State v. Gutierrez, 31,619.

CourtSupreme Court of New Mexico
Citation258 P.3d 1024,150 N.M. 232,2011 -NMSC- 024
Docket NumberNo. 31,619.,31,619.
PartiesSTATE of New Mexico, Plaintiff–Appellee,v.Oden GUTIERREZ, Defendant–Appellant.
Decision Date24 May 2011

150 N.M. 232
258 P.3d 1024
2011 -NMSC- 024

STATE of New Mexico, Plaintiff–Appellee,
Oden GUTIERREZ, Defendant–Appellant.

No. 31,619.

Supreme Court of New Mexico.

May 24, 2011.

[258 P.3d 1030]

Hugh W. Dangler, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.Gary K. King, Attorney General, Farhan Khan, Assistant Attorney General, Santa Fe, NM, for Appellee.
CHÁVEZ, Justice.

{1} Defendant Oden Gutierrez (Child), a sixteen-year-old, confessed to shooting and killing Thomas Powell (Powell) in Powell's home and stealing his car. Child was charged by criminal information with an open charge of murder, aggravated burglary, armed robbery for stealing a car and car keys while armed with a deadly weapon, and unlawful taking of a motor vehicle. A jury found him guilty on all counts and he was sentenced to life in prison plus nineteen and one-half years.

{2} Child appeals pursuant to Rule 12–102(A)(1) NMRA and Article VI, Section 2 of the New Mexico Constitution, which provide for direct appeal to the Supreme Court of a conviction resulting in a sentence of life imprisonment. Child raises several issues, which fall into four categories: (1) the suppression of evidence, namely, his confession and the shoes he was wearing when he was arrested, which were taken from him when he was booked into a juvenile facility; (2) change of venue due to prejudicial pre-trial publicity; (3) a double jeopardy violation for his convictions of both armed robbery and the unlawful taking of a motor vehicle; and (4) an unlawful sentence because (a) it was rendered without a pre-sentence report, (b) the district court incorrectly presumed that a life sentence was mandatory for a serious youthful offender, and (c) the life sentence was cruel and unusual punishment. We conclude that first, the confession was admissible because Child knowingly and intelligently waived his Miranda rights, he voluntarily consented to the interrogation, and he voluntarily confessed. The shoes were also admissible because they were taken during a constitutional inventory search. Second, the district court did not abuse its discretion in denying the motion to change venue because voir dire of the jury did not reveal any prejudice of the panel from the pre-trial publicity that had occurred several months before the trial. Third, because Child's conviction of armed robbery required proof of the taking of Powell's car, which was the same proof required for the unlawful taking of the vehicle conviction, conviction for both crimes is a violation of double jeopardy, and therefore the unlawful taking of a vehicle conviction is vacated. Finally, because a mandatory pre-sentence report was not provided to the district court or the parties before the sentence was imposed on Child, we remand for re-sentencing only after both the court and the parties have received a pre-sentence report.


{3} On December 10, 2007, authorities in Nevada arrested Child on two outstanding New Mexico warrants that appeared in the Federal Bureau of Investigation's computerized index of criminal justice information, more commonly known as the NCIC system. One warrant pertained to Child's escape from the Albuquerque Boys Reintegration Center and the other to his suspected involvement, after his escape, in the killing of Powell at Powell's home in Farmington. Following his arrest, Child was booked into a juvenile detention facility in Las Vegas, Nevada and his shoes were taken from him as evidence of a crime.

{4} The next day New Mexico detectives Cordell Tanner (Tanner) and Kyle Lincoln (Lincoln) of the San Juan County Sheriff's Office traveled to Nevada and conducted an audio-recorded custodial interrogation of Child at the juvenile detention center. During the interrogation, Child made certain inculpatory statements, ultimately confessing

[258 P.3d 1031]

to shooting and killing Powell so that he could steal Powell's car.

{5} Child filed a motion to suppress as evidence his statements and confession, advancing several arguments to demonstrate that waiver of his Miranda rights was not knowing and intelligent and his statements and confession were not voluntary, but were the product of duress. He also sought to suppress as evidence the shoes that were taken from him when he was booked into the juvenile facility, contending that the seizure of his shoes was unconstitutional. For the following reasons, we reject Child's arguments.


{6} In support of his argument that he neither knowingly, intelligently, and voluntarily waived his Miranda rights nor voluntarily confessed during the custodial interrogation, Child claims that (1) his mental impairment, caused by attention deficit hyperactivity disorder (ADHD), coupled with the fact that Spanish is his primary language, made it difficult for him to fully understand the Miranda warnings he was given; (2) Tanner exploited Child's upbringing in a traditional Latino household where he was taught to be polite and deferential to authority figures; (3) he did not comprehend that his confession would be an overwhelming determinant of his guilt or innocence; (4) he did not validly waive his rights because he did not sign a waiver; and (5) Tanner promised him leniency to get him to confess.

{7} On appeal of a district court's decision to deny a motion to suppress inculpatory statements,

we accept the factual findings of the district court unless they are clearly erroneous, and view the evidence in the light most favorable to the district court's ruling. The ultimate determination of whether a valid waiver of [ Miranda ] rights has occurred, however, is a question of law which we review de novo.

State v. Martinez, 1999–NMSC–018, ¶ 15, 127 N.M. 207, 979 P.2d 718 (internal quotation marks and citation omitted). Before statements obtained during a custodial interrogation may be introduced at trial, the State must demonstrate “a knowing, intelligent, and voluntary waiver” of constitutional rights by a preponderance of the evidence. Id. ¶¶ 13–14. “Both the Fifth Amendment protection against self-incrimination and the Fourteenth Amendment right to due process negate admissibility of a confession elicited through intimidation, coercion, deception, assurances, or other police misconduct that constitutes overreaching.” State v. Setser, 1997–NMSC–004, ¶ 9, 122 N.M. 794, 932 P.2d 484. In addition, the Fifth Amendment has been interpreted as requiring the State, prior to a custodial interrogation of an accused, to advise the accused (1) of the right to remain silent; (2) that any statement made by the accused may be used as evidence against him or her; and (3) of the right to the presence of an attorney, either retained or appointed. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As with adults, the legitimacy of a child's waiver of Miranda rights is resolved by assessing the totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

{8} With respect to children, we have interpreted NMSA 1978, Section 32A–2–14(E) (2003) as codifying factors relevant to the totality of the circumstances, similar to those approved by the U.S. Supreme Court in Fare, 442 U.S. at 725, 99 S.Ct. 2560. See Setser, 1997–NMSC–004, ¶ 13, 122 N.M. 794, 932 P.2d 484. Section 32A–2–14(E) provides:

In determining whether [a child over the age of fifteen] knowingly, intelligently and voluntarily waived the child's rights, the court shall consider the following factors:

(1) the age and education of the respondent;

(2) whether the respondent is in custody;

(3) the manner in which the respondent was advised of the respondent's rights;

(4) the length of questioning and circumstances under which the respondent was questioned;

[258 P.3d 1032]

(5) the condition of the quarters where the respondent was being kept at the time of being questioned;

(6) the time of day and the treatment of the respondent at the time of being questioned;

(7) the mental and physical condition of the respondent at the time of being questioned; and

(8) whether the respondent had the counsel of an attorney, friends or relatives at the time of being questioned.

We have, however, emphasized “some of the circumstances that may be particularly relevant for a juvenile, such as the presence of a relative or friend.” Martinez, 1999–NMSC–018, ¶ 18 [127 N.M. 207, 979 P.2d 718].

{9} We therefore proceed to analyze the totality of the circumstances surrounding Child's interrogation, bearing in mind that the waiver inquiry

has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (citations omitted).

{10} The facts surrounding Child's custodial interrogation are not in dispute. Tanner and Lincoln arrived at the juvenile detention facility in Nevada at approximately 10:00 a.m. on December 11, 2007. They found Child visiting with his mother in the facility's cafeteria. Tanner introduced himself and told Child he wanted to visit with him. Child agreed, and Tanner took him into an approximately fifteen by fifteen foot office located nearby, while Child's mother waited in the cafeteria. Once in the office, Tanner set up an audio recording device and sat across a table approximately four to five feet away from Child. Lincoln sat next to Tanner, but was even further away from Child. Tanner read Child his Miranda rights and Child acknowledged the reading of each right by nodding his head. After reading Child his rights, Tanner asked him...

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