In re Jade G.

• Decision Date: 24 May 2001
• Docket Number: No. 21,330.,21,330.
• Citation: 30 P.3d 376,130 N.M. 687,2001 NMCA 58
• Parties: In the Matter of JADE G., a Child.
• Court: Court of Appeals of New Mexico

30 P.3d 376

130 N.M. 687

2001 NMCA 58

In the Matter of JADE G., a Child.

No. 21,330.

Court of Appeals of New Mexico.

May 24, 2001.

Certiorari Granted August 13, 2001.

Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellant.

Phyllis H. Subin, Chief Public Defender, Jennifer R. Albright, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

Certiorari Granted, No. 25,994, August 13, 2001.

OPINION

WECHSLER, Judge.

{1} The State appeals from the children's court's order dismissing the delinquency petition against Jade G. (Child). The petition charged Child with first degree murder for the death of her father, Samuel G. We reverse the children's court's dismissal.

Facts

{2} On the morning of June 14, 1999, Bertha G., Child's mother, called 911 to report that her husband had been accidentally shot. Detective Hall testified at the hearing on the motion to dismiss that the police officers who responded to the call originally treated the shooting as an accident. When questioned initially about the shooting, the family members gave police similar statements as to the accidental nature of the shooting. Despite the family's statements, Sergeant Duran had suspicions that the shooting occurred while Child's father was asleep. As a result, violent crime investigators were called to the scene. Detective Hall, the lead investigator, testified at the hearing on the motion to dismiss that because of inconsistencies between the statements of the family and the position of the body at the time police arrived, along with the forensic evidence of the gunshot wound, the police thereafter treated the investigation as a homicide.

{3} On March 8, 2000, the children's court held a hearing on Child's motion to dismiss for police misconduct. Child offered the testimony of Detectives Hall and Dilley, as well as a transcript of a taped encounter between Child and the detectives, as evidence of extreme police misconduct.

{4} During his testimony, Detective Hall acknowledged that he and other police officers used extreme investigative tactics during their investigation of Child's father's death. For instance, Detective Hall acknowledged that police installed a listening device in Child's residence by a ruse which included a police officer posing as a burglar, a SWAT team to apprehend the burglar, and the evacuation of several residences near Child's home. Detective Hall stated that a judge had entered an order approving the use of the listening device and the installation of the device surreptitiously or by ruse. Another investigative tactic utilized by the police involved pulling over the vehicle driven by a visitor to Child's home. Officers stopped the vehicle without reasonable suspicion to do so and told the driver and her daughter that they had been seen running other motorists off the road. Detective Hall acknowledged that the story told to the driver was a pretense to stop the vehicle and obtain the driver's name.

{5} Detective Hall also admitted to directing another officer to write a false note stating, "B, they know what you did and about all the money. Good luck." Detective Hall stated that this note was left on the door of Child's residence in an effort to incite conversation which might be heard through the wiretap.

{6} This appeal is particularly concerned, however, with the conduct of Detectives Hall and Dilley during the early morning hours of August 7, 1999. According to both detectives' testimony, they became aware on August 6 that Child and her mother were moving out of their residence because they were facing foreclosure. The detectives became concerned that if the family moved, they would not be able to locate Child or her mother. Based on this fear, the detectives sought an arrest warrant for Child on the evening of August 6.

{7} According to Detective Dilley, preparation of the affidavit for an arrest warrant did not begin until 5:00 p.m. on August 6. A judge signed the arrest warrant at approximately 11:55 p.m. and granted an order sealing certain portions of the affidavit at about 12:29 a.m. on August 7.

{8} The two detectives delivered the arrest warrant for Child at approximately 1:25 a.m. on August 7. Child was twelve years old at the time. Both Detectives Hall and Dilley testified that they did not immediately deliver Child to a detention center. Instead, after arresting Child, the detectives drove to the parking lot of a police substation and interrogated Child for at least 45 minutes. Child was processed into a detention center at about 3:00 a.m. The detectives tape recorded the encounter from the time they arrived at Child's house to arrest her until they gave up the interrogation.

{9} According to Detective Dilley's testimony, police department staff originally transcribed the tape, and he and Detective Hall made hand-written corrections to the transcription. The transcript indicates that Detectives Hall and Dilley failed to advise Child of her rights to an attorney and to remain silent. Both detectives admitted that they failed to inform Child of her rights. However, neither detective could state with precision the reason why they did not advise Child of her rights when they began the interview.

{10} Detective Hall testified that after consulting with the children's court attorney, he understood that he and Dilley could interview Child, but that anything she said could not be admitted against her. Detective Hall explained that he did not understand his failure to inform Child of her rights to have any impact on Child, because her statements would be suppressed regardless of whether they read Child her rights. When asked whether he thought that his interrogation of Child was illegal, Detective Hall stated, "[W]e had gone through [the children's court attorney] on that and after we heard that that portion of it, ... we should go forth with that avenue. And we did that, yes." Detective Hall stated that although he knew Child's statements under these circumstances were inadmissible, he and Detective Dilley were seeking to obtain statements that implicated other people in a conspiracy to commit murder. The testimony indicates that Child's mother was a suspect at the time of the interrogation and was still a suspect at the time of the hearing.

{11} According to the handwritten notes made by Detective Hall on the transcript of the tape, Child made reference to her attorney and to her mother on more than one occasion. When asked whether they believed Child had invoked her right to counsel, the detectives did not readily admit that Child's questions about counsel were invocations of her right to counsel. The testimony indicates that both detectives knew Child was represented by an attorney. Detective Hall stated that even if he had interpreted her queries about her attorney as invocations of her right to counsel, such fact was of no consequence because he was not seeking to obtain statements that could be used against Child.

{12} The children's court granted Child's motion to dismiss. On May 9, 2000, the court entered findings of fact and conclusions of law in support of its order. The court concluded that the officers' failure to give Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),

and to provide Child with contact with her Mother, was an intentional violation of Child's constitutional rights and her rights under the Children's Code and, thus, an unlawful extension of police power. NMSA 1978, § 32A-2-14 (1993). The court also relied on the outrageous government conduct and entrapment doctrines to provide the basis for the court's power to dismiss the petition. State v. Vallejos, 1997-NMSC-040, ¶ 20, 123 N.M. 739, 945 P.2d 957;State v. Sheetz, 113 N.M. 324, 329, 825 P.2d 614, 619 (Ct.App.1991); United States v. Harris, 997 F.2d 812, 815-16 (10th Cir.1993); United States v. Mosley, 965 F.2d 906, 910 (10th Cir.1992). In addition, the children's court relied upon its discretion and supervisory powers as supportive of its ability to dismiss the petition against Child.

{13} We do not view the authorities relied upon by the children's court as empowering the court to dismiss the delinquency petition in this case. We therefore reverse the children's court's order.

The Children's Code

{14} We first analyze whether the Children's Code provides the children's court with the power to dismiss a delinquency petition for police misconduct. The basic rights provision of the Children's Code bestows special statutory rights upon children subject to the Delinquency Act. Section 32A-2-14(A). In some instances, these rights may be broader than the rights of an adult. Compare Miranda, 384 U.S. at 444-45,

86 S.Ct. 1602

and United States v. Snow, 82 F.3d 935, 942-43 (10th Cir.1996) (stating that fingerprinting is non-testimonial in nature and thus does not require Miranda warning protection as no constitutional right not to be fingerprinted exists), with Section 32A-2-14(C), (F), (G), (I) (establishing, for example, rebuttable presumption of inadmissibility for confessions or statements by thirteen year old to person in authority and necessity of court order before fingerprinting or photographing child under thirteen years of age).

{15} We agree that the conduct of the police, in particular the middle-of-the-night interrogation of Child, raises questions under the Children's Code. Section 32A-2-14(F) would have required the children's court to exclude any statements obtained from Child by the police during that interrogation. Detectives Hall and Dilley testified that they understood that all of Child's statements would be excluded and they relied upon this provision to justify the fact that they did not advise Child of her Miranda rights or provide her with access to her mother or her attorney. The question remains, however, whether any potential violation of this provision or any other provision of ...