131 Nev., Advance Opinion 41
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
NOEL LIRIO GONZALES, No. 64539
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. JUL 02 2015
TRACE K LINDEMAN
CLERK OF SUPREME COURT
BY _
DEPUTY CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of conspiracy to commit robbery, burglary while in possession of a
firearm, robbery with the use of a deadly weapon, and first-degree
kidnapping with the use of a deadly weapon. Eighth Judicial District
Court, Clark County; Douglas W. Herndon, Judge.
Affirmed.
Wright Stanish & Winckler and Monti Levy, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Megan Thomson, Deputy District Attorney, Clark County,
for Respondent.
BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
OPINION
By the Court, TAO, J.:
Appellant Noel Gonzales was convicted of multiple felonies
following a jury trial, and part of the evidence introduced against him was
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his tape-recorded confession to the crimes during a custodial police
interrogation. Because Gonzales claims to be a non-native English
speaker, he asks us in this appeal to adopt the test set forth by the United
States Court of Appeals for the Ninth Circuit in United States v. Carl bay
143 F.3d 534, 538 (9th Cir. 1998), to find that his confession should not
have been admitted at trial because he was not provided with the
assistance of an interpreter and therefore his confession was obtained
illegally.
We conclude that the test set forth in Garibay provides a
helpful guide in identifying and weighing some of the circumstances that
may be relevant to the admissibility of confessions rendered by non-native
English speakers. However, we decline to adopt the Carl bay test as an
overarching inquiry that must always be applied by district courts
whenever an interrogated suspect is a non-native English speaker. After
reviewing the totality of the circumstances in this case, we conclude that
the district court did not err in rulingS that appellant's confession was
admissible even though English is not his native language and he was not
provided with the assistance of an interpreter during his police
interrogation. We also conclude that the district court did not err in
admitting documents proffered to tie Gonzales to the scene that Gonzales
characterizes as hearsay. In addition, we conclude the evidence presented
to the jury in this case was sufficient to sustain convictions for the crimes
of kidnapping and robbery arising from the same course of conduct.
FACTS
Michelle Damaya was in the garage of her home vacuuming
her car while her 22-month-old daughter Abigail napped inside the house.
Three people, a woman and two men, entered through the open garage
door and accosted Michelle. The shorter of the two men, later identified as
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Gonzales, was wearing a mask and had the hood of his sweatshirt pulled
over his head so that Michelle could not immediately see his face.
Gonzales pointed a gun at Michelle and told her, "we want your guns, we
want your money." The woman motioned for Michelle to go inside the
house, and she complied.
At gunpoint, Michelle led the trio to the master bedroom,
where they ransacked the room in search of valuables. The trio asked
Michelle where any guns and money were kept, but Michelle answered
that she did not know because her husband had recently moved his guns
in order to prevent Abigail from accidentally finding them. The woman
responded by calling Michelle stupid for not knowing where anything was.
Eventually, after searching the entire room, the perpetrators found a safe
and forced Michelle to open it. The perpetrators then forced Michelle to
hold laundry baskets for them to fill with items from the safe.
Michelle asked if she could go get Abigail, but the perpetrators
refused. Following repeated and increasingly insistent requests by
Michelle, Gonzales eventually gave permission and Michelle retrieved her
daughter. At some point Gonzales and the female perpetrator split up to
search other rooms of the house while the taller man stayed in the master
bedroom with Michelle and Abigail. The taller man continued searching
the master bedroom and eventually discovered a hidden firearm owned by
Michelle's husband.
After a few minutes, the woman called Michelle to another
room, where Michelle watched her go through the drawers of a desk.
Michelle asked the taller man why they were there, and he replied that
they had been hired to "come get your guns and money." The trio then
scattered throughout the house in search of more valuables, leaving
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Michelle and Abigail alone. Michelle ran to a side door that she had
previously left unlocked, but apparently had been locked by the
perpetrators during the crime, unlocked it, and fled the house with Abigail
to a neighbor's residence where she called 9-1-1. Police officers arrived
moments later and quickly located the woman and the taller man who had
accompanied Gonzales. They also found a car parked in Michelle's
driveway in which documents bearing Gonzales' name were later
discovered.
While police officers worked to establish a perimeter around
the house, Gonzales voluntarily approached a police detective parked on
the street and spontaneously uttered, in English, "I was involved. It was
me. I was involved." He was immediately arrested and searched, and
property belonging to Michelle and her husband was found on his person.
After the search, Gonzales asked, again in English, to be placed into the
police car rather than be left standing in the street, and officers complied.
Gonzales remained seated in the police car for approximately one hour
with one back door open and the air conditioner turned on while the police
continued to investigate the scene.
Gonzales was then transported to police headquarters and
interrogated by Detective Patrick Flynn. Prior to the interrogation,
Detective Flynn administered warnings, in English, pursuant to Miranda
v. Arizona, 384 U.S. 436 (1966). In English, Gonzales stated that he
understood his rights and agreed to be questioned. Flynn repeated the
warnings again, in slightly different and less formal language, later
during the questioning Gonzales, whose native language is Tagalog,
never requested the assistance of an interpreter, and none was provided.
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The entire interrogation was conducted in English and tape-recorded.
Gonzales subsequently confessed to the offenses in detail in English.
Gonzales and his two codefendants were each charged with
the crimes of conspiracy to commit robbery, burglary while in possession of
a firearm, robbery with use of a deadly weapon, and first-degree
kidnapping with use of a deadly weapon.
Prior to trial, Gonzales filed a motion with the district court
seeking to suppress incriminatory statements made during his recorded
interrogation, asserting that he was under the influence of
methamphetamine during the interrogation, and furthermore that he had
not been provided with the assistance of a Tagalog interpreter even
though English was not his native language. Following a two-day
evidentiary hearing, the district cOurt denied the motion. The recorded
interrogation was played to the jury during Gonzales' trial, and he was
convicted of all counts This appeal followed.
ANALYSIS
In this appeal, we focus upon three contentions of error
asserted by Gonzales.' First, Gonzales contends the district court erred by
admitting statements made during his recorded interrogation because
those statements were not made freely or voluntarily. Second, he asserts
the district court erred in admitting hearsay in the form of a rental car
agreement and a Money Tree receipt bearing Gonzales' name found in a
'Gonzales also contends that the multiple alleged errors constituted
cumulative error depriving him of a fair trial. Because we conclude that
the district court did not commit any of the individual errors ascribed to it,
we also conclude that no cumulative error has occurred. See Pascua v.
State, 122 Nev. 1001, 1008 n.16,
145 P.3d 1031, 1035 n.16(2006).
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car parked in the driveway of the home. Third, Gonzales avers the
evidence was insufficient to support convictions for both kidnapping and
robbery, because those counts legally "merged" under the facts of this case.
Admission of Gonzales' incriminatory statements
Gonzales first contends that incriminatory statements made
by him during his recorded interrogation should not have been admitted at
trial because his grasp of the English language was insufficient for him to
knowingly and intelligently waive his Miranda rights, and because the
circumstances demonstrate that the interrogation was coercive as he was
not provided with the assistance of an interpreter. Therefore, Gonzales
contends his confession should have been deemed inadmissible under the
standard set forth in United States v. Gari bay, 143 F.3d 534, 538 (9th Cir.
1998).
When a confession is challenged and a hearing is requested
under Jackson v. Denno, 378 U.S. 368, 380 (1964), the State must prove by
a preponderance of the evidence that the defendant's incriminatory
statements are admissible. Dewey v. State, 123 Nev. 483, 492,
169 P.3d
1149, 1154 (2007). When a defendant has been subjected to "custodial
interrogation," the State must first demonstrate the police administered
Miranda warnings prior to initiating any questioning. See State v. Taylor,
114 Nev. 1071, 1081,
968 P.2d 315, 323 (1998). If the warnings were
properly given, the State must then prove the defendant voluntarily,
knowingly, and intelligently understood his constitutional right to remain
silent and/or to have an attorney present during any questioning, and
agreed to waive those rights. See Mendoza v. State, 122 Nev. 267, 276,
130
P.3d 176, 181-82 (2006); see also Miranda v. Arizona,
384 U.S. 436 (1966).
Even where such warnings were properly administered and waived, the
State must also separately show that the defendant's incriminatory
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statements were voluntary under the totality of the circumstances. See
Falcon v. State, 110 Nev. 530, 534,
874 P.2d 772, 775 (1994).
"A confession is admissible as evidence only if it is made
freely, voluntarily, and without compulsion or inducement." Echavarria
v. State, 108 Nev. 734, 742,
839 P.2d 589, 595 (1992) (quoting Franklin v.
State, 96 Nev. 417, 421,
610 P.2d 732, 734 (1980)); see also Passama v.
State, 103 Nev. 212, 213-14,
735 P.2d 321, 322 (1987) ("In order to be
voluntary, a confession must be the product of a rational intellect and a
free will." (internal quotation marks omitted)). Voluntariness must be
determined by reviewing the totality of the circumstances, including such
factors as the defendant's age, education, and intelligence; his knowledge
of his rights; the length of his detention; the nature of the questioning; and
the physical conditions under which the interrogation was conducted.
Passama, 103 Nev. at 214,
735 P.2d at 323. A "confession is involuntary if
it was coerced by physical intimidation or psychological pressure." Brust
v. State, 108 Nev. 872, 874,
839 P.2d 1300, 1301 (1992). The ultimate
inquiry is whether the defendant's will was overborne by the government's
actions. Chambers v. State, 113 Nev. 974, 981,
944 P.2d 805, 809 (1997).
In this case, the parties do not dispute that Gonzales was in
custody at all times while being questioned, that the police questioning
constituted an "interrogation" triggering the administering of Miranda
warnings, or that detectives administered the proper warnings prior to
commencing the interrogation. Indeed, all of this is confirmed by the
recording and transcript of the questioning. The parties also do not
appear to dispute that Gonzales verbally acknowledged he understood his
rights once they were read by saying "yes," and waived those rights to
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participate in the police interrogation by answering questions without
invoking his right to remain silent or asking for an attorney.
Gonzales contends, however, that his statements were
inadmissible because he was not provided with the assistance of a
Tagalog interpreter while being questioned, and also because he was
intoxicated during the interrogation. 2 Consequently, Gonzales contends
his Miranda waiver was inadequate and the entire interrogation was
unconstitutionally conducted.
The test of United States v. Gari bay
Questions relating to the admissibility of a confession
rendered by a non-native English speaker during a custodial police
interrogation are ones that the courts of this state are encountering with
increasing frequency. During a single shift, a police officer in Nevada may
2As a general proposition, intoxication is a factor the district court
must consider in determining whether a confession was truly voluntary.
However, intoxication is not, by itself, sufficient to render a confession
involuntary when the totality of the circumstances otherwise indicate that
the statements were voluntary. E.g., Chambers v. State, 113 Nev. 974,
981-82,
944 P.2d 805, 809-10 (1997) (confession voluntary even when given
with blood alcohol content (BAC) of .27 and other drugs were present in
defendant's system, and defendant was in pain from an open stab wound
in arm); Kirksey v. State, 112 Nev. 980, 992,
923 P.2d 1102, 1110 (1996) (to
render confession involuntary, defendant must have been so intoxicated
that "he was unable to understand the meaning of his comments" (internal
quotation marks omitted)); Falcon v. State, 110 Nev. 530, 533-35,
874 P.2d
772, 774-75 (1994) (confession admitted even though defendant was under
influence of illegal narcotics at time of questioning); Tucker v. State, 92
Nev. 486, 487-88,
553 P.2d 951, 952 (1976) (confession admissible even
though defendant's BAC was .20 at the time he signed the confession);
Wallace v. State, 84 Nev. 603, 605,
447 P.2d 30, 31 (1968) (confession
voluntary even when given in emergency room after being shot).
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encounter a variety of different languages and dialects, and court-certified
interpreters may not always be readily available to assist the officer
whenever an interrogation is necessary. At the same time, there appears
to be a dearth of published precedent from the Nevada Supreme Court to
guide trial courts and police officers in handling such interrogations.
To fill that void, Gonzales asks this court to require district
courts to apply the six-prong test set forth in United States v. Garibay, 143
F.3d 534, 538 (9th Cir. 1998), whenever the admissibility of a custodial
police interrogation of a non-native English speaker is challenged. In
Garibay, the Ninth Circuit canvassed existing case law and identified six
factors that federal courts generally consider relevant to the voluntariness
of a confession rendered by a non-native English speaking defendant.
Specifically, the court stated:
In applying the "totality of circumstances" test, we
further examine whether other circumstances
surrounding Garibay's interrogation indicate that
he knowingly and intelligently waived his
constitutional rights, despite his English-language
difficulties, borderline retarded IQ, and poor
verbal comprehension skills. The following
considerations guide our inquiry: (1) whether the
defendant signed a written waiver; (2) whether the
defendant was advised of his rights in his native
tongue; (3) whether the defendant appeared to
understand his rights; (4) whether a defendant
had the assistance of a translator; (5) whether
the defendant's rights were individually and
repeatedly explained to him; and (6) whether the
defendant had prior experience with the criminal
justice system.
Id. at 538. Factually, the Ninth Circuit held that Garibay's confession was
involuntary because he possessed a low IQ, had some history of mental
illness, and spoke English very poorly, yet was not provided with the
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assistance of an interpreter during a custodial interrogation. Id. at 538-
39. Because the interrogation of Garibay failed to meet even a single one
of the six factors identified by the Ninth Circuit, the confession was
deemed inadmissible. Id.
Gonzales asks this Court to follow the guidance of Gari bay in
determining the voluntariness of his confession in this case. As a general
proposition, Nevada's Due Process Clause is textually identical to the
federal Due Process Clause in relevant respects. Compare Nev. Const. art.
1, § 8(5), with U.S. Const. amend. XIV, § 1. The Nevada Supreme Court
reads the state clause as coextensive with the federal clause. See, e.g.,
Wyman v. State, 125 Nev. 592, 600,
217 P.3d 572, 578 (2009).
Furthermore, "Nevada has historically followed the United States
Supreme Court on most, if not all, of its interpretations and applications of
the law governing searches and seizures." State v. Lloyd, 129 Nev. ,
312 P.3d 467, 471 (2013) (internal quotation marks omitted). Thus,
Gari bay represents persuasive authority that can be considered by this
court.
Contrary to Gonzales' characterization, however, Garibay did
not articulate a comprehensive legal test that, by itself, determines the
admissibility of any confession made by a non-native English speaker.
Constitutionally, admissibility must be assessed in view of the "totality of
the circumstances." Passama, 103 Nev. at 214,
735 P.2d 323. Gari bay
identifies some of the myriad circumstances generally relevant to the
admissibility of any confession within the existing constitutional
framework that might have special relevance when the defendant is a non-native speaker, but the factors listed therein are nonexclusive. 143 F.3d
at 538 (stating that the factors listed were "considerations [to] guide our
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inquiry"). Thus, the framework of Gari bay may provide helpful guidance
to district courts grappling with the question of admissibility of such
confessions, and the Gari bay factors may be considered by district courts
when reviewing those confessions. However, the mere fact that a
particular confession fails to satisfy the six factors identified in Gari bay
does not, by itself, render the confession inadmissible any more than an
otherwise involuntary confession becomes admissible merely because it
meets those six factors.
Questions relating to the admissibility of confessions by non-native English speakers are far too complex and fact-specific to pigeonhole
into any single legal test, even one with six elements. Indeed, no single
legal litmus test can possibly capture all of the relevant variations and
iterations that could help determine the voluntariness of an interrogated
suspect who speaks English as a second language, because non-native
speakers who are somewhat familiar with English may possess different
degrees of fluency that are not always easy to label or categorize.
For example, some non-native English speakers may speak English
conversationally yet not understand arcane or complex legal terms; some
may speak English well but cannot read it; some may read and write
English extremely well yet speak with accents that render their spoken
words difficult for others to understand; some may understand the
meaning of English words when they hear them without being able to
generate those same words quickly during conversation; some may speak
and understand English well when conversing with some people but have
difficulty understanding others who speak with a strong regional accent
such as a southern drawl or northeastern inflection; and some may
understand extremely complex English words and concepts when formally
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phrased yet not understand street jargon, slang, aphorisms, pop-culture
references, or other colloquialisms that, to native speakers, might be far
more conceptually simple. It is even possible that some non-native
speakers may, based upon their education, understand the legal system
extremely well yet not understand other words or concepts that might be
conceptually simpler to others.
All of these subtleties are relevant to the voluntariness of a
confession, but nonetheless are not captured well in the Garibay test.
Consequently, while Garibay provides useful guidance for district courts
grappling with the admissibility of confessions rendered by non-native
English speakers, we decline the invitation to adopt the Gari bay test as a
comprehensive test of voluntariness in Nevada. The constitutional test for
admissibility remains whether the confession was voluntary under the
totality of all circumstances relevant to the confession, whether the
circumstances are delineated in Gari bay or not. See Passama, 103 Nev. at
214,
735 P.2d at 323.
Consequently, we cannot conclude that the district court erred
in this case merely because it failed to set forth its findings within the
context of the Gari bay analysis.
Admissibility of Gonzales' confession
The district court conducted a two-day evidentiary hearing
pursuant to Jackson v. Denno, 378 U.S. 368, 380 (1964), and concluded
that Gonzales' statements were admissible. We review the district court's
factual findings for "clear error" and its legal conclusions de novo. Lamb v.
State, 127 Nev. 26, 31,
251 P.3d 700, 703 (2011). "On appeal, if
substantial evidence supports the district court's finding that the
confession was voluntary, then the district court did not err in admitting
the confession." Brust v. State, 108 Nev. 872, 874,
839 P.2d 1300, 1301
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(1992). "Substantial evidence" has been defined as evidence that "a
reasonable mind might consider adequate to support a conclusion." Steese
v. State, 114 Nev. 479, 488,
960 P.2d 321, 328 (1998). Additionally, even if
the admission of a confession is deemed to have been erroneous, reversal is
not required if the error was harmless. Mendoza v. State, 122 Nev. 267,
277 n.28, 130 P.3d 176, 182 n.28 (2006).
In this case, the district court concluded that Gonzales' ability
to speak and understand English was sufficiently high that he was fully
capable of understanding and waiving his Miranda rights and making free
and voluntary admissions. During the two-day evidentiary hearing,
certified court interpreter Josefina Dooley testified that Tagalog speakers
who can appear to speak English well may have trouble understanding
complicated legal principles such as Miranda warnings, and there are
words contained within the standard Miranda warnings (such as "waiver")
that cannot be easily translated directly into Tagalog. Ms. Dooley also
testified that she had interpreted for Gonzales on approximately ten
occasions and had witnessed him respond to questions inappropriately or
incorrectly on a number of occasions. However, Ms. Dooley admitted she
had also witnessed Gonzales begin to correctly answer questions posed to
him in English before they were translated to him by her.
Two psychologists, Dr. John Paglini and Dr. Gary Lenkeit,
were asked to conduct competency evaluations of Gonzales, and testified
that Gonzales needed translation assistance during their evaluations. Dr.
Paglini testified that Gonzales appeared to have good English
comprehension skills, was "pretty fluent" in English, and had a higher-than-average IQ. Dr. Paglini described Gonzales as being able to respond
in English approximately 30 to 50 percent of the time during the
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evaluation and that approximately 50 to 70 percent of the time Gonzales
could respond in English but would depend upon the interpreter to
translate the questions for him before answering. Dr. Lenkeit testified
that during his evaluation Gonzales relied upon the interpreter
approximately 40 percent of the time, and appeared to particularly need
translation assistance when asked questions relating to the legal system
or to legal principles. Both Dr. Paglini and Dr. Lenkeit testified they could
not have completed Gonzales' assessment without the assistance of a
Tagalog interpreter. Dr. Lenkeit also opined that, had Gonzales ingested
methamphetamine hours before the interview, the drugs would have
further impaired his already-limited understanding of the interview in
English.
A police detective testified that he interacted with Gonzales at
the scene of the crime and, based upon his training and experience,
Gonzales did not appear to be intoxicated or under the influence of
narcotics. He also testified that while Gonzales spoke with an accent, he
conversed freely in English and spontaneously admitted his involvement
in the crime in English before being arrested. Two other police detectives
testified that although Gonzales spoke with a pronounced accent, he was
able to speak and understand most or all of what was said to him in
English. They testified that Gonzales claimed during the interview to
have ingested methamphetamine at approximately 10 o'clock the morning
of the crime. The interrogation occurred at 7:32 that evening, some nine
hours later.
Another police officer testified that he had previously arrested
Gonzales for an unrelated offense and had administered Miranda
warnings in English that Gonzales acknowledged understanding. He also
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testified that Gonzales spoke with a heavy accent and occasionally gave
answers that were difficult to understand or unintelligible, but Gonzales
was able to answer most questions posed to him in proper English.
After hearing this testimony, the district court concluded that
Gonzales "presented insufficient evidence that he was under the influence
of a narcotic that would render his statement involuntary." Our review of
the record reveals the only evidence presented by Gonzales of any drug
use was his own claim to have ingested methamphetamine more than nine
hours prior to the interrogation. No witness testified that Gonzales
appeared to be intoxicated during the interrogation, and no medical
evidence of drug usage was presented to the district court. Under these
circumstances, the district court's conclusion was not clearly erroneous.
The district court also concluded that Gonzales understood
and spoke English sufficiently well that his incriminatory statements were
free and voluntary and he could understand and thereby waive his
Miranda rights even without the assistance of an interpreter. In
reviewing the record, we note the district court was presented with
evidence suggesting that Gonzales' grasp of the English language was
limited and he had difficulty understanding legal concepts in English. The
transcript of his interrogation includes certain confused descriptions, such
as describing criminals as "the felonies people."
On the other hand, the evidence before the district court also
suggested that Gonzales understood most of what was said to him during
the interrogation. Indeed, Gonzales concedes in his appeal briefing that
he "appears [to observers] to be fluent in conversational English." The
transcript of the interrogation further indicates Gonzales understood
virtually every question asked of him, his answers were on the whole
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clear, appropriate, and responsive to the questions asked, and he even
occasionally corrected erroneous information presented to him. Some of
his answers consisted of lengthy narratives in English that included
complex words and concepts such as "diversified," "camouflage,"
"informant," "prescription," and "discharging firearms." Additionally,
Gonzales was described as having a higher-than-average IQ and was
familiar with the Miranda warnings from at least one previous police
interrogation. At one point during the interrogation, the following
colloquy occurred:
Gonzales: Man it's in my heart to help, you know,
but the problem is the English the problem—that's
my problem.
Detective Flynn: Yeah I think your English is
pretty good. There's only been a couple—couple
times when I had a hard time understanding you
but you just explained it a different way. I
understand everything you are saying.
Gonzales: But. . .
Detective Flynn: Do you understand everything
I'm saying?
Gonzales: Yes sir.
Detective Flynn: Okay. You've never had a
problem understanding what I'm saying?
Gonzales: No you're clear.
The district court also indicated it had listened to audio
recordings of the interrogation and two phone calls made by Gonzales
while incarcerated. Importantly, the court noted that witnesses Josefina
Dooley, Dr. Paglini, and Dr. Lenkeit had not been provided with either the
videotape of Gonzales' interrogation or audio recordings of Gonzales'
phone calls that the court reviewed. After considering all of the evidence,
the district court concluded Gonzales "has sufficient skills in English to
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not only understand the Miranda warnings, but to waive his rights and
make a statement against interest."
In this case, the district court was presented with conflicting
evidence. While reasonable minds could perhaps reach different
conclusions based upon that evidence, the district court heard the
witnesses and saw the evidence firsthand while this court has only the
written record. Based upon the evidence in the record, we cannot fairly
say the district court's factual findings constituted clear error, and we
conclude the district court did not err as a matter of law by admitting
Gonzales' confession. 3
Finally, we note that even if Gonzales' custodial confession
was improperly admitted, the collective evidence against him was
overwhelming. Police found Gonzales near the scene moments after the
crime with some of the victim's stolen property in his pocket, and he
immediately confessed to the crime (in a statement not challenged on
appeal) before even being identified as a suspect or arrested. Thus, any
error in admitting Gonzales' statement, even if such error occurred, would
have been harmless.
3 We also note Gonzales' confession in this case met three of the six
factors set forth in Gari bay. While Gonzales did not sign a written waiver
and was not provided with the assistance of an interpreter, the detective
took the time to explain the individual portions of the Miranda warnings
in plain English several times during the interrogation, and each time
Gonzales stated that he understood them. Furthermore, Gonzales had
prior experience with the criminal justice system and had been
administered Miranda warnings on at least one prior occasion. See
Gari bay, 132 F.3d at 538.
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Admission of alleged hearsay evidence
Gonzales also contends the district court erred in admitting
evidence in the form of photographs of documents found at the scene of the
crime that, according to Gonzales, constituted hearsay.
Hearsay is defined as an out-of-court statement offered to
prove the truth of the matter asserted. NRS 51.035. Hearsay is generally
inadmissible unless it meets a recognized exception. NRS 51.065(1).
Alleged hearsay errors are subject to harmless-error analysis. Franco v.
State, 109 Nev. 1229, 1237,
866 P.2d 247, 252 (1993). The trial court is
vested with broad discretion in determining the admissibility of evidence,
and a decision to admit or exclude particular evidence will not be reversed
absent a clear abuse of discretion. Crowley v. State, 120 Nev. 30, 34,
83
P.3d 282, 286 (2004).
In this case, the evidence in question consisted of photographs
of a rental car agreement and a Money Tree receipt bearing Gonzales'
name that police found in a car parked in Michelle's driveway. Michelle
testified the car did not belong to her. The photographs were proffered by
the State in order to connect the vehicle to Gonzales. The district court
admitted the photographs of the documents over a timely objection by
Gonzales, reasoning that they tied Gonzales to the car. Gonzales argues
that this was error because the presence of his name on the documents
constituted a hearsay statement "asserting' that Gonzales rented or drove
the car, yet no witnesses were able to testify that the papers fell within
the "business records" exception to the hearsay rule.
The question of whether the hearsay statute encompasses
documents offered as circumstantial evidence linking a defendant to a
particular person, place, or thing has not been specifically addressed by
the Nevada Supreme Court. It has, however, been addressed by numerous
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federal courts, and the decisions of those courts constitute persuasive
authority for this court. Cf. Terry v. Sapphire Gentleman's Club, 130 Nev.
, 336 P.3d 951, 957 (2014) ("having no substantive reason to break
with the federal courts on this issue, judicial efficiency implores us to use
the same test as the federal courts under the [Fair Labor Standards Act]."
(internal quotation omitted)); State v. Lloyd, 129 Nev. „ 312 P.3d
467, 471 (2013) ("Nevada has historically followed the United States
Supreme Court on most, if not all, of its interpretations and applications of
the law governing searches and seizures." (internal quotation marks
omitted)); Exec. Mgmt., Ltd. v. Ticor Title Ins. Co., 118 Nev. 46, 53,
38 P.3d
872, 876 (2002) ("Federal cases interpreting the Federal Rules of Civil
Procedure are strong persuasive authority, because the Nevada Rules of
Civil Procedure are based in large part upon their federal counterparts."
(internal quotation marks omitted)). This is especially so because
Nevada's hearsay statute is virtually identical to the federal hearsay rule.
Compare NRS 51.035, with Fed. R. Evid. 801(c).
"Many [federal] courts . . . have held that merchandise
receipts, utility bills, and similar documents are not hearsay when they
are offered as circumstantial evidence to link a defendant to a particular
place, to other defendants, or to an illegal item." United States v. Serrano,
434 F.3d 1003, 1005 (7th Cir. 2006); United States v. Thornton,
197 F.3d
241, 251 (7th Cir. 1999) (receipts, utility bills, and business cards were
admissible to show the relationship of coconspirators to each other);
United States v. McIntyre, 997 F.2d 687, 702-04 (10th Cir. 1993)
(testimony regarding rental, money order, and credit card receipts was
admissible to link defendants together and to certain locations); United
States v. Patrick, 959 F.2d 991, 999-1000 (D.C. Cir. 1992) (television sales
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receipt bearing defendant's name was admissible to link defendant to
cocaine and a weapon found in the same bedroom, but it was not
admissible to prove the defendant resided at the address listed on the
receipt), abrogated on other grounds by United States v. Webb, 255 F.3d
890, 894-95 (D.C. Cir. 2001); see also United States v. Richardson,
208
F.3d 626, 632 (7th Cir. 2000) (finding the defendant "had a substantial
connection to the house: in his bedroom were multiple medicine bottles
labeled with his name as well as hisS clothes; he received his mail at [the
house]; and he admitted that he was the caretaker and landlord of the
address"); United States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995) ("The
search revealed, in addition to the firearms, a number of Kitchen's
possessions—his El Rukn bracelet, bills and papers bearing his name and
various articles of men's clothing.").
In such cases, the documents are not introduced
for the truth of the matters they assert—for
example, that the defendant rented a car,
bought a television, or used 500 kilowatt
hours of electricity. Rather, the documents are
introduced for the inferences that may be drawn
circumstantially from their existence or from
where they are found, regardless of whether
the assertions contained therein are true or
not. . . See also Fed. R. Evid. 801 Advisory
Committee Notes to 1972 Proposed Rules (noting
that the rule excludes from the definition of
hearsay "verbal conduct which is assertive but
offered as a basis for inferring something other
than the matter asserted").
Serrano, 434 F.3d at 1005 (internal quotation marks omitted).
Thus, the weight of federal authority holds the admission of
documents bearing a defendant's name in order to establish a
circumstantial link to the defendant does not necessarily violate the
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hearsay rule. We find this authority, persuasive. Had the State sought to
introduce the documents found in the car to prove that Gonzales actually
rented a car or borrowed money from Money Tree, the documents may
have constituted hearsay. But in this case, the State introduced the
documents to link Gonzales to a vehicle found at the crime scene under
circumstances in which it was unlikely that documents bearing his name
would be left in the car by anyone other than Gonzales, regardless of
whether it was true or not that he rented the car or ever patronized the
Money Tree. What mattered was not the truth asserted within the
documents, but rather the circumstances of their discovery. Thus, the
photographs of those documents were not hearsay and the district court
did not err in admitting them.
Sufficiency of the evidence sustaining the convictions for kidnapping and
robbery
Gonzales contends the evidence in this case was insufficient to
sustain convictions for both first-degree kidnapping with the use of a
deadly weapon and robbery with use of a deadly weapon.
The test for sufficiency of the evidence in a criminal case is
"whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." McNair v. State, 108
Nev. 53, 56,
825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia,
443
U.S. 307, 319 (1979)). "Mt is the jury's function. . . to assess the weight of
the evidence and. . . credibility of witnesses." Id.
In this appeal, Gonzales does not challenge the sufficiency of
the evidence supporting his individual convictions for robbery, burglary, or
conspiracy. Instead, he challenges only the evidence underlying the first-degree kidnapping conviction, contending that the facts sustaining the
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kidnapping conviction were intertwined with those proving the robbery
conviction and therefore he cannot be convicted of both crimes.
The crime of robbery is articulated in NRS 200.380, while the
crime of first-degree kidnapping is described in NRS 200.310(1). A
conviction for first-degree kidnapping requires proof that a victim was
seized or detained for one of certain specifically enumerated purposes,
including (among other things) for the purpose of committing one of the
listed predicate felonies such as sexual assault, extortion, robbery, or
homicide. Dual convictions under both statutes are permitted based upon
the same conduct. However, in such cases, the Nevada Supreme Court
has held:
to sustain convictions for both robbery and
kidnapping arising from the same course of
conduct, any movement or restraint must stand
alone with independent significance from the act
of robbery itself, create a risk of danger to the
victim substantially exceeding that necessarily
present in the crime of robbery, or involve
movement, seizure or restraint substantially in
excess of that necessary to its completion.
Mendoza v. State, 122 Nev. 267, 275,
130 P.3d 176, 181 (2006). In general,
"[w]hether the movement of the victims is incidental to the associated
offense and whether the risk of harm is substantially increased thereby
are questions of fact to be determined by the trier of fact in all but the
clearest cases." Curtis D. v. State, 98 Nev. 272, 274,
646 P.2d 547, 548
(1982).
The Nevada Supreme Court has held that moving a victim
from one room inside a house to another room in search of valuables
during the commission of a robbery is insufficient, by itself; to sustain
convictions for both kidnapping and robbery. See Wright v. State, 94 Nev.
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415, 417-18, 581 P.2d 443-44 (1978) (reversing kidnapping conviction as
incidental to robbery when movement from room to room occurred "only
for the short period of time necessary to consummate the robbery" for
purposes of locating valuables). Wright is the principal authority relied
upon by Gonzales in challenging his kidnapping conviction.
In this case, Michelle was accosted at gunpoint while in her
garage with the door open and the interior visible to her neighbors, and
then forced into the residence and moved from room to room. The jury
could have found that, by moving Michelle from a public place into a
private one, Gonzales substantially increased the risk of harm to Michelle,
because had Michelle been detained in the open garage while her
residence was ransacked, she might have been seen by passersby who
could have called police, she might have had a chance to cry out to her
neighbors for help, and she might even have found an easier opportunity
to escape while her house was being searched room by room. But these
opportunities were diminished once she was removed from public view.
Furthermore, moving Michelle from the open garage into the secluded
interior of the locked house, and then throughout the house, may have
psychologically emboldened the defendant to escalate the violence of the
crime, as well as to extend the length of time over which it took place, once
Michelle's fate was less likely to be witnessed by her neighbors.
Gonzales nonetheless argues that he cannot be convicted of
both kidnapping and robbery because Michelle was only moved into the
house to help search for valuables during the robbery. Gonzales'
argument touches upon one of the curiosities of the Mendoza doctrine,
which fundamentally asks the jury to define the level of violence
acceptably necessary to commit the crime of robbery. Gonzales contends
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that Michelle's detention was inherent in, and necessary to, the robbery
because she was only detained for as long as it took to ransack the house,
and was only moved within the house for the purpose of aiding• in the
search for valuables. In essence, he avers that Michelle's movement
cannot constitute a kidnapping because it was closely related, spatially
and temporally, to the facts required to prove the elements of the crime of
robbery.
Some cases contain language supporting Gonzales' argument.
See Wright, 94 Nev. at 417-18,
581 P.2d at 443-44 (referring to the "short
period of time" during which robbery occurred). However, casting the
Mendoza test solely or primarily in relation to overlapping space and time
raises logical problems. A robbery can take place over extended distance
and time, including efforts to escape the scene after property has been
taken. See Fouquette v. State, 67 Nev. 505, 527-28,
221 P.2d 404, 416-17
(1950). In this case, Michelle was detained for somewhat less than an
hour while the criminals ransacked the house. But Gonzales' argument
suggests that a victim could be detained for much longer, many hours or
perhaps even days, without converting a robbery into a kidnapping so long
as the criminals continue to leisurely search for valuables during the
entire period. It also suggests that a victim could be physically
transported over vast distances without being kidnapped, so long as the
purpose of the transportation is to collect the victim's far-flung
possessions. Thus, under Gonzales' theory, had Michelle owned a vacation
home in Miami, transporting her thousands of miles from Las Vegas to
Florida over a period of many days could conceivably be argued to have
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been necessary to effectuate the taking of all of her possessions; but that
argument is clearly not what Mendoza envisioned.4
In this case, Michelle was moved from the open garage into
the house, and then from room to room, while the criminals ransacked the
entire home. Gonzales argues that the movement was intended to assist
him in locating valuables, but as it turned out, Michelle provided almost
no help because she did not know where her husband had stored his
weapons. Indeed, her assistance turned out to be so inconsequential that
the criminals berated her for her ignorance. Yet, even after realizing she
could provide little guidance to them, the perpetrators nonetheless
continued moving her to different rooms for no ascertainable purpose.
Under these facts, the jury could have found that the robbery could have
been successfully completed by simply detaining Michelle in the garage
while other accomplices searched through the residence for valuables
without her, and Michelle was therefore unnecessarily forced at gunpoint
into the house when she did not need to be for the robbery to occur and her
concealment increased the danger to her and allowed the crime to
continue unabated for much longer than it otherwise might have.
Under the circumstances of this case, the jury could
reasonably have found that Michelle's movement substantially exceeded
4 Conversely, it is also true that multiple crimes can occur within a
very small window of time and space; here, Gonzales does not challenge
the validity of his convictions for burglary and conspiracy based upon facts
occurring in rapid succession and in close physical proximity to the facts
underlying the robbery conviction. See Garcia v. State, 121 Nev. 327, 344,
113 P.3d 836, 847 (2005) (affirming convictions for kidnapping, robbery,
and conspiracy based on events occurring close together in time and
within the same room).
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that necessary to complete the robbery and/or substantially increased the
harm to her. Whether Michelle's movement was incidental to the robbery,
and whether the risk of harm to her was substantially increased, are
questions of fact to be determined by the jury in "all but the clearest of
cases." Curtis D., 98 Nev. at 274,
646 P.2d at 548. We conclude that this
is not one of the "clearest" of cases in which the jury's verdict must be
deemed unreasonable. We therefore conclude that the evidence presented
to the jury was sufficient to convict Gonzales of both robbery and first-degree kidnapping.
CONCLUSION
For the foregoing reasons, we conclude that the district court
did not commit reversible error, and therefore affirm the judgment of
conviction.
Tao
Tire
We concur:
, C.J.
Gibbons
J.
Silver
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