State v. Rogers

state v. rogers 	37
Cite as 277 Neb. 37
State of NebraSka , appellee , v.
april rogerS, appellaNt.
760 N.W.2d 35
Filed January 30, 2009. 	No. s-07-085.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights:
Appeal and Error. In reviewing a motion to suppress a confession based on
the claimed involuntariness of the statement, including claims that it was pro-
cured in violation of the safeguards established by the U.s. supreme Court in
Miranda v. Arizona, 384 U.s. 436, 86 s. Ct. 1602, 16 L. ed. 2d 694 (1966), an
appellate court applies a two-part standard of review. With regard to historical
facts, an appellate court reviews the trial court’s findings for clear error. Whether
those facts suffice to meet the constitutional standards, however, is a ques-
tion 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 exer-
cise 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 and 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 move-
ment 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,
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

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: (1) an assessment of the circumstances sur-
rounding the interrogation and (2) whether, given those circumstances, a reason-
able 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 question-
ing 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 Sheriffs. relevant circumstances con-
sidered 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, the 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 scrupu-
lously 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 improp-
erly 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. M ichael coffey, Judge. reversed and remanded for a
new trial.
38 	277 NeBraska reports

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 M iller-lerMaN, JJ.
MccorMack , J.
NatUre oF Case
april rogers was convicted of intentional child abuse result-
ing in death, a class IB felony,1 and sentenced to life imprison-
ment. the primary issue presented in this appeal is whether
rogers’ admission to hurting alex tay should have been sup-
pressed. the record shows that when rogers was interrogated
by sheriff’s officers, she tried to assert her constitutional right
to remain silent, but the officers 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.
BaCkgroUND
rogers was convicted after a bench trial held on a stipu-
lated 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 prob-
lem, 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
1 see Neb. rev. stat. § 28-707 (Cum. supp. 2004).
state v. rogers 	39
Cite as 277 Neb. 37

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.
an 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 immedi-
ate 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 ear-
lier 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 non-
accidental 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 aresult [sic] of shaken baby and[/]or shaken
impact baby syndrome.” the report of an autopsy conducted
40 	277 NeBraska reports

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 officers 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 conduct-
ing 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 expla-
nation 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 hema-
tomas that were approximately 7 to 10 days old. the doctor
clarified for Wheeler that rogers’ story of a child sitting or
state v. rogers 	41
Cite as 277 Neb. 37

bouncing on alex’s neck was inconsistent with the severity of
alex’s injuries.
By Wednesday, December 7, 2005, the officers 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 there-
after, 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 differ-
ent 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
42 	277 NeBraska reports

remained in the room, but moved to a different position, stand-
ing 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 morn-
ing before alex’s parents took him to rogers’ house. Wheeler
explained to rogers that based on what the doctors were say-
ing, 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
state v. rogers 	43
Cite as 277 Neb. 37

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 acci-
dents, 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 comfort-
ing 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 of 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
44 	277 NeBraska reports

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 automati-
cally 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 accu-
sations, rogers became increasingly withdrawn and despond-
ent. 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
state v. rogers 	45
Cite as 277 Neb. 37

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 volun-
tarily 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 testi-
fied, 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 con-
tinue 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 con-
victed 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 unconstitu-
tional because it violates the equal protection Clause and the
separation of powers Clause.
staNDarD oF reVIeW
[1] 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
46 	277 NeBraska reports

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
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. Thomas5 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.
thus, while we recognize that we have not always been
precise in distinguishing issues of historical fact from ques-
tions 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
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).
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).
7 see, e.g., State v. Mata, supra note 6 (resolution of ambiguity in invoca-
tion 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).
state v. rogers 	47
Cite as 277 Neb. 37

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
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. Matheny, 46 p.3d 453
(Colo. 2002); State v. Fields, 265 Conn. 184, 827 a.2d 690 (2003); State v.
Buch, 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 v.
Miller, 573 N.W.2d 661 (Minn. 1998); State v. Cooper, 124 N.M. 277,
949 p.2d 660 (1997); State v. Hyde, 352 N.C. 37, 530 s.e.2d 281 (2000);
State v. Acremant, 338 or. 302, 108 p.3d 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. Narvaez-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. Barrera, 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.
48 	277 NeBraska reports

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
aNaLYsIs
M iranda v. arizona
[2] the rubric of prophylactic safeguards15 to protect indi-
viduals from the “‘inherently compelling pressures’”16 of cus-
todial 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 “coer-
cion 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
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
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.
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.
state v. rogers 	49
Cite as 277 Neb. 37

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 “involun-
tary 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 interroga-
tion “work to undermine the individual’s will to resist and
to compel him to speak where he would not otherwise do
so freely.”24
the Court in Miranda described in great detail the pres-
sures to which it was referring: a suspect is usually ques-
tioned 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]
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.
25 Id., 384 U.s. at 451.
26 Id., 384 U.s. at 450.
50 	277 NeBraska reports

subject and overwhelm him with [their] inexorable will to
obtain the truth.’”27
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
[3] to counter these pressures, and thereby to “protect pre-
cious Fifth amendment rights,”30 the Court in Miranda estab-
lished 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
[4] the Court described this as the right to “cut off ques-
tioning.”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
27 Id., 384 U.s. at 451.
28 Id., 384 U.s. at 455.
29 Id.
30 Id., 384 U.s. at 457.
31 Id., 384 U.s. at 473-74.
32 Id., 384 U.s. at 474.
33 Id.
34 Id., 384 U.s. at 445.
state v. rogers 	51
Cite as 277 Neb. 37

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
officers failed to honor her right to cut off questioning.
[5] 	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 question-
ing, the suspect must articulate his or her desire with sufficient
clarity such that a reasonable police officer under the circum-
stances 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,
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
37.
52 	277 NeBraska reports

the district court determined that rogers had failed to unam-
biguously invoke her right to cut off questioning.
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’ invoca-
tion 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
rogers’ motion alleged, among other things, that her con-
fession 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 actu-
ally 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 sur-
rounding the giving of a confession fall under the Due process
Clause of the 14th amendment44; cases examining the pro-
phylactic 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
Moreover, it is clear from the hearing on the motion to sup-
press that the parties were actively presenting to the court their
41 Reimers-Hild v. State, 274 Neb. 438, 741 N.W.2d 155 (2007).
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.
state v. rogers 	53
Cite as 277 Neb. 37

views on whether rogers had unambiguously invoked her right
to remain silent. thus, the court, in its order, actually deter-
mined 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 constitu-
tional 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
[6] 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 inter-
rogation.”46 It is only in this context that the prophylactic safe-
guards of Miranda are considered justified and necessary.
[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 cus-
tody) 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 reason-
able 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
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.
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).
54 	277 NeBraska reports

the parties do not dispute that rogers was being “interrogated”
by the officers 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.
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 suppres-
sion 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 sheriff’s office. the court next described rogers’ infor-
mal conversations with the officers 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 dis-
trict 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
state v. rogers 	55
Cite as 277 Neb. 37

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 argu-
ment for this conclusion, however, the state attacked the word-
ing of rogers’ motion to suppress, an argument that we have
already considered above.
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, inter-
rogation, 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 sheriff’s
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.
[9,10] the U.s. supreme Court has explained that the rele-
vant inquiry in determining “custody” is whether, given the
objective circumstances of the interrogation,52 “a reasonable
49 supplemental brief for appellee at 8.
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.
52 Stansbury v. California, 511 U.s. 318, 114 s. Ct. 1526, 128 L. ed. 2d 293
(1994).
56 	277 NeBraska reports

person [would] have felt he or she was not at liberty to ter-
minate 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 posi-
tion 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
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 per-
son 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 defend-
ant, or used other interrogation techniques to pressure the
suspect; and (8) whether the police manifested to the defendant
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).
state v. rogers 	57
Cite as 277 Neb. 37

a belief that the defendant was culpable and that they had the
evidence to prove it.57
In State v. Mata,58 we also found helpful to our analysis of
whether the suspect was in custody, six common indicia out-
lined 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 dur-
ing 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 aggravat-
ing 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.
any interview of one suspected of a crime by a police offi-
cer 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 reason-
able person in the suspect’s position would feel the necessary
restraint on freedom of movement, the coerciveness of the
interrogation environment is still pertinent62:
Because the Court in Miranda expressed concern with
the coerciveness of situations in which the suspect was
57 see annot., 29 a.L.r.6th 1 (2007).
58 State v. Mata, supra note 6.
59 U.S. v. Axsom, 289 F.3d 496 (8th Cir. 2002).
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).
58 	277 NeBraska reports

“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, involv-
ing leading questions and the discounting of the suspect’s
denials of involvement.63
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 vol-
untarily 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 oppo-
site, 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.
63 2 Wayne r. LaFave et al., Criminal procedure § 6.6(f) at 750-51 (3d ed.
2007).
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.
state v. rogers 	59
Cite as 277 Neb. 37

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 defend-
ant 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 determi-
nation 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 accusa-
tions, a reasonable person, the court concluded, would believe
he or she was not free to leave.67
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
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)).
60 	277 NeBraska reports

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 arriv-
ing at her house and asking her to return to the station for fur-
ther 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 of her hands. additionally, with the excep-
tion 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
state v. rogers 	61
Cite as 277 Neb. 37

by rogers against alex was, as Wheeler stated, the only logical
explanation for the medical evidence.
a statement by the officers 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 officers 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.
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 permis-
sion 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 conse-
quence, compared to the other indicia of custody, when a rea-
sonable 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
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. Marini, 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.
62 	277 NeBraska reports

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 officers 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, interroga-
tion. the only question is whether, as a matter of law, a reason-
able police officer presented with these circumstances would
have understood rogers’ statement as an invocation of the right
to remain silent.71
[11] as mentioned, the safeguards of Miranda “‘assure that
the individual’s right to choose between speech and silence
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, 283 s.W.3d 558 (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).
state v. rogers 	63
Cite as 277 Neb. 37

remains unfettered throughout the interrogation process.’”72
the suspect has the right to “control the time at which ques-
tioning occurs, the subjects discussed, and the duration of the
interrogation.”73
on the other hand, officers should not have to guess when a
suspect has changed his or her mind and wishes the question-
ing 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, consid-
ered under the circumstances in which it is made, a reason-
able 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
[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
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.
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.
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).
64 	277 NeBraska reports

during questioning, the point at which the suspect allegedly
invoked the right to remain silent, and who was present dur-
ing the interrogation.78 a court might also consider the ques-
tions that drew the statement, as well as the officer’s response
to the statement.79
as is the case for the custody inquiry, while a determina-
tion 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 argu-
ment that he had clearly invoked his right to remain silent by
saying, “‘I believe I’ve said what I have to say.’” In so conclud-
ing, 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.
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
78 People v. Arroya, supra note 71. see, also, People v. Glover, supra note
12.
79 Id.
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.
state v. rogers 	65
Cite as 277 Neb. 37

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
statements which indicate only the suspect’s desire to
avoid answering a particular question or to avoid speak-
ing 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 com-
munication that the suspect wishes questioning as a whole
to cease.89
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).
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.
66 	277 NeBraska reports

[14] 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 gener-
ally be used to interject ambiguity where originally there
was none,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
In State v. Thomas, for instance, we found that the defend-
ant 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 state-
ment. 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
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).
93 State v. Thomas, supra note 5, 267 Neb. at 350, 673 N.W.2d at 908.
94 Id.
state v. rogers 	67
Cite as 277 Neb. 37

believe him.95 It was not, therefore, “a clearly stated intent to
end the interview.”96
on the other hand, certain types of statements, neither pref-
aced 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. Terhune97 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. Goetsch98 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. King99 to be likewise unam-
biguous. the court in People v. Douglas100 concluded that the
defendant’s statement, “‘I have nothing further to say,’” could
not have been interpreted by a reasonable police officer as any-
thing other than an expression that he wished to stop answering
police questions, and thus, remain silent.
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
95 Id.
96 Id.
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.
101 Mayes v. State, supra note 12, 8 s.W.3d at 357.
102 Id.
68 	277 NeBraska reports

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 talk-
ing’” 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 circum-
stances surrounding the interrogation.105
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 talk-
ing 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 officer in Wheeler’s position
have understood those statements to be an invocation of the
right to remain silent, it appears that Wheeler actually under-
stood the statements in this way, because Wheeler responded:
“Well, just listen then.” Wheeler’s instruction to “just listen”
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. apr. 18, 2006) (unpublished opinion).
state v. rogers 	69
Cite as 277 Neb. 37

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.
[15] the state’s reliance on State v. Thomas,106 as support for
its argument that rogers’ statements were not a clear invoca-
tion, 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.
ScrupulouSly hoNor
[16] 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 mod-
ern custodial interrogations. the techniques common to such
interrogations are not per se prohibited, but suspects must
106 State v. Thomas, supra note 5.
107 see, Davis v. United States, supra note 37; People v. Arroya, supra note
71.
70 	277 NeBraska reports

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 sus-
pect’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.
harMleSS error
[17] We therefore conclude that it was error for the trial
court to deny rogers’ motion to suppress and to admit the con-
fession 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.
[18] 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 ver-
dict would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely
unattributable to the error.112
108 Michigan v. Mosley, supra note 35.
109 Id.
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).
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).
state v. rogers 	71
Cite as 277 Neb. 37

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 con-
clude, 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.
double Jeopardy
[19] 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.
reMaiNiNg aSSigNMeNtS of error
[20] In her remaining assignments of error, rogers con-
tends 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
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).
114 see, e.g., State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
115 Id.
72 	277 NeBraska reports

to engage in an analysis that is not needed to adjudicate the
controversy before it.116
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 unam-
biguously invoked her right to remain silent. Because the evi-
dence 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 .
116 State v. Sommer, 273 Neb. 587, 731 N.W.2d 566 (2007).
gerrard, J., concurring.
april rogers was asked to come to the sheriff’s office for
interrogation, where she was placed in a small room and relent-
lessly questioned by two officers for over 2 hours. Yet, the dis-
senting justices would find that she was not in police custody.
and before rogers broke down under interrogation, she told
the officers that she was “done” and “not talking no more.”
But one of the dissenting judges believes she did not invoke
her right to remain silent. the fact of the matter is that when
rogers said she was done talking, the law required the officers
to stop questioning her. the U.s. supreme Court has been
quite clear on that point, and we are not at liberty to disagree.
therefore, I join the majority’s opinion concluding that rogers’
statement to officers should not have been admitted into evi-
dence. and for these further reasons, I concur.
staNDarD oF reVIeW
the first dissenting opinion begins by questioning our stan-
dard of review. But the dissent’s criticism reads too much
into our decisions in State v. Thomas1 and State v. Mata.2 the
standard of review for a mixed question of law and fact, as
1 State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004).
2 State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003).
state v. rogers 	73
Cite as 277 Neb. 37

explained in our opinion, is to review the trial court’s factual
findings for clear error, but whether those facts meet con-
stitutional standards is a question of law.3 although Thomas
and Mata did not clearly articulate that distinction, they do
not demand the interpretation given them by the dissent-
ing opinion.
and the dissent’s criticism of this two-pronged standard of
review fails to account for its flexibility. the dissent suggests
that the trial court, with the benefit of live testimony, is in a bet-
ter position to make an invocation inquiry. But live testimony
is uniquely helpful only in making factual determinations, on
which we properly defer to the trial court’s conclusions. Live
testimony does nothing to illuminate a court’s evaluation of
what the federal Constitution requires.
even more problematic is the dissent’s suggestion that we
should “reserve action” on articulating our standard of review,
because the parties neither briefed nor argued it. that assertion
is not correct. Both parties, in their briefs, set forth the proposi-
tions of law they believed relevant to the standard of review for
rogers’ motion to suppress her statement.4 and the standard of
review set forth in the state’s brief is not the one endorsed by
the dissenting opinion—it is the one set forth in the majority
opinion.5 In any event, the parties properly addressed the stan-
dard of review and the majority opinion correctly articulated
and applied it.
INVoCatIoN oF rIgHt
to reMaIN sILeNt
the first dissent begins its discussion of invocation by mis-
apprehending our decision in Mata.6 the language relied upon
by the dissent as being ambiguous—“‘I will plead the fifth
right now’”—was held to clearly invoke the Fifth amendment
3 see, e.g., Thompson v. Keohane, 516 U.s. 99, 116 s. Ct. 457, 133 L. ed.
2d 383 (1995); United States v. Bajakajian, 524 U.s. 321, 118 s. Ct. 2028,
141 L. ed. 2d 314 (1998).
4 see, brief for appellant at 3; brief for appellee at 7.
5 see brief for appellee at 7.
6 Mata, supra note 2.
74 	277 NeBraska reports

rights of the defendant in Mata, and his statements after that
point were suppressed.7
But more generally, the dissent oversimplifies this analysis
by focusing almost exclusively on the exact words spoken by
the suspect, rather than considering the context and manner in
which they were used. and I am not persuaded by the dissent’s
suggestion that we should rely only on Nebraska cases. this is
a question of federal constitutional law, on which other state
and federal courts have at least equal experience, in which
more factually comparable cases have arisen, and the decisions
of which are particularly helpful because they provide a more
comprehensive discussion of context than our decisions to this
point have required.
Nor am I persuaded by the dissent’s exhaustive parsing of
Thomas.8 Despite the dissent’s attempts to find deeper meaning
in it, Thomas was really a very simple case, in which we relied
on the ambiguity of the suspect’s uninterrupted statement. the
defendant in Thomas, kevin L. thomas, never clearly sought to
invoke his right to remain silent.
Instead, he interrupted an accusation that he had commit-
ted the crime by stating, “I’m done talkin’ man, I know
what I did, how can ya’ll keep on saying I did it.” after
this, thomas continued to converse with the officers.
thomas’ single statement that he was done talking could
be interpreted as a response in frustration to the investi-
gators’ unwillingness to believe that he was not involved
in the crime instead of a clear invocation of his right to
remain silent. thomas also followed the statement by a
question requesting further information, which also acted
to encourage further dialog. this single statement was
not a clearly stated intent to end the interview. Had he
wanted to terminate the interview, he could have made his
wishes clear.9
7 see id. at 680, 668 N.W.2d at 464.
8 Thomas, supra note 1.
9 Id. at 350, 673 N.W.2d at 908.
state v. rogers 	75
Cite as 277 Neb. 37

the majority opinion persuasively explains why the cir-
cumstances of Thomas are distinguishable from this case. and
the dissent is attacking a straw man in discussing whether the
criminal histories of thomas and rogers are relevant. Contrary
to the dissent’s suggestion, our analysis in this case does not
turn on that fact. our opinion in Thomas set forth lengthy
quotations from the police interview of thomas. It is difficult
to characterize the cat-and-mouse aspects of those colloquies
without noting that thomas’ strategy was informed by his
experience. But that simply describes the interviews to benefit
the reader who has not seen the evidence. our opinion in this
case plainly concludes that rogers’ words were unambiguous,
just as thomas’ were not, and rogers’ relative lack of a crimi-
nal history is not essential to that analysis.
CUstoDY
on the custody issue, the first dissent primarily relies on
oversimplifying the rubric to be applied to such questions.
While a categorical examination of factors to be considered can
be helpful, the dissent’s attempts to reduce it to a mathemati-
cal inquiry take the phrase “totality of the circumstances” far
too literally. although it reaches a different conclusion on this
issue, the second dissenting opinion persuasively explains why
our analysis should be broader than the six factors in U.S. v.
Axsom10 when more complicated circumstances warrant it, as
these do.
Nor am I persuaded by the first dissent’s almost exclusive
reliance on Yarborough v. Alvarado.11 the dissent attempts to
sidestep the most pertinent distinction between Alvarado and
the present case—the issue in Alvarado was not whether the
suspect was in custody when he confessed. rather, the issue
was whether a California state court’s decision was clearly
unreasonable pursuant to the antiterrorism and effective Death
penalty act of 1996.12 In such a case, as the Court clearly
10 see U.S. v. Axsom, 289 F.3d 496 (8th Cir. 2002).
11 Yarborough v. Alvarado, 541 U.s. 652, 124 s. Ct. 2140, 158 L. ed. 2d 938
(2004).
12 28 U.s.C. §§ 2241 to 2255 (2000).
76 	277 NeBraska reports

explained, “[w]e cannot grant relief under [the act] by con-
ducting our own independent inquiry into whether the state
court was correct as a de novo matter.”13 Because, on the facts
presented, “fairminded jurists could disagree over whether
[the suspect] was in custody,” the Court concluded that the
California court’s finding was not unreasonable.14 the Court
never decided the issue we must decide in this case, and
the Court’s conclusion on a different issue is not determina-
tive here.
Both dissenting opinions fail to engage the significant
weight of authority discussed in the majority opinion. and
both reach for an issue, custody, that was not contested by the
state at any point in this case before filing supplemental briefs
in this court—perhaps because everyone involved at the trial
level seemed to assume that rogers was in custody. and that
was a reasonable assumption. the isolated facts relied upon
by the dissenters are simply not compelling when placed in
context. I am not persuaded by the dissenters’ suggestion that
telling rogers that she was not locked in the interrogation
room is equivalent to telling a suspect that he or she is free to
end the interrogation and go home.15 and the fact that rogers
“voluntarily” reported to the sheriff’s office is not convinc-
ing, because rogers had to know she did not have much of
a choice. she was the sole adult in a house where a mortally
injured 6-month-old was found. any reasonable person in that
situation would expect to be a suspect and would not expect
the sheriff’s officers to just go away if she refused to cooper-
ate. I agree that this fact is part of our analysis, but it does not
deserve particular weight, and certainly does not outweigh the
length and intensity of the interrogation in this case.
CoNCLUsIoN
the bottom line is that, having viewed the videotaped inter-
rogation, it is apparent to me that rogers was in custody and
that she tried to invoke her right to remain silent, only to have
13 Alvarado, supra note 11, 541 U.s. at 665 (emphasis in original).
14 Id., 541 U.s. at 664.
15 Compare Mata, supra note 2.
state v. rogers 	77
Cite as 277 Neb. 37

it ignored by her interrogators. I recognize that circumstances
such as this can motivate sheriff’s officers to assertively
pursue a confession in order to expeditiously solve a crime.
But regardless what type of crime is committed, the officers
are equally bound to carefully follow the law. Here, they did
not. they made a mistake. and the trial court relied on the
results of that mistake when it admitted into evidence state-
ments made by rogers after she had unambiguously invoked
her right to remain silent. We are dutybound, by the U.s.
Constitution and the decisions of the U.s. supreme Court, to
order a new trial.
coNNolly and StephaN, JJ., join in this concurrence.
HeavicaN, C.J., dissenting.
I respectfully dissent from the majority’s conclusion that
rogers’ confession must be suppressed. In my view, rogers
not only failed to unequivocally invoke her Fifth amendment
right to remain silent but, in fact, she had no such right
to invoke, as she was not in custody when officers inter-
viewed her.
I.
Before proceeding to a discussion of whether rogers was
in custody when she confessed, I want to first express my
concerns with the majority’s discussion of whether rogers
unequivocally invoked the right to remain silent. I have two
concerns in this regard.
a.
My first concern is with the standard of review the major-
ity proposes we apply to determine “whether there has been
an unambiguous invocation of the right to remain silent or to
have counsel.”
In State v. Mata,1 we resolved some confusion regarding
the proper standard of review when determining whether a
suspect was in custody for Miranda purposes. We held that
“findings of fact as to the circumstances surrounding the inter-
rogation are reviewed for clear error” but that the ultimate
1 State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003).
78 	277 NeBraska reports

determination of whether, under those facts, “a reasonable per-
son would have felt that he or she was or was not at liberty to
terminate the interrogation and leave is reviewed de novo.”2 In
that same opinion, however, we left no doubt that “[r]esolution
of ambiguity in the invocation of the constitutional right to
remain silent is a question of fact” and that a district court’s
conclusion on that issue would not be disturbed unless it was
“clearly erroneous.”3 We recently reaffirmed that standard of
review in State v. Thomas.4
today, the majority jettisons the standard we used in Mata
and Thomas on the invocation issue in favor of the two-part
standard of review we used in Mata on the custody issue. I am
not convinced that we should be so quick to discard Mata and
Thomas on that point.
For one, this is not as straightforward a question as the
majority’s conclusion might suggest. Indeed, the standard of
review to apply on the invocation matter is one on which even
federal courts of appeal disagree.5 and I can think of at least
one legitimate reason why they might: a de novo standard of
review makes sense in the custody context, because a custody
determination is made on the basis of facts that are less sus-
ceptible to misinterpretation on review. a transcript of trial
testimony will normally accurately reveal whether a suspect
arrived at the station of his or her own accord; was advised
that he or she was not under arrest; was handcuffed, locked in
a room, or told to remain in place; or other factors indicative
of custody.6
But as the majority itself acknowledges, resolving the ambi-
guity inherent in a suspect’s attempted invocation of the right
to silence (or to an attorney) depends heavily on matters of
2 Id. at 679, 668 N.W.2d at 464.
3 Id. at 684, 668 N.W.2d at 467.
4 State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004).
5 see, e.g., U.S. v. Rodriguez, 518 F.3d 1072 (9th Cir. 2008) (de novo);
U.S. v. Uribe-Galindo, 990 F.2d 522 (10th Cir. 1993) (same). But see,
U.S. v. Ferrer-Montoya, 483 F.3d 565 (8th Cir. 2007) (clearly erroneous);
Goodwin v. Johnson, 224 F.3d 450 (5th Cir. 2000) (same).
6 see Mata, supra note 1.
state v. rogers 	79
Cite as 277 Neb. 37

context. the suspect’s vocal intonation, gestures, or other indi-
cia of emphasis may prove decisive in the invocation inquiry.
Yet, these are precisely the sorts of things that a trial court,
which has the benefit of live testimony to help bring texture
to the police-suspect encounter, is in a better position to deter-
mine relative to appellate judges, for whom a cold transcript
may be the only glimpse into how the statement in question
was presented.
to be sure, as this case shows, some cases will feature a
recording of the encounter. In such instances, a trial court has
less of an advantage in resolving the invocation issue. But the
majority’s proposed standard of review makes less sense in
cases where no video or audio recording of the interview exists.
a de novo standard of review in those cases may increase the
likelihood of an inaccurate determination.
there may be other reasons to avoid adopting a de novo
standard of review on the invocation issue. But we may never
know, because this is an issue that neither party addressed in
its briefs to this court. Indeed, rogers herself assumed that
the clearly erroneous standard of review we used in Mata and
Thomas still applied to our review of rogers’ attempted invo-
cation of the right to silence. In view of the fact that accurate
judicial decisionmaking depends on a vigorous defense and
prosecution of the issues involved,7 I think it would be unwise
to unilaterally reach out and resolve this vexing and funda-
mental issue without the benefit of briefing and argument by
counsel. I would, therefore, reserve action on this issue for a
day when the advice of counsel will allow us to make a more
fully informed decision.
B.
I now turn to whether rogers successfully invoked her Fifth
amendment right to remain silent. at issue is whether rogers’
statements, “I’m done” and “I’m not talking no more” were
sufficiently unequivocal to trigger rogers’ right to silence. We
7 see Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.s. 520, 113 s.
Ct. 2217, 124 L. ed. 2d 472 (1993) (souter, J., concurring).
80 	277 NeBraska reports

have considered this issue twice in the last 5 years with regard
to very similar statements.
In Mata, this court was asked to consider whether statements
made by the defendant that he did not “‘want to answer no
more questions’” and “‘I will plead the fifth right now’” were
sufficiently unequivocal to invoke the right to remain silent.8
We held that when “taken in context,” those statements “can be
read as frustration with particular questions rather than clearly
stated intent to end the interview.”9
In Thomas, this court considered whether kevin L. thomas
invoked the right to silence when he said, “‘I’m done talkin’
man,’” during a custodial interrogation.10 once again, we held
that this statement was more indicative of thomas’ frustration
with the officers’ questions than “a clear invocation of his right
to remain silent.”11
the language at issue in Mata and Thomas is virtually
identical to the language rogers used here. the statement that
the defendant did not “‘want to answer no more questions’”
from Mata bears a striking resemblance to rogers’ statement
“I’m not talking no more,” and is far less equivocal than
rogers’ bald assertion, “I’m done.” thomas’ statement “‘I’m
done talkin’ man,’” is almost a perfect amalgam of rogers’
statements, “I’m done” and “I’m not talking no more.” If this
language did not trigger the right to remain silent in Mata or
Thomas, I fail to see why it does now.
given the high degree of similarity between the language
in those cases and in this case, I question the majority’s fail-
ure to discuss Mata at all, and only briefly examine Thomas.
Instead, the majority relies primarily on cases from a number
of jurisdictions outside of Nebraska. While the desire to derive
additional insight from other jurisdictions is commendable, we
should not rely on such authority in place of our own.
8 Mata, supra note 1, 266 Neb. at 680, 668 N.W.2d at 464.
9 Id. at 684, 668 N.W.2d at 467.
10 Thomas, supra note 4, 267 Neb. at 350, 673 N.W.2d at 908.
11 Id.
state v. rogers 	81
Cite as 277 Neb. 37

the majority attempts to distinguish Thomas on the basis
that the alleged invocation of the right to silence was followed
by a question which cast doubt on thomas’ desire to termi-
nate questioning. But our determination that thomas had not
unequivocally invoked his right to remain silent was primarily
based on the fact that “thomas’ single statement that he was
done talking could be interpreted as a response in frustration to
the investigators’ unwillingness to believe that [thomas] was
not involved in the crime . . . .”12
only after coming to that conclusion did we note that
“thomas also followed the statement by a question requesting
further information . . . .”13 We regarded that followup ques-
tion—“‘[H]ow can ya’ll keep on saying I did it[?]’”—as a
move which, like the assertion itself that he was done talking,
“also acted to encourage further dialog” between thomas and
the officers.14 In other words, thomas’ followup question pro-
vided an alternative reason to find that thomas had not invoked
his right to remain silent in addition to the ambiguity inherent
in thomas’ initial statement.
Nor, it seems to me, is thomas’ experience as a felon a
sufficient reason to distinguish that case from this one. the
majority informs us that at the time of his interview, thomas
was “already a convicted felon,” whereas rogers “had no prior
experience with the justice system.” With these comments,
the majority seems to imply—without citing any supporting
authority—that a statement too ambiguous to trigger the right
to remain silent for a veteran criminal like thomas may suffice
to invoke the right to remain silent for a suspect with compara-
tively less criminal experience like rogers.
But our conclusion that thomas did not unequivocally invoke
his right to remain silent was not made with reference to his
experience as a criminal. We simply held that “[h]ad [thomas]
wished to terminate the interview, he could have made his
12 Id. (emphasis supplied).
13 Id. (emphasis supplied).
14 Id. (emphasis supplied).
82 	277 NeBraska reports

wishes clear.”15 of course, the same could be said about any
suspect who failed to unambiguously invoke his or her right to
remain silent.
Moreover, taking rogers’ lack of experience with the crim-
inal justice system into account improperly injects a subjec-
tive element into the Miranda inquiry. “to avoid difficulties
of proof and to provide guidance to officers conducting
interrogations,” the inquiry into whether a suspect actually
invoked his or her Miranda rights “is an objective [one].”16
and the U.s. supreme Court has made clear that “a suspect’s
experience with law enforcement” has no place in an objec-
tive inquiry.17
thus, the question is not whether, in light of his or her
experience, the suspect could have more clearly articulated
his or her desire to terminate questioning. rather, the question
is whether the words themselves would have led a reasonable
officer to conclude that the suspect wanted to cease the inter-
view.18 By taking rogers’ lack of criminal justice experience
into account, the majority undermines the chief advantage of
Miranda by “‘plac[ing] upon the police the burden of antici-
pating the frailties or idiosyncrasies of every person whom
they question.’”19
Context does not help distinguish Thomas either. the context
surrounding thomas’ statement further confirms that rogers
did not unequivocally invoke her right to remain silent under
our existing precedent. In Thomas, we noted that his alleged
invocation of the right to remain silent came after investigators
repeatedly refused to believe that thomas was not involved
in the crime. this led us to conclude that thomas’ statement
15 Id.
16 Davis v. United States, 512 U.s. 452, 458-59, 114 s. Ct. 2350, 129 L. ed.
2d 362 (1994).
17 Yarborough v. Alvarado, 541 U.s. 652, 667, 124 s. Ct. 2140, 158 L. ed.
2d 938 (2004).
18 see Davis, supra note 16.
19 Berkemer v. McCarty, 468 U.s. 420, 442 n.35, 104 s. Ct. 3138, 82 L. ed.
2d 317 (1984), quoting People v. Rodney P. (Anonymous), 21 N.Y.2d 1,
233 N.e.2d 255, 286 N.Y.s.2d 225 (1967).
state v. rogers 	83
Cite as 277 Neb. 37

reflected frustration with his inability to convince officers he
was telling the truth rather than a desire to terminate question-
ing.20 the same conclusion is warranted here.
Like Thomas, rogers’ statements also came after officers
repeatedly refused to accept her explanation of how alex, the
child victim, sustained his injuries. the statements were not
accompanied by any abrupt gestures, vocal intonation, or any-
thing else that might indicate a firm intent to cut off question-
ing. Instead, everything about rogers’ tone, brusque responses,
and body language suggests that her statements reflect nothing
more than irritation with officer Brenda Wheeler’s persistence
in making accusations that rogers had already denied. this is
a fact pattern that more closely matches our description of what
occurred in Thomas.
In sum, we cannot ignore Mata and Thomas in favor of
authority chosen from other jurisdictions. so long as Mata
and Thomas remain good law, rogers’ statements fell short of
“a clearly stated intent to end the interview.”21 this is particu-
larly so if we use the “clearly erroneous” standard of review
employed in those two decisions to measure the district court’s
findings on ambiguity in the invocation of the constitutional
right to remain silent.
II.
the fact that rogers did not unequivocally invoke her right
to remain silent is, in and of itself, reason enough to affirm the
trial court’s opinion. But the fact that rogers’ “alleged invoca-
tion of the Fifth amendment was not made in the context of a
custodial interrogation” provides an additional reason to affirm
the trial court’s decision.22 although this is a closer question
than those presented in our recent cases, controlling precedent
nonetheless compels the conclusion that rogers was not in
custody when she was interviewed by authorities on December
7, 2005.
20 Thomas, supra note 4.
21 see id.
22 Mata, supra note 1, 266 Neb. at 684, 668 N.W.2d at 467.
84 	277 NeBraska reports

a.
at the beginning of its analysis, the majority refers to
the six-factor custody inquiry used by the eighth Circuit in,
among other decisions, U.S. v. Axsom.23 We formally adopted
the Axsom analysis in Mata24 and applied it again in State
v. McKinney.25 to say, however, that we have merely found
those six indicia “helpful” in our custody analysis is an
understatement.
In Mata, for example, our custody inquiry was based
solely on a factor-by-factor analysis of the six Axsom indi-
cia. In McKinney, decided in 2007, our custody inquiry once
again consisted entirely of a factor-by-factor analysis under
Axsom. these cases suggest that the Axsom factors are not
just “helpful” in the custody determination; they are signifi-
cantly outcome determinative. Indeed, one might even say
that although the Axsom factors are not dispositive, they have,
at the very least, “been influential in this court’s assessment
of the totality of the circumstances surrounding an official
interrogation.”26
as set forth in Axsom itself and reemphasized in both Mata
and McKinney, the six Axsom indicia are divided into three
mitigating and three aggravating factors.27 the presence of a
mitigating factor weighs against a finding that the encounter
was custodial in nature, while the presence of an aggravating
factor increases the likelihood that a reasonable person would
consider themselves in custody.28 although the final tally is
close, a fair application of the six Axsom factors suggests that
rogers’ encounter with law enforcement was noncustodial
in nature.
23 U.S. v. Axsom, 289 F.3d 496 (8th Cir. 2002).
24 Mata, supra note 1.
25 State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
26 see U.S. v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990).
27 see, Axsom, supra note 23. see, also, McKinney, supra note 25; Mata,
supra note 1.
28 see, Axsom, supra note 23; McKinney, supra note 25; Mata, supra
note 1.
state v. rogers 	85
Cite as 277 Neb. 37

1.
the first mitigating factor asks “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 [leave], or that the suspect was not considered under
arrest.”29 as the majority correctly notes, we cannot ascertain
from this record whether officers ever expressly told rogers
that she was not under arrest. Nor do we know if the officers
expressly indicated that rogers was free to leave the sheriff’s
office. I therefore agree with the majority that the first mitigat-
ing factor is not present on this record.
I do think, however, that the record supports the second
mitigating factor—“whether the suspect possessed unrestrained
freedom of movement during questioning.”30 the majority
seems to conclude that rogers did not have that freedom,
based on the fact that rogers “would have had a hard time
even standing up when [Deputy] Wheeler was grasping both of
her hands.”
the majority refers to an exchange that occurred roughly
11⁄2 hours into questioning. at that point, rogers began sob-
bing and announced that alex sustained his injuries when
rogers fell down the stairs while carrying him. as she made
this announcement, rogers reached for and held officer eric
sellers’ hands. Wheeler came into the room several minutes
later. When she did so, rogers stood up, held her arms open,
hugged Wheeler, and began sobbing. When the two then sat
down, they maintained their grip on each others’ hands.
the fact that this physical contact was initiated by rogers
herself is significant. Just as a police-suspect encounter is less
likely to be custodial when the suspect initiates the meeting,31
logic suggests that physical contact between an officer and a
suspect is less likely to be regarded as a form of restraint if the
suspect initiates the contact.
29 McKinney, supra note 25, 273 Neb. at 364, 730 N.W.2d at 91.
30 Id. at 364-65, 730 N.W.2d at 91.
31 Griffin, supra note 26.
86 	277 NeBraska reports

It is equally important to view this contact in its proper
context. actions which may seem indicative of custody in the
abstract do not necessarily support a custodial finding when
viewed in light of the surrounding circumstances.32 the con-
tact between rogers and Wheeler occurred during an emo-
tional point in the interview while rogers was openly sobbing.
this suggests that a reasonable person would have regarded
Wheeler’s gesture as a reciprocal act of sympathy rather than
an act of restraint.
I also question the majority’s conclusion that “once the inter-
rogation 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.” the position of
the video camera in the interview room is such that the parties
appear in the very bottom of the frame. this makes it impos-
sible to determine how much space existed between the wall
nearest the camera and the chairs where rogers and the officers
were sitting. It is impossible to say, therefore, how much of
an egress was left open between that wall and the officers for
rogers to pass through. accordingly, any assertion that rogers’
path was “blocked” is simply a guess.
Nor is it significant that officers questioned rogers face-
to-face and were seated between her and the door. these facts
may have curtailed rogers’ freedom of movement relative to,
say, a police-suspect encounter in the public square.33 But the
question is not whether rogers’ freedom of action was limited;
the question is whether rogers’ freedom of action was limited
“‘in any significant way.’”34 Compared to a persistent police
escort, physical act of genuine restraint, or verbal command
to remain in a particular place,35 questioning a suspect face-to-
face while positioned between the suspect and the door is an
32 see, e.g., Davis v. Allsbrooks, 778 F.2d 168 (4th Cir. 1985).
33 see, e.g., Berkemer, supra note 19.
34 Oregon v. Mathiason, 429 U.s. 492, 494, 97 s. Ct. 711, 50 L. ed. 2d 714
(1977) (per curiam) (emphasis supplied), quoting Miranda v. Arizona, 384
U.s. 436, 86 s. Ct. 1602, 16 L. ed. 2d 694 (1966).
35 see Griffin, supra note 26.
state v. rogers 	87
Cite as 277 Neb. 37

ambiguous act that does not necessarily preclude free move-
ment. It cannot necessarily be said, then, that rogers was “sig-
nificantly deprived of [her] freedom of action.”36
Far from being restrained, the record actually supports
the conclusion that rogers was free to move in and out of
the interview room as she chose. as sellers got up to leave
the interview room on one occasion, he paused to note that
rogers may have to let him back in, because the room locked
to the outside and he did not have a key. But sellers informed
rogers that she was neither locked in the room nor expected
to remain inside when he immediately added, “so you can get
out if you need to.”
a suspect’s latitude to move out of an interview room at
his or her will is “clearly inconsistent with custodial inter-
rogation.”37 Indeed, our decision that officers did not restrain
the suspect’s freedom of movement in Mata was based on
our conclusion that “the door to the interview room was left
unlocked and that [an officer] explained to Mata that the door
was unlocked and that Mata was free to leave at any time.”38
accordingly, I believe the second mitigating factor is present
on these facts.
there is no real dispute regarding the existence of the third
and final mitigating factor, which asks “whether the suspect
initiated contact with authorities or voluntarily acquiesced to
official requests to respond to questions.”39 It is clear that
rogers voluntarily acquiesced to the interview when, in the
majority’s words, “rogers agreed” with the officers’ request
for an interview and drove with her husband to “the station
shortly thereafter.”
the majority downplays this fact largely because it was the
officers, not rogers, who suggested the interview. But the third
mitigating factor does not express any preference for whether
36 see California v. Beheler, 463 U.s. 1121, 1123, 103 s. Ct. 3517, 77 L. ed.
2d 1275 (1983) (per curiam).
37 U.S. v. Jorgensen, 871 F.2d 725, 729 (8th Cir. 1989).
38 Mata, supra note 1, 266 Neb. at 680, 668 N.W.2d at 464.
39 McKinney, supra note 25, 273 Neb. at 365, 730 N.W.2d at 91.
88 	277 NeBraska reports

the suspect volunteered to an interview or simply agreed to do
so at the request of authorities.40 either contingency operates as
a mitigating circumstance under this factor.
Indeed, in both Mata and McKinney, the suspects were not
only asked to come to the police station, they were both trans-
ported there by officers after they agreed to the interview. But
that did not stop us from concluding that “all three mitigat-
ing indicia [we]re present” in both cases.41 given the fact that
rogers drove to the sheriff’s office herself, it is difficult to
believe a different conclusion is warranted here.
I therefore believe that the third mitigating factor is also
present.
2.
Having determined that two of three possible mitigating fac-
tors are present here, the next step is to assess the applicability
of Axsom’s aggravating factors. those factors are (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.
the majority does not comment at length on the first aggra-
vating factor except to note that sellers “told rogers, decep-
tively, that alex was going to be okay, although sellers knew
this to be untrue.” (emphasis supplied.) sellers’ comment may
have been inaccurate, but that alone does not indicate the exis-
tence of any “deceptive stratagems.”42 Indeed, such ambiguous
comments are distinguishable from situations where police
attempt to confuse a suspect by confronting the suspect with
false evidence of his or her involvement in a crime.43
the record also fails to support the existence of strong-arm
tactics as that term has been conventionally understood. the
40 Id. see, also, Axsom, supra note 23; Mata, supra note 1.
41 McKinney, supra note 25, 273 Neb. at 365, 730 N.W.2d at 92. see, also,
Mata, supra note 1.
42 McKinney, supra note 25, 273 Neb. at 365, 730 N.W.2d at 91.
43 United States v. Dockery, 736 F.2d 1232 (8th Cir. 1984), noted in Griffin,
supra note 26.
state v. rogers 	89
Cite as 277 Neb. 37

officers did not, for example, discuss the potential penalty for
rogers’ involvement or make threats about possible sanctions
if she failed to cooperate with them.44 I believe, therefore, that
the first aggravating factor is not present on these facts.
It is clear, however, that the second aggravating factor—
“whether the atmosphere of the questioning was police domi-
nated”45—is present here. rogers was questioned by officers
in a closed room at the sheriff’s office. In Mata, we concluded
that when “the interview was conducted at the police station,
it is reasonable to conclude that the atmosphere was ‘police
dominated.’”46
Finally, the record does not support the third aggravating
factor—“whether the suspect was placed under arrest at the ter-
mination of the proceeding.”47 there is no dispute that rogers
was permitted to return home with her husband after she con-
fessed to officers.
the majority acknowledges this fact but attempts to down-
play its significance because “a reasonable person in rogers’
position at the time of her confession would not have believed”
that she would be released after the interview. Yet the custody
determination is based on how a reasonable person in the
suspect’s position would have perceived his or her degree of
freedom during the encounter.
Nevertheless, the fact remains that we have repeatedly relied
on this factor without reservation in past cases.48 More impor-
tantly, the U.s. supreme Court specifically mentioned this
factor as one of several that are relevant to the custody deter-
mination.49 It appears, therefore, that no matter how illogical
it may be to consider whether a suspect was allowed to return
home at the conclusion of questioning, it is a fact that we are
44 see, e.g., U.S. v. Beraun-Panez, 812 F.2d 578 (9th Cir. 1987).
45 McKinney, supra note 25, 273 Neb. at 365, 730 N.W.2d at 91.
46 Mata, supra note 1, 266 Neb. at 683, 668 N.W.2d at 466.
47 McKinney, supra note 25, 273 Neb. at 365, 730 N.W.2d at 91.
48 see, id.; Mata, supra note 1.
49 see Yarborough, supra note 17.
90 	277 NeBraska reports

bound to take seriously when resolving whether a suspect was
in custody.
of course, this debate is largely academic. the third aggra-
vating factor is just that—an aggravating factor. as such,
it only affects the Axsom calculus if officers did not allow
the suspect to go home after his or her interview. therefore,
whether the majority fully acknowledges that rogers was
released or determines “this fact to be of little consequence,”
it does not change the fact that there are two mitigating factors
weighing in favor of a noncustodial encounter, and only one
factor weighing against it.
In Mata and McKinney, the tally was three mitigating factors
versus one aggravating factor. the difference in those cases
was the existence of explicit statements by officers to each
suspect informing them that they were not under arrest. I note,
however, that in both cases, such information may have been
necessary to clarify the status of suspects who, unlike rogers,
did not come to the station of their own accord.
In Mata, the suspect was initially handcuffed and then,
after the handcuffs were removed, transported by police to
the station house in a police vehicle. Likewise, in McKinney,
the “[t]wo investigators drove [the suspect] to Nebraska state
patrol offices for an interview.”50 In such a context, advis-
ing a suspect that he or she is not under arrest helps mitigate
the presumption of arrest that might be formed when the
police transport the suspect to the station. But informing a
suspect that he or she is not under arrest is somewhat super-
fluous where, as here, the suspect drove himself or herself to
the station.
In any event, this situation presents us with two mitigating
factors and just one aggravating factor. so although a noncus-
todial finding would be more obvious with some concrete proof
that officers expressly informed rogers she was not under
arrest, the balancing test used in Mata and McKinney compels
the conclusion that rogers was not in custody even without
such evidence.
50 McKinney, supra note 25, 273 Neb. at 363, 730 N.W.2d at 90.
state v. rogers 	91
Cite as 277 Neb. 37

B.
as noted above, the custody analyses in Mata and McKinney
were predicated on the Axsom factors alone. Nevertheless, in
light of the close split in the Axsom factors, I do not quarrel
with the majority’s suggestion that we consider past cases with
similar facts for guidance.
the majority cites State v. Dedrick,51 a 19-year-old decision
from the New Hampshire supreme Court. Dedrick is similar to
this case in many respects and apparently supports the conclu-
sion that rogers was in custody.
But opinions of other states are not binding on this court,
and any number of them may be incorrect interpretations of
the Fifth amendment.52 Dedrick itself illustrates this point by
essentially treating its custody determination as a question of
fact—not the standard employed by this court (and a stan-
dard later rejected by the New Hampshire supreme Court53).
Because authority from other, parallel jurisdictions is poten-
tially inaccurate, it would be an exercise in futility to try to
match the majority case by case with contradictory precedent
from yet another jurisdiction. Instead, resolving this issue of
federal constitutional interpretation is perhaps best done by
looking to U.s. supreme Court precedent.
precedent from the supreme Court of the United states
has two chief advantages over that of the New Hampshire
supreme Court. First, the U.s. supreme Court’s status as the
“final arbiter of the United states Constitution”54 means that
its interpretation of the Fifth amendment is presumptively
correct and, therefore, totally reliable. the U.s. supreme
Court’s position in our constitutional order also means that
we are bound by its precedent. By relying on another state’s
case in place of U.s. supreme Court precedent, we not only
risk adopting inaccurate law, we may also violate our duty
51 State v. Dedrick, 132 N.H. 218, 564 a.2d 423 (1989).
52 see, e.g., Berkemer, supra note 19.
53 State v. Spencer, 149 N.H. 622, 826 a.2d 546 (2003).
54 Arizona v. Evans, 514 U.s. 1, 9, 115 s. Ct. 1185, 131 L. ed. 2d 34
(1995).
92 	277 NeBraska reports

to obey controlling authority. With that said, I note that
Yarborough v. Alvarado55 bears a great resemblance to the
facts of this case.
Yarborough featured the interrogation of Michael alvarado,
a 17-year-old suspect in the shooting death of a truckdriver. a
month after the shooting, a detective “left word at alvarado’s
house and also contacted alvarado’s mother at work with
the message that she wished to speak with alvarado.”56 In
response, “alvarado’s parents brought him to the pico rivera
sheriff’s station to be interviewed” and “waited in the lobby
while alvarado went . . . to be interviewed.”57
as was true in this case, the interview itself took place
in a “small interview room” and “lasted about two hours.”58
alvarado initially denied any involvement in the shooting,
only to confess after repeated accusations by the interviewing
officer. Finally, “alvarado’s father drove him home” when the
interview was over.59
alvarado’s confession was admitted at trial, and he was sub-
sequently convicted of second degree murder. on direct appeal,
the California Court of appeal affirmed alvarado’s conviction,
finding that he was not in custody when he confessed. the
California supreme Court denied alvarado’s request for review.
alvarado then filed a writ for habeas corpus in the U.s. District
Court for the Central District of California, which also found
that alvarado was not in custody when he confessed. the Ninth
Circuit reversed on appeal, finding that in light of alvarado’s
youth and lack of experience, it was “‘unreasonable’” to con-
clude that a person in alvarado’s position would have felt free
to leave.60 the U.s. supreme Court granted certiorari to resolve
the issue of whether the state court’s conclusion that alvarado
55 Yarborough, supra note 17.
56 Id., 541 U.s. at 656.
57 Id.
58 Id.
59 Id., 541 U.s. at 658.
60 Id., 541 U.s. at 660.
state v. rogers 	93
Cite as 277 Neb. 37

was not in custody when he confessed “‘involved an unreason-
able application’ of clearly established law.”61
In answering that question, the Court began by listing
the facts that “weigh against a finding that alvarado was in
custody.”62 Here, the Court noted that “[t]he police did not
transport alvarado to the station or require him to appear
at a particular time.”63 additionally, police did not “threaten
[alvarado] or suggest he would be placed under arrest,” but
“appealed to his interest in telling the truth and being helpful
to a police officer.”64
the Court also observed that “alvarado’s parents remained
in the lobby during the interview, suggesting that the interview
would be brief. . . . In fact . . . he and his parents were told
that the interview ‘“was not going to be long.”’”65 on two
occasions, the detective “asked alvarado if he wanted to take a
break.”66 Finally, “[a]t the end of the interview, alvarado went
home.”67 the Yarborough Court stated that
these objective facts are consistent with an interrogation
environment in which a reasonable person would have felt
free to terminate the interview and leave. Indeed, a num-
ber of the facts echo those of Mathiason, a per curiam
summary reversal in which we found it “clear from these
facts” that the suspect was not in custody.68
Notably, every single mitigating factor mentioned by the
Yarborough Court is present here. officers did not transport
rogers to the station. Instead, they asked her if she would be
willing to come in and answer questions, and she came on her
own. Nor did officers threaten rogers. as in Yarborough, the
officers merely appealed to her interest in helping authorities
61 Id., 541 U.s. at 663, quoting 28 U.s.C. § 2254(d)(1) (2000).
62 Id., 541 U.s. at 664.
63 Id.
64 Id.
65 Id.
66 Id.
67 Id.
68 Id., 541 U.s. at 664-65, quoting Mathiason, supra note 34.
94 	277 NeBraska reports

by asking her to identify the cause of alex’s injuries so doc-
tors could treat him more effectively. Like alvarado, rogers
also had family (her husband) waiting for her in the lobby of
the sheriff’s office during questioning. rogers and her hus-
band were essentially told the interview would be brief and
would take only 20 or 30 minutes. Finally, officers did not
merely ask rogers if she needed to take a break; they actually
told rogers she could get out of the interview room if she
needed to.
of course, the Yarborough Court also acknowledged that
“[o]ther facts point in the opposite direction.”69 Here, the Court
noted that alvarado was “interviewed . . . at the police station”
and that “[t]he interview lasted two hours, four times longer
than the 30-minute interview in Mathiason.”70 also, unlike the
officer in Mathiason, the detective “did not tell alvarado that
he was free to leave.”71 each of these facts, which “weigh in
favor of the view that alvarado was in custody,”72 are present
here as well.
Notably, the Yarborough Court’s discussion of aggravat-
ing factors lacks even a single reference to the fact that the
detective repeatedly confronted alvarado with evidence of his
guilt and expressed her belief that alvarado was guilty of the
crime. this is significant, because the majority’s conclusion
that rogers was in custody depends largely on the fact that
rogers was “subjected to aggressive accusatorial interroga-
tion in which she was confronted with substantial evidence to
prove her guilty of a crime.” But by neglecting to list aggres-
sive accusations among the factors indicative of a custodial
encounter, Yarborough suggests that such confrontations have
no bearing on the custody determination.
this 	point 	was 	not 	lost 	on 	the 	dissenting 	justices 	in
Yarborough. In concluding that alvarado was in custody, the
dissenters, like the majority here, made much of the fact that
69 Id., 541 U.s. at 665.
70 Id.
71 Id.
72 Id.
state v. rogers 	95
Cite as 277 Neb. 37

alvarado was “confronted with claims that there is strong evi-
dence that he participated in a serious crime.”73 But because this
proposition appears in the dissent rather than in Yarborough’s
majority opinion, it appears this view is not the law.
and while all of the aggravating factors in Yarborough were
also present in this case, Yarborough featured several addi-
tional indicia of custody that are not present here. For example,
“alvarado was brought to the police station by his legal guard-
ians rather than arriving on his own accord, making the extent
of his control over his presence unclear.”74 No similar argument
can be made with regard to the fact that rogers, an adult, came
to the sheriff’s office with her husband.
In 	addition, 	in 	Yarborough, 	there 	was 	evidence 	that
“alvarado’s parents asked to be present at the interview but
were rebuffed, a fact that—if known to alvarado—might rea-
sonably have led someone in alvarado’s position to feel more
restricted than otherwise.”75 there is no evidence that rogers’
husband made a similar request in this case.
Finally, I think it significant that unlike alvarado, rogers
had been to the sheriff’s office for a similar interview the
day before. rogers came to the office for an interview on
December 6, 2005, and was allowed to return home afterward.
the fact that she emerged unscathed from questioning in a
police-dominated atmosphere on December 6 would have given
a reasonable person in her position much less reason to regard
that same atmosphere as an indication of custody during her
interview the following day on December 7.
the only other pertinent difference between this case and
Yarborough is that alvarado was questioned by a lone officer,
while rogers was questioned by two officers interchangeably
and, at times, simultaneously. But the Yarborough Court did not
specifically refer to the fact that alvarado was questioned by a
lone officer when it recounted the various facts that “weigh
73 Id., 541 U.s. at 671 (Breyer, J., dissenting; stevens, souter, and ginsberg,
JJ., join).
74 Id., 541 U.s. at 665.
75 Id.
96 	277 NeBraska reports

against a finding that alvarado was in custody.”76 Moreover,
the U.s. supreme Court has seemed to equate encounters
that involve “only one or . . . two policemen.”77 Finally, the
fact that questioning was conducted by more than one officer
was not mentioned as an aggravating factor in either Mata or
McKinney. all of this supports the notion that the mere pres-
ence of a second officer does not help transform an otherwise
noncustodial interrogation into a custodial one.
Ultimately, the Yarborough Court never held one way or
another whether alvarado was in custody. Because “fair-
minded jurists could disagree over whether alvarado was in
custody,”78 the Court concluded that the state court’s determi-
nation that alvarado was not in custody when he confessed
“was [a] reasonable” one.79 I perceive this comment to mean
that the custody determination could have gone either way
in Yarborough.
But, again, the scales are not as balanced here. While all of
the mitigating factors present in Yarborough exist in this case,
Yarborough bore a number of additional indicia of custody
that are not present on this record. as a result, the circum-
stances here provide more support for the conclusion that
rogers’ encounter with law enforcement was noncustodial
in nature. a comparison with Yarborough therefore confirms
what Axsom’s balancing test suggested by a 2-to-1 margin—
that rogers was not in custody when she confessed to officers
on December 7, 2005.
III.
as noted at the outset, this is a close case. Nonetheless,
the circumstances compel the conclusion that rogers not only
failed to adequately invoke her Fifth amendment right to
remain silent, she never had that right to begin with, because
she was not in custody. any contrary determination is at odds
76 Id., 541 U.s. at 664.
77 Berkemer, supra note 19, 468 U.s. at 438.
78 Yarborough, supra note 17, 541 U.s. at 664.
79 Id., 541 U.s. at 665.
state v. rogers 	97
Cite as 277 Neb. 37

with recent precedent from this court and ignores the lessons
implicit in controlling authority from the supreme Court of the
United states. on the basis of that authority, I must conclude
that rogers’ Fifth amendment rights were not violated when
her confession was offered at trial. I would therefore affirm
rogers’ conviction.
M iller-lerMaN, J., dissenting.
I respectfully dissent from the majority’s conclusion that
rogers’ confession must be suppressed. I write separately to
state that upon review of the proper range of factors and the
applicable law, I conclude that rogers’ confession did not take
place during a “custodial interrogation.” as a result, it need
not be suppressed, and because the statement is not the prod-
uct of a custodial interrogation, an exposition under Miranda
v. Arizona, 384 U.s. 436, 86 s. Ct. 1602, 16 L. ed. 2d 694
(1966), on whether rogers invoked her right to remain silent is
not necessary to the resolution of this case.
We have repeatedly observed as a general matter that warn-
ings under Miranda are required only where there has been
a restriction on one’s freedom as to render one “in custody.”
State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003); State v.
Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003). the U.s.
supreme Court has stated:
any interview of one suspected of a crime by a police
officer will have coercive aspects to it, simply by vir-
tue 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. But police officers
are not required to administer Miranda warnings to
everyone whom they question. Nor is the requirement of
warnings to be imposed simply because the questioning
takes place in the station house, or because the ques-
tioned person is one whom the police suspect. Miranda
warnings are required only where there has been such a
restriction on a person’s freedom as to render him “in
custody.” It was that sort of coercive environment to
which Miranda by its terms was made applicable, and to
which it is limited.
98 	277 NeBraska reports

(emphasis in original.) Oregon v. Mathiason, 429 U.s. 492,
495, 97 s. Ct. 711, 50 L. ed. 2d 714 (1977). Further, we have
noted that Miranda rights cannot be invoked outside the con-
text of custodial interrogation. State v. Mata, supra. given the
foregoing, it is unavoidable that the issue of whether an indi-
vidual is in custody be resolved prior to considering whether
the police are under an obligation to honor an invocation of
Miranda rights.
the record admittedly fails to show an indepth analysis
of the custody issue at the trial level. Nevertheless, the trial
court’s order states that “the statements of [rogers] both while
not in custody and while in custody were freely and voluntarily
made.” From this, I believe that the trial court considered and
ruled on whether rogers was in custody and that therefore,
such ruling is subject to review on appeal. I further note that
subsequent to oral argument of this case, in a supplemental
briefing order filed by this court, the parties were directed to
file supplemental briefs addressing the issues of rogers’ cus-
tody and invocation of her Fifth amendment rights. the parties
filed their supplemental briefs, thus squarely framing the issue
of custody for resolution by this court.
Like the majority and the preceding separate dissent, I have
considered the custody inquiry under the six factors listed in
U.S. v. Axsom, 289 F.3d 496 (8th Cir. 2002), which we applied
in State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), and
State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
Because I agree with the majority that the Axsom factors are
“helpful to our analysis” rather than “significantly outcome
determinative” as asserted in the preceding dissent, I have also
considered other custody-related jurisprudence.
the Axsom factors were derived from U.S. v. Griffin, 922
F.2d 1343 (8th Cir. 1990). Griffin makes clear that the six fac-
tors are “merely intended to be representative of those indicia
of custody most frequently cited by this and other courts when
undergoing the prescribed totality of the circumstances analy-
sis.” 922 F.2d at 1349. the list is “decidedly non-exhaustive,”
and “a particularly strong showing with respect to one factor”
may be influential to the custody analysis. Id.
state v. rogers 	99
Cite as 277 Neb. 37

In determining whether an individual is “in custody” at a
particular time, the reviewing court must examine the extent
of the physical or psychological restraints placed on the indi-
vidual during questioning in light of whether a “reasonable
[person] in the suspect’s position would have understood his
[or her] situation” to be one of custody. Berkemer v. McCarty,
468 U.s. 420, 442, 104 s. Ct. 3138, 82 L. ed. 2d 317 (1984).
I have therefore considered whether a person in rogers’ situ-
ation would have believed his or her freedom of action had
been curtailed to “the degree associated with a formal arrest,”
California v. Beheler, 463 U.s. 1121, 1125, 103 s. Ct. 3517,
77 L. ed. 2d 1275 (1983), and whether that belief was reason-
able from an objective viewpoint. see, also, Mata, supra. In
this regard, I have examined the circumstances surrounding
the interrogation and whether a reasonable person would have
felt that he or she was not at liberty to terminate the interroga-
tion and leave. State v. Dallmann, 260 Neb. 937, 621 N.W.2d
86 (2000).
I will not repeat here either the majority’s or the preceding
dissent’s mathematical inventory of the six separate indicators
in Axsom, nor will I repeat here an architectural description
of the interview room which has been amply provided. the
majority and the preceding dissent appear to agree that two of
the six factors in Axsom favor a finding that rogers was not in
custody: i.e., rogers voluntarily acquiesced to official requests
to respond to questioning and rogers was not arrested at the
termination of the proceeding. the majority, however, down-
plays the significance of both factors. the preceding dissent
finds that an additional two factors indicate that rogers was
not in custody, including the determination with which I agree
that rogers had unrestrained freedom of movement. For com-
pleteness, I note that the majority and preceding dissent appear
to agree that two of the six factors favor a finding that rogers
was in custody.
With respect to voluntarily acquiescing to questioning, I
find it important that rogers agreed to the request for an inter-
view and drove with her husband to the sheriff’s office for
that purpose and possibly a polygraph examination which was
suggested by her husband. rogers had been to the sheriff’s
100 	277 NeBraska reports

office for questioning once before and was not detained. I
compare this relative lack of coercion to other defendants who
were initially handcuffed and interviewed, but who, under the
overall circumstances, we nevertheless determined were not in
custody. e.g., Mata, supra.
With respect to the fact that rogers was not arrested at the
end of the proceeding, contrary to the majority view which
found this noncustodial fact to be of “little consequence,” I
find it revealing, because it reflects and is consistent with a
strong showing of a noncustodial event. In this regard, I note
that it is well settled that an interrogation which occurs at the
police station or jailhouse is not necessarily custodial. Oregon
v. Mathiason, 429 U.s. 492, 97 s. Ct. 711, 50 L. ed. 2d 714
(1977). see U.S. v. Jorgensen, 871 F.2d 725 (8th Cir. 1989)
(suspect not in custody when questioned at Federal Bureau of
Investigation offices).
In assessing the totality of the interview, as compared to the
majority opinion, I find it particularly significant that when
sheriff’s officer eric sellers left the room, he explained to
rogers that the door was not locked on the inside and stated
that “you can get out if you need to.” although this statement
does not explicitly state that rogers was free to leave, it none-
theless signals two important facts: (1) the door was not locked
on the inside and (2) rogers’ movement was not restrained. I
believe this statement combined with other noncustodial fac-
tors leads to the conclusion that a reasonable person in rogers’
situation would not have believed her freedom was curtailed to
the degree associated with a formal arrest and that therefore,
the interview was not custodial in nature. Because rogers’ con-
fession was not obtained in a “custodial interrogation,” it need
not be suppressed. I would affirm.
state v. rogers 	101
Cite as 277 Neb. 37