State v. Greene
588 P.2d 548
N.M.
1978
Check Treatment

*1 Mexico, of New STATE

Plaintiff-Appellant, GREENE, Defendant-Appellee.

A. Alan

No. 11837.

Supreme Mexico. Court of New

Dec. *2 was ar- (Repl.1972). He

N.M.S.A.1953 court in magistrate raigned in 4, 1976, he com- at which time on October indigency and re- pleted a certificate attorney. pre-A court-appointed quested a 11, hearing was held on October liminary in the Dis- arraigned 1976. Mexi- County, New Juan trict Court of San 1976; 1, appoint- an order co on Novеmber 18, On November was entered. ing counsel seeking sup- a motion 1976, filed written state- his oral and pression of all Tampa and Farm- of the ments to officers suppression departments, and ington police alleged by police gun of a .22 caliber hand Following an weapon. murder tо be the 4, 1977, the March hearing on evidentiary of all suppression trial court ordered to the by defendant made statements officers and ordered gun as evidence. contending that the appealed,

The State were based of law trial court’s conclusions legal prin- aрplication upon erroneous an Arizona, 384 Miranda v. ciples drawn from Gen., A. Lawrence Toney Anaya, Atty. 1602, 436, 16 L.Ed.2d 86 S.Ct. U.S. Gen., Fe, Fred Gamble, Atty. Santa Asst. reversed the agreed and (1966). This Court Smith, Atty., Farmington, ‍​‌‌‌​‌‌​‌‌​​​​‌​‌‌‌‌‌​​‌​​‌​​​​​​‌‌‌​‌​​‌‌​‌‌‌‌‌‍Dist. Asst. Chris 4, defend- suppressing 1977 order March plaintiff-appellant. for remanded The cause was ant’s statements. on Storment, for reconsideration Appellate Defend- to the trial court Reginald J. in State the rule announced application of er, Appellate Asst. Defend- Daly, Martha A. 207, Greene, 572 P.2d 935 Fe, er, defendant-appellee. Santa 8,1978, the trial court ruled February On OPINION of the circum- thаt, considering totality by defendant stances, made the statements SOSA, Justice. 9, 4, and October September October on trial court’s appeals from the State gun obtained the .22 caliber as well as made suppressing order statements, should be as a result of those 30 and October Seрtember fendant on found that the trial court suppressed. The the trial appeal is whether The issue burden of not meet its did State suppressing discretion in court abused its knowingly and volun- that defendant made incriminating statements defendant’s rights in his constitutional tarily waived Tampa, Florida on officer in . the statements. giving 30, 1976, police officer and to a September Febru- from the appeals now Mexico on October Farmington, New 8,1978 suppresses ary order insofar as involuntarily. having as been made 30 and the September two statements properly sup- We find that the trial court 4. Thе additional statement October pressed the two statements contends that the statements the statement improperly suppressed 30 and knowing and intel- made with a voluntarily of October 4. right to coun- ligent waiver of defendant’s charged abused its dis- sel and that the trial court Defendant A. Alan Grеene 40A-2-1, the statements. suppressing cretion in under first-degree with murder § officers, requires law randa enforcement role of the trial court in discussed the We custody, someone opinion. before earlier our warnings speci- and follow give specified judge in the first in- for the trial It is during the course of procedures fied as to volun- the evidence stance hear given statement interrogation. Any tariness, in the weigh conflicts evi- these compliance procedures *3 at the hear- without presented dence against whether the has be admitted in evidence ing, and determine State cannot objection. its burden.” Where there This is “heavy carried the accused over his ruling of support wholly evidence to the the is vol- is true even if the statement court, 96, error a trial we will not find as Mosley, untary. Michigan v. 423 U.S. omitted.) (Citation of law. matter 321, (1975). 313 96 46 L.Ed.2d S.Ct. 213, Greene, v. at 572 P.2d at supra, State Su Mosley, United ‍​‌‌‌​‌‌​‌‌​​​​‌​‌‌‌‌‌​​‌​​‌​​​​​​‌‌‌​‌​​‌‌​‌‌‌‌‌‍States In the (1977). 941 the re preme Miranda Court stated cease quirement police interrogation The or of admission exclusion evi custody the discretion of indicated person dence resides within sound when the in court, ruling per and a trial court’s will not a the trial remain silent did create wished to an upon be overturned absent a of not of duration proscription se indefinite Bell, of v. 90 N.M. officer, abuse discretion. State nor questioning by a further Ramirez, 134, (1977); v. 560 P.2d 925 State the impose prohibition against a blanket 635, (Ct.App.1976); P.2d 43 89 N.M. 556 in evidence of volun taking or admission 57, 529 P.2d 283 Marquеz, v. 87 N.M. State statements, resumption a of tary permit nor denied, 47, (Ct.App.1974), 87 N.M. 529 cert. momentary a cessa interrogation the after (1974). is P.2d 273 Judicial discretion incriminating ‍​‌‌‌​‌‌​‌‌​​​​‌​‌‌‌‌‌​​‌​​‌​​​​​​‌‌‌​‌​​‌‌​‌‌‌‌‌‍admissibility of tion. The if the taken the trial by abused action court person a in custo obtained after arbitrary capricious! v. State Madri initially to remain silent dy has decided 496, gal, (Ct.App.1973), 85 513 P.2d 1278 N.M. off depends right whether his to cut denied, 483, rt. 85 513 P.2d N.M. ce 423 scrupulously honored. questioning is (1973). 1265 abuse of discretion will Such 104, Mosley, de 321. U.S. at 96 S.Ct. presumed; affirmatively not be it must be incriminating statements fendant’s Serrano, 655, v. 76 N.M. established. State properly because hе had been admissible 659, 795, (1966). 797 417 P.2d rights; of his Miranda when advised silent, the Greene, right remain supra, we announced In State v. exercised the applied immediately of law to be ceased proper the rule officer interrogation. determining try voluntariness of waiver not the the did resume sig rights. interrogatiоn occurred after a of an individual’s constitutional A second a mur lapse, stated: was directed to nificant time der related to the crime with not A of the voluntariness of determination conducted at another charged, not depends waiver mere subsequent the officer. waivеr, building location in the another on a formal utterance of but ly of upon all the facts circumstances person has held that a This Court , Crump 82 particular case. State v. right custody, having once invoked his 487, (1971). P.2d 329 These N.M. 484 of being have advised present after include the back facts cirсumstances waive rights, may subsequently his Miranda ground, experience and conduct state- during questioning give right 648, Sexton, N.M. accused. v. 82 State at trial. which are a later ments admissible 639, 928, denied, N.M. 82 485 P.2d cert. 215, Greene, at 572 P.2d supra, State v. at (Ct.App.1971). 485 P.2d 973 However, invokes a defendant once Ramirez, 638, at right In Statе v. silent or the right to remain either the Appeals counsel, of P.2d at the Court State appointed retained or demonstrating that compli heavy rights relates to bears ‍​‌‌‌​‌‌​‌‌​​​​‌​‌‌‌‌‌​​‌​​‌​​​​​​‌‌‌​‌​​‌‌​‌‌‌‌‌‍a burden [ W]aiver volun- knowing subsequent of Miranda. Mi- waiver is with the strictures ance p. Ramirez, Tampa At 7:10 m. a detec- about supra; tary. State See tive, present during not who had been Sanchez, (Ct.App. N.M. 512 P.2d 696 conversation, defend- telephone approached 1973). ant. The detective had been informed heavy bears a burden to talk the arrest- defendant had refused preponder waiver establishing such had asserted his and that he indulge in ance of the evidence. Courts read right silent. The detective to remain every presumption against waiv reasonable At rights. this defendant his Miranda 387, 404, Williams, er. Brewer v. 430 U.S. waiver sign a defendant refused to 51 L.Ed.2d S.Ct. taped. allow interview be form or to counsel, right аccused’s [ WJaiver questioning began then detective asserted, “may after such has been charge. fendant on murder skepticism.” properly be viewed that he informed the testified *4 “skepticism” jus And this finds increased wish to discuss the that he did not detective lapse tification if there is no substantial father, he told the detec- murder of his that for request of the time between talking some- enjoy tive he would that (Footnotes omit alleged and its waiver. one, any- say he want to but that did not ted.) Thus, relating to father’s murder. thing his Grant, v. F.2d 946 United 549 States attempted the defendant for third 1977). ‍​‌‌‌​‌‌​‌‌​​​​‌​‌‌‌‌‌​​‌​​‌​​​​​​‌‌‌​‌​​‌‌​‌‌‌‌‌‍(4th investigating An officer’s Cir. right to silent. Nonethe- invoke his remain conduct, right is once the to counsel assert less, interroga- the continued the detective ed, special will be scrutinized with care for in Michi- tion. This is unlike the situation coercion, any possibility imposition, of police gan supra, where the offi- Mosley, v. Crisp, suggestiоn. unfair United States v. interrogation when the promptly cer ceased denied, (7th 1970)cert. 402 435 F.2d 354 Cir. not want to answer stated he did defendant U.S. 91 29 L.Ed.2d 116 S.Ct. any the crime with questions about (1971). 425 Fogg, also Collins See the charged, he where defendant was aff’d, (E.D.N.Y.1977), F.Supp. 1339 559 F.2d with attor- at asked consult no time 1977). (2d 1202 Cir. ney that he did not want or indicated also the unrelated crime. See discuss whether the trial order to determine Clemons, 193, 552 Ariz.App. suppressing in court its discretion abused case, statements in this we ex- defendant’s separately. amine each statement that he detective also told defendant The homosexual, sympa- that he

knew he was situation, and that The Statements thized with defendant’s he if could be moved would see defendant Tampa arrested in at Defendant was “gay” During into cell. the course of this approximately p. authority 4 m. on the of interview, fifty-minute defendant made in- fugitive Upon being New Mexico warrant. concerning mur- criminating the arrested, given full Miranda defendant was was der returned of his father. Defendant to the warnings; he refused to talk arrest to his cell. right his to remain officers and invoked m., presence jailer the of the told p. silent. At about 5 in At this time detective the officers, spoke to because of an Tampa defendant officers double check defendant department by alleged statement made defendant that Farmington police of receiving might full Miranda “freak out.” All defendant’s telephone. After officers, Farmington clothing was removed. The detective then warnings from the de arresting they spoke them would be with one the fendant told he had consulted told him the statements defendant “wasting their time” until placed a call to arresting wish to incrimi made. The officer counsel because did not authorities, Farmington the nate This was an effective invoca himself. Tampa spoke ap- counsel. whom the detective tion defendant’s statement, diately preceding each rec- the to ten minutes. proximately seven detec- repeated authorities informed the ord also refusals shows in Mеxico honor defendant’s interrogating case had New officer to they tive good.” rights, “not all that the coercive ef- against defendant was invocations these call, arresting the detective detention placement After this of defendant fect “straight” for about supervisors сlothing officer met with their cell- without in a his twenty block, regarding discussed different They misrepresentations minutes. As interviewing defendant. procedures and effect of his statements. use report, indicated in detective’s of the circum- Considering totality attempt he would return and decided that stanсes, initial state- find defendant’s we his to talk in detail of get defendant intelligent of an ments were not the result father’s murder. right to knowing waiver of his counsel. p. again At defendant was about 9:30 m. its burden of has failed to meet brought room. He was interrogation to the knowingly and volun- defendant given rights; his Miranda he indicated tarily waived constitutional back to statements; understood them and recited them therefore, are they giving told the detective. The detective the trial court’s inadmissible. We affirm him giving the information he two statements. suppressing order these would understand help Tampa why why peо- The October Statement people commit murders detective testified ple violate the law. The question present A more difficult *5 leary of fur- that when defendant became 4 statement. On by ed defendant’s October did not cease the interro- testimony, ther he extradi waived defendant October that gation but rather assured defendant New Mexico and turned over to tion was helping him. his main concern was in re He was officers. and Colorado when testified that defendant detective also 3, 1976. Farmington to on October turned testify de- against he would asked him if for three hours questioned Defendant was trial, the New replied he that fendant at his October by Farmington police officers af- probably not Mexico authorities could by was a recita preceded This and that him to New Mexico fly ford was in rights. tion of Defendant Miranda about. nothing worry defendant hаd he officer that Farmington formed a the detective Defendant testified opportunity to correct would have an what he worry him not about statement; told he should he was transcription of his oral Farmington said because allowed that he would be further informed who did yokels” “bunch idiotiс signing attorney before to consult with an fly the detective enough money have not being so informed After statement. Only after de- testify. New Mexico voluntarily signed advised, and defendant “nothing that he fendant was told proceed He rights form. written waiver of made,” about,” it and that “he had worry was oral ed to make an statement likeli- would in all that whatever said secretary aby recorded in shorthand him, did he against hood never be used refused thereafter transcribed. incriminating make further proceed to he could see until sign the statement statements. attorney. about one hour Thе interview lasted was There is no evidence that conclusion, minutes; twenty-five at its At no officials. misled his cell. Defend- fendant was returned to his was advised that statement naked stripped kept again ant if not against not him he did would be used night. for the remainder of the it. no assurances sign He recеived any purpose. limited statement was reflects defendant Although record Massey, 550 F.2d rights to assist- See United States waived constitutional his sug- (5th 1977). Nothing in the record silent imme- Cir. and to remain ance or gests knowledge defendant lacked under- statement. The trial in sup- court erred standing rights Thereforе, of his that he was not pressing that statement. we re- when acting voluntarily he waived those verse the trial court’s order insofar as rights. v. Maples, suppressed See State 82 N.M. the October 4 statement. (Ct.App.1970). P.2d 718 There is also no ORDERED. IS IS SO evidence that defendant’s will was over- Lopez, come. Sеe 452 McMANUS, J., FEDERICI, J., C. fact, during the inter- concur. view, defendant “My lawyer go- Justices, PAYNE, respect- EASLEY and my to kick aks for this.” Farming- fully dissenting. immediately ton officer told defendant that stop any majori- could time. the interview at We dissent to the extent Defendant answered that he was aware ty upheld of defend- hаs that and said what the hell? De- ant’s 30. We feel statements of “[b]ut fendant continued to make the statement. adequately defendant was informed of his voluntarily find defendant and know- rights, those fully understood ingly waived his to remain silent making them before knowingly waived right to counsel when he made the October statements.