State v. Tindle, No. 8632

• Docket Nº: No. 8632
• Citation: 718 P.2d 705, 104 N.M. 195, 1986 NMCA 35
• Case Date: April 08, 1986
• Court: Court of Appeals of New Mexico

Page 705

718 P.2d 705 104 N.M. 195 STATE of New Mexico, Plaintiff-Appellant,
v.
Dennis E. TINDLE, Defendant-Appellee. No. 8632. Court of Appeals of New Mexico. April 8, 1986.
Certiorari Not Applied For

Page 706

[104 NM 196] Paul G. Bardacke, Atty. Gen., Elizabeth Major, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

Jacquelyn Robins, Chief Public Defender, David Stafford, Appellate Defender, Santa Fe, for defendant-appellee.

OPINION

BIVINS, Judge.

From an order suppressing defendant's confession, the state appeals. NMSA 1978, Sec. 39-3-3(B)(2). The sole question on appeal is whether the confession was voluntary.

The state charged defendant and his brother with the October 16, 1984, first-degree murder and armed robbery of Ross Carruthers. Defendant moved to suppress his confession. A hearing on the motion was held March 12, 1985.

At the hearing, defendant and Sergeant Mallory of the Lea County sheriff's office testified. The following evidence was presented. On October 17, 1984, defendant's sister-in-law informed the Lea County sheriff's office of Ross Carruthers' murder. The sister-in-law was an eyewitness to the murder, and she implicated defendant and her husband in the murder. Sergeant Mallory contacted the Lovington branch of the sheriff's office and instructed the Lovington officers to go to the residence of defendant and his brother, and to request the brothers to accompany the officers to the sheriff's office for questioning.

When the officers arrived at defendant's residence, they asked him whether he owned a shotgun. Defendant replied affirmatively and showed the shotgun to the officers. Defendant then voluntarily accompanied the officers to the sheriff's office. Upon arrival at the sheriff's office, the officers advised defendant of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

While awaiting questioning, defendant saw his sister-in-law enter the sheriff's office. Approximately thirty to thirty-five minutes later, Sergeant Mallory and Officer Courtney began to question defendant. They gave defendant a sheet containing an enumeration of his Miranda rights, and defendant followed the enumeration while Sergeant Mallory read to him his rights. Defendant informed the officers that he understood his rights and that he wished to talk to the officers. He then signed the waiver portion of the form. Thus, no questions arose concerning the giving of Miranda rights or defendant's knowing, intelligent and voluntary waiver of his Miranda rights.

Rather, the issue before us concerns whether defendant's confession was extracted by fear, coercion, hope of reward or other improper inducement. State v. Turnbow, 67 N.M. 241, 354 P.2d 533 (1960). If so, the confession was untrustworthy and involuntary as a matter of law.

In Territory v. Emilio, 14 N.M. 147, 89 P. 239 (1907), the supreme court acknowledged two fundamental principles upon

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[104 NM 197] which confessions are excluded. The first involves confessions induced by threats, hope, or fear. Courts suppress such confessions because "the temptation to speak falsely is so great as to render the statement entirely untrustworthy." Id. at 156, 89 P. at 241 (citation omitted). The second principle of exclusion, according to the court in Emilio, is the fifth amendment to the United States Constitution. Especially relevant is that portion of the amendment which provides that no person "shall * * * be compelled in any criminal case to be a witness against himself * * *." U.S. Const. amend. V.

The court, in Emilio, stated that these two principles of exclusion are disparate in character and effect. Under the first principle, courts seek to exclude confessions which are most likely false and, thus, untrustworthy. Under the second principle of exclusion, courts seek to exclude confessions which are most likely true. Territory v. Emilio.

Under current law, the Miranda warnings are designed to protect an accused's fifth amendment right against self-incrimination. Miranda v. Arizona. Our concern here, however, is with the first principle of exclusion: whether Sergeant Mallory's claimed promise of leniency induced defendant to confess. If so, defendant's confession must be excluded on the basis of its involuntariness and lack of trustworthiness. In so determining, we review the testimony offered at the suppression hearing.

Defendant's Testimony

Defendant testified that after he agreed to talk to the officers, Sergeant Mallory asked him whether he knew the victim and whether he shot the victim. Defendant replied "no." Defendant said that Sergeant Mallory then told him that he had an eyewitness who had seen defendant shoot the victim. Defendant testified that he again denied committing the offenses.

According to defendant's testimony, Sergeant Mallory told him that:

[I]f I had knowledge of it, it would be better to tell him and that he would get up on the stand, him and Courtney would testify that I cooperated with them, and it was my first time to ever be arrested, but if I didn't go ahead and admit to it, and they had to find out later the hard way, he would hang my ass.

Defendant testified that he understood Sergeant Mallory to mean that, if defendant confessed, "the judge would go more lenient with me and would not give me as many years if I cooperated." Defendant also testified that Sergeant Mallory led him to believe that if he "kept denying it and they had to find out the hard way, they would give me the most time that they possibly could." Again, Sergeant Mallory informed defendant of the eyewitness. Defendant then admitted killing the victim.

According to defendant, after he made his admission, Sergeant Mallory said that he would not take any further statement from defendant until the assistant district attorney could be summoned. When the assistant district attorney arrived, fifteen to thirty minutes later, he told defendant that he could not make any promises. Defendant testified that he knew the assistant district attorney occupied a supervisory position, but he was not certain of the precise nature of the position. Defendant then gave the tape-recorded confession which was the subject matter of the suppression hearing.

Defendant, however, admitted at the suppression hearing that Sergeant Mallory and the assistant district attorney told him that they could make no promises. He also testified that he was not told of the specific type of leniency he would receive if he confessed.

Sergeant Mallory's Testimony

Sergeant Mallory testified that he told defendant he was investigating a homicide, read defendant his rights, and advised defendant that there was an eyewitness to the crime. On cross-examination, the officer remembered that defendant had denied any involvement in the crime.

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