State v. Jonathan M. , 109 N.M. 789 ( 1990 )

BACA, Justice

(specially concurring).

Although I concur in the judgment of the court, I believe the majority’s conclusion can be reached without umbrage to the rationale of Doe v. State, 100 N.M. 579, 673 P.2d 1312 (1984), and without judicial expansion of the policy on which the Children’s Code is based. I write separately to explain how the majority’s conclusion can be distinguished from Doe based solely on interpretation of the statutory language. As the majority indicates, when statutory language is clear and unambiguous, we should give effect to that language and refrain from further interpretation. See Storey v. University of N.M. Hosp./BCMC, 105 N.M. 205, 730 P.2d 1187 (1986).

In Doe, we focused on NMSA 1978, Section 32-l-27(C) and (D) (Repl.Pamp.1989), to determine that the Children’s Code’s additional protections were implicated only in a situation where Miranda safeguards come into play. We emphasized the language of subsection (C) stating that no suspected delinquent child could be “interrogated or questioned” without having been advised of his constitutional rights and without a valid waiver. Doe, 100 N.M. at 582, 673 P.2d at 1315. With reference to subsection (D), we emphasized that “the state must prove that the statement or confession offered in evidence was elicited only after a knowing, intelligent and voluntary waiver of the child’s constitutional rights was obtained.” Id.

Subsection (F) states: “Notwithstanding any other provision to the contrary, no confessions, statements or admissions may be introduced against a child under the age of fifteen years prior to an adjudication on the allegations of the petition.” (Emphasis added.) Subsection (F) does not contain the ameliorating language that the Doe opinion emphasizes to indicate the legislative intent that Section 32-1-27 applies only in the post-Miranda situation. It does not refer to interrogation, questioning, or elicited statements, and it does not require a knowing, intelligent and voluntary waiver of constitutional rights. In the context of subsections (C), (D), and (E), Doe reasonably interpreted this language to show the legislature’s intent that these requirements refer to post-Miranda constitutional safeguards, which can be implicated only in the post-Miranda context. However, subsection (F) broadly excludes all confessions, statements or admissions, “[notwithstanding any other provisions.” This broad exclusion, without qualification, by its plain language is not limited to the post-Mranda context, and it demonstrates the intent to give children under the age of fifteen broader protection.

I believe that analysis of the statutory language clearly indicates the legislature’s intent regarding subsection (F) and further judicial gloss on the statute is unnecessary. I would hold simply that the language employed by the legislature indicates its intent that children under the age of fifteen should be treated differently than older minors. Accordingly, I would exclude on this basis all statements, confessions or admissions, both prior or subsequent to Miranda, before an adjudication on the allegations of the petition.