NICHOLAS DAVID NEVAREZ v. THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction of second-degree murder and carrying concealed firearm. Second Judicial District Court. Washoe County; David A. Hardy, Judge.

On October 2, 2022, Appellant Nicholas Nevarez spoke with Jalawrence Holden while walking in downtown Reno. This interaction unnerved Nevarez, and she returned to her apartment to retrieve the gun she usually carried. Ten minutes later, Nevarez passed Holden again and removed the gun from a bag. Holden then lunged at Nevarez. Nevarez shot Holden three times, killing him. Nevarez called 911 and remained at the scene. Nevarez was transported to the police station, where Detective Aaron Flickinger conducted an interview with Nevarez. Prior to the interview, Flickinger informed Nevarez of some of her Miranda rights. During the interview, Nevarez told Flickinger that her stepdad was a lawyer and that “he would help [her] right now.”

The State charged Nevarez with open murder. Before trial, Nevarez filed a motion to suppress the interview with Flickinger and a motion to introduce certain prior violent acts of Holden. The district court denied both motions. A jury convicted Nevarez of second-degree murder.

Nevarez raises four issues on appeal. The issues raised challenge whether Miranda warnings were adequate, whether Nevarez sufficiently invoked her right to counsel so that questioning should have terminated, whether the district court improperly excluded evidence of the victim's violent nature, and whether the district court should have given Nevarez's proposed inverse flight and open carry instructions.

First, Nevarez asserts the Miranda warning provided to her at the outset of her police interview was constitutionally inadequate. We agree, though we conclude it was harmless error. See Carroll v. State, 132 Nev. 269, 287, 371 P.3d 1023, 1035 (2016) (concluding “other powerful evidence” of defendant's guilt demonstrated Miranda violation was harmless error); Boehm v. State, 113 Nev. 910, 916, 944 P.2d 269, 273 (1997).

A Miranda warning delineates four rights, and at issue here is “the right to the presence of an attorney.” Florida, v. Powell, 559 U.S. 50, 59-60 (2010) (citation modified). Police must inform a suspect of the right to counsel before questioning and during questioning. Stewart v. State, 133 Nev. 142, 146, 393 P.3d 685, 688 (2017). In Stewart, we concluded the Miranda, warning was sufficient because in that case the police informed the defendant prior to the questioning that he had “the right to have the presence of an attorney during questioning ․ [and i]f you cannot afford an attorney one will be appointed before questioning.” Id. Though “not the clearest possible formulation of Miranda's right-to-counsel advisement,” we deemed the warning constitutionally sufficient. Id.

Here, Detective Flickinger informed Nevarez of several of her Miranda rights, but not of all of them. Flickinger failed to inform Nevarez of her right to counsel before questioning. Flickinger mentioned to Nevarez's that she “ha[d] the right to an attorney to be present during any questioning,” but failed to convey that Nevarez had a right to consult an attorney prior to questioning.

This is distinguishable from Stewart where the defendant was informed of a right to counsel both before and during questioning. Because the warning provided to Nevarez lacked any information about having an attorney prior to questioning, we conclude the warning failed to pass constitutional muster and Nevarez's statement should have been suppressed. Id. (noting “Miranda, warnings must be ‘sufficiently comprehensive’ ” (quoting Powell, 559 U.S. at 63)).

Even though the Miranda warning given to Nevarez was insufficient, such error is not structural. See Carroll v. State, 132 Nev. at 287, 371 P.3d at 1035; see also United States v. Butler, 249 F.3d 1094, 1101 (9th Cir. 2001) (statements that should have been suppressed under Miranda were inconsequential in the face of spontaneous statements made on the way to jail and recovery of large quantity of marijuana from defendant's car). We review the admission of Nevarez's statement for harmless error. Carroll, 132 Nev. at 287, 371 P.3d at 1035. For this type of error to warrant reversal, it must be “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” Neder v. United States, 527 U.S. 1, 18 (1999); see also Chapman v. California, 386 U.S. 18, 23-24 (1967); Valdez v. State, 124 Nev. 1172, 1189, 196 P.3d 465, 476 (2008). Under this standard, we are not convinced the failure of the district court to suppress the statement after a faulty Miranda warning warrants reversal. Nevarez's interview was repetitive of other evidence. The court admitted surveillance footage of Nevarez shooting Holden and testimony from other eyewitnesses to the shooting. Considering the evidence in this case aside from the interview, we conclude the district court's error in failing to suppress Nevarez's interview was harmless.

Second, Nevarez asserts the police interview should have ceased when she mentioned that her stepfather was an attorney, as she argues this qualified as an invocation of her right to counsel. We disagree. We review the district court's factual finding concerning the words a defendant used to invoke the right to counsel under Miranda for clear error, but review “[w]hether those words actually invoked the right to counsel” de novo. Carter v. State, 129 Nev. 244, 247, 299 P.3d 367, 370 (2013) (quoting United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994)). Such an expression must not be ambiguous or equivocal, nor does a statement that merely conveys the suspect “might be invoking the right to counsel” suffice. Davis v. United States, 512 U.S. 452, 459. Moreover, the mere mention of a lawyer does not take on a “talismanic qualit[y],” and “a defendant does not invoke his right to counsel any time the word falls from his lips.” Kaczmarek v. State, 120 Nev. 314, 330, 91 P.3d 16, 27 (2004) (citation modified).

During the police interview, Nevarez said either “Now I lost” or, “All I want” . . is my ․ mom, my stepdad.” Nevarez then followed this statement with, “He's a lawyer. He would help me right now.”

The district court, likely based on the transcript, concluded Nevarez stated she “lost” her mom and stepdad. A review of the recording of the interview demonstrates that Nevarez said “All I want” rather than “Now I lost.”

Even assuming Nevarez said “All I want,” Nevarez's statement itself and the surrounding context leave questions as to whether Nevarez intended to invoke her right to counsel. Settled law requires a clear assertion of a suspect's right to counsel. A suspect does not satisfy this threshold by merely mentioning an attorney. Kaczmarek, 120 Nev. at 330, 91 P.3d at 27; Harte v. State, 116 Nev. 1054, 1067-68, 13 P.3d 420, 429 (2000) (concluding defendant did not invoke right to counsel with the statement, “Just out of curiosity, when do I get to talk to a lawyer? ․ [T]hey told me ․ they thought I should talk to a lawyer or whatever.”). On the other hand, this court has concluded that clearly asking for or requesting an attorney is sufficient for a defendant to invoke this right. See, e.g., Carter, 129 Nev. 244, 248-49, 299 P.3d 367, 370-71 (finding the statement “Can I get an attorney?” to be an unequivocal demand for counsel); Allan v. State, 118 Nev. 19, 24, 38 P.3d 175, 178 (2002) (“I don't want to say a word anyway, I want to see my lawyer.”), overruled on other grounds by Rosky v. State, 121 Nev. 184, 190-91, 111 P.3d 690, 694 (2005). Nevarez's statement here lacks sufficient clarity for an invocation of her right to counsel. Accordingly, we conclude reversal on this issue is not warranted.

Third, Nevarez challenges the district court's refusal to admit evidence of Holden's other violent acts, including: (1) an altercation with his mother's fiancé; (2) an argument with his mother, during which Holden indicated he would “kill anyone who got in his way”; (3) a police report of Holden screaming and holding a machete in his front yard after seeing a man drive by his house displaying a firearm; and (4) and an incident in which Holden threw a jug of weed killer at his mother's fiancé and shoved him to the ground. Nevarez argues that the other acts were relevant to her self-defense claim and argues NRS 48.045 permitted admission of evidence of these acts for a valid non-propensity purpose. We review a district court's decision to admit or exclude evidence of other acts for an abuse of discretion. Newman v. State, 129 Nev. 222, 231, 298 P.3d 1171, 1178 (2013). We conclude the district court did not abuse its discretion in refusing to admit the other act evidence on either ground.

Nevarez claims Holden's other act evidence was relevant to her self-defense claim. For the court to admit this evidence as part of a self-defense claim to show Nevarez's state of mind, Nevarez must have been aware of the prior acts. Daniel v. State, 119 Nev. 498, 515, 78 P.3d 890, 902 (2003). Nevarez failed to demonstrate she knew of any of the prior violent acts at the time of the shooting, so this argument fails.

Nevarez also failed to demonstrate a valid non-propensity purpose that would have warranted admission of Holden's other acts. To be admissible, other act evidence must be introduced for a relevant non-propensity purpose, including motive, opportunity, intent, or plan. Bigpond v. State, 128 Nev. 108, 116, 270 P.3d 1244, 1249 (2012); NRS 48.045(2). This standard for admitting other acts under NRS 48.045(2) applies to all persons, not just the accused. Mortensen v. State, 115 Nev. 273, 280, 986 P.2d 1105, 1110 (1999). Once a proponent of other act evidence satisfies this first test, the proponent must then demonstrate, among other things, that “the act is proven by clear and convincing evidence.” Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997). Though Nevarez claimed these acts were evidence of Holden's previous violent intent toward other individuals and his potential motive as a previous aggressor, the district court found that this evidence was too attenuated and remote in time to warrant its admission. Moreover, the district court found Nevarez failed to demonstrate these acts by clear and convincing evidence. We conclude the district court exercised proper discretion in so finding, as Nevarez failed to provide any testimony with respect to this evidence. Ultimately, because Nevarez satisfied neither standard required to admit Holden's other act evidence under the statute, we conclude the district court properly excluded this evidence.

Finally, Nevarez argues she was entitled to two jury instructions that the district court refused to give: an inverse flight jury instruction and an instruction explaining the legality of open carry in Nevada. A district court's decision to give or decline a proposed jury instruction is reviewed for an abuse of discretion and will only be disturbed if the decision is arbitrary, capricious, or it exceeds the bounds of law or reason. Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001); Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005).

First, we conclude the district court did not abuse its discretion in refusing to give Nevarez's proposed inverse flight instruction. This court has previously concluded a district court did not err in declining to give such an instruction where a shooter transported the shooting victim to the hospital and remained at the hospital after police had arrived. Arana v. State, No. 84153, 2024 WL 901410, at *4 (Nev. March 1, 2024). This court reasoned in Arana that the shooter's presence at the hospital did not necessarily “negate any essential element of the charged offenses,” and thus, the district court did not abuse its discretion by refusing to offer the defendant's proposed instruction on this issue. Id. Here, we similarly conclude that while the record indicates Nevarez called 911 and waited at the scene for police to arrive after she shot Holden, these actions may not necessarily be probative of whether Nevarez acted in self-defense. Thus, we conclude that the district court exercised sound discretion when it refused to give Nevarez's instruction on lack of flight.

We also conclude the district court did not abuse its discretion by rejecting Nevarez's proposed instruction regarding the legality of open carry in Nevada. The record, including the surveillance footage of the shooting admitted at trial, indicates Nevarez was not engaging in lawful open carry prior to the shooting. Instead, she carried the gun concealed in a bag and only drew the gun as she approached Holden. Accordingly, we conclude the district court did not abuse its discretion in rejecting this instruction, as the record did not support it.

Nevarez also asserts cumulative error. Given that we find only one harmless error, there is nothing to cumulate.

Ultimately, we conclude (1) the insufficient Miranda warning given to Nevarez was harmless error, (2) Nevarez did not invoke her right to counsel, (3) the district court exercised sound discretion when it excluded other act evidence pertaining to the victim, and (4) the district court also exercised sound discretion in rejecting Nevarez's proposed jury instructions regarding her absence of flight and the legality of open carry in this State. Accordingly, we find no grounds for reversal of Nevarez's conviction. Therefore, we

ORDER the judgment of the district court AFFIRMED.

Pickering, J.

Parraguirre, J.

Bell, J.