State v. Ordonez

STATE V. ORDONEZ

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
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STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
JEREMIAH ORDONEZ,
Defendant-Appellee.

No. S-1-SC-36123
SUPREME COURT OF NEW MEXICO
April 11, 2019

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY, Douglas R.
Driggers, District Judge

COUNSEL

Hector H. Balderas, Attorney General, John J. Woykovsky, Assistant Attorney General,
Santa Fe, NM, for Appellant

Bennett J. Baur, Chief Public Defender, C. David Henderson, Appellate Defender, Brian
Parrish, Assistant Appellate Defender, J.K. Theodosia Johnson, Assistant Appellate
Defender, Santa Fe, NM, for Appellee

JUDGES

JUDITH K. NAKAMURA, Chief Justice. WE CONCUR: BARBARA J. VIGIL, Justice,
MICHAEL E. VIGIL, Justice, PETRA JIMENEZ MAES, Justice, Retired, CHARLES W.
DANIELS, Justice, Retired

AUTHOR: JUDITH K. NAKAMURA.

DECISION

NAKAMURA, Chief Justice.

{1} The State challenges the district court’s decision to suppress Defendant
Jeremiah Ordonez’s verbal confession. Finding no error, we affirm.

I. BACKGROUND
{2} While already incarcerated at the Metropolitan Detention Center (MDC) for other
crimes not relevant here, Ordonez wrote a letter in which he confessed to killing a man
several years earlier. Ordonez mailed the letter to a church it appears he never
attended.

{3} The police ultimately obtained the letter and two officers, Deputy Richard Chavez
and Detective Robert Nevarez of the Doña Ana County Sheriff’s Office, visited Ordonez
at the MDC and questioned him. After the officers advised Ordonez of his Miranda
rights, he confirmed for the officers what he wrote in his letter: he shot and killed a man.
Ordonez further clarified that the killing occurred in the course of a robbery. Ordonez
was indicted on first-degree felony murder and other charges.

{4} Ordonez was appointed counsel, and counsel asked Dr. William E. Foote to
perform a psychological evaluation of Ordonez. In his report Dr. Foote concluded that
Ordonez suffered from mental illness and did not understand his Miranda rights or
knowingly and intelligently waive them when the officers interrogated him at the MDC.

{5} A few days after Ordonez’s counsel received Dr. Foote’s report, Ordonez moved
to suppress the verbal confession he provided to the officers arguing that they failed to
obtain a valid waiver of his Miranda rights at the time of the questioning. Ordonez
conceded that the officers read him the standard Miranda warnings and reviewed the
warnings with him. Nevertheless, Ordonez contended that he had not knowingly and
intelligently waived his rights.1

{6} The district court agreed, and concluded that Ordonez “did not understand the
consequences of his statement or his interrogation, specifically that his statement would
be used against him in a court of law” and suppressed the statements Ordonez made
during the interrogation. The propriety of the district court’s ruling on Ordonez’s
suppression motion is now before this Court on interlocutory review. See State v.
Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (“[T]he legislature
intended for us to have jurisdiction over interlocutory appeals in situations where a
defendant may possibly be sentenced to life imprisonment . . . .”).

II. DISCUSSION

{7} At the outset, we note that the resolution of the issue before us does not require
clarification of what, if anything, the officers should have done to comply with Miranda
given the fact that Ordonez suffers from mental illness. This case only requires us to
apply the principles articulated in Miranda and its progeny to the facts presented. In
other words, we treat this matter as a straightforward Miranda case.

{8} “[T]he Fifth Amendment has been interpreted as requiring the State, prior to a
custodial interrogation of an accused, to advise the accused (1) of the right to remain
silent; (2) that any statement made by the accused may be used as evidence against

1
The motion included a host of other arguments that we do not summarize here.
him or her; and (3) of the right to the presence of an attorney, either retained or
appointed.” State v. Gutierrez, 2011-NMSC-024, ¶ 7, 150 N.M. 232, 258 P.3d 1024.
Once these warnings have been issued, a defendant may waive these rights. See
State v. Martinez, 1999-NMSC-018, ¶¶ 13-14, 127 N.M. 207, 979 P.2d 718.

{9} The United States Supreme Court’s case law makes clear that the validity of any
waiver turns on a two-fold inquiry: the waiver must be (1) “voluntary” and also must be
(2) “knowing and intelligent.” State v. Fekete, 1995-NMSC-049, ¶ 49, 120 N.M. 290,
901 P.2d 708. The Supreme Court has stated this two-part test as follows:

First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, the waiver must have been
made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.

Id. (internal quotation marks and citation omitted). “The prosecution bears the burden of
showing by a preponderance of the evidence that a defendant’s waiver was knowing
and intelligent.” Id. ¶ 48.

{10} There is no question Ordonez was advised of his Miranda rights. Additionally,
the district court concluded that Ordonez did voluntarily waive his rights, and that
conclusion is not challenged. The district court was not convinced, however, that
Ordonez “knowingly and intelligently” waived his rights. As noted, the court was not
convinced that Ordonez understood that the statements he made to the officers could
be used as evidence against him in a court of law and suppressed the statements for
this reason. The State contends that this ruling was error.

{11} According to the State, there is ample evidence in the record that Ordonez did
understand that the statements he gave to the officers could be used against him. The
State also emphasizes that Ordonez expected to be charged by confessing and did so
for the express purpose of being incarcerated at a federal prison. According to the
State, this suggests that Ordonez must have known that his voluntarily-given
statements would be used against him in court.

{12} The standard of review we apply here is well settled. “A decision to suppress
evidence obtained from a warrantless search is reviewed as a mixed question of fact
and law. We review any factual questions under a substantial evidence standard and
we review the application of law to the facts de novo.” State v. Sewell, 2009-NMSC-
033, ¶ 12, 146 N.M. 428, 211 P.3d 885 (alteration, internal quotation marks, and
citations omitted). “[W]e accept the factual findings of the district court unless they are
clearly erroneous, and view the evidence in the light most favorable to the district court’s
ruling.” Martinez, 1999-NMSC-018, ¶ 15 (internal quotation marks and citation omitted).

{13} The legal standard the State must satisfy to demonstrate, as a matter of law, that
Ordonez’s waiver was knowing and intelligent is identified in our case law. We
“evaluate the totality of the circumstances and the particular facts, including
consideration of the mental and physical condition, background, experience, and
conduct of the accused, as well as the conduct of the police, in determining whether the
State has successfully carried its burden in demonstrating a knowing and voluntary
waiver.” Id. ¶ 14 (internal quotation marks and citation omitted). “Every reasonable
presumption against waiver is indulged.” Id. (alteration, internal quotation marks, and
citation omitted). Considered collectively, our standard of review and the governing
legal standard require the State to demonstrate that, given the totality of the
circumstances presented to the district court, it made a clear error when it determined
that the State failed to prove by a preponderance of the evidence that Ordonez
understood that the statements he made to the officers could be used against him in
court. For the reasons set out below, the State cannot make this showing.

{14} Deputy Chavez initially testified—when questioned by the State on direct
examination—that he believed Ordonez did understand the Miranda warnings when
Detective Nevarez read them to him at the beginning of the interrogation. Deputy
Chavez nevertheless freely and openly acknowledged that Ordonez demonstrated
confusion from the very beginning of the interrogation.

Prosecutor: [W]as there time that was taken to explain the Miranda
warnings in detail to the defendant?
Deputy Yes.
Chavez:
Prosecutor: Did he have certain questions about them or need some
clarification with respect to the Miranda warnings?
Deputy He did.
Chavez:
Prosecutor: Will you please describe that to Judge Driggers.
Deputy I believe there was—there seemed to be a little bit of
Chavez: confusion as far as—I believe the word he used was
“waivering.” However, that was clarified by myself and
Investigator Nevarez so that he understood what it meant for
him to waive his right to an attorney and agree to speak to us
in reference to the case.

The confusion surrounding the word “waiver” that Deputy Chavez identifies is significant
and requires explanation. As will become clear, that confusion was not remedied
(despite Deputy Chavez’s claim to the contrary) and contributes meaningfully to our
conclusion that the Miranda warning given here was ineffective.

{15} At the beginning of the interrogation, Ordonez was read his Miranda rights and
was then provided a card he was asked to read aloud. The words on the card indicated
that Ordonez understood his rights, wished to waive them and speak with the officers,
knew what he was doing in electing to speak, and had not been induced to speak by
threats or promises. After Ordonez finished reading the card, Detective Nevarez asked
him “Do you understand that waiver?” Ordonez responded “Uh, kinda sort of yeah.”
Given this uncertain response, Detective Nevarez sought clarification. He explained to
Ordonez that the words on the card meant that Ordonez understood his rights and
understood that he could speak to an attorney before he spoke with them. After offering
this incomplete point of clarification, Detective Nevarez again asked Ordonez “Do you
understand?” Ordonez responded “Yeah.” Detective Nevarez then asked “Do you wish
to talk to us at this time?” Ordonez answered “Yeah, I don’t want to waiver.” For
reasons discussed immediately below, this response is plainly equivocal.

{16} The words “waiver” and “waver” are nearly identically spelled, have identical
pronunciations, yet have distinct meanings. The only reason Ordonez is quoted as
having used the word “waiver” with an “i” in the crucial quote “Yeah, I don’t want to
waiver” is because the individual who transcribed the interrogation assumed Ordonez
used the word “waiver” and, therefore, elected to spell the word Ordonez used this way.
This is not to say that the transcriber erred; Ordonez’s response could be construed as
a statement that he did not want to “waive” his rights. Alternatively, the statement could
be construed to mean that Ordonez was not “wavering” from his decision to waive his
rights and speak with and confess to the officers. In the exchanges immediately
following Ordonez’s equivocal use of the word “wa(i)ver,” he informed the officers that “I
want to exercise my rights” and “at this time would like to talk”; that he would like
“access to a legal library” during his “charges” and “trial,” but would like to “self
represent myself” later on; and he declined to sign the waiver-of-rights form the officers
presented to him because he was not “wa(i)vering.” Thus, while Officer Chavez
expressed confidence that any confusion that stemmed from Ordonez’s puzzling use of
the word “wa(i)ver” was rectified, this statement is not to be credited as we must view
the evidence in the light most favorable to the district court’s decision. Martinez, 1999-
NMSC-018, ¶ 15.

{17} Viewing the record in that light, it is clear that the officers did not adequately
rectify the confusion that took hold early in the interrogation. In fact, defense counsel’s
cross-examination of Deputy Chavez revealed that Deputy Chavez himself doubted that
Ordonez understood his rights and specifically doubted that Ordonez understood that
any statements he made could be used against him in court.

{18} Defense counsel asked Deputy Chavez whether it was fair to infer that Ordonez
understood his rights given his response “Uh, kinda sort of yeah” when asked if he
understood the Miranda warning and given his response “I don’t want to waiver” when
asked whether he wished to speak to the officers at that time. Deputy Chavez
responded “No, sir.” Deputy Chavez went on to acknowledge, at other points during
cross-examination, that there were other reasons to suspect Ordonez was not
adequately informed that his statements (to the extent he wished to make any) could be
used against him in court, and that it would have been preferable to obtain clarification
from Ordonez that he did in fact understand this aspect of the Miranda rights. One such
instance occurred during the following exchange:

Deputy Investigator Nevarez asked, “But at this time, do you wish to
Chavez: talk to us?” Mr. Ordonez says, “Sure, why not?” Investigator
Nevarez said, “Without an attorney present?” Mr. Ordonez
said, “Sure, why not?”
Defense At this point, okay, he’s saying, “Sure, why not?” Okay. Is he
Counsel: ever reminded of the implications of talking to you guys when
he says, “Sure, why not?” Is he reminded?
Deputy No, he’s not reminded after the initial on page one. No, sir.
Chavez:
Defense A response to that question, “Sure, why not?” should have
Counsel: been . . . “Well, because what you say could be used against
you in a court of law.” . . . That should have been the
response.
Deputy I can’t tell you what Investigator Nevarez should have said at
Chavez: that point. I’m not Investigator Nevarez.
Defense What would you have said at that point? You were there.
Counsel:
Deputy Again, I would have wanted explicit clarification as to whether
Chavez: or not Mr. Ordonez wanted to waive his rights and agree to
speak to me, or whether or not he was exercising his rights.
That’s just—again, that’s my personal preference.

In another exchange, Deputy Chavez conceded that, after Ordonez exhibited confusion
about his rights, the officers failed to clarify whether Ordonez actually understood that
any statements he made could be used against him in court.

Deputy Chavez: I say, “You’re saying you want to talk to us about this letter, and you
don’t want an attorney with you right now. That’s what you’re saying.” Mr. Ordonez
says, “That’s what I’m saying that I want?” I say, “Yes.” Investigator Nevarez said,
“That’s what the signing represents.”

Defense Let me stop you there. Is that all that signing represents, that
Counsel: he can have an attorney?
Deputy No.
Chavez:
Defense What else does it represent?
Counsel:
Deputy Well, that encompasses that he understands in its entirety the
Chavez: Miranda warning. And it’s not a card; it’s actually a full piece
of—it should be a full piece of paper that he read and that
Investigator Nevarez reads to him.
Defense But in any event, it doesn’t just mean that he can have an
Counsel: attorney with him right now?
Deputy That’s correct.
Chavez:
Defense It doesn’t just mean that he can stop questioning at any point
Counsel: right now?
Deputy That’s correct.
Chavez:
Defense It includes the right to understand that what he says can be
Counsel: used against him in court?
Deputy Yes, sir.
Chavez:
Defense But that’s not gone over with him, is it?
Counsel:
Deputy It was gone over initially.
Chavez:
Defense Initially?
Counsel:
Deputy On page one, yes.
Chavez:
Defense But after he shows signs of confusion, you don’t revisit it with
Counsel: him, do you?
Deputy No, sir.
Chavez:

After eliciting this response, defense counsel further questioned Deputy Chavez about
whether he and Detective Nevarez had really done enough to ensure that Ordonez
understood all of the Miranda rights. As the following exchange makes clear, Deputy
Chavez conceded that they had not.

Defense I’d like you to read line one through line nine, please.
Counsel:
Deputy Line number one. Investigator Nevarez asked, “That’s what
Chavez: the signing represents.” I asked—oh, excuse me, I say, “Yes,
it’s a signature that covers your statement on the tape right
here, bro. That’s all it is.”
Defense Let me stop you there. That isn’t technically all it is, is it?
Counsel: You’re in the moment, you’re talking to Mr. Ordonez in an
interrogation room, but you say that’s all it is. The signing
doesn’t just represent the stuff we’ve talked about, that he can
have a lawyer and that he can stop the questioning at any
point; is that correct?
Deputy Yes, that’s correct.
Chavez:
Defense Okay. So keep reading, please.
Counsel:
Deputy Mr. Ordonez says, “Okay, so will write, will sign the right to an
Chavez: attorney, but I get the right to—are these all my rights?”
Defense I’ll stop you there. So, again, another question that shows that
Counsel: he’s seeking information from the two of you about a better
understanding of his rights—
Deputy Yes.
Chavez:
Defense —is that correct? Okay. And what is Detective Nevarez’s
Counsel: response?
Deputy Investigator Nevarez says, “The rights that I’ve read to you on
Chavez: the other side are, you have a right to have an attorney
present with you during questioning, and you just told us that
you want to speak with us now without an attorney present.
And later on, should you decide you want an attorney, you
have a right—or excuse me, you have that right as well.”
Defense Okay. The rights on the other side, does it encompass just the
Counsel: right to have an attorney?
Deputy No, sir.
Chavez:
Defense What other rights does it encompass?
Counsel:
Deputy All of the rights that were explained to him at the beginning, at
Chavez: the initial—the actual Miranda sheet.
Defense So, again, Detective Nevarez does not get into these further
Counsel: rights with Mr. Ordonez?
Deputy He does not.
Chavez:
Defense He stops with the right to counsel?
Counsel:
Deputy Yes, sir.
Chavez:

Deputy Chavez also conceded that Ordonez’s apparent confusion and his unwillingness
to sign a waiver-of-rights form caused him concern regarding Ordonez’s understanding
of his rights.

Defense Please keep reading at 10.
Counsel:
Deputy Mr. Ordonez says, “Well, I want to—I want to represent”—or
Chavez: excuse me—“I want to self-represent myself.” Investigator
Nevarez says, “Okay. And that’s what you’re doing right now,
then.” Mr. Ordonez says, “Okay. Well, I—we could just skip
all of this waiver stuff, and I’ll go ahead and talk.”
Defense Let me stop you right there. I think you’ve said earlier that you
Counsel: would rather be more explicit than just this?
Deputy Yes, sir.
Chavez:
Defense Is this another example, Deputy, where you would want to be
Counsel: more explicit with a subject that you were interrogating in
advising the subject of his rights?
Deputy Personally, yes.
Chavez:
Defense But that doesn’t happen, does it?
Counsel:
Deputy No, sir.
Chavez:
Defense What’s the next thing that Detective Nevarez says?
Counsel:
Deputy Investigator Nevarez asked, “Go right into it, okay.”
Chavez:
Defense Okay. So he doesn’t get into it. He doesn’t give a further
Counsel: explanation to ascertain if Mr. Ordonez understands, does he?
Deputy No.
Chavez:
Defense He stops right there, and that’s where you get right into it. And
Counsel: then what does Mr. Ordonez say?
Deputy Mr. Ordonez says, “Yeah, cause I don’t feel comfortable
Chavez: signing this right now.”
Defense Okay. He didn’t feel comfortable signing it?
Counsel:
Deputy No, he didn’t.
Chavez:
Defense And yet Detective Nevarez moves on, doesn’t he? He goes
Counsel: into the questioning?
Deputy Yes.
Chavez:
Defense And is this another example where if you were the lead on this,
Counsel: where you would want to get into it a little more with the
subject if you heard the subject say, [“]Yeah, ’cause I don’t feel
comfortable signing this right now”?
Deputy Yes. Personally, I would have addressed that a little bit
Chavez: further, although, I mean, it’s not necessary.

{19} These concessions and acknowledgments more than adequately support the
district court’s finding that Ordonez did not understand that his statements could be
used against him when he purportedly waived his rights and spoke to the officers.
Deputy Chavez expressed doubt about whether Ordonez understood that his
statements could be used against him in court and questioned (more generally) whether
Ordonez understood his rights. While it is true that Ordonez was initially informed that
his statements could be used against him, Deputy Chavez acknowledged that he and
Detective Nevarez never revisited this particular aspect of Miranda after Ordonez
expressed general confusion about his rights. Our review of the transcript of the
interrogation confirms that Deputy Chavez is correct. After Ordonez confessed and the
officers once more addressed the Miranda rights with him, they did not revisit the fact
that Ordonez’s statements could be used against him in court.

{20} Throughout its brief in chief, the State emphasizes other evidence that suggests
that Ordonez did understand that any statements he elected to make could be used
against him. We acknowledge that there is competing evidence in this case and that,
had the district court ruled in the State’s favor below, the result of this appeal could
possibly be different. But the State did not prevail below, and because there is
substantial evidence to support the district court’s findings and because its findings are
not clearly erroneous, the State’s fact-based arguments gain no traction. See State v.
Ortiz, 2017-NMCA-006, ¶ 24, 387 P.3d 323 (“We will not second guess the fact-finder’s
decision concerning the credibility of witnesses or substitute our judgment for that of the
fact-finder.”).

{21} The State contends that the district court’s findings are clearly erroneous
because logic dictates that Ordonez must have understood that any statements he
made to the officers would be used against him in court because Ordonez knew that he
would be charged as a consequence of his confession and confessed in order to ensure
that he would be incarcerated at a federal prison. This argument has intuitive appeal—if
Ordonez knew speaking to the officers would secure his imprisonment, he must have
known that his statements would be used against him in court. But this argument fails
upon closer scrutiny.

{22} It is, of course, untrue that Ordonez’s decision to speak with the officers assured
him a place in federal prison. In fact, it is entirely unclear how Ordonez’s decision to
confess to a violation of New Mexico law to state law enforcement officers could
possibly ensure Ordonez’s transfer to or incarceration within a federal prison. In fact,
Ordonez’s decision to speak to the officers exposed him to a host of consequences
(that cannot be fully predicted) including the possibility that Ordonez might face
additional incarceration at the MDC to await trial for the shooting murder to which he
confessed to Detective Nevarez and Deputy Chavez. This possibility is laced with irony
as Ordonez wrongly assumed that confessing would somehow expedite his departure
from the MDC.

{23} For these reasons, it is not true that Ordonez must have understood that his
statements could be used against him in court because he believed that his statements
would ensure his federal imprisonment. In fact, Ordonez’s belief that speaking to the
officers would assure him this outcome suggests, if it suggests anything, that Ordonez
did not understand what was meant by the warning that any statements Ordonez
elected to make could be used against him.

{24} This is not to say that the officers were required to advise Ordonez of all the
possible consequences that might flow from the decision to waive his rights and speak
to them. Miranda imposes no such requirement. Gutierrez, 2011-NMSC-024, ¶ 20.
The officers were only required to inform Ordonez with sufficient clarity that his
statements could be used against him in court. The district court found that this did not
occur and that determination is supported by substantial evidence and is not clearly
erroneous.

III. CONCLUSION
{25} The district court’s findings were supported by substantial evidence and were not
clearly erroneous. Likewise, the court’s understanding of the law and its application to
the facts presented in this case was not erroneous. The district court’s ruling is
affirmed.

{26} IT IS SO ORDERED.

JUDITH K. NAKAMURA, Chief Justice

WE CONCUR:

BARBARA J. VIGIL, Justice

MICHAEL E. VIGIL, Justice

PETRA JIMENEZ MAES, Justice, Retired, Sitting by designation

CHARLES W. DANIELS, Justice, Retired Sitting by designation