State v. Greene

• Decision Date: 30 December 1977
• Docket Number: No. 11374,11374
• Citation: 1977 NMSC 111,91 N.M. 207,572 P.2d 935
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. A. Alan GREENE, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 935

572 P.2d 935

91 N.M. 207

STATE of New Mexico, Plaintiff-Appellant, v. A. Alan GREENE, Defendant-Appellee.

No. 11374.

Supreme Court of New Mexico.

Dec. 30, 1977.

[91 NM 208] Fred Chris Smith, Farmington, Toney Anaya, Atty. Gen., Roderick A. Dorr, Ernesto J. Romero, Asst. Attys. Gen., Santa Fe, for plaintiff-appellant.

Jan A. Hartke, Chief Public Defender, Reginald J. Storment, Appellate Defender, William H. Lazar, Asst. Appellate Defender, Santa Fe, for defendant-appellee.

OPINION

FEDERICI, Justice.

Defendant-appellee, A. Alan Greene, is charged with first degree murder under § 40A-2-1, N.M.S.A.1953 (Repl.1972). Defendant was arraigned in magistrate court in Farmington, New Mexico, on October 4, 1976. At this time defendant filled out and signed an application for appointment of counsel and certificate of indigency and requested that the court appoint an attorney to represent him. A preliminary hearing was subsequently held on October 11, 1976, and defendant was arraigned in the District Court of San Juan County on November 1, 1976. At this time an order appointing counsel was entered by the district court. On November 18, 1976, defendant filed a motion seeking suppression of all oral and written statements made by him to officers of the Tampa, Florida and Farmington, New Mexico police departments, and suppression of a .22 caliber hand gun alleged by police to be the murder weapon. Following an evidentiary hearing at which both the State and the defendant called, examined and cross-examined witnesses, the district judge ordered the suppression of all statements made by defendant to police officers and suppression of the gun as evidence. The State appeals from that order of the district judge, contending that the district judge's conclusions of law are based upon erroneous application of legal principles drawn from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and progeny cases. Our careful review of the record convinces us that the trial court applied an incorrect rule of law to the facts adduced at the suppression hearing. For that reason, we reverse the order of the district judge and remand the cause for further proceedings consistent with the views expressed in this opinion.

This appeal arises from a series of events occurring between September 29 and October 9, 1976, during which time the defendant-appellee made incriminating statements to police officers from Tampa, Florida, and Farmington, New Mexico. The last of these statements was made to Farmington officers on October 9, 1976, and resulted in recovery of the alleged murder weapon.

The record indicates that defendant was arrested in Tampa at approximately 4:00 p. m. on September 30, 1976, upon authority of a New Mexico fugitive warrant, charging him with first degree murder. Upon arrest defendant was given full "Miranda warnings," and indicated that he did not wish to make any statement. At 5:00 p. m. on that same day, defendant spoke to Farmington authorities by telephone, in the presence of officers of the Tampa police department. After receiving full Miranda warnings from the Farmington authorities, defendant stated that the police would be "wasting their time" until he had consulted counsel, and that he did not wish to incriminate himself. The State, in its brief to this Court, has characterized this statement by defendant as an effective invocation of his right to counsel, and we think that this characterization is the only fair one.

Some three hours after speaking to the Farmington police, defendant was approached by a Tampa police detective who had not been present during the telephone conversation and asked if he would like to talk. At this time defendant was again given full Miranda warnings by the Tampa detective and waived his right to remain silent and his right to have an attorney present. During the course of the fifty-minute interview which followed, defendant made incriminating statements concerning the murder of his father. Defendant was then returned to his cell in the Tampa jail.

At 9:30 p. m. of the same evening, after calling the Farmington police to confirm details of the defendant's initial statements, the Tampa detective again brought defendant to an interrogation room in the Tampa jail. At this time defendant was again given full Miranda warnings, indicated that he understood them, recited them back to the Tampa detective, and again waived the rights contained in those warnings. The defendant then made additional incriminating statements to the Tampa detective, and was returned to his cell. The district judge found that between these two interviews of September 30, and for the remainder of the night of September 30, defendant was stripped and kept completely naked in his cell. Both of these September 30 statements were suppressed by the district judge.

On October 1, 1976, defendant waived extradition before a Florida judge and was turned over to Farmington, New Mexico and Colorado police officers. The record indicates that before beginning the trip back to New Mexico, defendant was again given full Miranda warnings by the Farmington officers and instructed that the Farmington officers did not wish to interrogate defendant in any fashion during the trip. On October 3, 1976, while waiting in transit at the Kansas City Airport, defendant allegedly made an incriminating remark. The record indicates that no police interrogation preceded this statement, which defendant denies making. This statement was also suppressed by the district judge.

On the morning of October 4, 1976, having been returned to Farmington late the preceding evening, defendant was questioned for the first time by Farmington police officers. This questioning was preceded by a recitation of Miranda warnings. At this time, defendant indicated that he understood and wished to waive those rights and signed a written waiver of rights form. Defendant then made an oral statement which was recorded in shorthand by a secretary and subsequently transcribed. Defendant refused to sign the statement. This statement was also suppressed by the district judge. Later this same day defendant was arraigned before a magistrate, filled out and signed an application for appointment of counsel and certificate of indigency, and requested that the court appoint an attorney to represent him. No order appointing counsel was entered, and defendant remained without counsel.

On October 9, 1976, defendant made the final statement in issue. It is uncontested that this statement was not preceded by full Miranda warnings, but the State contends that defendant, who had been last advised of his rights on October 4, was told that his "rights still applied." Defendant then made a statement revealing the location of the alleged murder weapon, which was subsequently recovered by Farmington police. Both this statement and the weapon itself were suppressed by the district judge.

Following the suppression hearing the district judge entered findings of fact to the effect that the defendant's statements were not voluntarily, knowingly and intelligently made because defendant's will was overcome by the failure of the Tampa authorities to halt interrogation or obtain counsel for defendant upon his initial request therefor on September 30, and that all later statements to Farmington authorities were "fruit" of the earlier statements made to the Tampa officers. The alleged murder weapon was also viewed by the district judge as "fruit" of the statements taken, in contravention of defendant's rights under the fifth, sixth and fourteenth amendments to the Constitution of the United States.

The issues presented are these: first, whether the district judge correctly suppressed the statements made by defendant on September 30, October 4 and October 9, 1976; second, whether the district judge correctly suppressed the statement allegedly made by defendant at the Kansas City Airport on October 3, 1976; and third, whether the trial judge correctly suppressed the alleged murder weapon, recovered as a result of defendant's oral statement of October 9, 1976.

Defendant's Statements of September 30, October 4 and October 9, 1976.

As phrased by the State, the question raised by the district judge's suppression of these statements and confessions is this: May an accused person in custody, having once invoked his right to the presence of counsel upon being advised of his "Miranda rights," subsequently waive his right to have counsel present during questioning and proceed to make inculpatory or exculpatory statements which the State may thereafter use as evidence at trial? We hold that an accused may so waive his previously invoked right to counsel, for reasons personal to himself, but that the State has a heavy burden imposed upon it of demonstrating that such a waiver is knowing and voluntary.

This question appears with increasing regularity in the reported state and federal decisions. The question arises because of ambiguity in the leading case of Miranda v Arizona, supra. That decision was designed to safeguard the fifth amendment rights of persons in police custody by prohibiting the use of statements made by an accused individual in police custody unless the prosecution demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. These procedural safeguards have come to be known as the familiar "Miranda rights" or "Miranda warnings." See Annot., The Progeny of Miranda v. Arizona in the Supreme Court, 46 L.Ed.2d 903, 907 (1977). The ambiguity arises in determining the procedures to be followed after the required "warnings" have been given. These procedures were outlined in the original Miranda decision, at 384 U.S. 473 to 475, 86 S.Ct. 1627 to 1628, as follows:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that...