constitutional right to counsel is dispositive, and therefore address only this issue on appeal. FACTS During the early morning hours of October 3, 2012, Mann was involved in a physical altercation with Jesus Villasenor Melgarejo in Villasenor's home, which left Villasenor injured. According to Mann, the confrontation began after Villasenor made unwanted sexual advances toward him while he was spending the night at Villasenor's home. Mann contends that when he rejected Villasenor's advances, Villasenor would not allow him to leave. Thus, he was defending himself and providing for his escape when he injured Villasenor and took Villasenor's car keys, cellular phone and vehicle. In contrast, Villasenor contends that Mann entered his home through a back door, brandished a gun and a knife, and demanded money and jewelry. When he told Mann he did not have money or jewelry, Mann attacked him and fled with his belongings. The day after the alleged robbery, Officers Jay Simpson and Eric Leavitt went to Mann's parents' home in search of Mann. Upon their arrival, the officers discovered Mann driving Villasenor's vehicle. Officer Simpson took Mann into custody, handcuffed him, and read Mann his Miranda rights. Officer Simpson then began to interrogate Mann. After a brief interrogation, Mann stopped answering questions and Officer Simpson placed Mann in the back of his patrol vehicle. When Officer Simpson retrieved Mann from the patrol vehicle, Mann asked, "When can I talk to a lawyer?" Immediately after making the statement, a handcuffed Mann ran, but was recaptured by Officer Simpson. Mann was again placed in the back of the patrol vehicle. At that point, Officer Simpson chose not to resume his interrogation of Mann.
SUPREME COURT OF NEVADA 2 (0) 1947A e Later, Officer James Monroe arrived at the scene and received permission from Officers Simpson and Leavitt to interrogate Mann. Officer Monroe then questioned Mann about the location of a gun thought to have been used in the robbery. At trial, Officer Monroe testified about what he learned from his interrogation of Mann. Specifically, he testified that Mann told the officers he wanted to help them locate the gun but did not want anyone to get hurt. Additionally, Officer Monroe testified that Mann told him the gun was black and no longer in the car, but in North Las Vegas at an apartment complex. Finally, Officer Monroe testified to following Officers Leavitt and Simpson in their patrol vehicle because Mann, who was in their custody, was planning to show the officers where the gun was located. Officer Leavitt also testified to information gathered from Mann after Mann asked when he could speak to a lawyer. Officer Leavitt testified that Mann was planning to show the officers where the gun was located. He further testified that as they were driving, Mann identified two sets of apartments, but whenever officers proceeded in the direction of the apartment, Mann told them that it was in a different direction. Officer Leavitt said that eventually they stopped searching for the gun and drove Mann to jail. DISCUSSION This court reviews "the district court's factual finding concerning the words a defendant used to invoke the right to counsel' for clear error, and `[w]hether those words actually invoked the right to counsel' de novo." Carter v. State, 129 Nev. , , 299 P.3d 367, 370 (2013) (alteration in original) (quoting United States v. Ogbuehi, 18 F.3d
SUPREME COURT OF NEVADA 3 (0) 1947A 807, 813 (9th Cir. 1994)); Rosky v. State, 121 Nev. 184, 190, 111 P.3d 690, 694 (2005). Invocation of Right to Counsel Miranda v. Arizona requires government officials conducting custodial interrogations to advise suspects of their right to remain silent and their right to have an attorney present. 384 U.S. 436, 479 (1966). When a person invokes his or her right to counsel under Miranda, that person can no longer be questioned or interrogated until an attorney is provided. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). "Invocation of the Miranda right to counsel 'requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." Davis v. United States, 512 U.S. 452, 459 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). The parties agree to the relevant facts. The words Mann used to invoke his right to counsel were: "When can I talk to a lawyer?" Thus, we need not consider that issue. Instead, we must determine whether the use of those words, when examined in their context, actually invokes the right to counsel. Mann argues that his request for an attorney was unequivocal and that the district court committed prejudicial error by admitting the fruits of the interrogation that followed his request. The State contends that Mann's request was made equivocal by the act of running and that any error was harmless because the officers' testimonies about the firearm did not lead to a conviction of any of the firearm charges. In Carter, we recognized that the words "Can I get an attorney?" amounted to an unequivocal request for counsel under the circumstances. 129 Nev. at , 299 P.3d at 369; see also Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (explaining that "Can I get an SUPREME COURT OF NEVADA 4 (0) I947A attorney right now, man?" was an unambiguous request when considered together with two other questions regarding counsel); People v. Harris, 552 P.2d 10, 11-12 (Colo. 1976) (holding that "When can I get a lawyer?" was unambiguous). We determined that no circumstances present would have suggested to a reasonable officer that Carter was requesting anything but the aid of an attorney because "[t]here were no other words modifying the statement . . like 'might,' maybe,"perhaps,' or 'should' [and] in [no] way [did Carter] suggest he was unsure of whether he wanted an attorney." Carter, 129 Nev. at , 299 P.3d at 371. We further held that Carter's statement asserting that he was merely "concerned" about an attorney, made after he unambiguously invoked his right to counsel, "[did] nothing to alter our decision." Id. at , 299 P.3d at 371; see Smith v. Illinois, 469 U.S. 91, 100 (1984) ("[U]nder the clear logical force of settled precedent, an accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself."). Applying Carter to the circumstances here, we conclude that Mann made an unequivocal request for an attorney. First, Mann's words represented an unambiguous request for an attorney. As in Carter, Mann did not use any modifying words and did not suggest that he was unsure of whether he wanted an attorney. His words were explicit. Additionally, Mann's sprint shortly thereafter did nothing to alter his original unambiguous request. See Smith, 469 U.S. at 100. His post-request act can be likened to Carter's post-request statement asserting that he was merely "concerned" about an attorney.
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constitutional right to counsel is dispositive, and therefore address only this issue on appeal. FACTS During the early morning hours of October 3, 2012, Mann was involved in a physical altercation with Jesus Villasenor Melgarejo in Villasenor's home, which left Villasenor injured. According to Mann, the confrontation began after Villasenor made unwanted sexual advances toward him while he was spending the night at Villasenor's home. Mann contends that when he rejected Villasenor's advances, Villasenor would not allow him to leave. Thus, he was defending himself and providing for his escape when he injured Villasenor and took Villasenor's car keys, cellular phone and vehicle. In contrast, Villasenor contends that Mann entered his home through a back door, brandished a gun and a knife, and demanded money and jewelry. When he told Mann he did not have money or jewelry, Mann attacked him and fled with his belongings. The day after the alleged robbery, Officers Jay Simpson and Eric Leavitt went to Mann's parents' home in search of Mann. Upon their arrival, the officers discovered Mann driving Villasenor's vehicle. Officer Simpson took Mann into custody, handcuffed him, and read Mann his Miranda rights. Officer Simpson then began to interrogate Mann. After a brief interrogation, Mann stopped answering questions and Officer Simpson placed Mann in the back of his patrol vehicle. When Officer Simpson retrieved Mann from the patrol vehicle, Mann asked, "When can I talk to a lawyer?" Immediately after making the statement, a handcuffed Mann ran, but was recaptured by Officer Simpson. Mann was again placed in the back of the patrol vehicle. At that point, Officer Simpson chose not to resume his interrogation of Mann.
SUPREME COURT OF NEVADA 2 (0) 1947A e Later, Officer James Monroe arrived at the scene and received permission from Officers Simpson and Leavitt to interrogate Mann. Officer Monroe then questioned Mann about the location of a gun thought to have been used in the robbery. At trial, Officer Monroe testified about what he learned from his interrogation of Mann. Specifically, he testified that Mann told the officers he wanted to help them locate the gun but did not want anyone to get hurt. Additionally, Officer Monroe testified that Mann told him the gun was black and no longer in the car, but in North Las Vegas at an apartment complex. Finally, Officer Monroe testified to following Officers Leavitt and Simpson in their patrol vehicle because Mann, who was in their custody, was planning to show the officers where the gun was located. Officer Leavitt also testified to information gathered from Mann after Mann asked when he could speak to a lawyer. Officer Leavitt testified that Mann was planning to show the officers where the gun was located. He further testified that as they were driving, Mann identified two sets of apartments, but whenever officers proceeded in the direction of the apartment, Mann told them that it was in a different direction. Officer Leavitt said that eventually they stopped searching for the gun and drove Mann to jail. DISCUSSION This court reviews "the district court's factual finding concerning the words a defendant used to invoke the right to counsel' for clear error, and `[w]hether those words actually invoked the right to counsel' de novo." Carter v. State, 129 Nev. , , 299 P.3d 367, 370 (2013) (alteration in original) (quoting United States v. Ogbuehi, 18 F.3d
SUPREME COURT OF NEVADA 3 (0) 1947A 807, 813 (9th Cir. 1994)); Rosky v. State, 121 Nev. 184, 190, 111 P.3d 690, 694 (2005). Invocation of Right to Counsel Miranda v. Arizona requires government officials conducting custodial interrogations to advise suspects of their right to remain silent and their right to have an attorney present. 384 U.S. 436, 479 (1966). When a person invokes his or her right to counsel under Miranda, that person can no longer be questioned or interrogated until an attorney is provided. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). "Invocation of the Miranda right to counsel 'requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." Davis v. United States, 512 U.S. 452, 459 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). The parties agree to the relevant facts. The words Mann used to invoke his right to counsel were: "When can I talk to a lawyer?" Thus, we need not consider that issue. Instead, we must determine whether the use of those words, when examined in their context, actually invokes the right to counsel. Mann argues that his request for an attorney was unequivocal and that the district court committed prejudicial error by admitting the fruits of the interrogation that followed his request. The State contends that Mann's request was made equivocal by the act of running and that any error was harmless because the officers' testimonies about the firearm did not lead to a conviction of any of the firearm charges. In Carter, we recognized that the words "Can I get an attorney?" amounted to an unequivocal request for counsel under the circumstances. 129 Nev. at , 299 P.3d at 369; see also Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (explaining that "Can I get an SUPREME COURT OF NEVADA 4 (0) I947A attorney right now, man?" was an unambiguous request when considered together with two other questions regarding counsel); People v. Harris, 552 P.2d 10, 11-12 (Colo. 1976) (holding that "When can I get a lawyer?" was unambiguous). We determined that no circumstances present would have suggested to a reasonable officer that Carter was requesting anything but the aid of an attorney because "[t]here were no other words modifying the statement . . like 'might,' maybe,"perhaps,' or 'should' [and] in [no] way [did Carter] suggest he was unsure of whether he wanted an attorney." Carter, 129 Nev. at , 299 P.3d at 371. We further held that Carter's statement asserting that he was merely "concerned" about an attorney, made after he unambiguously invoked his right to counsel, "[did] nothing to alter our decision." Id. at , 299 P.3d at 371; see Smith v. Illinois, 469 U.S. 91, 100 (1984) ("[U]nder the clear logical force of settled precedent, an accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself."). Applying Carter to the circumstances here, we conclude that Mann made an unequivocal request for an attorney. First, Mann's words represented an unambiguous request for an attorney. As in Carter, Mann did not use any modifying words and did not suggest that he was unsure of whether he wanted an attorney. His words were explicit. Additionally, Mann's sprint shortly thereafter did nothing to alter his original unambiguous request. See Smith, 469 U.S. at 100. His post-request act can be likened to Carter's post-request statement asserting that he was merely "concerned" about an attorney. Although we recognize the factual difference between Mann's act of running and Carter's statement expressing concern, we reach the same conclusion.
SUPREME COURT OF NEVADA 5 0) I 9-47A Thus, when considering both the words Mann used and his post-request act of running, we conclude that Mann made an unequivocal request for an attorney and that request should have been honored. Mann's statements, made without having access to counsel, violated the basic tenets of Miranda and were inadmissible. Harmless Error Analysis Miranda violations may be considered harmless, depending on the context of the case. Guyette v. State, 84 Nev. 160, 168,438 P.2d 244, 249 (1968). We cannot say here that the officers' testimonies disclosing information obtained in violation of Mann's Miranda rights were harmless beyond a reasonable doubt. See Carter, 129 Nev. at , 299 P.3d at 372 (requiring admission of confession obtained in violation of Miranda to be harmless beyond a reasonable doubt (emphasis added)). It is possible that the erroneous admission of the officers' testimonies contributed to Mann's conviction. A reasonable jury may have interpreted the officers' testimonies to Mann's statements acknowledging the location of the gun as a confession to the crimes alleged, especially given that Villasenor claimed Mann robbed him at gunpoint and Mann claimed that he did not have a gun. In this context, where the facts of the alleged robbery are intertwined with possession of the gun, the extent of the jury taint cannot be known. Therefore, the fruit of the interrogation conducted after Mann unequivocally invoked his right to counsel was admitted in error and was not harmless beyond a reasonable doubt.
SUPREME COURT OF NEVADA 6 (0) 194'A e Based on the foregoing, we ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.
J. Parraguirre
c- De. 14) J. Douglas
cc: Hon. Valerie Adair, District Judge Clark County Public Defender Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk
SUPREME COURT OF NEVADA 7 ill) 1947A agb,