State v. Lobato

• Decision Date: 15 March 2006
• Docket Number: No. 24,910.,24,910.
• Citation: 2006 NMCA 051,134 P.3d 122
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Wayne LOBATO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 122

134 P.3d 122

2006 NMCA 051

STATE of New Mexico, Plaintiff-Appellee, v. Wayne LOBATO, Defendant-Appellant.

No. 24,910.

Court of Appeals of New Mexico.

March 15, 2006.

Certiorari Denied, No. 29,749, May 1, 2006.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} Defendant appeals his conviction for one count of criminal sexual penetration of a minor (CSPM). Defendant contends that (1) the trial court erred in admitting Defendant's videotaped confession over a defense objection that the confession was involuntary; (2) the trial court erred in declaring a mistrial, and because the mistrial ruling was erroneous, Defendant's retrial violated the six-month rule; and (3) the trial court lacked jurisdiction to try and convict Defendant because at the time of the trial, Defendant's appeal of the mistrial order was pending in this Court. We affirm.

FACTS

{2} On the evening of September 24, 2002, the five-year-old victim reported to her mother that Defendant had molested her. The mother called the police, and at about 11:00 p.m., officers went to Defendant's house to question him. Defendant agreed to go to the police station for questioning. Defendant was given Miranda warnings and read and signed a waiver indicating that he understood his rights. Defendant was questioned, beginning just before midnight, for between one and two hours. Defendant eventually confessed to one incident of molestation. We provide further detail about the confession in our analysis below.

{3} Defendant was arraigned on November 12, 2002, and charged with three counts of CSPM. The trial court granted an extension of time under Rule 5-604 NMRA to August 12, 2003. Defendant's trial was set for August 7, 2003. On that day, the trial court began jury selection. In the course of questioning the potential jurors, defense counsel apparently asked a question regarding whether jurors thought a person might make a false confession if coerced. In doing so, defense counsel made reference to the eighteen-year sentence that is possible upon a conviction of first degree CSPM. Counsel also stated that Defendant would spend "the rest of his life in prison" if convicted.

{4} Immediately after these remarks, the State moved for a mistrial on the theory that the venire was tainted because the jurors would know the possible consequences of a guilty verdict. The State argued that this knowledge would be problematic in light of the standard jury instruction that jurors are not to consider the consequences of their verdict. The trial court allowed defense counsel an opportunity to rehabilitate the venire, but ultimately declared a mistrial, finding manifest necessity because the panel was beyond rehabilitation.

{5} On September 5, 2003, Defendant filed a notice of appeal in connection with the order declaring a mistrial. On September 16, 2003, the trial court entered an order granting free process on appeal and appointing appellate counsel.

{6} In the docketing statement for that appeal, Defendant argued that the mistrial should not have been granted due to the lack of manifest necessity. Defendant's apparent theory was as follows: in the absence of a mistrial, the six-month rule would have run on August 12, 2003; the mistrial ruling was error; therefore, the six-month rule kept running despite the mistrial, and any subsequent prosecution would be untimely.

{7} On December 4, 2003, this Court filed a notice of proposed summary disposition. We proposed to affirm on the ground that the trial court had not abused its discretion in declaring the mistrial. Rather than responding to the notice, Defendant filed a motion to withdraw the appeal. On February 5, 2004, we granted Defendant's motion, ordering mandate to issue immediately. The mandate was issued on February 20 and filed in the district court on February 23.

{8} In the meantime, the trial court proceeded with Defendant's trial. There were at least four pretrial conferences and motion hearings in late 2003 and early 2004. The trial was held on February 18, 2004. At trial, the victim and her mother testified, and the videotaped confession was played for the jury. Defendant was convicted of one of the three counts of CSPM and sentenced to eighteen years.

DISCUSSION

1. Defendant's Confession Was Voluntary

{9} Defendant first argues that the trial court violated his due process rights by admitting his videotaped confession because the confession was involuntary. A confession is involuntary only if official coercion has occurred. State v. Munoz, 1998-NMSC-048, ¶ 21, 126 N.M. 535, 972 P.2d 847. Official coercion occurs when "a defendant's will has been overborne and his capacity for self-determination [has been] critically impaired." Id. ¶ 20 (internal quotation marks and citation omitted). If, however, the confession is "the product of an essentially free and unconstrained choice by its maker," it may be used against the defendant without offending due process. Id. ¶ 21 (internal quotation marks and citation omitted). On appeal, we review the totality of the circumstances to determine as a threshold matter of law whether the State has proved by a preponderance of the evidence that Defendant's confession was voluntary. Id. ¶ 23.

{10} Defendant argues that the following facts show involuntariness: (1) the questioning occurred late at night and Defendant was tired; (2) the questioning officer repeatedly asserted that the State would have a strong case against Defendant based on physical evidence, but no physical evidence was presented at trial; and (3) the officer repeatedly assured Defendant that if he confessed, he would get treatment and a short prison term, but if he refused to confess, he would get an eighteen-year sentence. We address these issues in order, relying, as do the parties, on the contents of the videotaped confession.

{11} Defendant's first argument is that his fatigue at the time of the interview contributed to the involuntariness of his confession. Defendant notes that it was late at night, that he had gotten little sleep the night before, and that he had worked a full day. As stated, the test for voluntariness is whether official coercion occurred. While a finding that officers took advantage of a defendant's fatigue or weakened mental state might be relevant, the fact that a defendant was tired does not in itself resolve the issue of whether a confession was involuntary. See People v. Valdez, 969 P.2d 208, 213 (Colo. 1998) (en banc) ("Absent evidence that the officers deprived [the defendant] of food and rest as a means of physical punishment, the fact that [the defendant] happened to be hungry and tired does not support a conclusion that his statements were involuntary."); Commonwealth v. Fernette, 398 Mass. 658, 500 N.E.2d 1290, 1294 (1986) (upholding trial court's finding of voluntariness where "[t]he judge found that even if the defendant were tired and hungry ... that did not necessarily make the statement involuntary," and where the defendant's manner of speech and responses to questions on tape of confession indicated voluntariness); United States v. DiLorenzo, 1995 WL 366377, at *8 (S.D.N.Y. June 19, 1995) (unpublished) ("[A] claim that a defendant was exhausted or suffering from the effects of alcohol is not, in the absence of coercive law enforcement activity, sufficient to characterize his confession as involuntary.").

{12} Defendant does not argue that the interviewing officer took advantage of his fatigue. Nor does he argue that he was not able to understand the officer's questions or think rationally due to his fatigue. Our review of the confession indicates that while Defendant did tell the officer that he was tired on several occasions, at no point did he ask the officer to terminate the interview or otherwise indicate that he was concerned about proceeding due to fatigue. Moreover, Defendant's demeanor indicates that he was not too tired to proceed. At all times, he appears alert and responsive to the officer's questions. Under these circumstances, we hold that Defendant's fatigue does not contribute to a finding of involuntariness.

{13} Defendant next argues that the interviewing officer misled Defendant regarding the physical evidence in the case. His brief states, "Throughout the interview, the interviewing officer asserted that the state had a strong case against him — based on the physical evidence." We first note that while such misrepresentations, if supported by the record, are relevant to the voluntariness inquiry, they do not necessarily invalidate a confession. See, e.g., Frazier v. Cupp, 394 U.S. 731, 737, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (noting that while it was relevant that police had falsely told the defendant that co-conspirator had already confessed, such circumstances were "insufficient... to make this otherwise voluntary confession inadmissible"); Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir.1992) (explaining why official deceit about the strength of the case against a defendant does not necessarily rise to the level of official coercion).

{14} More importantly, the record does not support Defendant's contentions. Defendant does not point to any specific instances during the interview where the officer misrepresented the evidence. We have reviewed the videotape, and we note only the following four instances where the officer referred to the evidence. First, near the beginning of the interview, the officer stated,

I have a pretty good case against you, okay? Right now in the other room here just across the hallway there's a rack in there, and it's a stainless steel rack and it's where we put items of clothing that are involved in circumstances like this, okay? And it's my opinion that I'm going to find saliva from you...