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

 2 STATE OF NEW MEXICO,

 3          Petitioner-Appellee,

 4 v.                                             No. 33,606

 5 MILES T.,

 6          Child-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Sandra A. Price, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 Jorge A. Alvarado, Chief Public Defender
12 Karl Erich Martell, Assistant Appellate Defender
13 Santa Fe, NM

14 for Appellant

15                                 MEMORANDUM OPINION

16 FRY, Judge.

17   {1}    Miles T. (Child) appeals from the conditional consent decree, in which Child

18 pled no contest to the charge of possession of alcohol by a minor and reserved his

19 right to challenge the district court’s denial of his motion to suppress. [RP 51, 53]

20 Child contends that the district court erred in denying his motion to suppress because
 1 (1) Child failed to knowingly and intelligently waive his Miranda rights because he

 2 was intoxicated; and (2) Child failed to voluntarily waive his Miranda rights given

 3 that armed officers pulled him out of the bushes; handcuffed him; he appeared to

 4 believe “the jig was up;” and he was in handcuffs until he started answering the

 5 officers’ questions. [DS 4-5] This Court’s calendar notice proposed summary

 6 affirmance. [CN1] Defendant has filed a memorandum in opposition that we have

 7 duly considered. [MIO] Unpersuaded, however, we affirm.

 8 DISCUSSION

 9   {2}   In the memorandum, Child argues that the totality of the circumstances do not

10 support the trial court’s findings of a knowing, intelligent, and voluntary waiver of

11 Miranda rights “by the frightened, intoxicated Child after he was pulled from the

12 buses by armed men in the dead of night.” [MIO 7] Child also asserts that he was

13 not actually in the presence of the other child when the police apprehended Child in

14 the bushes and questioned him. [Id.] Thus, Child states that under circumstances

15 where he was “scared and drunk in the dark of a cold night, confronted by armed

16 officers,” the State has not showed, by a preponderance of the evidence, that Child’s

17 waiver of Miranda rights was knowing, intelligent, and voluntary. [MIO 8] We are not

18 persuaded.




                                             2
 1   {3}   The officer’s testimony about Child’s behavior and the circumstances and

 2 manner of the officers’ questioning of Child conflicts with Child’s assertions in the

 3 docketing statement and in the memorandum. As a reviewing court, however, “[w]e

 4 do not substitute our judgment for that of the fact[]finder concerning the credibility

 5 of witnesses or the weight to be given their testimony.” State v. Haskins,

 6 2008-NMCA-086, ¶ 8, 144 N.M. 287, 186 P.3d 916; see State v. Rojo, 1999-NMSC-

 7 001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (stating that the fact finder is free to reject the

 8 defendant’s version of the facts).

 9 Knowing and Intelligent Waiver

10   {4}   Whether or not Child’s friend, who was also apprehended, was standing near

11 Child when Child was pulled from the weeds and questioned, we remain persuaded

12 that the totality of the circumstances indicate that Child’s intoxication did not interfere

13 with a knowing and intelligent waiver of his Miranda rights. When one of the officers

14 read Child his Miranda rights, Child said he would talk to the officer and said that he

15 understood his rights. [RP 40, 10:43:43 AM; RP 43, 10:54:12 AM] When asked to

16 identify himself, Child produced a school ID and verbally identified himself. [RP 40,

17 10:44:09 AM] Child also told the officer his date of birth and that he was sixteen

18 years old at the time. [RP 40-41, 10:44:25 AM - 10:44:54 AM] Child was questioned

19 for less than ten minutes and the questions were open-ended with the officer merely


                                                3
 1 saying “and.” [RP 41, 10:45:21 AM - 10:46:31 AM] Child readily admitted to

 2 stealing bicycles with his friend, that he had alcohol, and that he was intoxicated. [RP

 3 41, 10:45:21 AM; RP 42-43, 10:52:23 AM - 10:52:32 AM] The officer testified that

 4 he did not see anything in Child’s walk to indicate he was intoxicated, however, and

 5 Child did not slur his speech, but the officer testified that Child did smell of alcohol

 6 and that he heard bottles in Child’s backpack. [RP 41, 10:47:06 AM - 10:47:22 AM]

 7 The officer also testified that Child could control and handle himself, and that Child

 8 was functioning well. [RP 42, 10:48:07 AM - 10:50:08 AM] Further, the officer

 9 testified that Child appeared to the officer to be riding the bicycle down the county

10 road “pretty good.” [RP 42, 10:50:46 AM] When asked if he wanted a parent present,

11 Child declined. [RP 43, 10:54:26 AM] The other officer testified that Child did not

12 appear to be very intoxicated or slow in making responses. [RP 47, 11:12:45 AM -

13 11:14:03 AM]

14   {5}   We hold that, under the totality of the circumstances, Child’s waiver of his

15 Miranda rights was knowing and intelligent.

16 Voluntary Waiver

17   {6}   We also remain persuaded that the totality of the circumstances indicate that

18 Child’s waiver of his Miranda rights was voluntary rather than a product of

19 intimidation, coercion, or deception. Child was initially handcuffed because he


                                              4
 1 refused to come out from the weeds where he was hiding and the officer thought Child

 2 was going to run off; the handcuffs were then removed because Child was

 3 cooperative. [RP 45, 11:05:13 AM; RP 47, 11:12:23 AM - 11:12:43 AM] The officer

 4 testified that Child was compliant and not scared or intimidated. [RP 44, 10:58:44 AM

 5 - 10:58:50 AM] The officer also testified that he did not give Child a hard time about

 6 anything and that Child was helpful. [RP 44, 10:59: 23 AM; RP 44, 10:58:50 AM] As

 7 mentioned above, Child readily admitted to stealing bicycles with his friend, that he

 8 had alcohol, and that he was intoxicated. [RP 41, 10:45:21 AM; RP 42-43, 10:52:23

 9 AM - 10:52:32 AM]

10   {7}   We hold that, under the totality of the circumstances, Child’s waiver of his

11 rights was voluntary rather than a product of intimidation, coercion, or deception.

12 CONCLUSION

13   {8}   For the reasons set forth in the calendar notice and this memorandum opinion,

14 we affirm the district court’s decision to deny Child’s motion to suppress.

15   {9}   IT IS SO ORDERED.


16
17                                         CYNTHIA A. FRY, Judge

18 WE CONCUR:


19

                                             5
1 M. MONICA ZAMORA, Judge


2
3 J. MILES HANISEE, Judge




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