Davis (Robert) v. State ( 2014 )

 Carriage Inn. See Lamb v. State, 127 Nev. 251 P.3d 700, 703
(2011); Rushy v. State, 121 Nev. 184, 190, 111 P.3d 690, 694 (2005).
Granted, the Carriage Inn interview was conducted in a motel
room that the police had left Davis in alone, with the door open, for several
hours. But, Davis arrived there as the prime suspect in a murder
investigation, escorted by several officers, wearing police-issued clothing,
and following an unconstitutional interrogation in police custody. His
police escort met with the motel's manager and obtained the room key,
walked Davis to and inside the room, and then stationed undercover
officers outside. The hour-long interview was conducted later that same
evening by two officers, in the same room with the door closed, and Davis
was arrested immediately upon its termination. Given these
circumstances, a reasonable person in Davis's position would not have
perceived himself free to terminate the Carriage Inn interview. See
Alward v. State, 112 Nev. 141, 155, 912 P.2d 243, 252 (1996) (holding that
for the purposes of a custody determination there are four relevant factors:
"(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") overruled on other grounds by
Rushy v. State, 121 Nev. 184, 191 n.10, 111 P.3d 690, 694 n.10 (2005).
Thus, Davis was "in custody" at the time of his interview at
the Carriage Inn, and the district court erred by admitting the statements
he made there. Miranda, 384 U.S. at 444. On appeal the State did not
provide this court a full transcript or recording of the interview or even
argue that the district court's inclusion of the statements, if error, was
harmless. Absent guidance from the State as to the complete contents of
the interview and the effect of its wrongful admission, we cannot say that
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the error was harmless beyond a reasonable doubt." See Chapman v.
California, 386 U.S. 18, 24 (1967); Medina v. State, 122 Nev. 346, 355, 143
P.3d 471, 477 (2006). Thus, we reverse Davis's conviction and remand.
Given this conclusion we need not reach Davis's remaining
challenges, though we take this opportunity to note our concern with the
use, in a murder case, of State's jury instruction 15, which defined
"wilfully" as: "simply a purpose or willingness to commit the act or to
make the omission in question. The word does not require in its meaning
any intent to violate the law, or injure another." This seemingly
contravenes Nevada law as to the requirements of wilful first-degree
murder, which the State properly identified in its instruction 20 as
requiring the "intent to kill." See Byford v. State, 116 Nev. 215, 234, 994
P.2d 700, 713 (2000); see also Cal. Jury Instr. Grim. 8.20 (2008)
(explaining that murder is in the first degree if it "was preceded and
accompanied by a clear, deliberate intent on the part of the defendant to
kill") But Davis's counsel in the trial court stated he had no objection to
the offered instructions, and it is possible to reconcile instruction 15 (as
applying to volitional conduct, generally) with instruction 20 (as applying
to first-degree murder, specifically). Still, this court was struck by the
State's acknowledgement at oral argument that it routinely offered these
conflicted instructions in first-degree murder cases. And while we cannot
reverse for plain error here, we caution the State against continuing this
practice. See Cal. Jury Instr. Grim 1.20, use note (2014) (noting that an
instruction identical to the State's instruction 15 "should not be given
where specific intent is an element of the crime").
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Therefore we ORDER the judgment of the district court
REVERSED, AND REMAND this matter to the district court for
proceedings consistent with this order.
Picp.ng
J.
Parraguirre
, J.
Saitta
cc: Hon. Scott N. Freeman, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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