A-1-CA-35290 | Omnilex

Gesamter Gesetzestext

Filed
Court of Appeals of New Mexico
9/13/2018 11:09 AM
Office of the Clerk
Mark Reynolds

OCR transcription for search; preserved printed pages are authoritative

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Filed

Court of Appeals of New Mexico
9/13/2018 11:09 AM

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: September 13, 2018

NO. A-1-CA-35290

STATE OF NEW MEXICO,
Plaintiff-Appellee,

ERNEST SERNA,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General
Maha Khoury, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Len

pe of the Clerk

—_—

ark Reynolds

OPINION

GALLEGOS, Judge.

a} Defendant Ernest Serna was arrested and charged with an open count of murder
(firearm enhancement), contrary to NMSA 1978, Section 30-2-1(A)(1) (1994), and
NMSA 1978, Section 31-18-16 (1993); tampering with evidence, contrary to NMSA
1978, Section 30-22-5 (2003); and aggravated stalking, contrary to NMSA 1978,
Section 30-3A-3.1 (1997). While he was in police custody, Defendant made several
potentially incriminating statements to the arresting deputy. In district court,
Defendant filed a motion to suppress the statements, arguing that he was not
adequately apprised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The
district court found that the Miranda warnings were adequate and denied Defendant’s
motion. Subsequently, Defendant entered into a conditional plea and disposition
agreement (plea agreement) in which he pled no contest to second degree murder
(firearm enhancement), contrary to Section 30-2-1(B) and Section 31-18-16,
tampering with evidence, and aggravated stalking. In the plea agreement, Defendant
specifically reserved for appeal the issue of the adequacy of the Miranda warnings.
For the reasons that follow, we conclude that the Miranda warnings given to

Defendant by the arresting deputy did not sufficiently convey Defendant’s full rights

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under Miranda. We therefore reverse the district court’s order denying Defendant’s
suppression motion.
BACKGROUND
2} The State alleges that Defendant and Alicia Quintana (Victim) went to a
restaurant together and subsequently engaged in a verbal altercation in the
restaurant’s parking lot. After the verbal altercation, Defendant and Victim returned
to the restaurant to pay their bill and then left the establishment. Several minutes later,
gunshots were heard and a pickup truck was seen quickly fleeing the parking lot.
Victim was found bleeding in the parking lot and was later pronounced dead.
3} Defendant was apprehended a few days later by Sandoval County Deputy
Sheriff Sal Tortorici. Defendant was placed in the back of Deputy Tortorici’s patrol
vehicle and the two engaged in casual conversation for several minutes while Deputy
Tortorici had his lapel camera turned on. The lapel video shows that after
approximately six and a half minutes, Deputy Tortorici recited Defendant’s Miranda
rights from memory and without the use of a department-issued card. Specifically,
Deputy Tortorici gave Defendant the following Miranda warning (first Miranda
warning):

You have the right to remain silent. Anything you say can and will be

used against you in a court of law. You have the right to an attorney

during any and all questionings. If you can’t afford an attorney, one will
be provided for you.

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Deputy Tortorici did not immediately begin to question Defendant about the crime.
Rather, Defendant and Deputy Tortorici continued to engage in conversation during
which time Defendant made several statements about contemplating turning himself
in to law enforcement. Deputy Tortorici then asked Defendant about the weapon,
presumably the one allegedly used in the killing of Victim. Defendant responded by
stating that he did not know what he did with the weapon and that he threw it out of
his vehicle “somewhere.”
{4} Deputy Tortorici proceeded to drive Defendant to the police station for further
questioning. According to an additional video recorded by Deputy Tortorici’s lapel
camera, Defendant was read the following Miranda warning (second Miranda
warning) from a department-issued card:

You have the right to remain silent. Anything you say can and will be

used against you in a court of law. You have the right to talk to a lawyer

and you have the right to have him present with you while being

questioned. If you cannot afford a lawyer, one will be appointed to you

before any questionings. If you decide at any time you want to exercise

these rights and not answer any questions, you may do so.
Deputy Tortorici then began to interrogate Defendant about what had happened
outside the restaurant with Victim. Defendant immediately asked if he was being
recorded and what it would take to get an attorney. Defendant expressed that he was

previously unaware he could have an attorney and that he may not have been listening

to the first Miranda warning. Defendant then stated he “want[ed] to be left alone.”

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After Defendant and Deputy Tortorici engaged in a bit more conversation, in which
Defendant either refused to answer or gave ambiguous responses to Deputy
Tortorici’s questions, the lapel video ends.

{5} Defendant was charged with an open count of murder (firearm enhancement),
tampering with evidence, and aggravated stalking. Subsequently, on August 17, 2015,
Defendant filed a motion to suppress the statements made to Deputy Tortorici,
arguing exclusively that the first Miranda warning given by Deputy Tortorici was
inadequate. At the suppression hearing, the parties stipulated to the language used by
Deputy Tortorici in the first Miranda warning. The district court denied the motion
to suppress and found the first Miranda warning adequate. Notwithstanding the fact
that the adequacy of the Miranda warning was the only issue addressed in
Defendant’s motion and during the suppression hearing, the district court also found
that Defendant had waived his rights under Miranda. In response to the district
court’s order, Defendant filed a motion in limine seeking an additional order on the
waiver issue. The district court then issued a letter requesting supplemental briefing
as to whether Defendant waived his Miranda rights. The waiver issue was briefed by
both sides and a second hearing was scheduled. At the hearing, a copy of the lapel

videos was given to the district court and admitted into evidence’.

'Defendant did not designate the transcript of this hearing as part of the record
on appeal. We make this determination based on our own review of the record. The

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{6} The district court never entered an additional or amended order on the waiver
issue. Instead, shortly after the second hearing, Defendant entered into a plea
agreement in which he pled no contest to second degree murder (firearm
enhancement), tampering with evidence, and aggravated stalking. The plea agreement
stated that “Defendant may appeal only the issue of whether the arresting [s]heriff’s
[djeputy gave an insufficient Miranda warning to . . . Defendant as raised
in... Defendant’s brief filed August 17, 2015.” The district court’s judgment and
sentence order similarly stated that “Defendant may appeal the Miranda warning
issue as raised in briefs filed 8/17/15.”

DISCUSSION

(7 Onappeal, Defendant makes two arguments stemming from the district court’s
denial of his suppression motion. First, Defendant argues that the first Miranda
warning given to him was inadequate. Specifically, Defendant asserts that the
warning did not adequately convey his right to have counsel appointed and present
prior to questioning. Second, Defendant argues that even ifthe warning was adequate,

the district court erred in finding that he waived his rights under Miranda.

record indicates that the CD containing the lapel videos was admitted into evidence
at the second hearing. This is the same CD this Court received as a supplemental
exhibit.

{83} In turn, the State contends that the warning was adequate and that the waiver
issue was not preserved below or reserved for appeal in the plea agreement.
Additionally, the State argues for the first time on appeal that some of the statements
made by Defendant to Deputy Tortorici were volunteered.

I. Standard of Review

{9} Inreviewing the district court’s denial ofa defendant’s motion to suppress, the
factual determinations are subject to a substantial evidence standard of review, but
the application of the law to the facts is subject to de novo review. State v. Nieto,
2000-NMSC-031, 4 19, 129 N.M. 688, 12 P.3d 442. We view the district court’s
factual determinations “in the manner most favorable to the prevailing party.” State
vy. Lopez, 2000-NMCA-069, ¢ 4, 129 N.M. 352, 8 P.3d 154.

II. Adequacy of the Miranda Warnings

410} Atissue here is the Fifth Amendment right against self-incrimination. The Fifth
Amendment states that no person shall “be compelled in any criminal case to be a
witness against himself].]” U.S. Const. amend. V. The Fifth Amendment right against
self-incrimination is applicable to the State of New Mexico through the Fourteenth
Amendment. See State v. Filemon V.,2018-NMSC-011, 7 18, 412 P.3d 1089.

ai} This privilege against self-incrimination is available outside of court

proceedings, including situations where a person is being questioned by law

enforcement. See Miranda, 384 U.S. at 467 (holding that the Fifth Amendment
privilege is available during in-custody interrogation of persons suspected or accused
of a crime). A person is subject to custodial interrogation when law enforcement
initiates questioning after a person has been taken into custody or otherwise deprived
of his or her freedom of action in any significant way. Id. at 444.

123} “T]he prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use
of procedural safeguards effective to secure the privilege against self-incrimination.”
Id. In order for a statement to be admissible, Miranda requires that prior to
questioning, law enforcement must warn the person of the right to remain silent, that
any statement he or she makes may be used as evidence against them, and that he or
she “has a right to the presence of an attorney, either retained or appointed.” Jd. These
warnings must be clearly conveyed to the individual held for interrogation and are an
absolute prerequisite before the interrogation can begin. Jd. at 471-72. “Only through
such a warning is there ascertainable assurance that the accused was aware of” his or
her Miranda rights. Id. at 472.

43} Our focus in this case is on Deputy Tortorici’s explication of Defendant’s right
to counsel. The right to counsel warning from Miranda requires that a person subject

to custodial interrogation by law enforcement be apprised that they have a “right to

the presence of an attorney[.]” Jd. at 444. In this case, Deputy Tortorici warned
Defendant that he had a “right to an attorney during any and all questionings.”
Deputy Tortorici also warned Defendant, “Ifyou can’t afford an attorney, one will be
provided for you.” Defendant argues that Deputy Tortorici’s warnings were
inadequate because they did not apprise him of his right to appointed counsel prior
to questioning. In response, the State contends that there is no requirement that a
Miranda warning explicitly inform the suspect of a right to an attorney prior to
questioning. Further, the State asserts that Defendant was in fact informed of the right
to have an attorney prior to answering questions, and that this is all that is required
under Miranda.

4} To the extent the State asserts that there is no requirement that a suspect be
given the Miranda warnings verbatim, we agree. See California v. Prysock, 453 US.
355, 359-60 (1981) (stating that Miranda does not require a “talismanic incantation”
of the warnings, but rather only the fully effective equivalent of such warnings). “The
crucial test is whether the words in the context used, considering the age, background
and intelligence of the individual being interrogated, impart a clear, understandable
warning of all of his rights.” Coyote v. United States, 380 F.2d 305, 308 (10th Cir.
1967). “[I]t is for the court to objectively determine whether in the circumstances of

the case the words used were sufficient to convey the required warning.” Id.

5} In making this determination, the form of a Miranda warning is of little
consequence as we look to see if the substance of what is required by Miranda is
communicated to the suspect. See Prysock, 453 U.S. at 359 (“[The United States
Supreme] Court has never indicated that the ‘rigidity’ of Miranda extends to the
precise formulation of the warnings given a criminal defendant.”); State v. Briggs,
1970-NMCA-062, § 4, 81 N.M. 581, 469 P.2d 730 (“The warnings required by
Miranda . . . deal with substance, not form.”); see also People of Territory of Guam
v. Snaer, 758 F.2d 1341, 1343 (9th Cir. 1985) (“If a defendant has been told the
substance of his constitutional rights, it is not fatal if irrelevant words or words with
no independent substance are omitted.” (internal quotation marks and citation
omitted)). Miranda warnings need not be examined “as if construing a will or
defining the terms of an easement.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989).
416 “The inquiry is simply whether the warnings reasonably convey to a suspect
his rights as required by Miranda.” Duckworth, 492 U.S. at 203 (alterations, internal
quotation marks, and citation omitted). In taking this somewhat flexible and common
sense approach, the United States Supreme Court has attempted to balance the
individual right against compelled self-incrimination with the necessities encountered | _

every day by law enforcement. See Miranda, 384 U.S. at 481 (“This Court, while

protecting individual rights, has always given ample latitude to law enforcement
agencies in the legitimate exercise of their duties.”).

417}. Our analysis of the adequacy of Deputy Tortorici’s Miranda warnings thus
turns on two primary questions: (1) does Miranda require that a person subject to
custodial interrogation be warned of that person’s right to have counsel present prior
to questioning; and (2) if so, was this right reasonably conveyed by the warnings
given by Deputy Tortorici?

A. Miranda Warnings Must Convey the Right to the Presence of Counsel
Prior to Questioning

418} It is clear from both Miranda and subsequent decisions by the United States
Supreme Court that there is a right to have and consult with counsel prior to
questioning. See Miranda, 384 U.S. at 470 (“Thus, the need for counsel to protect the
Fifth Amendment privilege comprehends not merely a right to consult with counsel
prior to questioning, but also to have counsel present during any questioning if the
defendant so desires.”); see also Duckworth, 492 U.S. at 203 (noting that the
warnings at issue, including the defendant’s right to speak to an attorney before and
during questioning satisfied all the requirements of Miranda); Florida v. Powell, 559
U.S. 50, 62 (2010) (holding that, combined together, the warnings given to the
defendant “reasonably conveyed” that he had a right to have an attorney present “at

all times[,|” including both prior to and during police questioning). This right must

be conveyed as part of the Miranda warnings. See Prysock, 453 US. at 361 (stating
that the full right to counsel under Miranda that must be conveyed includes the “right
to have a lawyer present prior to and during interrogation”).

19} We address the State’s two points of disagreement with this proposition. The
State’s first point is that this Court, our Supreme Court, and the United States
Supreme Court have all upheld on numerous occasions warnings that simply apprised
the suspect of a right to the presence of counsel, which is a verbatim recitation of
what Miranda noted was required. See Miranda, 394 U.S. at 444. While this may be
true, such a warning contains no limitation on the right to counsel. That is, one can
reasonably infer from an advisement referring to the right to the presence of counsel
that the right applies both before and during interrogation. The fact that courts have
affirmed the use of the term “presence of counsel” does not mean that a suspect need
not be advised of his right to counsel prior to questioning, as the State contends, but
rather that such language adequately conveys that right. However, because this
particular language is not at issue in this case, the State’s point is unavailing.

20} The State’s second point, made in reliance on Powell, is that the full right to
counsel encompasses only a right to counsel prior to answering any questions, as
opposed to prior to questioning. Specifically, the State points out that the defendant

in Powell was advised of his right to consult with an attorney before answering any

questions and asserts that such warning was held by the United States Supreme Court
to be sufficient. See Powell, 559 U.S. at 62-63. We observe, however, that the
warnings at issue in Powell were inverse to the warnings given here. That is, the
defendant in Powell was explicitly warned of his right to have counsel prior to
answering any questions, but the warnings omitted the right to counsel during
questioning. Jd. at 54. However, the defendant was also advised that he had a right
to have counsel appointed prior to questioning. Id. Importantly, the Supreme Court
did not examine the sufficiency of the warning with respect to the right to counsel
prior to answering questions, but rather analyzed whether the warnings in their
totality “reasonably conveyed” to the defendant that he had a right to have an attorney
present “at all times[,|” including both prior to and during police questioning. Jd. at
62. In concluding that the warnings in their totality satisfied Miranda, the Supreme
Court relied on and reaffirmed its decisions in Prysock and Duckworth. Powell, 559
U.S. at 60-62. We can see nothing in Powell that would indicate that the Supreme
Court intended to limit the right to counsel prior to questioning, as outlined in
Miranda, Prysock, and Duckworth, so that it would become effective only after
questioning began, as the State contends. Nor does the State’s contention survive
scrutiny when compared to the language in Miranda stating that if a suspect

“indicates in any manner and at any stage of the process that he wishes to consult

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with an attorney before speaking there can be no questioning.” Miranda, 384 U.S. at
444-45 (emphasis added). Therefore, we are not convinced by the State’s argument
on this point.

213 Weconclude that Miranda requires that a person be warned, at least implicitly,
that they have a right to counsel prior to questioning. See, e.g., United States v.
Loucious, 847 F.3d 1146, 1151 (9th Cir. 2017) (‘The Miranda warnings at issue...
adequately conveyed notice of the right to consult with an attorney before
questioning.”); see also Snaer, 758 F.2d at 1342 (“The Supreme Court in
Miranda, . . . although making clear that one does have the right to consult with
counsel before questioning, is ambiguous as to how explicitly the person must be
warned of that right.” (citation omitted)); State v. Nave, 821 N.W.2d 723, 727 (Neb.
2012) (“[A]lthough the Miranda warnings did not expressly state that [the defendant]
was entitled to appointed counsel before questioning, that information was obviously
implied from the warnings which the police read to him.”).

B. The Miranda Warning in This Case Did Not Reasonably Convey the Right
to the Presence of Counsel Prior to Questioning

2} We now look at whether Deputy Tortorici’s warnings reasonably and
sufficiently conveyed to Defendant his right to have an attorney present, including
prior to questioning. See Powell, 559 U.S. at 62-63; Filemon V.,2018-NMSC-011,

48 (‘Miranda warnings must be given in a manner that is clearly sufficient to grant

the suspect an awareness of the right so the suspect can make a knowing, intelligent
and voluntary choice to speak.”). This requires us to view the warnings in their
totality to determine if Defendant was apprised, either explicitly or implicitly, of the
right to have counsel before as well as during questioning. See Duckworth, 492 U.S.
at 205 (holding that the warnings read together “in their totality” can satisfy the
requirements of Miranda).

23} The warning given to Defendant indicated that he had a right to an attorney
“during any and all questioning.” The use of the word “during” is pivotal. “During”
is a preposition and is defined as “throughout the duration of.” Merriam-Webster’s
Collegiate Dictionary 388 (11thed. 2005). A “preposition” is “a function word that
typically combines with a noun phrase to form a phrase which usually expresses a
modification or predication.” /d. at 981. Thus, “during” modifies the phrase “you
have a right to an attorney” and restricts that right to the duration of any questioning
by law enforcement. Even viewing this language in a manner extending the utmost
latitude to the law enforcement officer—and bringing common sense to bear—we still
cannot see how “during” could be understood to apply backwards to also mean prior
or before.

24; The State’s reference to Loucious in its answer brief only serves to underscore

this determination. In Loucious, like here, the defendant was warned that he had the

right to the presence of an attorney during questioning. 847 F.3d at 1148. And also
like here, the defendant was not explicitly warned that he had the right to the presence
of an attorney prior to questioning. Jd. However, he was advised that if he could not
afford an attorney, one would be appointed “before questioning.” Jd. The court held
that the warnings, taken together, “adequately conveyed notice of the right to consult
with an attorney prior to questioning.” /d. at 1151. In this case, where the balance of
the warnings contain no “before questioning” language—or any other language, for
that matter—by which we could infer that the full right to counsel was adequately
conveyed, there is simply no way to reasonably read the warnings given by Deputy
Tortorici as conveying to Defendant that he had a right to an attorney prior to
questioning.

25} Insum, by implying that the right to counsel would be effective only during the
interrogation, the warnings given by Deputy Tortorici to Defendant placed a
misleading temporal limitation on the full right to counsel under Miranda. Cf Powell,
559 U.S. at 74 n.8 (Stevens, J., dissenting) (expressing concern over Miranda
warnings that use amisleading temporal limitation on the right to counsel). Therefore,
we conclude that the warnings here did not reasonably convey Defendant’s Miranda
rights. In so concluding, we simply reaffirm the traditional Miranda requirement that

a suspect be apprised of the full right to counsel without limitation. “There are

substantial practical reasons for requiring that defendants be advised of their right to
counsel during as well as before questioning.” United States v. Noti, 731 F.2d 610,
615 (9th Cir. 1984). Having counsel present prior to questioning allows counsel to
better protect the rights ofhis or her client, particularly against self-incrimination. See
Miranda, 384 U.S. at 480 (“An attorney may advise his client not to talk to police
until he has had an opportunity to investigate the case, or he may wish to be present
with his client during any police questioning.”); Snaer, 758 F.2d at 1343 (“The right
to consult with an attorney before questioning is significant because counsel can
advise the client whether to exercise his right to remain completely silent, or, if he
chooses to speak, which questions to answer or how to answer them.”).

26} We would be remiss if we did not point out the contrast in language between
the first Miranda warning, given from memory, and the second Miranda warning,
given from a department-issued card. Not only does the second Miranda warning
advise Defendant of his “right to talk to a lawyer and... the right to have him present
with [him] while being questioned” but also that “[i]f [he] cannot afford a lawyer, one
will be appointed to [him] before any questionings.” In delivering the first Miranda
warning from memory, and not from his department-issued card, Deputy Tortorici
risked that he would fail to adequately convey Defendant’s rights, and that is

precisely what happened. While we again note that law enforcement officers are not

required to recite the warnings from Miranda verbatim, “police can always be certain
that Miranda has been satisfied if they simply read the defendant his rights from a
prepared card[.]” Loucious, 847 F.3d at 1151 (internal quotation marks and citation
omitted). This assumes, of course, that the content of the prepared card reasonably
conveys a suspect’s Miranda rights.

27; Because the first Miranda warning given to Defendant by Deputy Tortorici was
inadequate, the district court erred in denying Defendant’s motion to suppress. See
Filemon V.,2018-NMSC-011, 19 (reiterating “the notion that statements that would
otherwise be considered voluntary must be excluded for failure to warn’).

II. Waiver of Rights Under Miranda

28} We turn next to Defendant’s argument that the district court erred in finding
that he had waived his rights after receiving adequate Miranda warnings. There is
some question as to whether this argument was preserved for appeal and whether this
issue was reserved for appeal in Defendant’s plea agreement. See State v. Winters,
2015-NMCA-050, J 18, 349 P.3d 524 (stating that a defendant must preserve an issue
for appeal by receiving an adverse determination on a pretrial motion and must also
reserve the issue for appeal by expressing intent to do so in the plea agreement).
However, we need not decide these questions one way or the other. Instead, we

observe that as a matter of law, the rights conferred by the Miranda warnings can

only be waived after the full and adequate warnings have been given. State v.
Verdugo, 2007-NMCA-095, {ff 13, 17, 142 N.M. 267, 164 P.3d 966. Because we
have concluded that the first Miranda warning was inadequate, Defendant could not
have validly waived his rights.

IV. Volunteered Statements

29} The State argues in its answer brief—for the first time—that Defendant
volunteered several statements throughout the course of his dialogue with Deputy
Tortorici and that these statements should be deemed admissible regardless of the
adequacy of the first Miranda warning. “Generally, an appellee has no duty to
preserve issues for review and may advance any ground for affirmance on appeal.”
State v. Todisco, 2000-NMCA-064, 4 11, 129N.M. 310, 6 P.3d 1032. This Court will
affirm a district court’s decision under the right for any reason doctrine “so long as
the circumstances do not make it unfair to the appellant to affirm.” Cordova v. World
Fin. Corp. of N.M., 2009-NMSC-021, § 18, 146 N.M. 256, 208 P.3d 901.

30} The statements in question were made by Defendant to Deputy Tortorici
between the first and second Miranda warnings while Defendant was in the back of
the patrol unit. Although we have concluded that the first Miranda warning given to
Defendant was inadequate, it is still possible that a person can volunteer admissible

statements even without adequate Miranda warnings. See Miranda, 384 U.S. at 478

(“Volunteered statements of any kind are not barred by the Fifth Amendment and
their admissibility is not affected by our holding today.”); State v. Fekete, 1995-
NMSC-049, ¢ 43, 120 N.M. 290, 901 P.2d 708 (recognizing that “even when an
accused is in custody, Miranda protections do not apply in those situations where he
or she volunteers statements”). “Volunteered statements come within one of two
categories: statements which the police did not attempt to elicit, and statements made
during custodial interrogation that may be in response to police questioning but are
unresponsive to the questions asked.” Jd. § 44. The second type of statement—one
that is unresponsive to the questions asked—is one that “police officers cannot
foresee because it is too far removed from the questions asked.” Jd.

313, The State enumerates several statements that it argues were volunteered and
therefore admissible. The statements are that (1) Defendant asked ifthe police were
“looking for [him]”; (2) Defendant stated he was “trying to figure out who to call to
turn [him]self in” and to “tell [law enforcement] they can pick [him] up
somewhere... because it’s a bad situation”; (3) Defendant “didn’t know what to do
... just been sitting there for the last day, day and a half”; and (4) “there’s no place
else for me to go, where am I going to go? ... you can’t hide forever.”

32} Aside from listing these four statements and asserting that they were

“volunteered and... admissible,” the State provides us with no analysis with respect

to each. By making no further argument, the State leaves it to us to determine the
voluntariness of each statement in context. To do so, we must determine whether each
statement was the product of express questioning or its functional equivalent, see
Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980), or whether each statement was
somehow so unresponsive to the questions asked that Deputy Tortorici could not have
foreseen them. Further, we would have to determine, in the context of the ongoing
and several-minutes-long conversation that both preceded and followed the giving of
the first Miranda warning, whether Defendant himself initiated the questioning or
whether Deputy Tortorici initiated the conversation. See State vy. Ferrari 1969-
NMSC-146, § 14, 80 N.M. 714, 460 P.2d 244 (stating that when a person initiates the
questioning they are not subject to custodial interrogation by law enforcement in that
moment and that Miranda “does not prohibit every inquiry in response to volunteered
statements where the arresting officer does not initiate the conversation”); see also
David M. Nissman & Ed Hagen, Law of Confessions, § 5:8 (2d ed. 2018) (“There is
no interrogation, certainly, where the police response is simply a non-interrogatory
answer to a question posed by the suspect.”). This we will not do.

33} “Torule onan inadequately briefed issue, this Court would have to develop the
arguments itself, effectively performing the parties’ work for them.” Elane

Photography, LLC v. Willock, 2013-NMSC-040, { 70, 309 P.3d 53. “This creates a

strain on judicial resources and a substantial risk of error. It is of no benefit either to
the parties or to future litigants for this Court to promulgate case law based on our
own speculation rather than the parties’ carefully considered arguments.” Id.
Furthermore, it would be unfair for us to construct the State’s argument without the
opportunity for Defendant to respond.

34} Consequently, because addressing this undeveloped argument—raised for the
first time on appeal—would be unfair to Defendant, we will not affirm on a right for
any reason basis. See Cordova, 2009-NMSC-021, 4 18. Even though we are not
deciding this issue, this does not preclude the State from raising on remand, or the
district court from considering, whether any of Defendant’s statements were
volunteered in such a manner that the Miranda protections did not apply.
CONCLUSION

{35} We conclude that the district court erred in denying Defendant’s motion to
suppress the statements made to Deputy Tortorici between the first and second
Miranda warnings because Defendant was not adequately apprised of his right to
counsel. Therefore, we reverse and remand to the district court for further

proceedings.

36 IT ISSO ORDERED.

WE CONCUR:

M. MONICA ZAMORA, RA, Judge

HENRY M. BOHNHOFF, Judge

Sanaa

September 13, 2018- State of New Mexico v. Ernest Serna, No. A-1-CA-35290

Gesamter Gesetzestext

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