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                                                              New Mexico Compilation
                                                            Commission, Santa Fe, NM
                                                           '00'04- 14:08:25 2013.05.16

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-014

Filing Date: April 15, 2013

Docket No. 33,395

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

       v.

DONOVAN KING,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John A. Dean, Jr., District Judge

Gary K. King, Attorney General
Ralph E. Trujillo, Assistant Attorney General
Santa Fe, NM

for Appellant

Bennett J. Baur, Acting Chief Public Defender
Sergio J. Viscoli, Assistant Appellate Defender
Albuquerque, NM

for Appellee

                                        OPINION
CHÁVEZ, Justice.

{1}     Donovan King, suspected of aggravated battery, sat slumped over in a chair located
in an interrogation room at the Farmington Police Department. His interrogator, Detective
Paul Martinez, advised King of his rights consistent with Miranda v. Arizona, 384 U.S. 436,
478-79 (1966), and asked if he understood his rights. King replied, “Yeah.” Detective
Martinez next asked him, “Do you wish to answer any questions?” King answered, “Not at
the moment. Kind of intoxicated.” After telling King that intoxication was not a reason that
King could not talk to him, Detective Martinez placed a waiver of rights form in front of
King, tossed a pen in King’s direction, and said, “Sign this for me if you wish to answer

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questions,” indicating where King should sign. King responded, “If I wish to answer
questions? Like I said[,] not at the moment.” Undeterred, Detective Martinez repeated that
intoxication was not a reason for not giving a statement, persisted in questioning King, and
eventually elicited an incriminating statement from him.

{2}      The district court granted King’s motion to suppress the statement because King had
twice unambiguously invoked his Fifth Amendment right to remain silent when he told
Detective Martinez that he did not want to answer questions at the moment. Because King
was ultimately charged with an open count of first degree murder, the State appealed the
district court’s ruling to this Court. See NMSA 1978, § 39-3-3(B)(2) (1972) (permitting
appeal by the state to the Supreme Court of decisions and orders suppressing evidence);
State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (holding that this
Court has jurisdiction over interlocutory appeals in cases in which a criminal defendant may
be sentenced to life imprisonment). We affirm the district court.

KING UNEQUIVOCALLY INVOKED HIS RIGHT TO REMAIN SILENT

{3}     In Miranda, the United States Supreme Court articulated a warning that law
enforcement must give to a suspect before the suspect can be subjected to a custodial
interrogation without compromising the suspect’s privilege against self-incrimination. 384
U.S. at 478-79. The Court explained:

       [The suspect] must be warned prior to any questioning that he has the right
       to remain silent, that anything he says can be used against him in a court of
       law, that he has the right to the presence of an attorney, and that if he cannot
       afford an attorney one will be appointed for him prior to any questioning if
       he so desires.

Id. at 479. “Once warnings have been given, the subsequent procedure is clear. If the
individual indicates in any manner, at any time prior to or during questioning, that he wishes
to remain silent, the interrogation must cease.” Id. at 473-74.

{4}     It is uncontested in this case that King was a suspect who was being subjected to a
custodial interrogation and that he was advised of his Miranda rights. The dispositive issue
is whether King’s statements that he did not want to answer questions “at the moment” were
sufficient to invoke his constitutional right to remain silent, mandating that the interrogation
cease. In addressing this issue, we defer to the district court’s findings as long as the
findings are supported by substantial evidence, and we review de novo the district court’s
application of the law to those facts. State v. Hubble, 2009-NMSC-014, ¶ 5, 146 N.M. 70,
206 P.3d 579.

{5}    A hearing was held on King’s motion to suppress on December 8, 2011. Detective
Martinez testified at the hearing, and the video recording and transcript of Detective
Martinez’s interrogation of King were admitted as State’s Exhibits A and B, respectively.

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The district court made detailed and comprehensive findings of fact and conclusions of law.
It entered an order on December 27, 2011, granting the motion to suppress. The district
court made the following relevant findings:

              1. At the time of the interview that is the subject of the motion, the
       Defendant was in custody for Miranda purposes and was under interrogation
       by the Detective.

                2. At the outset of the interrogation when the Detective explained the
       Defendant’s Miranda rights, the Defendant appears on the DVD to be
       physically affected by the alcohol and marijuana he testified to having
       consumed during the hours prior to the custodial interrogation. However, it
       is clear that the Defendant’s mentation was rational and lucid. He was able
       to readily recite his date of birth, age, post office box and physical address.
       His remarks and questions were logical and appropriate to the situation.

               3. The DVD and Appendix A, pg. 2[,] statements 7 through 14,
       reveal the following exchange.

               Detective: All right. [King], listen to me. You have the right to
               remain silent. Listen to me—look at me bro! You have the right to
               remain silent. Anything you say may be used against you. You have
               a right to a lawyer. If you cannot afford a lawyer one will be
               provided free. Do you understand your rights?

               [King]: Yeah[.]

               Detective: Do you wish to answer any questions?

               [King]: Not at the moment. Kind of intoxicated.

               Detective: Well[,] intoxication isn’t one of the reasons you can’t talk
               to us. It’s uh . . .

               [King]: It’s what?

               Detective: Three o’clock. Sign this for me if you wish to answer
               questions. Right there.

               [King]: If I wish to answer questions? Like I said[,] not at the
               moment.

               4. As the Detective said “sign this for me,” he placed the waiver of
       rights form across the table in front of [King], tossed a pen and marked the

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       signature line. [King] did not sign.

       ...

               7. In one form or another, the Detective told [King] to sign the form
       six times before [King] actually signed the waiver of rights form.

{6}    Based on these findings, the district court concluded that (1) King had
unambiguously invoked his right to remain silent; (2) King did not have to supply a reason
for invoking his right to remain silent; and (3) the detective did not scrupulously honor
King’s right to remain silent and terminate the interrogation. The transcript and the video
recording of the interrogation adequately support the district court’s findings of fact. We
next determine whether the district court correctly applied the facts to the law.

{7}    The legal analysis begins with the following passage from Miranda:

       Once warnings have been given, the subsequent procedure is clear. If the
       individual indicates in any manner, at any time prior to or during questioning,
       that he wishes to remain silent, the interrogation must cease. At this point he
       has shown that he intends to exercise his Fifth Amendment privilege; any
       statement taken after the person invokes his privilege cannot be other than
       the product of compulsion, subtle or otherwise. Without the right to cut off
       questioning, the setting of in-custody interrogation operates on the individual
       to overcome free choice in producing a statement after the privilege has been
       once invoked.

384 U.S. at 473-74 (footnote omitted).

{8}    However, the broad statement, “[i]f the individual indicates in any manner,” id. at
473, has been clarified to mean that a suspect must make an unambiguous statement
invoking the right to remain silent. Berghuis v. Thompkins, ___ U.S. ___, ___, 130 S. Ct.
2250, 2260 (2010). The moment that the unambiguous statement is made, the interrogator
must “scrupulously honor” the suspect’s or person’s right by ceasing the interrogation. See
Michigan v. Mosley, 423 U.S. 96, 104 (1975) (internal quotation marks and citation omitted).
The interrogator is not at liberty to refuse to discontinue the interrogation or to persist in
repeated efforts to wear down the suspect so as to cause the suspect to change his or her
mind. Id. at 105-06.

{9}      The State contends that King’s statement that he did not want to answer questions
“at the moment” was equivocal and implied that King would answer questions at some point
later in time, perhaps when he no longer felt intoxicated. King contends that his refusal to
answer questions “at the moment” required the police to stop the interrogation. We agree
with King.


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{10} King clearly invoked his right to remain silent. There is nothing ambiguous about
his statement, which made it clear that he did not want to speak with the police. The adverb
“not” is unequivocally a negative expression. In addition to this plain statement, King also
refused to sign the waiver of rights form. It is obvious that Detective Martinez himself
understood that King did not want to answer questions. Detective Martinez acknowledged
as much when he told King that intoxication was not a reason that King could not talk to
him. The State argues that “Detective Martinez did not lie to [King] when he told him that
‘intoxication was not a reason for not speaking.’” However, the State does not cite any
authority for the proposition that a person subjected to a custodial interrogation must state
a reason for his or her choice to invoke their constitutional rights, and we have found none.
Thus, we presume that no such authority exists. State v. Guerra, 2012-NMSC-014, ¶ 21, 278
P.3d 1031; McNeill v. Rice Eng’g & Operating, Inc., 2010-NMSC-015, ¶ 11, 148 N.M. 16,
229 P.3d 489 (“Where [a party has] failed to cite any contrary authority from this or any
other jurisdiction, this Court will presume that no such authority exists.”). The district court
was correct in concluding that a person who invokes the right to remain silent does not have
to offer a reason for invoking the right. All that is required is an unambiguous statement
invoking the right to remain silent so that the interrogator is not left to guess whether the
right was invoked. Berghuis, ___ U.S. at ___, 130 S. Ct. at 2260. We are left with the
inescapable conclusion that Detective Martinez did not have to guess what King meant, and
the detective knew that King did not want to answer questions, as further evidenced by the
detective’s efforts to get King to change his mind and sign the form waiving his rights.

{11} Although King’s statement suggested that he might want to talk at a later time, there
was absolutely no respite from the interrogation in this case. After King declined to sign the
waiver of rights form and repeated that he did not want to talk “at the moment,” Detective
Martinez immediately launched into a lecture about how intoxication is not one of the
reasons for refusing to talk to the police. Detective Martinez reprimanded King, telling him
that the interrogation was “pretty important,” King could not possibly think that the
detectives were messing around, and King should be “scared sober.” This lecture was
followed by more questioning and several requests for King to sign the waiver of rights
form.

{12} This is a case in which the interrogator failed to honor a decision by a person in
custody to cut off questioning, by both refusing to discontinue the interrogation and by
persisting in repeated efforts to wear the suspect down and cause him to change his mind.
This, the Fifth Amendment does not tolerate. “The requirement that law enforcement
authorities must respect a person’s exercise of [the right to remain silent] counteracts the
coercive pressures of the custodial setting.” Mosley, 423 U.S. at 104. Detective Martinez’s
failure to scrupulously honor King’s exercise of his right to remain silent is inconsistent with
any notion of a voluntary relinquishment of the right to remain silent. Detective Martinez’s
actions are conclusive evidence that King’s subsequent relinquishment of his right to remain
silent was forced upon him by the continued interrogation, and therefore it was not a
voluntary relinquishment.


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CONCLUSION

{13} The district court’s grant of King’s motion to suppress is affirmed because King
unambiguously invoked his right to remain silent and law enforcement did not scrupulously
honor his right to remain silent by immediately ceasing the interrogation.

{14}   IT IS SO ORDERED.

                                            ____________________________________
                                            EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Chief Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice

___________________________________
BARBARA J. VIGIL, Justice

Topic Index for State v. King, No. 33,395

CONSTITUTIONAL LAW
Miranda Warnings
Self-Incrimination

CRIMINAL LAW
Intoxication
Murder

CRIMINAL PROCEDURE
Miranda Warning
Self-Incrimination
Waiver of Rights




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