Carroll v. State , 2016 NV 23 ( 2016 )

132 Nev., Advance Opinion 2.3
IN THE SUPREME COURT OF THE STATE OF NEVADA
DEANGELO R. CARROLL, No. 64757
Appellant,
vs.
FILED
THE STATE OF NEVADA, APR 0 7 2016
Respondent.
T1 E K. LINDEMAN
m RT
BY
C IE D
•1
Appeal from an amended judgment of conviction for co iracy
to commit murder and first-degree murder with a deadly weapon. Eighth
Judicial District Court, Clark County; Valerie Adair, Judge.
Affirmed.
Mario D. Valencia, Henderson,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Marc P. DiGiacomo and Jonathan E. VanBoskerck,
Chief Deputy District Attorneys, Clark County,
for Respondent.
BEFORE PARRAGUIRRE, C.J., DOUGLAS, AND CHERRY, JJ.
OPINION
By the Court, CHERRY, J.:
In this opinion, we focus on whether the district court erred
when it admitted Deangelo Carroll's inculpatory statements to the police.
Carroll was not advised of his rights pursuant to Miranda V. Arizona, 384
U.S. 436 (1966), and he claims he was subject to a custodial interrogation.
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The State of Nevada claims that Miranda warnings were not necessary
because Carroll spoke with the police voluntarily. We conclude that the
district court erred in denying Carroll's motion to suppress his statements
to police because police subjected Carroll to a custodial interrogation
without advising him of his Miranda rights. Nonetheless, we conclude
that the error was harmless beyond a reasonable doubt, so we decline to
reverse these convictions.
FACTS AND PROCEDURAL HISTORY
On May 19, 2005, police discovered Timothy J. Hadland's body
on Northshore Road near Lake Mead. Along with Hadland's body, police
found advertisements for the Palomino Club. Hadland was fired from his
job at the Palomino Club a week before his death. Palomino Club
management recruited Carroll to "knock[] off" Hadland because Hadland
was spreading negative rumors about the club.
Carroll was also an employee at the Palomino Club. Carroll
used the club's van to promote the club by handing out flyers to cab
drivers and tourists. On the night of Hadland's murder, Carroll drove the
club's van with two other men, Rontae Zone and Jayson Taoipu, who
occasionally assisted him. Carroll recruited Kenneth Counts for this
assignment because Carroll knew Counts would "take care of' someone for
money.
Carroll, Zone, Taoipu, and Counts went to an area near Lake
Mead, and Carroll called Hadland. When Hadland noticed the Palomino
Club's van, Hadland parked his car in front of the van and walked to the
driver's side window where Carroll was sitting. As Hadland and Carroll
talked, Counts exited the van through the side door, snuck around to the
front, and fired two shots into Hadland's head. Counts then jumped back
into the van and ordered Carroll to return to town.
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Carroll drove directly to the Palomino Club and told club
management what occurred. Louis Hidalgo, Jr., the general manager of
the club, directed other employees to give Carroll $6,000 in cash to pay
Counts. Carroll gave the money to Counts, who then left in a cab. The
next morning, at Hidalgo's direction, Carroll bought new tires for the van
and disposed of the old tires at two separate locations.
The evening after Hadland's murder, homicide detectives
contacted Carroll at the Palomino Club, as Carroll's phone number was
the last phone number on Hadland's phone. When the detectives asked to
speak with Carroll, he agreed, and the detectives drove Carroll to the
homicide office for questioning. Carroll sat in a small room at a table with
his back to the wall, while the detectives sat between him and the exit.
The detectives did not give Carroll Miranda warnings before questioning
him, but they informed Carroll that he was speaking with them
voluntarily. Eventually, Carroll implicated himself, Palomino Club
management, and Counts in Hadland's murder.
Carroll then volunteered to wear a recording device to
corroborate his story by speaking with the Palomino Club management.
The detectives strategized with Carroll before he spoke with the
management each time. The information on these recordings allowed the
State to charge three members of Palomino Club management for their
roles in Hadland's murder.
After the detectives finished obtaining information and
evidence from Carroll, they arrested him. The State's information charged
Carroll with conspiracy to commit murder and murder with use of a
deadly weapon.
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After seven days of trial, the jury returned a guilty verdict on
all charges. The jury subsequently returned its penalty verdict and
recommended a sentence of life with the possibility of parole. The district
court ultimately sentenced Carroll to 36-120 months on the conspiracy
conviction, life with the possibility of parole after 20 years for the first-
degree murder conviction, and life with the possibility of parole after 20
years, consecutive, for the deadly weapon enhancement.
DISCUSSION
On appeal, Carroll argues that: (1) the wire recordings should
not have been admitted against him at trial because they were not
relevant, were prejudicial, consisted of inadmissible hearsay, and violated
his right against self-incrimination; (2) the district court erred when it
admitted his statements to the detectives because the detectives violated
Miranda and coerced his statement; (3) there was insufficient evidence to
support the convictions for conspiracy to commit murder, first-degree
murder, and the deadly weapon enhancement; and (4) cumulative error
warrants reversal.
Wire recordings
Whether the relevance of the recordings was substantially outweighed
by unfair prejudice
Carroll argues that the district court abused its discretion by
admitting wire tape recordings because they were not relevant to his guilt
or innocence and were unfairly prejudicial.' He explains he was playing a
'The State's argument that because Carroll referenced the
recordings in his closing argument, he cannot attack their relevance now
is unpersuasive. No defendant should be expected to ignore damning
evidence against him even if he disagrees with its admissibility.
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role fed to him by detectives, so a juror could not discern which statements
Carroll fabricated and which statements the detectives fed him.
Carroll did not object based on relevance or prejudice; thus,
this court reviews for plain error. Baltazar-Monterrosa v. State, 122 Nev.
606, 614, 137 P.3d 1137, 1142 (2006). Under the plain error standard, this
court only reverses a decision if the error affects the appellant's
substantial rights. Rimer v. State, 131 Nev., Adv. Op. 36, 351 P.3d 697,
715 (2015).
Evidence is relevant if it has "any tendency to make the
existence of any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence." NRS
48.015. Evidence that is not relevant is simply inadmissible. NRS 48.025.
Even if relevant, evidence "is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of
the issues or of misleading the jury." NRS 48.035.
Here, Carroll's argument that the recordings were not
relevant is without merit. Even under Carroll's account of the facts, the
purpose of the recordings was to get the managers of the Palomino Club to
corroborate Carroll's claim that he was supposed to beat up Hadland, not
kill him. If the recordings accomplished exactly what Carroll wanted, they
would have made it less probable that Carroll intended for Hadland to die.
Unfortunately for Carroll, there was evidence on the tapes to support both
his position that this was never meant to be a killing, and the State's
position, that it was.
Carroll's argument that the tapes' probative value was
substantially outweighed by their unfairly prejudicial effect also fails. The
central issue of this case was Carroll's intent before and during the
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shooting. Any evidence allowing the jurors to ascertain his intent is
extremely probative. Further, the jury heard the proper context for
Carroll's statements—that the tapes were made as part of the
investigation, Carroll wore the wire to get incriminating information from
the other players, and his statements were fabrications. Because the
probative value was great, and the danger of unfair prejudice or confusion
was mostly, if not completely, explained away, we conclude that the
district court did not commit plain error when it admitted the tapes.
Because Carroll is unable to demonstrate plain error, we
conclude that the district court did not plainly err when it admitted the
recordings at trial. We so conclude because relevancy is a very broad
standard and the tapes could prove Carroll's intent. Also, because
Carroll's intent was the primary issue at trial, the probative value is not
substantially outweighed by the unfairly prejudicial effect.
Whether Carroll's statements were inadmissible hearsay
Carroll argues his statements on the recordings were not his
own but those of a state actor. He further argues that it would be absurd
for the police to feed a person lines, then use those lines against that
person at trial. The issue before us is whether the wire recordings were
inadmissible hearsay.
Carroll did not object at trial based on hearsay, thus, this
court reviews only for plain error. Baltazar-Monterrosa, 122 Nev. at 614,
137 P.3d at 1142.
Hearsay is any out-of-court statement offered to prove the
truth of the matter asserted. NRS 51.035. Hearsay is generally
inadmissible, unless there is a statutory exception. NRS 51.065(1). A
party's own statement offered against that party is not hearsay. NRS
51.035(3)(a). Also, a party's statement offered to provide context to
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another person's statement, rather than for its own truth, is not hearsay.
Wade v. State, 114 Nev. 914, 917-18, 966 P.2d 160, 162-63 (1998), opinion
modified on denial of reh'g, 115 Nev. 290, 986 P.2d 438 (1999).
Carroll's argument that his statements were inadmissible
hearsay is not supported by the evidence. The State offered the
statements to provide context to those of the Palomino Club managers.
Further, had the State offered Carroll's statements for their truth, they
would still be admissible as statements of a party pursuant to NRS
51.035(3)(a). Carroll claims the detectives told him what to say, but the
evidence at his trial showed the detectives simply assisted with general
subject matter; Carroll decided what to say and how to say it. Carroll's
recording device could not transmit live audio, so the detectives could not
communicate with Carroll while he recorded. Accordingly, we conclude
that the wire recordings were admissible because there is no evidence
before this court at this time indicating the police directly instructed
Carroll what to say. We also conclude that the recordings were admissible
because Carroll's statements were not offered to prove their truth.
Whether the statements of the managers of the Palomino Club were
made in furtherance of the conspiracy
Carroll argues the statements of the Palomino Club's
managers on the wire recordings were not admissible because the
statements were not made in furtherance of the conspiracy. Carroll
further claims that because he withdrew from the conspiracy by acting as
the State's agent, the statements were not made by coconspirators and
were inadmissible.
A statement made by a member of a conspiracy, made during
the course of and in furtherance of the conspiracy and offered against
another member of the conspiracy, is not hearsay. NRS 51.035(3)(e).
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Furtherance of the conspiracy is not limited to the commission of the
crime; it also applies to attempts to avoid detection. Holmes v. State, 129
Nev., Adv. Op. 59, 306 P.3d 415, 422 (2013). At the time the statement is
made, the defendant need not be a member of the conspiracy. See
McDowell v. State, 103 Nev. 527, 529-30, 746 P.2d 149, 150 (1987) (stating
that NRS 51.035(3)(e) requires "that the co-conspirator who uttered the
statement be a member of the conspiracy at the time the statement was
made." The statute "does not require the co-conspirator against whom the
statement is offered to have been a member at the time the statement was
made."); see also United States v. Patel, 879 F.2d 292, 294 (7th Cir. 1989)
(holding "that for withdrawal to limit a conspirator's liability and his
exposure to statements by co-conspirators, mere cessation of activity is not
enough [1:" the defendant must take affirmative steps by "either the
making of a clean breast to the authorities, or communication of the
abandonment in a manner calculated to reach co-conspirators" (internal
quotations and citations omitted)).
While avoiding detection and arrest are in furtherance of a
conspiracy, the conspiracy does not continue endlessly. State v. Davis, 528
P.2d 117, 119 (Or. Ct. App. 1974). This court has not identified a bright-
line test to determine when an act of concealment may be considered in
furtherance of a conspiracy. In Davis, however, the Oregon Court of
Appeals distinguished between:
(1) those affirmative acts of concealment directly
related to the substantive crime of a nature within
the contemplation of the conspirators, and
(2) those general acts of concealment, by silence or
by reaction to police activity, which occur after the
primary objectives of the conspiracy have been
achieved and the acts directly in furtherance of
those objectives have been performed.
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Id. In considering this distinction, the Oregon court determined that
disposing of evidence was still in furtherance of the conspiracy, but
concealing evidence upon arrest was less definitive. Id.
Here, Carroll's argument that he was no longer a
coconspirator is without merit. This court has ruled that the defendant
need not be a member of the conspiracy at the time the statement was
made, so long as the declarant was part of the conspiracy when the
statement was made and the defendant was a part of the same conspiracy
at some point. See McDowell, 103 Nev. at 529-30, 746 P.2d at 150.
Although Carroll was assisting the police at the time of the wire recording,
the Palomino Club managers believed they were still trying to avoid
detection. Therefore, the district court did not err when it determined the
managers were Carroll's coconspirators pursuant to NRS 51.035(3)(e).
Moreover, Carroll did not make his withdrawal known to his
coconspirators. Lastly, we cannot conclude that he truly made a "clean
breast" to authorities because he told multiple stories to the detectives in
order to minimize his culpability. See Patel, 879 F.2d at 294.
Carroll's argument that the statements were not made in
furtherance of the conspiracy is likewise unsuccessful. Carroll cited Davis,
but the Oregon Court of Appeals did not decide whether post-arrest
statements were in furtherance of the conspiracy; thus, Davis does not
help Carroll here. Davis, 528 P.2d at 119. Here, the managers made their
statements prior to arrest. We conclude that these statements were
admissible because even if Carroll had withdrawn from the conspiracy, the
other members had not. Thus, the managers' statements were in
furtherance of the conspiracy.
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Whether the club managers' statements violated Carroll's right
against self-incrimination
Carroll argues the admission of the managers' statements
violated his right against self-incrimination because he had to choose
between forfeiting his right to explain the statements or his right to not
testify. Carroll concludes this violated his substantial rights because the
State referenced his fabricated statements as proof that he intended to kill
Hadland rather than to orchestrate a battery. We conclude Carroll's
constitutional rights were not violated because these statements did not
force him to testify and both parties provided the proper context to the
statements.
When the district court admitted the wire recordings, Carroll
did not object based on his right against self-incrimination. Although
Carroll did not preserve the self-incrimination issue for appeal, because it
is a constitutional issue, we may address it. See McCullough v. State, 99
Nev. 72, 74, 657 P.2d 1157, 1158 (1983).
Both the United States and Nevada Constitutions protect a
defendant in a criminal action from being compelled to testify against
himself. U.S. Const amend. V, § 3; Nev. Const. art. 1, § 8.
Carroll complains that the admission of the wire recordings
put him between the proverbial rock and a hard place in deciding whether
to testify. However, the same may be said about essentially every
incriminating piece of evidence the State offers in any criminal
prosecution. Facing such a difficult decision to testify does not violate a
defendant's constitutional rights. See Dzul v. State, 118 Nev. 681, 693, 56
P.3d 875, 883 (2002) ("[T]he Fifth Amendment does not insulate a
defendant from all difficult choices that are presented during the course of
criminal proceedings . . ." (internal quotations omitted)). Because Carroll
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did not testify and was still able to put the recordings in the proper
context, he fails to demonstrate that his constitutional right against self-
incrimination was violated. Therefore, we conclude that the district court
did not abuse its discretion when it admitted Carroll's or his
coconspirators' statements from the wire recordings. See McCullough, 99
Nev. at 74, 657 P.2d at 1158; Chavez v. State, 125 Nev. 328, 339, 213 P.3d
476, 484 (2009) ("We generally review a district court's evidentiary rulings
for an abuse of discretion.").
Police interrogation
Whether police coerced Carroll's statement
Carroll asserts the police coerced his statement by promising
him leniency if he implicated himself in Hadland's murder. The question
for our consideration is whether the police promised Carroll leniency when
they promised to take him home and, if so, whether this promise coerced
his statement.
"[T]he totality of the circumstances' is the primary
consideration for determining voluntariness. Blackburn v. Alabama. 361
U.S. 199, 206 (1960) (quoting Fikes v. Alabama, 352 U.S. 191, 197 (1957)).
This court has held that "[t]he question in each case is whether the
defendant's will was overborne when he confessed." Passama v. State, 103
Nev. 212, 214, 735 P.2d 321, 323 (1987). The trial court should consider
factors such as: "the youth of the accused; his lack of education or his low
intelligence; the lack of any advice of constitutional rights; the length of
detention; the repeated and prolonged nature of questioning; and the use
of physical punishment such as the deprivation of food or sleep." Id.
Trial courts should also consider police deception in evaluating
the voluntariness of a confession. Sheriff, Washoe Cty. v. Bessey, 112 Nev.
322, 325, 914 P.2d 618, 619 (1996). Deception by police does not
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automatically render a confession involuntary. Id. at 325, 914 P.2d at 620.
Police subterfuge is permissible if "the methods used are not of a type
reasonably likely to procure an untrue statement." Id.
In looking at the totality of the circumstances based on the
Passama factors, we conclude that the police did not coerce Carroll's
statement. Police did not take advantage of Carroll through his youth, a
lengthy detention, repeated and prolonged questioning, or physical
punishment. Thus, these factors weigh in the State's favor. As previously
discussed, the police did not advise Carroll of his Miranda rights, which
weighs in Carroll's favor. Evidence at trial revealed Carroll has below-
average intelligence, but a detective testified that during the
interrogation, he did not observe any indicators that Carroll was
cognitively disabled. Therefore, this factor does not weigh for or against
the State. Accordingly, the Passama factors do not show police overcame
Carroll's will when they interrogated him.
The use of falsehoods during the interrogation also does not
show police overcame Carroll's will. Carroll complains the police promised
him leniency and that he would not go to jail. However, the record does
not indicate any such promises. The police promised Carroll they would
take him home at the conclusion of the interview, which they did. The
police also promised Carroll they would attempt to prove his version of
events was true, which they did by making the recordings with Carroll's
coconspirators. While Carroll may have misunderstood the detectives'
statements as a promise of leniency, the promise of taking Carroll home at
the end of the interrogation and trying to prove his story were not
impermissible falsehoods that would render Carroll's statements
involuntary and entitle him to a new trial. See id. Accordingly, we
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conclude that the detectives' promises to take Carroll home did not
constitute a promise of leniency and did not coerce his statement.
Whether Carroll was in custody for Miranda purposes
Carroll also claims that police violated his Miranda rights.
The question presented is whether Carroll was in custody for purposes of
Miranda and, if so, whether he properly received Miranda warnings.
"[Al trial court's custody and voluntariness determinations
present mixed questions of law and fact subject to this court's de novo
review." Rosky v. State, 121 Nev. 184, 190, 111 P.3d 690, 694 (2005). This
court explained the manner in which it reviews these decisions:
The proper inquiry requires a two-step
analysis. The district court's purely historical
factual findings pertaining to the "scene- and
action-setting" circumstances surrounding an
interrogation [are] entitled to deference and will
be reviewed for clear error. However, the district
court's ultimate determination of whether a
person was in custody and whether a statement
was voluntary will be reviewed de novo. . .
For this standard of review to function
properly, "trial courts must exercise their
responsibility to make factual findings when
ruling on motions to suppress."
Id. at 190-91, 111 P.3d at 694-95 (quoting In re G.O., 727 N.E.2d 1003, 1010
(Ill. 2000)). "[W]here the trial court's determination that a defendant was
not improperly induced to make the statement [to police] is supported by
substantial evidence, . . . such a finding will not be disturbed on appeal."
Barren v. State, 99 Nev. 661, 664, 669 P.2d 725, 727 (1983).
Initially, we take issue with the district court's failure to issue
an order containing findings of fact and conclusions of law. See Rosky, 121
Nev. at 191, 111 P.3d at 695 (explaining that "trial courts must exercise
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their responsibility to make factual findings when ruling on motions to
suppress" (internal quotations omitted)). In the instant case, the district
court denied Carroll's pretrial motion without making factual findings or
conclusions of law. We again remind the district courts of their duty to
enter a proper order with factual findings and legal conclusions when
ruling on motions to suppress in order to facilitate appellate review. The
trial court did not make any "factual findings pertaining to the 'scene- and
action-setting' circumstances surrounding [the] interrogation," see id. at
190, 111 P.3d at 694, so we cannot give deference to any such findings.
Miranda warnings are "required when a suspect is subjected
to a custodial interrogation." Archanian v. State, 122 Nev. 1019, 1038, 145
P.3d 1008, 1021 (2006). A defendant's statements made during a custodial
interrogation may be admitted at trial only if Miranda rights were
administered and validly waived. Koger v. State, 117 Nev. 138, 141, 17
P.3d 428, 430 (2001). A defendant is "in custody" under Miranda if he or
she has been formally arrested or his or her freedom has been restrained
to "the degree associated with a formal arrest so that a reasonable person
would not feel free to leave." State v. Taylor, 114 Nev. 1071, 1082, 968
P.2d 315, 323 (1998). Custody is determined by the totality of the
circumstances, "including the site of the interrogation, whether the
objective indicia of an arrest are present, and the length and form of
questioning." Id. at 1081-82, 968 P.2d at 323. An individual is not in
custody for Miranda purposes if the police are merely asking questions at
the scene of the crime or where an individual questioned is merely the
focus of a criminal investigation. Id. at 1082, 968 P.2d at 323 (internal
citations omitted).
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Site of the interrogation
First, the site of the interrogation indicates Carroll was in
police custody when he gave his statement. A detective testified that
although Carroll drove himself to the Palomino Club, the police drove
Carroll in an official police vehicle to the homicide office to conduct the
nterrogation. The detective admitted they could have questioned Carroll
at the Palomino Club where they found him, or at Carroll's residence,
which was a short walk from the club, and still have been able to make an
audio recording of the questioning. However, the detective stated the
homicide office is a "more intimidating place to question a witness." The
detective also testified that the interrogation room was small and had only
one door. He explained that Carroll sat behind a desk with his back
toward the wall furthest from the door. The detective also explained that
he and another detective sat on the other side of the desk, closest to the
door.
This environment suggests that Carroll was in custody. Police
drove him to the homicide office for questioning, so Carroll could not
terminate the interrogation or leave the homicide office unless the
detectives agreed and gave him a ride home. Moreover, the detectives
deliberately intimidated Carroll by taking him to the homicide office
instead of questioning him at a more convenient location.
Additionally, the arrangement of the room suggests Carroll
was in custody. By seating Carroll in a very small room, the furthest from
the door, and putting a desk and two police detectives between him and
the exit, Carroll was physically precluded from leaving the room unless
the detectives stood, moved, and allowed him to leave. Accordingly, the
site of the interrogation suggests Carroll was in custody at the time of the
interrogation.
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This case is distinguishable from Silva v. State, 113 Nev. 1365,
951 P.2d 591 (1997). In Silva, we relied upon California v. Beheler, 463
U.S. 1121, 1125 (1983), and concluded that questioning the suspect at a
police station "does not automatically mean that he was in custody."
Silva, 113 Nev. at 1370, 951 P.2d at 594. "Silva was questioned for
approximately one to two hours and was allowed to speak with his sister
when he requested." Id. at 1369, 951 P.2d at 594. We also noted that the
record did not show that police withheld food or drink from Silva and that
the police did not promise him anything. Id. Based on the totality of the
circumstances, we concluded that the site of the interrogation did not
create a custodial interrogation. Id. at 1370, 951 P.2d at 594.
Here, however, the circumstances are different. Police did not
allow Carroll to use his telephone when he said he needed to make a call
so he could confirm that he did not kill Hadland, and police actually took
Carroll's telephone away from him. Police also told Carroll to "sit tight"
and did not take him home when he said that he wanted to go home. The
detectives also promised Carroll that they would confirm his claim that he
did not murder Hadland and was acting under the direction of the
Palomino Club management. Thus, we cannot reach the same conclusion
we reached in Silva.
Objective indicia of arrest
Objective indicia of arrest comprise the following:
(1) whether the suspect was told that the
questioning was voluntary or that he was free to
leave; (2) whether the suspect was not formally
under arrest; (3) whether the suspect could move
about freely during questioning; (4) whether the
suspect voluntarily responded to questions;
(5) whether the atmosphere of questioning was
police-dominated; (6) whether the police used
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strong-arm tactics or deception during
questioning; and (7) whether the police arrested
the suspect at the termination of questioning.
Taylor, 114 Nev. 1071, 1082 n.1, 968 P.2d 315, 323 n.1.
First, although the detectives testified that Carroll was not
under arrest when they interrogated him and that Carroll was not
handcuffed or in any way restrained, the objective indicia of arrest
likewise indicate Carroll was in police custody when he gave his
statement. The interrogating detectives did not tell Carroll he was free to
leave. At the beginning of the interrogation, a detective informed Carroll
he was not under arrest "right now" and noted that Carroll was speaking
with him and another detective voluntarily. However, the record does not
reflect that police informed Carroll he could refuse to speak with them or
terminate the interrogation at any time if he wished. Police did not
provide Carroll with Miranda warnings until the interrogation was two-
thirds finished and he implicated himself in Hadland's murder.
Additionally, Carroll repeatedly informed the detectives that he wanted to
go home before making implicating statements, but the detectives ignored
his requests. Thus, this factor weighs in Carroll's favor.
Second, as previously indicated, police informed Carroll he
was not under formal arrest when he was questioned. Thus, this factor
weighs in the State's favor.
Third, as also indicated previously, the record shows the
interrogation room was very small and likely prevented Carroll from
moving freely when he was questioned. The room was arranged with one
small table and three chairs. Also, there was only one door, and the
detectives seated Carroll furthest from the door. He also could not leave
the room without asking the detectives to move and allow him to leave.
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Additionally, detectives did not let Carroll outside the interrogation room;
they instructed him to "sit tight." Thus, Carroll could not move about
freely during questioning and this factor weighs in Carroll's favor.
Fourth, the transcript of Carroll's statement to police shows
Carroll voluntarily responded to the detectives' questions, although he did
not respond honestly until the detectives promised to protect him and take
him home after the interrogation. Nevertheless, Carroll repeatedly voiced
his apprehension in speaking candidly to the detectives. When a detective
accused Carroll of not being honest with them, Carroll told the detective
he did not want to get into trouble because he had a child at home. When
another detective told Carroll they knew he was not telling them the
whole story, Carroll told them he feared for his life and feared he could go
to jail. Carroll also repeatedly asked if he would be allowed to go home
and repeatedly said he wanted to go home, but detectives did not
terminate the interview and take Carroll home. Thus, this factor weighs
in Carroll's favor.
Fifth, the detectives dominated the atmosphere when they
interrogated Carroll. Two detectives questioned Carroll throughout the
interrogation; not one of the three questioning detectives ever spoke with
Carroll alone. Additionally, when Carroll asked the detectives if he could
make a telephone call to confirm his story, the detectives refused and took
Carroll's phone from him. Similarly, the detectives transported Carroll to
the homicide office, and they did not take him home when he expressed a
desire to go home. Thus, this factor clearly and overwhelmingly weighs in
Carroll's favor.
Sixth, a detective deceived Carroll when he claimed police
obtained Carroll's cellular phone records indicating Carroll was near the
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scene of the crime when it occurred. The detectives did not tell Carroll
any other blatant lies to secure his statement. Strong-arm tactics,
however, are evident throughout the interrogation. The detectives
transported Carroll from his place of employment to the homicide office,
instead of a more convenient or more comfortable location, questioned him
in a small room, and took his phone from him. These tactics indicated
custody.
The detectives also used the tactic of promising Carroll that
they would take him home after the interrogation and prove his story
about how Hadland was killed if he told them the truth. This tactic was
successful. Prior to making this promise, Carroll did not incriminate
himself in Hadland's murder. After the detective made this promise to
Carroll, Carroll implicated himself in the murder. And detectives testified
that the last detective to question Carroll intentionally used threatening
interrogation techniques. Thus, this factor weighs in Carroll's favor.
Last, a detective testified that at the end of the interrogation,
the detectives took Carroll home—he was not arrested at that time. Thus,
this factor weighs in favor of the State.
In sum, only two of seven factors weigh in the State's favor,
one factor does not weigh for or against the State, and four of the factors
weigh in Carroll's favor. Accordingly, objective indicia of arrest suggest
Carroll was in custody at the time of the interrogation.
Length and form of questioning
At 9:25 p.m., detectives questioned Carroll for approximately
two and one-half hours, excluding breaks. The detectives met Carroll at
the Palomino Club and took him from his place of employment and
questioned him until almost midnight. Furthermore, a detective testified
that one purpose of the breaks was to let Carroll "kind of go a little bit
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crazy." Moreover, a third detective joined the original two because the
third detective was more aggressive than the first two detectives. Such a
scenario belies the detective's trial testimony that they questioned Carroll
as a witness, not a suspect. Had detectives truly questioned Carroll as a
witness, they likely would have done so at a more convenient, less
intimidating location, such as at the Palomino Club where they contacted
him, or at his home, which was near the club, rather than the police
station across town. And if the police had simply questioned Carroll as a
witness and not as a suspect, thefl detectives would likely not have taken
breaks to let Carroll's mind "go crazy" or found a need to use a third, more
aggressive detective. Therefore, the length and form of questioning
suggest Carroll was in custody at the time of the interrogation.
The detectives chose not to provide Miranda warnings until
the last of the three detectives began questioning Carroll, which was after
he had already made inculpatory statements. Although Carroll was not
formally under arrest, he was in custody and should have received
Miranda warnings. See Archanian. 122 Nev. at 1038, 145 P.3d at 1021-
22. We therefore conclude that the district court erred by not suppressing
Carroll's statements.
Post-Miranda statements
We additionally conclude that Carroll's statement to police
after he received the Miranda warnings should have been suppressed
pursuant to the Supreme Court's holding in Missouri v. Seibert, 542 U.S.
600, 611-12 (2004). In Seibert, like here, police delayed recitation of the
Miranda warnings until the defendantS confessed to the crime. Id. at 604-
05. After the defendant confessed, police provided the requisite warnings
and obtained a signed waiver of rights. Id. at 605. Police then re-
questioned the defendant using the admissions she made before receiving
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the warnings. Id. The Court determined the midstream warnings "could
[not] have served their purpose" and ruled the post-warning statements
were inadmissible. Id. at 617. The Court explained the consideration a
reviewing court must undertake in determining if post-warning
statements are admissible:
The threshold issue when interrogators question
first and warn later is thus whether it would be
reasonable to find that in these circumstances the
warnings could function "effectively" as Miranda
requires. Could the warnings effectively advise
the suspect that he had a real choice about giving
an admissible statement at that juncture? Could
they reasonably convey that he could choose to
stop talking even if he had talked earlier? For
unless the warnings could place a suspect who has
just been interrogated in a position to make such
an informed choice, there is no practical
justification for accepting the formal warnings as
compliance with Miranda, or for treating the
second stage of interrogation as distinct from the
first, unwarned and inadmissible segment.
Id. at 611-12.
The instant case is indistinguishable from Seibert. We
conclude that the midstream warnings did not properly advise Carroll that
he could terminate the interrogation despite his previous inculpatory
statements. Carroll.' s post-warning statements were simply a repetition of
his pre-warning statements. The detectives told him that they would take
him home and that he would not go to jail if he told them the whole truth.
Although police recited the Miranda warnings, Carroll was just as
dependent upon police to take him home and just as fearful he would go to
jail after he received the warnings as he was before. Despite the short
break in questioning, Carroll was subjected to a single, continuous course
of questioning during which the detectives chose to withhold the Miranda
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warnings. Therefore, the district court should have suppressed Carroll's
post-Miranda statement to police.
However, we conclude that although the district court erred in
admitting Carroll's statement into evidence at trial, the State has shown
that the error was harmless. See Boehm v. State, 113 Nev. 910, 916, 944
P.2d 269, 273 (1997) (applying harmless error analysis to a statement
admitted at trial in violation of Miranda). Aside from Carroll's
inculpatory statements to the police, the district court properly admitted
other powerful evidence of his guilt. Thus, our review of the record
convinces us that this error is harmless beyond a reasonable doubt.
Sufficiency of the evidence
We have reviewed Carroll's argument that the State did not
present sufficient evidence to convict him of conspiracy or murder because
the State failed to show he intended for Counts to kill Hadland. We
conclude that this argument is without merit. The evidence at trial
supported a finding that Carroll knew the order was to kill Hadland and
that Carroll recruited Counts so he did not have to kill Hadland himself.
This is sufficient to convict on both charges. See Doyle v. State, 112 Nev.
879, 894, 921 P.2d 901, 911 (1996) ("A person who knowingly does any act
to further the object of a conspiracy, or otherwise participates therein, is
criminally liable as a conspirator."), overruled on other grounds by
Kaczmarek v. State, 120 Nev. 314, 91 P.3d 16 (2004).
Cumulative error
Lastly, Carroll argues that cumulative error denied him of a
fair trial, even if the specific errors, standing alone, are insufficient for a
new trial. We disagree. The sole error was the district court's denial of
Carroll's motion to suppress his statement to police because police violated
Miranda. We determined this error was harmless beyond a reasonable
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doubt, and one error cannot cumulate. See United States v. Sager, 227
F.3d 1138, 1149 (9th Cir. 2000) ("One error is not cumulative error.").
As we previously explained, the district court erred when it
admitted Carroll's statement to police because Carroll was in custody for
Miranda purposes and the police failed to provide Miranda warnings
before Carroll made inculpatory statements. However, based on the
overwhelming evidence establishing Carroll's involvement in Hadland's
murder, we conclude the district court's error in admitting Carroll's
statement was harmless beyond a reasonable doubt. Even without his
statements to police, the remaining evidence was sufficient to sustain his
convictions.
Accordingly, we affirm the judgment of the district court.
J.
We concur:
ce_<
Parraguirre
, J.
Douglas
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