State v. Wyatt B.

• Decision Date: 13 August 2015
• Docket Number: No. 35,513.,33,297.,35,513.
• Citation: 359 P.3d 165
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. WYATT B., Child–Appellant.
• Court: Court of Appeals of New Mexico

359 P.3d 165

STATE of New Mexico, Plaintiff–Appellee

v.WYATT B., Child–Appellant.

33,297.

No. 35,513.

Court of Appeals of New Mexico.

Aug. 13, 2015.

Certiorari Denied, Oct. 13, 2015,

Hector H. Balderas, Attorney General, Santa Fe, NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender, Tania Shahani, Assistant Appellate Defender, Santa Fe, NM, for Child–Appellant.

OPINION

WECHSLER, Judge.

{1} Child, Wyatt B., appeals his adjudication for driving while under the influence of intoxicating liquor or drugs (DWI), contrary to NMSA 1978, Section 66–8–102(A), (B) (2010). DWI is a delinquent act under NMSA 1978, Section 32A–2–3(A)(1)(a) (2009). Child primarily raises violations of the Children's Code, NMSA 1978, §§ 32A–1–1 to –21 (1993, as amended through 2009), and issues of evidentiary error in connection with the district court's admission of incriminating statements Child made to police officers while subject to an investigatory detention and arrest for DWI. Under the Children's Code, police cannot question or interrogate a child suspected of having committed a delinquent act without first advising the child of his or her right to remain silent and securing the child's knowing, intelligent, and voluntary waiver of that right. Section 32A–2–14(C) ; State v. Javier M., 2001–NMSC–030, ¶ 48, 131 N.M. 1, 33 P.3d 1. If a child's statements are elicited in violation of this requirement, Section 32A–2–14(D) prohibits the admission of the child's statements at a subsequent court proceeding.

{2} Child first argues that the district court erred in admitting his statements because the State failed to prove that Child knowingly, intelligently, and voluntarily waived his statutory right to remain silent, in violation of Section 32A–2–14(D). Child further argues that the State intentionally elicited inadmissible testimony regarding incriminating statements Child made before he was advised of his statutory right. Child contends that the inadmissible testimony similarly violated Section 32A–2–14(D), unfairly prejudiced Child, and could not be remedied by the district court's subsequent curative instruction to disregard Child's statements. Finally, Child argues that the district court erred in refusing to provide the jury with his requested instruction on duress.

{3} We hold that Child's waiver of his statutory right to remain silent was made knowingly, intelligently, and voluntarily. We also hold that the testimony pertaining to the statements Child made before he was advised of his statutory right to remain silent was inadmissible, but that the improper admission of this evidence was harmless error. We further uphold the district court's denial of Child's request for a jury instruction on duress. Accordingly, we affirm Child's conviction.

BACKGROUND

{4} Late in the evening of September 23, 2012, San Juan County Sheriff's Deputies Michael Carey and Ricky Stevens responded to a dispatch report of a suspicious vehicle parked outside a convenience store located near the western border of San Juan County, New Mexico. After arriving at the store and identifying the vehicle, Deputy Carey made contact with Child, who was in the driver's seat. Deputy Stevens approached the opposite side of the vehicle and made contact with Hensley George, who was in the passenger's seat. Deputy Carey observed signs of Child's intoxication and initiated a DWI investigation, which was video-recorded by the dashboard camera in Deputy Carey's patrol car. Before advising Child of his right to remain silent, Deputy Carey asked Child a series of questions pertaining to Child's age and identity and whether Child had been drinking. Child, who was sixteen years old at that time, made incriminating statements in response to Deputy Carey's questions. Deputy Carey then turned over the DWI investigation to Deputy Stevens, who administered field sobriety tests and ultimately arrested Child for DWI. Child made additional incriminating statements to Deputy Stevens and was later found to have a breath alcohol concentration of 0.14 percent and 0.15 percent.

{5} Child was tried pursuant to a criminal complaint charging him with DWI and possession of drug paraphernalia. Because the jury acquitted him of possession of drug paraphernalia, only the DWI conviction is at issue in this appeal. With regard to that charge, the State's evidence at trial consisted of the testimony of Deputies Carey and Stevens, the video recording that captured Deputy Carey's investigatory detention of Child, and the results of the breath alcohol tests.

{6} On the morning of Child's trial, after selection of the jury but before opening statements, Child made an oral motion to exclude his statements to police officers. Child's counsel specifically cited Section 32A–2–14(D), which provides that before the State may introduce at trial any statements made by a child who is alleged to be delinquent, “the state shall prove that the statement or confession offered in evidence was elicited only after a knowing, intelligent, and voluntary waiver of the child's constitutional rights was obtained.” Child's counsel further argued that Child had not received any notice from the State that it intended to use Child's statements or offer them as evidence at Child's trial. The State argued that, as part of the discovery process, it had provided Child's counsel with a copy of Deputy Carey's dashboard camera video and had viewed the video together with Child's counsel. The district court addressed Child's motion as a suppression motion, and the court expressed its concern that attempts to suppress statements are the types of issues that are usually raised “well in advance” of trial and that Child's motion “should never have been made during trial.” The district court nonetheless decided to proceed in addressing Child's motion by questioning Deputy Carey outside the presence of the jury on matters pertaining to the factors the district court must consider to determine whether Child's waiver was valid.

{7} In response to the district court's questions, Deputy Carey testified that he advised Child of his rights under Miranda v. Arizona, 384 U.S. 436, 467–68, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), (Miranda ) after he discovered Child was a juvenile. He also testified that Child seemed to understand his questions and was not reluctant to answer them. However, in response to Child's counsel's questions, Deputy Carey testified that he could not remember what preliminary investigative questions he asked Child before advising Child of his Miranda rights. He further testified that it was possible that prior to his advisement to Child, he had asked Child whether he had been drinking. Following Deputy Carey's testimony, the district court denied a request by Child's counsel to call Deputy Stevens to the witness stand. Instead, the district court announced its ruling that, based on the testimony of Deputy Carey and after consideration of the factors outlined in Section 32A–2–14(E), Child's waiver was knowing, intelligent, and voluntary.

{8} After a brief recess, Child renewed his motion to exclude his statements, arguing that the district court should excise from Deputy Carey's dashboard camera video any statements made by Child that were elicited prior to Deputy Carey's advisement. Child's counsel again cited Section 32A–2–14(D) as support for his motion. Noting first that it had not seen Deputy Carey's video and that Child had not filed a motion to exclude or excise it, the district court asked Child's counsel if he had reviewed the video to determine the portions that he believed should be excised. Child's counsel responded that defense counsel “has had difficulty getting the video to operate properly.” The court again voiced its concern over the timing of Child's request, remarking that “the attorneys should have done this prior to sitting in trial with a jury in the hallway.” The court then inquired whether the prosecutor knew the content of the video recording regarding statements Child made before Child was advised of his Miranda rights. The prosecutor informed the court that the questions were “introductory questions” that any police officer would make during a DWI investigation, including “what are you doing” and “have you been drinking.” Child's counsel argued that if police asked Child if he had been drinking, that type of question would lead to an incriminating response under the Children's Code. The court noted that it may have to strike Child's statements if their introduction at trial was improper but decided to proceed with Child's trial without watching the video. The State informed the court that it planned to play only approximately seven minutes of the video.

{9} Prior to playing Deputy Carey's video for the jury, the State asked Deputy Carey on direct examination whether he had asked Child any questions prior to turning the DWI investigation over to Deputy Stevens. Deputy Carey answered that he asked Child if he had been drinking but that he could not recall what other questions he asked Child. The State followed up with the questions, “Did [Child] give you any indication to what he'd been drinking?” and “Did [Child] give you any indication as to when the last time he had a drink was?” Deputy Carey responded to both questions that he could not recall Child's answers, and the State asked if Deputy Carey's report would refresh his recollection. Deputy Carey testified that he did not write a report but that “everything should be on [the] video.”

{10} When the State moved to introduce Deputy Carey's dashboard camera video, Child objected to the admission of any statements Child made prior to being advised of his Miranda rights. The court stated that it would continue its ruling as previously given and permitted the State to play the video. The video revealed that after Deputy Carey learned Child's age, but before he advised Child of his right to remain silent,...