State v. Lasner

• Decision Date: 07 December 2000
• Docket Number: No. 25,391.,25,391.
• Citation: 14 P.3d 1282,2000 NMSC 38,129 N.M. 806
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Paul Richard LASNER, Defendant-Appellant.
• Court: New Mexico Supreme Court

14 P.3d 1282

129 N.M. 806

2000 NMSC 38

STATE of New Mexico, Plaintiff-Appellee, v. Paul Richard LASNER, Defendant-Appellant.

No. 25,391.

Supreme Court of New Mexico.

December 7, 2000.

Phyllis H. Subin, Chief Public Defender, Nancy M. Hewitt, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

MAES, Justice.

{1} This is an appeal under Article VI, § 2 of the New Mexico Constitution of the convictions of Paul Lasner for one count of first degree murder of Johnny Joe Lucero, contrary to NMSA 1978, § 30-2-1(A) (1994), one count of aggravated battery on German Ibarra, and one count of aggravated battery on Noe Torres, contrary to NMSA 1978, § 30-3-5(C) (1969). The Defendant sets forth three grounds on which he asks this Court to reverse his convictions. First, he argues the trial court erred in not suppressing statements the Defendant made to police following his apprehension shortly after the shooting of the victims. Second, he argues his constitutional right to confront witnesses against him was violated when the trial court limited his cross-examination of Ibarra and Torres concerning their criminal records. Third, he argues the trial court erred in denying his motion for change of venue. We affirm the Defendant's convictions.

PRELIMINARY FACTS

{2} A shooting occurred in the early morning hours of August 6, 1997 on Chama Street in Clovis, New Mexico. Injured in the shooting were Johnny Joe Lucero, German Ibarra, and Noe Torres. Lucero died later of the wounds he received. On the evening of August 5, Augustine Gonzales went to a house on Chama Street looking for his cousin. There, he testified, he was badly beaten by several individuals with boards. In response, Gonzales left to get his friend, the Defendant, and they returned with two others to the house on Chama Street sometime around midnight. Gonzales was driving and the Defendant was in the back seat of the vehicle behind the driver's seat. When they arrived at the house, Gonzales honked the car horn and four or five individuals ran out from the backyard. Gonzales heard a gunshot coming from the back of his car and saw sparks. He believed the Defendant had fired a shotgun. Lucero, Ibarra, and Torres were struck by the blast.

{3} The Defendant became a suspect in the shooting. At approximately 3:00 a.m., the Defendant was located at his girlfriend's house, and was transported to the police station where he was taken to the office of Detective Sergeant Doug Miller. The Defendant was handcuffed. Miller, who was alone with Defendant throughout the interview, testified that the Defendant was awake and alert and that he read the Defendant his rights from a form. Miller stated that he uses more than one type of form—he has one for adults, one for juveniles (the Defendant was 17 years old), and one in Spanish. He tries to use the correct form, but he did not use a juvenile form for the Defendant, nor was the Defendant informed of his right to have his mother present during questioning. Miller said his usual procedure is to read the rights line by line, and ask the suspect whether he understands each line. The Defendant stated he had completed eleventh grade and was specifically asked whether he agreed to give up his rights and talk to the Detective. Detective Miller testified that the Defendant indicated that he understood his rights and was willing to cooperate. Miller then had the Defendant sign a waiver of his rights.

{4} The Detective then turned on a tape recorder and began to read the Defendant his rights again. The Defendant's responses are clear until he was asked whether he was willing to make a statement, at which time the Defendant seems to mumble. The tape is then turned off, because, Miller testified, there was a knock on the door and another detective came in to ask him a question. When the taping was resumed, the Defendant admitted to the shooting. At no time during the interrogation of the Defendant was his mother or attorney present. Later it was shown that the Defendant had been involved in juvenile criminal matters previously.

{5} Before trial, the State filed motions in limine to prevent the Defendant from cross-examining witnesses Ibarra and Torres as to certain of their past crimes. The Defendant filed a motion to suppress his statements to the police and a motion for change of venue, both of which were denied.

SUPPRESSION OF STATEMENTS TO POLICE

{6} The Defendant claims that he was not accorded his Fifth Amendment right against self-incrimination in giving his confession to police. Specifically, under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the police must advise one under custodial interrogation "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Before proceeding to question the individual, the police must obtain a knowing, intelligent, and voluntary waiver of these rights. Id. When a Defendant attempts to suppress a statement given to the police, the State bears the burden of demonstrating by a preponderance of the evidence that the Defendant knowingly, intelligently, and voluntarily waived his rights against self-incrimination. State v. Martinez, 1999-NMSC-018, ¶ 14, 127 N.M. 207, 979 P.2d 718. The reviewing court must evaluate the totality of the circumstances, including the mental and physical condition, background, experience and conduct of the accused, as well as the conduct of the police, in determining whether the State has successfully carried its burden. Id. (quoting State v. Salazar, 1997-NMSC-044, ¶ 62, 123 N.M. 778, 945 P.2d 996). The test for reviewing a juvenile's waiver of rights is identical to that of an adult's and is based on the totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).¹ In Martinez we noted that the legal question of whether or not a "valid waiver of Fifth Amendment rights" has occurred is reviewed de novo. Martinez, 1999-NMSC-018, ¶ 15,127 N.M. 207,979 P.2d 718,.

{7} The Defendant first argues generally that the rights guaranteed under the Children's Code, NMSA 1978, § 32A-2-14(E) (1993), must apply because at the time he made his statements to Detective Miller, he was a juvenile and had not yet been charged with any crime which would qualify him as a serious youthful offender because Lucero had not yet died. See NMSA 1978, § 32A-2-3(H) (1996) ("`[S]erious youthful offender' means an individual fifteen to eighteen years of age who is charged with and indicated or bound over for trial for first degree murder.") In Martinez we applied the provisions of Section 32A-2-14(E) to an interrogation conducted before Martinez had been charged or indicted for first degree murder. Martinez, 1999-NMSC-018, ¶ 17, 127 N.M. 207, 979 P.2d 718. Thus, we examine the Defendant's waiver of his constitutional rights under Section 32A-2-14(E). Id. In both State v. Niewiadowski, 120 N.M. 361, 365, 901 P.2d 779, 783 (Ct.App.1995) and State v. Setser, 1997-NMSC-004, ¶ 13, 122 N.M. 794, 932 P.2d 484, the defendants were sixteen years old at the time of their interviews, but were subsequently tried for murder as adults. The Court of Appeals and this Court, respectively, in Niewiadowski, 120 N.M. at 366, 901 P.2d at 784, and Setser, 1997-NMSC-004, ¶ 13, 122 N.M. 794, 932 P.2d 484, utilized the Children's Code, Section 32A-2-14(E), to determine whether their statements were voluntary and therefore admissible. That section provides:

In determining whether the child 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 or not the respondent is in custody;

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

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

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

(6) the time of day and the treatment of the respondent at the time that he was questioned;

(7) the mental and physical condition of the respondent at the time that he was questioned; and (8) whether or not the respondent had the counsel of an attorney, friends or relatives at the time of being questioned.

In Martinez we summarized this list as a codification of the totality-of-the-circumstances test. Martinez, 1999-NMSC-018, ¶ 18, 127 N.M. 207, 979 P.2d 718. We examine the totality of the circumstances to determine whether the Defendant knowingly, intelligently, and voluntarily waived his constitutional rights "giving particular emphasis to the factors listed" in the statute. Id.

{8} On this basis, we analyze the Defendant's specific complaints about the circumstances of his giving his waiver. He emphasizes that he was a minor, that a special form used to advise juveniles of their rights was not used in his case, that he was not informed that he may have had the right to have a parent present during questioning, that the interrogation took place at approximately 3:00 a.m. in a police station while he was in handcuffs, and that the tape recorder was turned off at a point during the interrogation when he might have vacillated in understanding or waiving his rights.

{9} The Defendant, who was associated with gangs, had numerous previous contacts with law enforcement. In view of his previous experience with the court system and the fact that he had been questioned by police officers and represented by attorneys in the past, a minor such as the Defendant was capable of a knowing, intelligent, and voluntary waiver. Id. ¶ 24. In any event, regardless of his previous experience with law enforcement, "[a]t the time of questioning, [the defendant]...