Belcher v. State

Decision Date04 June 2020
Docket NumberNo. 72325,72325
Citation464 P.3d 1013
Parties Norman David BELCHER, Jr., Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

By the Court, Hardesty, J.

By the Court, HARDESTY, J.:

In this case, we conclude that the district court erred in denying a motion to suppress statements made by the appellant because he was in custody at the time and had not been advised of his rights as required by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). That error does not require reversal of the judgment of conviction, however, if it was harmless. Although the State bears the burden of proving the error was harmless, the State made no effort to meet that burden in its appellate brief filed in this case. We can treat the State's failure to argue harmlessness as a waiver of the issue or a confession that the error was not harmless, as we did in Polk v. State, 126 Nev. 180, 233 P.3d 357 (2010). But because there may be extraordinary cases in which no interest would be served by reversing a judgment of conviction without considering harmlessness, we take this opportunity to adopt three factors to help determine whether we should consider an error's harmlessness when the State has not argued harmlessness in a death penalty case. Those factors are the length and complexity of the record, the certainty that the error is harmless, and the futility and costliness of reversal and further litigation. After weighing those factors, we conclude that sua sponte harmless-error review is appropriate in this matter and that the complained-of error is harmless. We also conclude that one of the convictions for robbery was not supported by sufficient evidence and therefore reverse that conviction. Because no other issue warrants relief, we affirm the judgment of conviction in all other respects.


William Postorino sold drugs and forged prescriptions, recruiting people, including appellant Norman Belcher, to fill prescriptions and furnish him with drugs for resale. In early December 2010, Belcher purchased prescriptions from William, but he could not fill them. Belcher demanded that William return the money he paid for some of the prescriptions. After a series of threatening text messages from Belcher, William returned the money and ended his business relationship with Belcher.

Not long after the disagreement between William and Belcher, an armed intruder kicked in the front door of William's home at 2:30 in the morning. William was not home, but his 15-year-old daughter Alexus, roommate Nick Brabham, and Nick's friend Ashley Riley were there. When Nick responded to the forced entry, he was shot in the abdomen. Nick fell down and pulled himself into a closet. The intruder then shot Alexus several times. Ashley managed to escape, jumping out of a second-story window. The intruder took property from the home, including a laptop, safe, and 60-inch television. Nick survived his injuries, but Alexus succumbed to hers.

William's neighbors observed a man outside the residence before the shooting, and then again after the shooting, loading objects, including a heavy metal object, into a white car. A rented white Nissan Versa was stopped for speeding about 18 miles from William's home at 3:16 on the morning of the break-in and shooting. The driver, later identified as Belcher, was ticketed and allowed to leave. Several hours later, the Versa was set on fire. Video of the area showed Belcher walking away from the burning car. Nick identified Belcher as the shooter about a month after the shooting, when he emerged from a coma.

According to Belcher's romantic partner, Bridgette Chaplin, Belcher made comments before the shooting that suggested his motive to shoot Alexus—revenge against William. He also told Bridgette that burning evidence was one of the best ways to get rid of it. When he was being booked into jail, Belcher suggested his involvement in Alexus' killing, asking an officer if the jail would "put [him] in max custody because [he] killed a kid?"

A jury found Belcher guilty of two counts of robbery with the use of a deadly weapon and one count each of burglary while in possession of a firearm, murder with the use of a deadly weapon, attempted murder with the use of a deadly weapon, battery with the use of a deadly weapon causing substantial bodily harm, and third-degree arson. The jury sentenced him to death for the murder. This appeal followed.


Admissibility of Belcher's statement to police

Belcher argues that the district court erred in denying his motion to suppress the statements he made during an interview with detectives before his arrest. He asserts that he was in custody at the time and therefore entitled to warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

" Miranda establishes procedural safeguards ‘to secure and protect the Fifth Amendment privilege against compulsory self-incrimination during the inherently coercive atmosphere of an in-custody interrogation.’ " Stewart v. State , 133 Nev. 142, 146, 393 P.3d 685, 688 (2017) (quoting Dewey v. State , 123 Nev. 483, 488, 169 P.3d 1149, 1152 (2007) ). If a person is not advised of his or her Miranda rights, any statements made during a custodial interrogation are inadmissible at trial, Carroll v. State, 132 Nev. 269, 282, 371 P.3d 1023, 1032 (2016), except to impeach his or her inconsistent trial testimony, Lamb v. State, 127 Nev. 26, 36, 251 P.3d 700, 707 (2011). There is no dispute that Belcher was not given the Miranda warnings before he was interviewed, so the only question is whether Belcher was in custody during the interview.

"A defendant is ‘in custody’ under Miranda if he or she has been formally arrested or his or her freedom has been restrained to ‘the degree associated with a formal arrest so that a reasonable person would not feel free to leave.’ " Carroll, 132 Nev. at 282, 371 P.3d at 1032 (quoting State v. Taylor, 114 Nev. 1071, 1082, 968 P.2d 315, 323 (1998) ). Whether a defendant is in custody is determined by the totality of the circumstances. Id. Those circumstances include the interrogation site, any objective indicia of arrest, "and the length and form of questioning." Id. (internal quotation marks omitted). Based on our review of the record and giving deference to the district court's relevant factual findings that are supported by the record, we conclude that Belcher was in custody when detectives interrogated him and therefore the district court erred in denying the motion to suppress and the motion to reconsider that decision. Id. at 281, 371 P.3d at 1031 (explaining that the custody determination presents a mixed question of law and fact, so the appellate court will give deference to the district court's findings of historical facts if they are supported by the record but will review de novo the district court's conclusion as to custody).

Site of interrogation

The first factor—the site of the interrogation—indicates that Belcher was in custody during the interview. Detectives transported Belcher to the homicide offices and questioned him in an interview room. Although the location of the interview at the homicide offices does not definitively establish that Belcher was in custody, see California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (holding that an interrogation is not necessarily custodial because it occurred at a police station), it is suggestive of custody considering the other circumstances related to the location, see Carroll , 132 Nev. at 282, 371 P.3d at 1032 (recognizing that a suspect who is driven to the interview site could not terminate the interview). The detectives chose to transport Belcher to the homicide offices for the interview when they could have questioned him in a less intimidating location. By transporting Belcher to the homicide offices, the detectives made it more difficult for Belcher to leave without their assistance. The environment in the interview room further conveyed that Belcher was not free to leave. For example, when the detectives spoke with Belcher, they sat in front of the only door to the room, such that Belcher could not terminate the interview or leave the room unless the detectives moved and allowed him to do so. Cf. id. (recognizing a defendant was in custody where two detectives sat between the defendant and the sole door to a very small room). And when detectives left the room, they locked the door behind them. Considering all of the circumstances surrounding the site of the interrogation, we conclude they suggest that Belcher was in custody.

Objective indicia of arrest

The second factor—objective indicia of arrest—also indicates that Belcher was in custody when he made his statements. Objective indicia of arrest include the following:

(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.

Taylor , 114 Nev. at 1082 n.1, 968 P.2d at 323 n.1. Not all of these factors need be present to make a determination as to custody. Id. With the exception of being placed under formal arrest before the interview, all the objective indicia of arrest are present in this case.

First, the detectives' actions suggested that Belcher was not free to leave. Detectives approached Belcher outside his apartment and handcuffed him. He was detained in handcuffs for approximately 10 to 15 minutes before another set of detectives asked him to come to their office to answer questions. Belcher remained in handcuffs for the 30-minute ride in the police vehicle. The detectives...

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