                   IN THE SUPREME COURT OF IOWA
                              No. 81 /07–0660

                           Filed November 6, 2009


STATE OF IOWA,

      Appellee,

vs.

RASHEEM DAMONTE BOGAN,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, J. Hobart

Darbyshire, Judge.



      A defendant appeals his conviction for first-degree murder. DECISION

OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

REVERSED AND CASE REMANDED.



      Brian Farrell, Cedar Rapids, for appellant.



      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, William E. Davis, Scott County Attorney, and Amy Devine,

Assistant County Attorney, for appellee.
                                        2

WIGGINS, Justice.

      A student appeals his conviction for first-degree murder. The court of

appeals reversed the conviction and ordered a new trial because the district

court failed to sever his trial from that of a codefendant. The State applied

for further review, which we granted.       On further review, we exercise our

discretion and review whether the defendant should have received a Miranda

warning prior to being interrogated at school. In our review, we find that the

defendant was in custody at the time of the interrogation, and the police

should have given him a Miranda warning prior to asking any questions.

Accordingly, we vacate the decision of the court of appeals, reverse the

judgment of the district court, and remand the case for a new trial.

      I. Background Facts and Proceedings.

      On the evening of August 19, 2006, around 10:30 p.m., a young

woman named Vincelina Howard was the victim of a drive-by shooting while

attending    an     impromptu   gathering   at   her   grandmother’s   house   in

Davenport.    Howard died due to hemorrhagic shock caused by the bullet

injuries.

      There was only one eyewitness as to the identity of the shooters. One

man in the neighborhood saw a van driving slowly and observed the back-

passenger-side sliding door open. He then saw gunfire from the van. The

eyewitness saw four male African-Americans in the van, but did not

recognize the individuals. Another eyewitness observed a “grayish silverish”

minivan, but never saw the individuals inside the van.

      The State’s theory is that Howard’s shooting was a gang-related

retribution shooting. On April 19, 2006, Andrell Hearn was killed in Rock

Island, Illinois.    Allegedly, Davenport residents committed the homicide.

Thereafter, on the 19th of every month, a memorial walk was held to

remember Hearn.        On August 19, a crowd of approximately 100 to 150
                                          3

people gathered for a 6 p.m. walk. Afterwards, there was a barbeque party.

Witnesses claimed both Rasheem Bogan and Don White, Jr. attended the

walk and the gathering afterwards. The witnesses claimed the two men were

at the gathering until at least 11 p.m.

      Some time that same evening, possibly prior to the walk, Mark Helton

placed Bogan at Ron Millbrook’s house. Helton drove to Rock Island to drop

off his van so Millbrook could borrow it for the evening.          Millbrook was

allegedly borrowing the van to move furniture. When Helton dropped off the

van, there were approximately seven to eight people at the residence,

including Bogan, White, and Millbrook.             The witness to the shooting

matched the van he saw to a photograph of Helton’s van.              Crime scene

technicians found shell casings in Helton’s van that matched one of the guns

used in the shooting.    The crime scene technicians also lifted one latent

fingerprint from the window crank of the driver’s-side door that matched

Bogan’s right thumbprint.     Millbrook’s and White’s fingerprints were also

matched to prints lifted from the van.

      Later that evening, around 11 p.m. or 12 a.m., Timothy Smith saw

Bogan at Millbrook’s house.     Bogan asked Smith to get him a room at a

motel, and Smith did so.     Smith came back to Millbrook’s house, picked

Bogan up, and took him to the motel around 12 or 1 a.m.

      A few days after the shooting, on August 23, two Davenport detectives,

Mark Dinneweth and John Hutcheson, went to Bogan’s school in Rock

Island to obtain his fingerprints and interview him.         Bogan was fourteen

years old at the time. A Rock Island detective, the school liaison officer, and

the principal had already pulled Bogan out of class and placed him in the

school office, where he was waiting.          The principal called Bogan’s father.

Bogan’s father came to the school. Detectives Dinneweth and Hutcheson,

Bogan, and Bogan’s father all went into the nurse’s office for the interview.
                                        4

The detectives did not give Bogan a Miranda warning before questioning him.

Detective Dinneweth asked Bogan if he knew about the Howard homicide.

Bogan replied he did not know anything specifically about it, but he did

know Stevie West had called Terrell Lobley and accused Lobley and Bogan of

perpetrating the shooting.      Dinneweth then asked Bogan about his

whereabouts that evening.     Bogan answered that he was at the Andrell

Hearn walk and then went to the barbecue. He stated he left the barbecue

around 9:30 p.m. and went to Millbrook’s house until 12:30 a.m.         Then

Smith escorted him to the American Motor Inn. This statement is at odds

with the other witnesses’ testimony as to Bogan’s whereabouts at the time of

the shooting.   When asked where Millbrook was during this same time

period, Bogan responded that Millbrook was there the whole time and he

never saw him leave.

      The police arrested Bogan for the Howard shooting. The juvenile court

waived jurisdiction of Bogan. Bogan entered a written plea of not guilty. The

police also arrested White, Millbrook, and Lobley for this shooting. White’s

trial ended in a hung jury and a mistrial, Millbrook was convicted of murder

in the first degree, and Lobley was convicted of murder in the second degree.

      The State filed a motion to try White and Bogan jointly.       Bogan’s

attorney resisted the joinder and argued that if the cases were joined, Bogan

would be prejudiced by bad acts evidence that was only admissible against

White. Bogan also claimed he would look guilty by association. The court

allowed the joinder, determining neither Bogan nor White would face

prejudice by joinder of the common charges. Bogan also moved to suppress

the statements he made to the detectives when they interviewed him at his

school. The court denied this motion.

      At the joint trial, the State offered testimony from several forensic

scientists concerning the fingerprints of Bogan, White, and Millbrook.
                                      5

Roughly twenty-five to thirty latent fingerprints were lifted off the van. One

of the scientists identified Bogan’s right thumbprint on the driver’s-side

door’s window crank. The window crank did not have a knob. The scientist

agreed it was reasonable to assume Bogan made the print while standing

outside the door because it would be difficult for his right hand to reach

across his body and touch the window crank if he was sitting in the driver’s

seat. The jurors had the opportunity to view the window crank position in

person during a field trip to the van, which was near the courthouse. The

State also introduced Bogan’s statement. The rest of the testimony offered

by the State dealt largely with guns linked to the Howard shooting found in a

car previously owned by White, and currently owned by Millbrook.

      The jury returned a verdict convicting Bogan of murder in the first

degree. After denying his posttrial motions, the court held a dispositional

hearing for Bogan.     The court transferred Bogan’s guardianship to the

department of human services for placement at the State Training School at

Eldora until shortly before his eighteenth birthday. At that time, the court

stated it would hold a hearing to determine whether his youthful-offender

status should continue after his eighteenth birthday, he should be sentenced

for the crime of murder in the first degree, or he should be discharged.

      Bogan appealed. We transferred the case to the court of appeals. The

court of appeals determined Bogan’s trial should not have been joined with

White’s and reversed. The State applied for further review.

      II. Issue.

      When we consider an application for further review, our discretion

allows us to review any issue raised on appeal, regardless of whether a party

seeks further review of that issue. In re Marriage of Ricklefs, 726 N.W.2d

359, 361–62 (Iowa 2007). We choose to exercise our discretion and review
                                      6

whether the district court should have suppressed the statements Bogan

made to the Davenport detectives.

      III. Scope of Review.

      Bogan claims the court should have suppressed the statements he

made to the Davenport detectives because the detectives did not give him a

Miranda warning prior to being interrogated.        We review constitutional

claims of a Miranda violation de novo. State v. Miranda, 672 N.W.2d 753,

758 (Iowa 2003). We make an independent evaluation of the totality of the

circumstances, while deferring to the district court’s findings of fact due to

that court’s opportunity to assess credibility. Id. This court considers both

the evidence at the suppression hearing and the evidence introduced at trial.

State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997).

      IV. Analysis.

      The Supreme Court requires that before beginning a custodial

interrogation the police must inform a suspect:

      he has the right to remain silent, that anything he says can be
      used against him in a court of law, that he has the right to the
      presence of an attorney, and that if he cannot afford an attorney
      one will be appointed for him prior to any questioning if he so
      desires.

Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630, 16

L. Ed. 2d 694, 726 (1966).    We have said the requirement of Miranda to

inform a suspect of his or her rights is more than a “mere procedural nicety

or legal technicality.” State v. Ortiz, 766 N.W.2d 244, 251 (Iowa 2009).

      The State acknowledges the detectives never read Bogan a Miranda

warning, so the only question we must decide is whether he was entitled to

receive that warning. See Miranda, 672 N.W.2d at 759. The State claims

Bogan was not in custody during the questioning at the school; therefore, he

was not entitled to receive a Miranda warning.
                                      7

      A suspect is in custody if the “suspect’s freedom of action is curtailed

to a ‘degree associated with formal arrest.’ ” Berkemer v. McCarty, 468 U.S.

420, 440, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 335 (1984) (quoting

California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77

L. Ed. 2d 1275, 1279 (1983)). To determine if a suspect is in custody we

look to whether the suspect was formally arrested or whether the suspect’s

freedom of movement was restricted to such a degree to be associated with a

formal arrest. Miranda, 672 N.W.2d at 759.

      To determine whether the suspect’s freedom of movement was

restricted to such a degree, we apply an objective analysis and ask whether a

reasonable person in the defendant’s position would have understood his

situation to be one of custody. Berkemer, 468 U.S. at 442, 104 S. Ct. at

3151, 82 L. Ed. 2d at 336; Miranda, 672 N.W.2d at 759.              A custody

determination depends on objective circumstances, not the subjective belief

of the officers or the defendant.     Countryman, 572 N.W.2d at 557; see

Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S. Ct. 2140, 2148, 158

L. Ed. 2d 938, 950 (2004).

      To make a determination as to whether Bogan was in custody, we use

a four-factor test. Miranda, 672 N.W.2d at 759. These factors are

      (1) the language used to summon the individual;

      (2) the purpose, place, and manner of interrogation;

      (3) the extent to which the defendant is confronted with evidence of
      [his] guilt; and

      (4) whether the defendant is free to leave the place of questioning.

Id.

      Considering the first factor regarding custodial status, we find the

principal summoned Bogan to the school office at the direction of the school

liaison officer and a plain-clothes Rock Island detective. The principal went
                                       8

into the classroom to get Bogan and walked him to the school office. Officer

Pauley, the school liaison officer, and detective Karzin, with the Rock Island

Police Department, followed behind. Bogan did not volunteer to speak to the

police and did not acquiesce.     In fact, detective Karzin thought he heard

Bogan say he was not going to talk to anyone. Bogan was then placed in the

school office.   For these reasons, the first factor tends to support the

conclusion that Bogan was in custody.

      As to the second factor, one of the purposes for bringing Bogan to the

office was to detain him in order for the Davenport police to obtain a court

order from an Illinois judge authorizing them to take Bogan’s fingerprints.

Bogan was brought to the school office. The office is configured as a suite.

The suite consists of a waiting area in front of a counter. Behind the counter

there is an open area where the office support staff work. Just behind the

open area, there are two offices, one for the principal and one for the nurse.

The nurse’s office has its own restroom. The principal and the Rock Island

officers placed Bogan in the open area of the office, behind the counter.

      Another purpose for bringing Bogan to the office was to ask him some

questions regarding the Howard shooting. Once Bogan was placed in the

office, he had to wait for his father and the Davenport detectives to arrive.

After the detectives and his father arrived, the two Davenport detectives,

Bogan, and his father, all went into the school nurse’s office so the detectives

could question Bogan.     One of the detectives asked Bogan if he had any

information or knew anything about the Howard homicide. He also asked

Bogan about his whereabouts that evening.             Bogan answered these

questions.

      Before the detective could ask any more questions, he received a call

concerning the court order for Bogan’s fingerprints.        At this point, the

interview ended, and the Rock Island detective took Bogan to the courthouse
                                        9

for a hearing on the requested court order. The interrogation itself was not

overly aggressive even though the detectives took Bogan to an area of the

school not generally accessible to the public.

      The police officials never disclosed to Bogan their dual purpose for

bringing him to the office. We determine whether a suspect is in custody by

applying an objective analysis and ask whether a reasonable person in the

defendant’s position would have understood his situation to be one of

custody. Accordingly, the second factor tends to be neutral in determining

whether Bogan was in custody.

      As to the third factor, the Davenport detective questioning Bogan did

not confront him with evidence implicating him in the shooting. Thus, the

third factor tends to mitigate a finding of custody.

      Finally, as to the fourth factor, Bogan was escorted to the office by two

armed police officers.     The school liaison officer and the plain-clothes

detective remained at the only door to the office waiting for the Davenport

detectives to arrive. Bogan was allowed to enter the principal’s private office

and take candy from a dish the principal had available for students. The

officers did not take Bogan’s cell phone from him, and he was seen walking

around the office trying to get a signal.

      Although Bogan was allowed to roam freely in the office area behind

the counter, armed police officers remained at the only exit. When Bogan

asked if he could use the restroom, an officer told him to use the one in the

nurse’s office. The officers never told Bogan he could leave. If Bogan had

asked to leave, we doubt the officers would have honored his request

because one of the lead Davenport detectives had instructed the officers to

hold Bogan at the school until they obtained a hearing to get his
                                             10

fingerprints.    Therefore, the fourth factor tends to support the conclusion

that Bogan was in custody.1

       In summary, Bogan was a student summoned to the school office by

his principal and armed officers. The officers placed him in an area of the

office not generally accessible to the public. Two armed officers stayed at the

door to the office at all times. The officers did not allow him to leave the

office to go to the restroom, but instructed him to use the restroom not

generally used by students. He was taken to the office to be interviewed and

       1Bogan    claims that when a juvenile is involved, the juvenile’s age should be
considered as an additional factor to determine whether a reasonable person in the
defendant’s position would have understood his situation to be one of custody. Previously,
we have stated that we can use age as part of the analysis in determining a defendant’s
custodial status.     State v. Smith, 546 N.W.2d 916, 922–23 (Iowa 1996).            However,
subsequent to our decision in Smith, the Supreme Court decided Yarborough v. Alvarado,
541 U.S. 652, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004), which questions whether age is a
factor to consider under a federal constitutional analysis.
        In Yarborough, the court was asked to decide if the state court should have
considered the fact that the defendant was five months short of his eighteenth birthday
when he was questioned by the police in determining his custodial status. Yarborough, 541
U.S. at 656, 659–60, 124 S. Ct. at 2144–45, 2147, 158 L. Ed. 2d at 946, 948–49. There, the
Supreme Court held that the state court did not incorrectly apply the law by refusing to
consider the defendant’s age. Id. at 667–68, 124 S. Ct. at 2151–52, 158 L. Ed. 2d at 953–
54. Justice Kennedy, writing for a majority of the court, questioned whether a court should
consider age in a Miranda custody analysis, because the test is meant to be objective. Id. at
666–67, 124 S. Ct. at 2151, 158 L. Ed. 2d at 953–54. Justice Kennedy’s opinion stated that
by adding the subjective factor of the defendant’s age into the equation, the usefulness of
the test to law enforcement is eliminated. Id. at 667–68, 124 S. Ct. at 2151–52, 158 L. Ed.
2d at 953–54.
        Justice Breyer, writing for himself and Justices Stevens, Souter, and Ginsberg,
found nothing in the law supporting the conclusion that the court could not consider the
defendant’s age. Id. at 673, 124 S. Ct. at 2154–55, 158 L. Ed. 2d at 957 (Breyer, J.
dissenting). Justice Breyer went on to state that applying a reasonable person standard
does not require the court to inquire into the defendant’s subjective state of mind, but
rather age is an objective circumstance known to the police at the time of the interrogation.
Id. at 674–75, 124 S. Ct. at 2155, 158 L. Ed. 2d at 958 (Breyer, J., dissenting).
        Justice O’Connor, a member of the majority, wrote her own opinion concurring with
Justice Kennedy’s opinion. Id. at 669, 124 S. Ct. at 2152, 158 L. Ed. 2d at 954–55
(O’Connor, J., concurring). There, she stated the defendant’s age was not relevant to the
custodial inquiry under Miranda because the defendant was almost eighteen at the time of
the interrogation. Id. (O’Connor, J., concurring). However, Justice O’Connor did state,
“[t]here may be cases in which a suspect’s age will be relevant to the ‘custody’ inquiry under
Miranda[.]” Id. (O’Connor, J., concurring).
        We need not decide whether age is a factor to consider under a federal constitutional
analysis because an objective application of the four factors without considering Bogan’s age
leads us to the conclusion that a reasonable person in Bogan’s position would have
understood his situation to be one of custody. Additionally, because Bogan’s counsel failed
to raise a claim under the Iowa Constitution, we will not decide what warnings are required
under the Iowa Constitution or if age is a factor to consider in determining custodial status.
                                      11

held until the court arranged for a hearing to obtain his fingerprints. The

Davenport detectives took him to the nurse’s office to conduct the interview.

Neither the officers nor the detectives told Bogan he was free to leave the

office. Based on these facts, a reasonable person in Bogan’s position would

have understood his situation to be one of custody.      See In re C.H., 763

N.W.2d 708, 713–16 (Neb. 2009) (holding a student was in custody under

facts remarkably similar to the facts of this case). Thus, the officers should

have given Bogan a Miranda warning before his interrogation. Therefore, we

hold any statements made by Bogan at the school are inadmissible.

Accordingly, Bogan is entitled to a new trial.

      V. Other Issues that May Arise on Retrial.

      Although our holding regarding Bogan’s failure to receive a Miranda

warning is sufficient to dispose of this appeal, we will consider certain

additional issues that may arise on a retrial.
      A. Joinder of Bogan and White. When it filed its charges against
Bogan and White, the State filed separate informations against each
defendant. Prior to trial, the State filed a motion to join the two cases. The
district court granted the motion and the defendants were tried jointly.
      In Bogan’s appeal, our court of appeals found that the court should
not have tried Bogan jointly with White because the jury could have
improperly used the bad acts evidence admitted against White to convict
Bogan.   In its decision, the court of appeals found the evidence against
Bogan was “not overwhelming.” We not only agree with the court of appeals’
assessment, but find that the evidence against Bogan is even weaker with
our decision to exclude his statements made to the detectives at his school.
      Subsequent to the court of appeals’ decision in Bogan, the court of
appeals granted White a new trial due to the district court’s error in
admitting the prior bad acts evidence against White. State v. White, No. 07–
                                      12

0664, 2009 WL 776529, at *5 (Iowa Ct. App. Mar. 26, 2009). The court said
a limited amount of the prior bad acts evidence was admissible, although the
most prejudicial prior bad acts evidence was not admissible on retrial.
      On remand, if the State continues to insist that Bogan and White be
tried jointly, the district court must reexamine its ruling allowing these
defendants to be tried jointly in light of the decisions issued by our court in
this case and the court of appeals in White. In doing so, the district court
must apply the established law regarding joinder and severance.
      The Supreme Court has stated that joint trials promote efficiency and
serve the interest of justice by avoiding the scandal and inequity of
inconsistent verdicts. Zafiro v. United States, 506 U.S. 534, 537, 113 S. Ct.
933, 937, 122 L. Ed. 2d 317, 324 (1993). However, the Supreme Court has
also stated severance should be granted when a joint trial

      would compromise a specific trial right of one of the defendants,
      or prevent the jury from making a reliable judgment about guilt
      or innocence. Such a risk might occur when evidence that the
      jury should not consider against a defendant and that would not
      be admissible if a defendant were tried alone is admitted against
      a codefendant.      For example, evidence of a codefendant’s
      wrongdoing in some circumstances erroneously could lead a jury
      to conclude that a defendant was guilty.

Id. at 539, 113 S. Ct. at 938, 122 L. Ed. 2d at 325. It also is settled law that
defendants are not entitled to severance simply because they have a better
chance of acquittal in separate trials.    Id. at 540, 113 S. Ct. at 938, 122
L. Ed. 2d at 326.
      We have said that severing the trials of codefendants is required in two
situations. State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998). First, when
“the trial is so complex and the evidence is so voluminous that a jury [would]
be confused and [would not be able to] compartmentalize the evidence.” Id.
Second, when the evidence admitted by or against a defendant is so
prejudicial to the codefendant that the jury will likely wrongly use that
evidence against the codefendant. Id. These situations are referred to as the
                                      13

“spillover effect.”   State v. McFadden, 443 N.W.2d 70, 71 (Iowa Ct. App.
1989).     The Eighth Circuit Court of Appeals describes this potentially
prejudicial spillover effect as guilt by association, which occurs when the
evidence is so overwhelming against one defendant that it spills over onto
the codefendant.      United States v. Flores, 362 F.3d 1030, 1042 (8th Cir.
2004).
      Therefore, on remand, if the State continues to insist that Bogan and
White be tried jointly, the district court must determine if evidence
admissible against White is so prejudicial to Bogan that the jury will likely
wrongly use the evidence against Bogan.      In doing so, the court needs to
consider the evidence admissible against White and the lack of overwhelming
evidence against Bogan.
      B.       Jury Instructions.    Bogan raised, through an ineffective-
assistance-of-counsel claim, that the district court’s jury instructions
contained error because they failed to require the State to prove the
defendant acted with malice aforethought or with the knowledge that those
he aided and abetted acted with malice aforethought. See State v. Tangie,
616 N.W.2d 564, 573 (Iowa 2000). The State agrees the jury should have
been instructed on this requirement.       Because we have already reversed
Bogan’s conviction on other grounds, we need not reach the issue of
ineffective assistance of counsel.     Nonetheless, the court will have an
opportunity to instruct the jury properly on remand.
      VI. Disposition.
      Because the district court failed to suppress the statements Bogan
made to the police at his school, we vacate the decision of the court of
appeals, reverse the judgment of the district court, and remand the case for
a new trial.
      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED.
