State v. Rogers

Decision Date30 January 2009
Docket NumberNo. S-07-085.,S-07-085.
PartiesSTATE of Nebraska, appellee, v. April ROGERS, appellant.
CourtNebraska Supreme Court

Steven J. Lefler, of Lefler Law Office, Omaha, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.




April Rogers was convicted of intentional child abuse resulting in death, a class IB felony,1 and sentenced to life imprisonment. The primary issue presented in this appeal is whether Rogers' admission to hurting Alex Tay should have been suppressed. The record shows that when Rogers was interrogated by sheriff's officers, she tried to assert her constitutional right to remain silent, but the officers ignored her and continued to interrogate her until she was pressured into confessing. This violated clearly established decisions of the U.S. Supreme Court, which we are bound to follow. Therefore, we find that Rogers' confession was procured in violation of her Fifth Amendment right against self-incrimination, and we reverse the conviction and remand the cause for a new trial.


Rogers was convicted after a bench trial held on a stipulated record. The evidence presented at the trial showed that on Monday, December 5, 2005, Rogers was babysitting in her home for 6-month-old Alex, as well as seven other children under the age of four. Lionel Tay, Alex's father, left Alex and his brother in Rogers' care at approximately 7:30 a.m. When Alex was dropped off, he appeared healthy and had no unusual symptoms. With the exception of an ongoing acid reflux problem, Alex had no significant medical history.

Around 10 a.m., Rogers called Lionel at work. Lionel could hear gasping sounds in the background as Rogers told him she was sorry, but that she had gone upstairs to make cereal for another child and that when she returned, she observed an 18-month-old child sitting on Alex's neck. Lionel rushed to Rogers' house.

When Lionel arrived approximately 12 minutes later, Rogers again told him, "`I'm sorry, I'm sorry.'" Lionel found that Alex was stiff and rigid, his eyes were closed, and he was gasping for breath. Lionel asked Rogers to call the 911 emergency dispatch service, and Alex was airlifted to Creighton University Medical Center. Alex was later transported to Children's Hospital, where he died on December 8, 2005.

An officer arrived at the scene and spoke with Rogers. Rogers reported to the officer that she had laid Alex on the carpeted area of the basement and gone upstairs to get milk and cereal for the children. When she went back downstairs approximately 5 minutes later, she observed an 18-month-old child bouncing and sitting on Alex's neck, straddling his head. She stated that she picked Alex up and noticed he was having trouble breathing, so she contacted Lionel. Another officer, Eric Sellers, later arrived at Rogers' house, and Rogers repeated this story to him. The two officers then went to the hospital to check on Alex's status.

At the hospital, the officers were informed that Alex had suffered a head injury and was being scheduled for immediate surgery to relieve blood pressure on his brain. A medical report dated December 5, 2005, explains: "The patient likely received blunt trauma injury to the head while at day care earlier this morning." Medical reports, dated December 5 and 6, diagnosed Alex as suffering from a "massive" traumatic brain injury resulting in an acute subdural hematoma. The hematoma was more marked posteriorly, but extended all the way from the anterior to the posterior of the brain. An ophthalmologic examination also found eye hemorrhages "consistent with non-accidental trauma." Because of the density of the hematoma, an examination on December 6 indicated that the injury had occurred within the past 0 to 4 days. Additionally, "chronic" hematomas were found in Alex's brain. The medical findings were determined to be "diagnostic of repeated episodes of inflicted trauma as aresult [sic] of shaken baby and[/]or shaken impact baby syndrome." The report of an autopsy conducted on December 9 attributed the cause of Alex's death to "blunt trauma to the head."

Rogers was first asked to go to the Douglas County sheriff's office to be interviewed on Tuesday, December 6, 2005. At that time, the officers had apparently not yet been informed of Alex's chronic brain injuries. Rogers met with Officer Brenda Wheeler in the polygraph room with the intention of conducting a polygraph examination. But when Rogers indicated that she might be pregnant, the polygraph was postponed. It is apparent from the record that a polygraph examination could not be performed if Rogers was pregnant, although the record does not explain why. Wheeler still spoke with Rogers about the events of December 5.

Rogers explained to Wheeler that when the children first arrived in the morning, they ate breakfast. Alex went down for a nap shortly after arriving and slept in a "Pack-N-Play" until 9:15 a.m. Rogers said that when he woke up, she changed his diaper and the diaper of another child Alex's age. She put the other child in a "bouncy seat." Although Rogers had at least one other bouncy seat and two "saucers" nearby, she left Alex on the floor. Rogers could not provide Wheeler with any explanation for why she had done this.

Rogers explained that she then left all the children in the basement unattended while she went to get Alex and the other toddler's bottles, left the bottles to warm, went to the master bedroom to turn off the television, and looked in the freezer to consider what to make for lunch. Rogers told Wheeler that when she returned downstairs, she noticed that an 18-monthold child was straddling Alex's neck and that Alex was having trouble breathing. Rogers elaborated that she sometimes played "horsey" with the children. The interview ended, and Rogers returned home.

Following this interview, Wheeler received a telephone call from one of Alex's physicians, who advised Wheeler that Alex had been diagnosed with acute subdural hematomas and that there was evidence of two or three old subdural hematomas that were approximately 7 to 10 days old. The doctor clarified for Wheeler that Rogers' story of a child sitting or bouncing on Alex's neck was inconsistent with the severity of Alex's injuries.

By Wednesday, December 7, 2005, the officers knew that Alex might not survive his injuries and had evidence that those injuries had occurred at Rogers' residence on Monday, December 5. In light of this, Sellers and another officer went to Rogers' home and asked her and her husband to come to the station for a second interview. Sellers told Rogers that the interview would probably take only about 20 or 30 minutes.

Rogers agreed and arrived at the station shortly thereafter. Her husband was separated from her to wait in the lobby. Sellers took Rogers to a small, windowless room in a secure area. There, Sellers read Rogers her Miranda rights, which she waived. There is no evidence at this point, or at any time thereafter, Rogers was told that she was not under arrest or that she was free to leave the station.

Shortly after Rogers waived her Miranda rights, Rogers and Sellers were asked by another officer to move to a different area, because of a prisoner transport. They moved to the polygraph room, where Rogers sat in a polygraph chair with her back generally to the wall, facing in the general direction of the door. The polygraph chair was placed at the end of a desk, with the back of the chair angled slightly in front of the desk.

Initially, Sellers sat at the desk facing Rogers. He took notes as he asked Rogers routine questions about the events of December 5, 2005. Rogers repeated the story she had told Wheeler the day before. This continued for about 35 minutes. Sellers then offered Rogers a glass of water and left her in the room, where she stayed in the polygraph chair waiting for about 8 minutes. When Sellers returned, he gave Rogers a glass of water and explained that they had a panel of doctors who had told them that a child could not have caused Alex's injuries. He asked Rogers to "brainstorm" about anything else that might have occurred.

Soon after, Wheeler entered the room. She immediately pulled up a chair and sat in front of Rogers, placing herself between Rogers and the door to the room. There was nothing between them, and Wheeler leaned close to Rogers. Sellers remained in the room, but moved to a different position, standing at the opposite corner of the desk and its adjacent wall. Wheeler explained that she had spent the entire morning at Children's Hospital and had spoken to the doctors and spoken in great detail with Alex's parents. She relayed to Rogers that she had discovered nothing unusual had occurred the morning before Alex's parents took him to Rogers' house. Wheeler explained to Rogers that based on what the doctors were saying, she knew something had happened at Rogers' house that Rogers was not telling her.

The mood of the interview began to change, and Rogers became more quiet, repeatedly answering that she did not know what had happened. Wheeler explained that she did not think Rogers had meant to hurt Alex but that with all the children she was watching, anyone could have been pushed "over the top." Wheeler stated that she already knew something "aggressive" happened, but now she just needed to know why. If Rogers was just overwhelmed, then that was "explainable."

Rogers said she would never hurt Alex, and Wheeler responded that even if all the children had combined their efforts, they would not have had the force sufficient to cause the injuries Alex had suffered. Wheeler told Rogers that only an adult could have inflicted the force necessary to hurt Alex in this manner and that the injury occurred close to the time that Alex began seizing. Wheeler then reminded Rogers that she was the...

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