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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            No. A-1-CA-34359

 5 JOHN MAYES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 William C. Birdsall, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Jane A. Bernstein, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 J.K. Theodosia Johnson, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VARGAS, Judge.
 1   {1}   A jury convicted Defendant John Mayes of second degree murder, aggravated

 2 burglary, tampering with evidence, unlawful taking of a motor vehicle, fraudulent use

 3 of a credit card, and attempted residential burglary in connection with the beating

 4 death of Dr. James Nordstrom. On appeal, Defendant contends that all or parts of his

 5 conviction must be overturned for three separate reasons. First, Defendant contends

 6 that the jury deliberations were tainted and the verdict was in error because the district

 7 court coerced the jury to return a guilty verdict on the second degree murder charge

 8 and refused to acquit Defendant of murder when it received a completed not-guilty

 9 verdict form for voluntary manslaughter, before deliberations were completed on the

10 murder charge. Defendant also argues that his confession should have been suppressed

11 because he did not knowingly, intelligently, and voluntarily waive his constitutional

12 rights. Finally, Defendant claims that the district court erroneously sentenced him as

13 an adult for both delinquency and youthful offender offenses, requiring that the

14 delinquency charges be vacated. Unpersuaded by Defendant’s arguments, we affirm

15 his conviction in its entirety.

16 BACKGROUND

17   {2}   On Friday morning, following seven days of trial, the case was submitted to the

18 jury for deliberations. When the jury had not notified the district court of a verdict, by

19 3:30 that afternoon, seven hours into deliberations, the district court called counsel



                                               2
 1 into court and proposed to inquire whether the jury was deadlocked or whether it felt

 2 additional deliberations would be beneficial. Both the State and Defendant objected

 3 to the inquiry, reasoning that the length of deliberations was not surprising given the

 4 gravity of the charges. Noting that the jury had not asked for assistance regarding a

 5 deadlock, the parties argued it was unnecessary for the court to “interfer[e] with the

 6 process.” The court stated that it felt this had been “quite a long deliberation,” and that

 7 it expected “counts three and beyond were dealt with in the first hour.” Nonetheless,

 8 the court agreed to allow deliberations to continue for another hour before making an

 9 inquiry into the jury’s progress.

10   {3}   At 4:30 p.m., the district court called the jury back into the court room, and the

11 following exchange took place between the court and foreperson:

12         Court:       Has the jury reached a verdict as to any of the counts?

13         Foreperson: To some counts, yes.

14         Court:      Okay, which counts—without telling me the verdict—tell
15                     me which counts please there are verdicts for.
16         Foreperson: Count 2 and on.

17         Court:       Counts 2, 3, 4, 5, and 6?

18         Foreperson: Yes.

19         Court:       There is not a verdict as to Count 1?

20         Foreperson: Correct.



                                                3
 1         Court:       Is there . . . do you and the jury collectively feel that
 2                      additional deliberations might be fruitful in resolving or
 3                      arriving at a unanimous verdict as to Count 1?

 4         Foreperson: I can’t say.

 5         Court:       Do you believe that there is a reasonable probability that
 6                      the jury would be able to agree on a unanimous verdict as
 7                      to Count 1?

 8         Foreperson: I believe there could, but that’s my intuition.

 9         Court:       . . . Here’s the situation ladies and gentlemen . . . we have
10                      a little bit of time left today. . . . If you believe that further
11                      deliberations could be beneficial—not would be, but could
12                      be and I agree that’s speculation—we’re looking at coming
13                      back Monday morning. Will you all be able to come back
14                      Monday morning? Anyone who couldn’t? Alright then.
15                      Then let me inquire at this point—it’s 4:30 now—would
16                      you rather work a little while longer or call it, come back
17                      Monday morning, have a weekend to not think about it, and
18                      take another whack at it, say about 8:30 Monday morning?

19 The foreperson requested that they be given until 5:00 p.m. to deliberate, and the court

20 agreed. The court then stated, “the other thing that we need to do, . . . for the counts

21 that you have arrived at unanimous verdicts, I need to have you complete the forms

22 of verdict, and we’ll need to take those verdicts at five o’clock, whether or not we still

23 have more to do on those other counts.”

24   {4}   When the jury returned at 5:00 p.m., the court asked the foreperson, “Do you

25 have the forms of verdict for the ones that you were able to reach a unanimous verdict

26 on?” The foreperson provided the completed forms, and after reviewing those verdict


                                                4
 1 forms, the district court called the parties up to the bench. During a bench conference,

 2 the judge revealed the jury had submitted a verdict form finding Defendant not guilty

 3 of manslaughter. Defense counsel argued that, by acquitting Defendant of the

 4 voluntary manslaughter charge, the jury had thereby acquitted Defendant of the first

 5 and second degree murder charges. The court responded that was not necessarily true

 6 because the jury had not yet signed the verdict forms for the first and second degree

 7 murder charges. After the bench conference, the district court read the verdict forms

 8 verbatim in open court; the jury found Defendant guilty of both burglary counts,

 9 tampering with evidence, unlawful taking of a motor vehicle, and fraudulent use of

10 a credit card. The district court polled the jury, asking each juror for a yes or no

11 answer as to whether the verdict accurately reflected his or her decision. All jurors

12 answered in the affirmative.

13   {5}   The court then sought clarification regarding the murder charge:

14         I have a count one verdict form that says that you find . . . Defendant not
15         guilty of voluntary manslaughter. I see no verdict forms for second
16         degree murder or first degree murder, and I’m going to inquire so that
17         we’ll have that information on the record. Does that mean that in finding
18         . . . Defendant not guilty of voluntary manslaughter, you’ve also found
19         him not guilty of second degree and first degree murder?

20 The foreperson responded, “[t]hat is not correct. We’re still deliberating.” The court

21 stated, “Alright. I’ll leave it at that. At this juncture, I’m going to ask that you return

22 Monday morning at 8:30.” Outside the presence of the jury, the district court declined


                                                5
 1 to rule on whether jury confusion resulting in an acquittal for a lesser included offense

 2 results in an automatic acquittal on the greater offenses but asked the parties to be

 3 prepared to address the issue on the following Monday.

 4   {6}   On Monday morning, Defendant filed a demand for entry of judgment of

 5 acquittal on the murder count, based on the jury’s not guilty verdict on voluntary

 6 manslaughter during the Friday evening proceedings. The court explained its position

 7 to the parties as follows:

 8         I fully intend to let the situation play out with the jury as to whether they
 9         reach a verdict or indicate that they cannot and that will happen today,
10         one way or the other. . . . If it were just that verdict form in and of itself,
11         I might be a little more inclined to take a quicker action on it. But the
12         fact is, those folks stood up there and told me that they had not reached
13         a verdict on first or second degree murder. What they’ve done effectively
14         by convicting on count two they’ve indicated self defense didn’t work.
15         By finding not guilty as to the voluntary manslaughter, what they’re
16         effect[ively] telling us, in reality, is they don’t buy sufficient
17         provocation, coupled with the fact that they’re still debating first or
18         second degree murder. Regardless, before I make a call on this issue, and
19         I’m not going to do it today, and I am not going to terminate the jury
20         proceedings. I want this court—and of course the appellate courts—to
21         have as . . . complete a picture as possible as to just how messed up this
22         jury was in its deliberations . . . I’m going to wait until they either hang
23         or come up with a verdict.

24 Defense counsel requested that there be “no more inquiries or exchanges with the jury

25 . . . and the court during the course of their deliberations.” The court responded,

26 “Nope; if I need to bring them in here and inquire as to whether they’re hung up or

27 not, I by golly will, and after and if I determine that they are hung, I will certainly poll


                                                 6
 1 them as to what their vote is[.]” The court had no further interaction with the jury,

 2 however, until it returned after roughly two hours of deliberation on Monday. The jury

 3 found Defendant not guilty of first degree murder and voluntary manslaughter, but

 4 guilty of second degree murder. The district court polled each member of the jury,

 5 each of whom confirmed that verdict accurately reflected his or her decision.

 6 DISCUSSION

 7 Coercion and Acquittal

 8   {7}   Defendant argues that the district court’s unnecessary inquiry into the jury’s

 9 deliberations improperly coerced the jury to return a guilty verdict for the second

10 degree murder charge. Defendant contends that “the mere fact that the judge

11 questioned the jury’s verdict coerced the jury” both by forcing a decision prematurely

12 and by suggesting the answer the court wanted—that acquittal on the lesser included

13 charge was not an acquittal on the greater charges.

14   {8}   Whether a defendant’s right to procedural due process in jury deliberations has

15 been violated is a legal question that we review de novo. State v. Brothers, 2002-

16 NMCA-110, ¶ 25, 133 N.M. 36, 59 P.3d 1268; see State v. McCarter, 1980-NMSC-

17 003, ¶ 7, 93 N.M. 708, 604 P.2d 1242 (holding that the judge’s coercive actions in

18 handling the jury violated the due process guarantee of a fair and impartial trial). A

19 judge instructing a jury once deliberations have begun should give careful



                                              7
 1 consideration to the gravity of crime charged, the nature of the defense, the

 2 complexity of the facts, and the amount of time the jurors have been deliberating. See

 3 State v. Horton, 1953-NMSC-044, ¶ 15, 57 N.M. 257, 258 P.2d 371. Generally, a

 4 judge’s communication with a deliberating jury is proper “so long as it leaves with the

 5 jury the discretion whether or not it should deliberate further.” State v. Laney, 2003-

 6 NMCA-144, ¶ 52, 134 N.M. 648, 81 P.3d 591 (internal quotation marks and citation

 7 omitted). In determining whether the jury was coerced to arrive at a verdict, we

 8 consider the actions as well as the circumstances under which the actions arose. Id. ¶

 9 56.

10   {9}   In this case, we are asked to measure the impact the judge’s interaction with the

11 jury had on the jury’s verdict. Notwithstanding the objection of both parties, the

12 district court felt it was appropriate to interrupt jury deliberations before the end of the

13 work day to check on the jury’s progress despite the fact that the crimes charged were

14 grave in nature, there was a significant amount of evidence presented, and the jury had

15 not expressed any difficulty in reaching a unanimous verdict. While it may have been

16 nothing more than an attempt to manage its docket on a Friday afternoon, the

17 interruption was unusual. Nonetheless, the parties have failed to provide us with

18 citations to case law with similar facts addressing the propriety of a district court’s

19 interruption of jury deliberation without prompting from the parties, juror confusion,



                                                8
 1 or juror disagreement. Absent such authority, we focus our analysis on the court’s

 2 interactions with, and demeanor in front of, the jury. Laney, 2003-NMCA-144, ¶ 56

 3 (stating that in assessing coercion, we look to the court’s actions, as well as the

 4 circumstances under which the court’s actions arose).

 5   {10}   Our Supreme Court long ago resolved that it is within the judge’s purview to

 6 inquire of the jury about the need for further jury deliberations. State v. Rickerson,

 7 1981-NMSC-036, ¶ 7, 95 N.M. 666, 625 P.2d 1183 (acknowledging that inquiries are

 8 part of “the court’s duty to assure that a verdict is reached”). While such inquiries are

 9 generally the result of a jury deadlock, the parties provide no case law limiting the

10 district court’s authority to inquire to circumstances in which the jury is having

11 difficulty reaching a verdict. Unless the judge’s actions somehow deprived the jury

12 of its discretion, the judge’s statements do not constitute error. While the judge’s

13 actions in this case were admittedly unusual, nothing in his statements was suggestive

14 or coercive. The judge’s questioning was limited to asking whether further

15 deliberations would be beneficial. At no point did the district court require the jury to

16 keep deliberating or inquire how many jurors were voting guilty or not guilty on the

17 murder charge. See Rickerson, 1981-NMSC-036, ¶ 3 (acknowledging that inquiry into

18 the numerical division of the jury may be reversible error when it is shown to have a

19 coercive effect on the jury); State v. Juan, 2010-NMSC-041, ¶ 19, 148 N.M. 747, 242



                                               9
 1 P.3d 314 (concluding that the court’s failure to answer a jury question “left the jury

 2 with the impermissible impression that it must continue its deliberations indefinitely”

 3 and amounted to reversible error) . The jury’s discretion remained intact throughout

 4 the proceedings.

 5   {11}   Defendant’s coercion argument centers on the district court’s actions regarding

 6 the murder charge, namely, the district court’s efforts to clarify the jury’s progress

 7 regarding its not-yet-final verdict. Our Supreme Court has recognized that the district

 8 court’s ability to conduct inquiries into the jury’s verdict is implicit in the court’s duty

 9 to assure that a verdict is reached. Rickerson, 1981-NMSC-036, ¶ 7. Clearly the

10 district court’s decision to take verdict forms for the remaining counts, read them into

11 the record, and poll the jury on those counts before the jury had reached a unanimous

12 decision on all counts created confusion in this case. Given the foreperson’s

13 clarification that the jury was still deliberating on the first and second degree murder

14 charges and the additional two-and-half hours of deliberation that followed the district

15 court’s inquiry, however, we see no indication that the jury felt coerced by the judge’s

16 actions and find no due process violation. See Laney, 2003-NMCA-144, ¶¶ 55-57

17 (reasoning that the absence of a shotgun instruction, the jury’s willingness to continue

18 deliberating, and an additional two hours of deliberation demonstrated that the jury

19 was not coerced).



                                                10
 1 Acquittal

 2   {12}   Defendant also argues that the verdict form finding Defendant not guilty of

 3 voluntary manslaughter should have resulted in an acquittal on the entirety of the

 4 murder charge. The jury was instructed to individually consider each greater offense

 5 before considering a lesser offense:

 6          [T]he jurors first must determine whether they unanimously agree that
 7          the defendant is guilty of first-degree murder. If they agree that the
 8          defendant is guilty, the jury enters a guilty verdict for first-degree murder
 9          and does not need to consider second-degree murder or voluntary
10          manslaughter. If not, after reasonable deliberation, the jurors must then
11          consider second-degree murder. The jurors follow the same procedure
12          with respect to second-degree murder and only consider voluntary
13          manslaughter if they cannot unanimously agree that the defendant was
14          guilty of second-degree murder.

15 State v. Phillips, 2017-NMSC-019, ¶ 4, 396 P.3d 153 (citations omitted); See UJI

16 14-250 NMRA. Defendant argues that because the jury found Defendant not guilty

17 of voluntary manslaughter and the instruction requires consideration of voluntary

18 manslaughter only upon finding the defendant not guilty of first and second degree

19 murder, he should have been acquitted of the murder count in its entirety. We

20 disagree.

21   {13}   Our Supreme Court made clear, in Phillips, that “[i]n the face of juror

22 confusion, the district court possesse[s] significant discretion to undertake proper

23 remedial measures to clarify the jurors’ ambiguous responses.” 2017-NMSC-019, ¶ 15



                                                 11
 1 (internal quotation marks and citation omitted). While Phillips is factually

 2 distinguishable because it dealt with a jury that could not reach a unanimous verdict,

 3 the Court’s discussion of larger concepts, including a judge’s obligation to clarify

 4 ambiguities in a jury’s verdict and the finality of a verdict, is helpful to our analysis

 5 here. Id. ¶¶ 9, 14-15, 18. The district court’s poll of the Phillips jury created

 6 ambiguities as to whether the jury was deadlocked on the entire count or only first

 7 degree murder. Because the district court’s actions in that case failed to clarify which

 8 crimes caused a deadlock, the Court remanded for retrial on voluntary manslaughter

 9 only, the lowest offense in the count, because it was unclear as to which crime the jury

10 could not agree. Id. ¶ 2. In doing so, the Court acknowledged an “interesting

11 wrinkle”—the jury had sent a note to the judge on the second day of a three-day

12 deliberation, indicating it was hung on second degree murder. Id. ¶ 18. First, declining

13 to consider the jury’s note as evidence that it was hung on second degree murder, the

14 Court reasoned that the note was “merely . . . a snapshot of the jury’s thinking partway

15 through deliberations.” Id. A verdict must be rendered in open court and accepted by

16 the court to become final. Id. The court pointed out that the results of a jury poll are

17 “the ultimate expression of the jury’s verdict at the time of its discharge[,]” and the

18 results of a poll may even supercede any contrary verdict rendered in the jury room.

19 Id.



                                              12
 1   {14}   This case contains a similar wrinkle. Instead of a note sent to the court, the jury

 2 gave the district court a completed voluntary manslaughter verdict prior to the end of

 3 deliberations. The resulting ambiguity was of the district court’s own making. Had the

 4 district court not insisted that the jury provide the verdict forms for the offenses it had

 5 decided, and instead collected all of the verdict forms at the completion of all

 6 deliberations, there would likely be no argument regarding acquittal based on the

 7 voluntary manslaughter verdict.1 However, the district court, after unnecessarily

 8 creating ambiguity regarding the jury’s intentions on the murder count, clarified by

 9 inquiring of the foreperson, “[d]oes that mean that in finding . . . Defendant not guilty

10 of voluntary manslaughter, you’ve also found him not guilty of second degree and

11 first degree murder?” The foreman’s response was succinct and unequivocal: “[t]hat

12 is not correct. We’re still deliberating.” The foreperson not only clarified that the jury

13 had not yet reached a verdict on the murder count, but also clarified that it had not

14 intended to acquit Defendant on that count when it submitted the completed voluntary

15 manslaughter verdict form. At the end of the district court’s inquiry Friday evening,

16 no ambiguity remained. The district court had neither accepted a verdict on the murder

17 count in open court, nor conducted a jury poll. As such, the jury had given no final



          1
18          We note that Defendant does not assert the district court erred by accepting the
19 jury’s verdict as to Counts 2 through 6 prior to completion of deliberations on all
20 counts.

                                                13
 1 verdict and Defendant was not entitled to acquittal. When polled the following

 2 Monday, after deliberations were concluded, the jury confirmed that it had found

 3 Defendant guilty of second degree murder.

 4   {15}   The unique facts of this case lead us to conclude that the jury’s verdict was free

 5 from coercion. Further, nothing in the record suggests that the verdict form on the

 6 murder count submitted Friday evening represented an “ultimate expression of the

 7 jury’s verdict at the time of its discharge.” See id. As a result, we affirm the jury’s

 8 final verdict convicting Defendant of second degree murder.

 9 Confession

10   {16}   Defendant next argues that because he qualifies as a youthful offender, he is

11 entitled to the protections afforded by NMSA 1978, Section 32A-2-14(D) (2009),

12 which requires the State to prove that Defendant’s statements were “elicited only after

13 a knowing, intelligent and voluntary waiver” of his constitutional rights. Defendant

14 asserts that the State did not meet its burden in this regard. We review de novo the

15 district court’s application of the law to the facts in denying a motion to suppress

16 inculpatory statements. State v. Gutierrez, 2011-NMSC-024, ¶ 7, 150 N.M. 232, 258

17 P.3d 1024. In making that assessment, we accept the district court’s factual findings

18 unless they are clearly erroneous, viewing the evidence in the light most favorable to

19 the district court’s ruling. Id.



                                                14
 1   {17}   The Children’s Code provides that no child suspected of being a delinquent

 2 child shall be interrogated or questioned without first being advised of his or her

 3 constitutional rights and giving a knowing, intelligent, and voluntary waiver of those

 4 rights. See § 32A-2-14(C). Before a child’s statement or confession may be introduced

 5 at a trial or hearing, “the state shall prove that the statement or confession offered in

 6 evidence was elicited only after a knowing, intelligent and voluntary waiver of the

 7 child’s constitutional rights was obtained.” Section 32A-2-14(D). For persons older

 8 than fifteen years of age, the State’s burden in this regard is by a preponderance of the

 9 evidence. See State v. DeAngelo M., 2015-NMCA-019, ¶ 15, 344 P.3d 1019 (citing

10 Gutierrez, 2011-NMSC-024, ¶ 7). Section 32A-2-14(E) requires that, in determining

11 whether a waiver was knowing, intelligent, and voluntary, a court must consider the

12 following factors:

13                (1)   the age and education of the respondent;

14                (2)   whether the respondent is in custody;

15                (3) the manner in which the respondent was advised of the
16          respondent’s rights;

17                 (4) the length of questioning and circumstances under which
18          the respondent was questioned;

19                (5) the condition of the quarters where the respondent was
20          being kept at the time of being questioned;




                                              15
 1                (6) the time of day and the treatment of the respondent at the
 2          time of being questioned;

 3                (7) the mental and physical condition of the respondent at the
 4          time of being questioned; and

 5                (8) whether the respondent had the counsel of an attorney,
 6          friends or relatives at the time of being questioned.

 7 The district court examines the totality of circumstances, “giving particular emphasis

 8 to the factors listed in the statute.” State v. Lasner, 2000-NMSC-038, ¶ 7, 129 N.M.

 9 806, 14 P.3d 1282 (internal quotation marks and citation omitted); see id.

10 (acknowledging that the list of factors contained in Section 32A-2-14(E) is “a

11 codification of the totality-of-the-circumstances test”); State v. Wyatt B., 2015-

12 NMCA-110, ¶ 19, 339 P.3d 165 (stating that “the applicable test for reviewing

13 whether a child waived his or her statutory right is the same as that of an adult”).

14   {18}   Defendant was interviewed twice: first on June 10, 2011, and then again the

15 next day on June 11, 2011. Defendant’s interview on the first day occurred in

16 segments, in an interview room that was approximately 10' x 10', and contained a

17 bench, two chairs, and a one-way observation window. Two officers were present

18 throughout Defendant’s interview. The first segment began at 4:21 p.m. and lasted

19 fifty-nine minutes. The officers then took a twenty-minute break, and initiated a

20 second interview that lasted approximately thirty minutes. After another twenty-




                                             16
 1 minute break, a third interview took place, which lasted approximately six to seven

 2 minutes.

 3   {19}   At the time of the interview, Defendant was three months shy of his eighteenth

 4 birthday and had completed eleventh grade. When the interviewing officers arrived,

 5 Defendant was handcuffed and in custody, but was released from the handcuffs before

 6 the interview began. The officers provided Defendant with a standard form advising

 7 him of his rights, and he initialed the form to acknowledge that he understood. The

 8 form stated:

 9          You have the right to remain silent. Anything you say can and will be
10          used against you in a court of law. You have the right to talk to a lawyer,
11          family member or friend for advice before we ask you any questions, and
12          to have him/her present during any questioning. If you cannot afford a
13          lawyer, one will be appointed to represent you free of charge by the court
14          before any questioning. If you wish to answer questions now without a
15          lawyer, family member or friend present, you have the right to stop
16          answering questions at any time. You also have a right to stop answering
17          questions at any time until you have talked to a lawyer, family member
18          or friend.

19 There was a blank space after each sentence, in which Defendant signed his initials.

20 Defendant also initialed to acknowledge each of the following waivers:

21          I have read the statement of my rights shown above. I have also had my
22          rights read and explained to me. I understand what my rights are. I am
23          willing to answer questions and make a statement. I do not want a lawyer
24          present. I do not want a family member or friend present. I understand
25          and know what I am doing. No promises or threats of any kind have been
26          made to me and no pressure of any kind has been used against me.



                                                17
 1   {20}   During the interview, Defendant appeared clean, rested, coherent, and alert.

 2 Defendant acted in a calm and polite manner toward the interviewing officers,

 3 articulating and communicating clearly. Defendant gave no indication that he was

 4 uneducated or confused by the questions being posed to him. Though Defendant’s

 5 parents were present in the building at the time of the interview, Defendant was not

 6 informed of their presence; and, while his parents were not with Defendant during the

 7 interview, he was advised that he could have them present if he wanted.

 8   {21}   The next day, June 11, 2011, the officers interviewed Defendant, again doing

 9 so in the afternoon. That interview took place in a room containing a table with chairs

10 on both sides. The officers began the interview by asking Defendant whether an

11 attorney had been assigned to him, to which Defendant answered no. Though

12 Defendant did not fill out an additional waiver form, the officer went over the rights

13 from the waiver the day before and asked whether Defendant remembered that he had

14 those rights; Defendant responded that he remembered, and he agreed to speak with

15 the officers. Defendant was not in handcuffs for this interview. Defendant’s demeanor

16 was similar to the day before, and he was composed, cooperative, and polite. Again,

17 the officer did not observe anything unusual in Defendant’s behavior or demeanor.

18   {22}   Prior to trial, Defendant filed a motion to suppress inculpatory statements that

19 he gave to the police during these interviews. The State’s response clarified that it was



                                               18
 1 only seeking to introduce statements Defendant made after he was adequately advised

 2 of his rights, and it included digital recordings of Defendant’s interviews. The district

 3 court held a hearing on the motion, during which the State offered the testimony of the

 4 officer involved in Defendant’s interviews. The State also offered evidence that

 5 Defendant previously had his rights explained to him in an unrelated matter seven

 6 months earlier. In that instance, Defendant had a similar form read and explained to

 7 him, and he signed and initialed that form, waiving his rights. There was no indication

 8 or assertion that Defendant did not understand his rights or the implications of his

 9 waiver on that occasion either.

10   {23}   Defense counsel then called Maxann Shwartz, a licensed clinical psychologist,

11 to testify regarding the voluntariness of Defendant’s waiver. Shwartz testified that

12 Defendant was slower to develop than his peers because he had been neglected when

13 he was younger. She also noted that English was not Defendant’s first language, and

14 that any language difficulties Defendant had would be made worse when he was under

15 stress. Shwartz characterized Defendant as suffering from reactive attachment

16 disorder, which led Defendant to develop personality styles to please others; she

17 explained that in order to avoid difficulties, Defendant would avoid asking for things

18 and making his needs known. The best way for Defendant to have his rights explained

19 to him, according to Shwartz, would be through a slow, piece-by-piece explanation.



                                              19
 1 Shwartz concluded that Defendant was unable to assert his rights during the June

 2 interviews. Shwartz explained that Defendant was likely unable to comprehend the

 3 significance of his decision to waive his rights because he was functioning “like a

 4 child—a seven-year-old.” Shwartz also testified, however, that Defendant was “pretty

 5 bright” intellectually and that he did well in school. She agreed with the State on cross

 6 examination that, after reviewing the recordings of Defendant’s statements to police,

 7 nothing in Defendant’s behavior was unusual or would have indicated to the officers

 8 that he had any sort of impairment; according to Shwartz, “they would have no idea.”

 9   {24}   The district court, after considering the parties’ arguments and listening to the

10 recordings of the interviews, issued an order denying Defendant’s motion to suppress

11 his inculpatory statements. The district court found that at the time of the interview,

12 Defendant was seventeen years old, had completed the eleventh grade, and made good

13 grades in school. It acknowledged that Defendant was in custody during both

14 interviews and found the officer’s testimony regarding the location, conditions, and

15 length of the interviews to be credible. Regarding the waiver of Defendant’s rights,

16 the district court found that Defendant “was properly advised of his rights

17 immediately prior to the first interview and initialed and signed a written rights

18 waiver.” It also took note of the fact that Defendant had undergone questioning on an

19 unrelated matter approximately six months earlier, had his rights explained to him,



                                               20
 1 and waived his rights in that interview as well. The district court pointed out that,

 2 though Defendant may have been suffering from a lack of sleep, there was “nothing

 3 unusual about the mental or physical condition of [D]efendant at the time of the

 4 questioning[, . . . and] he appeared clean, rested, calm, polite and articulate.” The

 5 district court also found that while Defendant did not have the counsel of an attorney,

 6 friend, or relative at the time of questioning, he had spoken with his parents between

 7 the first and second interview.

 8   {25}   Having considered and made findings regarding each of the factors listed in

 9 Section 32A-2-14(E), the district court turned to case law and the testimony of

10 Shwartz. Noting the broad implications of Defendant’s argument, the district court

11 declined to apply a rule requiring officers to “quiz the suspect to confirm an in-depth

12 understanding of the waiver[,]” and characterized such a rule as “burdensome and

13 onerous[.]” The district court also specifically declined to adopt Shwartz’s testimony

14 because it believed that following Shwartz’s opinions would lead to the result that “no

15 juvenile could ever validly waive Miranda rights.” As a result, the district court

16 concluded that the State proved by a preponderance of the evidence that Defendant’s

17 waiver was knowingly, intelligently, and voluntarily given.

18   {26}   On appeal, rather than explicitly challenging the district court’s findings,

19 Defendant asserts that the district court should have considered Shwartz’s testimony



                                             21
 1 regarding frontal lobe development in children and its impact on a child’s ability to

 2 make a knowing and intelligent waiver in its assessment of the totality of

 3 circumstances. Defendant also does not explicitly challenge the district court’s ruling

 4 on the basis that it did not consider all eight factors enumerated in Section 32A-2-

 5 14(E), instead, arguing that the district court erred in refusing to consider Shwartz’s

 6 testimony that Defendant was unable to assert or comprehend his rights at the time of

 7 questioning.

 8   {27}   The district court was free to weigh the testimony and determine Shwartz’s

 9 credibility in making its factual findings. See State v. Gonzales, 1997-NMSC-050,

10 ¶ 18, 124 N.M. 171, 947 P.2d 128 (“Determining credibility and weighing evidence

11 are tasks entrusted to [a district] court sitting as fact-finder.”); see also State v. Maes,

12 1983-NMCA-073, ¶ 16, 100 N.M. 78, 665 P.2d 1169 (recognizing that the district

13 court acts as the fact-finder in motions to suppress), abrogated on other grounds as

14 recognized by State v. Armijo, 2005-NMCA-010, ¶ 28, 136 N.M. 723, 104 P.3d 1114.

15 In weighing the evidence, the district court is free to reject even uncontroverted expert

16 opinion. See State v. Alberico, 1993-NMSC-047, ¶ 36, 116 N.M. 156, 861 P.2d 192

17 (“[A]n expert’s opinion is not conclusive of a fact in issue even though the opinion

18 may be uncontroverted.”); State v. Mireles, 2004-NMCA-100, ¶ 35, 136 N.M. 337,

19 98 P.3d 727 (acknowledging that it is “the fact-finder’s prerogative” to reject expert



                                                22
 1 testimony). The district court “specifically decline[d] to adopt” Shwartz’s testimony

 2 in this case, explaining that it felt Shwartz had an insufficient foundation on which to

 3 base her conclusions, having only spoken with Defendant three times and having run

 4 no tests on Defendant. Furthermore, the district court found Shwartz’s conclusions

 5 unpersuasive in light of evidence regarding Defendant’s behavior during two

 6 interviews and his performance during a preliminary hearing. The district court’s

 7 findings in this case were supported by the evidence, and it did not err in rejecting

 8 Shwartz’s testimony.

 9   {28}   Defendant also acknowledges that the district court considered each of the eight

10 factors listed in Section 32A-2-14(E), but complains that its consideration of those

11 factors was nominal. We are unpersuaded. Of the eight factors, only the last

12 one—whether Defendant had counsel of an attorney, friends or relatives at the time

13 of questioning–weighs in Defendant’s favor. That single factor is not sufficient to

14 overcome all of the other circumstances supporting the knowing, intelligent, and

15 voluntary waiver of his rights, including that Defendant was almost eighteen, was

16 intelligent, was not handcuffed during the interviews, and was questioned during the

17 afternoon for short periods of time with breaks in between in an appropriate

18 environment while he was clean and rested, and in a coherent and alert state of mind.

19 Furthermore, the district court also considered in its analysis of the totality of



                                               23
 1 circumstances, Defendant’s demeanor during pretrial hearings and the fact that the

 2 same rights had been explained to him a few months earlier without any challenge to

 3 the validity of waiver. We agree with the district court’s determination that, based on

 4 the evidence presented during the suppression hearing and the totality of

 5 circumstances, Defendant’s waiver was knowing, intelligent, and voluntary.

 6 Sentence

 7   {29}   Because Defendant was a minor when the incident occurred, the district court

 8 held an amenability hearing following his conviction and prior to sentencing in

 9 accordance with NMSA 1978, § 32A-2-20(A) (2009). The district court found by

10 clear and convincing evidence that Defendant was not amenable to treatment and not

11 eligible for commitment to an institution for children. The district court subsequently

12 sentenced Defendant, as an adult, to thirty-three years of incarceration, followed by

13 two years of parole.

14   {30}   Defendant argues that he cannot be sentenced as an adult for the delinquency

15 offenses; and, because he was adjudicated guilty of both delinquency offenses and

16 youthful offender offenses, he asks that we vacate his convictions for the delinquency

17 offenses. As support for this argument, Defendant relies on Section 32A-2-20(E), and

18 our Supreme Court’s reasoning in State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229

19 P.3d 474, and State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86,



                                             24
 1 superceded by statute on other grounds as recognized by Jones, 2010-NMSC-012,

 2 ¶ 19. Defendant neither challenges the district court’s decision to sentence him as an

 3 adult based on his status as a youthful offender, nor asserts the district court erred in

 4 finding that he was not amenable to treatment and not eligible for commitment to an

 5 institution. “We review the [district] court’s sentencing for an abuse of discretion.”

 6 State v. Montoya, 2015-NMSC-010, ¶ 63, 345 P.3d 1056 (internal quotation marks

 7 and citation omitted).

 8   {31}   A delinquent child is one who has committed a delinquent act, such as the

 9 unlawful taking of a motor vehicle or an offense punishable as a felony. NMSA 1978,

10 § 32A-2-3(A), (B) (2009). A child is characterized as a youthful offender if he is a

11 delinquent child who is fourteen to eighteen years of age when he commits at least one

12 of thirteen offenses enumerated in the Act, including second degree murder and

13 aggravated burglary. Section 32A-2-3(J)(1).

14   {32}   The district court sentenced Defendant to fifteen years incarceration for second

15 degree murder—a lesser included offense to first degree murder charged in Count 1

16 of Defendant’s indictment—and nine years for aggravated burglary. The remaining

17 four felony convictions earned Defendant an additional nine years. An adjudication

18 for second degree murder and aggravated burglary elevates a delinquent child to a

19 youthful offender under the definitions set forth in Section 32A-2-3(J), while the



                                               25
 1 remaining offenses are delinquent acts under the statute. Section 32A-2-3(A). Under

 2 Section 32A-2-20(A), the district court has the discretion to sentence a youthful

 3 offender as either an adult or juvenile. “If the court invokes an adult sentence, the

 4 court may sentence the child to less than, but shall not exceed, the mandatory adult

 5 sentence.” Section 32A-2-20(E).

 6   {33}   In State v. Montano, 1995-NMCA-065, ¶ 7, 120 N.M. 218, 900 P.2d 967, we

 7 recognized that a conviction for a delinquent act may result in an adult sentence where

 8 the defendant is also convicted and sentenced as an adult for a youthful offender

 9 offense. There, the defendant was convicted of two crimes: one that the statute

10 enumerated as a delinquent offense, and one that the statute enumerated as a youthful

11 offender offense. Id. ¶ 4. After being sentenced as an adult for both offenses, the

12 defendant appealed, arguing that the court lacked authority to sentence him as an adult

13 for the delinquent offense. Id. ¶ 5. Looking to case law, we noted that

14 jurisdiction—both personal and subject matter—transfers from children’s court to

15 district court where a juvenile is to be prosecuted as an adult. Id. ¶ 7; see also § 32A-

16 2-20(E) (noting that invoking an adult sentence “terminates the jurisdiction of the

17 court over the child with respect to the delinquent acts alleged in the petition”).

18 Montano emphasized that an anomaly existed in allowing both the district court and

19 the children’s court to have jurisdiction over a youthful offender so that a defendant



                                              26
 1 “would be subject to rehabilitation as a juvenile, while at the same time he could be

 2 sentenced to prison as an adult offender.” 1995-NMCA-065, ¶ 5 (internal quotation

 3 marks and citation omitted). Though acknowledging the “theoretical possibilities” of

 4 a dual sentencing scheme where a court could sentence someone both as an adult and

 5 as a juvenile, Montano ultimately rejected such a scheme, reasoning that it “fail[s] to

 6 address the anomaly of sentencing a defendant to be rehabilitated as a juvenile when

 7 there has been a determination that the defendant cannot be rehabilitated in available

 8 juvenile facilities.” Id. ¶ 6. We then looked to the statute, noting our obligation to

 9 avoid unreasonable interpretations and applications of its language. Seeing no

10 ambiguity in the statute’s language that would warrant an in-depth analysis of that

11 language, we concluded that, “[b]ased on the statutory scheme and caselaw

12 concerning the transfer of juveniles to district court,” the Legislature intended any

13 juvenile adjudicated for a youthful offender offense “to be subject to adult sanctions

14 under Section 32A-2-20 for any offense in the same case.” Montano, 1995-NMCA-

15 065, ¶ 7 (emphasis in original). As a result, we affirmed the defendant’s adult sentence

16 for an offense enumerated as a delinquent act under the statute.

17   {34}   Montano guides our analysis in this instance. Though Montano dealt with a

18 previous version of this statute, the relevant language remains the same. Defendant’s

19 convictions for second degree murder and aggravated burglary are clearly youthful



                                              27
 1 offender offenses under the statute. See § 32A-2-3. The statute provides the district

 2 court with discretion to sentence Defendant as an adult. See § 32A-2-20(A). Indeed,

 3 Defendant neither argues that he was improperly sentenced as an adult for the second

 4 degree murder and aggravated burglary charges, nor asserts that he was improperly

 5 characterized as a youthful offender. According to Montano, if the district court

 6 properly sentenced Defendant as an adult for the youthful offender offenses, then it

 7 could properly sentence Defendant as an adult for the remaining offenses. By

 8 acknowledging the propriety of his sentence for the youthful offender counts,

 9 Defendant has failed to demonstrate the district court erred in sentencing him as an

10 adult for the remaining delinquency counts.

11   {35}   To the extent that Defendant cites to Muniz and Jones, as support for his

12 position, we are unpersuaded. Muniz and Jones are distinguishable, as they dealt with

13 the district court’s authority to impose an adult sentence based on a serious youthful

14 offender charge that had been dropped—either as a result of plea negotiations or the

15 prosecutor’s discretion. See § 32A-2-3(H) (defining “serious youthful offender” as “an

16 individual fifteen to eighteen years of age who is charged with and indicted . . . for

17 first degree murder”). In addition, the Legislature “largely abrogated” Muniz by

18 amending Section 32A-2-20 in 2005, while Jones focused on whether an amenability




                                             28
1 hearing was required under Section 32A-2-20(B). See Jones, 2010-NMSC-012, ¶¶ 19,

2 23-48.

3 CONCLUSION

4   {36}   Defendant has failed to demonstrate error in the proceedings below. We

5 therefore affirm Defendant’s conviction and sentence.

6   {37}   IT IS SO ORDERED.


7
8                                       JULIE J. VARGAS, Judge

9 WE CONCUR:



10
11 LINDA M. VANZI, Chief Judge



12
13 STEPHEN G. FRENCH, Judge




                                         29
