Five days before trial, the State requested permission to admit
John's preliminary hearing testimony, explaining that it had good cause to
excuse the tardy filing because the defense had agreed to assist the State
in serving John, but failed to follow through. The defense argued that it
offered to help the State but never promised that it would, or could, ensure
that John would be served. After taking into consideration an email
exchange between the prosecutor and defense counsel, as well as
argument from both individuals regarding their oral conversations, the
district court concluded that the State's belief that the defense would
assist them in serving John constituted good cause to excuse the untimely
filing. Giving deference to the district court's factual findings, id. at 647,
188 P.3d at 1132, we conclude that any statements made by the defense
did not create a situation in which the State could reasonably rely solely
on the defense to ensure that John would be served. The State knew that
John was uncooperative and the vague arrangement surrounding the
issue does not satisfy the good cause requirement. See id. at 650, 188 P.3d
at 1134 (explaining that good cause "must be determined upon considering
the totality of the circumstances"). However, we conclude that this error
was harmless. See id. at 652-53, 188 P.3d at 1135-36. John's testimony
was more exculpatory than incriminating, and considering the substantial
evidence against appellant, admitting John's statement did not influence
the verdict.
Appellant's statements to law enforcement
Appellant contends that the district court erred by admitting
his statements to law enforcement because he was subjected to a custodial
interrogation without the protections afforded by Miranda v. Arizona, 384
U.S. 436 (1966). Miranda requires that any interrogation of a suspect in
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custody "be preceded by advice to the putative defendant that he has the
right to remain silent and also the right to the presence of an attorney."
Edwards v. Arizona, 451 U.S. 477, 481-82 (1981) (citing Miranda, 384 U.S.
at 479). An individual is in custody for Miranda purposes if a reasonable
person in his position would not feel like he is free to terminate the
conversation. Rosky v. State, 121 Nev. 184, 191, 111 P.3d 690, 695 (2005)
(identifying the relevant factors for determining whether a suspect is in
custody). We review a district court's custody determination de novo. Id.
at 190, 111 P.3d at 694.
Having considered the factors identified in Rosky, we conclude
that the district court erred. 1 Law enforcement detained appellant at
gunpoint, handcuffed him, and escorted him to the police station.
Although appellant identified himself as a victim thereafter, and his
questioning was mostly consistent with that narrative, the initial show of
force used by law enforcement was substantial. Thus, while some of the
Rosky factors weigh in favor of the State, that initial show of force, along
with other indicia of arrest, outweighS any countervailing considerations.
We conclude that a reasonable person in appellant's position would not
have felt free to terminate questioning and leave. However, we also
conclude that any error in the admission of his testimony was harmless.
Appellant did not directly confess, and considering the substantial
evidence against him, admitting his statement did not influence the
verdict.
'Because these statements were inappropriately admitted, we need
not address whether appellant invoked his right to counsel
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