State v. Pisio

• Decision Date: 23 November 1994
• Docket Number: No. 14768,14768
• Citation: 119 N.M. 252,889 P.2d 860,1994 NMCA 152
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Johnny PISIO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 860

889 P.2d 860

119 N.M. 252

STATE of New Mexico, Plaintiff-Appellee, v. Johnny PISIO, Defendant-Appellant.

No. 14768.

Court of Appeals of New Mexico.

Nov. 23, 1994.

Certiorari Denied Jan. 5, 1995.

[119 N.M. 255] Tom Udall, Atty. Gen., Daniel F. Haft, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, David Henderson, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Chief Judge.

Defendant appeals his convictions for two counts of second-degree criminal sexual penetration (criminal sexual penetration committed during a felony) (CSP II, felony), and one count each of kidnapping, assault with intent to commit a violent felony, and criminal sexual contact (CSC). In his briefs Defendant argued that the trial court committed reversible error (1) by failing to suppress a question he asked police following his request for assistance of counsel; and (2) in failing to instruct the jury (a) on false imprisonment as a lesser-included offense of kidnapping; (b) on third-degree criminal sexual penetration (CSP III) as a lesser-included offense of CSP II, felony; and (c) on assault as a lesser-included offense of assault with intent to commit a violent felony. Issues raised in the docketing statement but not briefed are deemed abandoned. State v. Ramos, 115 N.M. 718, 720, 858 P.2d 94, 96 (Ct.App.), cert. denied, 115 N.M. 602, 856 P.2d 250 (1993).

We granted Defendant's motion prior to oral argument to argue the effect of State v. Brooks, 117 N.M. 751, 877 P.2d 557 (1994), decided after his appeal had been fully briefed. In his motion and at oral argument, Defendant urged us to hold that fundamental error resulted from the lack of adequate jury instruction or instructions on the issue(s) of whether the facts supported his convictions of five separate criminal offenses. We reverse Defendant's conviction for kidnapping on the ground that on the facts of this case, double jeopardy principles preclude a conviction for kidnapping in addition to convictions for CSP II, felony. We affirm the other convictions. We remand for resentencing and entry of an amended judgment.

FACTS

Victim testified to an incident that occurred while she was moving out of a residential alcohol treatment center on February 29, 1992, the day before her graduation from the program. Defendant neither testified nor presented evidence. The following factual background paraphrases Victim's testimony.

Victim met Defendant about three weeks earlier when he entered the program and moved into apartment 124A; Victim resided in 124C. Although they became friends and visited in each other's apartments, they were not romantically or intimately acquainted.

Sometime after 4:30 p.m., February 29, Victim gave Defendant a ride to a bar across town to repay a debt. Upon their return, Defendant went to Victim's apartment to give her his phone number; there, he offered to carry things to the car for her. She declined. However, to get from her apartment to her car, Victim had to pass Defendant's apartment. After she had made several trips to her car, Defendant came out of his apartment and helped carry the rest of her belongings.

On the last trip, Defendant carried Victim's bag to his apartment and asked her to come inside for a minute. She did so. He closed and locked the door, told Victim to sit down, and said that he wanted to give her a kiss. She thanked him, but said she was not interested. Defendant then moved closer to Victim on the couch. Victim tried to get up to go out the door or move toward the door, but Defendant was blocking her way. She moved to another couch. Defendant then squeezed between Victim and the couch arm and attempted to kiss her. She yelled at him, said that she did not understand his behavior, and told him that she wanted to leave. He clamped his hand over her mouth and tried to turn her toward him for a kiss. She resisted. They struggled to the floor.

On the floor Defendant straddled Victim around her waist and tried to pin her arms down. She managed to pull herself over to the opposite couch and grab the leg in an attempt to pull away, but he pulled her back by the throat with the crook of his arm and dragged her toward a hall, which led to two bedrooms and a bathroom.

When Victim continued to refuse to kiss him, Defendant began sucking her breast, pulled down her shorts and underwear, performed oral sex for about a minute, tried to kiss her again, resumed oral sex for a little longer, then penetrated Victim vaginally with his penis. At this point, approximately five minutes had passed since Victim entered Defendant's apartment. Defendant told Victim to wipe herself, insisted that she go into his bedroom and get some rags to do so, and told her to dress.

When she refused to go in the bedroom, Defendant tried to force her, but she held onto the bathroom door frame. Defendant explained that he was afraid she would leave while he was in the bedroom. She told him that she would stand in the bathroom doorway where he could see her.

When Victim subsequently left the bathroom, Defendant was standing in the hallway, a little farther than three feet from the bathroom door. She walked up the hallway towards the front door, with Defendant walking backwards in front of her. Before they got to the living room, Defendant grabbed Victim by the shoulders, told her that he was going to "finish what he started," shoved her to the floor, and penetrated her vaginally. During the next few minutes, he attempted repeated penetrations. Ultimately, he told her things hadn't worked out as planned, put his clothes back on, and again told her to dress.

To secure her exit from the apartment, Victim finally kissed Defendant and asked him to help her carry to her car the bag he had brought into his apartment. He did so. She drove away at approximately 6:17 p.m.

I. DENIAL OF MOTION TO SUPPRESS

Defendant was arrested at his apartment during the evening of February 29. Advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he signed a consent to search form, but claimed his right to counsel. He remained at the apartment during the search. Once he was removed to the police station, a detective who had been present at the search, but who had arrived after Defendant had been arrested, advised him of the reason for arrest and again read him his rights. An interview occurred at approximately 2:00 a.m. on March 1. The detective recorded the interview. During the interview, the detective asked Defendant to verify his signature on the consent to search form and asked if he was aware that certain items had been seized from his apartment during the search. The detective confirmed that Defendant wished to claim his right to counsel, advised Defendant of the arraignment date and the charges filed, and then turned off the tape recorder. Five minutes later, the detective turned the recorder back on because Defendant had asked whether he would "take the rap" if Victim had engaged in sex with someone else. The detective repeated the question on tape and then explained that the State would seek a search warrant to get bodily samples from Defendant for serological examination. Between the time the tape recorder was initially turned off and the time Defendant asked his question, the detective was completing paperwork while Defendant sat in the detective's office. Defendant asked no further questions. The evidence of Defendant's question was introduced at trial over his objection.

On appeal, Defendant claims that his Fifth Amendment privilege against self-incrimination was violated. Defendant does not challenge his responses to the detective's questions during the interview, because those responses were not inculpatory. Rather, Defendant contends that the trial court erred in admitting his question to the detective concerning whether he would be held responsible if Victim had engaged in sex with someone else.

Defendant notes that under Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980), custodial interrogation includes both direct questions and their functional equivalent, i.e., "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Footnotes omitted.) Defendant further notes that the detective testified he was ready to turn the tape back on if Defendant made a statement with "evidentiary value." He reasons that, under these circumstances, the detective's silence (after the questioning about Defendant's signature and items seized and the imparting of information about arraignment) was within the Innis concept of custodial interrogation. See generally State v. Ybarra, 111 N.M. 234, 238, 804 P.2d 1053, 1057 (1990) (compulsion present in emergency room atmosphere rose above that inherent in custody itself, and police took advantage of it by subjecting the defendant to circumstances which they knew or should have known were likely to yield incriminating responses). Based on Ybarra, Defendant argues that even silence on the part of a police officer can be the functional equivalent of direct questioning. Alternatively, Defendant argues that his question was tainted by the prior taped interview, and that the State failed to prove a valid waiver of his Fifth Amendment privilege against self-incrimination. See Miranda, 384 U.S. at 475, 86 S.Ct. at 1628.

The federal constitution does not preclude the use of incriminating statements against the accused if those statements can be characterized as volunteered. Id. at 478, 86 S.Ct. at 1630. "Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.... Volunteered statements of any kind are not barred by the Fifth Amendment...." Id. Whether "voluntary" is...