State v. Poller ( 1979 )

OPINION

HENDLEY, Judge!

Convicted of murder in the second degree contrary to § 30-2-l(B), N.M.S.A. 1978, defendant appeals. She asserts one ground for reversal which relates to the refusal of the trial court to suppress certain statements she made to Officer Marable. We affirm.

The sheriff’s department received a call of a shooting and officers were dispatched to the area. Officer Gomez was the first on the scene. Defendant approached Gomez and informed him that the victim had stolen Five Hundred Dollars ($500.00) from her and that she had shot him. (First statement.) Gomez testified, “Mrs. Poller stated she did have a weapon and that it was underneath her coat.” Gomez then took the gun from defendant. He placed her in the patrol car and “asked her what had happened.” Defendant was not given her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Gomez also stated that once he had placed defendant in the patrol car she was not free to leave although she had not been placed under arrest. While sitting in the patrol car and in response to Gomez’s question, defendant stated that she had shot the victim and that the victim had robbed her. (Second statement.)

Defendant was then placed in Officer Marable’s vehicle and placed under arrest and for the first time she was advised of her Miranda rights. Defendant was asked if she wished to waive her right to be silent. She said she did not wish to talk. Marable did not ask any further questions. Defendant then asked Marable if the victim was dead and he replied that the victim was dead. Marable testified that defendant then started crying and stated that the reason she had shot him was that he had taken money from her. (This and subsequent statements are referred to as the third statements.) Marable also testified defendant talked most of the time that they were at the scene.

Defendant was then taken to the sheriff’s office. Defendant was again read her Miranda rights from a written form. She signed the form, after reading it, in the presence of witnesses. Defendant did not sign the waiver of rights. Marable stated that defendant kept on talking during this time. Marable, at defendant’s request, called an attorney for her. She spoke to the attorney. Defendant then stated she did not want to answer any questions. Marable did not attempt to interrogate her. During this time defendant was spontaneously making comments to Marable.

The trial court found that the first statement and the production of the firearm were not suppressible, but that the second statement made in Gomez’s police vehicle was suppressible since she was not given her Miranda rights. The trial court then held that the statements made to Marable were “not the result of an exploitation of her prior statement to Officer Gomez.”

One of defendant’s assertions in the trial court was that defendant was mentally incompetent to make any voluntary statement. The trial court declined to rule on this aspect until further information was supplied by the Court Clinic. This issue was not preserved for appeal since the record does not disclose the court ruling on this issue. Defendant’s other assertion in the trial court was that since the second statement was without the benefit of the Miranda warnings the State assumes a heavy burden to show that the third statements were not based upon the second statement.

The State must meet its burden of proving that the third statements were free from the taint of the second statement. See State v. Austin, 91 N.M. 586, 577 P.2d 894 (Ct.App. 1978); State v. Greene, 91 N.M. 207, 572 P.2d 935 (1977). To do this it must overcome the presumption that the third statements were a result of the second statement. See discussion in State v. Austin, supra, of State v. Chaves, 27 N.M. 504, 202 P. 694 (1921) and State v. Dickson, 82 N.M. 408, 482 P.2d 916 (Ct.App. 1971). We need not decide what quantum of proof was required to overcome the presumption of inadmissibility. We will assume the highest quantum. See State v. Austin, supra.

The purpose of the rule of presumptive inadmissibility is “[t]he natural concern . that an inability to protect the right at one stage of a proceeding may make its invocation useless at a later stage.” Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). Thus, the concern is that a suspect will assume that since she has already made incriminating statements, she may as well continue to talk. This situation normally arises out of instances where the first statement is the incriminating statement obtained without proper warnings or by inducements or threats. See State v. Chaves, supra; State v. Austin, supra, and State v. Dickson, supra.

However, such is not the case here. Defendant’s first statement was voluntary and spontaneous. It was a confession of shooting the victim. The second statement, although not much more than a reiteration of the first statement, was nonetheless given in violation of Miranda. The third statements were made, not as a result of questioning, but spontaneously by the defendant.

The distinguishing factors in each of the cases which have been reversed is the existence of continued questioning by the authorities after the Miranda warning had been given and invoked by the defendant, and during a time period falling within an unbroken “stream of events.” See State v. Word, 80 N.M. 377, 456 P.2d 210 (Ct.App.1969). The stream was broken here by removal of the defendant to the second police car after her second statement, and then to the police station where she continued to volunteer information and comments without questioning. As stated in Greene “. . [A]dmission into evidence of volunteered statements is not prohibited by the fifth or fourteenth amendments, where there are no facts to indicate that the statement is made in response to ‘interrogation.’ . Voluntary statements of any type are not barred by the fifth amendment, and their admissibility is not affected by Miranda v. Arizona . . . .”

By whatever quantum of proof, the third statements pass muster and were not tainted by the second statement. The third statements did not arise out of questioning. Under the circumstances of this case the third statements were not the exploitation of the second statement. Compare State v. Dickson, supra. The State overcame the heavy burden of presumptive inadmissibility. State v. Greene, supra.

We hold that the third statements, which were not the result of questioning by Marable, were spontaneous and voluntary. As such, they were properly admissible. To hold otherwise would force the police to gag any suspect who wished to spontaneously talk about the incident.

Affirmed.

IT IS SO ORDERED.

SUTIN, J., concurring in result. WALTERS, J., concurs.