State v. QuiÑones

Decision Date19 January 2011
Docket NumberNo. 28,607.,28,607.
Citation2011 -NMCA- 018,248 P.3d 336,149 N.M. 294
PartiesSTATE of New Mexico, Plaintiff–Appellee,v.Elizar Urrutia QUIÑONES, Defendant–Appellant.
CourtCourt of Appeals of New Mexico


Gary K. King, Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.


FRY, Chief Judge.

{1} Defendant appeals his felony convictions for one count of intentional child abuse resulting in death and two counts of intentional child abuse resulting in great bodily harm, contrary to NMSA 1978, Section 30–6–1(D) (2004) (amended 2005 and 2009). We conclude that: (1) the district court properly denied Defendant's motion to suppress an incriminating statement he made to detectives, (2) the district court did not abuse its discretion on two evidentiary rulings, (3) Defendant has not established a prima facie case for ineffective assistance of counsel, (4) there was substantial evidence supporting Defendant's convictions for intentional child abuse, and (5) there was no cumulative error. We therefore affirm.


{2} Defendant's convictions stem from the death of his daughter, Diana, following an incident that arose on January 11, 2005, when Diana was approximately six weeks old. Defendant was allegedly changing Diana's diaper after having fed her when he noticed that she was unresponsive and had stopped breathing. Emergency personnel responded to Defendant's 911 call, and Diana was later air-lifted to a hospital in Albuquerque, New Mexico, where her treating physicians concluded that she was brain dead after having suffered extensive brain injuries. Diana's other injuries included bucket-handle fractures of both femurs and several rib fractures, which her physicians determined were older injuries at various stages of healing. Diana died four days later as a result of her brain injuries. The State's experts opined at trial that Diana was a victim of shaken baby syndrome and that her injuries were the result of child abuse.

{3} On January 12, 2005, while Diana was still being treated at the hospital, detectives questioned Defendant and his wife regarding Diana's injuries, and Defendant stated that he had previously injured Diana on three separate occasions. Shortly thereafter, Defendant was arrested and indicted on three counts of intentional child abuse, contrary to Section 30–6–1(D). Defendant was tried twice; his first trial resulted in a mistrial after the jury was unable to agree on a verdict on all three counts. At his second trial, Defendant was convicted on all counts. Pursuant to New Mexico's habitual offender statute, NMSA 1978, Section 31–18–17 (2003), the district court sentenced Defendant to a total of 27 years in prison followed by two years' parole. This appeal followed.


{4} Defendant raises six issues on appeal. He argues that: (1) the district court erred in refusing to suppress Defendant's incriminating statement, (2) the district court erred in denying Defendant an opportunity to elicit testimony that his interrogator did not supply Defendant with an attorney during his interrogation, (3) the district court erred in denying Defendant an opportunity to elicit testimony at trial about his non-violent character, (4) Defendant was denied effective assistance of counsel because his attorney failed to consult with or retain a defense expert on shaken baby syndrome, (5) there was insufficient evidence to support Defendant's convictions, and (6) cumulative error deprived Defendant of a fair trial. We address each issue in turn below.

1. Suppression of Defendant's Incriminating Statement

{5} Defendant first contends that the district court erred in denying his motion to suppress the incriminating statement he made during the second of his two encounters with Detective Sheila Cunningham on the evening of January 12, 2005. Specifically, Defendant argues that his statement should have been suppressed for three reasons: (1) he did not knowingly and intelligently waive his previously invoked Fifth Amendment right to counsel before he gave the incriminating statement during his second encounter, (2) his statement was involuntarily given, and (3) the New Mexico Constitution requires that interrogators supply an attorney once a defendant has invoked his right to counsel.

{6} We begin by stating the facts surrounding the events of Defendant's interrogation. It is undisputed that at the request of Detective Cunningham, Defendant and his wife accompanied Detectives Cunningham and Larry Tafoya from the hospital to the police station on the evening of January 12, 2005. Defendant and his wife were placed in separate interview rooms, and Defendant was questioned by Detective Cunningham. Before the questioning began, Defendant was given Miranda warnings in full, and he signed a waiver of rights form. After Detective Cunningham had questioned Defendant for some time regarding the serious nature of Diana's injuries and the events preceding Defendant's 911 call, Defendant unequivocally asserted his right to counsel. At this point, Detective Cunningham ceased the interrogation and left the room.

{7} After being left alone in the interview room for approximately one hour, Defendant knocked on the door and asked to speak with Detective Cunningham again because he wanted to “take the blame for it.” When Detective Cunningham re-entered the room, Defendant informed her that he had changed his mind about wanting an attorney because of his wife and because he was tired. He then proceeded to incriminate himself, stating that: (1) two days earlier, he had squeezed Diana's head “hard enough to hurt her”; (2) two weeks earlier, he had held Diana tightly and squeezed hard enough to break her ribs; and (3) some time ago, he held Diana's legs too tightly while changing her diaper and then heard her legs pop. Before his first trial, Defendant filed a motion to suppress this incriminating statement, which the district court denied.

{8} A ruling on a motion to suppress evidence presents a mixed question of law and fact. State v. Garcia, 2005–NMSC–017, ¶ 27, 138 N.M. 1, 116 P.3d 72. On appeal, we “review[ ] factual findings under a substantial evidence standard, viewing the facts in the light most favorable to the prevailing party, and we review de novo whether the district court correctly applied the law to the facts.” State v. Slayton, 2009–NMSC–054, ¶ 11, 147 N.M. 340, 223 P.3d 337. Whether a defendant has validly waived his/her previously invoked right to counsel and whether a confession is voluntarily given are legal determinations that we review de novo on appeal. See State v. Barrera, 2001–NMSC–014, ¶ 23, 130 N.M. 227, 22 P.3d 1177 (applying de novo review to whether the defendant waived his Miranda rights); State v. Salazar, 1997–NMSC–044, ¶ 59, 123 N.M. 778, 945 P.2d 996 (applying de novo review to whether a confession is voluntary).

{9} Pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in order to protect a defendant's right against self-incrimination, interrogators are required to inform a suspect, before beginning questioning: (1) of the right to remain silent, (2) of the prospect that any statement made may be used as evidence against him/her, and (3) of the right to an attorney during an interrogation. Id. at 444, 86 S.Ct. 1602. However, any of these rights may be waived, “provided [that] the waiver is made voluntarily, knowingly and intelligently.” Id. When a defendant moves to suppress statements allegedly made in violation of Miranda, the [s]tate bears the burden of demonstrating by a preponderance of the evidence that the defendant made a voluntary, knowing, and intelligent waiver. State v. Martinez, 1999–NMSC–018, ¶ 14, 127 N.M. 207, 979 P.2d 718. In doing so, [t]he [s]tate must demonstrate that the waiver of rights was the product of a free and deliberate choice rather than intimidation, coercion, or deception” and also must show that the waiver “was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. (internal quotation marks and citation omitted). We review whether such a waiver was made by evaluating “the totality of the circumstances and the particular facts, including consideration of the mental and physical condition, background, experience, and conduct of the accused, as well as the conduct of the police.” Id. (internal quotation marks and citation omitted). Additionally, we must indulge every reasonable presumption against waiver. Id.

a. Defendant's Waiver of Previously Invoked Right to Counsel

{10} Defendant argues that he did not waive his previously invoked Miranda right to counsel due to the “circumstances of [his] confinement” and the fact that the State did not “actually produc[e] an attorney” after he invoked his right to counsel during the first encounter with Detective Cunningham. In Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court established the general rule regarding further questioning after an accused has asserted his Fifth Amendment right to counsel. [W]hen an accused has invoked his right to have counsel present during [a] custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. at 484, 101 S.Ct. 1880; see State v. Bailey, 2008–NMCA–084, ¶ 9, 144 N.M. 279, 186 P.3d 908. The Court held that an accused, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or...

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