James (Billy) v. State ( 2014 )

 exiting the front door and leaving the victim's property. Later that
afternoon the victim's daughter discovered the victim at his home sitting
in his recliner with a gunshot wound just behind his right ear. The victim
was left-handed and the trajectory of the bullet was down and to the left.
The absence of stippling indicated that the bullet was fired at least 12 to
16 inches away from the victim's head. During several recorded jail phone
calls James is heard discussing the circumstances surrounding the
shooting in which James claimed the shooting was an accident. According
to James' explanation during the recorded phone calls the victim was
acting "belligerent," called James crazy, accused James of siding against
him, and brandished a .25 or .38 caliber handgun. James claimed that he
tried to grab the gun out of the victim's hand and it went off. The victim's
daughter testified that the victim owned a shotgun and a revolver which
he usually kept in close proximity to him. A police officer testified that he
discovered a single .25 caliber cartridge casing near the body and that
revolvers do not automatically eject cartridge casings. James' cellmate
testified that James told him that the cartridge casing hit James in the
face after the gun fired. The victim was legally blind and walked with a
cane. During a recorded interview with detectives, James told them that
the victim accused him of turning against him, pointed a gun at him, the
gun went off, and he panicked and took off.
We conclude that a rational juror could infer from these
circumstances that James entered the victim's home with the intent to
commit a felony and willfully and maliciously shot the victim with
premeditation and deliberation. See NRS 200.010; 200.030; NRS 205.060.
"Mt is the jury's function, not that of the court, to assess the weight of the
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evidence and determine the credibility of witnesses." McNair, 108 Nev. at
56, 825 P.2d at 573. The verdict will not be disturbed on appeal, where, as
here, sufficient evidence supports James' convictions. Bolden v. State, 97
Nev. 71, 73, 624 P.2d 20, 20 (1981); see also Buchanan v. State, 119 Nev.
201, 217, 69 P.3d 694, 705 (2003) (circumstantial evidence alone may
sustain a conviction).
James also challenges a district court order denying his
motion to suppress the statements he made during his third interrogation.
In his motion to suppress three interrogations which occurred over the
course of 36 hours, James argued that his statements were involuntary,
detectives sought to minimize and downplay the significance of their
Miranda' warnings, he invoked his right to remain silent and his right to
an attorney, and detectives violated his rights by continuing to question
him after he invoked his Miranda rights.
At 2:20 a.m. on February 11, 2010, officers from the North Las
Vegas police department set off flash-bang devices outside of a residence
where James was sleeping and ordered the occupants to vacate the
building. James exited the building without shoes or socks. He was taken
into custody and immediately transported to the Detective Bureau for
interrogation. James had taken his antipsychotic medication a short time
earlier. The interrogation began at 3:35 a.m. with Detective Benjamin
Owens telling James, "I had to empty your pockets out temporarily.
Another procedure that I gotta do. . . just cause it's a rule I gotta read you
'Miranda v. Arizona, 384 U.S. 436 (1966).
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your rights. It's not a big deal okay? So we'll go ahead and get that out of
the way." During an evidentiary hearing detective Owens described this
as "an investigative technique to try to get them to waive their rights"
which he has used in the past. Detective Owens then read James his
Miranda rights and James signed an advice-of-rights form. Throughout
the course of the interrogation James repeatedly asked for water because
he was thirsty and shoes because his feet were cold. Detective Owens told
James he would take his request for water "into consideration." On page
70 of the interrogation transcript James states, "I'm not saying' nothing
else I'm not doing nothing else I'm gonna — I'm ready to go to jail come
take me down, I ain't never get my . . . shoes my feet getting cold. You
know I'm ready to go to jail then maybe I'll get some socks or somethin'
and I can go to sleep." The interrogation, however, did not cease. Instead,
a second detective, Jesus Prieto, entered the interrogation room and
Detective Owens left. James asked to be taken to jail at least ten more
times. A third detective, Paul Freeman, then entered the interrogation
room. On page 97 of the transcript James told Detective Freeman, "I ain't
saying nothing else. Take me to jail, file the charges, and I'll get a
lawyer." After this statement detectives ended the first interrogation at
6:13 a.m. While Detective Prieto transported James to jail for booking he
interrogated James a second time. Detective Prieto initiated the
conversation and no Miranda warnings were provided to James before the
interrogation began. James was interrogated for a third time the
following day by Detectives Owens and Freeman This time Detective
Owens told James, "I'm gonna go through the same spiel, you know, just'
cause I—like I said yesterday, we got—we got procedures and stuff. So I'm
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gonna advise you of your rights again." James acknowledged that he
understood his rights but this time refused to sign the advice-of-rights
form and asked for his shoes and medicine. The detectives then reminded
James of their previous conversations and asked James to explain what
happened at the victim's house again.
After a lengthy evidentiary hearing the district court
suppressed the first two interrogations because Detective Owens admitted
that he purposely used a "minimization technique" to downplay the
significance of the Miranda warnings during• the first interrogation and
did not re-advise James• of his Miranda rights during his second
interrogation. The district court did not suppress the statements made
during the third interrogation because it concluded that detectives did not
minimize the importance of James' Miranda rights at the start of the third
interrogation. The district court also concluded that James did not
unequivocally invoke his right to counsel because it was "unclear whether
[James] comment reference[d] his Fifth Amendment or Sixth Amendment
right to counsel." The district court did not decide whether James invoked
his right to silence when he told the detective on two separate occasions
"I'm not saying nothing else," or whether detectives scrupulously honored
James' request. See Michigan v. Mosley, 423 U.S. 96, 104 (1975) ("[T]he
admissibility of statements obtained after the person in custody has
decided to remain silent depends under Miranda on whether his right to
cut off questioning was scrupulously honored." (internal quotation marks
omitted)).
Despite the number of claims raised in James' motion to
suppress and the failure of the district court to address all of those claims
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in its order, on appeal, James only raises one claim with respect to the
district court's decision not to suppress his third interrogation. 2 He argues
that the Supreme Court's opinion in Missouri v. Seibert, 542 U.S. 600(2004), required the district court to suppress his third interrogation.
James analogizes the "minimization technique" utilized by Detective
Owens to the two-step interrogation technique addressed in Seibert.
Because the State does not argue that the district court erred by
concluding that the minimizing behavior of detectives during the first
interrogation of James required suppression, we assume for the purposes
of this appeal that the minimization technique utilized by Detective
Owens was of a constitutional dimension and rendered any Miranda
waiver invalid. While both techniques are similar in that they are
designed "to get a confession the suspect would not make if he understood
his rights at the outset," id. at 613, their differences here are dispositive.
The reason the second interrogation was suppressed in Seibert was
because the two-step interrogation technique was designed to secure a
waived confession during the second interrogation. Detective Owens'
interrogation technique, however, was designed to secure a waived
confession during the first interrogation. Therefore, Seibert does not
2 Because it was not raised by James, the question as to whether the
district court should have suppressed James' third interrogation based on
the invocation of his Miranda rights is not before this court. See NRAP
28(a)(8); Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. , n.3, 252
P.3d 668, 672 n.3 (2011) ("Issues not raised in an appellant's opening brief
are deemed waived.").
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require James' third interrogation to also be suppressed based on the
minimization technique that was used during the first interrogation.
James also argues, however, that Detective Owens used the
same "minimization technique" during the third interrogation and that
the district court erred by failing to suppress the statements made during
his third interrogation on the same grounds that it suppressed the
statements he made during his first interrogation. The State argues that
Detective Owens' comments during the third interrogation were
"innocuous" and urges this court to defer to the district court's conclusion
that during the third interrogation "new Miranda warnings were given to
James and the importance of those rights was not minimized" Read in
isolation, we may be inclined to agree with the State that the statements
made by Detective Owens were innocuous. However, Detective Owens
clearly incorporated the improper statements he made during his first
interrogation into his subsequent Miranda warning by referring to the
"spiel" he gave "yesterday." Because Detective Owens incorporated those
improper statements by reference into his third interrogation, we conclude
that the district court erred by failing to suppress that interrogation. 3
Because this error is of a constitutional dimension we must
reverse unless the error is harmless beyond a reasonable doubt. See
3 Because we conclude that the district court erred by failing to
suppress the third interrogation in its entirety, we need not address
James' other claim that the district court erred by denying his motion to
redact the lengthy narrative questions posed to James by detectives which
allowed them to introduce a theory of motive which was otherwise
inadmissible.
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Diomampo v. State, 124 Nev. 414, 428, 185 P.3d 1031, 1040 (2008). James
was interrogated for 35 minutes during his third interrogation. He
admitted that he was in the victim's house, the victim accused him of
turning against him, the victim pointed a gun at him, the gun went off,
and he panicked and took off after kicking in the back door. James also
admitted that the victim aggravated him just before the shooting by
accusing him of turning against the victim. The State was able to use
these statements to demonstrate that James and the victim got into an
argument inside the victim's home. In addition to using James' own
statements against him, the State was also able to introduce a possible
motive for the murder without presenting any admissible evidence at trial.
During the interrogation, detectives spent over half of their time trying to
get James to admit that he was not acting alone and that he was colluding
with the victim's estranged wife or some other family member to kill the
victim so that the family members could inherit his money and property.
No evidence was presented at trial to support this theory and James did
not respond to a majority of the detectives' questions and accusations on
this subject. Although the jury was instructed that the detectives'
statements could only be considered to the extent that they supplied
meaning to James' answers, the narrative statements and unanswered
questions span almost 10 pages and the jury may have used this
additional theory of motive to explain why the murder was deliberate and
premeditated rather than an accident as James contended during all of his
recorded statements. The State itself also admits that "the detectives'
extensive questioning regarding James' motive for the crime and another
party's involvement was relevant in that it made facts of consequence,
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premeditation and deliberation, more probable than without the
evidence." We are not convinced that the admission of the third
interrogation was harmless beyond a reasonable doubt. Therefore, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order. 4
' J.
Pickering
L._ A) J.
Parrag-uirre Saitta
cc: Hon. Valerie Adair, District Judge
Special Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4 Because we are reversing and remanding for a new trial based upon
the suppression issue, we need not address James' other claims that (1)
the district court erred by denying his motion to redact the detectives'
narrative questions and statements during the third interrogation, (2) the
State committed prosecutorial misconduct by using a yellow light example
to explain deliberation and premeditation, (3) the district court erred by
using the language "material elements" in the reasonable doubt
instruction, and (4) cumulative error requires reversal.
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