State v. Serna

• Citation: 429 P.3d 1283
• Decision Date: 13 September 2018
• Docket Number: NO. A-1-CA-35290,A-1-CA-35290
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ernest SERNA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

429 P.3d 1283

STATE of New Mexico, Plaintiff-Appellee,

v.Ernest SERNA, Defendant-Appellant.

NO. A-1-CA-35290

Court of Appeals of New Mexico.

Filing Date: September 13, 2018

Hector H. Balderas, Attorney General, Maha Khoury, Assistant Attorney General, Santa Fe, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

GALLEGOS, Judge.

{1} Defendant Ernest Serna was arrested and charged with an open count of murder (firearm enhancement), contrary to NMSA 1978, Section 30-2-1(A)(1) (1994), and NMSA 1978, Section 31-18-16 (1993) ; tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003) ; and aggravated stalking, contrary to NMSA 1978, Section 30-3A-3.1 (1997). While he was in police custody, Defendant made several potentially incriminating statements to the arresting deputy. In district court, Defendant filed a motion to suppress the statements, arguing that he was not adequately apprised of his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court found that the Miranda warnings were adequate and denied Defendant’s motion. Subsequently, Defendant entered into a conditional plea and disposition agreement (plea agreement) in which he pled no contest to second degree murder (firearm enhancement), contrary to Section 30-2-1(B) and Section 31-18-16, tampering with evidence, and aggravated stalking. In the plea agreement, Defendant specifically reserved for appeal the issue of the adequacy of the Miranda warnings. For the reasons that follow, we conclude that the Miranda warnings given to Defendant by the arresting deputy did not sufficiently convey Defendant’s full rights under Miranda . We therefore reverse the district court’s order denying Defendant’s suppression motion.

BACKGROUND

{2} The State alleges that Defendant and Alicia Quintana (Victim) went to a restaurant together and subsequently engaged in a verbal altercation in the restaurant’s parking lot. After the verbal altercation, Defendant and Victim returned to the restaurant to pay their bill and then left the establishment. Several minutes later, gunshots were heard and a pickup truck was seen quickly fleeing the parking lot. Victim was found bleeding in the parking lot and was later pronounced dead.

{3} Defendant was apprehended a few days later by Sandoval County Deputy Sheriff Sal Tortorici. Defendant was placed in the back of Deputy Tortorici’s patrol vehicle and the two engaged in casual conversation for several minutes while Deputy Tortorici had his lapel camera turned on. The lapel video shows that after approximately six and a half minutes, Deputy Tortorici recited Defendant’s Miranda rights from memory and without the use of a department-issued card. Specifically, Deputy Tortorici gave Defendant the following Miranda warning (first Miranda warning):

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney during any and all questionings. If you can’t afford an attorney, one will be provided for you.

Deputy Tortorici did not immediately begin to question Defendant about the crime. Rather, Defendant and Deputy Tortorici continued to engage in conversation during which time Defendant made several statements about contemplating turning himself in to law enforcement. Deputy Tortorici then asked Defendant about the weapon, presumably the one allegedly used in the killing of Victim. Defendant responded by stating that he did not know what he did with the weapon and that he threw it out of his vehicle "somewhere."

{4} Deputy Tortorici proceeded to drive Defendant to the police station for further questioning. According to an additional video recorded by Deputy Tortorici’s lapel camera, Defendant was read the following Miranda warning (second Miranda warning) from a department-issued card:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and you have the right to have him present with you while being questioned. If you cannot afford a lawyer, one will be appointed to you before any questionings. If you decide at any time you want to exercise these rights and not answer any questions, you may do so.

Deputy Tortorici then began to interrogate Defendant about what had happened outside the restaurant with Victim. Defendant immediately asked if he was being recorded and what it would take to get an attorney. Defendant expressed that he was previously unaware he could have an attorney and that he may not have been listening to the first Miranda warning. Defendant then stated he "want[ed] to be left alone." After Defendant and Deputy Tortorici engaged in a bit more conversation, in which Defendant either refused to answer or gave ambiguous responses to Deputy Tortorici’s questions, the lapel video ends.

{5} Defendant was charged with an open count of murder (firearm enhancement), tampering with evidence, and aggravated stalking. Subsequently, on August 17, 2015, Defendant filed a motion to suppress the statements made to Deputy Tortorici, arguing exclusively that the first Miranda warning given by Deputy Tortorici was inadequate. At the suppression hearing, the parties stipulated to the language used by Deputy Tortorici in the first Miranda warning. The district court denied the motion to suppress and found the first Miranda warning adequate. Notwithstanding the fact that the adequacy of the Miranda warning was the only issue addressed in Defendant’s motion and during the suppression hearing, the district court also found that Defendant had waived his rights under Miranda . In response to the district court’s order, Defendant filed a motion in limine seeking an additional order on the waiver issue. The district court then issued a letter requesting supplemental briefing as to whether Defendant waived his Miranda rights. The waiver issue was briefed by both sides and a second hearing was scheduled. At the hearing, a copy of the lapel videos was given to the district court and admitted into evidence¹ .

{6} The district court never entered an additional or amended order on the waiver issue. Instead, shortly after the second hearing, Defendant entered into a plea agreement in which he pled no contest to second degree murder (firearm enhancement), tampering with evidence, and aggravated stalking. The plea agreement stated that "Defendant may appeal only the issue of whether the arresting [s]heriff’s [d]eputy gave an insufficient Miranda warning to ... Defendant as raised in ... Defendant’s brief filed August 17, 2015." The district court’s judgment and sentence order similarly stated that "Defendant may appeal the Miranda warning issue as raised in briefs filed 8/17/15."

DISCUSSION

{7} On appeal, Defendant makes two arguments stemming from the district court’s denial of his suppression motion. First, Defendant argues that the first Miranda warning given to him was inadequate. Specifically, Defendant asserts that the warning did not adequately convey his right to have counsel appointed and present prior to questioning. Second, Defendant argues that even if the warning was adequate, the district court erred in finding that he waived his rights under Miranda .

{8} In turn, the State contends that the warning was adequate and that the waiver issue was not preserved below or reserved for appeal in the plea agreement. Additionally, the State argues for the first time on appeal that some of the statements made by Defendant to Deputy Tortorici were volunteered.

I. Standard of Review

{9} In reviewing the district court’s denial of a defendant’s motion to suppress, the factual determinations are subject to a substantial evidence standard of review, but the application of the law to the facts is subject to de novo review. State v. Nieto , 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442. We view the district court’s factual determinations "in the manner most favorable to the prevailing party." State v. Lopez , 2000-NMCA-069, ¶ 4, 129 N.M. 352, 8 P.3d 154.

II. Adequacy of the Miranda Warnings

{10} At issue here is the Fifth Amendment right against self-incrimination. The Fifth Amendment states that no person shall "be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V. The Fifth Amendment right against self-incrimination is applicable to the State of New Mexico through the Fourteenth Amendment. See State v. Filemon V. , 2018-NMSC-011, ¶ 18, 412 P.3d 1089.

{11} This privilege against self-incrimination is available outside of court proceedings, including situations where a person is being questioned by law enforcement. See Miranda , 384 U.S. at 467, 86 S.Ct. 1602 (holding that the Fifth Amendment privilege is available during in-custody interrogation of persons suspected or accused of a crime). A person is subject to custodial interrogation when law enforcement initiates questioning after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way. Id . at 444, 86 S.Ct. 1602.

{12} "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id. In order for a statement to be admissible, Miranda requires that prior to questioning, law enforcement must warn the person of the right to remain silent, that any statement he or she makes may be used as evidence against them, and that he or she "has a right to the presence of an attorney, either retained or appointed." Id. These warnings must be clearly conveyed to the individual held for interrogation and are an absolute prerequisite before the interrogation can begin. Id. at 471-72, 86 S.Ct. 1602. "Only through such a warning is there ascertainable...