IN THE SUPREME COURT OF IOWA

No. 13–0346

Filed June 10, 2016

Amended September 1, 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. 
2

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. 

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. 
3

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

financial management class at church for a couple of hours. 

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. 
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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. 

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 
5

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 

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 
6

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. 

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 
7

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 

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 
8

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 

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 
9

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 

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). Ineffectiveassistance-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 
10

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 

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 ChildEndangerment Alternatives. “To preserve error on a claim of 
11

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). 

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 
12

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

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 
13

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. 

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 
14

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. 

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. 
15

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 

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 
16

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. 

“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, 
17

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. 

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 
18

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 

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 
19

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 

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. 
20

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. 

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 

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

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. Prosecutorial error occurs 

“where the prosecutor exercises poor judgment” and “where 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 
22

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 

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 
23

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 

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; 
24

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 

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
25

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 

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 
26

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 

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, 
27

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 

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 
28

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 

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. 
29

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, 

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 
30

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 

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, 463 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 (1979)) (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 (N.D. Ga. 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 multifactor 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.