State v. Dickson

• Citation: 482 P.2d 916,1971 NMCA 20,82 N.M. 408
• Decision Date: 05 March 1971
• Docket Number: No. 509,509
• Parties: The STATE of New Mexico, Plaintiff-Appellee, v. Lester Ray DICKSON, Jr., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 916

482 P.2d 916

82 N.M. 408

The STATE of New Mexico, Plaintiff-Appellee, v. Lester Ray DICKSON, Jr., Defendant-Appellant.

No. 509.

Court of Appeals of New Mexico.

March 5, 1971.

[82 NM 408] David W. Bonem, Clovis, for defendant-appellant.

James A. Maloney, Atty. Gen., Ray Shollenbarger, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Judge.

We reverse defendant's conviction of armed robbery. Section 40A--16--2, N.M.S.A.1953 (Repl.Vol. 6), because the trial court improperly admitted defendant's incriminating statement.

Defendant was arrested in Oklahoma City and returned to Clovis, where he was tried. On the automobile trip to Clovis, he made incriminating statefments. These statements were held inadmissible as evidence under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). Within two hours after arriving in Clovis, defendant made another incriminating statement which was tape recorded. Defendant's appeal involves the admission into evidence of portions of this later statement.

The tape recorded statement was made after defendant had shown officers where he had left some clothing in a field, and after defendant had been taken before a magistrate and apparently advised of his rights by the magistrate. The recorded statement was made in the presence of one of the officers who obtained the prior statements in violation of Miranda v. Arizona, supra.

In connection with this later statement, defendant signed a 'Waiver of Rights.' In this later statement, defendant acknowledges that he doesn't have to make a statement; that the statement is voluntary. Toward the end of the tape defendant states, 'this is of my own free will,' and acknowledges he had refused a lawyer. The statement's contents show defendant had had prior experience with law enforcement officers.

In admitting portions of the recorded statement, the trial court found there was a sufficient lapse of time between the earlier statements and the recorded statement so that the violation of Miranda in connection with the earlier statements '* * * does not automatically make his later oral statement inadmissible in view of the proper warning given to him before his last statement at the Clovis Police station. Also, it appears from the--a portion of his later statement, which has been excised from the transcript (of the recorded statement), that this man had prior experience in matters of this sort that would have a bearing on whether or not he understood his rights under the situation that obtained. * * *'

Subsequently, the record shows:

'MR. BONEM: So that the record is clear, the defendant has not waived his previous objection to the confession as a fruit of the poison tree * * * we are objecting to it also on the grounds that it was taken following a statement taken in violation of the Miranda ruling.

'THE COURT: I understand, but there has been no evidence to support this contention that I know of. * * *'

In our opinion the rule to be applied in this situation--where the earlier statements are inadmissible and a later statement has been made--appears in State v. Chaves, 27 N.M. 504, 202 P. 694 (1921). In that case, where the first confession was involuntary, the New Mexico Supreme Court stated:

'* * * (I)f a confession has been made under circumstances rendering it involuntary, a presumption exists that a second confession is the result of the prior influence, and this must be overcome before the second becomes admissible. * * *'

Applying Chaves to this case, the later incriminating statement may not be used unless it is established that the later statement was not the exploitation of the earlier illegally obtained incriminating statements, and unless the later statement was obtained under circumstances sufficiently...