note 11. But see, U.S. v. Ferrer-Montoya, 483 F.3d 565 (8th Cir. 2007); People v. Musselwhite, 17 Cal. 4th 1216, 954 P.2d 475, 74 Cal. Rptr. 2d 212 (1998); State v. Johnson, 463 N.W.2d 527 (Minn. 1990); Mayes v. State, 8 S.W.3d 354 (Tex.App. 1999).

13 See, e.g., People v. Quezada, supra note 12.

14 See, United States v. Bajakajian, supra note 3; Thompson v. Keohane, supra note 3.

ANALYSIS Miranda v. ARIZONA

The rubric of prophylactic safeguards¹⁵ to protect individuals from the "'inherently compelling pressures'"¹⁶ of custodial interrogation was first established by the U.S. Supreme Court in Miranda v. Arizona. ¹⁷ The need for these safeguards derives from the Supreme Court's conclusion that the "coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be 'accorded his privilege under the Fifth Amendment . . . not to be compelled to incriminate himself.'"¹⁸ Otherwise stated, the Fifth Amendment gives one the right" "'to remain silent unless he chooses to speak in the unfettered exercise of his own will."'"¹⁹

15 Withrow v. Williams, 507 U.S. 680, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993). See, also, e.g., State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006).

16 Thompson v. Keohane, supra note 3, 516 U.S. at 107, quoting Miranda v. Arizona, supra note 2.

17 Miranda v. Arizona, supra note 2.

18 Dickerson v. United States, 530 U.S. 428, 435, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000), quoting Miranda v. Arizona, supra note 2.

19 Withrow v. Williams, supra note 15, 507 U.S. at 689.

Earlier decisions by the U.S. Supreme Court had already established that when the totality of the circumstances of an interrogation, considered against the power of resistance of the person confessing, actually operate to overbear the suspect's will and compel the confession, then the confession would be considered involuntary and inadmissible.²⁰ The focus of the Supreme Court in Miranda was somewhat different. The Court explained that while the pressures of the average custodial interrogation may not produce a confession that is "involuntary in traditional terms,"²¹ in the context of modern methods of custodial police interrogation,²² neither is any statement obtained from the interrogation "truly . . . the product of his free choice."²³ Instead, the pressures of custodial interrogation "work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely."²⁴

20 See, e.g., Stein v. New York, 346 U.S. 156, 73 S. Ct. 1077, 97 L. Ed. 1522 (1953), overruled in part on other grounds, Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). See, also, Dickerson v. United States, supra note 18.

21 Miranda v. Arizona, supra note 2, 384 U.S. at 457.

22 Dickerson v. United States, supra note 18.

23 Miranda v. Arizona, supra note 2, 384 U.S. at 458.

24 Id., 384 U.S. at 467.

The Court in Miranda described in great detail the pressures to which it was referring: A suspect is usually questioned away from his or her familiar environment and isolated from family or friends who might lend moral support. Having isolated the suspect, the questioning officer or officers then use "'emotional appeals and tricks,'"²⁵ minimizing the moral seriousness of the offense and directing comment toward the reasons why the suspect committed the offense, "rather than court failure by asking the subject whether he did it."²⁶ A common tactic is then for one officer to act sympathetic, while the other is more forceful, and the two trade off in questioning the suspect. When these strategies do not produce a confession, the officers rely "'on an oppressive atmosphere of dogged persistence'" and attempt to "'dominate [their] subject and overwhelm him with [their] inexorable will to obtain the truth.'"²⁷

25 Id., 384 U.S. at 451.

26 Id., 384 U.S. at 450.

27 Id., 384 U.S. at 451.

The Court noted that to be successful in this psychological coercion, "[i]t is important to keep the subject off balance . . . by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights."²⁸ Thus, "[e]ven without employing brutality, . . . the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals."²⁹

28 Id., 384 U.S. at 455.

29 Id.

To counter these pressures, and thereby to "protect precious Fifth Amendment rights,"³⁰ the Court in Miranda established the familiar Miranda advisements of the right to remain silent and to have an attorney present at questioning. The Court further explained that once these warnings have been given, "[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease."³¹ For, "[a]t this point[,] he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise."³²

30 Id., 384 U.S. at 457.

31 Id., 384 U.S. at 473-74.

32 Id., 384 U.S. at 474.

The Court described this as the right to "cut off questioning."³³ And it does not matter, the Court explained, whether or not the suspect had initially waived his or her rights and answered questions: "The mere fact that [the suspect] may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned."³⁴

33 Id.

34 Id., 384 U.S. at 445.

In this appeal, Rogers does not argue that the evidence proves her statement was involuntary in the sense that her will was actually overborne. Nor does she argue that she was improperly advised of her Miranda rights or that she did not initially waive those rights. Instead, Rogers' claim is that the police failed to honor her right to cut off questioning.

In subsequent cases, the U.S. Supreme Court has explained that once the right to cut off questioning has been invoked, the police are restricted to "'scrupulously honor[ing]'" that right.³⁵ This means, among other things, that there must be an appreciable cessation to the interrogation.³⁶ However, before the police are under such a duty, the invocation of the right to cut off questioning must be "unambiguous," "unequivocal," or "clear."³⁷ This requirement of an unequivocal invocation, the Court has explained, prevents the creation of a "third layer of prophylaxis" which could transform the prophylactic rules of Miranda "'into wholly irrational obstacles to legitimate police investigative activity.'"³⁸ To invoke the right to cut off questioning, the suspect must articulate his or her desire with sufficient clarity such that a reasonable police officer under the circumstances would understand the statement as an invocation of the right to remain silent.³⁹ And if the suspect's statement is not an "unambiguous or unequivocal" assertion of the right to remain silent, then there is nothing to "scrupulously honor" and the officers have no obligation to stop questioning.⁴⁰ In this case, the district court determined that Rogers had failed to unambiguously invoke her right to cut off questioning.

35 See, e.g., Michigan v. Mosley, 423 U.S. 96, 102, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975); State v. Pettit, 227 Neb. 218, 417 N.W.2d 3 (1987).

36 Michigan v. Mosley, supra note 35.

37 Davis v. United States, 512 U.S. 452, 460, 462, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994).

38 Id.

39 See In re Interest of Frederick C., 8 Neb. App. 343, 594 N.W.2d 294 (1999). See, also, Davis v. United States, supra note 37; U.S. v. Mikell, 102 F.3d 470 (11th Cir. 1996); State v. Walker, 129 Wash. App. 258, 118 P.3d 935 (2005).

40 Michigan v. Mosley, supra note 35. See Davis v. United States, supra note

SCOPE OF ROGERS' MOTION TO SUPPRESS

Before addressing the merits of whether Rogers did or did not unambiguously invoke her right to remain silent, we briefly address the State's argument that the issue of Rogers' invocation of her right to cut off questioning was never properly raised below. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.⁴¹

41 Reimers-Hild v. State, 274 Neb. 438, 741 N.W.2d 155 (2007).

Rogers' motion alleged, among other things, that her confession was not "voluntarily made." But the State asserts that, as a matter of law, references to "voluntariness" refer only to an inquiry into whether the will of the suspect was actually overborne, and do not encompass the issues raised by Miranda.⁴² As our discussion above of the Court's holding in Miranda already demonstrates, this is simply not true. The U.S. Supreme Court has explicitly stated that it recognizes "two constitutional bases for the requirement that a confession be voluntary to be admitted into evidence: the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment."⁴³ Cases examining whether the defendant's will was overborne by the circumstances surrounding the giving of a confession fall under the Due Process Clause of the 14th Amendment⁴⁴; cases examining the prophylactic safeguards established in Miranda and its progeny fall under the 5th Amendment's Self-Incrimination Clause (incorporated and made applicable to the states through the 14th Amendment).⁴⁵

42 Supplemental brief for appellee at 8.

43 Dickerson v. United States, supra note 18, 530 U.S. at 433 (emphasis supplied).

44 Dickerson v. United States, supra note 18.

45 See id.

Moreover, it is clear from the hearing on the motion to suppress that the parties were actively presenting to the court their views on whether Rogers had unambiguously invoked her right to remain silent. Thus, the court, in its order, actually determined that Rogers had not "unequivocally demand[ed] that any of the interviews be terminated."

Rogers' motion did not limit itself to "voluntariness" issues under the 14th Amendment, and we agree that voluntariness inquiries under both the 5th and the 14th Amendments were properly before the trial court. Having found that the constitutional issues involving Rogers' claimed unequivocal invocation of her right to remain silent were raised below, we turn now to an analysis of those issues.

CUSTODY

Before considering whether the police infringed upon a suspect's Fifth Amendment right to cut off questioning, a court should first consider whether the suspect's confession took place during a "custodial interrogation." The rights provided by Miranda and its progeny, including the right that the police "scrupulously honor" one's invocation of the right to remain silent, are only applicable in the context of a "custodial interrogation."⁴⁶ It is only in this context that the prophylactic safeguards of Miranda are considered justified and necessary.

46 See, State v. Mata, supra note 6. See, also, e.g., Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); State v. Burdette, supra note 9.

[7,8] "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 suspect.⁴⁷ "Custodial" does not require an arrest, but refers to situations where a reasonable person in the defendant's situation would not have felt free to leave — and thus would feel the "'"restraint on freedom of movement" of the degree associated with a formal arrest.'"⁴⁸ The parties do not dispute that Rogers was being "interrogated" by the police at the time she made her confession, but some question has been raised as to whether Rogers was in custody at the time she confessed.

47 State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).

48 Thompson v. Keohane, supra note 3, 516 U.S. at 112, quoting Miller v. Fenton, supra note 8. Accord Yarborough v. Alvarado, 541 U.S. 652, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004).

We note at the outset that it appears, from the examination of the witnesses and the discussion with the court during the suppression hearing, that there was little dispute between the parties at that time that Rogers was, in fact, "in custody" when she confessed. When examining the witnesses at the suppression hearing, the State did not ask questions that would have been relevant to the issue of custody. Instead, the examination was focused almost entirely on Rogers' alleged invocation of her right to remain silent. As discussed, if Rogers was not in custody, the alleged invocation of her Fifth Amendment rights would not even have been at issue. The trial record indicates that the parties and the district court believed Rogers was in custody.

In accord with the assumptions of the parties, the district court determined that Rogers was in custody at the time of her confession. The district court's order, while not perfectly drafted, is hard to read otherwise. In denying the motion to suppress, the court first described the two interviews of Rogers at the police station. The court next described Rogers' informal conversations with the police at Rogers' home and over the telephone, during which, the court specified, Rogers was "not in custody." Immediately following these two descriptions, the court said that "the statements of [Rogers] both while not in custody and while in custody were freely and voluntarily made." The court clearly found that some of Rogers' statements were custodial, and, having expressly eliminated the interviews not at the station, we find it difficult not to understand the district court's reference to times "in custody" to be the previously mentioned station house interviews.

Now, on appeal, the State belatedly attempts to contest whether Rogers was in custody at the time of her confession. But even the State's initial brief, while alleging that Rogers was not in custody on December 6, 2005, seemed to assume that she was in custody on December 7. As at trial, the State argued in its trial brief that Rogers had failed to properly invoke the Miranda protections. But in a supplemental brief filed in this court, the State asserted a new argument that "because there was no formal arrest nor any restraint on freedom of movement of the degree associated with a formal arrest, during either the December 6, 2005, or the December 7, 2005, interview, Rogers was not in custody."⁴⁹ Rather than give any supporting argument for this conclusion, however, the State attacked the wording of Rogers' motion to suppress, an argument that we have already considered above.

49 Supplemental brief for appellee at 8.

But to the extent that the State's supplemental brief can be construed as attacking the district court's determination that Rogers was in custody during the December 7, 2005, interrogation, we disagree with the State's contention. The parties do not contest the underlying historical facts of this case. We have information about the events leading up to Rogers' arrival at the station on December 7, as derived from the police reports and testimony. We have the videotape of the interview itself. Because we have no questions of fact to review for clear error, the only issue remaining is the application of the historical facts to the applicable constitutional principles.⁵⁰ We independently review the district court's conclusion regarding whether, under these facts, a reasonable person under all of the surrounding circumstances would have felt free to leave.⁵¹ We agree with the district court that under the facts of this case, Rogers was in "custody" on December 7.

50 See, e.g., Yarborough v. Alvarado, supra note 48; State v. Smith, 13 Neb. App. 404, 693 N.W.2d 587 (2005).

51 See, e.g., U.S. v. Moreno-Flores, supra note 9; State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007); State v. Mata, supra note 6; State v. Burdette, supra note 9; People v. Matheny, supra note 8; State v. Spencer, supra note 9; State v. Juarez, supra note 9. See, also, Yarborough v. Alvarado, supra note 48; Thompson v. Keohane, supra note 3.

[9,10] The U.S. Supreme Court has explained that the relevant inquiry in determining "custody" is whether, given the objective circumstances of the interrogation,⁵² "a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave."⁵³ This is the level of "restraint on freedom of movement"⁵⁴ that demands Miranda protections in connection with an interrogation. Two inquiries are essential to this determination: (1) an assessment of the circumstances surrounding the interrogation and (2) whether, given those circumstances, a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and leave.⁵⁵ Put another way, the Court has said that we must examine all of the circumstances surrounding the interrogation to determine whether a reasonable person in the suspect's position would have thought he or she was "sitting in the interview room as a matter of choice, free to change his [or her] mind and go."⁵⁶

52 Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994).

53 Thompson v. Keohane, supra note 3, 516 U.S. at 112.

54 Id.

55 See State v. McKinney, supra note 51. Accord Yarborough v. Alvarado, supra note 48.

56 Kaupp v. Texas, 538 U.S. 626, 632, 123 S. Ct. 1843, 155 L. Ed. 2d 814 (2003).

A large body of case law has developed since Miranda that has made apparent certain circumstances that are most relevant to the custody inquiry. Such circumstances include: (1) the location of the interrogation and whether it was a place where the defendant would normally feel free to leave; (2) whether the contact with the police was initiated by them or by the person interrogated, and, if by the police, whether the defendant voluntarily agreed to the interview; (3) whether the defendant was told he or she was free to terminate the interview and leave at any time; (4) whether there were restrictions on the defendant's freedom of movement during the interrogation; (5) whether neutral parties were present at any time during the interrogation; (6) the duration of the interrogation; (7) whether the police verbally dominated the questioning, were aggressive, were confrontational, were accusatory, threatened the defendant, or used other interrogation techniques to pressure the suspect; and (8) whether the police manifested to the defendant a belief that the defendant was culpable and that they had the evidence to prove it.⁵⁷

57 See Annot., 29 A.L.R.6th 1 (2007).

In State v. Mata,⁵⁸ we also found helpful to our analysis of whether the suspect was in custody, six common indicia outlined by the Eighth Circuit Court of Appeals in U.S. v. Axsom. ⁵⁹ Three of these indicia are considered mitigating against the existence of custody: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; or (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions. Three indicia are considered as aggravating the existence of custody: (1) whether strong-arm tactics or deceptive stratagems were used during questioning, (2) whether the atmosphere of the questioning was police dominated, or (3) whether the suspect was placed under arrest at the termination of the proceeding.

58 State v. Mata, supra note 6.

59 U.S. v. Axsom, 289 F.3d 496 (8th Cir. 2002).

Any interview of one suspected of a crime by a police officer will have coercive aspects "simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime."⁶⁰ Such coercion, alone, is insufficient to establish the "restraint on freedom of movement" necessary for "custody."⁶¹ Nevertheless, we note that in determining whether a reasonable person in the suspect's position would feel the necessary restraint on freedom of movement, the coerciveness of the interrogation environment is still pertinent⁶²:

60 Oregon v. Mathiason, supra note 46, 429 U.S. at 495.

61 Id.

62 See State v. Pontbriand, 178 Vt. 120, 878 A.2d 227 (2005).

Because the Court in Miranda expressed concern with the coerciveness of situations in which the suspect was "cut off from the outside world" and "surrounded by antagonistic forces" in a "police dominated atmosphere" and interrogated "without relent," circumstances relating to those kinds of concerns are also relevant on the custody issue. Thus, custody is less likely to be deemed present when the questioning occurred in the presence of the suspect's friends or other third parties, and more likely to be found when the police have removed the suspect from such individuals. A court is more likely to find the situation custodial when the suspect was confronted by several officers instead of just one, when the demeanor of the officer was antagonistic rather than friendly, and when the questioning was lengthy rather than brief and routine. And surely a reasonable person would conclude he was in custody if the interrogation is close and persistent, involving leading questions and the discounting of the suspect's denials of involvement.⁶³

63 2 Wayne R. LaFave et al., Criminal Procedure § 6.6(f) at 750-51 (3d ed. 2007).

The facts of any given particular station house interrogation will be unique. While we will not find another case that exactly matches the situation presented here, for illustration of how these legal principles are applied in comparable circumstances, we consider State v. Dedrick. ⁶⁴ In Dedrick, the defendant voluntarily went to the police station after they had asked him to come answer some questions. Once at the station, the police told the defendant he was not under arrest and took him to an interview room. The room was windowless, and the defendant and two officers sat at a round table. Throughout the interview, one officer sat in front of the door, while the other sat opposite, and the defendant sat in between them. The door remained closed, but apparently was not locked. The defendant initially drank a soda he had brought with him and answered general questions about his background and activities. At one point, he left the room alone to use the restroom.

64 State v. Dedrick, 132 N.H. 218, 564 A.2d 423 (1989), abrogated in part on other grounds, State v. Spencer, supra note 9.

After the defendant had completed his initial story about the events of the night of the crime, the officers left the defendant alone in the room so that they could confer. When the officers returned, the nature of the questioning changed. The officers again stated that the defendant was not under arrest, and they read him his Miranda rights. They then informed the defendant for the first time that the victim was dead. They further informed the defendant that they knew the victim owed the defendant money. And they stated that bloody fingerprints and footprints found at the scene probably matched the defendant's. Despite the defendant's repeated denials of any involvement in the murder, the officers continued to accuse the defendant of stating untruths, and they continued to confront him with incriminating information. They no longer reminded him that he was not under arrest.

The court in Dedrick agreed with the trial court's determination that this "sea change" in the tenor and character of the interview would indicate to a reasonable person that he or she was not free to go.⁶⁵ Instead, a reasonable person would have believed that "as often as he made denials, [the officers] would renew their accusations."⁶⁶ In the face of such repeated accusations, a reasonable person, the court concluded, would believe he or she was not free to leave.⁶⁷

65 Id. at 225, 564 A.2d at 427.

66 Id.

67 See, Stansbury v. California, supra note 52; U.S. v. Mittel-Carey, 456 F. Supp. 2d 296 (D. Mass. 2006); People v. Horn, 790 P.2d 816 (Colo. 1990); Cotton v. State, 901 So. 2d 241 (Fla.App. 2005); People v Johnson, 91 A.D.2d 327, 458 N.Y.S.2d 775 (1983); State v. Evans, 354 S.C. 579, 582 S.E.2d 407 (2003). Compare, People v. Downer, 192 Colo. 264, 557 P.2d 835 (1976); State v. Pitts, 936 So. 2d 1111 (Fla.App. 2006); Burton v. State, 32 Md. App. 529, 363 A.2d 243 (1976); Com. v. Mayfield, 398 Mass. 615, 500 N.E.2d 774 (1986); Sandifer v. State, No. 89729, 2004 WL 944021 (Kan.App. Apr. 30, 2004) (unpublished disposition listed in table of "Decisions Without Published Opinions" at 88 P.3d 807 (Kan.App. 2004)).

We likewise conclude that Rogers was "in custody," because a reasonable person in her position would not have felt free to simply terminate the interview and leave. In making this determination, we consider the Axsom indicia, as well as the additional considerations outlined above.

Strictly speaking, Rogers went to the station voluntarily. But we also note that her visit was prompted by two officers arriving at her house and asking her to return to the station for further questioning and a possible polygraph examination. In light of these circumstances, suggesting that Rogers was pressured to attend, the "voluntariness" of Rogers' visit to the station is less of a mitigator against custody.

And once at the station, the atmosphere was clearly police dominated. Rogers was separated from her husband and any neutral parties and taken to a secure area to be read her Miranda rights and questioned. Rogers was then escorted to the polygraph room where she sat in an examination chair for over 2 hours while being questioned intensively by two officers.

Although Rogers was not physically restrained during the interrogation, in the sense of being handcuffed or locked in a room, the positioning of the officers during questioning would have made it hard for her to leave. We note that Rogers would have had a hard time even standing up when Wheeler was grasping both her hands. Additionally, with the exception of brief periods during which Rogers waited in the room alone, once the interrogation became more accusatory, Rogers' only exit from the room was continuously blocked by either Sellers or Wheeler sitting very close, knee to knee, in front of her.

After its initial phase, the questioning of Rogers became verbally dominated by the officers — confrontational, and more aggressive. Wheeler told Rogers that they knew she had hurt Alex and that they only sought answers as to her motivation. Sellers made clear to Rogers that shaking a baby would be a crime, while a fall or similar accident would not be. Sellers also told Rogers, deceptively, that Alex was going to be okay, although Sellers knew this to be untrue. Once Rogers was caught in a lie about falling down the stairs, Rogers was no longer given the impression that an accident would suffice as an explanation. She was expected to admit in detail to what the officers already knew she had done. Some sort of aggression by Rogers against Alex was, as Wheeler stated, the only logical explanation for the medical evidence.

A statement by the police to Rogers that she was free to go obviously could have had a significant impact on whether a reasonable person in Rogers' position would have felt free to go.⁶⁸ Rogers was not, however, told she was free to go — not even once. In fact, when Rogers finally declared that she was "done" and was not going to talk any more, the police still failed to indicate in any way that she was free to leave. To the contrary, Rogers was told to "just listen then." Rather than being told she was free to leave, Rogers was essentially told to sit there and listen.

68 See, State v. McKinney, supra note 51; State v. Saltzman, 224 Neb. 74, 395 N.W.2d 530 (1986). See, also, U.S. v. Galceran, 301 F.3d 927 (8th Cir. 2002); Burket v. Angelone, 208 F.3d 172 (4th Cir. 2000); U.S. v. Fazio, 914 F.2d 950 (7th Cir. 1990); Wilson v. Fairman, 166 Fed. Appx. 267 (9th Cir. 2006); U.S. v. Hemmings, 64 Fed. Appx. 68 (9th Cir. 2003); Betts v. State, 799 P.2d 325 (Alaska App. 1990); State v. Turner, 267 Conn. 414, 838 A.2d 947 (2004); Loredo v. State, 836 So. 2d 1103 (Fla.App. 2003); McAllister v. State, 270 Ga. 224, 507 S.E.2d 448 (1998); People v. Urban, 196 Ill. App. 3d 310, 553 N.E.2d 740, 143 Ill. Dec. 33 (1990); Luna v. State, 788 N.E.2d 832 (Ind. 2003); State v. Boldridge, 274 Kan. 795, 57 P.3d 8 (2002); Allen v. State, 158 Md. App. 194, 857 A.2d 101 (2004); Sullivan v. State, 585 N.W.2d 782 (Minn. 1998); State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002); State v. Roble-Baker, 340 Or. 631, 136 P.3d 22 (2006); State v. Marinim, 638 A.2d 507 (R.I. 1994); State v. Davis, 735 S.W.2d 854 (Tenn.Crim.App. 1987); State v. Pontbriand, supra note 62.

We find Sellers' statement regarding the functioning of the door to the room merely an explanation to Rogers that she was not being locked in alone. Being physically capable of getting out of a room is not the same as being given permission to walk out of a station full of police officers and simply go home.

It is true that Rogers was, after she confessed, eventually allowed to go home. But we find this fact to be of little consequence, compared to the other indicia of custody, when a reasonable person in Rogers' position at the time of her confession would not have believed that was going to occur. Rogers was essentially told that the officers had probable cause to arrest her. Knowing this, without additional circumstances indicating otherwise, it is hard to imagine that a reasonable person in Rogers' position would think that the officers would allow that person to just get up and leave.

Rogers experienced approximately 2 hours of isolation in a police-dominated atmosphere, physically blocked from the exit, and subjected to aggressive accusatorial interrogation in which she was confronted with substantial evidence to prove her guilty of a crime. Rogers was "in custody" for purposes of the Miranda protections.

UNEQUIVOCAL INVOCATION

The next inquiry is whether Rogers invoked the Miranda protections to which she was entitled. Rogers claims she invoked the right to remain silent and that the police failed to scrupulously honor that right. Like custody, the question of whether a suspect has invoked the right to remain silent is a mixed question of law and fact.⁶⁹ We thus review the district court's findings of historical fact for clear error, but review de novo the application of the constitutional principles to these facts.⁷⁰ In this case, there are no historical facts in dispute and all the circumstances relevant to the invocation question are contained in the videotape of the December 7, 2005, interrogation. The only question is whether, as a matter of law, a reasonable police officer presented with these circumstances would have understood Rogers' statement as an invocation of the right to remain silent.⁷¹

69 See, U.S. v. Rodriguez, supra note 12; U.S. v. Uribe-Galindo, supra note 12; Munson v. State, supra note 12; People v. Quezada, supra note 12; Cuervo v. State, supra note 12; People v. Howerton, supra note 12; State v. Grant, supra note 12; State v. Holcomb, supra note 12; Com. v. Redmond, supra note 12; State v. Jennings, supra note 11.

70 See id. See, also, generally, Thompson v. Keohane, supra note 3.

71 See, e.g., Davis v. United States, supra note 37; Robinson v. State, 373 Ark. 305, ____ S.W.3d ____ (2008) (Glaze, J., dissenting); People v. Arroya, 988 P.2d 1124 (Colo. 1999); State v. Day, 619 N.W.2d 745 (Minn. 2000); People v. Douglas, 8 A.D.3d 980, 778 N.Y.S.2d 622 (2004); State v. Tuttle, 650 N.W.2d 20 (S.D. 2002).

As mentioned, the safeguards of Miranda "'assure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process.'"⁷² The suspect has the right to "control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation."⁷³

72 Connecticut v. Barrett, 479 U.S. 523, 528, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987) (emphasis omitted), quoting Miranda v. Arizona, supra note 2.

73 Michigan v. Mosley, supra note 35, 423 U.S. at 103-04.

On the other hand, officers should not have to guess when a suspect has changed his or her mind and wishes the questioning to end. They are not required to accept as conclusive any statement or act, no matter how ambiguous, as a sign that a suspect desires to cut off questioning.⁷⁴ Instead, officers are bound only when the suspect makes a statement that, considered under the circumstances in which it is made, a reasonable police officer would have understood to be a request to cut off all questioning.⁷⁵ In other words, to effectively invoke the protections of Miranda, the suspect's invocation of the right to remain silent must be "unambiguous," "unequivocal," or "clear."⁷⁶

74 State v. Thomas, supra note 5; State v. Mata, supra note 6; State v. LaChappell, 222 Neb. 112, 382 N.W.2d 343 (1986).

75 See, e.g., Davis v. United States, supra note 37; Robinson v. State, supra note 71 (Glaze, J., dissenting); People v. Arroya, supra note 71; State v. Day, supra note 71; State v. Tuttle, supra note 71.

76 Davis v. United States, supra note 37, 512 U.S. at 460, 462.

[12,13] In considering whether a suspect has clearly invoked the right to remain silent, we review not only the words of the criminal defendant, but also the context of the invocation.⁷⁷ Relevant circumstances include the words spoken by the defendant and the interrogating officer, the officer's response to the suspect's words, the speech patterns of the suspect, the content of the interrogation, the demeanor and tone of the interrogating officer, the suspect's behavior during questioning, the point at which the suspect allegedly invoked the right to remain silent, and who was present during the interrogation.⁷⁸ A court might also consider the questions that drew the statement, as well as the officer's response to the statement.⁷⁹

77 See, Davis v. United States, supra note 37; Abela v. Martin, 380 F.3d 915 (6th Cir. 2004); Robinson v. State, supra note 71; People v. Arroya, supra note 71; State v. Tuttle, supra note 71. See, also, Smith v. Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984).

78 People v. Arroya, supra note 71. See, also, People v. Glover, supra note 12.

79 Id.

As is the case for the custody inquiry, while a determination of invocation will always depend on an analysis of the circumstances in a particular case, patterns have emerged from the case law that provide context to our application of these rules. For instance, generally, courts have found statements prefaced by words of equivocation, such as "I think," "maybe," or "I believe," or phrased in terms of a hypothetical, such as, "'If I don't answer any more questions, then what happens?'"⁸⁰ to be equivocal, although the surrounding circumstances are still considered before making this conclusion.⁸¹ In Com. v. Almonte,⁸² for example, the court rejected the defendant's argument that he had clearly invoked his right to remain silent by saying, "' I believe I've said what I have to say.'" In so concluding, the court looked not only to the language of this "isolated remark,"⁸³ but also to the surrounding circumstances — that the defendant had initiated the confession by coming to the police station unbidden and had seemed calm and under control throughout the interrogation.

80 See People v. Pierce, 223 Ill. App. 3d 423, 430, 585 N.E.2d 255, 260, 165 Ill. Dec. 859, 864 (1991).

81 See, e.g., Davis v. United States, supra note 37; Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003); Mohn v. Bock, 208 F. Supp. 2d 796 (E.D. Mich. 2002).

82 Com. v. Almonte, 444 Mass. 511, 517, 829 N.E.2d 1094, 1099 (2005) (emphasis supplied), overruled in part on other grounds, Com. v. Carlino, 449 Mass. 71, 865 N.E.2d 767 (2007).

83 Id. at 519, 829 N.E.2d at 1101.

Even absent express words of equivocation, it is unlikely for a statement to be an unequivocal invocation of the right to remain silent if the language of the statement itself indicates simply that the suspect has finished his or her colloquy of events — as opposed to a wish to cease speaking altogether.⁸⁴ Thus, in light of the circumstances presented, statements such as "'that's it'"⁸⁵ and "'So, that's all I [got] to say'"⁸⁶ have been found not to be clear invocations of Miranda rights. Conversely, where the suspect says he or she is not yet ready to speak, "now," or "at this time," courts have likewise found, under the circumstances presented, that the statement was equivocal.⁸⁷

84 See, Gamble v. State, 791 So. 2d 409 (Ala.Crim.App. 2000); Denny v. State, 617 So. 2d 323 (Fla.App. 1993); State v. McCorkendale, 267 Kan. 263, 979 P.2d 1239 (1999); State v. Birth, 37 Kan. App. 2d 753, 158 P.3d 345 (2007). See, also, State v. Thomas, supra note 5.

85 Denny v. State, supra note 84, 617 So. 2d at 324.

86 State v. McCorkendale, supra note 84, 267 Kan. at 273, 979 P.2d at 1247.

87 See, U.S. v. Al-Muqsit, 191 F.3d 928 (8th Cir. 1999), vacated in part on other grounds, U.S. v. Logan, 210 F.3d 820 (8th Cir. 2000); State v. Bieker, 35 Kan. App. 2d 427, 132 P.3d 478 (2006); Com. v. Leahy, 445 Mass. 481, 838 N.E.2d 1220 (2005); State v. Ganpat, 732 N.W.2d 232 (Minn. 2007); State v. Holcomb, supra note 12; State v. Sabetta, 680 A.2d 927 (R.I. 1996); Calderon-Hernandez v. Trombley, No. 06-CV-11665, 2007 WL 4181274 (E.D. Mich. Nov. 27, 2007) (unpublished opinion).

Statements which indicate only the suspect's desire to avoid answering a particular question or to avoid speaking about particular themes have also been held, under the circumstances, not to trigger Miranda protections.⁸⁸ This is because an invocation of the right to remain silent is a communication that the suspect wishes questioning as a whole to cease.⁸⁹

88 U.S. v. Thomas, 358 F. Supp. 2d 1100 (M.D. Ala. 2005); Centobie v. State, 861 So. 2d 1111 (Ala.Crim.App. 2001); State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995); State v. Wright, 196 Wis. 2d 149, 537 N.W.2d 134 (Wis.App. 1995). Compare, Cuervo v. State, supra note 12; Almeida v. State, 737 So. 2d 520 (Fla. 1999); People v. Aldridge, 79 Ill. 2d 87, 402 N.E.2d 176, 37 Ill. Dec. 286 (1980); State v. Deases, 518 N.W.2d 784 (Iowa 1994); Freeman v. State, 158 Md. App. 402, 857 A.2d 557 (2004); State v. Jobe, 486 N.W.2d 407 (Minn. 1992); People v. Brown, 266 A.D.2d 838, 700 N.Y.S.2d 605 (1999).

89 U.S. v. Thomas, supra note 88; State v. Williams, 535 N.W.2d 277 (Minn. 1995). See, also, State v. Day, supra note 71.

Finally, courts have found, under certain circumstances, that a suspect fails to unequivocally invoke the right to remain silent when what might otherwise be a clear statement is inextricably attached to language inconsistent with a wish to remain silent. While statements made by the suspect after an invocation of the right to cut off questioning may not generally be used to interject ambiguity where originally there was non,⁹⁰ the analysis is different where a single statement under consideration is internally inconsistent. Courts have thus found ambiguity where an utterance conveying a desire to end questioning is "separated by little more than a breath"⁹¹ from further utterances that would lead a reasonable officer to doubt whether the defendant in fact wished to do so.⁹²

90 See, Smith v. Illinois, supra note 77; Anderson v. Terhune, 516 F.3d 781 (9th Cir. 2008).

91 Mayes v. State, supra note 12, 8 S.W.3d at 359.

92 U.S. v. Stepherson, 152 Fed. Appx. 904 (11th Cir. 2005); State v. Thomas, supra note 5; State v. Pitts, supra note 67; State v. Whipple, 134 Idaho 498, 5 P.3d 478 (Idaho App. 2000); Haviland v. State, 677 N.E.2d 509 (Ind. 1997); Furnish v. Com., 95 S.W.3d 34 (Ky. 2002); State v. Jones, 333 Mont. 294, 142 P.3d 851 (2006); People v. Lowin, 36 A.D.3d 1153, 827 N.Y.S.2d 782 (2007); State v. Jackson, 107 Ohio St. 3d 300, 839 N.E.2d 362 (2006). Compare State v. Astello, 602 N.W.2d 190 (Iowa App. 1999).

In State v. Thomas, for instance, we found that the defendant had not clearly invoked the right to remain silent when his statement, "'I'm done talkin' man,'" was followed directly by "a question requesting further information, which also acted to encourage further dialog."⁹³ The statement Kelvin L. Thomas made to police during questioning was, "'I'm done talkin' man, I know what I did, how can ya'll keep on saying I did it[?]'"⁹⁴ The statement, we observed, was made when Thomas interrupted accusations by the officers. And Thomas continued to converse with the officers after he made the statement. We concluded that a reasonable police officer could have interpreted this "single statement" as merely an expression of Thomas' frustration with the investigators' unwillingness to believe him.⁹⁵ It was not, therefore, "a clearly stated intent to end the interview."⁹⁶

93 State v. Thomas, supra note 5, 267 Neb. at 350, 673 N.W.2d at 908.

94 Id.

95 Id.

96 Id.

On the other hand, certain types of statements, neither prefaced nor immediately followed by words diminishing their meaning, are generally considered to be clear and unambiguous invocations of the right to cut off questioning. For instance, when the defendant in Anderson v. Terhune ⁹⁷ attempted to stop police questioning by stating, "'I don't even wanna talk about this no more,'" "'Uh! I'm through with this,'" and "'I plead the Fifth,'" the court held that the defendant's invocation of his right to remain silent was not only unequivocal, but "pristine." Similarly, the court in State v. Goetsch ⁹⁸ found the suspect's statement, "'I don't want to talk about this anymore,'" to be clear, and the statement, "'I don't want to talk no more,'" was found by the court in Com. v. King ⁹⁹ to be likewise unambiguous. The court in People v. Douglas ¹⁰⁰ concluded that the defendant's statement, "'I have nothing further to say,'" could not have been interpreted by a reasonable police officer as anything other than an expression that he wished to stop answering police questions, and thus, remain silent.

97 Anderson v. Terhune, supra note 90, 516 F.3d at 784.

98 State v. Goetsch, 186 Wis. 2d 1, 6, 519 N.W.2d 634, 636 (Wis.App. 1994).

99 Com. v. King, 34 Mass. App. 466, 468, 612 N.E.2d 690, 691 (1993).

100 People v. Douglas, supra note 71, 8 A.D.3d at 980, 778 N.Y.S.2d at 623. Compare State v. McCorkendale, supra note 84.

In Mayes v. State,¹⁰¹ the suspect, after waiving her Miranda rights and speaking for approximately 30 minutes about how she thought she was being framed, stated, "'I'm going to stop talking'" when the interrogation became more confrontational. The officer continued speaking to the suspect, and 4 minutes later, the suspect said, "'I'm going to shut up. I'm not going to say another goddamned thing.'"¹⁰² The court concluded that these statements evinced an unequivocal declaration of her desire to halt further comment — which thus obligated the officers to end their interrogation.¹⁰³ Similarly, "'I'm done talking'" was a sufficient invocation of the right to remain silent in State v. Kramer,¹⁰⁴ and several cases have held that the simple statement "I'm done" was a clear invocation under the circumstances surrounding the interrogation.¹⁰⁵

101 Mayes v. State, supra note 12, 8 S.W.3d at 357.

102 Id.

103 Mayes v. State, supra note 12.

104 State v. Kramer, No. C5-00-1195, 2001 WL 604955 at *8 (Minn.App. May 25, 2001) (unpublished opinion). See, also, State v. Sawyer, 561 So. 2d 278 (Fla.App. 1990).

105 See, e.g., State v. Astello, supra note 92; U.S. v. Thurman, No. 06-CR-005, 2006 WL 1049541 (E.D. Wis. Jan. 10, 2006) (unpublished opinion).

In this case, we conclude that Rogers unambiguously invoked her right to remain silent. When Wheeler kept insisting that they were going to "get to the bottom of this" and "get the whole truth," Rogers responded: "No, I'm not. I'm done. I won't." But Wheeler pressed on at length about how guilt would "eat" at Rogers "forever and ever" if she did not confess. While working these themes, Wheeler tried to reengage Rogers with direct questions, but Rogers answered only with simple "no's." When Wheeler then tried the accusation, "and it wasn't a fall down the stairs. Something else happened," Rogers responded in no uncertain terms: "Yes, it was. I didn't — I — I'm not talking no more." (Emphasis supplied.)

Nothing before or after Rogers' statements marred their clarity. Rogers said that she was "done," she would no longer be helping Wheeler to "get to the bottom of this," and she was "not talking no more." Furthermore, we observe that Rogers' demeanor and tone when making these statements conveyed the finality with which she intended them. Rogers did not seek to reengage in conversation, but sat silent immediately after making the statements.

Not only should a reasonable police officer in Wheeler's position have understood those statements to be an invocation of the right to remain silent, it appears that Wheeler actually understood the statements in this way, because Wheeler responded: "Well, just listen then." Wheeler's instruction to "just listen" implicitly acknowledged that Rogers intended to stop talking. But Wheeler's training, by her own admission, had apparently not informed her that a suspect's statements, such as "I'm done" and "I'm not talking no more," should be scrupulously honored. So, Wheeler pressed on, and was eventually able to extract a confession.

The State's reliance on State v. Thomas,¹⁰⁶ as support for its argument that Rogers' statements were not a clear invocation, is misplaced. Not only was Thomas' statement internally inconsistent with the alleged invocation, as already discussed, but the context of his statement was also different. Thomas, already a convicted felon, said that he was "done talkin[g]" in the midst of an argumentative dialog in which he appeared to be seeking information about what the police already knew and the probable consequences of his acts if he confessed. In this case, despite the fact that Rogers was visibly intimidated and had no prior experience with the justice system, Rogers made not one, but two clear requests that the questioning cease. There were no internal inconsistencies to these requests, and as already mentioned, unlike Thomas, Rogers did not casually continue dialog or seek additional information, but ceased for a long time to speak at all. A suspect is not required to use special or ritualistic phrases to invoke the right to remain silent, and a reasonable police officer should have understood that Rogers was invoking her right to remain silent.¹⁰⁷ We find, considering all the surrounding circumstances of the statements in issue, that Rogers effectively invoked her Fifth Amendment rights.

106 State v. Thomas, supra note 5.

107 See, Davis v. United States, supra note 37; People v. Arroya, supra note 71.

SCRUPULOUSLY HONOR

It is the mandate of the U.S. Supreme Court that the protections of Miranda be strictly adhered to when a suspect is subjected to the inherently coercive environment of modern custodial interrogations. The techniques common to such interrogations are not per se prohibited, but suspects must be protected from the coercion of these techniques by being advised of their Miranda rights and by the scrupulous honoring of those rights if they are invoked. The U.S. Supreme Court has made it clear that the police do not "scrupulously honor" a suspect's invocation of the right to remain silent when they press on with little or no cessation in the interrogation.¹⁰⁸ The Court prohibits officers from simply persisting in repeated efforts to wear down the suspect's resistance and change his or her mind about the invocation.¹⁰⁹ But that is exactly what happened here. Thus, Rogers' invocation of her right to remain silent was not scrupulously honored.

108 Michigan v. Mosley, supra note 35.

109 Id.

HARMLESS ERROR

We therefore conclude that it was error for the trial court to deny Rogers' motion to suppress and to admit the confession that was taken in violation of Rogers' Miranda rights. Still, even a constitutional error does not automatically require reversal of the conviction if that error is a "'trial error'" and not a "structural defect."¹¹⁰ As the U.S. Supreme Court has noted, the admission of an improperly obtained confession is a "trial error," and thus, its erroneous admission is subject to the same "harmless error" standard as other trial errors.¹¹¹ We consider whether the admission of Rogers' confession was harmless error.

110 See Arizona v. Fulminante, supra note 8, 499 U.S. at 310.

111 Id.; Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174, 33 L. Ed. 2d 1 (1972).

Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.¹¹²

112 See, State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007); State v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002).

There was substantial circumstantial evidence incriminating Rogers in this case that may well have been sufficient, without the confession, to sustain a conviction. But we cannot conclude, on our review of the record, that such evidence was so overwhelming that the verdict was surely unattributable to the erroneous admission of Rogers' confession.¹¹³ We cannot find the admission of Rogers' confession to be "harmless," and we therefore find that the judgment should be reversed.

113 See, Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958); State v. Leger, 936 So. 2d 108 (La. 2006); Commonwealth v. Hosey, 368 Mass. 571, 334 N.E.2d 44 (1975).

DOUBLE JEOPARDY

Having found reversible error, we must determine whether the totality of the evidence admitted by the district court was sufficient to sustain Rogers' conviction. If it was not, then concepts of double jeopardy would not allow a remand for a new trial.¹¹⁴ The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.¹¹⁵ We find that Rogers' confession and the circumstantial evidence against her were sufficient to sustain the verdict. We therefore reverse the conviction and remand the cause for a new trial.

114 See, e.g., State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).

115 Id.

REMAINING ASSIGNMENTS OF ERROR

In her remaining assignments of error, Rogers contends that the district court erred in imposing an excessive sentence and in overruling her motion to declare that the mandatory minimum sentence of 20 years for child abuse resulting in death is unconstitutional, because it violates the Equal Protection Clause and the Separation of Powers Clause. Because we have determined that the district court committed reversible error by admitting statements made by Rogers after her invocation of her right to remain silent, we do not address these assignments of error. An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.¹¹⁶

116 State v. Sommer, 273 Neb. 587, 731 N.W.2d 566 (2007).

CONCLUSION

For the reasons discussed, we conclude that the district court erred in denying Rogers' motion to suppress to the extent that the court admitted statements made by Rogers after she unambiguously invoked her right to remain silent. Because the evidence presented by the State was sufficient to sustain Rogers' conviction, we reverse the conviction and remand the cause for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.