STATE V. DESNOYERS, 2002-NMSC-031,
132 N.M. 756, 55 P.3d 968
CASE HISTORY ALERT: affected by
2005-NMSC-027
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
JASON DESNOYERS, Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
2002-NMSC-031, 132 N.M. 756, 55 P.3d 968
September 24, 2002, Filed
APPEAL FROM THE DISTRICT COURT OF DONA
ANA COUNTY. Robert E. Robles, District Judge.
As Corrected November 1, 2002. Released
for Publication October 18, 2002.
Phyllis H. Subin, Chief Public Defender,
Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
Patricia A. Madrid, Attorney General,
James O. Bell, Assistant Attorney General, Santa Fe, NM, for Appellee.
GENE E. FRANCHINI, Justice. WE CONCUR:
PATRICIO M. SERNA, Chief Justice, PAMELA B. MINZNER, Justice, PETRA JIMENEZ
MAES, Justice.
AUTHOR: GENE E. FRANCHINI
{*760} FRANCHINI,
Justice.
{1} After a jury
trial, Defendant Jason Desnoyers was convicted of deliberate intent first
degree murder, contrary to NMSA 1978, §
30-2-1(A)(1) (1994); conspiracy to
commit first degree murder, contrary to NMSA 1978, §
30-28-2 (1979) and Section
30-2-1; kidnapping, contrary to NMSA 1978, §
30-4-1 (1995); criminal sexual
penetration, contrary to NMSA 1978, §
30-9-11 (2001); five counts of tampering
with evidence, contrary to NMSA 1978, §
30-22-5 (1963); three counts of
conspiracy to commit tampering with evidence, contrary to Section 30-28-2 and
Section 30-22-5; and criminal solicitation to commit tampering with evidence,
contrary to NMSA 1978, §
30-28-3 (1979) and Section 30-22-5. On appeal,
Defendant argues that the trial court erred in its evidentiary and discovery
rulings and by not granting his motion for a new trial. Defendant's first
{*761} trial ended in a mistrial, and he
raises the claim that his right to be free of double jeopardy was violated when
he was indicted on additional charges before his second trial. We review the
case under Rule
12-102(A)(1) NMRA 2002 (providing for direct appeal to the Supreme
Court in cases in which a sentence of life imprisonment has been imposed). We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} On March 22, 1998,
the body of the victim, an eighteen-year-old female student from New Mexico
State University, was found in the desert west of Las Cruces, New Mexico. She
had been stabbed to death and was wearing only a single sock and a bra which
had been pushed up toward her neck. The victim was last seen in the company of
Defendant and Jesse Avalos
1,
on the evening of January 14, 1998. On January 15, her roommates noticed that
the victim was missing and called her parents. Her parents then notified the
university that she was missing. Defendant was interviewed on January 19 by
police officers and then later by the FBI. In late January, under a search
warrant, the police obtained hair, saliva, and blood samples from Defendant.
That same day Defendant left New Mexico for San Diego, California. In
mid-February, two Las Cruces police detectives and the FBI went to San Diego to
interview Defendant again about the evening of January 14, but were unable to
locate him. Defendant had relatives in the area, but they told the police that
Defendant had not been in touch with them. On February 19, Defendant was
indicted for tampering with evidence and solicitation to commit tampering with
evidence, and an arrest warrant was issued. The Las Cruces detectives returned
to San Diego on March 17, 1998, after Defendant had been arrested on the
outstanding warrant by the San Diego sheriff's department. Defendant signed a
waiver of his
Miranda rights and gave a statement to the officers. He
returned to Las Cruces with the detectives. After the victim's body was found
on March 22, Defendant was indicted for first degree murder and other crimes
related to the death of the victim.
{3} At trial, a
pathologist from the Office of Medical Investigator (OMI) testified about the
autopsy she had performed on the victim. She stated that the cause of death was
multiple stab and cutting wounds to the head, neck, chest, and back; the victim
had been stabbed at least thirty times. In addition, there were numerous severe
blunt wounds to the head. The victim had wounds on her hands consistent with
defense injuries. A forensic serology DNA analyst from the Department of Public
Safety crime lab testified that the results of DNA testing from the sample
taken from under the victim's fingernails were consistent with that of the DNA
of Defendant and the victim. He also testified that the blood mixtures found on
a black jacket of Defendant's and the shower curtain from Avalos's apartment
were consistent with the blood of Defendant, Avalos, and the victim. The jury
heard testimony that the seat of Defendant's pickup truck, in which the three
had been riding that evening, had been cleaned by Defendant. Testing revealed
the presence of blood in the center of the bench seat but because of the
cleaning, DNA samples could not be obtained from the seat. At the conclusion of
the trial, Defendant was convicted of all charges.
A. Admission of Evidence.
1. Statements of Witnesses.
{4} Defendant
challenges the admission of testimony of two witnesses who testified about
statements made by Defendant and by Avalos. He contends that his constitutional
right to counsel and right of confrontation under the United States and New
Mexico constitutions
2
were violated by
{*762} the admission of
the testimony.
See U.S. Const. amend. VI;
N.M. Const. art. II, § 14. He
also objects to the trial court's having denied the admission of some
statements allegedly made by Avalos about the victim. "As a general
matter, we review a trial court's admission of evidence under an exception to
the hearsay rule only for an abuse of discretion."
State v. Torres,
1998-NMSC-52, P15,
126 N.M. 477,
971 P.2d 1267; accord
State v. Benavidez,
1999-NMSC-41, P2,
128 N.M. 261,
992 P.2d 274;
State v. Gonzales,
1999-NMSC-33, P5,
128 N.M. 44,
989 P.2d 419,
cert. denied, 529 U.S. 1025
(2000). We review de novo the question of whether the Confrontation Clause has
been violated by the admission of hearsay evidence.
Gonzales,
1999-NMSC-33, P16,
128 N.M. 44,
989 P.2d 419.
a. Admissions by Defendant.
{5} During his first
trial, Defendant made incriminating remarks during the course of several
conversations with Larry Otero, a prisoner at the Bernalillo County Detention
Center where Defendant was being held for the trial. Mr. Otero notified
authorities about Defendant's remarks, and the statements were later admitted
during Defendant's second trial through the testimony of Mr. Otero. Before the
second trial, Defendant attempted to have the statements excluded on the basis
that the testimony violated his right to counsel because Mr. Otero was a
government agent. This claim was apparently based on the fact that Mr. Otero
had been a confidential informant for the narcotics division of Albuquerque
Police Department at an earlier time. At the conclusion of an evidentiary
hearing on Defendant's motion, the trial court denied the motion, concluding
that Mr. Otero was not acting as a confidential informant and was not an agent
of the State when he spoke with Defendant.
{6} The Sixth
Amendment is implicated if the government has elicited statements from an
accused after the right to counsel has attached.
Massiah v. United States,
377 U.S. 201, 205-06, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964). To establish a
Sixth Amendment violation, the following requirements must be met: (1) the
right to counsel had attached at the time of the alleged infringement; (2) the
informant was acting as a government agent; and (3) the informant deliberately
elicited the incriminating statement from the defendant.
Matteo v.
Superintendent, 171 F.3d 877, 892 (3rd Cir. 1999). However, "the Sixth
Amendment is not violated whenever-by luck or happenstance-the State obtains
incriminating statements from the accused after the right to counsel has
attached."
Maine v. Moulton, 474 U.S. 159, 176, 88 L. Ed. 2d 481,
106 S. Ct. 477 (1985).
{7} It is undisputed
that Defendant's right to counsel had attached; at the time he met Mr. Otero,
Defendant was on trial for the victim's murder.
See Moulton, 474 U.S. at
170 (stating that the right to counsel attaches when adversarial judicial proceedings
have been initiated). The question to be resolved is whether Mr. Otero was
acting at the behest of the State when Defendant made the incriminating
statements. As Defendant himself acknowledges, there is no evidence in the
record that detectives made arrangements with Mr. Otero beforehand to elicit
information from Defendant or that he was deliberately placed in the cell next
to Defendant. The record shows that Mr. Otero testified at length during the
trial and was cross-examined by Defendant about the possible existence of any
arrangements and Mr. Otero's motive for testifying. The undisputed testimony at
trial was contrary to Defendant's claims. We therefore affirm the trial court's
rejection of this claim; the court did not abuse its discretion in finding that
Mr. Otero was not a government agent and in admitting his testimony.
b. Statement against Penal Interest by Avalos.
{8} Defendant also
objects to the testimony of another witness, William Marckstadt,
{*763} who came forward after Defendant's
first trial. Marckstadt shared a cell with Avalos in the Dona Ana County
Detention Center when he heard Avalos make incriminating statements to another
group of prisoners about having taken turns with another man in raping and
stabbing a female college student. In a pretrial motion, Defendant tried to
have these statements excluded, arguing (1) that Mr. Marckstadt was not a
reliable witness and (2) the statements were inadmissible hearsay which
violated his right to confrontation. The trial court ruled that the statements
by Avalos were admissible as statements against penal interest under Rule
11-804(B)(3) NMRA 2002, an exception to the hearsay rule that applies when the
declarant is unavailable.
{9} On appeal,
Defendant renews the claims that he made to the trial court. First, he contends
that the trial court erred in admitting the testimony claiming that Mr.
Marckstadt was a jailhouse informant and, therefore, was an inherently
unreliable witness. In support of his proposition, Defendant refers us to cases
from other jurisdictions. However, those cases are based on statutes which
differ significantly from our own, so Defendant's reliance upon them is
misplaced.
See State v. Dunsmore,
119 N.M. 431, 434,
891 P.2d 572, 575
(determining that "reliance on law from other jurisdictions is misplaced
when those jurisdictions are governed by different statutes"). Even if we
were to accept Defendant's characterization of Mr. Marckstadt, we do not agree
that the testimony of a fellow prisoner is inherently unreliable. See
State
v. Reyes, 2002-NMSC-24, P39,
132 N.M. 576,
52 P.3d 948; 2002-NMSC-24,
132
N.M. 576,
52 P.3d 948 (recognizing that "'jailhouse confessions to
cellmates are also trustworthy and admissible under Rule 804(b)(3)'")
(quoting
United States v. Westmoreland, 240 F.3d 618, 628 (7th Cir.
2001)). More importantly, as this Court has previously stated, the witness's
credibility is irrelevant to the question of the admissibility of Avalos's
statement. "The hearsay rule is not concerned with the veracity of the
testifying witness."
State v. Toney, 2002-NMSC-3, P5, 31 N.M. 558,
40 P.3d 1002;
accord State v. Williams,
117 N.M. 551, 561,
874 P.2d 12,
22 (1994). Mr. Marckstadt testified in court; Defendant was afforded an
opportunity to test the witness's credibility during cross-examination. He was
cross-examined extensively by Defendant about his credibility and about
Avalos's statement.
{10} Defendant's
second claim of error is that the admission of Avalos's statement through the
testimony of Mr. Marckstadt violated his right of confrontation. In general,
there is no Confrontation Clause problem in admitting a hearsay statement if
the declarant is unavailable and the statement bears adequate indicia of
trustworthiness.
Gonzales, 1999-NMSC-33, P17,
128 N.M. 44,
989 P.2d 419.
Defendant does not challenge the unavailability of Avalos. The requisite
indicia of trustworthiness may be found either by determining that the hearsay
exception is a firmly rooted one or that the circumstance surrounding the
making of the statement "bears adequate indicia of reliability."
Ohio
v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531, 17 Ohio Op.
3d 240 (1980) (quotation marks omitted). This Court previously has held that
the penal interest exception to the hearsay rule is "a firmly rooted
hearsay exception for purposes of satisfying the indicia of reliability
requirement of the Confrontation Clause."
Torres, 1998-NMSC-52,
P32,
126 N.M. 477,
971 P.2d 1267; accord
Gonzales, 1999-NMSC-33, P19,
128 N.M. 44,
989 P.2d 419. We have subsequently reaffirmed that, in New Mexico,
a statement against penal interest within the meaning of Rule 11-804(B)(3) is a
firmly rooted exception to the hearsay rule.
Reyes, 2002-NMSC-24, P40,
132 N.M. 576,
52 P.3d 948;
Toney, 2002-NMSC-3, PP10-11,
131 N.M. 558,
40
P.3d 1002;
State v. Martinez-Rodriguez, 2001-NMSC-29, P27,
131 N.M. 47,
33 P.3d 267,
cert. denied, 122 S. Ct. 1317 (2002);
Gonzales,
1999-NMSC-33, P19,
128 N.M. 44,
989 P.2d 419. The trial court did not err in
admitting these statements, and their admission did not violate Defendant's
right of confrontation.
{11} In his remaining
challenge to the trial court's evidentiary rulings, Defendant argues that the
trial court abused its discretion in denying the admission of several
{*764} statements attributed to Avalos. During
the cross-examination of an acquaintance of Avalos, Defendant asked the trial
court for a ruling on whether four statements allegedly made by Avalos in the
presence of the witness could be introduced as statements against penal
interest. After a proffer by Defendant on the content of the statements, the
trial court ruled that only one of the statements would be admissible as a
statement against penal interest. The court concluded that the others were not
admissible as statements against penal interest, were not relevant, and were
not admissible under Rule
11-403 NMRA 2002. At that point, Defendant apparently
decided not to pursue the matter and did not question the witness further. On
appeal, Defendant does not support this assertion of error with either argument
or authority. "We have long held that to present an issue on appeal for
review, an appellant must submit argument
and authority as required by
rule."
In re Adoption of Doe,
100 N.M. 764, 765,
676 P.2d 1329,
1330 (1984);
accord State v. Hernandez,
104 N.M. 268, 274,
720 P.2d 303,
309 ("A contention on appeal is deemed abandoned if appellant fails to
cite authority or to explain the claim."). Therefore, we do not address
this claim.
2. Defendant's Statements to the Police.
{12} Defendant filed a
pretrial motion to suppress several statements he had given to the police,
arguing that some of the statements were involuntary and that others violated
his Sixth Amendment right to counsel because his attorney was not present when
he gave them. After an evidentiary hearing and briefing by the parties, the
trial court denied the motion. On appeal, Defendant challenges only the
admission of the statement given in San Diego. He contends that the trial court
erred in its ruling because Defendant's right to counsel under the Sixth
Amendment had attached. Defendant also asserts that his waiver of the right to
counsel before the interview in San Diego was not valid. Defendant retained an
attorney in January, before the filing of any criminal charges. He was indicted
on February 17 for one count of tampering with evidence and one count of
solicitation. The police interrogated Defendant on March 17.
{13} At the
evidentiary hearing, the State presented evidence from two Las Cruces Police
Department detectives who testified about the statements that are being
challenged on appeal. The officers testified that after Defendant was arrested
on March 17, 1998, they flew that day to California and went to the San Diego
Detention Center to interview him, arriving around 5:00 p.m. In accord with the
requirements of
Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694,
86 S. Ct. 1602, 10 Ohio Misc. 9, 36 Ohio Op. 2d 237 (1966), Defendant was
advised of his constitutional rights, including the right to remain silent and
the right to the presence of an attorney. The detectives stated that they read
him his
Miranda rights at the beginning of the interview and before any
conversation began. Defendant told them that he understood his rights, signed a
waiver of rights, and said that he would speak with them. The interview with
the detectives lasted approximately one and a half hours. They testified that
Defendant had been willing to speak with them, understood the discussion, and
described his responses as being coherent and cooperative. The detectives
testified that Defendant neither indicated that he wanted to speak with an
attorney nor asked to make any telephone calls. One of the detectives also
testified that he was aware that Defendant had been represented by an attorney
earlier in the investigation. When Defendant fled from New Mexico in February,
the attorney had been contacted to see if he knew where Defendant had gone and
whether he would return voluntarily. At that time, the attorney maintained that
he did not know Defendant's whereabouts and had not been in touch with him. One
of the detectives testified that Defendant only mentioned speaking with an
attorney once when one of the detectives brought up taking a polygraph test.
Defendant responded that he would need to speak to his father and an attorney
before deciding whether to take the test. Defendant waived extradition and
returned to Las Cruces with the detectives on March 20, 1998.
{14} After their
return, Defendant voluntarily accompanied the detectives that day to
{*765} the mesa region outside the city in an
unsuccessful attempt to locate the victim's body. After the search, Defendant
asked to speak with his father, which he was permitted to do, but did not ask
to speak to an attorney. The following day, when one of the detectives took
Defendant to visit his parents, the attorney, in response to a call from one of
Defendant's parents, arrived shortly thereafter and asked to speak with
Defendant alone. After that meeting, the attorney told the detective, in
Defendant's presence, not to have any further conversations with Defendant.
When Defendant and the detective returned to the officer's car, Defendant told
the detective that he still wanted to help the officers find the victim. They
continued the search that afternoon accompanied by a friend of Defendant. The
State also presented a recording of a telephone call made by Defendant to his
father from the Dona Ana Detention Center
3
in which Defendant assured his father that the San Diego statements were made
voluntarily.
{15} Defendant is
correct that his Sixth Amendment right to counsel attached once he was
indicted, specific to the offenses for which he was charged.
See Texas v.
Cobb, 532 U.S. 162, 163, 149 L. Ed. 2d 321, 121 S. Ct. 1335 (2001). Thus,
Defendant's Sixth Amendment right to counsel attached to the charges of
tampering with evidence and solicitation.
See State v. Aragon,
109 N.M.
632, 635,
788 P.2d 932, 935 (stating that the right ordinarily attaches when
adversarial judicial proceedings have been initiated, "by way of formal
charge, preliminary hearing, indictment, information, or arraignment").
"Once the right to counsel has attached and has been asserted, the state
must honor that assertion."
Id. (relying upon
Moulton, 474
U.S. at 170);
accord Moran v. Burbine, 475 U.S. 412, 428, 89 L. Ed. 2d
410, 106 S. Ct. 1135 (1986) ("It is clear, of course, that, absent a valid
waiver, the defendant has the right to the presence of an attorney during any
interrogation occurring after the first formal charging proceeding, the point
at which the Sixth Amendment right to counsel initially attaches.").
{16} In
Michigan v.
Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), the United
States Supreme Court held that if a defendant's Sixth Amendment right to
counsel has attached, and if a defendant has asserted the right, the police
cannot thereafter initiate an interrogation regarding the specific crimes
charged and "any waiver of the defendant's right to counsel for that police-initiated
interrogation is invalid."
Id. at 636.
Michigan v. Jackson thus imposes two
requirements for the application of the . . . rule in the Sixth Amendment
context. First, the right to counsel must have attached as to the offense in
question at the time of the interrogation. Second, the defendant must have
asserted the right to counsel at some point after the right attached and before
the interrogation began.
United States v. Avants, 278 F.3d 510, 515 (5th Cir.
2002), cert. denied, 153 L. Ed. 2d 854, 122 S. Ct. 2683 (2002). We
believe the rationale of the United States Supreme Court is instructive:
Petitioner, however, at no time sought to exercise his
right to have counsel present. The fact that petitioner's Sixth Amendment right
came into existence with his indictment, i.e., that he had such a right at the
time of his questioning, does not distinguish him from the preindictment
interrogatee whose right to counsel is in existence and available for his [or
her] exercise while he [or she] is questioned. Had Petitioner indicated he
wanted the assistance of counsel, the authorities' interview with him would
have stopped, and further questioning would have been forbidden (unless
petitioner called for such a meeting).
Patterson v. Illinois, 487 U.S. 285, 290-91, 101 L.
Ed. 2d 261, 108 S. Ct. 2389 (1988).
{17} {*766} Because Defendant's right attached upon
indictment, we first address whether Defendant asserted his Sixth Amendment
right. As described above, Defendant did not assert his right to counsel after
the right attached and prior to the interrogation. Defendant's decision to
retain counsel before he was indicted is not relevant to this Sixth Amendment
inquiry. Defendant's Sixth Amendment right to counsel had not attached at the
time he obtained counsel, and this right "cannot be invoked once for all
future prosecutions for it does not attach until prosecution is
commenced."
McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d
158, 111 S. Ct. 2204 (1991). "
McNeil forecloses the argument that
the Sixth Amendment right to counsel may be invoked before indictment."
United
States v. Muick, 167 F.3d 1162, 1165 (7th Cir. 1999). Because Defendant was
charged by indictment, Defendant's first opportunity to assert his Sixth
Amendment right, like the defendant in
Patterson, arose at the time that
the Las Cruces police sought to interview him in San Diego. Under these
circumstances, Defendant was in the same situation as a "preindictment
interrogatee whose right to counsel is in existence and available for his [or
her] exercise while he [or she] is questioned."
Patterson, 487 U.S.
at 291.
{18} In
Patterson,
487 U.S. at 291, the Supreme Court held that
Jackson does not
bar[] an accused from making an initial
election as to whether he [or she] will face the State's officers during
questioning with the aid of counsel, or go it alone. If an accused 'knowingly
and intelligently' pursues the latter course, we see no reason why the
uncounseled statements [the accused] then makes must be excluded at his [or
her] trial.
During the interview in San Diego, Defendant did not indicate
to the officers that he wished to communicate with them only through counsel.
Therefore, we conclude that Defendant did not assert his Sixth Amendment right
to counsel. See United States v. Spruill, 296 F.3d 580, 587 (7th Cir.
2002) (stating that "the assertion of the right by an affirmative request
for counsel is a necessary step in Sixth Amendment jurisprudence").
{19} Because we
conclude that Defendant did not assert or invoke his attached Sixth Amendment
right to counsel on the indicted charges, we must determine whether he validly
waived his Sixth Amendment right.
See Patterson, 487 U.S. at 292.
"A waiver is ordinarily an intentional relinquishment or abandonment of a
known right or privilege" which must be made in a knowing and voluntary
manner.
Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct.
1019 (1938). "The determination of whether there has been an intelligent
waiver of the right to counsel must depend, in each case, upon the particular
facts and circumstances surrounding that case, including the background,
experience, and conduct of the accused."
Id. "In response to a
defendant's motion to suppress a statement made to police during a custodial
interrogation, the State must demonstrate by a preponderance of evidence that a
defendant knowingly, intelligently, and voluntarily waived his or her
constitutional rights under
Miranda."
State v. Barrera,
2001-NMSC-14, P22,
130 N.M. 227,
22 P.3d 1177. A reviewing court evaluates the
totality of circumstances to determine "whether a waiver of rights is
knowing, intelligent, and voluntary."
2001-NMSC-14 at P23. The
totality of the circumstances tests requires the reviewing court to evaluate
the personal characteristics of the accused, including his or her mental and
physical condition, background, experience, and conduct, along with the conduct
of the police.
State v. Martinez, 1999-NMSC-18, P14,
127 N.M. 207,
979
P.2d 718. "As a general matter, . . . an accused who is admonished with
the warnings prescribed by this Court in [
Miranda ] has been
sufficiently apprised of the nature of his [or her] Sixth Amendment rights, and
of the consequences of abandoning those rights, so that his [or her] waiver on
this basis will be considered a knowing and intelligent one."
Patterson,
487 U.S. at 296. "It is our view that whatever warnings suffice for
Miranda
's purposes will also be sufficient in the context of postindictment
questioning."
Id. at 298.
{20} {*767} The trial court concluded that
Defendant's waiver of his right to counsel was voluntary. We affirm that
determination. The record shows that Defendant understood his constitutional
rights and the consequences of waiving those rights. In addition to having been
advised of them before the interview, he had received explanations of his
Miranda
rights previously on several occasions during the investigation. Defendant was
twenty-two years of age and "was, thus, old enough to comprehend
Miranda
warnings and the consequences of waiving his rights."
Martinez,
1999-NMSC-18, P22,
127 N.M. 207,
979 P.2d 718 (holding that seventeen-year-old
defendant had voluntarily waived his
Miranda rights). Defendant did not
ask to see any attorney before or after receiving his
Miranda rights, or
in any way indicate that he did not want to speak to the detectives during the
time they were together from March 17 through March 21. As to the conduct of
the officers, the record shows no evidence of coercion or other overreaching on
the part of the detectives that would have caused Defendant to waive his right
to counsel involuntarily. One of the detectives was known to Defendant, having
spoken with him at an earlier stage of the investigation in the victim's death.
Defendant makes no claim that threats, promises, or physical abuse were used to
compel him to submit to the interview without counsel.
{21} Defendant also
appears to argue that the right to counsel had been asserted by his attorney.
Notwithstanding Defendant's claims, the constitutional rights to counsel and to
remain silent are personal to a defendant. The intent is to protect the rights
of a defendant, and he or she may waive that benefit.
See Adams v. United
States ex rel. McCann, 317 U.S. 269, 280, 87 L. Ed. 268, 63 S. Ct. 236
(1942) (holding that the defendant could constitutionally waive the assistance
of counsel, the Court recognized that if a defendant were not able to
relinquish the right to counsel, the result would be "to imprison a man
[or woman] in his privileges and call it the Constitution"). The right
may, as a general principle, be waived by the client without notice to or
consultation with counsel.
Michigan v. Harvey, 494 U.S. 344, 353, 108 L.
Ed. 2d 293, 110 S. Ct. 1176 (1990) ("Although a defendant may sometimes
later regret his [or her] decision to speak with police, the Sixth Amendment
does not disable a criminal defendant from exercising his [or her] free
will."). A custodial interrogation must cease until an attorney is present
only if the individual states that he or she wants an attorney.
Moran,
475 U.S. at 433 n.4;
accord Cobb, 532 U.S. at 172 n.2 ("The Sixth
Amendment right to counsel is personal to the defendant and specific to the
offense.");
Muick, 167 F.3d at 1166 ("We are also cognizant of
the Supreme Court's holding that only the accused may invoke the
Miranda
right to counsel. This principle alone dictates that the attorney's letter and
phone call were insufficient to invoke the
Miranda right to counsel.
Only [the defendant] could invoke his
Miranda right to counsel.")
(citations omitted);
Coyazo, 1997-NMCA-29, P20,
123 N.M. 200,
936 P.2d
882 (holding that, although right to counsel had attached to one offense, the
incriminating statements about as yet uncharged crimes were admissible, relying
upon
Moulton, 474 U.S. at 180 n.16, which held that "incriminating
statements pertaining to other crimes, as to which the Sixth Amendment right
has not yet attached, are, of course, admissible at a trial of those
offenses."
{22} We conclude that
because a defendant's right to counsel is personal to him, Defendant was free
to waive this right although his attorney had instructed the investigating
officers not to talk to him.
See Chandler v. State, 426 So. 2d 477, 480
(Ala. Crim. App. 1982) ("The fact that a defendant has legal counsel does
not, as a per se rule, prohibit law enforcement officials from procuring a
statement of any kind from the appellant, without first giving notice to and
receiving consent from his counsel.");
Marr v. State, 134 Md. App.
152, 759 A.2d 327, 338 (Md. Ct. Spec. App. 2000) (stating that the defendant's
right to counsel was personal to him and he may waive this right although his
attorney has instructed the investigating officers not to talk to him),
cert.
denied, 362 Md. 623, 766 A.2d 147 (Md. 2001);
State v. Peterson, 344
N.C. 172, 472 S.E.2d 730, 733-34 (N.C.
{*768}
1996) (reiterating that because right to counsel is personal to the
defendant, he could waive his rights and speak to investigating officers
despite his attorney's demand to be present during any interrogation and his
telling the officers not to talk to his client);
State v. Hanson, 136
Wis. 2d 195, 401 N.W.2d 771, 778 (Wis. 1987) ("Since the right to counsel
and the right to remain silent are given by the constitution to the defendant,
he [or she] alone can exercise those rights."). As Defendant's attorney
acknowledged at the evidentiary hearing in this case, the right to counsel was
Defendant's right to invoke, not the attorney's. The attorney also stated that
he was aware that a defendant can voluntarily waive that right. Although an
attorney may advise a defendant, the attorney cannot control the defendant's
own exercise of the defendant's constitutional rights. If Defendant's waiver of
his right to counsel is otherwise voluntary, knowing, and intelligent, his
attorney's wishes to the contrary are irrelevant. Defendant does not argue that
his statements should have been suppressed based on the Fifth Amendment right
to counsel. We nonetheless note that the personal nature of this right prevents
Defendant's counsel's preindictment contacts with authorities from implicating
Edwards
v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). We also
note that "the Fifth Amendment right to counsel safeguarded by
Miranda
cannot be invoked when a suspect is not in custody, even if in anticipation of
future custodial interrogation."
United States v. Wyatt, 179 F.3d
532, 537 (7th Cir. 1999) (citation omitted);
accord United States v.
Bautista, 145 F.3d 1140, 1147 (10th Cir. 1998) (stating that "in order
to implicate the
Miranda -
Edwards right to counsel prophylaxis,
both a custodial situation and official interrogation are required").
{23} After reviewing
the totality of the circumstances, we conclude that Defendant did not assert
his right to counsel but rather waived the right. The waiver was voluntarily,
knowingly, and intelligently made. The State showed that Defendant was given
his
Miranda warnings in both written and oral form. Defendant verbally
acknowledged that he understood his rights and signed a waiver of rights which
indicated that he understood his constitutional rights. In a telephone call to
his father several days after the interview, and after speaking with an
attorney, Defendant reaffirmed that the statement he gave in San Diego was
voluntary. We hold that the trial court properly denied Defendant's motion to
suppress.
{24} In a pretrial
motion for discovery, Defendant asked that the State be required to obtain
information from numerous law enforcement agencies, including the FBI, the DEA,
the New Mexico State Police, and several police departments and sheriff's
offices, as to whether Mr. Otero and other witnesses might have worked as
confidential informants for those agencies. Defendant argued in the discovery
request and at the hearing on the motion that he needed the information to use
as impeachment evidence to attack Mr. Otero's credibility. The State questioned
whether such information even existed. Although the trial court had concluded
as a matter of law that Mr. Otero was not a confidential informant in this
case, it also stated that if such information existed it might be useful to
Defendant for impeachment purposes. The court directed the State to request the
information and, if necessary, it would conduct an in camera review of any
information the State regarded as sensitive. Before trial, Mr. Otero was made
available to Defendant for interviews. At trial, the Court permitted Defendant
to question Mr. Otero about matters that related to his credibility as a
witness, including his background as a confidential informant, his mental
health, his legal difficulties with child support, and any inconsistencies in
previous statements.
{25} The granting or
denial of discovery in a criminal case "is a matter peculiarly within the
discretion of the trial court" which we review under an abuse of
discretion standard.
State v. Bobbin,
103 N.M. 375, 377,
707 P.2d 1185,
1187 . "Criminal defendants do not have a constitutional right to
discovery."
Id. at 378, 707 P.2d at 1188 (relying upon
Weatherford
v. Bursey, 429 U.S. 545, 559, 51 L. Ed. 2d 30, 97 S. Ct. 837 (1977));
accord
United States v. Ruiz, 536 U.S. 622, 122 S. Ct. 2450, 2455,
{*769} 153 L. Ed. 2d 586 (2002). On appeal,
Defendant contends that he was prejudiced because additional discovery about
possible dealings Mr. Otero may have had with the government might have been
useful in attempting to establish that an agreement existed between Mr. Otero
and the State to deliberately elicit information from Defendant. We are not
persuaded by this contention for two reasons. First, in his brief Defendant
does not indicate that this claim of prejudice was raised with the trial court.
The Court will not search the record to see if an issue was preserved when
Defendant does not refer the Court to appropriate transcript references.
See
Rule
12-216(A) NMRA 2002;
State v. Rojo, 1999-NMSC-1, P44,
126 N.M. 438,
971 P.2d 829. Second, even if we were to accept Defendant's current argument,
the question of whether additional discovery "[might] have benefitted the
defense is pure speculation."
See Bobbin, 103 N.M. at 378, 707 P.2d
at 1188. As discussed above, Mr. Otero testified about his role as a
confidential informant with the Albuquerque police department, and his
credibility was challenged repeatedly on this issue during cross-examination.
On appeal, Defendant has not made a showing that more information would have
helped his defense. The burden is upon the appellant to establish prejudice.
Id.
;
State v. Perrin,
93 N.M. 73, 75,
596 P.2d 516, 518 (1979). Defendant
having failed to do so, we hold that the trial court did not abuse its
discretion in its handling of Defendant's discovery motion.
C. Motion for a New Trial.
{26} After his
conviction, Defendant filed a motion for a new trial, under Rule
5-614 NMRA
2002, on a claim of newly discovered evidence. Motions for new trials on the
basis of newly discovered evidence are not encouraged.
State v. Shirley,
103 N.M. 731, 733,
713 P.2d 1, 3 . The probability of the new evidence changing
a verdict is a question "addressed to the sound discretion of the trial
court."
Id. The denial of a motion for a new trial is reviewed on
appeal for a "manifest abuse of discretion."
State v. Chavez,
98 N.M. 682, 683,
652 P.2d 232, 233 (1982) (quoted authority omitted). Denial
of a motion for a new trial will only be reversed if the ruling of the trial
court is arbitrary, capricious, or beyond reason.
State v. Litteral,
110
N.M. 138, 144,
793 P.2d 268, 274 (1990). For a motion for a new trial to be
granted on the basis of newly discovered evidence, Defendant had the burden of
proving that the evidence met all the following six requirements:
(1) it will probably change the result if a new trial
is granted; (2) it must have been discovered since the trial; (3) it could not
have been discovered before the trial by the exercise of due diligence; (4) it
must be material; (5) it must not be merely cumulative; and (6) it must not be
merely impeaching or contradictory.
State v. Sosa, 1997-NMSC-32, P16, 123 N.M. 564, 943
P.2d. 1017 (quoted authority omitted).
{27} Defendant's
evidence was presented at a hearing on the motion in which Deborah Innis, a
fellow inmate of Mr. Otero's, testified regarding what he had told her about the
case. Two officers from the Las Cruces Police Department were also called by
Defendant to testify at the hearing. For the most part, their testimony
contradicted that of Ms. Innis. At the conclusion of evidence, the trial court
stated that it had reservations about the credibility of Ms. Innis' testimony.
{28} In denying
Defendant's motion, the trial court stated that new evidence must be material
and not merely impeaching or contradictory.
Sosa, 1997-NMSC-32, P16,
123
N.M. 564,
943 P.2d 1017. The trial court determined that even if the testimony
of Ms. Innis were to be credited, the evidence presented was not material under
State v. Chavez,
116 N.M. 807, 811-13,
867 P.2d 1189, 1193-95 , which
defined the test for materiality as follows:
The evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different. A "reasonable probability"
is a probability sufficient to undermine confidence in the outcome.
Id. at 812, 867 P.2d at 1194 (quoting from United
States v. Bagley, 473 U.S. 667, 682, {*770}
105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)); accord State v. Fero, 107
N.M. 369, 371, 758 P.2d 783, 785 (1988) (employing the Bagley definition
to determine that the alleged newly discovered evidence was not material). On
appeal, Defendant, as we understand his argument, is claiming that the trial
court erred because the testimony was material. He asserts that if the evidence
had been believed by the jury, it would undercut Mr. Otero's testimony that the
State had not made a deal with him or provided other assistance in exchange for
his testimony. However, this was an issue that Defendant had already explored
extensively at trial. One of the requirements for newly discovered evidence is
that "it must not be merely impeaching or contradictory." Defendant
does not explain how this evidence would "have added anything to the
information already before the jury" and would have consequently
undermined the outcome. Chavez, 116 N.M. at 813, 867 P.2d at 1195. At
best, the testimony of Ms. Innis might have challenged the credibility of Mr.
Otero, but it had no relevance to Defendant's guilt or innocence.
{29} The trial court
concluded that even without Mr. Otero's testimony, there would have been ample
evidence remaining to support Defendant's convictions so that the presented
evidence would not probably change the result if a new trial were granted. We
agree. The court correctly determined that the testimony of Ms. Innis would not
have changed the result if a new trial had been granted, and we affirm that
decision. The evidence presented by Defendant failed to meet any of the
required standards for granting a new trial on the basis of newly discovered
evidence.
See Fero, 107 N.M. at 372, 758 P.2d at 786. The trial court's
decision was not arbitrary, capricious, or beyond reason.
{30} Defendant also
claims that the trial court abused its discretion by limiting his questioning
of a witness during the motion hearing. During direct examination, Defendant
asked one of the officers whether Mr. Marckstadt had any medical problems or
had previously been a confidential informant in the Las Cruces area. The State
objected because this issue had not been raised in Defendant's motion for a new
trial. The trial court questioned Defendant about whether notice of the issue
had been provided to the State and, upon hearing that Defendant had not done
so, sustained the objection. Defendant later made an offer of proof on the evidence
stating that it went to the credibility of Mr. Marckstadt; however no
allegation was made that Mr. Marckstadt had been a confidential informant when
he talked to Avalos in the detention center.
{31} On appeal,
Defendant contends the evidence may have shown that Mr. Marckstadt had once
served as a confidential informant and, if so, would have affected the jury's
view of his credibility. He claims that the trial court abused its discretion
in limiting Defendant's questions to the detective. We disagree. The admission
of evidence is entrusted to the discretion of the trial court and will not be
disturbed absent a showing of abuse of that discretion and that an error in the
admission of evidence was prejudicial.
See State v. Jett,
111 N.M. 309,
312,
805 P.2d 78, 81 (1991). Moreover, it is within the court's discretion to
control the order of witnesses, mode of interrogating witnesses, and
presentation of evidence.
See Rule
11-611(A) NMRA 2002. The trial court
did not abuse its discretion in not allowing Defendant to pursue an evidentiary
issue when he had given no notice to the court or State that he intended to
raise the issue. Further, Defendant cannot show that he was prejudiced by the
trial court's ruling. Based on Defendant's offer of proof, the alleged newly
discovered evidence was "merely impeaching or contradictory" and
therefore contrary to the requirements for establishing the kind of newly
discovered evidence that would warrant a new trial.
See Chavez, 116 N.M.
at 813, 867 P.2d at 1195 (observing that the offered evidence would have been
cumulative of impeachment testimony already offered at trial and "absent
the evidence's impeachment value it could not have any bearing on Defendant's
innocence").
{32} In April 1998,
Defendant was indicted in the victim's murder for deliberate intent first
degree murder, conspiracy to
{*771} commit
first degree murder, four counts of tampering with evidence, three counts of
conspiracy to commit tampering with evidence, and solicitation to commit
tampering with evidence. On July 23, 1999, the jury in Defendant's first trial
was unable to reach a verdict, and Defendant moved for a mistrial which the
trial court granted as to all charges on the basis of manifest necessity. In
August 1999, the State obtained a second indictment against Defendant to
include the additional charges of felony murder, kidnapping, and criminal
sexual penetration. Defendant filed a motion to dismiss the second indictment
that the trial court denied. On appeal, Defendant challenges the second
indictment, arguing that charging additional felonies for the same incident in
addition to the original charges constitutes double jeopardy. Defendant's claim
is without merit.
{33} Defendant is
correct that the United States and New Mexico Constitutions both contain
double-jeopardy clauses guaranteeing that no person shall be "twice put in
jeopardy" for the same offense. U.S. Const. amend. V;
N.M. Const. art. II,
§ 15. However, the principles of double jeopardy "do not prohibit retrying
a defendant, even over the defendant's objections, after a mistrial that was
justified by 'manifest necessity.'"
State v. Reyes-Arreola,
1999-NMCA-86, P7,
127 N.M. 528,
984 P.2d 775 (quoting
Arizona v. Washington,
434 U.S. 497, 505-06, 54 L. Ed. 2d 717, 98 S. Ct. 824 (1978)). "The
classic case of such necessity is a hung jury."
Id. "It is
well established in New Mexico that double jeopardy principles are not
implicated when a defendant is brought to trial a second time following a
mistrial in which the jury could not reach a verdict on a particular
count."
State v. Martinez, 1995-NMSC-73,
120 N.M. 677, 678,
905
P.2d 715, 716 (1995) (concluding that there was no double jeopardy violation
when the defendant was retried after a hung jury). "The second trial is
considered a continuation of the first, and the defendant is thus placed in
jeopardy only once."
Id.
{34} Nor could
Defendant have been "twice put in jeopardy" by the second indictment;
he had not previously faced those charges. In
State v. Stevens,
96 N.M.
627, 629-30,
633 P.2d 1225, 1227-28 (1981), this Court determined that the
pretrial actions of the prosecutor who filed a series of three indictments,
each containing more serious charges against the defendant, were a proper
exercise of the charging discretion of the prosecutor. "A prosecutor
should remain free before trial to exercise the broad discretion entrusted to
him [or her] to determine the extent of the societal interest in prosecution.
An initial decision should not freeze future conduct."
United States v.
Goodwin, 457 U.S. 368, 382, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982);
see
State v. Sena,
99 N.M. 272, 273,
657 P.2d 128, 129 (1983) (holding that the
district attorney, after re-evaluating a case charged as second degree murder,
was not precluded from resubmitting the case to the grand jury for indictment
as first degree murder). Similarly, we conclude that the prosecutor's obtaining
a second indictment with additional charges was correct; the trial court did
not err in denying Defendant's motion to dismiss. Moreover, in this case, as in
Stevens, the indictments "were obtained through a grand jury, which
traditionally has afforded some protection against improper prosecutorial
activity. The present case presents no indication that the grand jury procedure
inadequately protected the defendant."
Stevens, 96 N.M. at 631, 657
P.2d at 1229.
{35} We hold that the
trial court did not err in its evidentiary and discovery rulings and acted
within its discretion in admitting evidence of the statement against penal
interest by the co-defendant and an admission by Defendant. The trial court did
not abuse its discretion in denying Defendant's motion to suppress because
Defendant did not assert and validly waived his right to counsel before making
the statements to the police. The motion for a new trial was properly denied
because Defendant's evidence was unlikely to change the trial outcome and thus
did not meet the standard for granting a new trial. The indictment on new
charges before the second trial was a proper exercise of the charging
discretion of the prosecutor and did not implicate the Double Jeopardy Clause.
{*772} We affirm Defendant's convictions on
all charges.
GENE E. FRANCHINI, Justice
PATRICIO M. SERNA, Chief Justice
PAMELA B. MINZNER, Justice
PETRA JIMENEZ MAES, Justice
1
This Court has affirmed the convictions of Jesse Avalos for felony murder,
kidnapping, criminal sexual penetration, tampering with evidence, and
conspiracy to commit tampering with evidence in a separate unpublished
decision.
2
Although Defendant refers to the New Mexico Constitution, he does not argue
that our state constitution should be interpreted more broadly than the federal
in terms of either claim. See State v. Gomez, 1997-NMSC-6, PP22-23, 122
N.M. 777, 932 P.2d 1 (describing preservation requirements for a state
constitutional claim). We therefore do not consider these claims.
3
One of the detectives testified that there was a sign by the telephone at the
detention center that stated that telephones calls would be recorded. He also
stated that Defendant had indicated in other telephone calls that he was aware
that he was being recorded. See generally State v. Coyazo, 1997-NMCA-29,
P16, 123 N.M. 200, 936 P.2d 882 (recognizing that monitoring of prison
telephones was for security and holding that because the defendant had
understood his calls were being monitored, it was proper for the trial court to
find consent).