State v. Bailey

• Decision Date: 27 March 2008
• Docket Number: No. 26,500.,26,500.
• Citation: 186 P.3d 908,2008 NMCA 084
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Shishmon BAILEY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

186 P.3d 908

2008 NMCA 084

STATE of New Mexico, Plaintiff-Appellee, v. Shishmon BAILEY, Defendant-Appellant.

No. 26,500.

Court of Appeals of New Mexico.

March 27, 2008.

Certiorari Denied, No. 31,055, May 14, 2008.

Gary K. King, Attorney General, Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} Defendant Shishmon Bailey appeals his convictions for abandonment or abuse of a child, bribery or intimidation of a witness, and possession of marijuana. On appeal, Defendant argues that (1) the district court erred in refusing to suppress in-custody statements made in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) because the statements were made in response to questions posed by a law enforcement interviewer after Defendant expressed doubt about answering any further questions without having a lawyer present; (2) the district court erred in failing to find that the State struck three prospective jurors on the basis of race; (3) the district court erred in enhancing Defendant's sentence; and (4) cumulative error deprived Defendant of fair proceedings. We affirm Defendant's convictions.

BACKGROUND

{2} The charges against Defendant arose after he allegedly struck his young stepson in the course of disciplining him. Defendant's wife, the boy's mother, called the police and Defendant's probation officer to report the incident, informing them that there was probably marijuana and drug paraphernalia in a shed behind the family home. Officer Hal Alton and another police officer went to Defendant's home with Defendant's probation officer to investigate. After placing Defendant in handcuffs, the officers found marijuana residue and drug paraphernalia in the shed as well as marijuana plants growing in the yard. In response, Officer Alton read Defendant his Miranda rights, which he indicated he understood, and took him from his home to the Department of Public Safety for further questioning.

WAIVER OF MIRANDA RIGHTS

{3} In order to protect a defendant's right against self-incrimination, law enforcement officers must, before beginning questioning, inform a person in custody (1) of the right to remain silent, (2) of the prospect that any statement made may be used as evidence against him or her, and (3) of the right to an attorney. Id. at 444, 86 S.Ct. 1602, 16 L.Ed.2d 694. However, any of those rights may be waived, "provided the waiver is made voluntarily, knowingly and intelligently." Id.; accord State v. Martinez, 1999-NMSC-018, ¶ 13, 127 N.M. 207, 979 P.2d 718.

{4} When a defendant moves to suppress statements allegedly made in violation of Miranda, "the State bears the burden of demonstrating by a preponderance of the evidence that the defendant" made such a voluntary, knowing, and intelligent waiver. Martinez, 1999-NMSC-018, ¶ 14, 127 N.M. 207, 979 P.2d 718. In doing so, "[t]he State must demonstrate that the waiver of rights was the product of a free and deliberate choice rather than intimidation, coercion, or deception" and also must show that the waiver "was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. (internal quotation marks and citation omitted). We review whether such a waiver was made by evaluating "the totality of the circumstances and the particular facts, including consideration of the mental and physical condition, background, experience, and conduct of the accused, as well as the conduct of the police." Id. (internal quotation marks and citation omitted). Additionally, we must indulge every reasonable presumption against waiver. Id. In doing so, "we review the trial court's findings of fact for substantial evidence and review de novo the ultimate determination of whether a defendant validly waived his or her Miranda rights prior to police questioning." State v. Barrera, 2001-NMSC-014, ¶ 23, 130 N.M. 227, 22 P.3d 1177.

{5} Defendant argues that his Fifth Amendment rights under Miranda were violated when Officer Alton continued to question him after he expressed doubt about continuing without an attorney present. At the suppression hearing, Officer Alton testified that he did not re-read Defendant his Miranda rights at the beginning of the interview at the Department of Public Safety but that he asked Defendant (1) if he was still aware of the rights that he was read at his home and (2) whether he was willing to answer some more questions. Initially, Defendant did not object to answering Officer Alton's questions. Defendant proceeded to speak with Officer Alton, and at one point during the interview, Defendant told him that he had spanked his stepson with a toy tennis racquet and that he may have been "overzealous." Officer Alton testified that upon being asked to clarify what he meant by "overzealous," Defendant stated that he did not think that he should answer any further questions without having a lawyer present. Officer Alton asked Defendant whether he meant that he did not want to answer any more questions at all or if he was exclusively referring to questions specifically regarding the incident involving the toy tennis racquet. In response, Defendant agreed to answer questions about other topics. Officer Alton testified that he proceeded to ask Defendant questions, including questions regarding other times that he had struck his stepson.

{6} Officer Alton testified that Defendant returned to the topic that initially caused him to inquire about an attorney after he was asked, "Is there anything else you need to tell me?" At that point, Defendant stated that he had lied about spanking his stepson with the toy tennis racquet. Officer Alton testified that Defendant acknowledged that he did not use a toy tennis racquet to strike his stepson; rather, he used a wooden ski from a NordicTrack exercise machine. Defendant told Officer Alton that he struck his stepson after the child refused to answer him, that he did not hit the child too forcefully, and that he did not think that he had bruised the child. On cross-examination, Officer Alton agreed that, despite having originally inquired about speaking with an attorney when presented with questions on the issue, Defendant ultimately told him everything about the incident. Finally, Defendant testified that when Officer Alton asked him if they could talk about anything else, he thought that the line of questioning would shift to a topic that was not related to the child abuse allegation, such as the marijuana that had been found.

{7} An audio recording of portions of Officer Alton's interview with Defendant was ultimately admitted into evidence at trial and played for the jury. As transcribed in Defendant's brief, the following exchange took place concerning Defendant's assertion that he did not want to answer any further questions about the spanking incident:

Officer: What do you mean, you got overzealous?

Appellant: I don't think I should say anything else without seeing a lawyer. It's not that I don't trust you. It's not that I'm saying that; but you can't (inaudible), right?

Officer: Yes, I can. I've already read you your rights. You said that you understood them. Okay, so, so you don't want to say any more. You don't want to say any more about that incident, or you don't want to say anything else, about ... ?

Appellant: About that incident.

Officer: Okay. All right. Having your rights in mind, can we talk about other disciplinary issues in the home?

Appellant: Let me, what I ...

Officer: I mean, what you're saying is that you don't want to say any more to me about that incident without a lawyer being present. I fully understand you that (Sic). I won't ask you any more questions about that incident. I'm also asking you if you're invoking your rights under Miranda to not talk to me about other things?

Appellant: Other things, we can talk about.

{8} After considering Defendant's Miranda argument, the district court ruled that Defendant's statements about not saying anything else without first speaking with an attorney amounted to a limited invocation of his right to remain silent, that Defendant understood his rights, and that the subsequent statements about how he disciplined his stepson were voluntary. We agree.

{9} In Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court set forth the general rule regarding further questioning after an accused has requested counsel: "[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." The Court went on to hold that an accused, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378. However, Edwards left open the question of how law enforcement officers should respond when the suspect being questioned makes an equivocal request for counsel, as in the present case.

{10} In Davis v. United States, 512 U.S. 452, 455, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the United States Supreme Court addressed a situation in which the defendant stated, more than an hour after an investigating agent began interviewing him, "`Maybe I should talk to a lawyer.'" The agent later testified about what happened after the defendant made that statement:

"[We m]ade it very clear that we're not here to violate his rights, that if he wants a lawyer, then we will...