June 24, 2019- State of New Mexico v. Gabriel Alvarado, No. A-1-CA-36098

OCR transcription for search; preserved printed pages are authoritative

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4) Santa Fe, NM

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO |

Opinion Number: Court of Appeals of New Mexico

Filed 6/24/2019 10:24 AM

Filing Date: June 24, 2019 ff 4
, Mark Reynolds .

NO. A-1-CA-36098

STATE OF NEW MEXICO,

Plaintiff-Appellant,

GABRIEL ALVARADO,
Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, Assistant Attorney General
for Appellant

L. Helen Bennett, P.C.

L. Helen Bennett

Albuquerque, NM

for Appellee

OPINION

DUFFY, Judge.

ui The State appeals, pursuant to NMSA 1978, Section 39-3-3(B\(2) (1972), the

district court’s order suppressing Defendant’ s written statements, made while he was

alone in a room at the police station after he had invoked his right to counsel. We

reverse and remand.

BACKGROUND

@; Defendant, a certified massage therapist, allegedly penetrated Victim’s vagina

with his finger during a session. Victim reported the incident to the police later that

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day. After Victim underwent a sexual assault nurse examiner (SANE) exam the

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following afternoon that confirmed injury to her vaginal walls and a tear to her labia,

the police went to Defendant’s home and asked him to come to the station to give a

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statement. Defendant agreed and drove himself to the station that afternoon. An

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officer interviewed Defendant in an audio and video-recorded interview room.

{3} After some introductory conversation, Defendant made several potentially

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incriminating statements. The officer advised Defendant of his rights pursuant to

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Miranda v. Arizona, 384 U.S. 436 (1966), after which the following exchange took

place:

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Defendant: I would rather speak first with an attorney. Can I do that?

Officer: That’s your-—That’s your right.

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Defendant: Can I do that right now without going te jail? Can T get an
attorney first, get together with you in this same room if

we have to, and talk to you?

Officer: i'm gonna make a phone call... and we're going to make
g Aue er

a decision on that.

The district court found that that this was an invocation of Defendant's right to an

attorney. Defendant and the officer continued talking for about ten more minutes

before the officer ended the interview.

4 ~—sdIn that period, Defendant continued to talk with the officer, discussing his

religion, family, and a prior conviction. Defendant did not specifically discuss the

incident with Victim, ard the officer did not ask Defendant questions about the

incident. The officer finally ended the interview, saying, “You know what, take a

second. Let me take a break. You know, we'll take a break from each other. Give-—

give me a minute; ] gotta run and get something anyway.”

3 Defendant asked ifhe could call his mother with his phone since she might be

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worrying about him. The officer said, “PI tell you what,... let me run and get

erent
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something and Pil come—T’ll come right back.” Defendant asked if he could have a

piece of paper and a pen, and the officer said yes and provided them to Defendant.

The officer asked Defendant if he had any weapons, briefly searched him, and took

mother. Defendant began to respond, saying, “That’s fine, ll decide that here in a

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second, just let me just write down my---” when the officer interrupted, “Take a

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minute. Think about it. Okay?” as he left the room.

{6} Immediately after the officer left the room, it is unclear whether Defendant

started writing or whether he only held the pen above the paper. The officer returned

briefly to give Defendant his phone and left again. Defendant called his sister, asking

her to tell his mother he was okay. About eight minutes after the officer left,

Defendant clearly started writing. He stopped for a while, waved at both of the

cameras in the room, then started writing again.

(7; About twenty minutes after initially leaving Defendant alone, the officer came

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back and asked, “So what'd you do with the paper here, just drawing?” Defendant

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said, “I just Kind of needed to bounce ideas off of myself,” and “I started writing

stuff down and I just started processing mentally.” Another officer placed Defendant

under arrest, at which time a third individual asked Defendant, “Do you want your

notes with you?” Defendant said, “No, sir” as he walked out.

‘8; Defendant’s notes included a page stating, “I tell them everything” connected

with a line to “I go to Jail.” Another page says, “I have to self destruct[] and that

1 Tp 4 4h 43 ££ te ro? 4 a * vo a * rel r hR nl
SUCKS. GUT Una S MY OWT) Taunt. Gm PSiey a DYOCUCT OF MY GCCISiONs. OO F UGH Pale

the results. | must find my way [b]ack to God.” Defendant signed this page and drew

a picture of a bomb.

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{8}

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9} The State charged Defendant with two counts of second-degree criminal
sexual penetration, contrary to NMSA 1978, Section 30-9-11(E)(3) (2009).
Defendant moved to suppress all written and oral statements made after he invoked
his right to counsel. The district court found that Defendant had invoked his right to
counsel when he said, “Can I get an attorney first, then get with you, in this same
room if we have to, and talk to you?” and suppressed all statements and written
evidence occurring after that point, including the written statements at issue here.
The State filed a pretrial appeal challenging the district court’s suppression of the
written statements. See § 39-3-3(B)(2) (permitting the state to appeal “within ten
days from a decision or order of a district court suppressing or excluding
evidence .. . if the district attorney certifies to the district court that the appeal is not
taken for purpose of delay and that the evidence is a substantial proof of a fact
material in the proceeding”).

DISCUSSION

{10} The State argues that the district court erred in suppressing Defendant’s
written statements because they were volunteered. “Appellate review of a motion to
suppress presents a mixed question of law and fact. We review factual
determinations for substantial evidence and lezal determinations de novo.” State v.
Paananen, 2015-NMSC-031, 9 10, 357 P.3d 958 (internal quotation marks and

citations omitted); see State v. Pisio, 1994-NMCA-152, 4 17, 119 N.M. 252, 889

P.2d 860 (reviewing de novo the question of whether a statement was

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“volunteered’”’).

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(in “Miranda safeguards come into play whenever a person in custody is

subjected to either express questioning or its functional equivalent.” Rhode Island v.

Innis, 446 U.S. 291, 300-01 (1980); State v. Edwards, 1981-NMCA-119, $9 12-14,

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Fda i a a Wt yr. tet
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RIRA 144 £99 A a i : 4h ¢ pet
INVER. LE, ODF Pd VET OHGG TOQUITCS Ullal ii at dily pPOnie

a defendant invokes the right to counsel by indicating that he wishes to consult with

an attorney before speaking or invokes the right to remain silent by indicating that

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RA rhawnerd,

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wy tart TE cane $a ae i aa? Riggs > A
PURATCU, ait RETO OR AUPE ERSt VOdst. Gieaie Y. IMIGGUNa,

2016-NMSC-622, € 17, 375 P.3d 424 (internal quotation marks and citation

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omitted). However, “[t]he federal constitution does not preclude the use of

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as volunteered.” Pisio, 1994-NMCA-152, 4 15. “Volunteered statements of any kind

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are not barred by the Fifth Amendment[,]” and we have said that “[a] question may

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counsel.” /d. (internal quotation marks and citation omitted); see id. (“Any statement

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given freely and voluntarily without any compelling influences is, of course,

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admissible ir Miranda, 384 U.S. at 478.) “Most volunteered

SORE.

statements fall into one of two categories: statements which the police have made no

attempt to elicit, and statements which respond to a police question or which occur

during the course of interrogation, but which are totally unresponsive to the question

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asked.” fd. € 16 (quoting 3 William E. Ringel, Searches and Seizures, Arrests and

Confessions § 27.4(a), at 27-26.6 (2d ed. 1994)).

412; Our initial inquiry in this case is whether Defendant’s written staternents were

the product of an interrogation or its functional equivalent. See Edwards, 1981-

NMCA-119, 4 12 (stating that the threshold inquiry when a defendant alleges a

violation of Miranda rights is whether there was an interrogation). “Whether a

person is interrogated depends on the facts and circumstances of each case.” State v.

Juarez, 1995-NMCA-085, 8, 120 N.M. 499, 903 P.2d 241. “Interrogation occurs

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when an officer subjects an individual to questioning or circumstances which the

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officer knows or should know are reasonably likely to elicit incriminating

responses.” State v. Fekete, 1995-NMSC-049, 9 41, 120 N.M. 290, 901 P.2d 708

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(quoting State v. Cavanaugh, 1993-NMCA-152, 7 5, 116 N.M. 826, 867 P.2d 1208).

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“The concern of the Court in Miranda was that the interrogation environment created

by the interplay of interrogation and custody would subjugate the individual to the

will of his examiner and thereby undermine the privilege against compulsory self-

incrimination.” /nnis, 446 U.S. at 299 Gnternal quotation marks and citation

omitted); see id. (discussing police practices that do not involve direct questioning

but are nevertheless reasonably likely to lead to incriminating statements, such as

“the use of line-ups in which a coached witness would pick the de

perpetrator” and other psychological ploys). We too have said that “[ijnterrogation

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is not limited to express questioning. It can include other, less-assertive police

methods that are reasonably likely to lead to incriminating information, but which

are beyond those normally attendant to arrest and custody.” Juarez, 1995-NMCA-

085, 8. “This includes repeated efforts to wear down a suspect’s resistance and

make the suspect change his mind about invoking the rights described in the

Miranda warnings.’ Madonda, 2016-NMSC-022, § 19 (alterations, internal

quotation marks, and citation omitted).

a3} Defendant contends that the police maintained an interrogation environment

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even after the officer left the room, and that his written statements must be

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suppressed because the officer’s continued questioning violated the “bright-line

rule” that all interrogation must cease after a defendant invokes his right to an

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attorney. See id. € 18 ({A]ll questioning must cease after an accused requests

Pye AO

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counsel.” (emphasis omitted) (quoting Smith v. Illinois, 469 US. 91, 98 (1984)). To

the extent that the officer continued questioning Defendant after he had invoked his

right to counsel, the “bright-line rule” implicates Defendant’s responses to that

questioning, which are not at issue in this appeal. See id. The interview, however,

had ended before Defendant made his written statements, and we find no basis to

determine that those staternents were made in response to interrogation. State v.

defendant’s incriminating statements regarding the identification of a body in a

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newspaper article, afler he had been advised of his Afiranda rights, were volunteered

because they were not made in response to police questioning and were the product

of choice, rather than compulsion).

4; The circumstances in this case are substantially similar to Pisia, where, after

the defendant had invoked his right to counsel, the police ceased questioning the

defendant and he sat in silence in the detective’s office while the detective completed

paperwork. 1994-NMCA-152, 7 12. While the officer was “silently completing

paperwork{,]" the defendant asked the officer if he would “take the rap” if his alleged

rape victim had sex with someone else. Jd. €] 12, 18. We rejected the defendant's

argument that “even silence on the part of a police officer can be the fimetional

equivalent of direct questioning” and found “no basis for determining that the police

should have anticipated [the defendant’s] response or that [the defendant] framed

the question in response to anything specific the detective had said or done.” Ja.

“4 14, 17. The same conclusion is required here.

415} In this case, the officer ceased interviewing Defendant and left Defendant

alone in the room for approximately twenty minutes, during which time Defendant

created his written statements. Like the defendant in Pisio, Defendant apparently

knew that he was being recorded or observed while alone in the room when he

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; ot ty, 4h wt 3d % 4. ours
walved to the camera, ar ne did not make the writte

questioning or prompting. See id. {4 14, 17 (declining to hold that the defendant was

subject to an interrogation when the detective was silent, but “was ready to turn the

tape back on if Defendant made a statement with ‘evidentiary value’ "); see also

Arizona v. Mauro, 481 U.S. 520, $23-25 (1987) (holding that an accused, who had

asserted right to counsel, was not subjected to interrogation or its functional

equivalent when police allowed his wife to speak with him in the presence of an

officer, who tape-recorded their conversation}, There is no indicia of police efforts

designed to wear down Defendant’s resistance or mduce Defendant to make

incriminating statements. See Madonda, 2016-NMSC-022, ff] 21-24 (holding that

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the defendant's incriminating staterments must be suppressed where right after the

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defendant invoked his right to counsel, the police “proceeded with techniques they

had specifically planned to employ during the interrogation” and “undermined the

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very warnings which had prompted Defendant to invoke his rights in the first

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place”). Nor is there any indication that Defendant's time alone was merely a break

in a longer, continuing interrogation, as Defendant suggests. Consequently, we fmd

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no basis for determining that the officer should have anticipated Defendant's written

SLAUSITIOTIS.. 3

were volunteered statements and hold that the district court erred in suppressing

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them.

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CONCLUSION

21 {16 We reverse the portion of the district court’s November 10, 2016 order

3} suppressing the written evidence obtained during Defendant’s interview on June 18,

4) 2015, and remand for further proceedings consistent with this opinion.

Stan ITS SO ORDERED.

Mogan POLL,

oS

7 MEGAN P. DUFFY, Judge

8| WE CONCUR:

KUyy eS

gh CD tema OR
10] M. MONICA ZAMORA, Chief Judge

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