                     exiting the front door and leaving the victim's property. Later that
                     afternoon the victim's daughter discovered the victim at his home sitting
                     in his recliner with a gunshot wound just behind his right ear. The victim
                     was left-handed and the trajectory of the bullet was down and to the left.
                     The absence of stippling indicated that the bullet was fired at least 12 to
                     16 inches away from the victim's head. During several recorded jail phone
                     calls James is heard discussing the circumstances surrounding the
                     shooting in which James claimed the shooting was an accident. According
                     to James' explanation during the recorded phone calls the victim was
                     acting "belligerent," called James crazy, accused James of siding against
                     him, and brandished a .25 or .38 caliber handgun. James claimed that he
                     tried to grab the gun out of the victim's hand and it went off. The victim's
                     daughter testified that the victim owned a shotgun and a revolver which
                     he usually kept in close proximity to him. A police officer testified that he
                     discovered a single .25 caliber cartridge casing near the body and that
                     revolvers do not automatically eject cartridge casings. James' cellmate
                     testified that James told him that the cartridge casing hit James in the
                     face after the gun fired. The victim was legally blind and walked with a
                     cane. During a recorded interview with detectives, James told them that
                     the victim accused him of turning against him, pointed a gun at him, the
                     gun went off, and he panicked and took off.
                                 We conclude that a rational juror could infer from these
                     circumstances that James entered the victim's home with the intent to
                     commit a felony and willfully and maliciously shot the victim with
                     premeditation and deliberation. See NRS 200.010; 200.030; NRS 205.060.
                     "Mt is the jury's function, not that of the court, to assess the weight of the

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                evidence and determine the credibility of witnesses." McNair, 108 Nev. at
                56, 825 P.2d at 573. The verdict will not be disturbed on appeal, where, as
                here, sufficient evidence supports James' convictions. Bolden v. State, 97
                Nev. 71, 73, 624 P.2d 20, 20 (1981); see also Buchanan v. State, 119 Nev.
                201, 217, 69 P.3d 694, 705 (2003) (circumstantial evidence alone may
                sustain a conviction).
                            James also challenges a district court order denying his
                motion to suppress the statements he made during his third interrogation.
                In his motion to suppress three interrogations which occurred over the
                course of 36 hours, James argued that his statements were involuntary,
                detectives sought to minimize and downplay the significance of their
                Miranda' warnings, he invoked his right to remain silent and his right to
                an attorney, and detectives violated his rights by continuing to question
                him after he invoked his Miranda rights.
                            At 2:20 a.m. on February 11, 2010, officers from the North Las
                Vegas police department set off flash-bang devices outside of a residence
                where James was sleeping and ordered the occupants to vacate the
                building. James exited the building without shoes or socks. He was taken
                into custody and immediately transported to the Detective Bureau for
                interrogation. James had taken his antipsychotic medication a short time
                earlier. The interrogation began at 3:35 a.m. with Detective Benjamin
                Owens telling James, "I had to empty your pockets out temporarily.
                Another procedure that I gotta do. . . just cause it's a rule I gotta read you


                      'Miranda v. Arizona, 384 U.S. 436 (1966).



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                  your rights. It's not a big deal okay? So we'll go ahead and get that out of
                  the way." During an evidentiary hearing detective Owens described this
                  as "an investigative technique to try to get them to waive their rights"
                  which he has used in the past. Detective Owens then read James his
                  Miranda rights and James signed an advice-of-rights form. Throughout
                  the course of the interrogation James repeatedly asked for water because
                  he was thirsty and shoes because his feet were cold. Detective Owens told
                  James he would take his request for water "into consideration." On page
                  70 of the interrogation transcript James states, "I'm not saying' nothing
                  else I'm not doing nothing else I'm gonna — I'm ready to go to jail come
                  take me down, I ain't never get my . . . shoes my feet getting cold. You
                  know I'm ready to go to jail then maybe I'll get some socks or somethin'
                  and I can go to sleep." The interrogation, however, did not cease. Instead,
                  a second detective, Jesus Prieto, entered the interrogation room and
                  Detective Owens left. James asked to be taken to jail at least ten more
                  times. A third detective, Paul Freeman, then entered the interrogation
                  room. On page 97 of the transcript James told Detective Freeman, "I ain't
                  saying nothing else. Take me to jail, file the charges, and I'll get a
                  lawyer." After this statement detectives ended the first interrogation at
                  6:13 a.m. While Detective Prieto transported James to jail for booking he
                  interrogated James a second time. Detective Prieto initiated the
                  conversation and no Miranda warnings were provided to James before the
                  interrogation began. James was interrogated for a third time the
                  following day by Detectives Owens and Freeman This time Detective
                  Owens told James, "I'm gonna go through the same spiel, you know, just'
                  cause I—like I said yesterday, we got—we got procedures and stuff. So I'm

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                     gonna advise you of your rights again." James acknowledged that he
                     understood his rights but this time refused to sign the advice-of-rights
                     form and asked for his shoes and medicine. The detectives then reminded
                     James of their previous conversations and asked James to explain what
                     happened at the victim's house again.
                                  After a lengthy evidentiary hearing the district court
                     suppressed the first two interrogations because Detective Owens admitted
                     that he purposely used a "minimization technique" to downplay the
                     significance of the Miranda warnings during• the first interrogation and
                     did not re-advise James• of his Miranda rights during his second
                     interrogation. The district court did not suppress the statements made
                     during the third interrogation because it concluded that detectives did not
                     minimize the importance of James' Miranda rights at the start of the third
                     interrogation. The district court also concluded that James did not
                     unequivocally invoke his right to counsel because it was "unclear whether
                     [James] comment reference[d] his Fifth Amendment or Sixth Amendment
                     right to counsel." The district court did not decide whether James invoked
                     his right to silence when he told the detective on two separate occasions
                     "I'm not saying nothing else," or whether detectives scrupulously honored
                     James' request. See Michigan v. Mosley, 423 U.S. 96, 104 (1975) ("[T]he
                     admissibility of statements obtained after the person in custody has
                     decided to remain silent depends under Miranda on whether his right to
                     cut off questioning was scrupulously honored." (internal quotation marks
                     omitted)).
                                  Despite the number of claims raised in James' motion to
                     suppress and the failure of the district court to address all of those claims

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                in its order, on appeal, James only raises one claim with respect to the
                district court's decision not to suppress his third interrogation. 2 He argues
                that the Supreme Court's opinion in Missouri v. Seibert, 542 U.S. 600
                (2004), required the district court to suppress his third interrogation.
                James analogizes the "minimization technique" utilized by Detective
                Owens to the two-step interrogation technique addressed in Seibert.
                Because the State does not argue that the district court erred by
                concluding that the minimizing behavior of detectives during the first
                interrogation of James required suppression, we assume for the purposes
                of this appeal that the minimization technique utilized by Detective
                Owens was of a constitutional dimension and rendered any Miranda
                waiver invalid. While both techniques are similar in that they are
                designed "to get a confession the suspect would not make if he understood
                his rights at the outset," id. at 613, their differences here are dispositive.
                The reason the second interrogation was suppressed in Seibert was
                because the two-step interrogation technique was designed to secure a
                waived confession during the second interrogation. Detective Owens'
                interrogation technique, however, was designed to secure a waived
                confession during the first interrogation. Therefore, Seibert does not



                      2 Because  it was not raised by James, the question as to whether the
                district court should have suppressed James' third interrogation based on
                the invocation of his Miranda rights is not before this court. See NRAP
                28(a)(8); Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. , n.3, 252
                P.3d 668, 672 n.3 (2011) ("Issues not raised in an appellant's opening brief
                are deemed waived.").



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                   require James' third interrogation to also be suppressed based on the
                   minimization technique that was used during the first interrogation.
                               James also argues, however, that Detective Owens used the
                   same "minimization technique" during the third interrogation and that
                   the district court erred by failing to suppress the statements made during
                   his third interrogation on the same grounds that it suppressed the
                   statements he made during his first interrogation. The State argues that
                   Detective Owens' comments during the third interrogation were
                   "innocuous" and urges this court to defer to the district court's conclusion
                   that during the third interrogation "new Miranda warnings were given to
                   James and the importance of those rights was not minimized" Read in
                   isolation, we may be inclined to agree with the State that the statements
                   made by Detective Owens were innocuous. However, Detective Owens
                   clearly incorporated the improper statements he made during his first
                   interrogation into his subsequent Miranda warning by referring to the
                   "spiel" he gave "yesterday." Because Detective Owens incorporated those
                   improper statements by reference into his third interrogation, we conclude
                   that the district court erred by failing to suppress that interrogation. 3
                               Because this error is of a constitutional dimension we must
                   reverse unless the error is harmless beyond a reasonable doubt.              See

                         3 Because  we conclude that the district court erred by failing to
                   suppress the third interrogation in its entirety, we need not address
                   James' other claim that the district court erred by denying his motion to
                   redact the lengthy narrative questions posed to James by detectives which
                   allowed them to introduce a theory of motive which was otherwise
                   inadmissible.



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                Diomampo v. State, 124 Nev. 414, 428, 185 P.3d 1031, 1040 (2008). James
                was interrogated for 35 minutes during his third interrogation. He
                admitted that he was in the victim's house, the victim accused him of
                turning against him, the victim pointed a gun at him, the gun went off,
                and he panicked and took off after kicking in the back door. James also
                admitted that the victim aggravated him just before the shooting by
                accusing him of turning against the victim. The State was able to use
                these statements to demonstrate that James and the victim got into an
                argument inside the victim's home. In addition to using James' own
                statements against him, the State was also able to introduce a possible
                motive for the murder without presenting any admissible evidence at trial.
                During the interrogation, detectives spent over half of their time trying to
                get James to admit that he was not acting alone and that he was colluding
                with the victim's estranged wife or some other family member to kill the
                victim so that the family members could inherit his money and property.
                No evidence was presented at trial to support this theory and James did
                not respond to a majority of the detectives' questions and accusations on
                this subject. Although the jury was instructed that the detectives'
                statements could only be considered to the extent that they supplied
                meaning to James' answers, the narrative statements and unanswered
                questions span almost 10 pages and the jury may have used this
                additional theory of motive to explain why the murder was deliberate and
                premeditated rather than an accident as James contended during all of his
                recorded statements. The State itself also admits that "the detectives'
                extensive questioning regarding James' motive for the crime and another
                party's involvement was relevant in that it made facts of consequence,

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                premeditation and deliberation, more probable than without the
                evidence." We are not convinced that the admission of the third
                interrogation was harmless beyond a reasonable doubt. Therefore, we
                                ORDER the judgment of the district court REVERSED AND
                REMAND this matter to the district court for proceedings consistent with
                this order. 4


                                                                    '   J.
                                          Pickering


                                                           L._ A)                       J.
                Parrag-uirre                               Saitta


                cc:   Hon. Valerie Adair, District Judge
                      Special Public Defender
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




                      4 Because we are reversing and remanding for a new trial based upon
                the suppression issue, we need not address James' other claims that (1)
                the district court erred by denying his motion to redact the detectives'
                narrative questions and statements during the third interrogation, (2) the
                State committed prosecutorial misconduct by using a yellow light example
                to explain deliberation and premeditation, (3) the district court erred by
                using the language "material elements" in the reasonable doubt
                instruction, and (4) cumulative error requires reversal.



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