constitutional right to counsel is dispositive, and therefore address only
this issue on appeal.
FACTS
During the early morning hours of October 3, 2012, Mann was
involved in a physical altercation with Jesus Villasenor Melgarejo in
Villasenor's home, which left Villasenor injured. According to Mann, the
confrontation began after Villasenor made unwanted sexual advances
toward him while he was spending the night at Villasenor's home. Mann
contends that when he rejected Villasenor's advances, Villasenor would
not allow him to leave. Thus, he was defending himself and providing for
his escape when he injured Villasenor and took Villasenor's car keys,
cellular phone and vehicle. In contrast, Villasenor contends that Mann
entered his home through a back door, brandished a gun and a knife, and
demanded money and jewelry. When he told Mann he did not have money
or jewelry, Mann attacked him and fled with his belongings.
The day after the alleged robbery, Officers Jay Simpson and
Eric Leavitt went to Mann's parents' home in search of Mann. Upon their
arrival, the officers discovered Mann driving Villasenor's vehicle. Officer
Simpson took Mann into custody, handcuffed him, and read Mann his
Miranda rights. Officer Simpson then began to interrogate Mann. After
a brief interrogation, Mann stopped answering questions and Officer
Simpson placed Mann in the back of his patrol vehicle. When Officer
Simpson retrieved Mann from the patrol vehicle, Mann asked, "When can
I talk to a lawyer?" Immediately after making the statement, a
handcuffed Mann ran, but was recaptured by Officer Simpson. Mann was
again placed in the back of the patrol vehicle. At that point, Officer
Simpson chose not to resume his interrogation of Mann.
SUPREME COURT
OF
NEVADA
2
(0) 1947A e
Later, Officer James Monroe arrived at the scene and received
permission from Officers Simpson and Leavitt to interrogate Mann.
Officer Monroe then questioned Mann about the location of a gun thought
to have been used in the robbery.
At trial, Officer Monroe testified about what he learned from
his interrogation of Mann. Specifically, he testified that Mann told the
officers he wanted to help them locate the gun but did not want anyone to
get hurt. Additionally, Officer Monroe testified that Mann told him the
gun was black and no longer in the car, but in North Las Vegas at an
apartment complex. Finally, Officer Monroe testified to following Officers
Leavitt and Simpson in their patrol vehicle because Mann, who was in
their custody, was planning to show the officers where the gun was
located.
Officer Leavitt also testified to information gathered from
Mann after Mann asked when he could speak to a lawyer. Officer Leavitt
testified that Mann was planning to show the officers where the gun was
located. He further testified that as they were driving, Mann identified
two sets of apartments, but whenever officers proceeded in the direction of
the apartment, Mann told them that it was in a different direction.
Officer Leavitt said that eventually they stopped searching for the gun
and drove Mann to jail.
DISCUSSION
This court reviews "the district court's factual finding
concerning the words a defendant used to invoke the right to counsel' for
clear error, and `[w]hether those words actually invoked the right to
counsel' de novo." Carter v. State, 129 Nev. , , 299 P.3d 367, 370
(2013) (alteration in original) (quoting United States v. Ogbuehi, 18 F.3d
SUPREME COURT
OF
NEVADA
3
(0) 1947A
807, 813 (9th Cir. 1994)); Rosky v. State, 121 Nev. 184, 190, 111 P.3d 690,
694 (2005).
Invocation of Right to Counsel
Miranda v. Arizona requires government officials conducting
custodial interrogations to advise suspects of their right to remain silent
and their right to have an attorney present. 384 U.S. 436, 479 (1966).
When a person invokes his or her right to counsel under Miranda, that
person can no longer be questioned or interrogated until an attorney is
provided. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). "Invocation
of the Miranda right to counsel 'requires, at a minimum, some statement
that can reasonably be construed to be an expression of a desire for the
assistance of an attorney." Davis v. United States, 512 U.S. 452, 459
(1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)).
The parties agree to the relevant facts. The words Mann used
to invoke his right to counsel were: "When can I talk to a lawyer?" Thus,
we need not consider that issue. Instead, we must determine whether the
use of those words, when examined in their context, actually invokes the
right to counsel. Mann argues that his request for an attorney was
unequivocal and that the district court committed prejudicial error by
admitting the fruits of the interrogation that followed his request. The
State contends that Mann's request was made equivocal by the act of
running and that any error was harmless because the officers' testimonies
about the firearm did not lead to a conviction of any of the firearm
charges.
In Carter, we recognized that the words "Can I get an
attorney?" amounted to an unequivocal request for counsel under the
circumstances. 129 Nev. at , 299 P.3d at 369; see also Alvarez v.
Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (explaining that "Can I get an
SUPREME COURT
OF
NEVADA
4
(0) I947A
attorney right now, man?" was an unambiguous request when considered
together with two other questions regarding counsel); People v. Harris, 552
P.2d 10, 11-12 (Colo. 1976) (holding that "When can I get a lawyer?" was
unambiguous). We determined that no circumstances present would have
suggested to a reasonable officer that Carter was requesting anything but
the aid of an attorney because "[t]here were no other words modifying the
statement . . like 'might,' maybe,"perhaps,' or 'should' [and] in [no] way
[did Carter] suggest he was unsure of whether he wanted an attorney."
Carter, 129 Nev. at , 299 P.3d at 371. We further held that Carter's
statement asserting that he was merely "concerned" about an attorney,
made after he unambiguously invoked his right to counsel, "[did] nothing
to alter our decision." Id. at , 299 P.3d at 371; see Smith v. Illinois, 469
U.S. 91, 100 (1984) ("[U]nder the clear logical force of settled precedent, an
accused's postrequest responses to further interrogation may not be used
to cast retrospective doubt on the clarity of the initial request itself.").
Applying Carter to the circumstances here, we conclude that
Mann made an unequivocal request for an attorney. First, Mann's words
represented an unambiguous request for an attorney. As in Carter, Mann
did not use any modifying words and did not suggest that he was unsure
of whether he wanted an attorney. His words were explicit. Additionally,
Mann's sprint shortly thereafter did nothing to alter his original
unambiguous request. See Smith, 469 U.S. at 100. His post-request act
can be likened to Carter's post-request statement asserting that he was
merely "concerned" about an attorney. Although we recognize the factual
difference between Mann's act of running and Carter's statement
expressing concern, we reach the same conclusion.
SUPREME COURT
OF
NEVADA
5
0) I 9-47A
Thus, when considering both the words Mann used and his
post-request act of running, we conclude that Mann made an unequivocal
request for an attorney and that request should have been honored.
Mann's statements, made without having access to counsel, violated the
basic tenets of Miranda and were inadmissible.
Harmless Error Analysis
Miranda violations may be considered harmless, depending on
the context of the case. Guyette v. State, 84 Nev. 160, 168,438 P.2d 244,
249 (1968). We cannot say here that the officers' testimonies disclosing
information obtained in violation of Mann's Miranda rights were harmless
beyond a reasonable doubt. See Carter, 129 Nev. at , 299 P.3d at 372
(requiring admission of confession obtained in violation of Miranda to be
harmless beyond a reasonable doubt (emphasis added)). It is possible that
the erroneous admission of the officers' testimonies contributed to Mann's
conviction. A reasonable jury may have interpreted the officers'
testimonies to Mann's statements acknowledging the location of the gun
as a confession to the crimes alleged, especially given that Villasenor
claimed Mann robbed him at gunpoint and Mann claimed that he did not
have a gun. In this context, where the facts of the alleged robbery are
intertwined with possession of the gun, the extent of the jury taint cannot
be known. Therefore, the fruit of the interrogation conducted after Mann
unequivocally invoked his right to counsel was admitted in error and was
not harmless beyond a reasonable doubt.
SUPREME COURT
OF
NEVADA
6
(0) 194'A e
Based on the foregoing, we ORDER the judgment of the
district court REVERSED AND REMAND this matter to the district court
for proceedings consistent with this order.
J.
Parraguirre
c- De. 14) J.
Douglas
cc: Hon. Valerie Adair, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
7
ill) 1947A agb,