The defendant, Brian Keith Perkins, was convicted of first degree murder as the result of his participation in the December 2, 1982, robbery-murder of Gordon Robert Eno, and was sentenced to life imprisonment. He has appealed and has assigned as error the trial court’s (1) failure to suppress his statements made during interrogation; (2) overruling of his motion to quash the jury panel for its underrepresentation of individuals 19 to 34 years old; (3) failure to declare the felony murder law unconstitutional; and (4) giving or refusing to give certain jury instructions.
The record shows that the defendant lived with Benita Bradford at a house rented from the victim Eno at 2268 S Street in Lincoln, Nebraska. On December 2, 1982, the rent was several mоnths in arrears, and Benita had been served with an eviction notice. Benita decided that she would pay the rent due and telephoned Eno at around 5 p.m. on December 2 and told him to come by the house that evening and pick up the rent.
When Benita told the defendant that she intended to pay the rent, he decided to rob Eno оf the rent money. The defendant asked Benita for a scarf and a knife. As Eno approached the front door, the defendant left the house through the back door.
While the rent was being paid, the defendant hid in the bushes along the side of the house.
While Eno was still at the residence, Walter Bradford arrived. He had been drinking, and wanted to tаlk to Eno about the possibility of Eno’s getting him a job. An argument developed between Eno and Walter as they stood on the front porch of the house, whereupon Eno walked away.
As Eno was walking to his car, Walter jumped Eno from behind. Eno pushed Walter to the ground, at which time the defendant joined in and attacked Eno. Eno was knockеd to the ground and a struggle between the three followed. The defendant grabbed Eno and told him this was a robbery. The defendant held Eno while Walter kicked him in the face several times and then searched his pockets. Eno gave up his wallet, but the defendant and Walter wanted his briefcase, hoping to find the rent money. The defendant claimed Walter stabbed Eno *493 while the defendant was searching for the briefcase. However, an eyewitness testified that Eno was first assaulted with a knife by a man wearing a red scarf. The defendant admitted that he was the one wearing a scarf over his face that night, a fact corroborated by Benita.
After Eno was stabbed the defendant claimed Walter forced him to help put Eno into Eno’s car under threat of personal harm if the defendant did not cooperate. However, from the time of the supposed threat until the time Eno was fatally stabbed, the defendant had several opportunities to escape but chose not to.
The defendant and Walter Bradford put Eno into Eno’s car and drove to a rural area northwest of Lincoln. Walter pulled Eno out of the car and, with the defendant’s help, dragged him into a ditch, where Walter proceeded to stab Eno while the defendant watched. They left Eno in the ditch and returned to Lincoln in Eno’s car. Both had blood on their clothes. Later that evening, the defendant threw liquid bleach on the bushes and yard area at the S Street residence, and later drove to Eno’s parked car and doused both the interior and exterior with bleach. The knife used in the assault was left in the kitchen sink at Benita’s mother’s home.
The defendant was arrested on December 5, 1982, and interrogated by the Lincoln police. He gave a statement to the police at that time about his involvement in the crime, which was later played at trial. The defendant claims his motion to suppress his statement to the police should have been sustained because his actions in remaining silent during interrogation were a revocation of his wаiver of his Miranda rights. He also claims the statement was not admissible because it was elicited by coercion.
After he had been arrested on December 5, 1982, the defendant was asked if he knew why he was arrested. When he answered “yes,” the interrogating officer, James Peschong, told the defendant that he had a warrant for his arrest on some misdemeanor bicycle offenses and that he wanted to talk with him about the death of Robert Eno. The defendant responded twice, “Who is Mr. Eno?”
*494 The Miranda rights were read to the defendant at 7:42 a.m. As each warning was read, the defendant waived that right. Officer Peschong then started questioning him. Shortly thereafter, the defendant slid his chair against a wall, stuck his fеet out, slouched, rested his head against the wall, closed his eyes, and crossed his arms. He remained that way for about one-half hour while the officer continued to pose questions. At 8:15 a.m. the officer left the room. He returned around 8:40 a.m. and continued the interrogation by playing Benita Bradford’s taped statement that had beеn given earlier that morning. For about 30 minutes, while the tape played, the defendant sat up, leaned forward, and held his head between his hands with his elbows on his knees. When the tape ended at around 9:10, Officer Peschong started the questioning again. At 9:25 the defendant said that he wanted to talk to Officer Sorensen.
At 9:30 a.m. Sorensen came into thе room. The defendant told Sorensen that he had not killed Eno, and asked if he could talk to Benita. She was allowed in the room for 5 minutes. The defendant then said that he wanted to talk with Sorensen alone. The defendant started talking and asked if the statement could be recorded. Before taping the statement, Sorensen repеated the defendant’s Miranda rights. The defendant again waived all of his rights and made a statement as to his involvement in the crime. The taping began at 9:42 a.m. and ended at 10:22 a.m.
The defendant claims that his silence from 7:45 a.m. until 9:25 a.m. was a revocation of his prior waiver of his Miranda rights. This contention is without merit.
The general rule governing revocation of a waiver of
Miranda
rights is set out in
Miranda v. Arizona,
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the *495 right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.
Id.
at 473-74. This court adopted that holding in
In re Interest of Durand, State v. Durand,
In
Michigan v. Mosley,
Here, there was no indication that the defendant wished to end the questioning. He did not say “I don’t want to talk to you,” and never flatly refused to answer any questions.
Miranda
should not be read so strictly as to require the police to accept as conclusive any statement or act, no matter how ambiguous, as a sign that the susрect desires to cut off questioning.
Lamb
v.
Commonwealth,
An expert who testified for the defense admitted that there were a “myriad of possibilities” as to why the defendant remained silent and that his actions were open to multiple interpretations. The defendant possessed at least nоrmal communication skills and could have said that he did not want to talk to the officer. Instead of refusing to answer questions, he asked to talk with Officer Sorensen.
Under the totality of the circumstances test, there is no reason to believe the defendant revoked his prior waiver or that the statement was not voluntarily made.
Johnson
v.
Zerbst,
The defendant here had been arrested several times previously and had been through the Miranda procedures prior *496 to his questioning in this case. On one prior occasion he refused to waive his Miranda rights and told the police he did not want to talk to them. At another time he agreed to make a statement and sat in a position similar to the one in question. It was his normal sitting position. At this interrogation it is more likely that he was silent in order to discover what the police found out from Benita and what kind of a deal he could make. When he did speak, he сhose to talk with Sorensen, an officer with whom he had previously discussed the case and a man he had known from prior encounters with the law.
The technique of interrogation used here was not threatening, coercive, or promising. Officer Peschong used what is called an “alibi” approach, in which the officer suggests that the killing might hаve been an accident. This “sympathetic” approach does not amount to coercion. See
Miller
v.
Fenton,
The defendant next challenges the composition of the jury at trial. He clаims there was a systematic exclusion of persons between the ages of 19 and 34 sufficient to deny him his right to a fair jury trial. The defendant failed to prove such a systematic exclusion. This assignment of error is without sufficient support on the record.
The U.S. Supreme Court in
Duren v. Missouri,
In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Id. at 364.
*497
To show the group is distinct the defendant must show that (1) the group is limited by some factor, such as race or age, (2) the group has a basic similarity in attitudes, ideas, or experience, and (3) there is a community of interest among members of the group requiring representation in the jury selection process.
Willis v. Zant,
Here, the defendant failed to show any similarity between the members of the group in question other than age. Even the defendant’s expert witnesses testified that within this agе group there can be wide differences in attitudes, income, and interests. Age by itself is insufficient to establish a group as distinctive. “[T]here is no cognizable ‘magic’ about a group whose sole identifiable characteristic is that each member is in the age range of 18-34.”
United States
v.
Potter,
Secondly, there was insufficient proof to establish that this group wаs not fairly represented in the jury venires. The defendant relied solely on the results of the 1980 census for his contention that 49 percent of the eligible jury population in Lancaster County was between 19 and 34.
A U.S. census report does not provide an accurate accounting of the number of residents in a given county. See,
State
v.
Davis,
The degree of underrepresentation on a jury panel cannot be measured by census data alone. Without more, the defendant has failed to establish a clear case of unfair representation.
Finally, the defendant failed to show a systematic exclusion of 19- to 34-year-olds in the jury selection process. Essentiаlly, he is challenging the validity of using voter registration key numbers as the basis for jury selection.
*498
He argues that the situation is analogous to
Taylor
v.
Louisiana,
However, the situations are distinguishable. As pointed out by this court in
State
v.
Addison,
The Nebraska statute does not authorize the exclusion of any class from the jury list; the only exclusion is of persons found individually not to have the qualifications of jurors, and the jury commissioner is required to record all names so stricken, such list being subject to inspection by the court and by the attorneys of record. § 25-1629, R.R.S. 1943. The Nebraska system is clearly outside the ambit of Taylor v. Louisiana, supra.
See, also,
State v. Wounded Arrow,
Defendant next challenges the constitutionality of Nebraska’s felony murder law, Neb. Rev. Stat. § 28-303 (Reissue 1979), as allowing disproportionately harsh sentences of death or life imprisonment to be imposed upon a defendant who did not kill or have the intent to kill.
This court’s opinion in
State
v.
Bradley,
Felony murder is not on the same footing with other forms of first degree murder. Willfulness, deliberation, and
*499
premeditation are irrelevant сonsiderations. “ ‘In [felony murder] it is the particular
actus reus,
the . . . means of the murder, which we have singled out for our gravest criminal sanction and not a particular
mens rea.
. . .’ ”
Id.
at 885,
The defendant admitted he intended to rob Eno and that he and Walter Bradford joined in a concerted effort to rob Eno. They jointly assaulted Eno and, together, drove him to a rural arеa where he was brutalized before being killed. The defendant watched Walter stab Eno and then returned to Lincoln with Walter in Eno’s car. The defendant then tried to conceal the crime.
In the present case the defendant carried out the robbery with the help of Walter Bradford. It is this actus reus which is punished by felony murder. Life imprisonment was not a harsh sentence for a robbery which culminated in a brutal murder. The felony murder law is not unconstitutional on this basis.
Finally, the defendant challenges the trial court’s refusal to instruct the jury on duress as a defense, and the giving of instruction No. 10 as to the elements of felony murder.
The trial court did not err in refusing to instruct as to duress. As established in
State v. Fuller,
The defendant claims instruсtion No. 10 was erroneous in that it did not require there be a causal connection between the robbery and murder for felony murder to occur.
Instruction No. 10 provided:
A defendant who is engaged in the perpetration of a robbery or attempted robbery who has knowledge that another has actively joined in such defendant’s criminal enterprise and who continues to participate in the robbery or attempted robbery in any degree cannot escape responsibility for a homicide which occurs during the course of the robbery or attempted robbery because as a result either of fear or even of a better motive he concludes to desist from furthеr participation or flee prior to the consummation of the robbery or attempted robbery.
*500 The defendant claims instruction No. 10 did not clearly require that the murder had occurred within the res gestae of the crime.
Jury instructions must be read as a whole. If they fairly present the law so that the jury could not be misled, there is no prejudiсial error.
Kresha
v.
Kresha,
Instruction No. 10 as written was sufficient to establish that the murder must flow from the course of the robbery. Any concern that it did not adequately express that the murder must occur during the res gestae of the robbery is dispelled by instruction No. 12, which provided in part:
You are instructed that in order to establish that a homicide was committed in the pеrpetration of or attempt to perpetrate a robbery it is not necessary for the State to prove that the homicide was committed before or during the actual perpetration of or attempted perpetration of a robbery; a homicide is committed in the perpetration of or attemрt to perpetrate a robbery if it is committed in the res gestae of the perpetration of or attempted perpetration of a robbery; that is, if the initial crime of perpetration or of attempt to perpetrate a robbery and the homicide were closely connected in point of time, place and causal relation, and were parts of one continuous transaction.
(Emphasis supplied.)
When read together, the instructions given fairly stated the elements of felony murder.
There being no error, the judgment is affirmed.
Affirmed.