State v. Dirickson
| Decision Date | 28 April 2023 |
| Docket Number | A-1-CA-40149 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL DIRICKSON a/k/a MICHAEL S. DIRICKSON, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Angie K. Schneider District Court Judge
Raúl Torrez, Attorney General Santa Fe, NM Erica Schiff, Assistant Attorney General Albuquerque, NM for Appellee
Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant
{¶1} Defendant Michael S. Dirickson appeals his conviction of one count of possession of a controlled substance (methamphetamine), contrary to NMSA 1978, Section 30-31-23(A) (2019, amended 2021). Defendant argues on appeal: (1) the district court erred in refusing to suppress his un-Mirandized[1] response to a police officer's question about the contents of his motel room; (2) the district court abused its discretion when it refused to grant a mistrial based on a witness's comment on Defendant's post-Miranda silence; (3) the district court's instruction to disregard hearsay testimony was insufficient to cure the prejudice from testimony about a motel clerk's out-of-court statement (4) prosecutorial misconduct in closing argument amounted to fundamental error, requiring reversal; and (5) cumulative error requires reversal. We affirm.
{¶2} The issues on appeal arise from the circumstances surrounding Defendant's arrest outside a motel in Alamogordo, New Mexico involving Defendant's questioning by police incident to his arrest, and the sweep of his motel room that followed his arrest and questioning. We describe the circumstances briefly, in the light most favorable to the district court's rulings, leaving additional facts for our discussion of each issue.
{¶3} Sheriff's Deputy Juan Rodriguez, a drug enforcement agent, received a call from an unknown person reporting that Defendant, a person with an outstanding warrant for his arrest, was at Motel 6, Room 201 (an upstairs room) in Alamogordo. After verifying that Defendant had an active arrest warrant, Deputy Rodriguez and his partner, Deputy Brad Nordquist, headed to the motel. The record does not reveal the grounds for the arrest warrant.
{¶4} The deputies positioned themselves across the street from Room 201 where they were able to see into the room through an opening in the curtains. Although they were able to identify Defendant, and although they did not see anyone except Defendant enter or leave the room, they testified at trial that they were not able to determine whether Defendant was alone in the room. Both officers testified that they could see only a silhouette after the curtains were closed and could not determine if there were one or two people in the room.
{¶5} After more than an hour of observation, Deputy Nordquist left the officers' vehicle and headed toward Defendant's motel room. Deputy Nordquist was standing at the top of the stairs, near the door to Room 201, when Defendant, who had left the room, approached the bottom of the staircase. Deputy Nordquist pointed his gun at Defendant and ordered Defendant to the ground. Defendant complied. Deputy Nordquist continued to cover Defendant with his gun while Deputy Rodriguez drove to where Defendant was lying on the ground. When Deputy Rodriguez arrived, he handcuffed Defendant, patted him down, and emptied Defendant's pockets. No weapons or contraband were found in that search. Deputy Rodriguez then helped Defendant stand up, and walked him to the front of the motel where the Deputy's vehicle was parked.
{¶6} Without reading Defendant Miranda warnings, Deputy Rodriguez asked Defendant, "Hey, is there anything in that room up there, because my partner has to go up in there, and I don't want him to get hurt." Defendant responded, Deputy Rodriguez then asked, "Is that all?" Defendant responded, "And I got a loaded syringe [up] there."
{¶7} After relaying this information to Deputy Nordquist, who, with another officer, was about to conduct a sweep of Defendant's motel room, Deputy Rodriguez read Defendant Miranda warnings. He again asked Defendant if there was anything in Room 201. Defendant responded that his electronics and jacket were in the room. Deputy Rodriguez asked Defendant about the syringe. Defendant replied, "What syringe?"
{¶8} The sweep of Defendant's motel room revealed a single loaded syringe in plain view on top of the refrigerator in the room, a jacket, and a tablet, which was charging. The room was otherwise empty. The bed was made and the room appeared ready for a new guest. A laboratory test of the contents of the syringe identified methamphetamine.
{¶9} Defendant argues on appeal that the district court erred in refusing to suppress his response to Deputy Rodriguez's question about the contents of his motel room. Defendant contends that suppression was required because Deputy Rodriguez's question was a custodial interrogation and he had not been advised of his right to remain silent, as required by Miranda. The State contends in response that Deputy Rodriguez's question was designed to protect the safety of the law enforcement officers who were about to conduct a sweep of Defendant's motel room, and was, therefore, subject to the "public safety" exception to Miranda adopted by the United States Supreme Court in New York v. Quarles, 467 U.S. 649, (655-56) (1984), and by our Supreme Court in State v. Widmer, 2020-NMSC-007, ¶ 1, 461 P.3d 881.
{¶10} Before addressing the merits of this issue, we first consider whether Defendant preserved in the district court the argument he now raises on appeal. Defendant acknowledges that he did not file a motion to suppress prior to trial, as required, in the absence of good cause, by Rule 5-212(C) NMRA. The issue arose for the first time at trial. Defense counsel objected to the admission of Defendant's answer to Deputy Rodriguez's question about the contents of his motel room on the basis that the State had failed to first establish that Defendant had been given Miranda warnings. A bench conference followed. The State conceded in response to the objection that Miranda warnings had not been given at the time the question was asked, and argued that Defendant's answer should be admitted into evidence because the public safety exception to Miranda applied.
{¶11} The defense admitted ineffective assistance in failing to move prior to trial to suppress the statement, offering as good cause misleading information in Deputy Rodriguez's probable cause statement-specifically, Deputy Rodriguez's statement that he learned about the syringe in the room "through general conversation." The State then argued that the public safety exception to Miranda recognized by our Supreme Court in Widmer applied. See 2020-NMSC-007, ¶ 1. The prosecutor stated that the deputies had prior contact with Defendant, and knew that Defendant had previously had a firearm. Defendant did not respond to the State's public safety argument. Without making findings of fact, the district court overruled the objection. The parties agree on appeal that the district court ruled on the merits of the motion to suppress rather than on the untimeliness of the motion. We, therefore, assume that the district court concluded that the public safety exception applied. See State v. Rivas, 2017-NMSC-022, ¶ 37, 398 P.3d 299 ().
{¶12} On appeal, Defendant argues that the State failed to show that the officers had an "objectively reasonable need to protect the police or the public from immediate danger," the standard set by both Quarles and Widmer for the application of the public safety exception to Miranda. Defendant further contends that a sweep of Defendant's motel room was not required by an immediate danger to the police, and that, in the absence of such immediate danger, the police could not rely on the necessity of a protective sweep to justify a police safety exception to Miranda warnings. Our review of the record in the district court shows that Defendant did not make this argument to the district court or indeed present any argument rebutting the State's claim that the public safety exception applied.
{¶13} To preserve an issue for appeal, an objection must provide the district court with a factual and legal basis on which to make an informed ruling. State v. Quiñones, 2011-NMCA-018, ¶ 23, 149 N.M. 294, 248 P.3d 336. An issue is preserved for appeal if the appellant "fairly invoked a ruling of the trial court on same grounds argued on appeal." In re Norwest Bank of N.M., N.A., 2003-NMCA-128, ¶ 10, 134 N.M. 516, 80 P.3d 98 (internal quotation marks and citation omitted). "Preservation serves the purposes of (1) allowing the trial court an opportunity to correct any errors, thereby avoiding the need for appeal; and (2) creating a record from which this Court can make informed decisions." Quiñones, 2011-NMCA-018, ¶ 23. These purposes not having been served here, this issue is not preserved for our review.
{¶14} We next consider Defendant's argument that the district court's failure to suppress Defendant...
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