111 P.3d 690 | Nev. | 2005
By the Court,
Appellant John Rosky was convicted in district court of sexual assault and indecent exposure.
DISCUSSION
Admission of videotaped statement
In January 2000, as part of a sexual assault investigation concerning a 13-year-old female, CJW, five police officers executed a search warrant at Rosky’s apartment. Two of the officers eventually drove Rosky to a police substation for questioning, but did not formally place him under arrest. Approximately IV2 hours into a videotaped interview, Rosky admitted to a brief consensual act of sexual intercourse with CJW. Rosky moved to suppress the interview because the officers failed to administer Miranda
Standards of review
Our prior cases have not consistently stated this court’s standard of review of a district court’s “in custody” determination for purposes of Miranda.
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 is 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. Under Thompson and Miller, these decisions retain a “ ‘uniquely legal dimension,’ ”
For this standard of review to function properly, “trial courts must exercise their responsibility to make factual findings when ruling on motions to suppress.”
Reviewing courts should not be required to surmise what factual findings that the trial court made. Instead, the trial court should make clear any factual findings upon which it is relying. It is only through this synergy between the trial and reviewing courts that appellate courts can develop a uniform body of precedent to guide law enforcement officers in their determination of whether their actions may violate the constitution.12
To facilitate proper appellate review, we advise district courts to clearly set forth the factual findings relied upon in resolving suppression motions.
Custody under Miranda
“The Fifth Amendment privilege against self-incrimination provides that a suspect’s statements made during custodial interrogation are inadmissible at trial unless the police first provide a Miranda warning.”
In Alward v. State, this court listed several factors pertinent to the objective custody determination: “(1) the site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of questioning.”
In State v. Taylor, this court provided several objective indicia of arrest:
(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 strong-arm tactics or deception during questioning; and (7) whether the police arrested the suspect at the termination of questioning.22
The district court determined that the objective indicia of arrest leaned toward noncustodial interrogation. We agree.
We also conclude that the length and form of questioning depicted on the tape confirm that Rosky was not in custody when he ultimately admitted to consensual sex with CJW.
Voluntariness
Rosky also contends that, due to his intoxication and deception used by the detectives, his statement was involuntarily given. Unlike the objective custody analysis, the voluntariness analysis involves a subjective element as it logically depends on the accused’s characteristics.
We conclude that Rosky’s pre-arrest statements to police were voluntarily given. First, when asked if he was too intoxicated to be interviewed, Rosky clearly stated that “oh yeah, I’m coherent, I’m fine.”
In light of the above, and applying the standards of review set forth in Thompson v. Keohane
Prior bad acts
Evidence of prior bad acts is “not admissible to prove the character of a person in order to show that he acted in conformity therewith.’ ’
A presumption of inadmissibility attaches to all prior bad act evidence.
As a result of two separate Petrocelli hearings, the district court ultimately admitted evidence that, some 10 years previous, Rosky fondled and digitally penetrated a 12-year-old girl, JLB, in California. The district court ruled the prior bad act admissible as proof of a common scheme or plan and modus operandi. At trial, the district court gave limiting instructions to the jury concerning the limited use of the bad act evidence on 3 occasions: (1) after JLB’s mother testified on direct examination, (2) after JLB testified on direct examination, and (3) during jury instructions. These instructions, however, did not mirror the Petrocelli rulings because, after both JLB and her mother testified on direct examination, the district court instructed the jury that the evidence was only relevant to show a common scheme or plan.
Common scheme or plan
The common scheme or plan exception to the rule against the admissibility of character/propensity evidence requires that both the prior bad act and the charged crime be an “ ‘integral part of an overarching plan explicitly conceived and executed by the defendant.’ ”
We cannot conclude that the instant offense and the prior bad acts were part of a single preconceived overarching plan that resulted in improper sexual contact with CJW. These crimes were independent of one another, and neither could be planned until each victim came within reach. Finally, the prior bad act took place some eight years before the instant event. We therefore conclude that the district court abused its discretion in admitting evidence of Rosky’s prior bad acts as evidence of a common scheme or plan.
Modus operandi
As this court explained in Mortensen v. State, modus operandi evidence falls within the identity exception to NRS 48.045(2).
Rosky’s identity was not at issue during the trial. CJW clearly identified him in court on multiple occasions and the police had no doubt that Rosky was the proper suspect. Going further, Rosky admitted in his statement to his interactions with CJW. Thus, under the third prejudice/probative value prong of Tinch, we conclude that the district court abused its discretion in allowing the jury to consider the prior bad act with JLB as evidence of “modus operandi.”
As discussed above, the prior bad act was not relevant under either the common scheme or plan or the modus operandi exceptions to NRS 48.045(2). We further note that the prior bad act evidence was not admissible to prove intent or motive under NRS 48.045(2) because the evidence likewise did not satisfy the third prong of Tinch.*
Most importantly, the State argued in its opening statement that “the evidence [against Rosky] will show that this is really a case of two victims separated by time and distance.” We conclude that, when combined with the prosecutor’s opening statement, the cautionary instructions left the evidence with limited probative value,
Errors in the admission of evidence under NRS 48.045(2) are subject to a harmless error review.
We cannot, however, on this record, conclude that the district court’s errors were harmless with regard to Rosky’s sexual assault conviction. First, although Rosky also effectively confessed to the commission of a statutory sexual seduction,
Flight instruction
Prior to trial, Rosky was released on bail, failed to appear and a bench warrant was issued for his arrest. Authorities eventually located Rosky in Mexico and successfully obtained extradition. At
We conclude that Rosky’s argument is without merit. First, under Nevada law, a district court may properly give a flight instruction if the State presents evidence of flight and the record supports the conclusion that the defendant fled with consciousness of guilt and to evade arrest.
CONCLUSION
The district court erroneously admitted prior bad act evidence to show a common plan or scheme and as evidence of modus operandi. This error was harmless as to the indecent exposure conviction. However, overwhelming evidence does not support Rosky’s conviction for sexual assault. Therefore, we affirm the judgment of conviction of indecent exposure, reverse the judgment of conviction of sexual assault and remand this matter to the district court for proceedings consistent with this opinion.
Douglas and Parraguirre, JJ., concur.
The district court sentenced Rosky to the Nevada State Prison for life with the possibility of parole after a minimum of 20 years on the sexual assault count and a concurrent term of 1 year in the Washoe County Jail on the indecent exposure count. Rosky received credit for 53 days of time served, and the district court ordered Rosky to pay a $25 administrative assessment, a $150 DNA testing fee and reimbursement to the Washoe County Public Defender’s Office in the amount of $500 for legal fees. The court also imposed a special condition of lifetime supervision in the event of parole.
Miranda v. Arizona, 384 U.S. 436 (1966).
Compare Proferes v. State, 116 Nev. 1136, 1138, 13 P.3d 955, 956 (2000) (the district court’s findings in a suppression hearing will be upheld unless this court is definitely and firmly convinced that the district court erred), with Mitchell v. State, 114 Nev. 1417, 1423, 971 P.2d 813, 817 (1998) (a defendant’s constitutional entitlement to Miranda warnings is a question of law reviewed de novo; however, a district court’s determination of whether a defendant is in custody will not be disturbed where substantial evidence supports the determination). See also Alward v. State, 112 Nev. 141, 154, 912 P.2d 243, 252 (1996).
See, e.g., Allan v. State, 118 Nev. 19, 23-24, 38 P.3d 175, 178 (2002) (“A district court’s determination that a confession is voluntary will not be disturbed on appeal if it is supported by substantial evidence.”).
516 U.S. 99 (1995).
474 U.S. 104 (1985).
Thompson, 516 U.S. at 112-13; Miller, 474 U.S. at 112-18; see also U.S. v. Axsom, 289 F.3d 496, 499-500 (8th Cir. 2002); U.S. v. Kim, 292 F.3d 969, 973 (9th Cir. 2002); U.S. v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001); McMorran v. State, 118 Nev. 379, 383, 46 P.3d 81, 84 (2002) (stating this court “reviews the lawfulness of a search de novo because such a review requires consideration of both factual circumstances and legal issues”).
Thompson, 516 U.S. at 112 (quoting Miller, 474 U.S. at 116).
Id.
See, e.g., Allan, 118 Nev. at 23-24, 38 P.3d at 178; Proferes, 116 Nev. at 1138, 13 P.3d at 956; Mitchell, 114 Nev. at 1423, 971 P.2d at 817; Alward, 112 Nev. at 154, 912 P.2d at 252.
In re G.O., 727 N.E.2d 1003, 1010 (111- 2000).
Id.
State v. Taylor, 114 Nev. 1071, 1081, 968 P.2d 315, 323 (1998).
Alward, 112 Nev. at 154, 912 P.2d at 252.
Thompson, 516 U.S. at 112; see also Alward, 112 Nev. at 154, 912 P.2d at 252 (stating the pertinent inquiry focuses on “ ‘how a reasonable man in the suspect’s position would have understood his situation’ ” (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984))).
Stansbury v. California, 511 U.S. 318, 322 (1994).
Yarborough v. Alvarado, 541 U.S. 642, 666 (2004) (decided in the context of habeas corpus review).
See Lynumn v. Illinois, 372 U.S. 528, 534 (1963).
112 Nev. at 155, 912 P.2d at 252.
See Silva v. State, 113 Nev. 1365, 1369-70, 951 P.2d 591, 594 (1997); accord Rowbottom v. State, 105 Nev. 472, 480, 779 P.2d 934, 939 (1989).
Alward, 112 Nev. at 154, 912 P.2d at 252.
114 Nev. at 1082 n.1, 968 P.2d at 323 n.1. Rosky also argues that the district court should have considered his alleged intoxication as part of the objective custody analysis. However, his briefs cite no authority for this proposition, and our research reveals none.
See Yarborough, 541 U.S. at 667-68 (recognizing that subjective inquiry that applies to voluntariness determination does not apply to custody determination).
See Lego v. Twomey, 404 U.S. 477, 489 (1972).
Lynumn, 372 U.S. at 534.
Brust v. State, 108 Nev. 872, 874, 839 P.2d 1300, 1301 (1992).
Alward, 112 Nev. at 155, 912 P.2d at 252 (quoting Passama v. State, 103 Nev. 212, 214, 735 P.2d 321, 323 (1987)).
See Lynumn, 372 U.S. at 534 (considering defendant’s lack of experience with the criminal law in determining voluntariness of confession).
See Kirksey v. State, 112 Nev. 980, 992, 923 P.2d 1102, 1110 (1996) (stating that a confession is inadmissible based upon intoxication only if the. accused is intoxicated to the extent of being incapable of understanding the meaning of his or her comments).
516 U.S. 99 (1995).
474 U.S. 104 (1985).
NRS 48.045(2).
Id.; see Richmond v. State, 118 Nev. 924, 932, 59 P.3d 1249, 1254 (2002).
Braunstein v. State, 118 Nev. 68, 73, 40 P.3d 413, 417 (2002).
Id.
Tavares v. State, 117 Nev. 725, 731, 30 P.3d 1128, 1131 (2001).
See Petrocelli v. State, 101 Nev. 46, 51-52, 692 P.2d 503, 507 (1985).
113 Nev. 1170, 1176, 946 P2d 1061, 1064-65 (1997); see also Tavares, 117 Nev. at 731, 30 P.3d at 1131 (“ ‘It is as much [a prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’” (quoting Berger v. United States, 295 U.S. 78, 88 (1935))).
Walker v. State, 116 Nev. 442, 446, 997 P.2d 803, 806 (2000).
Braunstein, 118 Nev. at 73, 40 P.3d at 417.
After JLB’s mother testified on direct examination, the district court stated:
[T]his is not testimony elicited to prove Mr. Rosky’s character or that he acted consistent with any part of this type of character, but it is admitted solely for the purpose of the state attempting to prove a common scheme or plan, so it’s for a limited purpose.
You may not consider this testimony as proof of Mr. Rosky’s character or that he acted in conformance therewith with regard to the incidents allegedly occurring in Reno. The State is only allowed to bring in this testimony to establish a common scheme or plan.
Richmond, 118 Nev. at 933, 59 P.3d at 1255 (quoting 1 McCormick on Evidence § 190, at 661 (John W. Strong ed., 5th ed. 1999)).
Id. (quoting Hester v. State of Nevada, 75 Nev. 41, 47, 334 P.2d 524, 527 (1959) (quoting 1 John Henry Wigmore, Wigmore on Evidence § 300 (2d ed. 1923))).
Id. at 934, 59 P.3d at 1255.
115 Nev. 273, 280-81, 986 P.2d 1105, 1110 (1999).
Id. at 280, 986 P.2d at 1105.
See 113 Nev. at 1176, 946 P.2d at 1064-65.
See Tavares, 117 Nev. at 733, 30 P.3d at 1133 (holding that trial court must give the limiting instruction at least twice: (1) immediately before the introduction of the evidence and (2) at the end of trial). Here, the two instructions given during the trial failed to mention modus operandi as one of the “other” uses of the evidence under NRS 48.045(2).
The State also argues that the prior bad act evidence was relevant to show knowledge. We disagree. See Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212, 213 (1970) (stating that if the prosecution can establish knowledge without reference to a prior criminal act, the prejudicial effect of the bad act evidence outweighs its probative value). We further note that the district court never instructed the jury that the JLB evidence was relevant to show Rosky knew or should have known that CJW was incapable of resisting the nature of Rosky’s conduct. See Tavares, 117 Nev. at 733 , 30 P.3d at 1133.
See Braunstein, 118 Nev. at 75, 40 P.3d at 418 (renouncing the legal proposition stated in McMichael v. State, 94 Nev. 184, 189, 577 P.2d 398, 401 (1978), that evidence showing an accused possesses a propensity for sexual aberration is relevant to the accused’s intent); see also Richmond, 118 Nev. at 936, 59 P.3d at 1257 (Maupin, J., concurring and dissenting).
See Richmond, 118 Nev. at 934, 59 P.3d at 1255-56.
See NRS 200.364; NRS 200.368.
Rosky did not testify at trial.
See Walker v. State, 113 Nev. 853, 870-71, 944 P.2d 762, 773 (1997).
Rosky also cites the Oklahoma Criminal Appeals decision in Mitchell v. State, 876 P.2d 682 (Okla. Crim. App. 1993), and argues that giving a flight instruction is improper if the defendant does not refute the state’s allegation of flight. We reject this argument, noting that subsequent Oklahoma decisions have clarified “that the rule in Mitchell was an interpretation and application of state law” and does not relate to any constitutional right. Richie v. State, 908 P.2d 268, 277 (Okla. Crim. App. 1995).