                                                     132 Nev., Advance Opinion 2.3
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                DEANGELO R. CARROLL,                                  No. 64757
                Appellant,
                vs.
                                                                                    FILED
                THE STATE OF NEVADA,                                                 APR 0 7 2016
                Respondent.
                                                                                    T1 E K. LINDEMAN
                                                                                              m        RT

                                                                           BY
                                                                                    C IE D
                                                                                                  •1
                            Appeal from an amended judgment of conviction for co iracy
                to commit murder and first-degree murder with a deadly weapon. Eighth
                Judicial District Court, Clark County; Valerie Adair, Judge.
                            Affirmed.


                Mario D. Valencia, Henderson,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                District Attorney, and Marc P. DiGiacomo and Jonathan E. VanBoskerck,
                Chief Deputy District Attorneys, Clark County,
                for Respondent.




                BEFORE PARRAGUIRRE, C.J., DOUGLAS, AND CHERRY, JJ.

                                                 OPINION

                By the Court, CHERRY, J.:
                            In this opinion, we focus on whether the district court erred
                when it admitted Deangelo Carroll's inculpatory statements to the police.
                Carroll was not advised of his rights pursuant to Miranda      V.   Arizona, 384
                U.S. 436 (1966), and he claims he was subject to a custodial interrogation.
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                The State of Nevada claims that Miranda warnings were not necessary
                because Carroll spoke with the police voluntarily. We conclude that the
                district court erred in denying Carroll's motion to suppress his statements
                to police because police subjected Carroll to a custodial interrogation
                without advising him of his Miranda rights. Nonetheless, we conclude
                that the error was harmless beyond a reasonable doubt, so we decline to
                reverse these convictions.
                                 FACTS AND PROCEDURAL HISTORY
                            On May 19, 2005, police discovered Timothy J. Hadland's body
                on Northshore Road near Lake Mead. Along with Hadland's body, police
                found advertisements for the Palomino Club. Hadland was fired from his
                job at the Palomino Club a week before his death. Palomino Club
                management recruited Carroll to "knock[] off" Hadland because Hadland
                was spreading negative rumors about the club.
                            Carroll was also an employee at the Palomino Club. Carroll
                used the club's van to promote the club by handing out flyers to cab
                drivers and tourists. On the night of Hadland's murder, Carroll drove the
                club's van with two other men, Rontae Zone and Jayson Taoipu, who
                occasionally assisted him. Carroll recruited Kenneth Counts for this
                assignment because Carroll knew Counts would "take care of' someone for
                money.
                            Carroll, Zone, Taoipu, and Counts went to an area near Lake
                Mead, and Carroll called Hadland. When Hadland noticed the Palomino
                Club's van, Hadland parked his car in front of the van and walked to the
                driver's side window where Carroll was sitting. As Hadland and Carroll
                talked, Counts exited the van through the side door, snuck around to the
                front, and fired two shots into Hadland's head. Counts then jumped back
                into the van and ordered Carroll to return to town.
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                            Carroll drove directly to the Palomino Club and told club
                management what occurred. Louis Hidalgo, Jr., the general manager of
                the club, directed other employees to give Carroll $6,000 in cash to pay
                Counts. Carroll gave the money to Counts, who then left in a cab. The
                next morning, at Hidalgo's direction, Carroll bought new tires for the van
                and disposed of the old tires at two separate locations.
                            The evening after Hadland's murder, homicide detectives
                contacted Carroll at the Palomino Club, as Carroll's phone number was
                the last phone number on Hadland's phone. When the detectives asked to
                speak with Carroll, he agreed, and the detectives drove Carroll to the
                homicide office for questioning. Carroll sat in a small room at a table with
                his back to the wall, while the detectives sat between him and the exit.
                The detectives did not give Carroll Miranda warnings before questioning
                him, but they informed Carroll that he was speaking with them
                voluntarily. Eventually, Carroll implicated himself, Palomino Club
                management, and Counts in Hadland's murder.
                            Carroll then volunteered to wear a recording device to
                corroborate his story by speaking with the Palomino Club management.
                The detectives strategized with Carroll before he spoke with the
                management each time. The information on these recordings allowed the
                State to charge three members of Palomino Club management for their
                roles in Hadland's murder.
                            After the detectives finished obtaining information and
                evidence from Carroll, they arrested him. The State's information charged
                Carroll with conspiracy to commit murder and murder with use of a
                deadly weapon.



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                            After seven days of trial, the jury returned a guilty verdict on
                all charges. The jury subsequently returned its penalty verdict and
                recommended a sentence of life with the possibility of parole. The district
                court ultimately sentenced Carroll to 36-120 months on the conspiracy
                conviction, life with the possibility of parole after 20 years for the first-
                degree murder conviction, and life with the possibility of parole after 20
                years, consecutive, for the deadly weapon enhancement.
                                               DISCUSSION
                            On appeal, Carroll argues that: (1) the wire recordings should
                not have been admitted against him at trial because they were not
                relevant, were prejudicial, consisted of inadmissible hearsay, and violated
                his right against self-incrimination; (2) the district court erred when it
                admitted his statements to the detectives because the detectives violated
                Miranda and coerced his statement; (3) there was insufficient evidence to
                support the convictions for conspiracy to commit murder, first-degree
                murder, and the deadly weapon enhancement; and (4) cumulative error
                warrants reversal.
                Wire recordings
                      Whether the relevance of the recordings was substantially outweighed
                      by unfair prejudice
                            Carroll argues that the district court abused its discretion by
                admitting wire tape recordings because they were not relevant to his guilt
                or innocence and were unfairly prejudicial.' He explains he was playing a



                      'The State's argument that because Carroll referenced the
                recordings in his closing argument, he cannot attack their relevance now
                is unpersuasive. No defendant should be expected to ignore damning
                evidence against him even if he disagrees with its admissibility.

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                role fed to him by detectives, so a juror could not discern which statements
                Carroll fabricated and which statements the detectives fed him.
                              Carroll did not object based on relevance or prejudice; thus,
                this court reviews for plain error.   Baltazar-Monterrosa v. State, 122 Nev.
                606, 614, 137 P.3d 1137, 1142 (2006). Under the plain error standard, this
                court only reverses a decision if the error affects the appellant's
                substantial rights. Rimer v. State, 131 Nev., Adv. Op. 36, 351 P.3d 697,
                715 (2015).
                              Evidence is relevant if it has "any tendency to make the
                existence of any fact that is of consequence to the determination of the
                action more or less probable than it would be without the evidence." NRS
                48.015. Evidence that is not relevant is simply inadmissible. NRS 48.025.
                Even if relevant, evidence "is not admissible if its probative value is
                substantially outweighed by the danger of unfair prejudice, of confusion of
                the issues or of misleading the jury." NRS 48.035.
                              Here, Carroll's argument that the recordings were not
                relevant is without merit. Even under Carroll's account of the facts, the
                purpose of the recordings was to get the managers of the Palomino Club to
                corroborate Carroll's claim that he was supposed to beat up Hadland, not
                kill him. If the recordings accomplished exactly what Carroll wanted, they
                would have made it less probable that Carroll intended for Hadland to die.
                Unfortunately for Carroll, there was evidence on the tapes to support both
                his position that this was never meant to be a killing, and the State's
                position, that it was.
                              Carroll's argument that the tapes' probative value was
                substantially outweighed by their unfairly prejudicial effect also fails. The
                central issue of this case was Carroll's intent before and during the

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                shooting. Any evidence allowing the jurors to ascertain his intent is
                extremely probative. Further, the jury heard the proper context for
                Carroll's statements—that the tapes were made as part of the
                investigation, Carroll wore the wire to get incriminating information from
                the other players, and his statements were fabrications. Because the
                probative value was great, and the danger of unfair prejudice or confusion
                was mostly, if not completely, explained away, we conclude that the
                district court did not commit plain error when it admitted the tapes.
                            Because Carroll is unable to demonstrate plain error, we
                conclude that the district court did not plainly err when it admitted the
                recordings at trial. We so conclude because relevancy is a very broad
                standard and the tapes could prove Carroll's intent. Also, because
                Carroll's intent was the primary issue at trial, the probative value is not
                substantially outweighed by the unfairly prejudicial effect.
                      Whether Carroll's statements were inadmissible hearsay
                            Carroll argues his statements on the recordings were not his
                own but those of a state actor. He further argues that it would be absurd
                for the police to feed a person lines, then use those lines against that
                person at trial. The issue before us is whether the wire recordings were
                inadmissible hearsay.
                            Carroll did not object at trial based on hearsay, thus, this
                court reviews only for plain error. Baltazar-Monterrosa, 122 Nev. at 614,
                137 P.3d at 1142.
                            Hearsay is any out-of-court statement offered to prove the
                truth of the matter asserted. NRS 51.035. Hearsay is generally
                inadmissible, unless there is a statutory exception. NRS 51.065(1). A
                party's own statement offered against that party is not hearsay. NRS
                51.035(3)(a). Also, a party's statement offered to provide context to
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                another person's statement, rather than for its own truth, is not hearsay.
                Wade v. State, 114 Nev. 914, 917-18, 966 P.2d 160, 162-63 (1998), opinion
                modified on denial of reh'g, 115 Nev. 290, 986 P.2d 438 (1999).
                            Carroll's argument that his statements were inadmissible
                hearsay is not supported by the evidence. The State offered the
                statements to provide context to those of the Palomino Club managers.
                Further, had the State offered Carroll's statements for their truth, they
                would still be admissible as statements of a party pursuant to NRS
                51.035(3)(a). Carroll claims the detectives told him what to say, but the
                evidence at his trial showed the detectives simply assisted with general
                subject matter; Carroll decided what to say and how to say it. Carroll's
                recording device could not transmit live audio, so the detectives could not
                communicate with Carroll while he recorded. Accordingly, we conclude
                that the wire recordings were admissible because there is no evidence
                before this court at this time indicating the police directly instructed
                Carroll what to say. We also conclude that the recordings were admissible
                because Carroll's statements were not offered to prove their truth.
                      Whether the statements of the managers of the Palomino Club were
                      made in furtherance of the conspiracy
                            Carroll argues the statements of the Palomino Club's
                managers on the wire recordings were not admissible because the
                statements were not made in furtherance of the conspiracy. Carroll
                further claims that because he withdrew from the conspiracy by acting as
                the State's agent, the statements were not made by coconspirators and
                were inadmissible.
                            A statement made by a member of a conspiracy, made during
                the course of and in furtherance of the conspiracy and offered against
                another member of the conspiracy, is not hearsay. NRS 51.035(3)(e).
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                Furtherance of the conspiracy is not limited to the commission of the
                crime; it also applies to attempts to avoid detection.    Holmes v. State, 129
                Nev., Adv. Op. 59, 306 P.3d 415, 422 (2013). At the time the statement is
                made, the defendant need not be a member of the conspiracy.                See
                McDowell v. State, 103 Nev. 527, 529-30, 746 P.2d 149, 150 (1987) (stating
                that NRS 51.035(3)(e) requires "that the co-conspirator who uttered the
                statement be a member of the conspiracy at the time the statement was
                made." The statute "does not require the co-conspirator against whom the
                statement is offered to have been a member at the time the statement was
                made."); see also United States v. Patel, 879 F.2d 292, 294 (7th Cir. 1989)
                (holding "that for withdrawal to limit a conspirator's liability and his
                exposure to statements by co-conspirators, mere cessation of activity is not
                enough [1:" the defendant must take affirmative steps by "either the
                making of a clean breast to the authorities, or communication of the
                abandonment in a manner calculated to reach co-conspirators" (internal
                quotations and citations omitted)).
                            While avoiding detection and arrest are in furtherance of a
                conspiracy, the conspiracy does not continue endlessly.     State v. Davis, 528
                P.2d 117, 119 (Or. Ct. App. 1974). This court has not identified a bright-
                line test to determine when an act of concealment may be considered in
                furtherance of a conspiracy. In Davis, however, the Oregon Court of
                Appeals distinguished between:
                            (1) those affirmative acts of concealment directly
                            related to the substantive crime of a nature within
                            the contemplation of the conspirators, and
                            (2) those general acts of concealment, by silence or
                            by reaction to police activity, which occur after the
                            primary objectives of the conspiracy have been
                            achieved and the acts directly in furtherance of
                            those objectives have been performed.
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                 Id.   In considering this distinction, the Oregon court determined that
                 disposing of evidence was still in furtherance of the conspiracy, but
                 concealing evidence upon arrest was less definitive. Id.
                             Here, Carroll's argument that he was no longer a
                 coconspirator is without merit. This court has ruled that the defendant
                 need not be a member of the conspiracy at the time the statement was
                 made, so long as the declarant was part of the conspiracy when the
                 statement was made and the defendant was a part of the same conspiracy
                 at some point.    See McDowell, 103 Nev. at 529-30, 746 P.2d at 150.
                 Although Carroll was assisting the police at the time of the wire recording,
                 the Palomino Club managers believed they were still trying to avoid
                 detection. Therefore, the district court did not err when it determined the
                 managers were Carroll's coconspirators pursuant to NRS 51.035(3)(e).
                 Moreover, Carroll did not make his withdrawal known to his
                 coconspirators. Lastly, we cannot conclude that he truly made a "clean
                 breast" to authorities because he told multiple stories to the detectives in
                 order to minimize his culpability. See Patel, 879 F.2d at 294.
                             Carroll's argument that the statements were not made in
                 furtherance of the conspiracy is likewise unsuccessful. Carroll cited Davis,
                 but the Oregon Court of Appeals did not decide whether post-arrest
                 statements were in furtherance of the conspiracy; thus,     Davis does not
                 help Carroll here. Davis, 528 P.2d at 119. Here, the managers made their
                 statements prior to arrest. We conclude that these statements were
                 admissible because even if Carroll had withdrawn from the conspiracy, the
                 other members had not. Thus, the managers' statements were in
                 furtherance of the conspiracy.



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                        Whether the club managers' statements violated Carroll's right
                        against self-incrimination
                                Carroll argues the admission of the managers' statements
                  violated his right against self-incrimination because he had to choose
                  between forfeiting his right to explain the statements or his right to not
                  testify. Carroll concludes this violated his substantial rights because the
                  State referenced his fabricated statements as proof that he intended to kill
                  Hadland rather than to orchestrate a battery. We conclude Carroll's
                  constitutional rights were not violated because these statements did not
                  force him to testify and both parties provided the proper context to the
                  statements.
                                When the district court admitted the wire recordings, Carroll
                  did not object based on his right against self-incrimination. Although
                  Carroll did not preserve the self-incrimination issue for appeal, because it
                  is a constitutional issue, we may address it.   See McCullough v. State, 99
                  Nev. 72, 74, 657 P.2d 1157, 1158 (1983).
                                Both the United States and Nevada Constitutions protect a
                  defendant in a criminal action from being compelled to testify against
                  himself. U.S. Const amend. V, § 3; Nev. Const. art. 1, § 8.
                                Carroll complains that the admission of the wire recordings
                  put him between the proverbial rock and a hard place in deciding whether
                  to testify. However, the same may be said about essentially every
                  incriminating piece of evidence the State offers in any criminal
                  prosecution. Facing such a difficult decision to testify does not violate a
                  defendant's constitutional rights. See Dzul v. State, 118 Nev. 681, 693, 56
                  P.3d 875, 883 (2002) ("[T]he Fifth Amendment does not insulate a
                  defendant from all difficult choices that are presented during the course of
                  criminal proceedings . . ." (internal quotations omitted)). Because Carroll
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                did not testify and was still able to put the recordings in the proper
                context, he fails to demonstrate that his constitutional right against self-
                incrimination was violated. Therefore, we conclude that the district court
                did not abuse its discretion when it admitted Carroll's or his
                coconspirators' statements from the wire recordings.     See McCullough, 99
                Nev. at 74, 657 P.2d at 1158; Chavez v. State, 125 Nev. 328, 339, 213 P.3d
                476, 484 (2009) ("We generally review a district court's evidentiary rulings
                for an abuse of discretion.").
                Police interrogation
                      Whether police coerced Carroll's statement
                             Carroll asserts the police coerced his statement by promising
                him leniency if he implicated himself in Hadland's murder. The question
                for our consideration is whether the police promised Carroll leniency when
                they promised to take him home and, if so, whether this promise coerced
                his statement.
                             "[T]he totality of the circumstances' is the primary
                consideration for determining voluntariness.    Blackburn v. Alabama. 361
                U.S. 199, 206 (1960) (quoting Fikes v. Alabama, 352 U.S. 191, 197 (1957)).
                This court has held that "[t]he question in each case is whether the
                defendant's will was overborne when he confessed." Passama v. State, 103
                Nev. 212, 214, 735 P.2d 321, 323 (1987). The trial court should consider
                factors such as: "the 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." Id.
                             Trial courts should also consider police deception in evaluating
                the voluntariness of a confession. Sheriff, Washoe Cty. v. Bessey,   112 Nev.
                322, 325, 914 P.2d 618, 619 (1996). Deception by police does not
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                automatically render a confession involuntary. Id. at 325, 914 P.2d at 620.
                Police subterfuge is permissible if "the methods used are not of a type
                reasonably likely to procure an untrue statement." Id.
                            In looking at the totality of the circumstances based on the

                Passama factors, we conclude that the police did not coerce Carroll's
                statement. Police did not take advantage of Carroll through his youth, a
                lengthy detention, repeated and prolonged questioning, or physical
                punishment. Thus, these factors weigh in the State's favor. As previously
                discussed, the police did not advise Carroll of his Miranda rights, which
                weighs in Carroll's favor. Evidence at trial revealed Carroll has below-
                average intelligence, but a detective testified that during the
                interrogation, he did not observe any indicators that Carroll was
                cognitively disabled. Therefore, this factor does not weigh for or against
                the State. Accordingly, the Passama factors do not show police overcame
                Carroll's will when they interrogated him.
                            The use of falsehoods during the interrogation also does not
                show police overcame Carroll's will. Carroll complains the police promised
                him leniency and that he would not go to jail. However, the record does
                not indicate any such promises. The police promised Carroll they would
                take him home at the conclusion of the interview, which they did. The
                police also promised Carroll they would attempt to prove his version of
                events was true, which they did by making the recordings with Carroll's
                coconspirators. While Carroll may have misunderstood the detectives'
                statements as a promise of leniency, the promise of taking Carroll home at
                the end of the interrogation and trying to prove his story were not
                impermissible falsehoods that would render Carroll's statements
                involuntary and entitle him to a new trial.      See id.   Accordingly, we

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                 conclude that the detectives' promises to take Carroll home did not
                 constitute a promise of leniency and did not coerce his statement.
                       Whether Carroll was in custody for Miranda purposes
                             Carroll also claims that police violated his Miranda rights.
                 The question presented is whether Carroll was in custody for purposes of
                 Miranda and, if so, whether he properly received Miranda warnings.
                             "[Al trial court's custody and voluntariness determinations
                 present mixed questions of law and fact subject to this court's de novo
                 review." Rosky v. State, 121 Nev. 184, 190, 111 P.3d 690, 694 (2005). This
                 court explained the manner in which it reviews these decisions:
                                   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 [are] 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. . .
                                   For this standard of review to function
                             properly, "trial courts must exercise their
                             responsibility to make factual findings when
                             ruling on motions to suppress."
                 Id. at 190-91, 111 P.3d at 694-95 (quoting In re G.O., 727 N.E.2d 1003, 1010
                 (Ill. 2000)). "[W]here the trial court's determination that a defendant was
                 not improperly induced to make the statement [to police] is supported by
                 substantial evidence, . . . such a finding will not be disturbed on appeal."
                 Barren v. State, 99 Nev. 661, 664, 669 P.2d 725, 727 (1983).
                             Initially, we take issue with the district court's failure to issue
                 an order containing findings of fact and conclusions of law. See Rosky, 121
                 Nev. at 191, 111 P.3d at 695 (explaining that "trial courts must exercise

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                 their responsibility to make factual findings when ruling on motions to
                 suppress" (internal quotations omitted)). In the instant case, the district
                 court denied Carroll's pretrial motion without making factual findings or
                 conclusions of law. We again remind the district courts of their duty to
                 enter a proper order with factual findings and legal conclusions when
                 ruling on motions to suppress in order to facilitate appellate review. The
                 trial court did not make any "factual findings pertaining to the 'scene- and
                 action-setting' circumstances surrounding [the] interrogation," see id. at
                 190, 111 P.3d at 694, so we cannot give deference to any such findings.
                             Miranda warnings are "required when a suspect is subjected
                 to a custodial interrogation." Archanian v. State, 122 Nev. 1019, 1038, 145
                 P.3d 1008, 1021 (2006). A defendant's statements made during a custodial
                 interrogation may be admitted at trial only if Miranda rights were
                 administered and validly waived.     Koger v. State, 117 Nev. 138, 141, 17
                 P.3d 428, 430 (2001). 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."   State v. Taylor, 114 Nev. 1071, 1082, 968
                 P.2d 315, 323 (1998). Custody is determined by the totality of the
                 circumstances, "including the site of the interrogation, whether the
                 objective indicia of an arrest are present, and the length and form of
                 questioning."   Id. at 1081-82, 968 P.2d at 323. An individual is not in
                 custody for Miranda purposes if the police are merely asking questions at
                 the scene of the crime or where an individual questioned is merely the
                 focus of a criminal investigation.   Id. at 1082, 968 P.2d at 323 (internal
                 citations omitted).



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                                Site of the interrogation
                                First, the site of the interrogation indicates Carroll was in
                    police custody when he gave his statement. A detective testified that
                    although Carroll drove himself to the Palomino Club, the police drove
                    Carroll in an official police vehicle to the homicide office to conduct the
                    nterrogation. The detective admitted they could have questioned Carroll
                    at the Palomino Club where they found him, or at Carroll's residence,
                    which was a short walk from the club, and still have been able to make an
                    audio recording of the questioning. However, the detective stated the
                    homicide office is a "more intimidating place to question a witness." The
                    detective also testified that the interrogation room was small and had only
                    one door. He explained that Carroll sat behind a desk with his back
                    toward the wall furthest from the door. The detective also explained that
                    he and another detective sat on the other side of the desk, closest to the
                    door.
                                This environment suggests that Carroll was in custody. Police
                    drove him to the homicide office for questioning, so Carroll could not
                    terminate the interrogation or leave the homicide office unless the
                    detectives agreed and gave him a ride home. Moreover, the detectives
                    deliberately intimidated Carroll by taking him to the homicide office
                    instead of questioning him at a more convenient location.
                                Additionally, the arrangement of the room suggests Carroll
                    was in custody. By seating Carroll in a very small room, the furthest from
                    the door, and putting a desk and two police detectives between him and
                    the exit, Carroll was physically precluded from leaving the room unless
                    the detectives stood, moved, and allowed him to leave. Accordingly, the
                    site of the interrogation suggests Carroll was in custody at the time of the
                    interrogation.
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                             This case is distinguishable from Silva v. State, 113 Nev. 1365,
                 951 P.2d 591 (1997). In Silva, we relied upon California v. Beheler, 463
                 U.S. 1121, 1125 (1983), and concluded that questioning the suspect at a
                 police station "does not automatically mean that he was in custody."
                 Silva, 113 Nev. at 1370, 951 P.2d at 594. "Silva was questioned for
                 approximately one to two hours and was allowed to speak with his sister
                 when he requested." Id. at 1369, 951 P.2d at 594. We also noted that the
                 record did not show that police withheld food or drink from Silva and that
                 the police did not promise him anything. Id. Based on the totality of the
                 circumstances, we concluded that the site of the interrogation did not
                 create a custodial interrogation. Id. at 1370, 951 P.2d at 594.
                             Here, however, the circumstances are different. Police did not
                 allow Carroll to use his telephone when he said he needed to make a call
                 so he could confirm that he did not kill Hadland, and police actually took
                 Carroll's telephone away from him. Police also told Carroll to "sit tight"
                 and did not take him home when he said that he wanted to go home. The
                 detectives also promised Carroll that they would confirm his claim that he
                 did not murder Hadland and was acting under the direction of the
                 Palomino Club management. Thus, we cannot reach the same conclusion
                 we reached in Silva.
                             Objective indicia of arrest
                             Objective indicia of arrest comprise 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
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                            strong-arm      tactics   or    deception    during
                            questioning; and (7) whether the police arrested
                            the suspect at the termination of questioning.
                Taylor, 114 Nev. 1071, 1082 n.1, 968 P.2d 315, 323 n.1.
                            First, although the detectives testified that Carroll was not
                under arrest when they interrogated him and that Carroll was not
                handcuffed or in any way restrained, the objective indicia of arrest
                likewise indicate Carroll was in police custody when he gave his
                statement. The interrogating detectives did not tell Carroll he was free to
                leave. At the beginning of the interrogation, a detective informed Carroll
                he was not under arrest "right now" and noted that Carroll was speaking
                with him and another detective voluntarily. However, the record does not
                reflect that police informed Carroll he could refuse to speak with them or
                terminate the interrogation at any time if he wished. Police did not
                provide Carroll with Miranda warnings until the interrogation was two-
                thirds finished and he implicated himself in Hadland's murder.
                Additionally, Carroll repeatedly informed the detectives that he wanted to
                go home before making implicating statements, but the detectives ignored
                his requests. Thus, this factor weighs in Carroll's favor.
                            Second, as previously indicated, police informed Carroll he
                was not under formal arrest when he was questioned. Thus, this factor
                weighs in the State's favor.
                            Third, as also indicated previously, the record shows the
                interrogation room was very small and likely prevented Carroll from
                moving freely when he was questioned. The room was arranged with one
                small table and three chairs. Also, there was only one door, and the
                detectives seated Carroll furthest from the door. He also could not leave
                the room without asking the detectives to move and allow him to leave.

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                 Additionally, detectives did not let Carroll outside the interrogation room;
                 they instructed him to "sit tight." Thus, Carroll could not move about
                 freely during questioning and this factor weighs in Carroll's favor.
                              Fourth, the transcript of Carroll's statement to police shows
                 Carroll voluntarily responded to the detectives' questions, although he did
                 not respond honestly until the detectives promised to protect him and take
                 him home after the interrogation. Nevertheless, Carroll repeatedly voiced
                 his apprehension in speaking candidly to the detectives. When a detective
                 accused Carroll of not being honest with them, Carroll told the detective
                 he did not want to get into trouble because he had a child at home. When
                 another detective told Carroll they knew he was not telling them the
                 whole story, Carroll told them he feared for his life and feared he could go
                 to jail. Carroll also repeatedly asked if he would be allowed to go home
                 and repeatedly said he wanted to go home, but detectives did not
                 terminate the interview and take Carroll home. Thus, this factor weighs
                 in Carroll's favor.
                              Fifth, the detectives dominated the atmosphere when they
                 interrogated Carroll. Two detectives questioned Carroll throughout the
                 interrogation; not one of the three questioning detectives ever spoke with
                 Carroll alone. Additionally, when Carroll asked the detectives if he could
                 make a telephone call to confirm his story, the detectives refused and took
                 Carroll's phone from him. Similarly, the detectives transported Carroll to
                 the homicide office, and they did not take him home when he expressed a
                 desire to go home. Thus, this factor clearly and overwhelmingly weighs in
                 Carroll's favor.
                              Sixth, a detective deceived Carroll when he claimed police
                 obtained Carroll's cellular phone records indicating Carroll was near the

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                scene of the crime when it occurred. The detectives did not tell Carroll
                any other blatant lies to secure his statement. Strong-arm tactics,
                however, are evident throughout the interrogation. The detectives
                transported Carroll from his place of employment to the homicide office,
                instead of a more convenient or more comfortable location, questioned him
                in a small room, and took his phone from him. These tactics indicated
                custody.
                            The detectives also used the tactic of promising Carroll that
                they would take him home after the interrogation and prove his story
                about how Hadland was killed if he told them the truth. This tactic was
                successful. Prior to making this promise, Carroll did not incriminate
                himself in Hadland's murder. After the detective made this promise to
                Carroll, Carroll implicated himself in the murder. And detectives testified
                that the last detective to question Carroll intentionally used threatening
                interrogation techniques. Thus, this factor weighs in Carroll's favor.
                            Last, a detective testified that at the end of the interrogation,
                the detectives took Carroll home—he was not arrested at that time. Thus,
                this factor weighs in favor of the State.
                            In sum, only two of seven factors weigh in the State's favor,
                one factor does not weigh for or against the State, and four of the factors
                weigh in Carroll's favor. Accordingly, objective indicia of arrest suggest
                Carroll was in custody at the time of the interrogation.
                      Length and form of questioning
                            At 9:25 p.m., detectives questioned Carroll for approximately
                two and one-half hours, excluding breaks. The detectives met Carroll at
                the Palomino Club and took him from his place of employment and
                questioned him until almost midnight. Furthermore, a detective testified
                that one purpose of the breaks was to let Carroll "kind of go a little bit
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                       crazy." Moreover, a third detective joined the original two because the
                       third detective was more aggressive than the first two detectives. Such a
                       scenario belies the detective's trial testimony that they questioned Carroll
                       as a witness, not a suspect. Had detectives truly questioned Carroll as a
                       witness, they likely would have done so at a more convenient, less
                       intimidating location, such as at the Palomino Club where they contacted
                       him, or at his home, which was near the club, rather than the police
                       station across town. And if the police had simply questioned Carroll as a
                       witness and not as a suspect, thefl detectives would likely not have taken
                       breaks to let Carroll's mind "go crazy" or found a need to use a third, more
                       aggressive detective. Therefore, the length and form of questioning
                       suggest Carroll was in custody at the time of the interrogation.
                                   The detectives chose not to provide Miranda warnings until
                       the last of the three detectives began questioning Carroll, which was after
                       he had already made inculpatory statements. Although Carroll was not
                       formally under arrest, he was in custody and should have received
                       Miranda warnings. See Archanian. 122 Nev. at 1038, 145 P.3d at 1021-
                       22. We therefore conclude that the district court erred by not suppressing
                       Carroll's statements.
                             Post-Miranda statements
                                   We additionally conclude that Carroll's statement to police
                       after he received the Miranda warnings should have been suppressed
                       pursuant to the Supreme Court's holding in Missouri v. Seibert, 542 U.S.
                       600, 611-12 (2004). In Seibert, like here, police delayed recitation of the
                       Miranda warnings until the defendantS confessed to the crime. Id. at 604-
                       05. After the defendant confessed, police provided the requisite warnings
                       and obtained a signed waiver of rights.       Id. at 605. Police then re-

                       questioned the defendant using the admissions she made before receiving
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                  the warnings. Id. The Court determined the midstream warnings "could
                  [not] have served their purpose" and ruled the post-warning statements
                  were inadmissible.   Id. at 617. The Court explained the consideration a
                  reviewing court must undertake in determining if post-warning
                  statements are admissible:
                              The threshold issue when interrogators question
                              first and warn later is thus whether it would be
                              reasonable to find that in these circumstances the
                              warnings could function "effectively" as Miranda
                              requires. Could the warnings effectively advise
                              the suspect that he had a real choice about giving
                              an admissible statement at that juncture? Could
                              they reasonably convey that he could choose to
                              stop talking even if he had talked earlier? For
                              unless the warnings could place a suspect who has
                              just been interrogated in a position to make such
                              an informed choice, there is no practical
                              justification for accepting the formal warnings as
                              compliance with Miranda, or for treating the
                              second stage of interrogation as distinct from the
                              first, unwarned and inadmissible segment.
                  Id. at 611-12.
                              The instant case is indistinguishable from       Seibert.   We

                  conclude that the midstream warnings did not properly advise Carroll that
                  he could terminate the interrogation despite his previous inculpatory
                  statements. Carroll.' s post-warning statements were simply a repetition of
                  his pre-warning statements. The detectives told him that they would take
                  him home and that he would not go to jail if he told them the whole truth.
                  Although police recited the Miranda warnings, Carroll was just as
                  dependent upon police to take him home and just as fearful he would go to
                  jail after he received the warnings as he was before. Despite the short
                  break in questioning, Carroll was subjected to a single, continuous course
                  of questioning during which the detectives chose to withhold the Miranda
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                  warnings. Therefore, the district court should have suppressed Carroll's
                  post-Miranda statement to police.
                              However, we conclude that although the district court erred in
                  admitting Carroll's statement into evidence at trial, the State has shown
                  that the error was harmless.    See Boehm v. State, 113 Nev. 910, 916, 944
                  P.2d 269, 273 (1997) (applying harmless error analysis to a statement
                  admitted at trial in violation of Miranda).             Aside from Carroll's
                  inculpatory statements to the police, the district court properly admitted
                  other powerful evidence of his guilt. Thus, our review of the record
                  convinces us that this error is harmless beyond a reasonable doubt.
                  Sufficiency of the evidence
                              We have reviewed Carroll's argument that the State did not
                  present sufficient evidence to convict him of conspiracy or murder because
                  the State failed to show he intended for Counts to kill Hadland. We
                  conclude that this argument is without merit. The evidence at trial
                  supported a finding that Carroll knew the order was to kill Hadland and
                  that Carroll recruited Counts so he did not have to kill Hadland himself.
                  This is sufficient to convict on both charges.   See Doyle v. State, 112 Nev.
                  879, 894, 921 P.2d 901, 911 (1996) ("A person who knowingly does any act
                  to further the object of a conspiracy, or otherwise participates therein, is
                  criminally liable as a conspirator."), overruled on other grounds by
                  Kaczmarek v. State, 120 Nev. 314, 91 P.3d 16 (2004).
                  Cumulative error
                               Lastly, Carroll argues that cumulative error denied him of a
                  fair trial, even if the specific errors, standing alone, are insufficient for a
                  new trial. We disagree. The sole error was the district court's denial of
                  Carroll's motion to suppress his statement to police because police violated
                  Miranda. We determined this error was harmless beyond a reasonable
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                     doubt, and one error cannot cumulate.        See United States v. Sager, 227
                     F.3d 1138, 1149 (9th Cir. 2000) ("One error is not cumulative error.").
                                    As we previously explained, the district court erred when it
                     admitted Carroll's statement to police because Carroll was in custody for
                     Miranda purposes and the police failed to provide Miranda warnings
                     before Carroll made inculpatory statements. However, based on the
                     overwhelming evidence establishing Carroll's involvement in Hadland's
                     murder, we conclude the district court's error in admitting Carroll's
                     statement was harmless beyond a reasonable doubt. Even without his
                     statements to police, the remaining evidence was sufficient to sustain his
                     convictions.
                                    Accordingly, we affirm the judgment of the district court.




                                                                                           J.


                     We concur:


                               ce_<
                     Parraguirre


                                                    , J.
                     Douglas




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