Bolanos, Jr. (Arturo) v. State

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 SUPREME COURT OF NEVADA 2 (0) 1947A eo 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 SUPREME COURT OF NEVADA 3 (0) 1947A