               IN THE SUPREME COURT OF IOWA
                               No. 13–0346

                           Filed June 10, 2016


STATE OF IOWA,

      Appellee,

vs.

ZYRIAH HENRY FLOYD SCHLITTER,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Linn County, Marsha M.

Beckelman, Judge.



      Defendant seeks further review of a court of appeals decision

affirming convictions for child endangerment resulting in death and

involuntary manslaughter by commission of public offense. DECISION

OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN

PART;    DISTRICT     COURT      JUDGMENT        AFFIRMED      IN   PART,

REVERSED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, Shellie L. Knipfer,

Assistant Appellate Defender, and Zyriah Schlitter, pro se, for appellant.



      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, Jerry Vander Sanden, County Attorney, and Nicholas

Maybanks and Lisa Epp, Assistant County Attorneys, for appellee.
                                     2

CADY, Chief Justice.

      In this appeal from convictions of involuntary manslaughter by

commission of public offense and child endangerment resulting in death,

we primarily consider a claim of ineffective assistance of trial counsel

based on the failure to challenge the sufficiency of evidence to support

the submission of all four alternative means of committing the crime of

child endangerment.     On our review, we conclude trial counsel was

ineffective, and a new trial must be granted. We affirm the decision of

the court of appeals in part and vacate in part, reverse the judgment and

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

      I. Background Facts and Proceedings.

      Zyriah Schlitter met Nicole King in 2006 and they entered into a

relationship.   They began sharing a residence and eventually had a

daughter, K.S., on September 23, 2008. The relationship ended in late

2009. In February 2010, Schlitter and King agreed that Schlitter would

be the temporary primary custodian of K.S. Schlitter was living with his

grandparents at the time.    He was also dating a woman named Amy

Parmer.   Schlitter would often stay overnight at Parmer’s apartment.

Parmer had two children.

      On March 1, 2010, Schlitter took K.S. to a medical clinic for a

health checkup required for admission to a day-care center.        A clinic

nurse updated K.S.’s vaccines and found her to be in good health.

      K.S. was accepted by the day-care facility on March 2 and attended

day care for the remainder of the workweek.       Schlitter and K.S. then

stayed with Parmer and her children at her apartment over the weekend.

Parmer cared for K.S. on Sunday evening while Schlitter attended a

financial management class at church for a couple of hours.
                                      3

      On Monday morning, March 8, Schlitter dropped K.S. off at the

day-care center.    Later that morning, a day-care worker observed a

bruise on K.S.’s forehead and around one eye. She also saw marks on

the side of K.S.’s chin and discovered makeup had been applied to cover

up the bruises.     Parmer stopped by the day-care center during the

afternoon to check on K.S. and was asked about the injuries. Parmer

said K.S. bruised her eye from a fall and was accidentally struck on the

forehead by a Pack’n Play® falling out of a closet.

      Schlitter did not take K.S. to the day-care center on March 9. K.S.

had a fever, and Schlitter took her to the medical clinic. He told a nurse

that K.S. had not been sleeping well and had little appetite. The nurse

inquired about the bruise on her forehead. Schlitter responded that K.S.

fell into a coffee table.     K.S. was diagnosed with conjunctivitis and

prescribed Motrin® and eyedrops.

      Over the next few days, Schlitter’s father and grandparents

provided day care for K.S.     K.S. would cling to Schlitter when he was

present.   On March 10, K.S. had a fever of 104°.     Schlitter called the

clinic to report the fever.    He was told to continue the Motrin® and

eyedrops and to call the next day if there was no improvement.         On
March 11, Schlitter called the clinic to report that K.S. vomited. He also

reported the Motrin® would only briefly keep her fever under control, and
an appointment was scheduled for the next day. Schlitter took K.S. to

the clinic on March 12.     Medical providers diagnosed K.S. with an ear

infection and prescribed an antibiotic. No new bruising was observed.

On March 13, her temperature returned to normal.

      Schlitter and K.S. again stayed at Parmer’s apartment on the

weekend. King exercised visitation with K.S. for a period of time. She

did not notice any bruises on her face or body.
                                     4

      Schlitter dropped K.S. off at the day-care center on Monday,

March 15.    Workers at the center again observed bruising on her

forehead and face.    K.S. acted listless and sad.   She slept more than

normal, did not play, and did not want to interact. When Schlitter was

asked about the new facial bruises, he responded that K.S. liked to beat

on herself. Workers at the day-care center reported their observations to

the Iowa Department of Human Services (DHS). An investigator for the

DHS met with Schlitter on March 16.       Schlitter admitted to spanking

K.S. and told the investigator that K.S. listened better to Parmer. K.S.

was not removed from Schlitter’s care.

      On March 17, K.S. spent the day with King.       K.S. was detached

and often cried. Schlitter called the medical clinic on March 18 to report

that K.S. was very sleepy.      The next day, her condition seemed to

improve.

      Schlitter and K.S. again spent the weekend with Parmer.          On

Sunday, March 21, K.S. was sleepy, and she often cried. She also clung

to Schlitter. At 5:15 p.m., Schlitter left K.S. in the care of Parmer so he

could attend the Sunday evening financial management class.

      At 7:45 p.m., Parmer called 911 and reported that K.S. was barely

breathing. An ambulance arrived at the apartment and transported K.S.

to a hospital in Cedar Rapids. Medical personnel at the hospital found

her in a decorticate posture.    Her pupils were fixed and dilated.    The

doctor observed hemorrhages in her eyes. She exhibited limited reaction

to pain stimuli.   After the doctors told Schlitter that her injuries were

likely the result of child abuse, he entered the room where K.S. was

being treated and told her “I’m sorry.”

      K.S. was promptly airlifted to the University of Iowa Hospitals &

Clinics. Family members gathered to be with her and tension surfaced
                                      5

between King and Schlitter. King blamed Parmer for the injuries, and

Schlitter blamed the day care.

      Medical tests and scans of K.S.’s brain showed significant swelling.

Despite   extensive   medical    efforts,   K.S.’s   condition   continued    to

deteriorate. She remained in a coma, which doctors believed would likely

never change. K.S. was kept alive by a ventilator and a feeding tube. On

Sunday, March 28, King and Schlitter agreed to the removal of life

support systems. K.S. died.

      On July 11, 2011, the State charged Schlitter and Parmer with

murder in the first degree and child endangerment resulting in death.

The trials were severed, and Schlitter went to trial on December 3, 2012.

      The medical testimony at trial described the injuries to K.S. as

nonaccidental or abusive trauma.       The medical professionals generally

agreed that K.S. had suffered multiple head trauma events.                   The

testimony came from the emergency room doctors and nurses at both

hospitals, as well as neurologists, pathologists, an ophthalmologist,

radiologist, doctors in the pediatric intensive care unit, and the head of

the child protection team.

      The external injuries included bruises on K.S.’s cheeks and under

her chin; scrapes or red marks on her left shoulder, the nape of her

neck, her left ear and cheek, upper right portion of her chest, and her

right underarm area; contusions on her right upper arm and left and

right inner thighs; and an infected lesion on her left labia. K.S.’s internal

injuries included subdural hematomas in the brain and around the

spinal cord, as well as other brain injuries. An MRI revealed that K.S.

suffered a massive stroke on the left side of her brain, but revealed no

evidence that K.S.’s injuries were caused by strangulation.
                                      6

        Multiple doctors testified that the bruises on K.S.’s face and body

were different colors, indicating they had occurred at different times.

The retinal hemorrhages, brain blood clots, and subdural membranes

indicated injuries that could be up to a few weeks old. The blood found

in her brain showed signs of fresh bleeding, older bleeding that had

happened over two days before the recent injury, and a recent bleeding

within hours of K.S. becoming symptomatic.        Moreover, with repeated

injuries to the same part of the brain, some of the new injury clouded

evidence of the older injury.

        The time frames suggested by the different doctors’ testimonies

sometimes conflicted.     The estimates ranged from minutes to hours,

within a day, a twelve- to twenty-four-hour period estimate, and an

“hours to days” time frame. One doctor stated she could not accurately

estimate the timing, but that she had not seen any child awake with the

kinds of injuries found in K.S. Almost all the medical professionals were

clear that a specific time of the injuring event could not be pinpointed

due to individual-specific rates of healing, the age of the patient, an

unknown rate of bleeding, and uncertainty concerning the number and

frequency of injuries.

        Dr. Resmiye Oral, the head of the child protection team, specializes

in treating and consulting in cases of child abuse.        She met with a

statewide multidisciplinary team made up of the physicians, law

enforcement, DHS employees, and medical examiners involved in K.S.’s

case.     Dr. Oral collected all of the reports of the physicians and

examiners to make a final medical determination regarding K.S.’s

injuries.   Dr. Oral concluded that K.S. suffered at least two separate

episodes of injury. She pinpointed the first injury as likely occurring one

or two weeks before K.S. entered the hospital, and the second injury as
                                       7

inflicted from minutes up to six hours before K.S. was brought to the

hospital, noting the shorter time frame was more likely than the longer.

The doctor stated it must have been an acute and forceful trauma to

explain the injuries found.

      The paramedic who responded to the 911 call on March 21

testified to statements made by Parmer in response to questioning about

the condition of K.S.    Parmer said she found K.S. unresponsive and

struggling to breathe. She told a paramedic K.S. had a fever earlier in

the week, but was unaware of any falls or injuries.

      Law enforcement investigators conducted several interviews with

Schlitter and Parmer.        Schlitter gave one interview at an Iowa State

Patrol Office on March 30, 2010.           During the interview, Schlitter

acknowledged he was rough on K.S. at times in his discipline of her and

was probably incriminating himself by maintaining that Parmer was a

good caretaker and would not have harmed K.S. On another occasion,

Schlitter told one investigator that while at the hospital, he had

researched head trauma symptoms and that K.S. had exhibited some of

the symptoms during the period of time prior to her hospitalization.

Prior to trial, Schlitter had moved to suppress his statements made to

law enforcement investigators during the March 30 interview at the state

patrol office. The district court denied the motion, and the interview was

entered into evidence.

      Investigators   also    discovered   Parmer   had   made   inculpatory

statements to two people. On one occasion, Parmer made a spontaneous

statement to a coworker that she “might have killed a kid.”         Another

time, Parmer was in her apartment with the coworker and a man she

was dating.   Parmer suddenly started crying and told the man, “You

don’t want to get involved with me.” She then explained that she had
                                      8

taken an eighteen-month-old’s life. She further explained that the child

was K.S., and it involved a head injury.

      At the close of all the evidence at trial, trial counsel for Schlitter

moved for a judgment of acquittal. The motion, however, was limited to

the sufficiency of the evidence to support the crime of first-degree

murder. The trial court overruled the motion.

      The jury found Schlitter guilty of involuntary manslaughter by

commission    of   public   offense   (child   endangerment)    and   child

endangerment resulting in death. A general verdict was returned, and

the jury did not identify the alternative theories relied upon to support

the guilty verdict for child endangerment. Schlitter moved for a new trial

and arrest of judgment. After a hearing on February 20, 2013, the trial

court denied Schlitter’s motions and sentenced Schlitter.        The court

merged the sentences for the two charges under the one-homicide rule.

It imposed a mandatory indeterminate fifty-year sentence for child

endangerment resulting in death and ordered $150,000 restitution to be

paid to Nicole King. Although the State requested a thirty-year minimum

sentence before parole eligibility, the court declined to require a

minimum sentence before parole eligibility, leaving that question to the

board of parole.

      Schlitter appealed and raised four claims of error.         First, he

claimed the district court erred in failing to suppress his statements

made during the interrogation on March 30. Second, he claimed his trial

counsel was ineffective for failing to challenge the sufficiency of evidence

to support the lesser included offense of involuntary manslaughter to the

charge of first-degree murder and the alternative theories to the crime of

child endangerment. Third, he claimed his trial counsel was ineffective

for failing to timely object to improper comments by the prosecuting
                                       9

attorney during closing argument. Finally, he claimed his trial counsel

was ineffective for failing to investigate properly.

      We transferred the case to the court of appeals.          It affirmed the

judgment and sentence of the district court. It found Schlitter was not in

custody during the interrogation on March 30, and the law enforcement

officers were not required to give Schlitter his Miranda warnings. It also

found Schlitter failed to preserve error on his secondary claim that the

statements were involuntary.      The court of appeals further found that

trial counsel was not ineffective because sufficient evidence was

presented to support all the charges. It also found trial counsel was not

ineffective because, even if the prosecutor’s statements amounted to

misconduct, no prejudice resulted. Finally, it found trial counsel was not

ineffective for failing to conduct a proper investigation.

      Schlitter sought, and we granted, further review. The only issue

Schlitter raised was that his trial counsel was ineffective for failing to

move for a judgment of acquittal for the crimes for which he was

convicted.

      II. Scope of Review.

      Ineffective-assistance-of-counsel    claims      are   reviewed   de novo.

State v. Tompkins, 859 N.W.2d 631, 636 (Iowa 2015).                 Ineffective-

assistance-of-counsel claims require a showing by a preponderance of

the evidence both that counsel failed an essential duty and that the

failure resulted in prejudice.    Anfinson v. State, 758 N.W.2d 496, 499

(Iowa 2008).      We review sufficiency-of-the-evidence challenges for

correction of errors at law. State v. Neiderbach, 837 N.W.2d 180, 190

(Iowa 2013).

      We review constitutional issues, including Miranda violations,

de novo. See State v. Kooima, 833 N.W.2d 202, 205 (Iowa 2013). We
                                       10

examine the totality of the circumstances in the entire record in our

evaluation. State v. Baldon, 829 N.W.2d 785, 789 (Iowa 2013).

       III. Analysis.

       The right to effective assistance of counsel stems from the general

right to counsel under the Sixth Amendment to the United States

Constitution and article I, section 10 of the Iowa Constitution. State v.

Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). “To succeed on a claim of

ineffective assistance of counsel, a claimant must establish by a

preponderance of the evidence: ‘(1) his trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.’ ”     State v.

Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) (quoting State v. Adams,

810 N.W.2d 365, 372 (Iowa 2012)). The claimant must establish both

elements of the claim.        Dempsey v. State, 860 N.W.2d 860, 868 (Iowa

2015).

       For the first element, we presume the attorney performed

competently, requiring the claimant to rebut the presumption with

evidence the attorney performed outside the standard of a reasonably

competent practitioner. Id. To prove prejudice for the second element,

the claimant needs to show the attorney’s errors functionally deprived

the defendant of a fair trial and further show by a reasonable probability

that the result of the proceeding would have been different without the

errors by the attorney. State v. Ross, 845 N.W.2d 692, 698 (Iowa 2014).

       A. Failure to Move for Judgment of Acquittal on Child-

Endangerment Alternatives.             “To preserve error on a claim of

insufficient evidence[, a] defendant must make a motion for judgment of

acquittal at trial . . . .”   State v. Truesdell, 679 N.W.2d 611, 615 (Iowa

2004). The motion must be made after the evidence on either side of the

case has been presented. Iowa R. Crim. P. 2.19(8)(a).
                                     11

      When presented with a motion for acquittal, courts must view “the

evidence in the light most favorable to the State and draw[] all fair and

reasonable inferences from it, taking all the evidence into consideration,

both direct and circumstantial.” State v. Duncan, 312 N.W.2d 519, 522

(Iowa 1981) (citations omitted). This standard requires courts to assume

the truth of the evidence offered by the prosecution. Nguyen v. State,

707 N.W.2d 317, 327 (Iowa 2005). The evidence must be sufficient to

convince a rational fact finder that the defendant is guilty beyond a

reasonable doubt. State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006).

A fair inference of guilt is necessary, not merely suspicion, speculation,

or conjecture. State v. Geier, 484 N.W.2d 167, 171 (Iowa 1992).

      Counsel for Schlitter did not challenge the sufficiency of the

evidence to support any of the alternative theories of guilt for a finding of

child endangerment. We must consider if he failed to perform within “the

range of normal competency” by determining if a competent attorney

would have challenged the sufficiency of the evidence. State v. Graves,

668 N.W.2d 860, 881 (Iowa 2003). If counsel failed to raise a meritorious

issue a normally competent attorney would have raised, and such failure

cannot “be attributed to reasonable trial strategy, then we can conclude

the defendant has established that counsel failed to perform an essential

duty.” Id. at 870.

      In its case against Schlitter, the State presented four alternatives

of guilt to the jury on the charge of child endangerment. The trial court

instructed on each alternative.      The jury was told they could find

Schlitter committed child endangerment if they found he had done any of

the following alternatives:

      a.    Knowingly acted in a manner that created a
            substantial risk to [K.S.]’s physical health or safety; or
                                     12
      b.     By an intentional act or series of intentional acts used
             unreasonable force that resulted in bodily injury or
             was intended to cause serious injury; or
      c.     Willfully deprived [K.S.] of necessary supervision or
             medical care appropriate to her age, being reasonably
             able to make such necessary provisions, which
             deprivation substantially harmed [K.S.]’s physical
             health; or
      d.     Knowingly permitted the continuing physical abuse of
             [K.S.].

Counsel did not move for judgment of acquittal on any of the alternatives

presented based on insufficient evidence but, rather, conceded to a jury

question on the child endangerment charge.          Thus, if the evidence

presented by the State at trial was insufficient to support any alternative,

Schlitter’s trial counsel would have provided ineffective assistance by

failing to raise the issue and permit the trial court to enter a judgment of

acquittal on any alternative not supported by sufficient evidence.

      We often do not address ineffective-assistance-of-counsel claims on

direct appeal because a record is needed to fully develop the claim and

identify the existence of any trial strategies that may have influenced the

actions or inactions of trial counsel. See State v. Ondayog, 722 N.W.2d

778, 786 (Iowa 2006) (“[P]ostconviction proceedings are often necessary
to discern the difference between improvident trial strategy and

ineffective assistance.”).   However, no reasonable trial strategy could

permit a jury to consider a crime not supported by substantial evidence.

See State v. Brubaker, 805 N.W.2d 164, 174 (Iowa 2011) (holding counsel

ineffective for failing to move for judgment of acquittal based on

insufficient evidence to support a necessary element of the charged crime

and noting such a failure “is not a trial strategy”). Therefore, we must

review each alternative theory of the crime of child endangerment to

determine if a reasonable trial counsel would have moved for judgment of

acquittal on any of the four alternatives.
                                     13

      1. Knowingly acted in a manner that created substantial risk to

physical health or safety. We first consider the sufficiency of evidence to

support a finding that Schlitter knowingly acted in a manner that created

a substantial risk to the physical health or safety of K.S.          The term

“knowingly” not only refers to the act, but also the creation of a

substantial risk to physical health or safety. State v. James, 693 N.W.2d

353, 355–57 (Iowa 2005).       Additionally, “the definition of ‘substantial

risk’ in the context of child endangerment” means “[t]he very real

possibility of danger to a child’s physical health or safety.”        State v.

Anspach, 627 N.W.2d 227, 233 (Iowa 2001). The risk does not have to be

likely, just real or identifiable. Id. at 232–33. The evidence offered by the

State at trial targeted Schlitter either as the abuser or complicit in abuse

inflicted by Parmer by failing to intervene to stop or prevent it.

      The State presented an abundance of evidence that K.S. sustained

bruises to her head on separate occasions in the weeks leading up to her

death.   A number of people noticed bruises the week of March 8—

including family members, day-care workers who saw her every day, and

a nurse practitioner.    Evidence was presented that either Schlitter or

Parmer used makeup to cover bruising around K.S.’s eye and forehead.

One week later, a new bruise appeared on K.S.’s forehead in the same

location as the previous bruise.

      Construing the evidence in favor of the State, a reasonable jury

could find beyond a reasonable doubt that, even if Parmer was the

abuser instead of Schlitter, he knew that K.S. was at risk of physical

injury while in the sole care of Parmer. The jury could have also found

Schlitter knowingly acted in a manner that created a substantial risk to

the physical health or safety of K.S. by leaving her in the care of Parmer.
                                    14

      2. By an intentional act or series of intentional acts used

unreasonable force that resulted in bodily injury or was intended to cause

serious injury. To prove the second alternative, the State must present

sufficient evidence that Schlitter either committed an act resulting in the

injury or had sole care of K.S. during the time in which the injury

occurred. See Neiderbach, 837 N.W.2d at 219. The evidence presented

at trial clearly supported a finding that a series of intentional acts of

unreasonable force were inflicted on K.S. and that these acts resulted in

the bodily injury she suffered.       However, the evidence does not

reasonably support a finding either that Schlitter committed the violent

acts or that he had sole care of her when the injuries were sustained.

During the period of time prior to discovery of the first bruises on K.S.,

numerous people other than Schlitter had cared for her.              These

caretakers included Parmer, day-care providers, King, and several

members of Schlitter’s family.   Likewise, K.S. had been in the care of

several people prior to the time the second set of bruises was discovered.

Additionally, K.S. had been in the care of both Schlitter and Parmer prior

to the injuries that led to K.S.’s hospitalization and death.      Finally,

Schlitter was not with K.S. during the two hours prior to the 911 call.

There was no testimony that Schlitter had ever inflicted unreasonable

force on K.S. in the past or that he had ever shaken her.          To the

contrary, the evidence was consistent that Schlitter may have yelled at

her when frustrated, but he typically would leave the room to cope with

his frustration.

      In our careful consideration of all the evidence in the light most

favorable to the State, we cannot conclude that a reasonable jury could

find Schlitter inflicted the force on K.S. that resulted in her injuries.

Such a finding could only be based on speculation.       Speculation and
                                     15

conjecture cannot be used to support a verdict. See State v. Webb, 648

N.W.2d 72, 76 (Iowa 2002) (“The evidence must raise a fair inference of

guilt and do more than create speculation, suspicion, or conjecture.”).

Thus, the second alternative could not support a guilty verdict for child

endangerment, and Schlitter’s counsel was ineffective for failing to move

for a judgment of acquittal on this alternative. The jury should not have

been instructed to consider this alternative in considering Schlitter’s

guilt, and Schlitter’s trial counsel failed to perform an essential duty by

failing to object to the submission of the alternative to the jury.

Furthermore, we also find from this record that prejudice resulted to

Schlitter when his trial counsel failed to move for a judgment of acquittal

on this alternative. It is not possible to know whether or not the jury

relied on this alternative in reaching its verdict. See State v. Tyler, 873

N.W.2d 741, 753–54 (Iowa 2016) (holding we reverse a general verdict

when    not   all   theories   are   supported   by   sufficient   evidence).

Consequently, there is no way to know if the jury refrained from relying

on this alternative in reaching their verdict.

       Accordingly, Schlitter must be given a new trial based on

ineffective assistance of counsel. A new trial cannot include the second

alternative theory for the crime of child endangerment.

       3. Willfully deprived K.S. of necessary supervision or medical care.

We now proceed to consider the sufficiency of the evidence to support the

remaining two alternatives of child endangerment.             If insufficient

evidence was not presented, the alternative cannot be submitted at the

new trial.

       The third alternative required proof that Schlitter willfully deprived

K.S. of necessary supervision or medical care he was reasonably able to

provide and the deprivation substantially harmed her physical health.
                                     16

“Willfully” is defined either as “said or done deliberately or intentionally”

or “established by proof of intentional and deliberate conduct undertaken

with a bad purpose, in disregard for the rights of another, or contrary to

a known duty.” State v. Leckington, 713 N.W.2d 208, 214 (Iowa 2006)

(quoting State v. Tippett, 624 N.W.2d 176, 178 (Iowa 2001) (first quote))

(finding either definition appropriate for this subsection of the child

endangerment statute in that particular case).          In Leckington, the

defendant saw an intoxicated minor suffer an injury, left him alone in an

unsupervised location without healthcare, and then tried to remove him

from her house while he was unconscious and foaming from the mouth

rather than call for help in an effort to avoid a criminal investigation. Id.

at 214–15.     We found the delay and the seriousness of the minor’s

condition satisfied the requirement of willful deprivation of medical care.

Id. at 215.

         In this case, there was evidence that K.S. exhibited numerous

signs of abuse and head trauma. On the other hand, she also exhibited

signs of more normal childhood illness or infection. Schlitter took K.S. to

the doctor on numerous occasions and called the medical clinic several

times.     He also administered medication prescribed by the doctor.

Schlitter, however, did not seek medical care for K.S.’s most serious

symptoms.      The doctors testified at trial that the symptoms of head

trauma would have been obvious to anyone.           In particular, Dr. Oral

testified that the symptoms exhibited by K.S., such as lethargy,

decreased appetite, pulling hair, nightmares, multiple bruises from

distinct time periods, and lack of playfulness even after she had healed

from the conjunctivitis and ear infection, combined with the repeated

injuries to her forehead were far enough outside normal child behavior

that a reasonable caretaker would have sought medical care.
                                    17

      We conclude a reasonable jury could have found that Schlitter

knew of the abuse occurring to K.S. and chose not to seek medical

attention for the resulting injuries, such as facial bruising and other

abnormal symptoms.       A reasonable jury could have found Schlitter

willfully deprived K.S. of medical care despite the ongoing symptoms of

excessive sleep and failure to eat.      It could have further found that

Schlitter purposely did not take K.S. in for treatment to avoid the risk of

exposure and an investigation, a risk he knew was possible after the

March 16 visit with DHS regarding the bruise on K.S.’s forehead.

      4. Knowingly permitted the continuing physical abuse of K.S.

Finally, we consider the alternative that Schlitter committed child

endangerment by knowingly permitting the continuing physical abuse of

K.S. In State v. Watkins, we held that continuous proximity to a child

abused by a person was sufficient to find a defendant knowingly

permitted the continuing physical abuse of the child. 659 N.W.2d 526,

536–37 (Iowa 2003). To make its case, the State had to show Schlitter

actually knew Parmer was abusing K.S., not just that K.S. always ended

up with odd, significant bruises after her care, even if plausible

explanations for the bruises existed.

      Construing the evidence in a light most favorable to the State, this

alternative was supported by sufficient evidence. Schlitter’s explanations

for the origin of the forehead bruises were not consistent, and he

provided no reason for his inconsistencies. Further, a reasonable jury

could find he knew the bruising on March 8 was covered with makeup in

an attempt to hide the injury.    A jury could also reasonably believe a

parent would not seek to hide bruises on a toddler with makeup.

Construing the evidence in the light most favorable to the State, the jury

could have inferred that K.S. was being abused and that Schlitter
                                     18

knowingly permitted the abuse to continue by failing to take action to

remove her from the care of the abuser.

       B. Failure to Move for Judgment of Acquittal on the Lesser

Included Offenses of Murder.        Schlitter also claims his trial counsel

should have sought an acquittal on the lesser offense to murder of

involuntary manslaughter by public offense because the State failed to

establish sufficient evidence to prove the public offense of child

endangerment.     Even if we recognized a duty to move for judgment of

acquittal on lesser included offenses after denial of a motion to acquit on

the greater offense, because we find sufficient evidence to support three

of the alternatives of child endangerment, this claim must fail.

       C. Claim of Error by Prosecutor. We proceed to consider other

issues raised by Schlitter on appeal to determine if they will impact the

retrial.   Because a new trial will be necessary, we will exercise our

authority to promote efficiency and judicial economy by addressing those

issues raised on appeal that will likely reoccur at the retrial.

       During closing argument, the prosecutor made an emotional

appeal to the jurors by telling them that the jury system gives control to

“citizens to hold each other accountable for criminal behavior.” He also

told the jurors that they had the “sacred duty of protecting the safety of

the public and of the innocent by judging those that commit brutal acts

of abuse and neglect against fellow humans to be guilty when it’s been

shown beyond a doubt that’s reasonable.” Additionally, the prosecutor

informed the jurors that they had an “important honor” to “protect the

rights of citizens and acknowledge those rights and find [offenders]

accountable through the rest of us.”

       Counsel   for   Schlitter   objected   to   these   statements   after

deliberations had begun.        The district court ultimately found the
                                     19

statements did not amount to prosecutorial misconduct. Based on this

ruling, Schlitter raised a claim of prosecutorial misconduct on appeal.

      At the outset, we observe that the term “prosecutorial misconduct”

has gained a specialized meaning within the law:

      to describe conduct by the government that violates a
      defendant’s rights whether or not that conduct was or
      should have been known by the prosecutor to be improper
      and whether or not the prosecutor intended to violate the
      Constitution or any other legal or ethical requirement.

ABA   House    of   Delegates,   Recommendation      100B,     at   1   (2010),

http://www.americanbar.org/content/dam/aba/directories/policy/2010

_am_100b.pdf [hereinafter ABA Recommendation]. We have followed this

approach by broadly describing trial conduct of a prosecutor in a

criminal case that is claimed to deprive the defendant of a fair trial to be

prosecutorial misconduct. See Graves, 668 N.W.2d at 870. The range of

trial conduct by prosecutors falling into the category of claims referred to

as “prosecutorial misconduct” includes questioning witnesses about

others’ deceit, distorting testimony, making unsupported statements

during closing argument, stating the defendant lied during testimony,

diverting the jury from deciding the case based on the evidence, making

other inflammatory or prejudicial statements about the defendant, and

more. State v. Musser, 721 N.W.2d 734, 754–55 (Iowa 2006) (referring to

improper closing argument that urges the jury to decide the case on

something other than the evidence as prosecutorial misconduct); State v.

Carey, 709 N.W.2d 547, 552 (Iowa 2006) (referring broadly to claims of

improper closing argument by the prosecutor as claims of misconduct);

Graves, 668 N.W.2d at 870–71 (collecting cases).           While some of the

conduct in these cases may have been intentional, other conduct can be

the result of mistake or error during the heat of trial.
                                            20

       The    problem      with    describing     all   claims    as    prosecutorial

misconduct is that the term tends to conflate prosecutorial misconduct

with professional misconduct as controlled by our Iowa Rules of

Professional Conduct. ABA Recommendation, at 1; Shawn E. Minihan,

Measuring Prosecutorial Actions: An Analysis of Misconduct versus Error,

Prosecutor, Dec. 2014, at 22, 23 [hereinafter Minihan]; see also Iowa R.

Prof’l Conduct 32:8.4 (defining professional misconduct).                      The two

phrases are not only similar in their language, but tend to connote

similar meanings.        Yet, professional misconduct generally applies to

intentional misbehavior on the part of the attorney, while prosecutorial

misconduct is not always intentional.             Iowa R. Prof’l Conduct 32:8.4;

ABA Recommendation, at 2.             In 2010, the American Bar Association

(ABA) adopted a recommendation urging courts to be careful in

distinguishing between prosecutorial misconduct and prosecutorial error

and    to    attach   different    levels    of   culpability    for   each.      ABA

Recommendation, at 2–3.

       One author has offered helpful guidance on how to distinguish

between prosecutorial misconduct and prosecutorial error.1 Minihan, at

24–25.      Prosecutorial misconduct includes those statements “where a
prosecutor intentionally violates a clear and unambiguous obligation or

standard imposed by law, applicable rule or professional conduct,” as

well as “those situations where a prosecutor recklessly disregards a duty

to comply with an obligation or standard.” Id. at 24–25. Prosecutorial

error occurs “where the prosecutor exercises poor judgment” and “where

       1Minihan   based distinction between prosecutorial misconduct and error on an
analytical framework developed by the Office of Professional Responsibility for the
United States Department of Justice. Minihan, at 24–25; Office of Prof’l Responsibility,
U.S. Dep’t of Justice, Analytical Framework (2005), https://www.justice.gov/sites/
default/files/opr/legacy/2006/03/15/framework.pdf.
                                     21

the attorney has made a mistake” based on “excusable human error,

despite the attorney’s use of reasonable care.” Id. at 25. This distinction

also conforms to the general definitions for misconduct and a trial error.

Compare Misconduct, Black’s Law Dictionary (10th ed. 2014) (defining

misconduct as “[a]n attorney’s dishonesty or attempt to persuade a court

or jury by using deceptive or reprehensible methods”), with Trial Error,

Black’s Law Dictionary (defining trial error as “[a] mistake in or deviation

from proper trial procedure during the presentation of a case to a jury”).

Going forward, we adopt the ABA’s recommendation on our review of

prosecutorial   behavior    and    distinguish   between     incidences    of

prosecutorial error and prosecutorial misconduct. A prosecutor who has

committed error should not be described as committing misconduct.

      We discussed the role of the prosecutor in criminal cases in

Graves, 668 N.W.2d at 870.        We also identified a multifactor test to

evaluate the statements made during closing arguments in determining if

there was misconduct and if that misconduct was prejudicial.           Id. at

877–78.    These same factors easily translate to an evaluation of

prosecutorial error.

      In this case, the claim raised by Schlitter was actually describing

error by the prosecutor, not prosecutorial misconduct. It is unnecessary,

however, for us to apply the Graves factors to this claim or to address the

additional claim whether trial counsel was ineffective for failing to lodge a

timely objection to the closing argument of the prosecutor. The claim of

error by the prosecutor based on the statements made during closing

argument rests with the unique and particular choice of words, as well

as the particular surrounding circumstances.            It is unlikely the

prosecutor will make the same choice of words or that the same

circumstances will be repeated during the retrial. Accordingly, we do not
                                    22

resolve the issue, but remind counsel on retrial to be mindful of the

scope of closing arguments described in Graves.

      D. Miranda     Violation.     Schlitter   was   interviewed   by   law

enforcement officers on several occasions, including an interview at a

state patrol office on March 30, 2010. He moved to suppress statements

made to officers during this interview because he was not given the

Miranda warnings and because his statements were involuntary based

on promises of leniency.      In particular, at the suppression hearing,

Schlitter’s objections to the March 30 interview centered on two areas.

First, he objected to the nature of the interrogation. Second, he objected

because the officers continued to question him after he asked them to

stop once they began to graphically describe the possible ways K.S. could

have received her injuries.     On appeal, however, Schlitter primarily

objected to the admission of his statements from the interview describing

his frustration with K.S., the possibility that he had picked up K.S.

roughly, and his implicit defense of Parmer.

      The district court found the officers made no statements that

resembled any promise of leniency.       It also found Schlitter was not in

custody during the interview, and the officers were not required to give

him the Miranda warnings. The court held Schlitter was not in custody

because he was allowed to and did leave the interview at his own will.

This issue will be raised again on retrial, and we proceed to resolve it on

this appeal.   In doing so, we agree the record does not disclose any

promises of leniency.   Thus, we proceed to decide if Schlitter was in

custody at any time during the interview.

      We begin by recognizing that Schlitter raised the Miranda issue

under both the United States and Iowa Constitutions.           He did not

propose, however, that we consider a different standard for determining
                                   23

whether he was in custody under the Iowa Constitution than followed

under the federal caselaw.     As a result, with respect to the Iowa

constitutional claim, we apply the prevailing federal standard, but

reserve the right to apply that standard in a different fashion from the

federal caselaw. See State v. Becker, 818 N.W.2d 135, 150 (Iowa 2012).

      Law enforcement officers are required to give Miranda warnings

when a suspect is in custody and subjected to interrogation. State v.

Tyler, 867 N.W.2d 136, 171 (Iowa 2015) (discussing the warnings police

must give based on Miranda v. Arizona, 384 U.S. 436, 471, 478–79, 86

S. Ct. 1602, 1626, 1630, 16 L. Ed. 2d 694, 722, 726 (1966)). “[C]ustody

must be determined based on how a reasonable person in the suspect’s

situation would perceive [the] circumstances.” Yarborough v. Alvarado,

541 U.S. 652, 662, 124 S. Ct. 2140, 2148, 158 L. Ed. 2d 938, 950

(2004).    Custody occurs “upon formal arrest or under any other

circumstances where the suspect is deprived of his or her freedom of

action in any significant way.” State v. Ortiz, 766 N.W.2d 244, 251 (Iowa

2009)).    This standard seeks to apply the Miranda requirements to

coercive atmospheres, not just coercive places. It uses a case-by-case

evaluation of all the circumstances existing at the time of the

interrogation. The factors used to determine custody include

      (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 her guilt;
      and (4) whether the defendant is free to leave the place of
      questioning.

State v. Countryman, 572 N.W.2d 553, 558 (Iowa 1997).

      In   a Miranda claim, interrogation consists of the express

questioning and words and actions beyond those normally part of arrest

and custody “that the police should know are reasonably likely to elicit
                                     24

an incriminating response from the suspect.”         State v. Miranda, 672

N.W.2d 753, 761 (Iowa 2003) (quoting State v. Peterson, 663 N.W.2d 417,

424 (Iowa 2003)). The State has not separately addressed whether an

interrogation occurred and so has waived any argument to the contrary.

See id.   Therefore, if we determine Schlitter was in custody then the

officers would have been required to inform him of his Miranda rights.

      We first consider the circumstances concerning how the individual

was summoned to the interrogation. Countryman, 572 N.W.2d at 558.

An officer called Schlitter and asked if he would be willing to come to his

office at the state patrol office on a later date to answer some more

questions. The officer did not physically approach Schlitter, bring him to

the station in a police vehicle, or otherwise force Schlitter to the interview

but rather made a request and arrangements for Schlitter to come in

another day. Cf. State v. Bogan, 774 N.W.2d 676, 680–81 (Iowa 2009)

(finding custody when principal pulled student out of class and walked

him to the office followed by officers, and the student did not volunteer or

acquiesce to speaking with police).       There is no indication Schlitter

attempted to decline the request or showed any reluctance to attend the

interview.

      We next consider the purpose, place, and manner of interrogation.

Countryman, 572 N.W.2d at 558.            With respect to the manner of

questioning, we consider how long it lasted, “the number of persons

conducting the questioning, the number of breaks taken during the

questioning, the availability of restroom breaks or other breaks, and the

type of questioning in which those conducting the interview engage.”

Tyler, 867 N.W.2d at 172–73. In Tyler, we noted that even a three-hour

interview was not necessarily custodial. Id. at 172. On the other hand,

even brief interviews that the individual knows will continue until the
                                    25

desired answer is given can be custodial. Miranda, 672 N.W.2d at 760.

Interrogation at a police station is generally a more coercive environment

than questioning a suspect away from the station, but “merely because

questioning takes place at the police station” does not necessarily

implicate custody. State v. Smith, 546 N.W.2d 916, 922 (Iowa 1996).

      The purpose of the encounter in this case was to get Schlitter to

confess to being the perpetrator of the physical injuries suffered by K.S.

or to get him to implicate Parmer.         Schlitter was a focus of the

interrogation, but so was another person.      Schlitter suspected he and

Parmer were targets of the investigation, as did others, including family

members.     Schlitter had talked with law enforcement investigators on

several occasions prior to the March 30 encounter and had consistently

denied any responsibility for the injuries inflicted on K.S.            The

questioning took place in an interview room and lasted about one hour

and twenty minutes. The officers did not call Schlitter to the patrol office

with the intent to detain or arrest him, nor did they indicate any such

intent to Schlitter.

      During the interview, Schlitter sat in a chair against a wall

between a desk and a table. A camera was located directly in front of

him. Two officers were in the room during the interview, but only one

asked Schlitter questions. The officers wore plain clothes. One officer

was behind a desk, and the interviewing officer sat in a chair by the table

facing Schlitter. This arrangement placed the officer between Schlitter

and the door. He inched closer to Schlitter throughout the questioning,

moving from around two feet away to nearly knee-to-knee, then moving

back by the table.

      It is clear the officers applied forceful verbal pressure on Schlitter

as the questioning progressed.      The pressure included a strong and
                                        26

graphic description of the injuries inflicted on K.S. The officer implied

Schlitter   inflicted   the   injury   and    confronted     Schlitter    with   the

inconsistency    between      his   denial   of   any    responsibility   and    his

declaration that Parmer was a good mother and never violent. The type

and amount of pressure used by the officers tended to make the

atmosphere coercive. The pressure was not just for Schlitter to implicate

Parmer but also for him to confess in the alternative. Schlitter thought

the aggressive pressure was unfair and asked the officer several times to

stop.

        The officers also asked Schlitter if he would consent to a polygraph

examination.     Schlitter said he would consent to a polygraph test but

wanted to take it the following day because it was getting close to

dinnertime. After the officers pressed for Schlitter to immediately take

the test, he requested to talk to his lawyer. When Schlitter was unable to

reach his lawyer by phone, the officers again pressed for him to take the

test, but then agreed it could be done the following day. Schlitter told

the officers that he would come back the next day, stating, “[I]f that’s

when you want me here.”

        The third factor looks at “the extent to which the defendant is

confronted with evidence of [his] guilt.” Countryman, 572 N.W.2d at 558.

During this interview, the officer described the actions that could have

caused K.S.’s injuries, such as striking her head, shaking her violently,

or dropping her.        The officer continued to describe each of those

scenarios in more detail. He told Schlitter that abused children cling to

their abuser and do not run away from the one abusing them.                      The

officer then continued asking if Schlitter somehow hit K.S.’s head on

anything while carrying her or lifting her.             He implied that Schlitter

picked K.S. up too fast and squeezed her hard enough to cause the
                                    27

bruising without realizing the hold was too rough or accidentally

squeezed her out of frustration.    The officer asked to trace Schlitter’s

hand, suggesting it could help identify the source of bruising to K.S.’s

face.   The officer told Schlitter his explanations were not credible and

pointed out the bruising on K.S. only began after he became the

custodial parent.

        The amount of evidence of Schlitter’s guilt as the perpetrator

presented to him during the interview was not significant. Schlitter did

not make a confession, nor did the officer present any evidence to him

showing Schlitter was directly responsible for K.S.’s injuries. Although

the atmosphere became highly accusatory at a point, the evidence

presented to Schlitter was circumstantial and speculative in nature.

        The final factor considered to establish custody is whether the

individual was free to leave the place of questioning. Id. One element of

this is the degree of physical restriction placed on the individual. Smith,

546 N.W.2d at 925. Schlitter’s path to the exit was partially blocked by

the interviewing officer.   Additionally, the officers did not open the

interview by telling Schlitter he was free to leave when he wanted.

However, when the officers left the room, Schlitter had free access to the

door. He was not handcuffed at any point during the interview, and the

door to the room was not locked. He drove himself to the station and

was not dependent on the officers to drive him home.       See Tyler, 867

N.W.2d at 174 (finding no custody even when the individual had been

brought by officers to the police station when the individual was told she

was free to leave and that she would be given a ride). Although Schlitter

became upset during the interview, at no time did his demeanor indicate

he felt he would not be allowed to leave. In fact, when Schlitter told the

officers towards the end of the interview that he could not remain long
                                    28

enough to take a polygraph examination because he needed to leave for

dinner with his family, they attempted to talk him into staying for the

test, but allowed him to leave without doing so. See Countryman, 572

N.W.2d at 558 (finding no custody when individual was not restrained,

never asked to leave, and officer testified he would have tried to talk her

out of leaving but would have allowed it).    Importantly, this exchange

indicated Schlitter did not consider himself to be in custody, but free to

leave to have dinner with his family.

      Considering the totality of the circumstances, we conclude

Schlitter was not in custody at the time he entered the interrogation

room of the patrol office. He cooperatively talked to officers in the days

preceding the interview and, under the circumstances, would not have

been alarmed to learn they wanted to talk to him again. He voluntarily

went to the patrol office. The request to meet at the patrol office and to

go into the interview room could not be viewed reasonably as a

significant restraint on Schlitter’s freedom of movement.     The difficult

question is whether the circumstances that followed deprived Schlitter at

any point of his freedom to a degree similar to a formal arrest.       See

Miranda, 672 N.W.2d at 759 (noting Miranda safeguards apply as soon

as the person is deprived of freedom to the level of a formal arrest). A

coercive environment, whether by formal arrest or otherwise, gives rise to

custody, which requires the protections of Miranda. See id.

      The strength of Schlitter’s claim of custody is found in the

aggressive and accusatory nature of the questioning.        The approach

taken by the investigating officers was consistent with the type of

circumstances that can make suspects feel a coercive atmosphere of

custody. The more an interrogating officer discloses evidence of guilt to a

suspect and the more force the officer uses to express guilt to a suspect,
                                    29

the greater likelihood the suspect will be in custody for purposes of

Miranda.    Cf. Tyler, 867 N.W.2d at 173–74 (distinguishing between

accusatory and truth-seeking questioning); Smith, 546 N.W.2d at 925

(noting questions about conflicting stories was to find information rather

than to confront the defendant with evidence of guilt); see also United

States v. Griffin, 922 F.2d 1343, 1348 (8th Cir. 1990) (“[T]he fact that the

individual has become the focus of the investigation is relevant ‘to the

extent that the suspect is aware of the evidence against him’ and this

awareness contributes to the suspect’s sense of custody.” (quoting United

States v. Carter, 884 F.2d 368, 370 (8th Cir. 1989))).        Yet, Schlitter

understood the officers were asking him either to acknowledge his guilt

or implicate Parmer. Even during the aggressive questioning, Schlitter

understood the officers were looking at one or the other as the guilty

party.   Thus, if the officers wanted Schlitter to implicate Parmer, a

necessary inference would be the officers lacked evidence of his guilt.

Likewise, the request to trace his hand and to take a polygraph

examination did not support custody under the circumstances, but

confirmed the ongoing nature of the investigation and the ongoing search

for more evidence. Even though the officers wanted to press on with the

questioning and with the polygraph test when Schlitter wanted to end

the encounter, the questioning did promptly end, and Schlitter did agree

to return the next day.      Schlitter indicated he did not believe the

interview had evolved into a custodial setting by telling the officers near

the end of the interview he would need to take the requested polygraph

examination another time because he needed to be leaving for dinner.

Under all the circumstances, and balancing all four factors, we conclude,

as did the district court, the interrogation did not restrict Schlitter’s
                                     30

freedom to the point that it rendered him in custody for purposes of

Miranda.

      IV. Conclusion.

      We conclude the district court did not err in denying the motion to

suppress. However, we conclude insufficient evidence was presented at

trial to support a conviction for child endangerment under the theory

that Schlitter used unreasonable force that resulted in bodily injuries to

K.S. As a result, trial counsel for Schlitter was ineffective for failing to

preserve error. We therefore reverse and remand for a new trial. In light

of the need for a new trial, it is unnecessary to address further the other

issues raised by Schlitter on appeal. We allow the decision of the court

of appeals to stand as a final decision on the claim of ineffective

assistance of counsel relating to the failure to investigate.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN

PART, REVERSED IN PART, AND REMANDED.

      All justices concur except Wiggins, J., who concurs in part and

dissents in part, and Appel, J., who files a separate opinion concurring in

part and dissenting in part in which Wiggins and Hecht, JJ., join.
                                       31

                                                 #13–0346, State v. Schlitter

WIGGINS, Justice (concurring in part and dissenting in part).

          I join Justice Appel’s opinion that concurs in part and dissents in

part to the majority opinion. However, I am compelled to write further on

the use of special interrogatories in criminal cases.       I see too many

judges not using them when appropriate.

          As demonstrated by this case and State v. Tyler, 873 N.W.2d 741,

753–54 (Iowa 2016), a new trial is required when the evidence is

insufficient to support a guilty verdict on an alternative theory of

criminal liability submitted to a jury and the jury returned a general

guilty verdict. Appropriate use of special interrogatories can avoid new

trials.

          Under limited circumstances, our present law allows jurors to

unanimously convict a defendant even when they do not agree on a

single theory of criminal liability. See State v. Bratthauer, 354 N.W.2d

774, 776–77 (Iowa 1984).           So long as the alternative means of

committing an offense submitted to the jury are consistent with and not

repugnant to each other, the jury can convict a defendant without

agreeing to the precise means by which the defendant committed the

offense.      Id.   When the district court submits consistent alternate

theories of liability to the jury, it may submit special interrogatories that

will permit it to determine which jurors agree on each alternative theory,

but it is not required to do so.

          In contrast, juror unanimity as to the means by which an offense

was committed is required to sustain a conviction when the alternative

means submitted to the jury are inconsistent, repugnant, or conceptually

distinguishable from each other.         See Tim A. Thomas, Annotation,

Requirement of Jury Unanimity as to Mode of Committing Crime Under
                                           32

Statute Setting Forth the Various Modes By Which Offense May Be

Committed, 75 A.L.R. 4th 91, 105 (1990).               In such cases, jurors must

reach unanimity as to the means by which the defendant committed the

offense. Thus, the district court must submit special interrogatories to

the jury to convict the defendant when the alternative means submitted

to the jury are inconsistent, repugnant, or conceptually distinguishable

from each other.
       Therefore,     to   determine      whether     special    interrogatories     are
necessary, a district court must make two distinct legal determinations.
Bratthauer, 354 N.W.2d at 776. First, the court must determine if the
legislature intended the relevant statute to define “a single offense that
may be committed in more than one way or instead defines multiple
offenses.” Id. Second, the court must apply a constitutional test and
determine if the alternative means for committing the offense are
inconsistent, repugnant, or are conceptually distinguishable. Id.
       Only after a district court has completed this two-step analysis will
it be in the position to decide what type of special interrogatories, or
instructions, if any, it may need to give the jury in regards to its verdict.2



       2The   model jury instructions published by the Iowa State Bar Association
include the following instruction:
       Where two or more alternative theories are presented, or where two or
       more facts would produce the same result, the law does not require
       each juror to agree as to which theory or fact leads to his or her verdict.
       It is the verdict itself which must be unanimous, not the theory or facts
       upon which it is based.
Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.16 (2015).
        It appears the present practice among district courts is to give this instruction
when the alternative means submitted to the jury are not inconsistent, repugnant, or
conceptually distinguishable from each other. Again, the court may want to consider
submitting some form of interrogatories to avoid a retrial in case an appellate court
finds the evidence was insufficient to submit one of the alternative ways to commit an
offense.
                                    33

                                               #13–0346, State v. Schlitter

APPEL, Justice (concurring in part and dissenting in part).

      I concur with the balance of the majority opinion but dissent on

the question of whether Schlitter was subjected to an unwarned

interrogation contrary to Miranda v. Arizona under the United States and

Iowa Constitutions.   384 U.S. 436, 444–45, 86 S. Ct. 1602, 1612, 16

L. Ed. 2d 694, 706–07, (1966).

      I. Factual and Procedural Background.

      The record reveals that law enforcement officers requested Schlitter

to come to the state patrol office for questioning in connection with the

death of his daughter. Schlitter drove himself to the station. He was

then escorted to an interrogation room. The interrogation room had two

steel desks. Schlitter sat in a chair with his back to the wall between the

two desks. Two officers were in the interrogation room seated between

Schlitter and the door.    The door of the interrogation room was not

locked. Schlitter was not advised at any time during the interrogation

that the door was not locked, that he was not under arrest, or that he

was free to go.

      The interrogation began with basic background information. After

a few minutes of questioning, however, the interrogation became

accusatory. The interrogating officer asked about bruises on Schlitter’s

daughter, stating that “none of the bruising shows up until she’s in your

custody” and that Schlitter’s answer of “I don’t know” to questions about

how the injuries occurred “doesn’t cut it.”     The officer described the

injuries and asked, “[H]ow does that happen . . . did you do those

things?” The officer repeatedly stressed, “[W]e’re down to two people, you

and Amy (Schlitter’s girlfriend),” as responsible for the injuries to his

daughter. And the officer also stressed that Schlitter had told them that
                                    34

“Amy’s a good mother [and he’d] never seen her be violent.”      Schlitter

grasped the point stating, “So, I’m pretty much incriminating myself.”

      For several minutes, the video recording of the interrogation

reveals that the interrogating officer repeatedly confronted Schlitter and

pressed him to admit responsibility for the injuries to his daughter.

Under persistent questioning focusing on his responsibility for the

injuries to his daughter, Schlitter finally declared, “Can you just stop?”

The officer did not stop. He pressed on. He responded by aggressively

stating, “But, but something happened. Okay? Something happened to

your daughter.”     Schlitter responded, “You’re getting too graphic and

you’re getting . . . .” But he was not allowed to finish his sentence when

the officer interjected, “Something happened to your daughter and

whatever happened to her, killed her.”       Schlitter declared, “I don’t

appreciate this!”

      At this point, Schlitter asked, “Do I need my lawyer? Cause I don’t

appreciate this.” The officer ignored him and observed, “We’re just trying

to find out . . . what happened.”    Schlitter again declared he did not

appreciate the questioning and for a second time announced, “We need

to stop!”   To this the officer responded, “One of two people did [it].”

Schlitter for the third time stated, “I, we need to stop.   Please.”     The

officer again ignored him and pressed on noting, “One of two people

know what happened.”

      At this point, Schlitter backed off his previous unqualified denials

of any involvement in his daughter’s injuries. When asked once again

whether he hurt his daughter, Schlitter now responded, “No. Not that I

know of.” When asked what he meant by that, Schlitter responded with

the phrase, “Not purposely trying to hurt my daughter.”      When asked

whether Schlitter became frustrated with his daughter on the day she
                                     35

went to the hospital with severe injuries, Schlitter now stated that his

daughter was not eating lunch and that he “picked her up to set her

down on her mat a few times, ‘cause she kept getting up.” Schlitter then

stated, “[I]t wasn’t hard or extremely forceful. I picked her up, sat her

down, and, uh, she did that enough times I had to take a break. Amy

watched her for a few minutes.”

      The officers continued the interrogation. They ultimately asked to

trace Schlitter’s hand, suggesting that this technique would allow them

to determine who caused bruising to his daughter’s face. In apparent

reference to other bruises, Schlitter stated that he picked her up a lot

“like that” but never violently. When asked if his actions would cause

bruising, he stated, “Shouldn’t have been.”

      The interrogation continued for several minutes. The interrogating

officer stated, “[I]t’s you and Amy,” “it’s down to you two,” and “it’s down

to you and Amy.”

      At this point, the officers asked Schlitter if he would be willing to

take a polygraph test. Schlitter asked if he could do it tomorrow, and the

officers responded that they would prefer he do it that same day. When

Schlitter answered, “I’m supposed to be having dinner soon,” an officer

responded, “I think this is a bit more important than dinner right now.”

      In response to the request for a polygraph test, Schlitter stated, “I

wanna talk to my lawyer, too.” The officers allowed Schlitter to call his

attorney. Schlitter could not reach her, however, and left a voice mail

message. After learning that Schlitter could not contact his attorney, the

officers continued questioning. An officer pressed the polygraph issue,

stating that “the choice is really yours.” Schlitter repeated, “I just wanna

talk to my lawyer first . . . about everything that is going on here.”
                                         36

       The officers continued to press for the polygraph.               One officer

stated, “You can walk out of here knowing that, you know, we don’t think

that you’re, you’re our person anymore . . . .” Ultimately the officers and

Schlitter agreed that he would come back the next day for the polygraph.

An officer asked Schlitter, “Okay. I have your, your word?” and Schlitter

responded, “Yeah, if that’s when you want me here, I’ll come back.”

Schlitter stated that Amy was “too nice of a person to hurt any kid.” The

officer emphasized, “[U]ntil we can polygraph you and, and talk with Amy

. . . it won’t be over.” The interrogation then ended.

       II. State and Federal Claims.

       In this case, Schlitter raises his Miranda claim under both the

United States Constitution and the Iowa Constitution.                 Although the

Iowa Constitution does not contain an explicit right against compelled

self-incrimination, we have found such a right under the due process

clause of the Iowa Constitution. State v. Iowa Dist. Ct., 801 N.W.2d 513,

518 n.2 (Iowa 2011) (citing State v. Height, 117 Iowa 650, 659, 91 N.W.

935, 938 (1902)).

       In the aftermath of Miranda, the United States Supreme Court has

embraced its core holding but generally limited the potentially protean

scope of the case. State supreme courts have not consistently followed

the Supreme Court’s later caselaw under Miranda in the interpretation of

their state constitutions.3

       3See, e.g., State v. Ketchum, 34 P.3d 1006, 1021–25 (Haw. 2001) (elaborating on
a more expansive definition of custody under article I, section 10 of the Hawaii
Constitution); People v. Griggs, 604 N.E.2d 257, 268 (Ill. 1992) (rejecting Moran v.
Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), under the Illinois
Constitution); Commonwealth v. Smith, 593 N.E.2d 1288, 1295 (Mass. 1992) (declining
to follow Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), on
state law grounds in Massachusetts); State v. Smith, 834 S.W.2d 915, 919 (Tenn. 1992)
(explaining that the Tennessee Constitution provides more protection than the Federal
Constitution under Miranda); see also State v. Tyler, 867 N.W.2d 136, 186–87 (Iowa
                                         37

       In this case, however, Schlitter does not suggest that we should

apply a different framework under the Iowa Constitution than is

generally applied by the United States Supreme Court. As a result, we

must apply the federal framework for the purpose of this case, but we

reserve the right to apply the federal framework in a more restrictive

manner. See State v. Short, 851 N.W.2d 474, 491 (Iowa 2014). Under

these circumstances, this case does not stand for the proposition that

departures from federal precedent will be rejected, but only that they

have not been presented and therefore have not been ruled upon in the

case presented.

       Thus, the posture presented in this case is similar to State v. Pals,

805 N.W.2d 767 (Iowa 2011). In Pals, we considered the application of a

totality-of-the-circumstances test to determine whether an individual had

consented to a search. Id. at 777. Pals did not argue for a departure

from the federal totality-of-the-circumstances test under the Iowa

Constitution. Id. at 779–80. Consequently, we utilized the federal test,

but applied it in a fashion more stringent than federal law. Id. at 782.

Similarly, here we are faced with another totality-of-the-circumstances

test under federal law. We apply the test, but may do so in a fashion at

variance with federal law.




_________________________
2015) (Appel, J., concurring part and dissenting in part) (citing state constitutional
cases that decline to follow Elstad); Claudia R. Barbieri, Oregon v. Elstad Revisited:
Urging State Court Judges to Depart from the U.S. Supreme Court’s Narrowing of
Miranda, 4 U. Dist. Colum. L. Rev. 63, 69–74 (1998); Arthur Leavens, Prophylactic Rules
and State Constitutionalism, 44 Suffolk U. L. Rev. 415, 429–38 (2011); Katherine E.
McMahon, “Cat-Out-of-the-Bag” & “Break-in-the-Stream-of-Events”: Massachusetts’
Rejection of Oregon v. Elstad for Suppression of Warned Statements Made After a
Miranda Violation, 20 W. New Eng. L. Rev. 173, 201–08 (1998).
                                       38
      III. Legal Framework for Evaluation of Custody Under United
States Constitution.

      As noted by the majority, the United States Supreme Court has

established a totality-of-the-circumstances test to determine if a person

is in custody or if freedom is deprived “in any significant way.”4 Miranda,

384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706.              Whether a

person is in custody or has been deprived of freedom in any significant

way is determined by examination of “all of the circumstances

surrounding the interrogation.” Stansbury v. California, 511 U.S. 318,

322, 114 S. Ct. 1526, 1528–29, 128 L. Ed. 2d 293, 298 (1994).                The

Supreme Court has stated that relevant circumstances include, but are

not limited to: the language used in summoning the interrogatee,

Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149, 158

L. Ed. 2d 938, 951 (2004); the location of the questioning, see Maryland

v. Shatzer, 559 U.S. 98, 114, 130 S. Ct. 1213, 1225, 175 L. Ed. 2d 1045,

1059 (2010); its duration, Berkemer v. McCarty, 468 U.S. 420, 437–38,

104 S. Ct. 3138, 3149, 82 L. Ed. 2d 317, 333 (1984); statements made

during the interrogation, Oregon v. Mathiason, 429 U.S. 492, 495, 97

S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977) (per curiam); the presence

or absence of physical restraints during the questioning, New York v.

Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 2631, 81 L. Ed. 2d 550,

556 (1984); and whether the interrogatee is released at the end of the

questioning, California v. Beheler, 463 U.S. 1121, 1124, 103 S. Ct. 3517,

3519, 77 L. Ed. 2d 1275, 1278–79 (1983) (per curiam).



      4The  expansive language is broad enough to prevent law enforcement from
circumventing the Miranda requirements by conducting interrogations in places such
as hotel rooms or squad cars. See Orozco v. Texas, 394 U.S. 324, 326–27, 89 S. Ct.
1095, 1097, 22 L. Ed. 2d 311, 314–15 (1969).
                                     39

      Following the lead of the United States Supreme Court, several

circuit courts have developed nonexclusive criteria for consideration. See

United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002) (including “(1) the

language used to summon individual; (2) the extent to which the

defendant is confronted with evidence of guilt; (3) the physical

surroundings of the interrogation; (4) the duration of the detention; and

(5) the degree of pressure applied to detain the individual” (quoting

United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001))); United

States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990) (including “whether

the suspect was informed at time of questioning that the questioning was

voluntary, that the suspect was free to leave or request officers to do so,

or that the suspect was not considered under arrest”; “whether the

suspect [had] unrestrained freedom of movement during questioning”;

“whether the suspect initiated the contact with authorities or voluntarily

acquiesced to official requests to respond to questions”; “whether strong

arm   tactics   or   deceptive   stratagems   were   employed   during   the

questioning”; “whether the atmosphere of the questioning was police

dominated”; or “whether the suspect was placed under arrest at the

termination of the questioning”).      We have also utilized nonexclusive

criteria for determination of custody. State v. Miranda, 672 N.W.2d 753,

759 (Iowa 2003) (including “language used to summon the person”;

“purpose, place, and manner of interrogation”; “extent to which the

person is confronted with evidence of guilt”; and “whether the person is

free to leave the place of questioning”).

      An individual is in custody when freedom of movement is

restrained to the degree comparable to formal arrest. Beheler, 429 U.S.

at 1125, 103 S. Ct. at 3520, 77 L. Ed. 2d at 1279.        The question of

custody is sometimes phrased as whether there are circumstances that
                                    40

objectively present “a serious danger of coercion”—coercion of a degree

associated with formal arrest. Howes v. Fields, 565 U.S. ___, ___, 132

S. Ct. 1181, 1189, 182 L. Ed. 2d 17, 27 (2012); Tammy R. Pettinato, The

Custody Catch-22: Post-Interrogation Release as a Factor in Determining

Miranda Custody, 65 Ark. L. Rev. 799, 818 n.115 (2012); Bryan Taylor,

You Have the Right to Be Confused! Understanding Miranda After 50

Years, 36 Pace L. Rev. 160, 180–81 (2015).

      As noted by the United States Supreme Court, coercion inherent in

custodial interrogations “derives in large measure from an interrogator’s

insinuations that the interrogation will continue until a confession is

obtained.”   Minnesota v. Murphy, 465 U.S. 420, 433, 104 S. Ct. 1136,

1145, 79 L. Ed. 2d 409, 423 (1984); see also State v. Muntean, 12 A.3d

518, 525 (Vt. 2010) (finding custody is present when individual is not “at

liberty to terminate the interview and leave”).      As observed by one

authority, custody “implies a situation in which the suspect knows he is

speaking with a government agent and does not feel free to end the

conversation.”   Stephen E. Arthur & Robert S. Hunter, The Miranda

Rights, in 1 Federal Trial Handbook: Criminal § 30:8 (4th ed.), Westlaw

(database updated Dec. 2015).

      The United States Supreme Court has emphasized that in

determining the custody issue, the question must be approached from

the viewpoint of a reasonable person in the presence of the police officer,

not from the viewpoint of police officers themselves.    Yarborough, 541

U.S. at 663, 124 S. Ct. at 2148–49, 158 L. Ed. 2d at 950–51; Thompson

v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465, 133 L. Ed. 2d 383,

394 (1995); Stansbury, 511 U.S. at 323, 114 S. Ct. at 1529, 128

L. Ed. 2d at 298; Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151, 82

L. Ed. 2d at 336. The subjective and undisclosed views of police officers
                                    41

conducting the interrogation are irrelevant. Stansbury, 511 U.S. at 324,

114 S. Ct. at 1529–30, 128 L. Ed. 2d at 299–300. The views of officers

are relevant only to the extent conveyed, by word or deed, to the

individual being questioned.      Id. at 325, 114 S. Ct. at 1530, 128

L. Ed. 2d at 300.

     IV. Application      of   Totality-of-the-Circumstances      Test   of
Custody.

      A. Language Used to Summon: The Question of Implied

Obligation. We begin by discussing the first nonexclusive factor often

cited in determining custody or restraint: the language used by the police

to summon an individual to interrogation. Yarborough, 541 U.S. at 664,

124 S. Ct. at 2149, 158 L. Ed. 2d at 951. As has been noted by a leading

authority, “ ‘invitations’ or ‘requests’ to come to the police station for

questioning may be ambiguous.” William E. Ringel et al., Searches and

Seizures, Arrests and Confessions, § 27.5 (2d ed.), Westlaw (database

updated Mar. 2016).

      Here, however, the record does not provide the language used to

summon Schlitter. The officer testified at the suppression hearing only

that a request was made that Schlitter come to the patrol office and that

he voluntarily complied. There was no evidence the officer specifically

advised Schlitter that his decision was up to him, that he could leave at

any time during the interrogation if he chose, or that he was not under

arrest.   Yet, it is clear under the caselaw that even when a person

appears to have voluntarily traveled to a police station to submit to

interrogation, this fact does not in and of itself establish lack of custody

or restraint for a number of reasons.

      First, a request to appear at the police station “may easily carry an

implication of obligation, while the appearance itself, unless clearly
                                   42

stated to be voluntary, may be an awesome experience for the ordinary

citizen.”   Jefferson v. State, 459 S.E.2d 173, 177 (Ga. Ct. App. 1995)

(quoting Dunaway v. New York, 442 U.S. 200, 207 n.6, 99 S. Ct. 2248,

2253 n.6, 60 L. Ed. 2d 824, 832 n.6) (noting an officer’s request for a

person to come to the station may easily be an offer that cannot be

refused, depending on the circumstances); State v. Menne, 380 So. 2d 14,

17 (La. 1980); State v. Bleyl, 435 A.2d 1349, 1357 (Me. 1981); People v.

Dross, 551 N.Y.S.2d 1016, 1020 (Supp. Ct. 1989).       The United States

Supreme Court recognized the concern in Dunaway, where the Supreme

Court recognized that individuals may not view requests to come to the

station as something that they may easily refuse. 442 U.S. at 207 n.6,

99 S. Ct. at 2253 n.6, 60 L. Ed. 2d at 832 n.6. Thus, even an apparently

voluntary appearance may mask coercive features.

      Second, many of the cases finding the manner of arrival at the

police station significant combine the voluntary nature of the summons

with other facts that reinforce a finding of lack of custody or restraint.

That was the case in Mathiason. In Mathiason, the defendant was told

upon his arrival at the police station that he was not under arrest. 429

U.S. at 493, 495, 97 S. Ct. at 713, 714, 50 L. Ed. 2d at 718, 719.   This

key limiting feature of Mathiason—namely, that other facts supported a

finding of lack of custody beyond the apparently voluntary arrival of the

person at the place of interrogation—has not gone unnoticed.           For

example, in Muntean, a defendant who voluntarily arrived at the place of

interrogation was nevertheless found to be in custody when he was not

told that he was free to leave at any time, he was confronted immediately

with evidence of guilt, the detective indicated that he was certain of his

guilt, and the interrogation took place in a small, windowless polygraph

room. 12 A.3d at 524.
                                    43

      Similarly, in Moore v. Ballone, the United States Court of Appeals

for the Fourth Circuit noted the fact that the police emphasized that the

individual was not under arrest at the station before the interrogation

commenced in Mathiason limited the scope of the case. 658 F.2d 218,

225 (4th Cir. 1981).    Along the same line of reasoning, the court in

United States v. Harrold noted that although courts have held that an

individual who voluntarily arrived at the police station was not in

custody for purposes of Miranda, the defendants “in those cases were

also told that they were not under arrest or were not restrained at the

police station.” 679 F. Supp. 2d 1336, 1345 (2009) (emphasis added).

Further, as has been observed by one federal court, the repeated

reminder that the suspect is free to leave is perhaps the most significant

fact for determining if the interrogation is noncustodial. United States v.

Crawford, 372 F.3d 1048, 1060 (9th Cir. 2004). Notably, here there was

no Mathiason reminder, let alone repeated Crawford reminders that

Schlitter was not under arrest or was free to leave the interrogation

location.

      Finally, an interrogation that commences as a noncustodial

interrogation can morph into a situation that a reasonable person would

conclude involves custody or significant restraint. The usual fact pattern

involves an interrogation that begins in a low-key manner but then

escalates into a confrontation suggesting the defendant’s guilt. In these

situations, an interrogation may be voluntary at the beginning but may

develop into a confrontation that would give rise to a reasonable belief

that the defendant cannot leave until the interrogation is completed.

See, e.g., United States v. IMM, 747 F.3d 754, 766 (9th Cir. 2014) (noting

voluntary initial contact is significant but does not end custody inquiry);

People v. Algien, 501 P.2d 468, 470–71 (Colo. 1972); People v. Mrozek,
                                    44

367 N.E.2d 783, 787 (Ill. App. Ct. 1977); Commonwealth v. Magee, 668

N.E.2d 339, 343 (Mass. 1996); State v. Payne, 149 S.W.3d 20, 33–34

(Tenn. 2004).

      Under the thin record of this case, the conclusory testimony that

Schlitter voluntarily came to the station mildly supports a finding of lack

of custody. The lack of evidence of the specific language used, however,

and the failure of the record to show that Schlitter was told he could

voluntarily leave or end the interrogation substantially minimizes the

importance of this factor. Further, as will be seen below, developments

at the interrogation substantially overpower the voluntary nature of the

original summons.

      B. Ensuring Voluntariness: Statement That the Individual Is

Free to Leave. A second factor often considered in determining whether

an interrogation is custodial is whether the interrogatee has been told

that he is not under arrest or that he is free to go at any time.      The

authorities discussed above demonstrate the importance of these

admonitions. The Eighth Circuit has observed that

abundant advice of freedom to terminate the encounter should not
be treated merely as one equal factor in a multi-factor balancing
test designed to discern whether a reasonable person would have
understood himself to be in custody. That a person is told
repeatedly that he is free to terminate an interview is powerful
evidence that a reasonable person would have understood that he
was free to terminate the interview.

United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004).

Here, however, the transcript and the audio recording of Schlitter’s

interrogation reveal no such declarations.      Although not necessarily

determinative, the lack of a statement that Schlitter was not under arrest

and was free to terminate the interrogation at any time is a factor cutting
                                     45

in favor of custody. See United States v. Conder, 529 F. App’x 618, 623

(6th Cir. 2013).

      Even in cases when a person is advised that he or she is free to

terminate the interrogation at any time, such declarations are not

determinative of the custody issue when the interrogation turns strongly

accusatorial.   California v. Aguilera, 59 Cal. Rptr. 2d 587, 593–94 (Ct.

App. 1996) (holding that although the interrogatee was told he was not in

custody, repeated disbelief expressed by the interrogators indicated that

the individual would not be released so long as the individual continued

denials). While police in this case made no statement at the time of the

interrogation suggesting that Schlitter was not under arrest or was free

to leave, they did repeatedly question him in a way that demonstrated

disbelief, a factor cutting in favor of a finding of custody. See, e.g., Jones

v. People, 711 P.2d 1270, 1276 (Colo. 1986); State v. Rogers, 760 N.W.2d

35, 56–57 (Neb. 2009).

      C. Place of Interrogation: Is It Police Dominated?             A third

factor considered in determining whether an interrogation is custodial is

the place of interrogation. As noted in Miranda, “compulsion to speak in

the isolated setting of the police station may well be greater than in

courts or other official investigations, where there are often impartial

observers to guard against intimidation or trickery.” 384 U.S. at 461, 86

S. Ct. at 1621, 16 L. Ed. 2d at 716.        According to Miranda, in the

investigator’s office, the investigator possesses all the advantages; “[t]he

atmosphere suggests the invincibility of the forces of the law.” Id. at 450,

86 S. Ct. at 1615, 16 L. Ed. 2d at 709. As a result, courts have noted

that stationhouse interrogations should be scrutinized with great care.

United States v. Jacobs, 431 F.3d 99, 105 (3rd Cir. 2005); Steigler v.

Anderson, 496 F.2d 793, 799 (3rd Cir. 1974).
                                    46

      Here, the interrogation not only occurred at the patrol office, but in

a room specially designed for that purpose. Schlitter was positioned with

his back to the wall, surrounded by two steel desks, with two officers in

front of him.   A review of the videotaped interrogation shows that the

physical characteristics of the interrogation room and the placement of

the officers plainly tends to promote the type of police dominated

atmosphere that animated the concerns of Miranda.

      The State notes that the door to the room was unlocked. Yet, there

is nothing in the record that suggests that Schlitter was told that fact.

See United States v. Rogers, 659 F.3d 74, 76 (lst Cir. 2011) (describing

how police told the suspect that the door was unlocked and he was free

to leave the interview room); People v. Vargas, 971 N.Y.S.2d 624, 625

(App. Div. 2013) (noting that the suspect was told that the doors were

unlocked and she could leave whenever she wanted). In any event, two

officers in a small room blocking access to the door minimizes the fact

that the door was unlocked. See Payne, 149 S.W.3d at 33 (noting that

police officers blocked access to the door of interrogation room); see also

People v. Elmarr, 181 P.3d 1157, 1163–64 (Colo. 2008) (stating the fact

that the suspect was “interrogated in a small, closed-door interview

room” by police officers contributed to a finding of custody); Ramirez v.

State, 739 So. 2d 568, 574 (Fla. 1999) (finding custody established when

accused was, among other things, questioned “in a small room in the

police station by two detectives”). In Harrold, the district court noted the

fact that the door to the interrogation room was unlocked, but did not

give this factor much weight under circumstances similar to those

presented in this case. 679 F. Supp. 2d at 1344.

      The   location   and   physical    circumstances   surrounding    the

interrogation in this case point in a direction of finding custody or
                                   47

restraint. Yet, though there is an element of compulsion in the setting,

the United States Supreme Court has made clear that the mere fact that

an interrogation occurs at the police station is not, in and of itself,

determinative of the question of custody or restraint.   Mathiason, 429

U.S. at 495, 97 S. Ct. at 714, 50 L. Ed. 2d at 719.      But nothing in

Mathiason indicates the station house location should not be considered

as a factor in the overall analysis of whether custody or restraint is

present.

      D. Nature of Interrogation: Is It Accusatorial?            Another

important factor to consider in determining the custody or restraint

question is the nature of the interrogation. In many cases, the evolution

of interrogation from ordinary fact-finding into a highly confrontational

and accusatorial proceeding converts a voluntary encounter into a

custodial interrogation. See Ross v. State, 45 So. 3d 403, 415–16 (Fla.

2010).     When interrogation escalates, the key question is whether a

reasonable person would feel at the time of the accusatorial questioning

that they would be free to leave. People v. Payne, 838 N.Y.S.2d 123, 125

(App. Div. 2007).

      Illustrative of accusatory questioning is State v. Lynn, 829 S.W.2d

553 (Mo. Ct. App. 1992).     In this case, the investigation focused on

defendant and her boyfriend as perpetrators of the crime.     Id. at 554.

When the police continued the questioning of the defendant despite her

denials until she confessed, the Missouri court held the defendant

reasonably believed she was not free to go.    Id.; see also Mansfield v.

State, 758 So. 2d 636, 644 (Fla. 2000) (finding custody when accused

“was interrogated by three detectives at the police station, he was never

told he was free to leave, he was confronted with evidence strongly

suggesting his guilt, and he was asked questions that made it readily
                                    48

apparent that the detectives considered him the prime, if not the only,

suspect”).

      It is clear that an interrogation can be accusatorial even if there is

not probable cause to arrest the individual. In Moore, the Fourth Circuit

noted that even though law enforcement did not have probable cause to

arrest an individual and told him he was free to leave, a persistent

course of interrogation nonetheless produced a coercive environment

sufficient to satisfy the custody requirement of Miranda. Moore, 658 F.2d

at 221; see also State v. Mumbaugh, 491 P.2d 443, 449 (Ariz. 1971)

(stating that a finding of no probable cause does not necessarily mean

there was no “custody” for purposes of Miranda).        Probable cause to

arrest and custody are different concepts.     Lindsay v. State, 698 P.2d

659, 662–63 (Alaska Ct. App. 1985) (finding the defendant in custody

though no probable cause to arrest); People v. Biggs, 451 N.Y.S.2d 196,

199 (App. Div. 1982) (finding subject in custody in police car though no

probable cause to arrest him). The proper focus is not on the subjective

views of the police or the strength or weaknesses of their case, but is

instead on whether a reasonable person in the shoes of the person being

interrogated would believe he or she could terminate the interrogation

and leave.

      Once again, the United States Supreme Court has cautioned that

mere investigatory questioning is not enough to dictate a finding of

custody or restraint. See Berkemer, 468 U.S. at 437–38, 104 S. Ct. at

3149, 82 L. Ed. 2d at 333 (noting that questioning incident to an

ordinary traffic stop is different than custodial questioning).    Yet, the

nature of the questioning is an important factor in the analysis. United

States v. Bassignani, 575 F.3d 879, 885 (9th Cir. 2009) (discussing the

difference between confrontational and nonconfrontational interrogation).
                                    49

      Here, there is no question the interrogation began in a low-key,

matter-of-fact manner. It also escalated into confrontation. The tone of

the interrogation shifted, and law enforcement repeatedly sought a

confession from Schlitter.     Further, when Schlitter unambiguously

demanded the officers to stop the interrogation, they did the opposite.

They persisted. He specifically asked the officers to stop three times and

declared the interrogation inappropriate four times. The officers ignored

his entreaties and plowed ahead. See State v. Roble-Baker, 136 P.3d 22,

29–30 (Or. 2006) (en banc) (noting refusal of police to stop questioning

when requested to do so created the kind of police-dominated

atmosphere that Miranda warnings were intended to counteract).

      Ultimately, they pressured Schlitter to qualify his previous

unqualified strong denials by stating that he did not hurt his daughter

“as far as he knew” and declaring that he was frustrated with his

daughter’s behavior and picked her up and down repeatedly during the

time when the injuries might have been inflicted on her.                The

accusatorial nature of the interrogation is a factor that cuts in favor of a

finding of custody.

      The district court responded to these facts by crediting patrol

officers who testified that they were conducting an interrogation for the

purposes of background information. The district court found that the

officers had no plans to take Schlitter into custody because there was no

evidence with which to charge him with a crime.

      The subjective views of the police officers have no direct bearing on

what a reasonable person would conclude from the circumstances.

Stansbury, 511 U.S. at 324, 114 S. Ct. at 1529–30, 128 L. Ed. 2d at 299–

300. Miranda rights are personal to the individual. That is why the test

is what a reasonable person in the shoes of the person being interrogated
                                             50

would believe with respect to the custodial issue. The subjective belief

on custody of the police officer, unless communicated to the individual

being questioned, is of very little value in determining what a reasonable

interrogatee would believe. State v. Murray, 510 N.W.2d 107, 110 (N.D.

1994) (stating the fact that the officer planned to arrest the accused

irrelevant when not communicated to the accused). Here, there was no

such communication and indeed, just the opposite in light of the officer’s

declarations that the bruising occurred when his daughter was in his

care.    Thus, the trial court’s focus on the subjective state of mind of

police officers does nothing to mitigate the accusatorial nature of the

interrogation.

        E. Honoring        Request      to    Call   Attorney       About     Polygraph

Examination After Conclusion of Interrogation. Another factor in this

case is the significance of the officers honoring Schlitter’s request that he

be allowed to call his attorney when his interrogators wanted to conduct

a polygraph test. Yet, by the time the officers asked for a polygraph test,

the interrogation was essentially over.5 The officers had achieved all they

could from the interrogation of Schlitter. The question here is whether

Schlitter felt free to leave at the time the questioning turned accusatorial
at the patrol office in the environment in which he found himself. The

fact that he repeatedly asked the interrogators to stop asking him

questions—and their determination to press on—suggests that at the key

point of the interrogation, a reasonable person in Schlitter’s shoes would

not have believed he was free to leave the interrogation room.                          He


        5Schlitter also invoked his right to counsel generally. The law enforcement
officers refused to terminate the questioning, however, giving rise to a potential violation
of Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1883, 68 L. Ed. 2d 378, 384
(1981). This Edwards question was not raised in this case.
                                      51

repeatedly asked the officers to stop, and his requests were repeatedly

not   honored.    The     officers   appeared   determined   to   press   the

interrogation, and at the accusatorial point of the questioning, a

reasonable person might not have believed they could just get up and

leave until the interrogation was concluded.

      F. Departure at Conclusion of Interrogation. Another feature of

this case emphasized by the State is that Schlitter was not arrested at

the conclusion of the interrogation.       In Mathiason, the individual who

confessed was not charged at the conclusion of the questioning, a fact

that the Supreme Court found significant. 429 U.S. at 495, 97 S. Ct. at

714, 50 L. Ed. 2d at 719. But in Mathiason, the suspect was told he was

not under arrest at the beginning of the interrogation, confessed within

about five minutes, and there was “no indication that the questioning

took place in a context where respondent’s freedom to depart was

restricted in any way.”     Id. at 493, 495, 97 S. Ct. at 713, 714, 50

L. Ed. 2d at 718, 719. Here, a suspect is not told he is not under arrest

or that he can terminate the interrogation, is placed in a confined room

used for interrogations, has his exit blocked by patrol officers, is

confronted with accusatorial questioning, and is subject to repeated and

determined questioning in response to three unheeded demands that the

interrogation “stop!” The facts are obviously in strong contrast to those

in Mathiason.

      Further, the fact that Schlitter was not charged for another fifteen

months is of little moment on the question of what Schlitter reasonably

thought at the time of the accusatorial interrogation. Again, the question

is not what the police may have thought after the interrogation was

concluded (or at any time, for that matter): the question is what would a

reasonable person in Schlitter’s position have concluded about his
                                     52

custodial status at the time he faced accusatorial interrogation and made

repeated unheeded demands to stop the interrogation.          See State v.

Aynes, 715 N.E.2d 945, 950 (Ind. Ct. App. 1999) (finding despite fact

that defendant drove himself to police station for interrogation and left at

end, interrogation was custodial in light of nature of interrogation and

fact that defendant was never told he was free to leave).

      G. Conclusion.      In light of the totality of the circumstances, I

conclude that the interrogation here became custodial when law

enforcement officers began focusing in on Schlitter as the possible

perpetrator of the crime in this case. I note in particular the failure of

law enforcement to advise Schlitter that he was not under arrest, the

physical circumstances of the interrogation, the confrontational nature of

the questioning by police, and importantly, the refusal of the officers to

discontinue the questioning when Schlitter repeatedly demanded that

they stop.   After his repeated requests to stop were not honored, a

reasonable person would have believed he was not free to terminate the

interrogation. I would thus hold that the district court erred in failing to

suppress statements made beyond that point in the interrogation under

both the United States Constitution and under the due process clause of

article I, section 9 of the Iowa Constitution.

      V. Harmless Error.

      Constitutional error is harmless only if it may be shown to be

harmless beyond a reasonable doubt. State v. Turner, 630 N.W.2d 601,

609 (Iowa 2012).     The record in this case shows, however, that the

prosecutor used Schlitter’s interrogation responses to persuade the jury

of his guilt.    An incriminating response is any response, whether

inculpatory or exculpatory, that the prosecution may seek to introduce at

trial. Rhode Island v. Innis, 446 U.S. 291, 297, 100 S. Ct. 1682, 1688,
                                       53

64 L. Ed. 2d 297, 305 (1980).          At trial, the prosecutor emphasized

Schlitter’s lack of “outrage” in the interrogation. Further, the prosecutor

additionally emphasized in closing argument to the jury that in the

interrogation Schlitter admitted abusing his daughter when he stated

that he was frustrated with her on Sunday, March 21, because she was

not eating her lunch.          The prosecutor also argued that in the

interrogation Schlitter admitted that he might have picked up his

daughter in a rough manner. In a close case like this one, we cannot say

that the admission of evidence from the interrogation was harmless given

the reliance placed on the evidence obtained after the March 30

interrogation turned adversarial by the prosecution.               As a result,

Schlitter’s motion to suppress incriminating statements made after the

interrogation turned adversarial should have been granted.6

      Wiggins and Hecht, JJ., join this concurrence in part and dissent

in part.




       6As a result of my disposition of the custody issue, it is not necessary to

consider Schlitter’s due process claim that the statements were involuntary.
