McCarty v. State

Decision Date31 March 2016
Docket NumberNo. 58101.,58101.
Citation132 Nev. Adv. Op. 20,371 P.3d 1002
PartiesJason Duval McCARTY, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Christopher R. Oram, Las Vegas, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Marc P. DiGiacomo and Ryan J. MacDonald, Deputy District Attorneys, Clark County, for Respondent.

Before the Court En Banc.


By the Court, CHERRY

, J.:

Jason Duval McCarty was convicted of multiple felony counts related to the kidnapping and murder of Charlotte Combado and Victoria McGee. In two interviews with police after his initial appearance before a magistrate, McCarty denied killing the women or being present when they were killed, instead implicating Domonic Malone, but he admitted to helping to discard evidence. The district court denied a motion to suppress the statements made in those interviews, and McCarty challenges that decision on appeal. We conclude that McCarty's Sixth Amendment right to counsel attached at his initial appearance before a magistrate but that he waived his right to have counsel present at the subsequent interviews when he was informed of his rights consistent with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

, and chose to speak with police without counsel. Although McCarty is not entitled to relief on that issue, an error during jury selection requires that we reverse the judgment of conviction and remand for a new trial. In particular, after considering all the relevant circumstances, we conclude that the district court committed clear error when it rejected McCarty's objection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's use of a peremptory challenge to remove an African American from the venire.


McCarty was arrested on the evening of May 25, 2006. The supporting Declaration of Arrest identifies numerous charges, including two counts of murder with the use of a deadly weapon, three counts of kidnapping, three counts of conspiracy, and battery causing substantial bodily harm. According to the Henderson Township Justice Court's minutes, McCarty first appeared before a magistrate on May 30, 2006, five days after he was arrested. At that time, McCarty was denied bail on the murder charges and bail was set at $2 million on “all other charges.” Eight days later, counsel was appointed to represent him when he appeared for arraignment. During the eight days between his initial appearance and his arraignment, McCarty was interrogated by the State on two occasions. He contends that the statements he made during the interrogations should have been suppressed because detectives deliberately elicited incriminating statements after his Sixth Amendment right to counsel attached. The State contends that McCarty's Sixth Amendment right to counsel did not attach until the district attorney filed “formal” charges on June 7, 2006, the same date that McCarty appeared for arraignment and was appointed counsel. Both McCarty and the State are mistaken.


We first address the State's misconception about when the Sixth Amendment right to counsel attaches. The Sixth Amendment provides that, [i]n all prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI

. As the Supreme Court has explained, the Sixth Amendment right to counsel “is limited by its terms,” and therefore, ‘it does not attach until a prosecution is commenced.’ Rothgery v. Gillespie Cty., 554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) ); see also

Dewey v. State, 123 Nev. 483, 488, 169 P.3d 1149, 1152 (2007) (stating that the “right to counsel is triggered at or after the time that judicial proceedings have been initiated” (quotation marks omitted)). Commencement of prosecution, for purposes of the attachment of the right to counsel, has been tied to “the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Rothgery, 554 U.S. at 198, 128 S.Ct. 2578 (quotation marks omitted). One example of the initiation of judicial proceedings is particularly relevant in this case—an initial appearance before a magistrate.

Beginning as early as 1977, the Supreme Court has held “that the right to counsel attaches at the initial appearance before a judicial officer.” Id. at 199, 128 S.Ct. 2578

(citing Brewer v. Williams, 430 U.S. 387, 399, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) ; Michigan v. Jackson, 475 U.S. 625, 629 n. 3, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), overruled on other grounds by

Montejo v. Louisiana, 556 U.S. 778, 797, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009).) An “initial appearance” has been characterized by the Court as a hearing at which a magistrate informs the defendant of the charge and various rights in further proceedings and determines the conditions for pretrial release. Id. Based on the Court's description of an initial appearance, the proceeding in this case in justice court on May 30, 2006, was an initial appearance: McCarty was in custody on a declaration of arrest that set forth specific charges and probable cause to support those charges, was brought before a magistrate who informed him of his right to counsel, his right to remain silent, and his right to a preliminary hearing and who had already determined the conditions for pretrial release (as part of a probable cause review on May 27). Contrary to the State's assertion, the fact that the district attorney had not yet filed “formal” charges is irrelevant. Id. at 194–95, 128 S.Ct. 2578 (rejecting argument that attachment of the right to counsel “requires that a public prosecutor (as distinct from a police officer) be aware of [the] initial proceeding or involved in its conduct”); id. at 207, 128 S.Ct. 2578 ([U]nder the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government's commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused's liberty to facilitate prosecution.”); id. at 210, 128 S.Ct. 2578 (observing that “an initial appearance following a charge signifies a sufficient commitment to prosecute regardless of a prosecutor's participation, indictment, information, or what the County calls a ‘formal’ complaint”). McCarty's Sixth Amendment right to counsel attached on May 30, 2006.


“Whether the right has been violated and whether [McCarty] suffered cognizable harm are separate questions from when the right attaches.” Rothgery, 554 U.S. at 212 n. 17, 128 S.Ct. 2578

; see also

id. at 212 n. 15, 128 S.Ct. 2578 (We do not here purport to set out the scope of an individual's postattachment right to the presence of counsel. It is enough for present purposes to highlight that the enquiry into that right is a different one from the attachment analysis.”); id. at 213–14, 128 S.Ct. 2578 (Alito, J., concurring) (“As I interpret our precedents, the term ‘attachment’ signifies nothing more than the beginning of the defendant's prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel.”). “Once attachment occurs,” the defendant “is entitled to the presence of counsel during any ‘critical stage’ of the postattachment proceedings.” Id. at 212, 128 S.Ct. 2578

. “Thus, counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.” Id.

After the right to counsel attached in this case, eight days passed before counsel was appointed. During that time, McCarty was interviewed by police on two occasions (June 1 and June 6). The Supreme Court has held that postattachment interrogation by the State is a critical stage at which the defendant has a right to be represented by counsel. Montejo, 556 U.S. at 786, 129 S.Ct. 2079

(citing Massiah v. United States, 377 U.S. 201, 204–05, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) ). It is undisputed that McCarty did not have counsel present during the postattachment interrogations. Although it is arguable that the eight-day delay in the appointment of counsel was unreasonable, as the Supreme Court has “place[d] beyond doubt,” the defendant may waive the Sixth Amendment right to counsel, “so long as relinquishment of the right is voluntary, knowing, and intelligent.” Id. “The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled.” Id.

Here, the district court found, after a hearing on the motion to suppress, that McCarty “had been Mirandized.” According to the Supreme Court, “when a defendant is read his Miranda rights (which includes the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick” because even though the Miranda rights have their foundation in the Fifth Amendment, a Miranda advisement is sufficient to apprise a defendant of the nature of his Sixth Amendment rights and the consequences of abandoning those rights. Id. at 786–87, 129 S.Ct. 2079

(citing Patterson v. Illinois, 487 U.S. 285, 296, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988) ). Because McCarty has failed to demonstrate that his Miranda waiver was not voluntary, knowing, and intelligent, we cannot say that there was a Sixth Amendment violation that would have required the district court to grant the motion to suppress.


McCarty also contends that the State engaged in discriminatory jury selection when it exercised peremptory strikes to remove two African–American prospective jurors from the venire. “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.”...

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