October 16, 2014 – State of New Mexico v. Chris Talayumptewa, No. 32,460

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 16, 2014

NO. 32,460

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

CHRIS TALAYUMPTEWA,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
Louis E. DePauli Jr., District Judge

Gary K. King, Attomey General

Santa Fe, NM

M. Victoria Wilson, Assistant Attomey General
Albuquerque, NM

for Appellant

Law Offices of the Public Defender

Jorge A. Alvarado, Chief Public Defender
Will O’ Connell, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION
VIGIL, Judge.
{1} 	The State appeals from an order of the district court suppressing statements
made by Defendant during police questioning. 	The district court suppressed
Defendant’s statements on the basis that they were the product of coercive police
conduct in the form of promises of leniency and were involuntary under the totality
of the circumstances. We affirm the district court.
BACKGROUND
{2} 	The alleged victim gave a SAFE house interview in which she accused
Defendant of sexual assault. Officers from the McKinley County Sheriff’s Office left
messages at Defendant’s home that they wanted to speak with him, and Defendant
came to the Sheriff’s Office voluntarily, and agreed to speak with police. Defendant
was questioned there by two police officers, Anthony Ashley and Owen Pena, for
around ninety minutes. During the course of the interview, Defendant made a written
statement, in the form of an apology letter, and oral statements. Defendant moved to
suppress the statements arguing that they were involuntary because police did not give
him Miranda warnings prior to questioning him and because they were induced by
promises of leniency by the police.

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{3} 	After an evidentiary hearing, at which both officers testified, and review of the
transcript of the interview, the district court ordered Defendant’s statements
suppressed. In its written order, the district court first rejected Defendant’s Miranda
argument, finding that he was not in custody during the interview, and Miranda
therefore did not apply. The district court specifically found that Defendant was not
in custody because he was informed at the outset of the interview that he was free to
leave, the officers told him that he would not be arrested that day, and the officers did
not threaten him. 	However, the court found that his statements were nonetheless
involuntary because of police overreaching in the form of implied promises of
leniency. 	The district court found that immediately at the start of questioning, the
officers began making implied promises of leniency, which continued throughout the
interview. 	The district court found that the multitude of the implied promises of
leniency outweighed other factors that might indicate the statements were voluntary.
The State appeals. Additional facts are included in the discussion below.
ANALYSIS
{4} 	The State challenges both the district court’s determination that officers made
implied promises of leniency and its ruling that the implied promises of leniency
outweighed other factors that might indicate that the statements were voluntary. “We
review de novo the voluntariness of confessions.” State v. Evans, 2009-NMSC-027,

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¶ 32, 146 N.M. 319, 210 P.3d 216; see also State v. Leeson, 2011-NMCA-068, ¶ 21,
149 N.M. 823, 255 P.3d 401 (same). “Voluntariness means freedom from official
coercion.” 	State v. Sanders, 2000-NMSC-032, ¶ 6, 129 N.M. 728, 13 P.3d 460
(internal quotation marks and citations omitted). Promises of leniency on the part of
police can be coercive and may render a subsequent statement involuntary. 	See
Evans, 2009-NMSC-027, ¶ 42 (noting that threats and promises may rise to the level
of coercive behavior by the police); see also State v. Tindle, 1986-NMCA-035, ¶ 25,
104 N.M. 195, 718 P.2d 705 (stating that an express promise of leniency “renders a
confession involuntary as a matter of law”); State v. Gutierrez, 2011-NMSC-024, ¶
25, 150 N.M. 232, 258 P.3d 1024 (stating that “unlike an express promise of leniency,
which can render a confession inadmissible as a matter of law, evidence of an implied
promise is only a factor in the totality of the circumstances that courts consider in
determining whether a confession is voluntary”).
Implied Promises of Leniency
{5} 	We first address the State’s argument that the district court erred in determining
that police made implied promises of leniency during the interview. “The test in such
a case is ‘whether the accused could reasonably have inferred a promise going to the
punishment for the crime to be confessed.’” State v. Munoz, 1998-NMSC-048, ¶ 34,
126 N.M. 535, 972 P.2d 847 (quoting State v. Wickman, 1935-NMSC-035, ¶ 36, 39

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N.M. 198, 43 P.2d 933). 	Our review of the transcript supports the district court’s
determination that the officers made numerous implied promises of leniency to
Defendant throughout the interview in exchange for statements that accorded with the
alleged victim’s version of events.
{6} 	Defendant responded to the officers’ questions by saying that he could not
remember what happened because he was intoxicated when the alleged incidents
occurred. In response, the officers repeatedly told Defendant they would be meeting
with the district attorney, that his claims not to remember were legally invalid, and
that they had the ability to influence the district attorney with respect to the level of
charges Defendant faced. 	Among other similar statements, Officer Pena told
Defendant:
You’re giving us nothing and that’s what we’re gonna [sic] go to the
D.A.s with . . . is that he gave us nothing . . . he tried to use the old . . .
I don’t remember because I was intoxicated defense . . . . 	And that’s
what we’re gonna tell the D.A. . . . . 	He came in and he gave us a
convenient excuse . . . . Oh I was drunk . . . . Oh I don’t remember . . . .
It coulda [sic] happened, but I don’t know if it did . . . or anything like
that. . . . So if you do remember what happened, just come clean with us
. . . . We’re trying to help you here . . . . Okay, but we can only help you
so much. . . . Okay, I can’t go to the D.A.s and be like hey let’s . . . you
know let’s cut this guy a break or . . . or let’s . . . you know let’s do this
or . . . let’s uh . . . you know let’s think about it second [sic] if you won’t
tell us what happened cuz [sic] I can’t go to the D.A. with that . . . .
Okay, I can’t . . . . 	The D.A. ain’t gonna [sic] buy that either.

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{7} 	The officers also began to inform Defendant that he was facing multiple felony
charges and that they could help him, but only if he remembered. Officer Pena told
Defendant:
Okay . . . . I tried to help you here, I tried to give you a life line, I tried
to help, I tried to give you that life preserver for you to help yourself,
you don’t wanna [sic] take it that’s fine. . . . I’ll . . .we . . . Investigator
Ashley will go forward to the . . . to the D.A.s with what we have based
off what her . . . what she’s saying ‘cuz [sic] you don’t want to recant
anything she’s saying by just saying I was intoxicated, I don’t remember.
. . that’s fine, if that’s . . . that’s the road you wanna [sic] go down . . .
that’s fine, okay. . . when the warrant comes and when we’re putting you
in jail . . . for multiple felonies okay . . . don’t say oh wait a minute, I
wanna [sic] talk now, because that’s gonna [sic] be gone, once you get
cuffed and put in jail.
In the specific exchange cited by the district court, the officers also discussed the
range of prison terms for different degrees of felonies in response to Defendant’s
question about how much jail time he was facing. The following discussion then
occurred:
Defendant: 	Is there a way I can like . . . . 	The only way I can
help myself is to remember, right?
Officer Pena: 	That would be a big help.
Defendant: 	And then if I remember and that is what happened
I’m still looking at those right?
Officer Pena: 	No[t] necessarily, uh . . . it’s still . . . we still have to
. . . it’s not like we sit here and we’re like okay,
we’re gonna [sic] charge him for this okay . . . we
need to get everything done . . . we still got some

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interviews to do and stuff like that, we’re gonna [sic]
do . . . we’re gonna [sic] interview everybody then
we take our whole case and we give it to the D.A.s
and the D.A.s is the one who say . . . this and that . . .
okay?
Officer Ashley: 	[S]eriousness of the crime is way up here, we can
help eventually bring it back down to maybe almost
down to nothing. . .
Officer Pena: 	That also depends on . . . us being able to go to the
D.A.s . . . being able to say to the judge you know,
he was very . . . sorry it was an accident, it was [a]
stupid mistake that he did while he was intoxicated
. . . he came in he was honest about it, he was up
front about it . . . he did remember finally, he came
back in and said hey this is what I remembered.
{8} 	These statements and the others like them constitute implied promises of
leniency because their import was that Defendant would be arrested on serious felony
charges if he continued to claim a lack of memory, but that if he made certain
admissions, officers would intercede with the district attorney on his behalf, and that
they had the ability to have charges reduced or not brought at all. See Munoz,
1998-NMSC-048, ¶ 34 (stating that an implied promise of leniency occurs when the
accused could reasonably have inferred a promise going to the punishment for the
crime to be confessed); cf. State v. Lobato, 2006-NMCA-051, ¶ 18, 139 N.M. 431,
134 P.3d 122 (finding no implied promise of leniency where the officer told the

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defendant he would get treatment if he confessed, but did not tell the defendant he
would receive treatment instead of prison time).
{9} 	The State characterizes the officers as merely suggesting to Defendant that his
claims not to remember were not believable and that cooperation would be more
helpful to him than denial. See Evans, 2009-NMSC-027, ¶ 43 (“[T]hreats that merely
highlight potential real consequences, or are ‘adjurations to tell the truth,’ are not
characterized as impermissibly coercive.”). 	The State also argues that Defendant
could not have inferred a promise of leniency because the officers told him that any
charging decision was ultimately up to the district attorney. Defendant counters that
Officer Ashley’s statement that the charges could be reduced “maybe down to almost
nothing” rose to the level of an express promise of leniency, and the statements are
therefore inadmissible as a matter of law. See Lobato, 2006-NMCA-051, ¶ 19 (stating
that an express promise of leniency will render a confession inadmissible as a matter
of law).
{10} 	We cannot agree with Defendant’s argument that Officer Ashley’s statement
rose to the level of an express promise because it was not an unequivocal guarantee
that Defendant would receive leniency if he gave a statement. 	See State v. Munoz,
1990-NMCA-109, ¶ 13, 111 N.M. 118, 802 P.2d 23 (stating that a promise of leniency
was implied where the officer merely speculated about what might happen if the

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defendant was cooperative). However, we also disagree with the State’s assertion that
the officers only suggested that Defendant could help himself by being cooperative.
The transcript contains numerous statements by the officers throughout the interview,
the effect of which was to say that if Defendant gave a statement they would act on
his behalf and had the ability to get the charges reduced. This was more than a mere
offer to bring Defendant’s cooperation to the attention of the district attorney, which
courts have found acceptable. See State v. Sanders, 2000-NMSC-032, ¶ 10 (stating
that “merely promising to bring a defendant’s cooperation to the attention of the
prosecutor is not objectionable”).
{11} 	Additionally, the fact that the officers told Defendant that the final decision on
charges was up to the district attorney does not mean that there was no official
promise of leniency. See State v. Benavidez, 1975-NMCA-013, ¶ 7, 87 N.M. 223, 531
P.2d 957 (stating that an unlawful inducement that renders a confession involuntary
need not be made by a person in an actual position of authority, but the situation must
be such that the person confessing might reasonably consider the promisor as a person
able to afford him aid). The officers’ other statements during the interview gave rise
to the understanding that, if Defendant made a statement, they had the ability to
influence the district attorney, and Defendant would face less time in prison, if any.
The reasonableness of this understanding was reinforced by Officer Pena talking

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about another suspect who “finally remembered” and confessed to burglary, who it
“still worked out for” because the confession gave Officer Pena the ability to argue
for leniency with the district attorney. Cf. State v. Barr, 2009-NMSC-024, ¶¶ 10, 27,
146 N.M. 301, 210 P.3d 198 (finding no implied promise of leniency where the officer
told the suspect that he could not offer him a deal but offered to speak to the district
attorney on his behalf if he made a statement), overruled on other grounds by State
v. Tollardo, 2012-NMSC-008, 275 P.3d 110; Munoz, 1990-NMCA-109, ¶ 16 (holding
the confession voluntary where the officer responded to the defendant’s question by
stating that “in his experience, first offenders who cooperated were less likely to go
to jail than other defendants”). Under these circumstances, we believe that Defendant
could reasonably infer a promise going to the crime confessed based on the officers’
statements during the interview. See Munoz, 1998-NMSC-048, ¶ 34 (stating that an
implied promise of leniency occurs when the accused could reasonably have inferred
a promise going to the punishment for the crime to be confessed).
Voluntariness
{12} 	We next turn to the overall question of voluntariness. 	See Gutierrez,
2011-NMSC-024, ¶ 25 (stating that “evidence of an implied promise is only a factor
in the totality of the circumstances that courts consider in determining whether a
confession is voluntary”). 	“On a claim that police coerced a statement, the

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prosecution bears the burden of proving by a preponderance of the evidence that a
defendant’s statement was voluntary.” Evans, 2009-NMSC-027, ¶ 34. “[W]e review
the entire record and the circumstances under which the statement or confession was
made in order to make an independent determination of whether a defendant’s
confession was voluntary.” State v. Fekete, 1995-NMSC-049, ¶ 34, 120 N.M. 290,
901 P.2d 708. 	“[T]he preponderance of the evidence must establish that the
confession was not ‘extracted from an accused through fear, coercion, hope of reward,
or other improper inducements.’” State v. Cooper, 1997-NMSC-058, ¶ 30, 124 N.M.
277, 949 P.2d 660 (quoting State v. Turnbow, 1960-NMSC-081, ¶ 41, 67 N.M. 241,
354 P.2d 533).
{13} 	Again, our review of the transcript of the interview supports the district court’s
ruling. As the district court found, there were a multitude of implied promises of
leniency that started at the outset of the interview and continued throughout,
constituting coercive police overreaching. 	We also find it significant that prior to
making both the oral and written statements at issue, Defendant indicated that he was
acting in an effort to avoid prison. See Munoz, 1998-NMSC-048, ¶ 21 (stating that
“[f]or the confession to be involuntary, there must be an ‘essential link between
coercive activity of the State . . . and a resulting confession by a defendant’” (omission
in original)). 	Before writing the apology letter at the request of the officers,

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Defendant said: “I’ll do anything to avoid jail cuz [sic] I don’t wanna [sic] to miss out
on my daughter[’]s life.” Also, while making statements purporting to remember the
events of the evening, Defendant repeatedly said that his motivation was to avoid jail:
“I’m trying to remember because I really don’t want to go to jail or anything else . .
. . I’m trying to remember because I wanna [sic] be able to just put this behind me and
just move on.” “I’m trying to remember but it’s . . . like I will do anything it takes to
avoid jail time.” “I’m just trying to remember so I don’t . . . I just . . . you know, I
don’t wanna [sic] to go to jail.” See State v. Watson, 1971-NMCA-104, ¶ 11, 82 N.M.
769, 487 P.2d 197 (stating that “[i]f the accused confesses because he was induced by
the promise that his punishment will not be so severe as it otherwise might be, the
confession 	is 	not 	admissible 	because 	it 	was 	not 	voluntary”); 	cf. 	Gutierrez,
2011-NMSC-024, ¶ 28 (rejecting the argument that a confession was obtained through
promises of leniency where the suspect indicated that he did not expect leniency upon
confession).
{14} 	The State points to the fact that Defendant came voluntarily to the police
station, was informed that he was free to leave, and did not appear sleepy, nervous,
or intoxicated to the officers. 	The State also notes that the officers reminded
Defendant that they personally would not be making the charging decision. However,
while these factors may weigh in favor of voluntariness to some extent, based on the

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totality of the circumstances, we agree with the district court that they are insufficient
to outweigh the coercive effect of the numerous implied promises of leniency made
to Defendant by the officers throughout the interview. See Barr, 2009-NMSC-024,
¶ 24 (stating that a confession is coerced when the defendant’s will is overborne and
his capacity for self-determination is critically impaired). We therefore agree with the
district court the State did not meet its burden to show that the statements were
voluntary by a preponderance of the evidence, and we affirm its order suppressing the
statements. See Evans, 2009-NMSC-027, ¶ 34 (stating that the State’s failure to make
such a showing requires a ruling that the confession was involuntary as a matter of
law).
CONCLUSION
{15} 	The order of the district court is affirmed.
{16} 	IT IS SO ORDERED.
______________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

MICHAEL D. BUSTAMANTE, Judge

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