State v. Verdugo, 25,534.

• Decision Date: 23 May 2007
• Docket Number: No. 25,534.,25,534.
• Citation: 164 P.3d 966,2007 NMCA 095
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Edward VERDUGO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

164 P.3d 966

2007 NMCA 095

STATE of New Mexico, Plaintiff-Appellee, v. Edward VERDUGO, Defendant-Appellant.

No. 25,534.

Court of Appeals of New Mexico.

May 23, 2007.

Certiorari Granted, No. 30,467, July 20, 2007.

Gary K. King, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

ROBINSON, Judge.

{1} Edward Verdugo (Defendant) appeals his convictions for robbery and attempt to commit unauthorized use of an ATM card of another. Defendant contends that he did not receive a fair trial because he was denied his ability to present a defense, and that his statements to police were taken in violation of his constitutional rights and improperly admitted into evidence. We hold that the district court misapplied the law, and that Defendant's Fifth Amendment rights were violated when the district court ruled that the incomplete Miranda warnings were sufficient. We further hold that admitting Defendant's statement was not harmless beyond a reasonable doubt. Because the Miranda issue is dispositive, we need not address Defendant's other issues. However, because Defendant would be entitled to dismissal of the charges if the evidence is insufficient to support them, we address Defendant's challenge to the sufficiency of the evidence issue. We hold that there is sufficient evidence to support the convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} A grand jury indicted Defendant on charges of robbery and attempt to commit unauthorized use of an ATM card of another. The record reveals that at trial Corinna Klinger testified that on June 23, 2004, around 6:00 p.m., she was walking to her car in the parking lot of a mall where she worked, when she noticed a white four-door sedan driving slowly behind her. The car came up beside her, and a man reached out of the car, and grabbed her purse from her arm. Klinger testified that she was looking at the man while she was struggling to hold on to her purse. She made an in-court identification of Defendant as the person who grabbed her purse.

{3} Klinger further testified that after her purse was taken, she returned to the mall, and another individual called the police to report the incident. She testified that she spoke to Officer Cindy McCants at the scene, and gave a general description of the man who grabbed her purse. She told the officer that the car Defendant was in had a New Mexico license plate, but that she could only remember the first couple of letters of the license plate. She testified that her purse contained her wallet, driver's license, credit cards, an ATM card from Fort Bliss Federal Credit Union, personal belongings, and some cash. She also testified that she told detectives that the man had hairy arms, and was wearing a cutoff T-shirt. Her description to police did not mention anything about the person having a beard, goatee, ponytail, or tattoos. A few days after the incident, she met with police, and identified Defendant from an array of photographs shown to her. She testified that the photograph she selected was a photograph of Defendant, and she identified Defendant in the courtroom.

{4} Officer Rob Peterson also testified. The officer testified that he received a call on June 26 about a suspicious vehicle near the Pic Quik in Mesilla. When he arrived at the Pic Quik, he saw a vehicle on the adjacent street matching the description he had been given. He stopped the vehicle, which was being driven by its owner and discovered that Defendant was a passenger in the car. Valdez was arrested for an outstanding warrant, and Defendant was allowed to leave. When Officer Peterson conducted an inventory search of the vehicle, he found Klinger's driver's license. The officer also testified that the vehicle matched the description of the white, four-door sedan previously given by Klinger.

{5} Lorraine Campos testified next. She testified that she is a supervisor at the Fort Bliss Federal Credit Union. The credit union keeps a videotape of ATM transactions. Campos testified that in late June, Detective Jeff Ferguson came to the credit union and said that he needed to review the video for the Fort Bliss ATM machine and the log of the cards that were retained from the machine on June 23. She testified that an ATM machine may retain a card for several reasons, such as when a person uses the wrong pin number three times, or when a card has been flagged as lost or stolen. Campos testified that Klinger's card was retained in the machine, and the card was destroyed on June 28. During her testimony, the State played a videotape, which revealed that someone tried to use the ATM machine at a time that corresponded with the time that Klinger's card was retained by the machine. The defense attempted to admit into evidence Defendant's own Fort Bliss ATM card to show that Defendant could have been using his own ATM card. The district court did not allow its admission because apparently the records requested from Campos by defense counsel had not been prepared for trial.

{6} Detective Larry Palos testified that he was contacted by Detective Jeff Ferguson, and was asked to help in the robbery investigation. He testified that he prepared photographs of suspects to show to Klinger for her identification. He also testified that he interviewed Defendant in his office while Defendant was in police custody regarding the robbery investigation. He testified that at first Defendant denied any involvement in the use of Klinger's ATM card, but then he admitted that he did go to the ATM, that he put Klinger's card into the ATM, and that the machine "ate" the card. However, Defendant denied any involvement in the robbery.

{7} Detective Ferguson testified next. He testified that he was assigned as the lead detective to investigate the robbery. He testified that he was in contact with Officer Peterson. Detective Ferguson testified that he was aware that evidence had been found in the car that Officer Peterson stopped that might relate to the robbery, and that the car was associated with Defendant. Further, he testified that, during the course of the investigation, he spoke with Terry Marquez, who had a personal relationship with Defendant, and who owned a white, four-door Mitsubishi with a New Mexico license plate.

{8} Detective Ferguson also testified about the circumstances of going to the Fort Bliss Federal Credit Union, approximately a week after the robbery, and reviewing a videotape of ATM transactions that occurred after Klinger's purse was stolen. He testified that he investigated the ATM machine at the credit union because Klinger's ATM card was issued by Fort Bliss, he knew that it was an ATM that was used, and he knew that the machine had cameras that videotaped transactions. He testified that the videotape of the transaction in which Klinger's ATM card was accessed showed that, on June 23 around 7:40 p.m., a heavy-set man with tattoos on his arms used the machine, and there was a white car in the background during the time the transaction occurred. Defendant was then asked to show the jury his forearms, which were tattooed. Detective Ferguson also testified about Marquez's car and her statements to him.

{9} The jury deliberated and found Defendant guilty of robbery and attempt to commit unauthorized use of an ATM card of another.

II. DISCUSSION

A. Failure to Give Defendant Complete Miranda Warnings

{10} A few months before trial Defendant filed a motion to suppress his statements made to Detective Palos, in which he stated that he attempted to use Klinger's ATM card at the Fort Bliss ATM machine, and that the machine "ate" the card. After a hearing, the district court issued an order denying Defendant's motion to suppress his statements. The district court found that Defendant knew his Miranda rights, and that his statements to Detective Palos were voluntary and should not be suppressed. Defendant's statements were given to Detective Palos during custodial interrogation while Defendant was handcuffed and, therefore, Defendant was entitled to have his Miranda rights read to him. The detective asked Defendant if he knew his rights, and Defendant responded that he did. The detective then asked Defendant if he understood that he had the right to remain silent, and that he had a right to counsel. Defendant interrupted, and said that he understood his rights. The detective made no further attempts to inform Defendant of his complete Miranda warnings, and instead proceeded to question him. Specifically, the record of the suppression hearing reflects that the detective did not inform Defendant that an attorney would be provided to him if he could not afford one, and that any statements Defendant made could be used as evidence against him. Although we note that at trial the detective stated that he told Defendant that anything he said could and would be used against him, there is no indication whatsoever that the detective told Defendant that an attorney would be provided to him if he could not afford one.

{11} Defendant argues on appeal that his statement to Detective Palos should have been suppressed because incomplete Miranda warnings were given to him at the beginning of his custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant contends that the district court misapplied the law when it ruled that the incomplete Miranda warnings were sufficient. Defendant further argues that Miranda requires that a suspect be informed of all his rights, and the fact that a defendant says that he is aware of his rights prior to being advised does not excuse the failure to give complete Miranda warnings. The State asserts that Defendant waived his Miranda rights because the detective began to read Defendant his Miranda warnings, but was interrupted by Defendant, who said...