STATE V. EVANS, 2009-NMSC-027, 146 N.M.
319, 210 P.3d 216
STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JOSEPH EVANS, Defendant-Appellant.
Docket No. 30,443/30,454
consolidated
SUPREME COURT OF NEW MEXICO
2009-NMSC-027, 146 N.M. 319, 210 P.3d 216
INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF MCKINLEY
COUNTY, Robert A. Aragon, District Judge.
Released for Publication June 23, 2009.
Hugh W. Dangler, Chief Public Defender,
Michael L. Rosenfield, Assistant Public Defender, Albuquerque, NM, for
Appellant.
Gary K. King, Attorney General, Martha
Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Appellee.
RICHARD C. BOSSON, Justice. WE CONCUR:
EDWARD L. CHÁVEZ, Chief Justice, PATRICIO M. SERNA, Justice, PETRA JIMENEZ
MAES, Justice, CHARLES W. DANIELS, Justice.
AUTHOR: RICHARD C. BOSSON.
{1} This Opinion
addresses two interlocutory appeals, which we hereby consolidate on our own
motion. Joseph Evans (“Defendant”) appeals the district court’s denial of his
motion to suppress his confession, which he argues was involuntary. The State
appeals the district court’s suppression of physical evidence stemming from a
search warrant which the district court concluded lacked probable cause. We affirm
the district court’s decision not to suppress the confession and reverse as to
the suppression of the physical evidence. This case is remanded to the district
court for further proceedings.
{2} Police discovered
Felicia Penaloza’s body partially wrapped in a fitted, white bed sheet, lying
face-down in an arroyo northwest of Gallup on September 12, 2005. She was 16
years old. The Office of the Medical Investigator determined that she had been
asphyxiated by a ligature around her neck, and by a black plastic trash bag
tied over her head. The plastic bag was cinched around her neck with an
“electrical type wire,” according to an affidavit that police filed in support
of an application for a search warrant.
{3} According to the
same affidavit, police interviewed Seferino Griego three days after discovering
Penaloza’s body. Griego inculpated Defendant in the crime. Police also
interviewed Defendant’s mother, Sheree Thornton, whose account gave police
further reason to believe Defendant may have been involved in the crime. We
will address the statements of Griego and Thornton in detail below. Thornton
also allowed New Mexico State Police Agent Patrick Ness to view the basement of
her house where Defendant apparently kept a bedroom. Agent Ness saw exposed
electrical wiring, sheets, two mattresses without linen, and a number of
electrical wires of different sizes and colors. Police then interviewed a
McKinley County Probation Officer who overheard Griego accuse Defendant of
killing Griego’s “girlfriend,” and Defendant later say, “I guess I am a
murderer.”
{4} On September 17,
2005, New Mexico State Police Agent Henrietta Soland applied to McKinley County
Magistrate Judge John Carey for a warrant to search Thornton’s house.
Magistrate Judge Carey granted the application, and police executed the search
warrant on the same day, finding, among other things, a piece of an electrical
cord which police claim matched the cord found around Victim’s neck.
{5} The following day
Agent Ness, who had not participated in the execution of the search warrant,
and Agent Soland interviewed Defendant at the McKinley County Adult Detention
Center. Defendant had been detained there for 13 days on charges unrelated to
the present case. In a 90-minute interrogation, conducted in the afternoon in a
visiting room at the detention center, Defendant ultimately acknowledged
culpability in Victim’s death. His story changed considerably throughout the
course of the interrogation. He initially denied any involvement in the death,
saying that he was merely present at his house when Victim was there. Then he
denied killing her, but said he put the bag over her head after she was dead.
Then he said he was with her when she “quit moving.” And finally, he claimed he
accidentally strangled her, although it is unclear in his testimony that he
confessed to strangling her in the same manner as described in the medical
examiner’s autopsy report. Throughout the second half of the interrogation,
Agent Ness made several statements which Defendant claims
were
impermissibly coercive.
{6} The District
Attorney for the Eleventh Judicial District charged Defendant by criminal
information on November 29, 2005 with an open count of murder in connection
with Victim’s death. The information also charged Defendant with one count of
kidnapping and one count of tampering with evidence. Defendant waived his right
to a preliminary hearing.
{7} Both of the appeals
in this case are before this Court pursuant to
State v. Smallwood,
2007-NMSC-005, ¶ 11,
141 N.M. 178,
152 P.3d 821, where we held that this Court
has jurisdiction over interlocutory appeals in which a criminal defendant “may
possibly be sentenced to life imprisonment or death.”
{8} The first appeal,
by the State, challenges the district court’s suppression of the physical
evidence obtained in the search of Thornton’s house. The district court
overturned Magistrate Judge Carey’s finding of probable cause, but offered no
explanation for its ruling, except for “the lack of probable cause as portrayed
in the affidavit.” The State argues that the affidavit provided the magistrate
with a sufficient factual basis to conclude that there was probable cause to
search. For reasons explained below, we agree and therefore reverse the
district court on this issue.
{9} In the second
appeal, Defendant argues that his confession was invalid because police tactics
in eliciting the confession amounted to unconstitutional coercion. We disagree,
and therefore affirm the district court for reasons explained in detail below.
Probable Cause for Search Warrant
{10} The Fourth Amendment
to the United States Constitution requires police to obtain a warrant, issued
by a judge or magistrate, before executing any search or seizure, subject to “a
few specifically established and well-delineated exceptions.”
Katz v. United
States, 389 U.S. 347, 357 (1967). Probable cause to search a specific
location exists when there are reasonable grounds to believe that a crime has
been committed in that place, or that evidence of a crime will be found there.
See
State v. Gonzales,
2003-NMCA-008, ¶¶ 11-12,
133 N.M. 158,
61 P.3d 867.
{11} Put another way,
before a valid search warrant may issue, the affidavit must show: “(1) that the
items sought to be seized are evidence of a crime; and (2) that the criminal
evidence sought is located at the place to be searched.”
State v. Herrera,
102 N.M. 254, 257,
694 P.2d 510, 513 (1985);
see also State v. Baca,
97
N.M. 379, 379-80,
640 P.2d 485, 485-86 (1982) (same). There are no
“bright-line, hard-and-fast rules” for determining probable cause, but the
degree of proof necessary to establish probable cause is “more than a suspicion
or possibility but less than a certainty of proof.”
State v. Nyce,
2006-NMSC-026, ¶ 10,
139 N.M. 647,
137 P.3d 587 (internal quotation marks and
citations omitted).
{12} Our inquiry focuses
on the
issuing judge’s conclusion as to probable cause. In this case,
that means we look at the magistrate’s conclusions, not the district court’s.
If we conclude that the magistrate’s conclusions as to probable cause were
correct, we uphold those conclusions regardless of the decision reached by the
district court.
{13} We break our inquiry
into two components. First we look at the magistrate’s probable cause determination
as to Victim’s death. Then we address the related but separate question of
probable cause that evidence from the murder would be found in the specific
location to be searched.
{14} Defendant argues
that the search warrant affidavit was insufficient because it relied
principally on the statement of Seferino Griego, who told police, among other
things, that he saw Defendant with Victim shortly before she died. If it were
true that the only evidence the State presented in its affidavit was a single witness’s
account that Defendant was seen with Victim around the time of her death,
Defendant might well be correct. But the State presented much more than that.
In addition to Griego’s account, the State offered evidence obtained from the
prior consensual search of Defendant’s bedroom, including “numerous electrical
wires/chords [sic] of different sizes and colors.” In the same search, the
agent also saw two mattresses without linens and other bedding
material—observations which take on added importance given that Victim’s body
was found wrapped in sheets and tied with electrical wires.
{15} The State also
presented statements from Defendant’s mother which showed Defendant telling
conflicting stories about his activities the night he borrowed his mother’s van,
around the time Victim disappeared. The State presented a statement from a
probation officer who told police that during a chance encounter between
Defendant and Griego in the booking area of the McKinley County jail, Griego
loudly accused Defendant of killing Griego’s “girlfriend.” The probation
officer said that Defendant did not immediately respond to Griego’s accusation,
but once he was in his holding cell, said “I guess I am a murderer.”
{16} In addition, the
State presented Griego’s allegation that Defendant had called him around the
time of Victim’s death saying cryptically that he, Defendant, needed to “take
out the garbage” and “take out the trash.” Griego told police that the
conversation confused him.
{17} Like Griego’s
statements to police, the allegation that Defendant said, “I must be a
murderer,” by itself, would likely not give rise to a finding of probable
cause. Jailhouses are commonly understood to be places of exaggeration,
deception, and braggadocio. Police gave little information in the affidavit
about the manner in which Defendant spoke. Was he boastful, contemplative,
sarcastic? It is not clear. Nonetheless, the statement can be considered in
context with all the other information police provided in support of the search
warrant application.
{18} Similarly, the
stripped mattresses and exposed electrical wires in Defendant’s bedroom, along
with the electrical wires and sheets on Victim’s body, would be insufficient if
they stood alone. Nothing in the affidavit definitively matches the electrical
wires in the basement bedroom with the wire found around Victim’s neck. Police
apparently made such a match only
after executing the search warrant. In
State v. Hernandez,
111 N.M. 226, 229,
804 P.2d 417, 420 (Ct. App.
1990), our Court of Appeals held that there was no probable cause to support a
search warrant where police presented evidence that blood had been found at the
scene of a burglary and the defendant was later found to have a cut on his
hand. The blood at the scene was apparently not matched chemically or
genetically to the accused. A trail of stolen items led from the burgled
location “in the direction towards” the accused’s residence.
Id. at 227,
804 P.2d at 418. Considering only the evidence of blood at the scene and on the
accused’s hand, along with the trail of stolen items, our Court of Appeals
found a lack of probable cause to search the accused’s house.
Id. at
229, 804 P.2d at 420.
{19} Defendant argues
that the present case is the same as
Hernandez, asserting that the affidavit
contains “a glaring lack of any concrete information.” Defendant further argues
that the primary reason given to acquire the search warrant is that one person,
Griego, said Defendant was the last person seen with Victim. In arguing that
this Court should treat the present warrant the same way the Court of Appeals
treated the affidavit in
Hernandez, Defendant overlooks two important
things. First, Griego’s testimony is not the only basis the State provided for
a search warrant. Second, far from a “lack of concrete information,” the
affidavit contains, as we have described, a considerable amount of information
from several different sources.
{20} Like the
investigators in
Hernandez, the police in this case found physical
evidence at the scene of the crime which provides a link to further evidence
found on the accused or, in this case, in Defendant’s bedroom. In
Hernandez,
the evidence at the scene was blood, and the evidence on the accused was the
cut hand. In the present case, the evidence at the scene was electrical wires
and missing bed sheets, while the evidence at the scene was similar wires and
bed sheets on the corpse. The critical difference between the cases is that
here, police provided valid and significant evidence, in addition to the
physical evidence, connecting Defendant with the crime. In
Hernandez,
police did not.
{21} True, the affidavit
in this case provides no single piece of evidence as telling as the “reddish
stain” and foul odor in the trunk of the accused murderer’s car in
State v.
Ferrari,
80 N.M. 714, 717,
460 P.2d 244, 247 (1969), where this Court
concluded that a police search warrant affidavit adequately supported probable
cause. But such overwhelming physical evidence is not required in every case to
establish probable cause. Here, the police demonstrated substantial
investigative efforts to supplement the physical evidence they did have: the
electrical wire and bed sheets. They obtained statements from at least three
named witnesses, including a description of Defendant’s own words in jail and
the strong suggestion that he had told associates and family members different
things about his activities on the evening in question. All of this information
viewed “as a whole,”
Gonzales,
2003-NMCA-008, ¶ 14, makes clear that the
magistrate judge was justified in finding a probability that Defendant was
involved in Victim’s disappearance and death.
{22} Defendant argues
that there is “no causal relationship” between Victim’s disappearance and
Defendant’s statement that he needed to “take out the garbage.” He similarly
argues that the affidavit “totally fails to show any significance” in the fact
that Griego last saw Defendant with Victim. These arguments are unavailing. We
have never said that police must establish every link in the inferential chain
that leads to probable cause. Rather, all that is required is that police make
a showing that permits “more than a suspicion or possibility but less than a
certainty of proof.”
Nyce,
2006-NMSC-026, ¶ 10 (internal quotation marks
and citations omitted).
The Affidavit Established a Sufficient Nexus With the
Place Searched
{23} We now turn to the
issue of whether the evidence supports a finding of probable cause to believe
that evidence might be found in the basement bedroom of the house of
Defendant’s mother.
{24} We take this
opportunity to clear up some ambiguity in our case law. Some of our cases have
implied that probable cause to believe a suspect has committed murder
necessarily produces probable cause to search the suspect’s home.
See
Ferrari, 80 N.M. at 718, 460 P.2d at 248 (observing that probable cause
that a suspect committed murder “[is ordinarily sufficient] to justify the
search of [the suspect's] house and the surrounding area and his business”).
That is not true in every case. Probable cause to believe a defendant has
committed a crime, and particularly the crime of murder, will often exist
simultaneously with probable cause to believe there is evidence in the
accused’s home. But probable cause does not follow ineluctably from an
allegation of murder or any other crime. The link between the two conclusions
must be made by the reviewing judge or magistrate on a case-by-case basis.
Numerous courts in our sister states, as well as federal courts, have made
clear that probable cause to believe an accused has committed a crime does not
necessarily equate to probable cause that the home of the accused will contain
evidence of the crime.
See, e.g.,
United States v. Waxman, 572 F.
Supp. 1136, 1146 (E.D. Pa. 1983) (“It does not follow in all cases, however,
that simply from the existence of probable cause to believe a suspect is
guilty, there also is probable cause to search his residence.”);
State v.
Dillon, 419 So. 2d 46, 51 (La. Ct. App. 1982) (“[F]acts supporting probable
cause to arrest do not necessarily give rise to probable cause to search a
defendant's residence . . . .”);
Commonwealth v. Cinelli, 449 N.E.2d
1207, 1216 (Mass. 1983) (In the context of a murder charge, relying on
United
States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979), for the proposition
that “[i]nformation establishing that a person is guilty of a crime does not
necessarily constitute probable cause to search the person's residence.”).
{25} The fundamental
inquiry is whether there is probable cause to believe there will be evidence of
a crime
at a particular location.
See Herrera, 102 N.M. at
257, 694 P.2d at 513. Residence may be a component of this, but residence is
not necessary, nor is it always sufficient, to establish probable cause to believe
that the location to be searched contains evidence of a crime. Police must give
the issuing magistrate probable cause to believe that evidence will be at the
particular location in question, whether it is a suspect’s home or not.
{26} In this case, there
was probable cause to search even though it is not totally clear in the
affidavit that Defendant made his residence at his mother’s house. The
affidavit sought a warrant to search a house at 1506 South Cliff Drive in
Gallup. Before filing the affidavit, police had already done a preliminary,
consensual search of the basement.
{27} In that initial
search, police discovered electrical wiring and bedding similar to those found
at the crime scene which, as we have already noted, provide an inferential link
between Defendant and Victim’s death. In addition to this indication that there
would be further evidence at the house, Thornton told police that Defendant had
been in her house on, or near, the night Victim was last seen with Defendant,
and that Defendant left the residence in Thornton’s van. It would be a
reasonable inference from the information presented in the affidavit that
Victim was also at Thornton’s house on the night in question. Defendant told
his mother he needed to borrow her van to pick Victim up from Griego’s house.
Defendant later told a different, and conflicting, story to his mother, saying
that he had come home alone and that Victim had showed up at Thornton’s house
with another man. Regardless of which story is true, both place Victim at
Thornton’s house on the night in question. Finally, it appears from the face of
the affidavit that Thornton and Defendant referred to the basement as “home” —a
suggestion that the basement was Defendant’s primary residence.
{28} The magistrate found
probable cause. Viewing all of the evidence in totality, we conclude that it
had a sufficient basis in evidence to do so. Because the district court
concluded otherwise, we reverse the district court as to its granting of
Defendant’s motion to suppress the evidence gathered pursuant to the search
warrant. The district court offered no basis for its conclusions, so we cannot
explain in any greater detail our basis for reversing that court.
ADMISSIBILITY OF CONFESSION
{29} Defendant argues
that his September 18, 2005 statement to police, admitting culpability in
Victim’s death, should have been suppressed for two reasons. First, he asserts
that police used coercive tactics which rendered his statement involuntary.
Second, Defendant argues that because police relied on information unlawfully
seized from the basement room in his mother’s house, the confession was
tainted. Defendant further argues that his September 19, 2005 confession, made
one day after the first confession, should have been suppressed because it was
tainted by the initial, allegedly coerced confession.
{30} Defendant agrees
with the State that he voluntarily waived his
Miranda rights, and he
makes no claim to this Court that he did not receive his
Miranda
warnings and validly waived them. Rather, he asserts only that police used
coercive means to obtain his confession, after the proper
Miranda
waivers.
{31} Because we have
already determined that police lawfully seized the evidence from the house of
Defendant’s mother, we need not address his argument that unlawfully seized
evidence tainted the confession. We begin, then, with Defendant’s contention
that his September 18 statement was coerced.
{33} We base our
determination of whether a confession is voluntary on whether “official
coercion” has occurred.
State v. Munoz,
1998-NMSC-048, ¶ 21,
126 N.M.
535,
972 P.2d 847 (internal quotation marks and citation omitted). Official
coercion occurs when “a defendant’s ‘will has been overborne and his capacity
for self-determination [has been] critically impaired.’”
Id. ¶ 20
(quoting
Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). There must
be an “essential link between coercive activity of the State . . . and a
resulting confession by a defendant.”
Id. ¶ 21 (quoting
Colorado v.
Connelly, 479 U.S. 157, 165 (1986));
see also State v. Barr,
No. 30,191, slip op. at 11 (N.M. Sup. Ct. May 22, 2009).
{34} On a claim that
police coerced a statement, the prosecution bears the burden of proving by a
preponderance of the evidence that a defendant's statement was voluntary.
State
v. Fekete,
120 N.M. 290, 298,
901 P.2d 708, 716 (1995). The failure to make
such a showing requires a ruling that the confession was involuntary as a
matter of law.
State v. Tindle,
104 N.M. 195, 198,
718 P.2d 705, 708
(Ct. App. 1986).
{35} Defendant asserts
that he was high on methamphetamines during his September 18 interrogation at
the McKinley County Detention Center, where he was already incarcerated on an
unrelated charge. He claims the drugs, combined with a lack of sleep, made him
hallucinate during the interrogation. He appears to assert, although it is
somewhat unclear in the record, that in describing his actions to police he was
narrating what he saw in his hallucinations, rather than describing his memory
of reality. Defendant alleges that, in concert with other aspects of the
interrogation, which we detail below, the hallucinations made his confession
involuntary.
{36} The district court
viewed with skepticism Defendant’s claims about the purported hallucinations
and their effect on his capacity. The court concluded, after hearing testimony
from Defendant and from his interrogators, that Defendant “was in full control
of his faculties when these interviews took place.”
{37} If faced with
conflicting evidence, we defer to the district court’s factual findings, so long
as those findings are supported by evidence in the record.
State v. Cooper,
1997-NMSC-058, ¶ 26, 124 N.M 277,
949 P.2d 660 (citing
Culombe, 367 U.S.
at 603). We are unable to view the witness’s demeanor or his manner of speech,
and therefore are not in a position to evaluate many of the aspects of witness
credibility that the trier of fact may evaluate. While we are not required to
accept the district court’s conclusion that Defendant was fully able to
distinguish between reality and fantasy during his interrogation, we do give
credence to that factual finding, particularly because there is little in the
record, apart from Defendant’s own words, which suggests otherwise.
{38} Our own reading of
the transcript discloses no indications that Defendant was “narrating” from
hallucinations. To be sure, there is a disjointed and rambling quality to
Defendant’s long and, at times, nonsensical responses. In addition to the lack
of obvious signs in the transcript that Defendant was describing things that
did not exist, there is no indication in the record that the law enforcement
officers who interrogated Defendant were aware of his purportedly vulnerable
mental state. Case law makes clear that when interrogators are unaware of, and
therefore cannot exploit, the mental or emotional vulnerabilities of a suspect,
the crucial link between the confession and official action is missing.
See
Connelly, 479 U.S. at 165;
see also Fekete, 120 N.M. at 299, 901
P.2d at 717 (“[A] confession is not involuntary solely because of a defendant's
mental state.”).
{39} It is clear,
therefore, that Defendant’s assertion of hallucinations is insufficient to
render his confession involuntary. Our analysis does not end there, however,
because we must look to the totality of circumstances in making our
determination as to the voluntariness of Defendant’s confession.
{40} We turn next to
Defendant’s claims that several statements made by his interrogators were
coercive to the point that they made his confession involuntary. All of the
statements were made by Agent Ness and were in response either to Defendant’s
claims that he was not involved in the killing, or that his involvement was
only minimal. They were part of Agent Ness’s larger effort to convince
Defendant that confessing would be beneficial to his case—an effort we discuss
in greater detail below. The State stipulated that Agent Ness made the
statements that follow:
“You’re digging a hole you’re not
gonna be able to get out of.” “This is the one percent of the time, I tell you,
if you keep quiet they’re gonna hammer you.”
“[I]f you leave it like it is,
you’re through . . . .”
Defendant’s interrogator made this statement after Defendant
denied involvement in the killing:
“Just because you don’t wanna be a
rat, you’re gonna be treated as a monster in court and you’re never gonna get
out of prison.”
{41} These statements
were part of an interrogation at the county jail that lasted about 90 minutes.
They occur in rapid succession, about midway through the interrogation, and
after many minutes of long and somewhat rambling statements by Defendant. It is
clear on reading the transcript of the interrogation that Defendant essentially
dominated the first half of the discourse. About halfway through the
interrogation, Agent Ness began steering the interview by asking more pointed
questions.
{42} Many cases have
noted that threats and promises may rise to the level of coercive behavior by
police.
See, e.g.,
Tindle, 104 N.M. at 199, 718 P.2d at 709
(holding that an express promise of leniency “renders a confession involuntary
as a matter of law”);
cf. State v. Lobato,
2006-NMCA-051, ¶¶ 16-21,
139
N.M. 431,
134 P.3d 122 (holding that an interrogator leaving the “overall
impression” that the accused would receive treatment if he confessed does not
amount to coercion);
State v. Munoz,
111 N.M. 118, 121,
802 P.2d 23, 26
(Ct. App. 1990) (holding that a confession was voluntary where police told the
accused that “in his experience, first offenders who cooperated were less
likely to go to jail than other defendants”). We have also noted, however, that
where promises are merely implied, they are only one factor to be considered in
the overall totality of circumstances.
Tindle, 104 N.M. at 199-200, 718
P.2d at 709-10. Threats of physical violence, where credible, can render a
confession involuntary.
See Arizona v. Fulminante, 499 U.S. 279, 286-87
(1991).
{43} The critical
difference in the case law between impermissibly coercive threats and threats
which do not cross the line is in how credible and immediate the accused
perceives the threat to be. Threats which the accused may perceive as real have
been held to be impermissibly coercive.
See id. (holding that
where defendant-inmate had a below-average IQ and had already received “rough
treatment” by other inmates and was a convicted child murderer, a promise to
protect him from further physical violence if he confessed amounted to a
“credible threat” of physical violence). On the other hand, threats that merely
highlight potential real consequences, or are “adjurations to tell the truth,”
are not characterized as impermissibly coercive.
See, e.g.,
Tindle,
104 N.M. at 197-200, 718 P.2d 707-10 (holding that police threat to the
defendant that the court would “hang [your] ass” if the defendant did not
confess, a comment which was disputed by the State, did not render confession
involuntary). It is not per se coercive for police to truthfully inform an
accused about the potential consequences of his alleged actions.
See United
States v. Munoz,
150 F. Supp. 2d 1125, 1135 (D. Kan. 2001).
{44} Three of the four
statements at issue here could be taken as threats: (1) “they’re gonna hammer
you”; (2) “you’re through”; and (3) “you’re gonna be treated like a monster in
court and you’re never gonna get out of prison.” All of these statements lie
between the two poles described above—the statements are more than adjurations
to tell the truth, but less than credible threats of violence. “You’re never
gonna get out of prison” can reasonably be taken to refer to a potential life
sentence—well within reality for a first-degree murder conviction, which is at
issue in this case. “You’re gonna be treated like a monster in court” appears
to be a reference to the way those in court might perceive Defendant. The comment
may be a stretch or an exaggeration, but it is not out of the realm of a real
possibility. Agent Ness never specified what he meant by “you’re through,” or
who he was referring to as “they” in “they’re gonna hammer you.” Both
statements, taken in isolation, could be taken as a threat of physical
violence. However, taken in context with the entire interrogation, where Agent
Ness repeatedly communicated to Defendant that he was not interested in
vengeance, and certainly not in physical vengeance, the statements—vague though
they are—cannot credibly be taken to threaten Defendant with physical violence.
{45} Viewing the
interrogation as a whole, what Agent Ness appeared to be trying to tell
Defendant is that unless he explained himself to Ness—unless he confessed—he
would not be able to explain himself to a jury, which would have only the
physical evidence with which to judge Defendant. That physical evidence, Agent
Ness told Defendant, was damning. In truth, Defendant might have another chance
to explain himself at trial, if he chose to testify. Telling Agent Ness the
truth, however, even if Defendant ultimately did not testify, could accomplish
the same goal. In short, Agent Ness’s statements constitute half-truths —a
reasonable expression of opinion about consequences to Defendant if he did not
talk, but an exaggeration when it came to telling Defendant that the
interrogation with police was his best chance to talk. The exaggeration is
particularly acute when contrasted with the
Miranda warnings given, which
highlight the accused’s right to remain silent and that anything said may be
used against him. On the other hand, there is some truth to Agent Ness’s
assertions to Defendant. If, as Defendant maintained for a short time during
the interrogation, he accidentally strangled Victim during a struggle, that
could produce a markedly different result at trial than if he strangled her in
cold blood. It could bring about a conviction for second-degree murder rather
than first-degree murder.
{46} Our case law makes
clear that deception is not coercive per se.
See State v. Aguirre,
91
N.M. 672, 674,
579 P.2d 798, 800 (Ct. App. 1978) ("[D]eception, in itself,
is not a basis for ruling, as a matter of law, that a confession should be
suppressed."). The degree of deception is but one factor to consider in
deciding whether a confession was given contrary to the accused’s free will.
Considering the deception as one factor in our analysis, we must also consider
Defendant’s probable reaction to those statements.
Cooper,
1997-NMSC-058,
¶ 27 (citing
Culombe, 367 U.S. at 603, 604). At the time of the
confession, Defendant was a 30-year-old man who, in the district court’s words,
was “in full control of his faculties,” and who had prior exposure to the
criminal justice system.
1
Agent Ness made veiled and somewhat ambiguous threats to Defendant, but unlike
the “mentally dull” teenage defendant in
Payne v. Arkansas, 356 U.S.
560, 567 (1958), or an illiterate defendant with mental retardation, as in
Culombe,
367 U.S. at 620, Defendant had an adult capacity to sort exaggerated tough talk
from real threats. There is certainly a point at which police threats,
promises, or deception, would cross the line into coercion, but that line has
not been crossed here.
2Agent
Ness also made one deceptive factual claim, and several others that might have
been deceptive, although given the incomplete record before us, it is
impossible to determine if they were. Agent Ness claimed that police had found
Defendant’s “biological lipids” on Victim’s body—a meaningless phrase which
appears to be aimed at evoking DNA evidence. Agent Ness also told Defendant
that police had found Defendant’s fingerprints on the bag over Victim’s head,
evidence which does not appear in the affidavit or anywhere else in the record.
Agent Ness also strongly implied that Victim’s blood was found on Defendant’s
clothes, another evidentiary claim not supported in the present record. Because
this is an interlocutory appeal, there is insufficient evidence in the present
record to determine whether these last two claims are true. Although Defendant
did not raise this issue before this Court, we note that our Court of Appeals
has previously noted that misrepresentations “do not necessarily invalidate a
confession.” Lobato, 2006-NMCA-051, ¶ 13; see also Frazier v.
Cupp, 394 U.S. 731, 737, 739 (1969) (noting that while it was relevant that
police had falsely told the defendant that the co-conspirator had already
confessed, such circumstances were "insufficient . . . to make this
otherwise voluntary confession inadmissible"). In the event of a
conviction, Defendant may raise these and other issues on appeal.
2
{47} Defendant also
asserts that because he maintained his innocence “for approximately the first
hour” of the interrogation before claiming culpability, and because he admitted
to actions that do not comport exactly with Victim’s manner of death, his
confession was involuntary. Defendant asserts that “[w]hen the product of a
‘confession’ is a misstatement of how the homicide was committed,
it must,
by definition, not be a volitional act.” (Emphasis added.) This assertion
is untenable as a simple matter of self-evident fact. Defendant is claiming, in
essence, that people do not intentionally lie: he is asserting that where a
statement is factually inaccurate, it could not have been made on purpose.
There is no basis for assuming, out of hand, that an imprecise confession is
involuntary. An accused may be willing to admit the bare facts of a crime, but
unwilling to confront the unpleasant details. It does not mean that the bare
facts are not true.
{48} Additionally, it is
not definitively clear, as Defendant would have it, that he confessed to
something that did not happen. Defendant claims that he described putting a
type of choke hold on the Victim, while the Office of the Medical Examiner
determined that Victim’s death was caused by ligature asphyxiation, as well as
by the plastic bag placed over Victim’s head.
{49} This discussion
centers around the following exchange between Agent Henrietta Soland (“HS”) and
Defendant (“JE”):
HS: And you, you had your, your arm
around her. . .
JE: I just had my arm just, I was
holding her down, I had my arm, I had my arm up like this, okay.
JE: Yeah, but I was holding her
down. I was sitting on the couch and she was sitting beside me. . .and I was
holding her, and all of a sudden I was closing my eyes and it was like please
and she stopped.
{50} It is true that
Defendant acknowledges the suggestion by Agent Soland that he had her in
something “like a choke hold.” But his description immediately following that
acknowledgment does not sound much “like a choke hold” at all. We are also
deprived of whatever gesture Defendant gave when he said he had his arm “up
like this.” Given the disjointed descriptions that Defendant gave throughout
the interrogation, we cannot say definitively that he described killing Victim
“accidentally” by “choking her to death with his arm,” as Defendant now claims.
{51} The Office of the
Medical Investigator concluded that Victim died due to asphyxia from ligature
strangulation combined with airway obstruction with a plastic bag. The bag
around Victim’s head, we must note, is fully consistent in the accounts of both
Defendant and the medical examiner. The only difference is that the medical
examiner concluded that a ligature—a wire, rope, cord or the like—had strangled
Victim, while Defendant’s account is ambiguous as to how the strangulation
happened. Defendant does not mention anywhere using a rope or cord of any sort,
except when he described tying the bag around Victim’s head.
{52} This is not the sort
of discrepancy that supports a claim that Defendant confessed to a crime he did
not commit. It is, rather, a minor inconsistency. It is possible that this sort
of inconsistency suggests that Defendant did not commit the crime, but that is
a question ideally suited for a jury to determine. It is not a question we
answer at this stage, and it does not render his confession involuntary as a
matter of law.
{53} Defendant also
argues that his confession was involuntary because Agent Ness was “proficient”
at interrogation techniques, and because Defendant was in custody at the time
of the interrogation. He cites no case, and we find none, holding that the
proficiency of an interrogator is more or less likely to render a confession
involuntary. As for the proposition that the confession was rendered
involuntary because Defendant was in custody, we merely note that Defendant was
incarcerated on an unrelated charge, and had been in jail for almost two weeks
at the time of his confession. The whole interrogation here lasted some 90
minutes. There are no allegations of food or sleep deprivation, or of any
physical violence or threats thereof. There are no allegations of overt
threats, and no allegations of overt promises. There can be little doubt that
an interrogation inside a jail is inherently more coercive than an interrogation
in a suspect’s home, but it is not coercive per se.
{54} Because we conclude
that the September 18 statement was voluntary, we need not address Defendant’s
argument that the later confession, on September 19 was tainted by the first.
{55} We affirm the
district court’s decision not to suppress Defendant’s confession. We reverse
the district court’s decision to suppress the physical evidence seized as a
result of the search warrant. We remand for further proceedings consistent with
this Opinion.
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Chief Justice
PATRICIO M. SERNA, Justice
PETRA JIMENEZ MAES, Justice
CHARLES W. DANIELS, Justice
Topic Index for State v. Evans, No. 30,454 / 30,443
CA-AW Affidavit for Search
Warrant
CL-CG Criminal law,
general
EV-SU Suppression of
Evidence