DocketNumber: NO. A-1-CA-35290
Citation Numbers: 429 P.3d 1283
Judges: Gallegos
Filed Date: 9/13/2018
Status: Precedential
Modified Date: 7/19/2022
{1} Defendant Ernest Serna was arrested and charged with an open count of murder (firearm enhancement), contrary to NMSA 1978, Section 30-2-1(A)(1) (1994), and NMSA 1978, Section 31-18-16 (1993) ; tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003) ; and aggravated stalking, contrary to NMSA 1978, Section 30-3A-3.1 (1997). While he was in police custody, Defendant made several potentially incriminating statements to the arresting deputy. In district court, Defendant filed a motion to suppress the statements, arguing that he was not adequately apprised of his rights under Miranda v. Arizona ,
BACKGROUND
{2} The State alleges that Defendant and Alicia Quintana (Victim) went to a restaurant together and subsequently engaged in a verbal altercation in the restaurant's parking lot. After the verbal altercation, Defendant and Victim returned to the restaurant to pay their bill and then left the establishment. Several minutes later, gunshots were heard and a pickup truck was seen quickly fleeing the parking lot. Victim was found bleeding in the parking lot and was later pronounced dead.
{3} Defendant was apprehended a few days later by Sandoval County Deputy Sheriff Sal Tortorici. Defendant was placed in the back of Deputy Tortorici's patrol vehicle and the two engaged in casual conversation for several minutes while Deputy Tortorici had his lapel camera turned on. The lapel video shows that after approximately six and a half minutes, Deputy Tortorici recited Defendant's Miranda rights from memory and without the use of a department-issued card. Specifically, Deputy Tortorici gave Defendant the following Miranda warning (first Miranda warning):
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney during any and all questionings. If you can't afford an attorney, one will be provided for you.
Deputy Tortorici did not immediately begin to question Defendant about the crime. Rather, Defendant and Deputy Tortorici continued to engage in conversation during which time Defendant made several statements *1286about contemplating turning himself in to law enforcement. Deputy Tortorici then asked Defendant about the weapon, presumably the one allegedly used in the killing of Victim. Defendant responded by stating that he did not know what he did with the weapon and that he threw it out of his vehicle "somewhere."
{4} Deputy Tortorici proceeded to drive Defendant to the police station for further questioning. According to an additional video recorded by Deputy Tortorici's lapel camera, Defendant was read the following Miranda warning (second Miranda warning) from a department-issued card:
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and you have the right to have him present with you while being questioned. If you cannot afford a lawyer, one will be appointed to you before any questionings. If you decide at any time you want to exercise these rights and not answer any questions, you may do so.
Deputy Tortorici then began to interrogate Defendant about what had happened outside the restaurant with Victim. Defendant immediately asked if he was being recorded and what it would take to get an attorney. Defendant expressed that he was previously unaware he could have an attorney and that he may not have been listening to the first Miranda warning. Defendant then stated he "want[ed] to be left alone." After Defendant and Deputy Tortorici engaged in a bit more conversation, in which Defendant either refused to answer or gave ambiguous responses to Deputy Tortorici's questions, the lapel video ends.
{5} Defendant was charged with an open count of murder (firearm enhancement), tampering with evidence, and aggravated stalking. Subsequently, on August 17, 2015, Defendant filed a motion to suppress the statements made to Deputy Tortorici, arguing exclusively that the first Miranda warning given by Deputy Tortorici was inadequate. At the suppression hearing, the parties stipulated to the language used by Deputy Tortorici in the first Miranda warning. The district court denied the motion to suppress and found the first Miranda warning adequate. Notwithstanding the fact that the adequacy of the Miranda warning was the only issue addressed in Defendant's motion and during the suppression hearing, the district court also found that Defendant had waived his rights under Miranda . In response to the district court's order, Defendant filed a motion in limine seeking an additional order on the waiver issue. The district court then issued a letter requesting supplemental briefing as to whether Defendant waived his Miranda rights. The waiver issue was briefed by both sides and a second hearing was scheduled. At the hearing, a copy of the lapel videos was given to the district court and admitted into evidence
{6} The district court never entered an additional or amended order on the waiver issue. Instead, shortly after the second hearing, Defendant entered into a plea agreement in which he pled no contest to second degree murder (firearm enhancement), tampering with evidence, and aggravated stalking. The plea agreement stated that "Defendant may appeal only the issue of whether the arresting [s]heriff's [d]eputy gave an insufficient Miranda warning to ... Defendant as raised in ... Defendant's brief filed August 17, 2015." The district court's judgment and sentence order similarly stated that "Defendant may appeal the Miranda warning issue as raised in briefs filed 8/17/15."
DISCUSSION
{7} On appeal, Defendant makes two arguments stemming from the district court's denial of his suppression motion. First, Defendant argues that the first Miranda warning given to him was inadequate. Specifically, Defendant asserts that the warning did not adequately convey his right to have counsel appointed and present prior to questioning. Second, Defendant argues that even if the *1287warning was adequate, the district court erred in finding that he waived his rights under Miranda .
{8} In turn, the State contends that the warning was adequate and that the waiver issue was not preserved below or reserved for appeal in the plea agreement. Additionally, the State argues for the first time on appeal that some of the statements made by Defendant to Deputy Tortorici were volunteered.
I. Standard of Review
{9} In reviewing the district court's denial of a defendant's motion to suppress, the factual determinations are subject to a substantial evidence standard of review, but the application of the law to the facts is subject to de novo review. State v. Nieto ,
II. Adequacy of the Miranda Warnings
{10} At issue here is the Fifth Amendment right against self-incrimination. The Fifth Amendment states that no person shall "be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V. The Fifth Amendment right against self-incrimination is applicable to the State of New Mexico through the Fourteenth Amendment. See State v. Filemon V. ,
{11} This privilege against self-incrimination is available outside of court proceedings, including situations where a person is being questioned by law enforcement. See Miranda ,
{12} "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination."
{13} Our focus in this case is on Deputy Tortorici's explication of Defendant's right to counsel. The right to counsel warning from Miranda requires that a person subject to custodial interrogation by law enforcement be apprised that they have a "right to the presence of an attorney[.]"
{14} To the extent the State asserts that there is no requirement that a suspect be given the Miranda warnings verbatim, we agree. See *1288California v. Prysock ,
{15} In making this determination, the form of a Miranda warning is of little consequence as we look to see if the substance of what is required by Miranda is communicated to the suspect. See Prysock ,
{16} "The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda ." Duckworth,
{17} Our analysis of the adequacy of Deputy Tortorici's Miranda warnings thus turns on two primary questions: (1) does Miranda require that a person subject to custodial interrogation be warned of that person's right to have counsel present prior to questioning; and (2) if so, was this right reasonably conveyed by the warnings given by Deputy Tortorici?
A. Miranda Warnings Must Convey the Right to the Presence of Counsel Prior to Questioning
{18} It is clear from both Miranda and subsequent decisions by the United States Supreme Court that there is a right to have and consult with counsel prior to questioning. See Miranda ,
{19} We address the State's two points of disagreement with this proposition. The State's first point is that this Court, our Supreme Court, and the United States Supreme Court have all upheld on numerous occasions warnings that simply apprised the suspect of a right to the presence of counsel, *1289which is a verbatim recitation of what Miranda noted was required. See Miranda ,
{20} The State's second point, made in reliance on Powell , is that the full right to counsel encompasses only a right to counsel prior to answering any questions, as opposed to prior to questioning . Specifically, the State points out that the defendant in Powell was advised of his right to consult with an attorney before answering any questions and asserts that such warning was held by the United States Supreme Court to be sufficient. See Powell ,
{21} We conclude that Miranda requires that a person be warned, at least implicitly, that they have a right to counsel prior to questioning. See, e.g. , United States v. Loucious ,
B. The Miranda Warning in This Case Did Not Reasonably Convey the Right to the Presence of Counsel Prior to Questioning
{22} We now look at whether Deputy Tortorici's warnings reasonably and sufficiently conveyed to Defendant his right to have an attorney present, including prior to questioning. See Powell ,
{23} The warning given to Defendant indicated that he had a right to an attorney "during any and all questioning." The use of the word "during" is pivotal. "During" is a preposition and is defined as "throughout the duration of." Merriam-Webster's Collegiate Dictionary 388 (11th ed. 2005). A "preposition" is "a function word that typically combines with a noun phrase to form a phrase which usually expresses a modification or predication." Id. at 981. Thus, "during" modifies the phrase "you have a right to an attorney" and restricts that right to the duration of any questioning by law enforcement. Even viewing this language in a manner extending the utmost latitude to the law enforcement officer-and bringing common sense to bear-we still cannot see how "during" could be understood to apply backwards to also mean prior or before.
{24} The State's reference to Loucious in its answer brief only serves to underscore this determination. In Loucious , like here, the defendant was warned that he had the right to the presence of an attorney during questioning.
{25} In sum, by implying that the right to counsel would be effective only during the interrogation, the warnings given by Deputy Tortorici to Defendant placed a misleading temporal limitation on the full right to counsel under Miranda . Cf. Powell ,
{26} We would be remiss if we did not point out the contrast in language between the first Miranda warning, given from memory, and the second Miranda warning, given from a department-issued card. Not only does the second Miranda warning advise Defendant of his "right to talk to a lawyer and ... the right to have him present with [him] while being questioned" but also that "[i]f [he] cannot afford a lawyer, one will be appointed to [him] before any questionings." In delivering the first Miranda warning from memory, and not from his department-issued card, Deputy Tortorici risked that he would fail to adequately convey Defendant's rights, and that is precisely what happened. While we again note that law enforcement officers are not required to recite the warnings from *1291Miranda verbatim, "police can always be certain that Miranda has been satisfied if they simply read the defendant his rights from a prepared card[.]" Loucious ,
{27} Because the first Miranda warning given to Defendant by Deputy Tortorici was inadequate, the district court erred in denying Defendant's motion to suppress. See Filemon V. ,
III. Waiver of Rights Under Miranda
{28} We turn next to Defendant's argument that the district court erred in finding that he had waived his rights after receiving adequate Miranda warnings. There is some question as to whether this argument was preserved for appeal and whether this issue was reserved for appeal in Defendant's plea agreement. See State v. Winters ,
IV. Volunteered Statements
{29} The State argues in its answer brief-for the first time-that Defendant volunteered several statements throughout the course of his dialogue with Deputy Tortorici and that these statements should be deemed admissible regardless of the adequacy of the first Miranda warning. "Generally, an appellee has no duty to preserve issues for review and may advance any ground for affirmance on appeal." State v. Todisco ,
{30} The statements in question were made by Defendant to Deputy Tortorici between the first and second Miranda warnings while Defendant was in the back of the patrol unit. Although we have concluded that the first Miranda warning given to Defendant was inadequate, it is still possible that a person can volunteer admissible statements even without adequate Miranda warnings. See Miranda ,
{31} The State enumerates several statements that it argues were volunteered and therefore admissible. The statements are that (1) Defendant asked if the police were "looking for [him]"; (2) Defendant stated he was "trying to figure out who to call to turn [him]self in" and to "tell [law enforcement] they can pick [him] up somewhere ... because it's a bad situation"; (3) Defendant "didn't know what to do ... just been sitting there for the last day, day and a half"; and (4) "there's no place else for me to go, where am I going to go? ... you can't hide forever."
*1292{32} Aside from listing these four statements and asserting that they were "volunteered and ... admissible," the State provides us with no analysis with respect to each. By making no further argument, the State leaves it to us to determine the voluntariness of each statement in context. To do so, we must determine whether each statement was the product of express questioning or its functional equivalent, see Rhode Island v. Innis ,
{33} "To rule on an inadequately briefed issue, this Court would have to develop the arguments itself, effectively performing the parties' work for them." Elane Photography, LLC v. Willock ,
{34} Consequently, because addressing this undeveloped argument-raised for the first time on appeal-would be unfair to Defendant, we will not affirm on a right for any reason basis. See Cordova ,
CONCLUSION
{35} We conclude that the district court erred in denying Defendant's motion to suppress the statements made to Deputy Tortorici between the first and second Miranda warnings because Defendant was not adequately apprised of his right to counsel. Therefore, we reverse and remand to the district court for further proceedings.
{36} IT IS SO ORDERED.
WE CONCUR:
M. MONICA ZAMORA, Judge
HENRY M. BOHNHOFF, Judge
Defendant did not designate the transcript of this hearing as part of the record on appeal. We make this determination based on our own review of the record. The record indicates that the CD containing the lapel videos was admitted into evidence at the second hearing. This is the same CD this Court received as a supplemental exhibit.