                                                  129 Nev., Advance Opinion 55
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                THE STATE OF NEVADA,                                 No. 61537
                Appellant,
                vs.
                RICARDO ROBLES-NIEVES,
                                                                     FILED
                Respondent.                                          JUL 2 5 2013


                           Motion for a stay of trial court proceedings pending resolution
                of an appeal from an order granting a motion to suppress evidence.
                           Motion granted.


                Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District
                Attorney, Clark County,
                for Appellant.

                David M. Schieck, Special Public Defender, and Robert Arroyo, Deputy
                Special Public Defender, Clark County,
                for Respondent.




                BEFORE THE COURT EN BANC.

                                                OPINION

                By the Court, HARDESTY, J.:
                            Respondent Ricardo Robles-Nieves is in custody awaiting trial
                on a charge of murder with the use of a deadly weapon. He successfully
                litigated a pretrial motion to suppress his incriminating statement to


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police based on a claim that his statement was procured through the use of
extrinsic falsehoods. While this court has adopted a rule concerning the
use of intrinsic falsehoods in eliciting a confession, the issue of the coercive
effect of using extrinsic falsehoods is an issue of first impression in
Nevada.
             Faced with going to trial absent a key piece of evidence, the
State exercised its statutory right to appeal from the order granting the
motion to suppress. After several continuances and considering Robles-
Nieves' repeated assertion of his speedy-trial rights, the district court set a
trial date and denied the State's request to stay the trial pending
resolution of its appeal. The State then renewed its motion with this
court.
             The State's motion provides the opportunity to address the
factors that govern our discretionary decision on a motion for a stay in a
criminal proceeding. We conclude that the four factors that govern our
exercise of discretion in ruling on a stay motion in a civil proceeding under
NRAP 8(c) are relevant to our exercise of discretion to grant a stay of a
criminal proceeding pending resolution of an interlocutory suppression
appeal. Those factors are: (1) whether the object of the appeal will be
defeated if the stay is denied, (2) whether the appellant will suffer
irreparable or serious injury if the stay is denied, (3) whether the
respondent will suffer irreparable injury if the stay is granted, and (4)
whether the appellant is likely to prevail on the merits in the appeal. In
the context of an interlocutory suppression appeal, the first factor is the
most significant because the appeal will be rendered moot and the State's
right to appeal effectively eliminated if the trial proceeds. In that context,
the third factor also is significant and may require consideration of the



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                defendant's speedy-trial rights where the defendant has asserted those
                rights and opposed the motion for a stay. Having considered the relevant
                factors, we conclude that they weigh in favor of granting a stay in this
                instance.'
                                              DISCUSSION
                             The State has not always had the right to appeal from an
                order granting a motion to suppress evidence.     See 1967 Nev. Stat., ch.
                523, § 287, at 1443-44 (adopting NRS 177.015 without provision for
                interlocutory appeal from an order resolving a motion to suppress
                evidence); see also State v. Pearce, 96 Nev. 383, 609 P.2d 1237 (1980)
                (observing that the Nevada Legislature gave the State the right to file an
                interlocutory appeal from an order granting a motion to suppress evidence
                in 1971 but then deleted the provision the following legislative session);
                Cook v. State, 85 Nev. 692, 694-95, 462 P.2d 523, 526 (1969) (observing
                that interlocutory appeal from trial court's ruling on motion to suppress
                evidence "is not authorized"). Part of the concern with affording the State
                the right to such an interlocutory appeal was that it would cause delay
                that would impede the defendant's right to a speedy trial.    See Cook, 85
                Nev. at 695, 462 P.2d at 526 ("An interlocutory appeal from the trial
                court's ruling on. . . a motion [to suppress evidence] is not authorized
                because of attendant delay and the desire to avoid the piecemeal handling


                      1-We  granted the motion and stayed the trial in an order entered on
                June 10, 2013. Although time constraints prevented us from explaining
                our decision in a formal opinion at that time, we explained in our order
                that a formal opinion, setting forth the grounds for our decision, would be
                forthcoming. Cf. Indep. Am. Party v. Lau, 110 Nev. 1151, 1153 n.3, 880
                P.2d 1391, 1392 n.3 (1994).



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of cases?), Franklin v. Eighth Judicial Dist. Court, 85 Nev. 401, 404, 455
P.2d 919, 921 (1969) ("Piecemeal review does not promote the orderly
handling of a case, and is particularly disruptive in criminal cases where
the defendant is entitled to a speedy resolution of the charges against
him."). In 1981, the Nevada Legislature adopted NRS 177.015(2), which
grants the State the right to appeal to this court from a district court's
pretrial order granting a motion to suppress evidence. 1981 Nev. Stat., ch.
702, § 1, at 1706.
              In addition to authorizing an interlocutory appeal from an
order granting a suppression order, NRS 177.015(2) expressly authorizes
this court to "enter an order staying the trial for such time as may be
required" if the court decides to entertain the State's appeal or if a stay
"otherwise appears necessary." Providing for a stay makes sense given the
timing of pretrial suppression motions. Under NRS 174.125(1), motions to
suppress evidence generally must be filed before trial and, in the largest
judicial districts in this state, the motion may be filed as little as 15 days
before the trial date, NRS 174.125(3)(a). Because the motion may be filed
such a short time before trial, it is not unreasonable to expect that a stay
would be needed if the State exercises its right to an interlocutory appeal
from an order granting the motion. Although NRS 177.015(2)
acknowledges this situation by allowing for a stay, it does not identify any
factors that are relevant to the court's exercise of its discretion to stay the
trial. In that void, we turn to Rule 8 of the Nevada Rules of Appellate
Procedure, which addresses requests to stay proceedings while an appeal
is pending.
              Unfortunately, Rule 8 has little to say about stays in criminal
cases beyond the procedural requirements for filing the motion such as



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                pursuing relief in the district court in the first instance (which the State
                did in this case) and what must be included in the motion. NRAP 8(a)(1),
                (2). When it comes to stays in criminal cases in particular, the rule simply
                refers to NRS 177.095 and unidentified statutes following it. NRAP 8(e).
                Those statutes, however, similarly have little to say beyond authorizing or
                mandating stays in certain circumstances. None of the statutes that
                provide discretionary authority to grant a stay identify factors that should
                govern the exercise of that discretion.       See, e.g., NRS 177.115; NRS
                177.125.
                            In contrast, Rule 8(c) provides specific factors to be considered
                when a stay motion has been filed in a civil appeal. Those factors are: (1)
                whether the object of the appeal will be defeated if the stay is denied, (2)
                whether the appellant will suffer irreparable or serious injury if the stay is
                denied, (3) whether the respondent will suffer irreparable or serious injury
                if the stay is granted, and (4) whether the appellant is likely to prevail on
                the merits in the appeal. NRAP 8(c). The parties seem to agree that these
                factors should guide the decision whether to grant a stay under NRS
                177.015(2). Because the factors set forth in NRAP 8(c) allow us to take
                into consideration the interests of both the prosecution and the defense
                and the legislative concern about delay that is reflected in the short appeal
                period (two days for filing a notice in the district court and five days for
                filing a separate notice in this court), State v. Loyle, 101 Nev. 65, 67, 692
                P.2d 516, 518 (1985) (Steffen, J., dissenting) (discussing the reason for the
                short appeal period in NRS 177.015(2)), we will look to those factors in
                deciding whether to grant a stay under NRS 177.015(2).
                            We have not ascribed particular weights to any of the stay
                factors in the civil context, but we have recognized that depending on the

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type of appeal, certain factors may be especially strong and
counterbalance other weak factors. Mikohn Gaming Corp. v. McCrea, 120
Nev. 248, 251, 89 P.3d 36, 38 (2004). Our stay analysis in the context of
an appeal from an order granting a motion to suppress evidence
necessarily reflects the interlocutory nature of the appeal and the concerns
about delay that are implicit in NRS 177.015(2). Accordingly, the first and
third factors take on added significance in our stay analysis.
Object of the appeal
            The parties do not seriously dispute the first factor—whether
the object of the State's appeal will be defeated if the stay is denied. The
object of the State's appeal is to have the confession available for use at
trial. If the stay is denied, that object will be defeated as the trial will
proceed without the suppressed evidence. The Legislature has provided
for an interlocutory appeal of an order granting a motion to suppress
evidence, NRS 177.015(2), which demonstrates the intent to secure review
of an order suppressing evidence before trial. If the trial proceeds while
the appeal is pending, the State will lose the opportunity for that review.
We therefore conclude that this factor weighs heavily in favor of a stay.
Irreparable or serious harm if stay is denied
            The second factor is the subject of some dispute—whether the
State will suffer irreparable or serious injury if the stay is denied. The
State argues that it will be injured if the trial proceeds because its case is
not as strong without that evidence and Robles-Nieves may be acquitted
as a result. Robles-Nieves suggests that the State will not be harmed
because even if it succeeds on some level in this appeal, the district court
likely will grant the motion again on other grounds and therefore the
State will still be faced with proceeding to trial without the suppressed



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                evidence. Both arguments are somewhat speculative. But based on the
                information provided to this court, it appears that the State's case absent
                the suppressed evidence is circumstantial at best and the suppressed
                evidence is particularly probative of Robles-Nieves' guilt. Considering
                those circumstances, the seriousness of the charged offense, and the
                absence of any recourse for the State if Robles-Nieves is acquitted, we
                conclude that this factor weighs in favor of a stay.
                Irreparable or serious harm if stay is granted
                            The third factor we must consider is whether Robles-Nieves
                will be irreparably harmed if the stay is granted. Robles-Nieves offers two
                arguments: he will remain incarcerated unnecessarily based on a coerced
                confession, and the delay will infringe his speedy-trial rights. The first
                argument is somewhat relevant but not controlling in this case since
                denying the stay would not result in Robles-Nieves' immediate release. 2
                The second argument gets to the heart of this factor as the Legislature
                clearly was concerned about the impact that interlocutory appeals under
                NRS 177.015(2) would have on the defendant's speedy-trial rights.        See
                Loyle, 101 Nev. at 67, 692 P.2d at 518 (Steffen, J., dissenting) (observing
                that NRS 177.015(2)'s "short [appeal period] reflects a concern for
                preserving the right to speedy trials for defendants who have successfully
                moved to suppress evidence"). Because this presents a significant issue,
                we take this opportunity to provide some guidance on the relationship
                between a defendant's speedy-trial rights and a stay during an


                      21t is not entirely clear from the documents before us, but it appears
                that Robles-Nieves remains in custody at least in part because he is
                subject to an immigration hold.


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interlocutory appeal under NRS 177.015(2). There are two speedy-trial
rights at issue: the constitutional right protected by the Sixth Amendment
and a statutory right to a trial within 60 days of arraignment under NRS
178.556(1). We address the constitutional right first.
      Irreparable harm based on constitutional right to speedy trial
            The United States Supreme Court has adopted a four-part
balancing test to determine whether continuances have infringed on a
defendant's constitutional right to a speedy trial: (1) the length of the
delay, (2) the reason for the delay, (3) the defendant's assertion of the
right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514,
530 (1972). The four factors are "related" and "must be considered
together with such other circumstances as may be relevant."        Id. at 533.
The United States Supreme Court has applied the same test "to determine
the extent to which appellate time consumed in the review of pretrial
motions should weigh towards a defendant's speedy trial claim."          United
States v. Loud Hawk, 474 U.S. 302, 314 (1986). We similarly conclude
that these factors are relevant when considering whether a stay during an
interlocutory appeal under NRS 177.015(2) will irreparably harm the
defendant by infringing on his constitutional right to a speedy trial.
            The first speedy-trial factor—length of the delay—is "a
triggering mechanism." Barker, 407 U.S. at 530. "[T]here must be a delay
long enough to be 'presumptively prejudicial." Loud Hawk, 474 U.S. at
314 (quoting Barker, 407 U.S. at 530). Here, Robles-Nieves was arrested
on the charges on November 23, 2011. Thus far, he has been held
approximately 18 months; just over 12 months since his arraignment. Of
that time, approximately 8 months is attributable to this appeal (starting




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                from October 17, 2012—the date that the district court first granted a
                continuance based on the appeal).
                            Under the second speedy-trial factor—the reason for the
                delay—different reasons are assigned different weights.     Barker, 407 U.S.
                at 531. For example, if the State deliberately delays the trial to hamper
                the defense, that would weigh heavily against the State, whereas delay
                due to overcrowded courts generally is weighed less heavily.     Loud Hawk,
                474 U.S. at 315. The Supreme Court has observed that "[gliven the
                important public interests in appellate review, it hardly need be said that
                an interlocutory appeal by the [State] ordinarily is a valid reason that
                justifies delay."   Id. (citation omitted). Several factors should be
                considered in assessing the purpose and reasonableness of an
                interlocutory appeal by the State: "the strength of the [State's] position on
                the appealed issue, the importance of the issue in the posture of the case,
                and—in some cases—the seriousness of the crime," i.e., whether it is
                "sufficiently serious to justify restraints that may be imposed on the
                defendant pending the outcome of the appeal." Id. at 315, 316. Looking at
                these factors, the State's interlocutory appeal serves a legitimate purpose
                and is reasonable. First, the appeal does not appear to be frivolous. That
                the appeal is not frivolous is reflected by this court's decision to exercise
                its discretion to entertain the appeal after considering the State's
                preliminary showing of good cause.        See NRS 177.015(2) ("The Supreme
                Court may establish such procedures as it determines proper in requiring
                the appellant to make a preliminary showing of the propriety of the appeal
                and whether there may be a miscarriage of justice if the appeal is not
                entertained."). Second, the appellate issue is significant to the case
                because the confession is a key piece of evidence. Third, the charged

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offense, first-degree murder, is sufficiently serious to justify the restraints
that may be imposed on Robles-Nieves pending the outcome of this appeal.
We therefore conclude that the reason for the delay (the State's pursuit of
this interlocutory appeal) does not weigh heavily against the State.
            The third speedy-trial factor—Robles-Nieves' assertion of the
right—would seem to present no great difficulty: he promptly asserted his
speedy-trial rights at arraignment in district court and has been
consistent in objecting to any continuances and stays (even those that
would allow the district court to rule on his suppression motion before the
trial). The State, however, asserts that the motion to suppress should be
treated as an implied waiver of any speedy-trial right for the time
required to finally resolve the motion, apparently including the
interlocutory appeal. In this, the State equates the motion with a pretrial
habeas petition, which by statute (NRS 34.700(1)(b)) must include a
waiver of speedy-trial rights. Although the filing of the motion may be
viewed as conduct that conflicts with the assertion of the speedy-trial
right, see Loud Hawk, 474 U.S. at 314-15 (noting that although defendants
asserted speedy-trial rights, they also "consumed six months by filing
indisputably frivolous petitions for rehearing and for certiorari" and "also
filled the District Court's docket with repetitive and unsuccessful
motions"), we are not convinced that it necessarily implicates a waiver of
speedy-trial rights. In this case, the suppression motion appears to be one
of the only motions filed by the defense, it was timely filed, and it cannot
be characterized as frivolous given the district court's order granting the
motion. Tellingly, the record indicates that Robles-Nieves wanted to
proceed to trial and objected to a continuance that would have allowed the
judge who heard the suppression motion to make a decision on the motion.



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                Thus, at worst, the time consumed by the motion weighs against Robles-
                Nieves, but we will not treat the motion as a waiver of the right.
                             The final speedy-trial factor—prejudice to the defendant—is
                assessed in light of the interests that the speedy-trial right was designed
                to protect: "to prevent oppressive pretrial incarceration," "to minimize
                anxiety and concern of the accused," and "to limit the possibility that the
                defense will be impaired." Barker, 407 U.S. at 532. Robles-Nieves focuses
                on the first of these concerns—he has been incarcerated for approximately
                18 months away from his family. We do not take this concern lightly. It is
                not, however, the most serious of the interests that the speedy-trial right
                was designed to protect. The most serious of those interests is to limit
                impairment to the defense caused by delay.      Id. There is no suggestion
                that the delay has impaired the defense.
                             We must balance all of these speedy-trial factors to determine
                whether the stay requested by the State will irreparably harm Robles-
                Nieves by infringing his constitutional right to a speedy trial. On balance,
                we conclude that there has not been a speedy-trial violation. 3 That
                balance could change because two of the factors are fluid—the length of
                the delay and the prejudice to the defendant. By taking an interlocutory
                appeal and requesting a stay, the State takes the risk that at some point
                the balance may tip against it. But because the balance has not yet
                tipped, Robles-Nieves has not demonstrated that granting the stay would
                result in irreparable injury to him.


                      3 0f
                         note, the district court denied a defense motion to dismiss based
                on a speedy-trial violation a few weeks before the State filed its stay
                motion in this court.



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      Irreparable harm based on statutory speedy-trial right
            The asserted harm that will be suffered by Robles-Nieves if a
stay is granted also includes the statutory right to a trial within 60 days of
arraignment. See NRS 178.556(1). We have recognized that the 60-day
rule set forth in NRS 178.556 is mandatory only when there is a lack of
good cause for the delay.    Huebner v. State, 103 Nev. 29, 31, 731 P.2d
1330, 1332 (1987). Here, the good cause for the delay mirrors the second
of the Barker factors (the reason for the delay). The Legislature has
determined that the State should have the right to appeal from an order
granting a motion to suppress evidence. NRS 177.015(2). That right
would be severely limited, if not effectively eliminated, were the delay
attributable to such an appeal not considered good cause for purposes of
the 60-day rule. We therefore conclude that unless the appeal is frivolous
or involves only a tangential issue, the State's interlocutory appeal under
NRS 177.015(2) will be regarded as good cause for delay in bringing a
defendant to trial. Thus, similar to the constitutional speedy-trial right,
Robles-Nieves' statutory right will not be irreparably harmed if the stay is
granted.
Likelihood of success on the merits
            The final consideration in whether to grant the motion for a
stay is the likelihood that the State will succeed on the merits. In some
circumstances, this stay factor is significant. But in the context of an
interlocutory appeal under NRS 177.015(2), we conclude that it is far less
significant than the first stay factor. As we have already explained, the
first stay factor takes on added significance in the context of an
interlocutory appeal from an order granting a suppression motion because
denying a stay would effectively eliminate the right to appeal afforded by



                                      12
                NRS 177.015(2). Because the first stay factor weighs heavily in favor of a
                stay, the final factor will counterbalance the first factor only when the
                appeal appears to be frivolous or the stay sought purely for dilatory
                purposes.   Cf. Mikohn Gaming Corp. v. McCrea, 120 Nev. 248, 253, 89
                P.3d 36, 40 (2004) (taking similar approach to stay analysis in
                interlocutory appeal from order refusing to compel arbitration). We have
                already observed in the context of the speedy-trial analysis related to the
                third factor that the appeal here does not appear to be frivolous.
                Regardless of whether we may ultimately agree with the State or Robles-
                Nieves on the merits of the suppression issue, there is at least a fair
                dispute as to whether our decision in Sheriff, Washoe County v. Bessey,
                112 Nev. 322, 914 P.2d 618 (1996), adopted a rule that the use of extrinsic
                falsehoods in eliciting a confession is coercive per se. As the district court
                observed in its order granting the motion, Bessey adopted the rationale of
                another state court that had recognized such a rule but did so in the
                context of the use of intrinsic falsehoods and no Nevada case addresses
                extrinsic falsehoods. Under the circumstances, we conclude that this
                factor does not weigh strongly either way in the stay analysis.
                            Considering all of the stay factors, we conclude that the first
                factor is most significant in this case. There has not been a sufficient
                showing of irreparable harm to Robles-Nieves or that there is not a
                likelihood of success on the merits to counterbalance that factor—if a stay
                is denied and the trial commences, the object of the appeal will be defeated
                as will the purpose of NRS 177.015(2). We therefore grant the State's
                motion and stay the trial pending resolution of this appeal. In view of the
                concerns with disrupting a criminal proceeding wherein a defendant has a
                constitutional and statutory right to a speedy trial, and to the extent our

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                      docket permits, we will expedite appeals from orders granting motions to
                      suppress evidence.




                                                                                                        J.
                                                                   Hardesty




                      We concur:


                                      aeu                 ,   C.J.
                      Pickering


                                                              J.



                          b.rot
                      Parraguirre


                                            ,                 J.
                      Dougla




                                ILL                           J.
                       a.itta




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