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 

2We conclude that the other techniques the detective used to secure 

Marquez's confession of which he complains constituted manipulation, not 

deception. 

6 
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- 3The State argues that Marquez's 

unsupported statements that the instructions misled the jury do not 

demonstrate that he was entitled to a Foquette instruction. 

3Marquez 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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Douglas 

Cherry 

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 ." j. Parraguirre 

J. 

J. 

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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