                      Admissibility of statements to police

                                  Marquez filed a motion to suppress his statements to police,
                      which the district court denied following a hearing pursuant to Jackson v.
                      Denno, 378 U.S. 368 (1964). 1
                                  Marquez asserts that his will was overcome when he confessed
                      to the police because the detective did not allow him to leave when he
                      wished and the detective's tactics to secure his statement were
                      psychologically coercive. The State argues that an analysis of the factors
                      delineated in Passama v. State, 103 Nev. 212, 214, 735 P.3d 321, 323
                      (1987), demonstrates that Marquez's admissions were voluntary.
                            Waiver of Miranda rights
                                  Whether a defendant knowingly and intelligently waived his
                      or her Miranda rights "is a question of fact, which is reviewed for clear
                      error. However, the question of whether a waiver is voluntary is a mixed
                      question of fact and law that is properly reviewed de novo."    Mendoza v.
                      State, 122 Nev. 267, 276, 130 P.3d 176, 181 (2006).




                            'Although the district court erred by failing to make factual
                      findings, see Rosky v. State, 121 Nev. 184, 191, 111 P.3d 690, 695 (2005)
                      (stating that "trial courts must exercise their responsibility to make
                      factual findings when ruling on motions to suppress" in order for this court
                      to properly review a lower court's decision on appeal) (emphasis added)
                      (internal citations and quotations omitted), this court has previously held
                      that such an error does not warrant reversal. Id. at 194, 11 P.3d at 697.
                      Here, we had the opportunity to review the video of the interrogation, and
                      thus, had a factual record sufficient to engage in appellate review.
                      Nevertheless, we take this opportunity to admonish the district court to
                      make the requisite findings for review when deciding a suppression
                      motion.

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                              For a defendant's Miranda waiver to be effective, the waiver
                   must be "voluntary, knowing, and intelligent." Id. For the statement to
                   be admissible at trial, the State must show that the defendant waived his
                   or her rights by a preponderance of the evidence.          See Berghuis v.
                   Thompkins, 560 U.S. 370, 384 (2010). The State must also establish that
                   law enforcement informed the defendant of his or her Miranda rights, the
                   defendant understood the warnings, and the defendant then provided
                   admissions without coercion.     Id. at 384-85. But if law enforcement
                   "threatened, tricked, or cajoled" the defendant into a waiver, it is not
                   voluntary. Miranda, 384 U.S. at 476.
                               Here, the detective advised Marquez of his rights prior to
                   asking him any questions from which the detective could have elicited an
                   incriminating statement. Moreover, the detective asked Marquez if he
                   understood the Miranda warnings and Marquez responded that he did.
                   Marquez never said that he no longer wished to speak to the detective or
                   that he wished to have an attorney. Instead, Marquez told the detective
                   that he thought they should continue speaking at another time.
                               We conclude that Marquez waived his Miranda rights.
                   Although his waiver was not express, Marquez continued to speak with
                   the detective after the detective provided the Miranda warnings and
                   asked Marquez if he understood the warnings. Therefore, this court can
                   infer a waiver based on Marquez's conduct. See Mendoza, 122 Nev. at 276,
                   130 P.3d at 182.
                               Additionally, we conclude that Marquez did not invoke his
                   Miranda rights when he suggested that he and the detective continue the
                   interview at another time because Marquez did not unambiguously and
                   unequivocally assert his right to remain silent or to have an attorney.   See

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                  Dewey v. State, 123 Nev. 483, 488, 169 P.3d 1149, 1152 (2007) (quoting
                  Davis v. United States, 512 U.S. 452, 461-62 (1994) (holding that police are
                  not required to stop questioning a suspect who has waived his or her
                  Miranda     rights unless the suspect subsequently proffers "an
                  'unambiguous and unequivocal" invocation of the right to remain silent or
                  the right to an attorney).
                               Voluntariness
                              "Moluntariness determinations present mixed questions of
                  law and fact subject to this court's de novo review."      Rosky v. State, 121

                  Nev. at 190, 111 P.3d at 694. This court will not impose its judgment in
                  place of the district court's so long as the district court's ruling is based on
                  substantial evidence. Steese v. State, 114 Nev. 479, 488, 960 P.2d 321, 327
                  (1998). "Substantial evidence is that which a reasonable mind might
                  consider adequate to support a conclusion." Id.
                               The defendant's Fourteenth Amendment right to due process
                  is violated "if his conviction is based, in whole or in part, upon an
                  involuntary confession, . . even if there is ample evidence aside from the
                  confession to support the conviction." Passama v. State, 103 Nev. at 213,
                  735 P.2d at 322. Voluntariness is determined by "the totality of the
                  circumstances." Blackburn v. Alabama, 361 U.S. 199, 206 (1960) (quoting
                  Fikes v. Alabama, 352 U.S. 191, 197 (1957)). Specifically, we will look to
                  the Passama factors, see Passama, 103 Nev. at 213, 735 P.2d at 322, and
                  whether the police used intrinsic or extrinsic falsehoods to secure the
                  confession, see Sheriff, Washoe Cty. v. Bessey,   112 Nev. 322, 325, 914 P.2d
                  618, 619 (1996). We address each in turn.




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                            Passama factors
                            We have held that "[t]he question [of voluntariness] in each
                case is whether the defendant's will was overborne when he confessed."
                Passama, 103 Nev. at 214, 735 P.2d at 323. The trial court must 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.
                            The totality of the circumstances shows that the police did not
                coerce Marquez during the interrogation. First, the record shows that
                Marquez was 46 years old at the time of the interrogation, so the police did
                not take advantage of his youth. Second, nothing in the record reflects
                that Marquez's education or intellect is below normal, so the police did not
                take advantage of his lack of education or intelligence. Third, Marquez
                received Miranda warnings, he indicated that he understood the
                warnings, he did not invoke his right to remain silent or request an
                attorney, and he spoke to the detective. Thus, the police did not overbear
                Marquez by failing to advise him of his rights. Fourth, Marquez was not
                detained prior to the interrogation. Therefore, the police did not overcome
                Marquez's will through a lengthy detention. Fifth, the interrogation
                lasted only about an hour before Marquez confessed, so this was not a
                prolonged interrogation. Also, the detective only questioned Marquez on
                one occasion, so the questioning was not repeated Lastly, the record does
                not indicate, and Marquez does not argue, that police mistreated him.
                Therefore, the police did not use physical coercion to overcome Marquez's
                will and secure a confession.



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                                 Accordingly, our analysis shows that Marquez made his
                statement voluntarily, knowingly, and intelligently.
                                 Coercion through police deception
                                 This court has held that trial courts should also consider police
                deception in evaluating the voluntariness of a confession. Bessey, 112 Nev.
                at 325, 914 P.2d at 619. Police deception does not automatically render a
                confession involuntary.         Id.   Police subterfuge is permissible if "the
                methods used are not of a type reasonably likely to procure an untrue
                statement."       Id. at 325, 914 P.2d at 620. This court has distinguished
                between intrinsic falsehoods and extrinsic falsehoods.         Id. at 325-26, 914
                P.2d at 620. Intrinsic falsehoods imply the existence of implicating
                evidence and are more likely to secure a truthful confession from a
                defendant. Id. at 326, 914 P.2d at 620. Extrinsic falsehoods involve issues
                that are collateral to the crime and are more likely to overbear a
                defendant's will and secure a false confession or "a confession regardless of
                guilt."     Id.; see also Lynumn v. Illinois,        372 U.S. 528, 534 (1963)
                (concluding that a confession was coerced when police threated a
                defendant that "state financial aid for her infant children would be cut off,
                and her children taken from her, if she did not 'cooperate"). Deceptions
                that are likely to produce a false confession are not permissible and render
                a confession involuntary. Bessey, 112 Nev. at 326, 914 P.3d at 620.
                                 Marquez alleges that the detective impermissibly deceived
                him in order to secure a confession when the detective said that their
                conversation was confidentia1. 2 If the detective had promised Marquez


                          2 We
                           conclude that the other techniques the detective used to secure
                Marquez's confession of which he complains constituted manipulation, not
                deception.

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                that their conversation would remain confidential, such deception would
                constitute an external falsehood and require suppression of his statement.
                Id. at 326, 914 P.2d at 620-21. The deception would be an external
                falsehood because such a promise is collateral to the crime and could
                motivate a suspect to confess regardless of guilt.   Id. Here, the detective
                said that he was not telling everyone about the sexual assault allegations.
                His statement is ambiguous and we cannot conclude that it rises to a
                guarantee of confidentiality. Moreover, the detective provided Miranda
                warnings at the beginning of the interview and the detective also informed
                Marquez that anything he said could be used against him in a court of
                law. As such, Marquez could not expect immunity or confidentiality after
                confessing. Therefore, the police did not use an external falsehood to
                coerce Marquez's confession and the trial court did not err when it denied
                Marquez's motion to suppress his statements to police.
                Failing to review the interrogation video
                             At the Jackson u. Denno, 378 U.S. 368 (1964), hearing on
                Marquez's suppression motion, defense counsel asked the judge if she
                reviewed the video of the police interrogation. The judge responded that
                she did not watch the video but reviewed the transcript instead. Defense
                counsel did not object when the court denied the motion without reviewing
                the video.
                             Marquez contends that the court violated his due process
                rights by failing to review the interrogation video. The State maintains
                that Marquez fails to demonstrate that the district court erred by not
                reviewing the video.




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                               Nevada does not have a specific statute or court rule dictating
                   the materials that a trial court judge must review prior to ruling on a
                   motion in a criminal case. However, the Nevada Code of Judicial Conduct
                   requires that judges "perform judicial . . . duties competently and
                   diligently." Canon 2, Rule 2.5(A). "Competence . . . requires the legal
                   knowledge, skill, thoroughness, and preparation reasonably necessary to
                   perform a judge's responsibilities of judicial office."   Id. at comment 1.
                   This rule implies that a judge is required to review evidence submitted in
                   conjunction with a motion prior to ruling on that motion.
                               Although this court's review is generally precluded when a
                   party fails to object at trial, this court may nonetheless review for plain
                   error. "Under th[is] standard, an error that is plain from a review of the
                   record does not require reversal unless the defendant demonstrates that
                   the error affected his or her substantial rights, by causing actual prejudice
                   or a miscarriage of justice." Ramirez v. State, 126 Nev. 203, 208, 238 P.3d
                   619, 623 (2010) (alteration in original) (quoting Valdez v. State, 124 Nev.
                   1172, 1190, 196 P.3d 465, 477 (2008).
                               Marquez asserts that he was prejudiced because the district
                   court failed to fully ascertain the dynamics of the interrogation when it
                   neglected to review the interrogation video. Interestingly, he does not
                   argue what additional insight the district court would have gleaned from
                   watching the video. Marquez does not allege any acts by the detective
                   (such as the detective's tone, volume, or rate of speech; a threatening
                   stance; inappropriate hand gestures; etc.) that were not reflected in the
                   transcript and that could impact a voluntariness determination. The
                   video reflects that the detective spoke to Marquez respectfully throughout
                   the interview. The detective used an appropriate volume and a

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                professional, respectful tone.     The detective also remained seated
                throughout the interview (except when he momentarily left the room) and
                never made any attempt to intimidate Marquez. Therefore, we conclude
                that even if the district court erred when it failed to review the
                interrogation video, the error was harmless. See NRS 178.598 ("Any error,
                defect, irregularity or variance which does not affect substantial rights
                shall be disregarded.").
                Jury instructions
                            At trial, Marquez objected to the jury instruction number 19
                regarding the voluntariness of his statement to police. Marquez sought an
                instruction based on State v. Foquette, 67 Nev. 505, 533, 221 P.2d 404, 419
                (1950). The court overruled Marquez's objection, stating that its standard
                instruction sufficiently instructed the jury. Marquez did not object to jury
                instruction number 20.
                            On appeal, Marquez argues that he was entitled to a Foquette
                instruction because instructions 19 and 20, when read together, required
                the jury to find that his statement to police was voluntary solely because
                he received Miranda warnings- 3 The State argues that Marquez's
                unsupported statements that the instructions misled the jury do not
                demonstrate that he was entitled to a Foquette instruction.




                      3 Marquez  requested that instruction number 19, which required the
                jury exclude his confession unless it determined that he voluntarily
                confessed, include factors for the jurors to weigh when they considered
                whether his confession was voluntary. Instruction number 20, which
                Marquez did not oppose either separately or in conjunction with
                instruction number 19, informed the jury that Miranda warnings advise a
                suspect of his or her right against self-incrimination.

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                             Because Marquez did not object at trial to the court presenting
                 instructions 19 and 20 in concert, this court will not reverse his
                 convictions unless it determines the district court committed plain error.
                 Ramirez, 126 Nev. at 208, 235 P.3d at 623; see also NRS 178.602; NRS
                 177.255. "The threshold question is whether the instruction is a correct
                 statement of the law."      Watson v. State, 130 Nev., Adv. Op. 76, 335 P.3d
                 157, 171 (2014).
                             Marquez concedes that the jury instructions were correct
                 statements of the law, so he cannot surmount the primary requirement for
                 reversal: that the instructions incorrectly stated the law.   See id. He does
                 not explain how two correct legal statements, simply because they were
                 read back-to-back, misled the jury. The court sufficiently instructed the
                 jury on the defense theory of the case—that Marquez gave a false
                 confession to police due to the coercive nature of the interrogation—when
                 the court instructed the jury that it must determine for itself whether the
                 confession was voluntary and that it must disregard the confession if
                 it determines that it was not.
                             Although the Foquette instruction was more thorough, the
                 court's failure to give the more thorough of two correct instructions does
                 not constitute plain error. Thus, the district court did not err in
                 instructing the jury.
                 Necessity of a psychological exam of the victim
                             Marquez filed a motion for an independent psychological
                 examination of the complaining witness, which the district court denied.
                 The court did not make any findings of fact either in open court or in its
                 subsequently filed order.



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                                Marquez alleges that the district court erred when it denied
                    his motion for an independent psychological examination of C.H. because
                    (1) her delayed disclosure is suspicious, especially because Marquez and
                    C.H. had not lived in the same household for approximately five years
                    when C.H. made allegations against him and (2) her mother did not file for
                    divorce after learning of the allegations. The State contends that an
                    application of the Koerschner factors, see Koerschner v. State, 116 Nev.
                    1111, 1116-17, 13 P.3d 451, 455 (2000), proves that a psychological
                    examination of C.H. is not warranted.
                                In Koerschner, this court held that "'[t]he trial judge should
                    order an examination if the defendant presents a compelling reason for
                    such an examination." Id. at 1116, 13 P.3d at 454 (quoting Washington v.
                    State, 96 Nev. 305, 307, 608 P.2d 1101, 1102 (1980). To determine if such
                    a need exists, trial courts must examine three factors:
                                [first,] whether the State actually calls or obtains
                                some benefit from an expert in psychology or
                                psychiatry, [second,] whether the evidence of the
                                offense is supported by little or no corroboration
                                beyond the testimony of the victim, and [third,]
                                whether there is a reasonable basis for believing
                                that the victim's mental or emotional state may
                                have affected his or her veracity.
                    Id. at 1117, 13 P.3d at 455.
                                On appeal, this court reviews for an abuse of discretion.
                    Abbott v. State,   122 Nev. 715, 723, 138 P.3d 462, 467 (2006). "In
                    exercising its discretion, the district court should base its decision on the
                    facts and circumstances of each case."             Id.    (internal citations,
                    modifications, and quotations omitted).




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                               In the instant case, an analysis of the Koerschner factors
                reveals that Marquez did not prove a compelling need for C.H. to be
                examined. See Koerschner, 118 Nev. at 1116-17, 13 P.3d at 455. First, the
                State did not call an expert in psychology or psychiatry to testify, nor did
                the State obtain any benefit from such an expert.   See id. at 1117, 13 P.3d
                at 455. Second, the allegations of the offense were substantiated by
                significant evidence besides the victim's testimony.    See id. at 1117, 13
                P.3d at 455. Here, the State introduced the video recording of Marquez's
                voluntary statement to police, in which he corroborated many of C.H.'s
                allegations.
                               Lastly, Marquez failed to present any evidence that C.H.'s
                mental or emotional state impacted her reliability.     See Koerschner, 116
                Nev. at 1117, 13 P.3d at 455. Marquez improperly focuses on C.H.'s
                delayed disclosure of the abuse and her mother's failure to file for divorce
                after C.H.'s disclosures as evidence that C.H.'s mental or emotional state
                impacts her reliability. Marquez's argument that the victim's delay in
                reporting the abuse affects her veracity is unsound, because "delayed
                reporting of CSA [child sexual abuse] is the norm rather than the
                exception." Deborah A. Connolly and J. Don Read, Remembering
                Historical Child Sexual Abuse, 47 Criminal Law Quarterly 438, 440
                (2003).
                               Marquez also argues that C.H.'s allegations are not credible
                because C.H.'s mother failed to divorce Marquez. However, the mother's
                failure to pursue divorce proceedings is immaterial to C.H.'s emotional
                state and her corresponding ability to testify truthfully; such a failure to
                act could only impact the mother's emotional or mental state and the
                mother's veracity. C.H.'s reliability cannot be determined by her mother's

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                 acts or failures to act. Thus, the third factor likewise weighs in the State's
                 favor.
                               We therefore conclude that the district court properly denied
                 Marquez's motion because he did not demonstrate a compelling need for
                 an independent examination of the victim.
                               Accordingly, we ORDER the judgment of the district court
                 AFFIRMED.




                                                       —C24.ML—C2e
                                                      Parraguirre                  ." j.


                                                                                      J.
                                                      Douglas


                                                                                      J.
                                                      Cherry




                 cc:      Hon. Michelle Leavitt, District Judge
                          Anthony L. Abbatangelo
                          Attorney General/Carson City
                          Clark County District Attorney
                          Eighth District Court Clerk




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