111 P.3d 690 (Nev. 2005), 41566, Rosky v. State

Docket Nº:41566.
Citation:111 P.3d 690
Opinion Judge:[9] The opinion of the court was delivered by: Maupin, J.
Party Name:John ROSKY, Appellant, v. The STATE of Nevada, Respondent.
Case Date:May 26, 2005
Court:Supreme Court of Nevada

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111 P.3d 690 (Nev. 2005)

John ROSKY, Appellant,


The STATE of Nevada, Respondent.

No. 41566.

Supreme Court of Nevada

May 26, 2005

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Kay Ellen Armstrong, Carson City, for Appellant.

Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Respondent.




Appellant John Rosky was convicted in district court of sexual assault and indecent exposure. 1 On appeal, Rosky asserts that the district court committed reversible error by denying his motion to suppress a pre-arrest videotaped statement he made to investigators, by admitting prior bad act testimony, and by instructing the jury on flight. We conclude that the district court committed no error in the admission of Rosky's videotaped statement to detectives and in the giving of its flight instruction. However, we conclude that the admission of prior bad act testimony as proof of a common plan or scheme or modus operandi under NRS 48.045(2), combined with improper limiting instructions and the State's improper remarks during its opening statement, compels reversal of Rosky's sexual assault conviction. These errors, however, are harmless with respect to the conviction for indecent exposure. We therefore affirm the judgment of

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conviction of indecent exposure, but we reverse the judgment of conviction of sexual assault and remand for a new trial on that charge.


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 1 1/2 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 2 warnings. The district court concluded that Miranda did not apply because the statements were elicited in a noncustodial setting. It further concluded that the statements were voluntary. Rosky argues on appeal that these determinations are erroneous and require reversal.

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. 3 Further, we have previously applied a highly deferential "substantial evidence" standard in reviewing the ultimate question of the voluntariness of a defendant's confession. 4 Following the United States Supreme Court's pronouncements in Thompson v. Keohane 5 and Miller v. Fenton 6 on these issues, we clarify that a trial court's custody and voluntariness determinations present mixed questions of law and fact subject to this court's de novo review. 7

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,' " 8 requiring the "application of the controlling legal standard to the historical facts." 9 We therefore overrule our prior case law to the extent that it has applied more deferential standards of direct appellate review than the Supreme Court's pronouncements in these contexts. 10

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For this standard of review to function properly, "trial courts must exercise their responsibility to make factual findings when ruling on motions to suppress." 11 As one state court has explained:

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." 13 "Custody" for Miranda purposes means a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. 14 If there is no formal arrest, the pertinent inquiry is whether a reasonable person in the suspect's position would feel "at liberty to terminate the interrogation and leave." 15 A court must answer this question by taking an objective look at "all of the circumstances surrounding the interrogation." 16 The United States Supreme Court has recently indicated that a suspect's prior history with law enforcement has no bearing on the objective determination of whether the suspect is in custody for Miranda purposes, 17 although this factor may be relevant in deciding whether a confession is voluntary. 18

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." 19 Here, it is undisputed that the detectives interrogated Rosky in a police substation and that the investigation was focused solely upon him. However, as the State correctly notes, this court has previously found interrogations to be noncustodial when suspects voluntarily accompanied officers to the police station, understood that they were not under arrest and voluntarily responded to police questioning. 20 But, because no one factor is dispositive, 21 we turn to an independent analysis of Alward 's third and fourth factors, indicia of arrest and 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)

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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.

Rosky was not under formal arrest and the detectives informed him that his participation was voluntary. They also advised him that he was free to leave at any time. Rosky was not handcuffed, could have moved freely about during questioning and voluntarily responded to the inquiries. Further, while the interview lasted over two hours, Rosky could have called a break during the questioning and in fact did take an unaccompanied ten-minute break outside of the station at the suggestion of one of the detectives. Upon returning from the break, detectives once again informed Rosky that he was not under arrest and asked if he still wanted to talk to them. Rosky continued talking to detectives and eventually admitted to consensual intercourse with CJW, involving only slight penetration. While the detectives used mild forms of deception during the taped statement, confronted Rosky with their belief that he was guilty and arrested Rosky after the interview, our review of the videotaped statement reveals no use of "strong arm" or impermissibly coercive tactics. In fact, the interrogation techniques used were highly professional in their execution. These facts militate against indicia of arrest.

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.


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. 23 In this context, the prosecution has the burden of proving by a preponderance of the evidence that the statement was voluntary, 24 i.e., that "the defendant's will was [not] overborne." 25 "[A] confession is involuntary if it was coerced by physical intimidation or psychological pressure." 26 Several factors are relevant in deciding whether a suspect's statements are voluntary: " '[t]he youth of the accused; his lack of education or his low intelligence; the lack of any advice of constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of physical punishment such as the deprivation of food or sleep.' " 27 A suspect's prior experience with law enforcement is also a relevant consideration. 28

We conclude that Rosky's pre-arrest statements to police were voluntarily given. First, when asked if he...

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