State v. Schroeder

was time barred. But with respect to the children, this cause is
reversed and remanded for further proceedings to fully adju-
dicate Guido’s claims on behalf of the children in light of any
asserted defenses.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
miller-lermAn, J., not participating.
state v. schroeder 	199
cite as 279 Neb. 199
stAte of nebrAskA, Appellee , v.
pAtrick W. schroeder , AppellAnt.
777 N.W.2d 793
Filed January 15, 2010. 	Nos. s-07-972, s-07-973.
1. Venue: Appeal and Error. a motion for change of venue is addressed to the
discretion of the trial judge, whose ruling will not be disturbed absent an abuse
of discretion.
2. Criminal Law: Trial. a motion for a separate trial is addressed to the sound
discretion of the trial court, and its ruling on such motion will not be disturbed in
the absence of a showing of an abuse of discretion.
3. Judgments: Words and Phrases. an abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
4. 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 his-
torical facts, an appellate court reviews the trial court’s findings for clear error.
Whether those facts suffice to meet the constitutional standards, however, is
a question of law which an appellate court reviews independently of the trial
court’s determination.
5. Venue: Juror Qualifications: Presumptions. a court will not presume uncon-
stitutional partiality because of media coverage unless the record shows a bar-
rage of inflammatory publicity immediately prior to trial, amounting to a huge
wave of public passion or resulting in a trial atmosphere utterly corrupted by
press coverage.
6. Venue: Juror Qualifications. Under most circumstances, voir dire examination
provides the best opportunity to determine whether a court should change venue.
7. Trial: Joinder. there is no constitutional right to a separate trial.
8. ____: ____. Whether offenses are properly joined involves a two-stage analysis
in which it is determined first whether the offenses are related and properly
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

joinable and second whether an otherwise proper joinder was prejudicial to
the defendant.
9. Trial: Joinder: Evidence: Appeal and Error. a defendant is not considered
prejudiced by a joinder where the evidence relating to both offenses would be
admissible in a trial of either offense separately.
10. Homicide: Intent. Premeditation of the killing is not an element of fel-
ony murder.
11. Homicide: Intent: Proof. While proof of motive is not an element of first degree
murder, any motive for the crime charged is relevant to intent.
12. Criminal Law: Intent: Proof. When motive is particular to the defendant and is
not shared with the general public, it is circumstantial proof that the defendant,
and not someone else, is the perpetrator.
13. Criminal Law: Prosecuting Attorneys. Where a set of facts is sufficient to
constitute the violation of one of several crimes, the prosecutor is free to choose
under which crime he or she will seek a conviction.
14. Lesser-Included Offenses: Jury Instructions: Evidence. a court must instruct
on a lesser-included offense if (1) the elements of the lesser offense for which an
instruction is requested are such that one cannot commit the greater offense with-
out simultaneously committing the lesser offense and (2) the evidence produces
a rational basis for acquitting the defendant of the greater offense and convicting
the defendant of the lesser offense.
15. Miranda Rights: Waiver: Self-Incrimination. Whether or not a suspect ini-
tially waived his or her right to remain silent, the suspect retains the right to cut
off questioning.
16. Miranda Rights: Police Officers and Sheriffs: Self-Incrimination. a suspect
must articulate the desire to cut off questioning with sufficient clarity that a rea-
sonable police officer under the circumstances would understand the statement as
an invocation of the right to remain silent.
appeals from the district court for Pawnee county: dAniel
e. bryAn, Jr ., Judge. affirmed.
James r. Mowbray and robert W. Kortus, of Nebraska
commission on Public advocacy, for appellant.
Jon Bruning, attorney General, and James d. smith for
appellee.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck , and miller-lermAn, JJ.
mccormAck , J.
NatUre oF case
Patrick W. schroeder was convicted of first degree felony
murder, use of a deadly weapon to commit a felony, and forgery
in the second degree. the forgery was charged in a separate
200 	279 NeBrasKa rePorts

indictment, but was consolidated with the other charges for
trial. the charges relate to the death and robbery of Kenneth F.
albers on april 14, 2006, and a forged check written on albers’
account and deposited into schroeder’s account 3 days before
the murder. schroeder argues that he could not receive a fair
trial 40 miles away from where a first trial resulted in a hung
jury, that his confessions and incriminating evidence found as
a result of the confessions were inadmissible, that the joinder
of the forgery and first degree murder charges impermissibly
presented the jury with evidence of premeditation when he was
not charged with premeditated murder, and that the jury should
have been instructed on lesser-included offenses. For the rea-
sons set forth below, we affirm.
BacKGroUNd
albers lived alone on a farmstead just outside of Pawnee
city, Nebraska. at approximately 6:45 a.m. on Friday, april
14, 2006, a farmhand arrived at albers’ house to report for
work. albers could not be found. there was blood in the
house, primarily located between albers’ bedroom and a hall
closet. Law enforcement was contacted and later discovered an
empty lockbox inside the hall closet. the key to the lockbox
was still in the lock, and the key and the edge of the lockbox
were covered in albers’ blood. More blood was found on the
ground inside a machine shed near the house. albers’ body was
eventually discovered at the bottom of a well located on the
farmstead. a pathologist testified that the cause of death was
multiple blows to the head by a blunt instrument.
schroeder’s A rrest And confession
schroeder had worked for albers from May 2002 until
schroeder was fired in august 2002. on april 11, 2006, a
check written on albers’ account, made out to schroeder for
the sum of $1,357, had been deposited into schroeder’s bank
account. on april 13, the day before albers’ death, albers had
signed an affidavit reporting that he had neither signed nor
authorized the check.
a witness said that at approximately 6:20 a.m. on april
14, 2006, she saw a red pickup parked alongside the highway
near albers’ farmstead. at approximately 7:20 a.m., schroeder
state v. schroeder 	201
cite as 279 Neb. 199

pulled his wife’s red pickup into the gas station across the
street from his house and gave the owner $1,000 in cash to pay
an outstanding balance on his account. the station owner testi-
fied that while schroeder had always made payments in cash,
he had never received a payment from schroeder over $50. It
had been a significant period of time since schroeder had made
any payments at all.
schroeder was arrested on the evening of april 14, 2006, on
a charge of forgery. at the time of his arrest, schroeder was
carrying $1,700 in cash. schroeder was first interviewed by
Investigator Joel Bergman on april 15 at 9 p.m. in the otoe
county jail. Bergman informed schroeder of his Miranda
rights, and schroeder waived those rights. Bergman initially
told schroeder that he was being questioned about the forgery,
but schroeder brought up albers’ murder, which he claimed he
had heard about while watching the news. he asked Bergman
about the truth of news reports that he was a person of interest
in the investigation of albers’ murder. Bergman confirmed that
those reports were true.
Bergman asked schroeder for ideas as to who might be
responsible for the crime. he also asked schroeder to clarify
some facts, especially the amount of cash that schroeder
had spent recently. schroeder asserted that he had sold some
calves to albers and that the check was legitimate. schroeder
seemed surprised when Bergman informed him that albers
had reported the check as a forgery. schroeder claimed the
cash he had been spending came from his family’s sav-
ings. schroeder appeared confident and ridiculed Bergman for
attempting to seek an explanation for every penny schroeder
had recently spent.
schroeder suggested to Bergman other possible suspects
for albers’ murder. he claimed he was possibly being framed.
apparently eager to prove his innocence, schroeder volun-
teered to take a polygraph examination. Bergman responded:
“I appreciate the offer for the polygraph . . . it’s something
we’re trying to get set up . . . to . . . let you have that opportu-
nity . . . to prove that you didn’t have anything to do with it.”
otoe county does not have a polygraph machine.
202 	279 NeBrasKa rePorts

When 	Bergman 	returned 	to 	the 	theme 	of 	schroeder’s
expenditures, gently implying that it was suspicious that
schroeder had had $3,000 “floating around” in the past 2
days, all in “hundies,” schroeder became angry and indig-
nant. schroeder replied, “so what? so? that’s the end of
this conversation. I’m done.” Bergman later testified that he
understood this statement to mean schroeder “was done talk-
ing to [him] for the time being” and that he intended to honor
schroeder’s request.
Bergman said “okay.” But he added a “wrap up type
statement”: “Well, [albers] was killed for his money. We
know that.” Bergman later testified that he wanted to explain
“why [he had been] asking the questions [he] was asking.”
schroeder responded to Bergman’s wrap-up statement by
saying, “For what? a fucking check? Is that what you’re say-
ing or what?” Bergman stated that no, he meant the cash at
albers’ home.
schroeder shook his head, said something inaudible, and
the tone of the conversation again relaxed. the interview
appeared to be over. schroeder and Bergman prepared to
leave the interview room. as they did so, Bergman asked
schroeder whether he was still willing to take the polygraph.
schroeder said “yeah,” and Bergman said they would get it
set up. Bergman asked if schroeder had any further questions,
to which schroeder responded that he wanted to know when
he would be going to court on the forgery charge, and the
two left.
schroeder’s first polygraph examination was on april 17,
2006, in Lincoln. Before administering the test, the examiner,
Investigator david heidbrink, went over schroeder’s Miranda
rights with him. schroeder signed both a rights advisory form
and a waiver and release form. heidbrink explained that it
was important that the test be taken of schroeder’s own free
will. schroeder affirmed that it would be. heidbrink informed
schroeder he could stop the questioning at any time. he
further explained that schroeder had a right to counsel, and
when schroeder specifically asked if he needed an attorney,
heidbrink told him that was “entirely up to [schroeder].”
state v. schroeder 	203
cite as 279 Neb. 199

When schroeder admitted that he had only slept 3 hours
the night before, heidbrink expressed concern that this might
affect the examination, but they proceeded. during the exami-
nation, schroeder denied any involvement in the murder, but
he admitted to the forgery. the tests were ultimately inconclu-
sive as to whether he was being truthful. heidbrink informed
schroeder that because the results were inconclusive, he could
retake the examination if he wanted to. schroeder questioned
heidbrink about whether the examination was truly incon-
clusive or whether they were just trying to get him to admit
to more. When he was satisfied with heidbrink’s explana-
tion, schroeder agreed to retake the examination the follow-
ing day.
Before the second polygraph examination, heidbrink again
reviewed schroeder’s Miranda rights with him. schroeder
again signed a waiver of his Miranda rights and also a
polygraph examination release form. during the examination,
schroeder repeated the limited admission he had made the
day before.
after the test, Bergman joined heidbrink to inform schroeder
that the results showed he was being deceptive. In this post-
polygraph interview, heidbrink explained: “[F]or some reason
either you’re holding back on us and not being completely
truthful or maybe it’s a possibility you didn’t actually do this,
but you were there.” heidbrink explained further: “I mean, I
don’t know, it’s something we’re gonna have to talk about.”
Bergman expressed sympathy for schroeder’s financial situa-
tion and also his belief that schroeder knew something about
what had happened on april 14, 2006. Without further prompt-
ing, schroeder agreed to tell the investigators “everything” on
the condition that they first give him a chance to meet with his
wife. they agreed.
as Bergman and heidbrink tried to get in touch with
schroeder’s wife to arrange the meeting, they engaged in
smalltalk with schroeder and discussed picking up food on
the way to meet his wife. Unsolicited, schroeder asked the
investigators what kind of charges he might be facing. When
they informed schroeder that they did not know until they
knew more about what happened, schroeder admitted that the
204 	279 NeBrasKa rePorts

murder “wasn’t self defense.” during this time, schroeder also
revealed where the rest of the money was hidden in his wife’s
pickup and commented, “I probably said more than I probably
should have without a lawyer, but oh well, I did what I did,
now I’ll pay for it.”
schroeder was taken to the Pawnee county sheriff’s office to
meet with his wife. after the meeting with his wife, schroeder
gave the investigators a detailed confession to the crimes.
schroeder explained that “[i]n a certain sense,” the forged
check and the subsequent murder were connected to each
other. schroeder explained he was “tired of pinching pennies.”
he had brought a change of clothing on the day of the murder
and robbery, because he knew that if he and albers met face-
to-face, “there was going to be problems.” schroeder did not
wear a mask. schroeder described in detail how he had rung
the doorbell at albers’ home and how, when albers came
to the door, schroeder hit him in the head with a nightstick
and demanded that albers open the lockbox. albers went to
his bedroom to retrieve his keys from a pants pocket, opened
the lockbox, and handed schroeder the money. schroeder
then directed albers to walk out to the machine shed, where
schroeder killed him.
schroeder first stated that he led albers to the machine shed
because he wanted to get albers away from any telephone. he
started to repeatedly hit albers in the head when albers turned
toward him, and he did not “know if [albers] was coming at
[him] or what.” schroeder said he knew at that moment he was
going to have to kill albers.
But later during the same interview, schroeder admitted he
went to albers’ home that Friday with the intention of kill-
ing him. he explained he had formed this intent on the prior
tuesday or Wednesday, when he realized that albers would
discover the forged check and might file charges against him.
he did not know at the time of the murder that albers had
already disavowed the check.
during his confessions, schroeder told investigators where
they could find albers’ stolen checkbook. he also told them
where to find the bloodstained nightstick, $100 bills, an enve-
lope of money, and clothing that schroeder was wearing during
state v. schroeder 	205
cite as 279 Neb. 199

the murder. Investigators found all of the items. the blood-
stains matched albers’ dNa.
venue And voir dire
schroeder was originally tried in the district court for
Pawnee county. But on March 28, 2007, the jury deadlocked
and the court declared a mistrial. Both the prosecution and
the defense requested a change of venue for the retrial. the
district court agreed that a fair and impartial trial could no
longer be had in Pawnee county. the court ordered the venue
moved to the district court for richardson county, located in
Falls city, Nebraska, approximately 40 miles by road from
Pawnee city.
the defense did not object to the new venue until the day
of voir dire, when counsel argued that the move was not suf-
ficiently far away. the court overruled the objection. the court
also denied defense counsel’s motions for supplemental jury
questionnaires and individual voir dire. the court did agree to
consider individual voir dire as needed. Ultimately, four jurors
were questioned individually. as a result, the court dismissed
two of those jurors for cause. the other two questioned were
eliminated through the use of schroeder’s peremptory chal-
lenges. None of the jurors that schroeder specifically chal-
lenged for cause served on the jury, although he made a general
objection to the venire.
triAl
the court denied defense counsel’s motion to suppress
schroeder’s confessions. It also denied his motion to suppress
all evidence seized from schroeder’s person, possession, and
residence found as a result of the confessions. the district
court determined that schroeder had exercised his right to
terminate the first interrogation. It suppressed any comments
made by schroeder during the first interrogation after he
invoked his right to cut off questioning. Nevertheless, the court
found that the admission of subsequent interviews did not vio-
late schroeder’s Fifth amendment rights.
the court also denied schroeder’s request to sever the for-
gery charge and the felony murder and use of a deadly weapon
charges. the defense argued that by joining the forgery and
206 	279 NeBrasKa rePorts

felony murder charges, the state was able to present preju-
dicial evidence of premeditation even though it had chosen
not to charge schroeder with premeditated murder. the court
concluded that the forgery and the robbery were two acts “con-
nected together or constituting parts of a common scheme or
plan by [schroeder] against [albers].” the court further found
that schroeder had failed to sustain his burden to prove he
would be prejudiced by the consolidation, because the evidence
relating to the forgery would have been admissible in a sepa-
rate trial for felony murder.
the court denied schroeder’s alternative motion to instruct
the jury on the lesser-included offenses of premeditated mur-
der. It also denied schroeder’s request that it instruct on
unlawful-act manslaughter as a lesser-included offense of fel-
ony murder. the court did instruct the jury, “any evidence you
have received in regards to forgery must be considered by you
only in respect to the forgery count and no other count before
you.” the court further instructed that the jury could only use
schroeder’s statements to police if it first found, beyond a
reasonable doubt, that those statements were made freely and
voluntarily. despite schroeder’s argument that he had been
set up and that the confessions were coerced, the jury found
schroeder guilty on all counts.
assIGNMeNts oF error
schroeder asserts that the trial court (1) erroneously failed to
suppress evidence that was the product of interrogations con-
ducted after schroeder had invoked his right to cut off ques-
tioning, (2) erroneously consolidated the felony murder and
forgery charges into a single trial, (3) failed to properly instruct
the jury on lesser-included offenses, and (4) erroneously failed
to change venue.
staNdard oF reVIeW
[1] a motion for change of venue is addressed to the dis-
cretion of the trial judge, whose ruling will not be disturbed
absent an abuse of discretion.1
1 State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
state v. schroeder 	207
cite as 279 Neb. 199

[2] a motion for a separate trial is addressed to the sound
discretion of the trial court, and its ruling on such motion
will not be disturbed in the absence of a showing of an abuse
of discretion.2
[3] an abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.3
[4] In reviewing a motion to suppress a confession based on
the claimed involuntariness of the statement, including claims
that it was procured in violation of the safeguards established
by the U.s. supreme court in Miranda v. Arizona,4 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.5
aNaLYsIs
venue
We first address schroeder’s argument that the trial court
erred in failing to grant a change of venue from richardson
county. schroeder does not challenge any particular juror that
sat for his trial, as no juror that schroeder individually chal-
lenged actually sat on the jury. Instead, schroeder argues that
pretrial publicity made all the jurors inherently unreliable in
their attestations of impartiality. he also argues that the trial
court did not handle the voir dire with the thoroughness war-
ranted by the publicity.
[5] In Irvin v. Dowd,6 the U.s. supreme court held that the
overwhelming negative publicity against the defendant should
2 State v. Montgomery, 182 Neb. 737, 157 N.W.2d 196 (1968).
3 State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
4 Miranda v. Arizona, 384 U.s. 436, 86 s. ct. 1602, 16 L. ed. 2d 694
(1966).
5 State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
6 Irvin v. Dowd, 366 U.s. 717, 81 s. ct. 1639, 6 L. ed. 2d 751 (1961).
208 	279 NeBrasKa rePorts

have mandated a change of venue not just to a county adjoining
the county in which the murders had occurred, but to a county
geographically far enough removed to be untainted by the pub-
licity. We have said that the court is not limited in granting a
change of venue to an adjoining county when the showing of
prejudice is equally or sufficiently strong as to the adjoining
county.7 But a court will not presume unconstitutional partiality
because of media coverage unless the record shows a barrage
of inflammatory publicity immediately prior to trial, amount-
ing to a huge wave of public passion or resulting in a trial
atmosphere utterly corrupted by press coverage.8 We agree with
the trial court that the evidence provided by schroeder did not
demonstrate the type of “invidious or inflammatory”9 coverage
that could create such a presumption of prejudice—much less
the pervasiveness.10
In support of the motion for change of venue, schroeder
offered three articles from the Lincoln Journal star, one article
from the omaha World-herald, one duplicate article run in the
Beatrice daily sun, and a printout of online commentary to the
Lincoln Journal star article. he did not provide any evidence
of the extent to which these publications circulated in Pawnee
county or richardson county. three of the articles described
a posttrial confrontation between albers’ youngest son and the
single juror who had remained unconvinced of schroeder’s
guilt. the son had accused the holdout juror of simply wanting
a moment of fame. the second article described the expense
the county would incur as a result of two trials.
the articles outlined the trial evidence against schroeder
and also mentioned his previous convictions for theft and
escape. the online commentary consisted of various members
of the public either criticizing the holdout juror or reproach-
ing others for making assumptions about a trial for which they
were not present.
7 see Gandy v. Estate of Bissell, 81 Neb. 102, 115 N.W. 571 (1908).
8 Id.
9 Murphy v. Florida, 421 U.s. 794, 801 n.4, 95 s. ct. 2031, 44 L. ed. 2d
589 (1975).
10 see State v. Galindo, supra note 1. compare Irvin v. Dowd, supra note 6.
state v. schroeder 	209
cite as 279 Neb. 199

While these articles and the online commentary are not
entirely favorable, they do not raise concerns of public pas-
sion against schroeder within the meaning of Irvin v. Dowd.11
Mostly, they reflect that albers’ family believed schroeder was
guilty—a fact that could have been guessed regardless. that a
previous jury was unable to unanimously find schroeder guilty
is at least as favorable to him as prejudicial. and certainly, five
articles failed to demonstrate the publicity was so widespread
to have corrupted the mind of all potential jurors—particularly
when there was no evidence of the extent to which that public-
ity reached the community in question.
[6] Under most circumstances, voir dire examination pro-
vides the best opportunity to determine whether a court should
change venue.12 the majority of the jurors questioned for
schroeder’s trial did have some knowledge of the crime. In
addition, the venire was made aware that there had been a
mistrial. the majority of the jurors questioned, however, did
not appear to have particularly extensive exposure to facts of
the crime or the particular facts relating to the mistrial. More
importantly, 37 of the 50 potential jurors stated that they had
never expressed or held an opinion as to whether schroeder
was guilty of the crimes charged. of the 13 who had formed
some opinion of schroeder’s guilt, 5 affirmed quite readily
that that opinion could be set aside. the trial court excused the
remaining eight jurors when they expressed even the slightest
doubt in their ability to set aside that opinion.
We disagree with schroeder that the voir dire of these
jurors was somehow inadequate. the jurors were questioned
about whether they had formed any opinion as to schroeder’s
guilt and whether they had heard any reports about the crimes.
If they had heard anything, the jurors were questioned as to
the source of their information. after this group voir dire was
complete, an off-the-record discussion was had between the
attorneys and the court and the court called back in four of
the potential jurors for individualized questioning. there is
11 see Irwin v. Dowd, supra note 6.
12 see, State v. Galindo, supra note 1; State v. Rodriguez, 272 Neb. 930, 726
N.W.2d 157 (2007).
210 	279 NeBrasKa rePorts

no evidence that the court refused to individually examine
any specified juror over whom defense counsel had spe-
cial concerns.
a motion for change of venue is addressed to the discretion
of the trial judge, whose ruling will not be disturbed absent
an abuse of that discretion. due process does not require that
a defendant be granted a change of venue whenever there is a
“‘reasonable likelihood’” that prejudicial news prior to trial
would prevent a fair trial.13 rather, a change of venue is man-
dated when a fair and impartial trial “cannot” be had in the
county where the offense was committed.14 We find no abuse of
discretion in the trial court’s conclusion that a fair and impar-
tial trial could be had in richardson county.
Joinder
[7] We next address schroeder’s assertion that the charges of
forgery and felony murder should not have been tried together.
the joinder or separation of the charges for trial is governed by
the principles of Neb. rev. stat. § 29-2002 (reissue 2008).15
there is no constitutional right to a separate trial.16
[8] section 29-2002 states in relevant part:
(1) two or more offenses may be charged in the same
indictment, information, or complaint in a separate count
for each offense if the offenses charged, whether felonies
or misdemeanors, or both, are of the same or similar
character or are based on the same act or transaction or
on two or more acts or transactions connected together or
constituting parts of a common scheme or plan.
. . . .
(3) If it appears that a defendant or the state would
be prejudiced by a joinder of offenses in an indictment,
information, or complaint or by such joinder of offenses
in separate indictments, informations, or complaints for
13 State v. Bradley, 236 Neb. 371, 383, 461 N.W.2d 524, 535 (1990) (empha-
sis omitted). see Neb. rev. stat. § 29-1301 (reissue 2008).
14 § 29-1301. accord State v. Bradley, supra note 13.
15 see State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).
16 State v. Clark, 228 Neb. 599, 423 N.W.2d 471 (1988).
state v. schroeder 	211
cite as 279 Neb. 199

trial together, the court may order an election for separate
trials of counts, indictments, informations, or complaints,
grant a severance of defendants, or provide whatever
other relief justice requires.
Whether offenses are properly joined involves a two-stage
analysis in which it is determined first whether the offenses are
related and properly joinable and second whether an otherwise
proper joinder was prejudicial to the defendant.17
the forgery and the felony murder offenses were prop-
erly joinable because they were “connected together” and
“constitut[ed] parts of a common scheme or plan.”18 In this
case, as the trial court noted, there was a continuing scheme by
schroeder to deprive albers of the liquid assets that schroeder
knew albers possessed. Not only that, but one crime led to the
other. they are logically connected. schroeder estimated the
amount of time it would take for the forged check to clear, and
he decided to finish the job before that happened. schroeder
decided to enter albers’ home, steal the cash he kept there, and
then hide both crimes by killing albers.
schroeder argues that the forgery was unduly prejudicial
to the murder charge because it demonstrates premeditation.
according to schroeder, the “key” to his argument is the fact
that the state elected to prosecute the murder charge under the
sole theory of felony murder and not also under a theory of
premeditated murder.19 In effect, schroeder argues the state
forfeited its right to present evidence of premeditation.
We note, first, that the jury was instructed not to consider
the evidence of the forgery as evidence of any other charge.
second, the evidence of premeditation was not inexorably
tied to the forgery charge. schroeder’s confession that he
went to albers’ house intending to kill him would not simply
have disappeared had the forgery not been tried in a consoli-
dated trial.
17 see State v. Hilding, supra note 15.
18 see § 29-2002(1).
19 Brief for appellant at 28.
212 	279 NeBrasKa rePorts

[9] In any event, a defendant is not considered prejudiced by
a joinder where the evidence relating to both offenses would be
admissible in a trial of either offense separately.20 If the felony
murder charge had been tried separately, the admissibility of
the forgery to prove the subsequent felony murder would have
been governed by Neb. rev. stat. § 27-404(2) (reissue 2008).
section 27-404(2) provides:
evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
this statutory list of permissible purposes for admission of
evidence of other crimes, wrongs, and bad acts is not exhaus-
tive, and the purposes set forth in the statute are illustra-
tive only.21
the evidence relating to the stolen, forged check would
not have been admissible to show schroeder’s propensity for
thievery or crime. the prior forgery does, however, prop-
erly illustrate schroeder’s motive, intent, plan, knowledge,
and identity and an absence of mistake or accident for the
crime of felony murder. the evidence relating to the forgery
illustrated that schroeder was feeling under pressure to come
up with money to pay his bills and that he had chosen to tar-
get albers. Furthermore, he did not want to get caught after
cashing albers’ check. It was not coincidental that albers
was robbed and killed only 3 days after the forged check was
deposited into schroeder’s account. schroeder admitted that he
went to albers’ house with the intent to kill albers to cover
up the forgery. In short, evidence of the forgery would have
been admissible for a proper purpose in a felony murder trial,
regardless of joinder.
20 see, State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999); State v. Greer,
7 Neb. app. 770, 586 N.W.2d 654 (1998), affirmed in part and in part
reversed on other grounds 257 Neb. 208, 596 N.W.2d 296 (1999).
21 see State v. Egger, 8 Neb. app. 740, 601 N.W.2d 785 (1999).
state v. schroeder 	213
cite as 279 Neb. 199

[10-12] schroeder is correct in arguing that the connec-
tion between the two crimes also supports the inference that
schroeder premeditated albers’ murder. and premeditation of
the killing is not an element of felony murder.22 Nevertheless,
it does not follow that all evidence suggesting premeditation
is improper and irrelevant in a case tried solely on the theory
of felony murder. the forgery illustrates schroeder’s motive
to commit felony murder. We have said that while proof of
motive is not an element of first degree murder, any motive
for the crime charged is relevant to intent.23 and intent, while
not an element of felony murder, is still relevant to illustrate
the circumstances of the crime. Moreover, the identity of the
defendant as the perpetrator of the crime is always relevant in
a case such as this, where the defendant claims no involve-
ment in the crime. When, as in this case, motive is particular
to the defendant and is not shared with the general public, it
is also circumstantial proof that the defendant, and not some-
one else, is the perpetrator.24 For example, in State v. Ruyle,25
where the defendant was charged with felony murder by arson
of the victim’s apartment building, we held that not only were
the defendant’s prior threats to “‘torch’” the intended victim’s
apartment admissible at trial, but so were his prior state-
ments threatening to shoot the intended victim. We explained
that those threats explained the defendant’s motive and the
22 see, Hopkins v. Reeves, 524 U.s. 88, 118 s. ct. 1895, 141 L. ed. 2d 76
(1998); State v. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009); State v.
Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v. Hubbard, 211
Neb. 531, 319 N.W.2d 116 (1982). see, also, e.g., Chance v. Garrison, 537
F.2d 1212 (4th cir. 1976).
23 see State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).
24 see, e.g., State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). see, also,
e.g., Hernandez v. Cepeda, 860 F.2d 260 (7th cir. 1988); United States v.
Stumes, 549 F.2d 831 (8th cir. 1977), abrogated on other grounds, Hudson
v. Palmer, 468 U.s. 517, 104 s. ct. 3194, 82 L. ed. 2d 393 (1984); State
v. Hubbard, 37 Wash. app. 137, 679 P.2d 391 (1984), reversed on other
grounds 103 Wash. 2d 570, 693 P.2d 718 (1985). compare, People v. Holt,
37 cal. 3d 436, 690 P.2d 1207, 208 cal. rptr. 547 (1984); In re L.R., 84
s.W.3d 701 (tex. app. 2002).
25 State v. Ruyle, 234 Neb. 760, 768, 452 N.W.2d 734, 739 (1990).
214 	279 NeBrasKa rePorts

facts surrounding the incident. the trial court in the present
case did not abuse its discretion in concluding that joinder
was proper.
lesser-included offenses
[13] alternatively, schroeder argues that because the state
operated under a de facto theory of premeditated murder,
the trial court was obliged to instruct the jury on the lesser-
included offense of premeditated murder. other than a citation
to the general proposition that a trial judge must instruct the
jury on all pertinent law of the case,26 schroeder does not refer-
ence any legal authority for this argument. on the other hand, a
long line of cases hold that as a general matter, felony murder
is not divisible into lesser degrees of homicide.27 our cases
also hold that where a set of facts is sufficient to constitute
the violation of one of several crimes, the prosecutor is free to
choose under which crime he or she will seek a conviction.28
We find no reason in this appeal to depart from precedent.
the state chose to seek a conviction on the theory of felony
murder. It chose to take the risk of submitting to the jury only
one means of finding schroeder guilty of first degree murder.
While schroeder may have been deprived of lesser-included
offense instructions, he was granted the possibility of acquittal
if the proof of the robbery was found inadequate, regardless
of whether the jury believed that schroeder had killed albers.
however unlikely this benefit might be under the particular
facts of this case, we are unconvinced due process is violated
when a trial court fails to instruct on lesser-included offenses
of a crime not charged.
schroeder also argues that the jury should have been instructed
on unlawful-act manslaughter as a lesser-included offense of
felony murder. schroeder explains that larceny and theft are
lesser-included offenses of robbery and that manslaughter is
26 see State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
27 see, e.g., State v. Banks, supra note 22; State v. Bazer, 276 Neb. 7, 751
N.W.2d 619 (2008); State v. Bjorklund, supra note 22; State v. Moore, 256
Neb. 553, 591 N.W.2d 86 (1999).
28 see, e.g., State v. Wright, 261 Neb. 277, 622 N.W.2d 676 (2001).
state v. schroeder 	215
cite as 279 Neb. 199

a lesser-included offense of murder. and theft is not one of
the possible predicate felonies for felony murder.29 While this
argument is novel, even assuming unlawful-act manslaughter is
technically a lesser-included offense of felony murder, no such
instruction was warranted by the facts of this case. schroeder
has failed to show how the evidence would support an acquittal
of felony murder while supporting a conviction of unlawful-
act manslaughter.
[14] a court must instruct on a lesser-included offense if
(1) the elements of the lesser offense for which an instruc-
tion is requested are such that one cannot commit the greater
offense without simultaneously committing the lesser offense
and (2) the evidence produces a rational basis for acquitting
the defendant of the greater offense and convicting the defend-
ant of the lesser offense.30 a person commits robbery if, with
the intent to steal, he or she forcibly and by violence, or by
putting in fear, takes from the person of another any money
or personal property.31 the various crimes of theft, previously
known as larceny, embezzlement, false pretense, and the like,
do not contain this element of violence or fear.32 they are
otherwise similar insofar as the victim is deprived of his or
her possessions.
the evidence is overwhelming that albers was deprived of
his possessions while subjected to violence and fear. Puddles
of blood and his blood on the lockbox and its key demonstrate
that albers was injured as a means to force him to hand over
his money. No evidence or argument was presented that the
crime was otherwise. such a crime was not a mere theft.33
Because there was no rational basis for finding that schroeder
had committed theft but had not committed robbery, no instruc-
tion involving simple theft was warranted.
29 Neb. rev. stat. § 28-303 (reissue 2008).
30 State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
31 Neb. rev. stat. § 28-324 (reissue 2008).
32 Neb. rev. stat. §§ 28-509 to 28-518 (reissue 2008).
33 see State v. Ruggles, 183 W. Va. 58, 394 s.e.2d 42 (1990).
216 	279 NeBrasKa rePorts

invocAtion of right to remAin silent
Finally, we address schroeder’s argument that the trial court
erred in failing to suppress his confessions and the physical
evidence obtained as a result of those confessions. the motion
was based on schroeder’s right to remain silent.
there is no dispute that schroeder was interrogated while
in police custody. schroeder does not deny that prior to the
first interview, he had initially waived his Miranda rights.
schroeder’s argument is that law enforcement failed to scrupu-
lously honor his clear invocation of his right to cut off ques-
tioning once the interview began. Because the facts surround-
ing the alleged invocation are recorded in the videotape and are
not in dispute, this presents a question of law.34
[15] the U.s. supreme court has explained that whether
or not the suspect initially waived his or her right to remain
silent, the suspect retains the right to cut off questioning.35 the
police are restricted to scrupulously honoring that right once it
is invoked.36 In contrast, when a defendant does not invoke his
or her Miranda rights, an examination of whether those rights
were scrupulously honored is not necessary.37 We conclude
that schroeder did not clearly and unequivocally communicate
that he wished all further questioning to cease.38 therefore, the
authorities did not violate schroeder’s Miranda rights when
they conducted subsequent interviews in connection with the
polygraph examinations.
[16] the suspect must articulate the desire to cut off ques-
tioning with sufficient clarity that a reasonable police officer
under the circumstances would understand the statement as
an invocation of the right to remain silent.39 an officer should
34 see State v. Rogers, supra note 5.
35 see id. (citing cases).
36 Id.
37 State v. Adams, 127 N.J. 438, 605 a.2d 1097 (1992). see, also, State v.
Rogers, supra note 5.
38 see id.
39 see id. see, also, Davis v. United States, 512 U.s. 452, 114 s. ct. 2350,
129 L. ed. 2d 362 (1994).
state v. schroeder 	217
cite as 279 Neb. 199

not have to guess when a suspect has changed his or her mind
and wishes the questioning to end.40 In other words, while the
suspect does not have to “‘speak with the discrimination of an
oxford don,’”41 ambiguous or equivocal statements that might
be construed as invoking the right to silence do not require
the police to discontinue their questioning.42 In determining
whether there has been a clear invocation, we review the total-
ity of the circumstances surrounding the statement in order to
assess the words in context.43
as we noted in Rogers, where the suspect’s reference to
silence is qualified by a temporal element like “‘now’” or “‘at
this time,’” courts generally conclude that the statement is
equivocal.44 In this case, schroeder told Bergman that it was
“the end of this conversation.” (emphasis supplied.)
But schroeder relies on the fact that in Rogers, we held that
an unqualified “‘I’m done,’” combined with “‘I’m not talk-
ing no more,’” was a clear invocation of the right to remain
silent.45 We find schroeder’s statements are distinguishable. as
already noted, schroeder’s statement was not unqualified. his
statement, “I’m done,” cannot be extricated from his statement
immediately preceding it. the prior statement qualified that
what he was “done” with was simply “this conversation.” We
have never held that any utterance of “I’m done,” no matter
what the surrounding circumstances or other statements, will
be construed as cutting off all further questioning.
40 see id.
41 Davis v. United States, supra note 39, 512 U.s. at 459.
42 see id.
43 see, e.g., State v. Rogers, supra note 5; People v. Arroya, 988 P.2d 1124
(colo. 1999).
44 see State v. Rogers, supra note 5, 277 Neb. at 66, 760 N.W.2d at 59. see,
also, e.g., State v. Ganpat, 732 N.W.2d 232 (Minn. 2007); Com. v. Leahy,
445 Mass. 481, 838 N.e.2d 1220 (2005); State v. Sabetta, 680 a.2d 927
(r.I. 1996); State v. Holcomb, 213 or. app. 168, 159 P.3d 1271 (2007);
State v. Bieker, 35 Kan. app. 2d 427, 132 P.3d 478 (2006). see, also, U.S.
v. Rodriguez, 518 F.3d 1072 (9th cir. 2008); State v. Markwardt, 306 Wis.
2d 420, 742 N.W.2d 546 (Wis. app. 2007).
45 State v. Rogers, supra note 5, 277 Neb. at 70, 760 N.W.2d at 61-62.
218 	279 NeBrasKa rePorts

and it is of no small import that part of the context of the
alleged invocation is schroeder’s prior request for a polygraph.
We conclude that a reasonable police officer faced with a sus-
pect’s statement that “this conversation” is done, after the sus-
pect had volunteered to take a polygraph examination as soon as
one could be set up, would believe that the suspect wanted only
to end the current conversation. to the extent that a reasonable
police officer might believe that “this conversation” referred
more broadly to all future discussion of the same topic, the
statement is, at the most, ambiguous. We also note that for the
most part, Bergman followed the “good police practice”46 of
asking clarifying questions. Bergman asked schroeder whether
he still wanted to take a polygraph examination. schroeder
indicated that he did.
In reality, by saying he was done with the conversation,
schroeder made a “limited” invocation of the right to remain
silent: he exercised his right to control the duration of the
interrogation. the U.s. supreme court has held that suspects
have the right to control the time at which questioning occurs,
the subjects discussed, and the duration of the interrogation.47
and in Connecticut v. Barrett,48 the court held that a suspect
had chosen to exercise a “limited” invocation of his Fifth
amendment right to counsel when he had agreed to waive that
right as to any oral statement, but had demanded that an attor-
ney be present for any written statement. the court explained
that “Miranda gives the defendant a right to choose between
speech and silence, and [the defendant in Barrett] chose to
speak.”49 the court stated further that to interpret the suspect’s
statements as a broader invocation for all purposes would be a
“disregard of the [statements’] ordinary meaning.”50
46 Davis v. United States, supra note 39, 512 U.s. at 461.
47 Michigan v. Mosley, 423 U.s. 96, 96 s. ct. 321, 46 L. ed. 2d 313 (1975).
48 Connecticut v. Barrett, 479 U.s. 523, 530, 107 s. ct. 828, 93 L. ed. 2d
920 (1987). see, also, State v. Holcomb, supra note 44; State v. Gascon,
119 Idaho 932, 812 P.2d 239 (1991); State v. Uraine, 157 ariz. 21, 754
P.2d 350 (ariz. app. 1988).
49 Connecticut v. Barrett, supra note 48, 479 U.s. at 529.
50 Id., 479 U.s. at 530.
state v. schroeder 	219
cite as 279 Neb. 199

other courts have applied this reasoning to find a “limited”
or “selective” invocation of the right to remain silent—appli-
cable only to certain times or certain subjects.51 But any state-
ments made during the conversation after schroeder wished to
end it were suppressed by the trial court.
the continuing questioning of schroeder during and after52
his polygraph examinations was not in violation of schroeder’s
right to remain silent. the trial court did not err in denying
schroeder’s motion to suppress those statements.
coNcLUsIoN
the trial court did not err in denying schroeder’s motions
to change venue, sever the charges, suppress, and instruct on
lesser-included offenses. We affirm.
A ffirmed.
51 see, e.g., Arnold v. Runnels, 421 F.3d 859 (9th cir. 2005); State v. Adams,
supra note 37.
52 see Wyrick v. Fields, 459 U.s. 42, 103 s. ct. 394, 74 L. ed. 2d 214
(1982).
stAte of nebrAskA, Appellee , v.
terry J. sellers , AppellAnt.
777 N.W.2d 779
Filed January 15, 2010. 	No. s-08-434.
1. Trial: Appeal and Error. the responsibility for conducting a trial in an orderly
and proper manner for the purpose of ensuring a fair and impartial trial rests
with the trial court, and its rulings in this regard will be reviewed for an abuse
of discretion.
2. Motions for Mistrial: Appeal and Error. the decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
3. Judgments: Words and Phrases. an abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
4. Criminal Law: Motions for Mistrial: Appeal and Error. a mistrial is properly
granted in a criminal case where an event occurs during the course of a trial
which is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
220 	279 NeBrasKa rePorts