STATE OF NEW MEXICO, Plaintiff-Petitioner, v. DeANGELO M., Child-Respondent.
NO. S-1-SC-34995
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
October 15, 2015
ORIGINAL PROCEEDING ON CERTIORARI, Drew D. Tatum, District Judge
Kenneth H. Stalter, Assistant Attorney General
Santa Fe, NM
for Petitioner
Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM
for Respondent
OPINION
CHÁVEZ, Justice.
{1} DeAngelo M. (Child) was thirteen years and eight days old when during a custodial interrogation by three law enforcement officers, he made inculpatory statements regarding a burglary, which connected
{2} How does the prosecution rebut this presumption? The Court of Appeals held that the prosecution must prove by clear and convincing evidence, through expert testimony, that “Child had the maturity and intelligence of an average fifteen-year-old child to understand his situation and the rights he possessed.” State v. DeAngelo M., 2015-NMCA-019, ¶¶ 21, 23-24, 344 P.3d 1019. The Court of Appeals reversed the district court‘s denial of the motion to suppress because the prosecution did not meet this burden and remanded for a new trial. See id. ¶¶ 23, 24. We granted the State‘s petition for certiorari, State v. DeAngelo M., 2015-NMCERT-002, to consider the following issues: (1) whether the Court of Appeals erred by holding that the State can only rebut the presumption of inadmissibility by showing that the thirteen- or fourteen-year-old child has the intellectual capacity of an average fifteen-year-old; (2) whether the Court of Appeals erred by holding that the State must rebut the presumption of inadmissibility by clear and convincing evidence rather than by a preponderance of the evidence; and (3) whether the Court of Appeals erred by holding that the State can only rebut the presumption of inadmissibility through expert testimony.
{3} We hold that
I. Section 32A-2-14(F) requires the State to rebut the presumption of inadmissibility by clear and convincing evidence
{4} The
Prior to any questioning, the person must be warned that he [or she] has a right to remain silent, that any statement he [or she] does make may be used as evidence against him [or her], and that he [or she] has a right to the presence of an attorney, either retained or appointed.
Id. at 444. “After such warnings have been given, and such opportunity
{5} “[W]hile the federal constitution provides a minimum level of protection below which the states may not descend, states remain free to provide greater protection.” State v. Javier M., 2001-NMSC-030, ¶ 24, 131 N.M. 1, 33 P.3d 1 (alteration in original) (internal quotation marks and citation omitted). “Hence, it is completely within the Legislature‘s authority to provide greater statutory protection than accorded under the federal Constitution.” Id. The New Mexico Legislature did just that by its enactment of the Delinquency Act,
{6} The Delinquency Act provides children with “greater protections than those constitutionally afforded [to] adults with regard to the admissibility of a child‘s statements or confessions.” State v. Adam J., 2003-NMCA-080, ¶ 3, 133 N.M. 815, 70 P.3d 805 (citing
Notwithstanding any other provision to the contrary, no confessions, statements or admissions may be introduced against a child under the age of thirteen years on the allegations of the petition. There is a rebuttable presumption that any confessions, statements or admissions made by a child thirteen or fourteen years old to a person in a position of authority are inadmissible.
{7} What is not clear from the text is how the prosecution is expected to rebut the presumption. What is the prosecution‘s burden of proof? What evidence will overcome the presumption? This case requires us to construe
{8} One of the express purposes of the Delinquency Act is “to remove from children committing delinquent acts the adult consequences of criminal behavior, but to still hold children committing delinquent acts accountable for their actions to the extent of the child‘s age, education, mental and physical condition, background and all other relevant factors.”
The Children‘s Code shall be interpreted and construed to effectuate the following legislative purposes:
A. first to provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the Children‘s Code . . . ; [and]
B. to provide judicial and other procedures through which the provisions of the Children‘s Code are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other
legal rights are recognized and enforced . . . .
{9} Prior to 1993 no confession, statements or admissions made by a child under the age of fifteen could be introduced against the child.
[c]hildren of tender years lack the maturity to understand constitutional rights and the force of will to assert those constitutional rights. Children are encouraged to respect and obey adults and should not be expected to assert their constitutional rights even under the most perfunctory questioning by any adult, particularly an adult of authority. By prohibiting the admission of statements made by children under age fifteen,
Section 32-1-27(F) encourages children to freely converse with adults without fear that their statements will be used against them at a later date. In contrast, an adult or a child over age fifteen is unlikely to make an involuntary statement in a noncustodial, noncoercive atmosphere or after receiving Miranda warnings. The additional protection thatSection 32-1-27(F) grants children under age fifteen helps to balance these differences in sophistication.
State v. Jonathan M., 1990-NMSC-046, ¶ 8, 109 N.M. 789, 791 P.2d 64.
{10} However, in 1993 the Legislature revised the Children‘s Code, and along with it replaced
{11} By categorizing children into different age groups, the Legislature distinguished between the different age groups’ intellectual and developmental capacities to knowingly, intelligently, and voluntarily waive their Miranda and statutory rights. See Adam J., 2003-NMCA-080, ¶ 20 (Alarid, J., specially concurring). For example, although
{12} On the opposite end of the age groups are children younger than thirteen. Unlike children fifteen and older, the Legislature precludes the introduction of confessions, statements, or admissions against a child under the age of thirteen on the allegations of a delinquency petition, regardless of the context in which or to whom the statements were made.
{13} By creating fundamentally distinct protections for children fifteen and older and for children younger than thirteen, the Legislature intended to “‘draw [a] line between children who are too young to waive their rights and those who are not.‘” Adam J., 2003-NMCA-080, ¶ 8 (citations omitted). The Legislature chose not to treat thirteen- and fourteen-year-old children categorically as belonging
{14} To address this uncertainty, under
II. To overcome the presumption, the State must prove by clear and convincing evidence that the thirteen- or fourteen-year-old child had the maturity to understand his or her constitutional and statutory rights and the force of will to invoke such rights
{15} We next address what clear and convincing evidence must be introduced by the State to rebut the presumption of inadmissibility under
In determining whether the child knowingly, intelligently and voluntarily waived the child‘s rights, the court shall consider the following factors:
(1) the age and education of the respondent;
(2) whether the respondent is in custody;
(3) the manner in which the respondent was advised of the respondent‘s rights;
(4) the length of questioning and circumstances under which the respondent was questioned;
(5) the condition of the quarters where the respondent was being kept at the time of being questioned;
(6) the time of day and the treatment of the respondent at the time of being questioned;
(7) the mental and physical condition of the respondent at the time of being questioned; and
(8) whether the respondent had the counsel of an attorney, friends or relatives at the time of being questioned.
{16} The Court of Appeals held generally that “the state must present evidence as to both the benchmark to be reached and the qualities of the child that meet it and that the thirteen-year-old child possessed personal faculties equivalent to what is required to find an ability to waive rights that would satisfy an adult standard for waiver.” DeAngelo M., 2015-NMCA-019, ¶ 13. The Court of Appeals determined that lay witnesses lack the expertise to determine
{17} Although we do not agree entirely with the Court of Appeals, we conclude that the Legislature intended a different analysis by drawing a distinction between fifteen-year-old children and thirteen- and fourteen-year-old children, although the Subsection E factors are also relevant. We hold that the State must first prove by clear and convincing evidence that at the time the thirteen- or fourteen-year-old child made his or her statement to a person in a position of authority, the child had the maturity to understand his or her constitutional and statutory rights and the force of will to assert those rights. It is not necessary to prove that the child had the maturity and intellectual capacity of an average fifteen-year-old child. How such a determination could be made is not evident from the Court of Appeals’ opinion.
{18} The Court of Appeals stated that expert testimony would be required. However, Child did not introduce evidence to the trial court to establish what kind of expert might be able to derive an opinion about children‘s capacity to waive their Miranda and statutory warnings. In his brief in chief Child cited Thomas Grisso, Adolescents’ Decision Making: A Developmental Perspective on Constitutional Provisions in Delinquency Cases, 32 New Eng. J. on Crim. & Civ. Confinement 3, 12 (2006) as an example of potentially useful expert testimony.1
However, without a record that establishes the validity and reliability of the expert‘s methodology, we are unable to make an informed decision about the utility of such expert testimony. The undeveloped record before this Court prevents us from categorically affirming the Court of Appeals’ broad holding, which would require expert testimony and evaluations of the child, most likely by mental health professionals, in all cases involving statements made by thirteen- or fourteen-year-old children to persons in a position of authority.
{19} Absent an evaluation by an expert, interrogators in a position of authority can preserve the evidence needed by the State to rebut the presumption of inadmissibility for thirteen- and fourteen-year-old children under
III. The agents failed to produce sufficient evidence to rebut the presumption
{20} Child was born on July 15, 1997. On July 26, 2010, the State charged Child with one count of residential burglary contrary to
{21} Agents Dan Aguilar and Daniel Blair, who are investigators with the District Attorney‘s office, and Detective John Mondragon, who is a detective with the Portales Police Department, interrogated Child. When Agent Blair began advising Child of his Miranda rights, Agent Blair appeared to agree with the Legislature‘s presumption that a thirteen-year-old child does not have the maturity to understand his or her Miranda rights when he stated “[y]ou have to be advised of your rights pursuant to
{22} The following exchange occurred between Agent Blair and Child as Agent Blair attempted to read and explain to Child the right to remain silent:
Agent Blair: It tells us—you have the right to remain silent. You don‘t have anything—if you . . . you do not have to say anything if you do not want to. I‘ve been up for a little while so I‘m not reading properly. Like I‘m reading at a second grade level—just tell me. You can probably read better. Do you understand that?
Child: Kind of. Yeah.
Agent Blair: What do you think that means?
Child: Don‘t talk on your own behalf.
Agent Blair: Or you don‘t have to talk to us if you don‘t want to and your mom will explain that.
Agent Blair initially and correctly invited Child to explain in his own words what Child understood the right to remain silent means rather than accept Child‘s unclear response of “Kind of. Yeah.” Apparently dissatisfied with Child‘s explanation of his right to remain silent, Agent Blair simply corrected Child without inviting Child to further explain his actual comprehension and appreciation of the right for a second time. It is not clear from this exchange whether Child fully comprehended his right to remain silent. Agent Blair also erroneously suggested to Child that his mother could counsel Child as an equivalent substitute to an attorney. In any event, during the entire exchange regarding Child‘s right to remain silent, it was never developed whether Child was able to use the information provided by the warning, grasp the significance of his right to remain silent, and weigh his options and the consequences of his decisions.
{23} Agents Blair and Aguilar hurriedly and equivocally warned Child of his remaining rights.
Agent Blair: Anything you say can be used against you in court. Okay on TV when they read these—they read them to adults and that means that they‘ve arrested them but that‘s not happening here okay? That‘s, that‘s why I didn‘t want to—uh—do you understand what that means? Okay, you can talk to your parents, your guardian, and an attorney. You got your parent/guardian right here with you um. [Y]ou have the right to have you [sic] parent/guardian parent present during any questioning. If you can not afford a lawyer, one may be appointed for you before any questioning. These are the ones on TV. Um, if you decide to answer questions um, without an attorney, you can—you still have the right to stop answering questions anytime. You have the right to stop answering questions any time till you talk to an attorney. Now you understand what I just said? Child: Not really.
Agent Blair: You didn‘t understand those? Which ones?
Child: —I think I understand that you can talk to the Judge—no, you can talk without an attorney. And then you can stop if it‘s just like—too getting out of hand. You can stop.
Agent Blair: —You‘re right on the—
Child: —answering questions. Until you get an attorney.
Agent Blair: You‘re absolutely right.
Agent Aguilar: —Correct.
Child: Okay.
This exchange failed to capture Child‘s actual comprehension and appreciation of his remaining rights. Agent Blair‘s description of these rights can only be characterized as confusing. Persons in a position of authority must advise thirteen- and fourteen-year-old children of their constitutional and statutory rights in a clear and intelligible manner if they want to rebut the presumption under
{24} Second, Agent Blair asked Child to identify which warnings Child did not understand. In response, the interrogation transcript appears to indicate that Child confused the right to remain silent with the right to an attorney. Child explained that he thought he understood that he had a right to talk without an attorney, but that Child could then stop the interrogation only if Child thought the interrogation was “getting out of hand” and not answer the questions until he obtained an attorney. Agents Blair and Aguilar simply told Child that he was absolutely correct and moved on. Given this exchange, we are left without any clear indication of whether Child actually comprehended and appreciated each of the Miranda warnings.
{25} As he read Child his Miranda rights, Agent Blair also presented Child with a notification and waiver form listing those rights, and Child wrote his initials next to each right listed on the form. Both Child and his mother signed the notification and waiver form.
{26} Child‘s lack of understanding of his rights and his inability to invoke his rights was also demonstrated by what occurred during the interrogation after the forms were signed. Child initially admitted that he broke into the victim‘s home and stole personal items identified by Agent Blair that belonged to the victim. However, Child denied taking a gun or any ammunition from the victim‘s home, and also denied involvement in the victim‘s shooting. When Agent Blair told Child that he believed Child had shot and killed the victim, Child denied killing
{27} Following the break, Agents Blair and Aguilar reinitiated the interrogation, reminding Child that he could ask to stop any further questions if he did not want to talk.
Agent Aguilar: DeAngelo we want to—we just, I just want to ask you a few questions okay? You admitted that you went into the house and took some things and stuff like that—that‘s all we want to talk to you about okay? We don‘t want to talk to you about a gun or we don‘t want to talk to you about any of that other stuff. Okay? Is that alright?
Child: (inaudible response)
Agent Aguilar: Okay, um, with that in mind—you just keep in mind this, you can do exactly what you did the last time, okay? When you‘ve had enough and you don‘t want to talk to us anymore, you just tell us you don‘t want to talk anymore. Okay? Is that alright? (inaudible response) Okay, now, when, when you into uh . . . their house on Sunday—you remember? Yes? Sunday or whatever day—over the weekend. While they were gone. And the things that you took, where did you hide them till you got rid of them? Or did you get rid of everything?
In response, Child provided more details about the specific circumstances of how he stole certain items from the victim‘s home. Resuming the interrogation of Child after Child said he did not want to talk does not scrupulously honor the invocation of an individual‘s right to remain silent that the law requires. State v. King, 2013-NMSC-014, ¶ 8, 300 P.3d 732. “The moment that the unambiguous statement is made, the interrogator must ‘scrupulously honor’ the suspect‘s or person‘s right by ceasing the interrogation.” Id. When Child continued to answer questions after stating that he did not want to talk, this provided additional evidence that Child did not possess either the maturity to understand his rights or the force of will to assert those rights.
{28} Following this interview, Child‘s charges were amended to (1) one count of first degree murder contrary to
{29} During the suppression hearing, the State presented testimony from Agents Blair and Aguilar and Child‘s teacher at the detention center where Child was held. The district court found their testimony persuasive, noting in its decision letter that Agents Blair and Aguilar both testified that “based on their experience in interviewing children of similar age, [Child] was articulate, inquisitive and fully aware of his constitutional rights, and [Child] appeared to be more mature and intelligent than children of his age.” The district court noted that Child‘s teacher testified that Child was “well-read, inquisitive and readily corrects the grammar and vocabulary of other juveniles detained in the Curry County Juvenile Detention Center, and in his opinion, [Child] is more intelligent than the average juvenile detainees in his age group.” The district court denied Child‘s motion and determined that Child “knowingly, voluntarily and intelligently waived his constitutional rights prior to speaking with law enforcement, and, as a result, the State has overcome the rebuttable presumption that the statements of [Child] are inadmissible.”
{30} On this record, we conclude that the State failed to meet the burden of
IV. Conclusion
{31} For the foregoing reasons, we affirm the Court of Appeals on different grounds and reverse the district court‘s denial of Child‘s motion to suppress. We remand for further proceedings in accordance with this opinion.
{32} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice