                                                         I attest to the accuracy and
                                                          integrity of this document
                                                            New Mexico Compilation
                                                          Commission, Santa Fe, NM
                                                         '00'05- 10:09:39 2015.11.03
Certiorari Denied, October 13, 2015, No. 35,513

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-110

Filing Date: August 13, 2015

Docket No. 33,297

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

WYATT B.,

       Child-Appellant.

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

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,

                                           1
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.

                                               2
{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 (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

                                              3
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, Deputy Carey asked
Child two questions regarding how much alcohol he had to drink and when he drank it. Child
gave two statements in response to Deputy Carey’s questions, specifically answering that
he had consumed “three cans” approximately “fifteen [to] thirty minutes ago.” Deputy Carey
then advised Child of his Miranda rights, which Child stated he understood. This portion of
the video drew an objection from Child. After the video was played, the district court noted
that Deputy Carey had asked Child two questions after learning Child’s age but before
Deputy Carey’s advisement. The district court immediately instructed the jury to disregard
Child’s statements in response to those questions, explaining that they must not consider
those statements as evidence in the case.

{11} The prosecutor then continued her direct examination of Deputy Carey, during which
the following exchange occurred:

       State: After reviewing that video, did you ask [Child] how much he had to
              drink that night?


                                             4
       Carey: Yes.

       State: Okay. After he was Mirandized?

       Carey: I think it was before I Mirandized him.

       State: Okay. Did you ask him after he was Mirandized how much he had
              been drinking?

Child’s objection to that question was overruled, and the court allowed the State’s
questioning to continue:

       State: So, after you Mirandized [Child], did he ever make any statements as
              to how much he had been drinking?

       Carey: I believe so, yes.

       State: Okay. And do you recall after watching the video, what did he tell
              you?

       Carey: Just the three beers.

       State: Okay. And do you recall after watching the video how long ago he
              stated he had been drinking?

       Carey: Thirty minutes prior to us contacting him.

{12} After Deputy Carey’s testimony and outside the presence of the jury, Child moved
for a mistrial on the grounds that (1) Deputy Carey asked Child questions that elicited
incriminating statements “without first advising [Child] of [his] constitutional rights and
securing a knowing, intelligent, and voluntary waiver” as required by Section 32A-2-14(C);
and (2) the State introduced the evidence of Child’s statements at trial in violation of Section
32A-2-14(D). The district court denied Child’s motion and stated it would issue a curative
instruction to the jury if Child requested it.

{13} Before reconvening the jury and proceeding with the trial, the court offered to hear
testimony from Deputy Stevens for the purpose of revisiting the issue of whether Child’s
waiver was knowing, intelligent, and voluntary. After hearing Deputy Stevens’ testimony,
the district court stood by its previous ruling that Child’s waiver was valid.

{14} Prior to closing statements, the district court reminded the jury that it had instructed
the jury to disregard a statement by Child on Deputy Carey’s video recording. The court then
read a curative instruction regarding that issue, stating that the jury must “disregard any and
all statements made by [Child] to the police after the officers learned his age, but prior . . .

                                               5
to them Mirandizing him or reading him the juvenile constitutional rights. These statements
are not to be considered by you for any purpose.” The jury convicted Child of DWI, but it
acquitted him of possession of drug paraphernalia. Child raises three issues on appeal that
we address in turn.

CHILD’S WAIVER OF HIS STATUTORY RIGHT TO REMAIN SILENT

{15} Child first challenges the admissibility of inculpatory statements that he made after
he was advised of his right to remain silent. Child argues that the district court’s admission
of this evidence violated Section 32A-2-14(D) because the State failed to demonstrate that
Child knowingly, intelligently, and voluntarily waived his right. Child primarily claims that
his impaired physical and mental condition, caused by his intoxication, inhibited his ability
to validly waive his right. He also advances several other grounds in support of his argument,
namely that (1) he was detained by police officers and not free to leave; (2) Deputy Carey
hurried through his advisement to Child and did not slow down to confirm that Child
understood his right; (3) Deputy Carey asked Child questions that he knew were likely to
elicit incriminating responses; (4) Deputy Carey refused Child’s request to call his parents;
and (5) the district court’s determination that Child validly waived his right was based, in
part, on the court’s mistaken belief that Child lied about his age to Deputy Carey.

Standard of Review

{16} Illegally obtained evidence is subject to a suppression motion to exclude the evidence
from trial. Cf. City of Santa Fe v. Marquez, 2012-NMSC-031, ¶ 27, 285 P.3d 637 (“A motion
to suppress presupposes that the evidence was illegally obtained.” (emphasis, alteration,
quotation marks, and citation omitted)); see, e.g., State v. Antonio T., 2015-NMSC-019, ¶
31, ___ P.3d ___ (holding that the child’s motion to suppress his incriminating statements
should have been granted because the statements were obtained in violation of Section 32A-
2-14(C) and the state failed to prove the child’s waiver was valid pursuant to Section 32A-2-
14(D)). An appeal of a district court’s denial of a motion to suppress inculpatory statements
involves mixed questions of fact and law. State v. Gerald B., 2006-NMCA-022, ¶ 13, 139
N.M. 113, 129 P.3d 149. As an appellate court, we do not intrude on the district court’s role
as the trier of fact. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. “We
view the facts in the manner most favorable to the prevailing party and defer to the district
court’s findings of fact if substantial evidence exists to support those findings.” Id.
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” State v. Jean-Paul, 2013-NMCA-032, ¶ 4, 295 P.3d 1072
(internal quotation marks and citation omitted). The district court’s application of the law
to the facts is a question of law that we review de novo. State v. Randy J., 2011-NMCA-105,
¶ 10, 150 N.M. 683, 265 P.3d 734.

Protections Under the Children’s Code

{17}   The Fifth Amendment to the United States Constitution “serves to protect persons

                                              6
in all settings in which their freedom of action is curtailed in any significant way from being
compelled to incriminate themselves.” Miranda, 384 U.S. at 467. In New Mexico, children
who are subject to police questioning are statutorily entitled to greater rights under Section
32A-2-14 than those guaranteed by Miranda. See Javier M., 2001-NMSC-030, ¶ 1
(concluding that Section 32A-2-14 demonstrates the Legislature’s intent to afford broader
rights to children than those provided in Miranda jurisprudence). Section 32A-2-14(C)
prohibits police questioning of a child suspected of a delinquent act “without first advising
the child of the child’s constitutional rights and securing a knowing, intelligent and voluntary
waiver.” More significantly, before the State may introduce any statements made by a child
at trial, 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.” Section 32A-2-14(D).

{18} Our Supreme Court held in Javier M. that “a child need not be under custodial
interrogation” by police for the statute’s protections to apply. 2001-NMSC-030, ¶ 1.
“Custodial interrogation occurs when an individual is swept from familiar surroundings into
police custody, surrounded by antagonistic forces, and subjected to the techniques of
persuasion so that the individual feels under compulsion to speak.” Id. ¶ 15 (alterations,
internal quotation marks, and citation omitted). Rather, our Supreme Court concluded that
the protections of Section 32A-2-14 also extend to a child who is “seized pursuant to an
investigatory detention and not free to leave.” Javier M., 2001-NMSC-030, ¶ 38. “[W]hen
an officer approaches a child to ask the child questions because the officer ‘suspects’ the
child of delinquent behavior, the officer is performing an investigatory detention.” Id. ¶ 37.
The Court held that the statute’s use of the term “constitutional rights” is not a reference to
the “required warnings enumerated in Miranda.” Id. ¶ 41. Instead, the Court held that
Section 32A-2-14 requires that the child who is subject to an investigatory detention “be
advised of his or her right to remain silent and that if the child waives that right, anything
said can be used against [the child].” Javier M., 2001-NMSC-030, ¶ 48.

{19} Although Section 32A-2-14 institutes these heightened statutory protections for
children, the applicable test for reviewing whether a child waived his or her statutory right
is the same as that of an adult. State v. Lasner, 2000-NMSC-038, ¶ 6, 129 N.M. 806, 14 P.3d
1282. We examine the totality of the circumstances to determine whether the State has
carried its “burden of demonstrating by a preponderance of the evidence that the defendant
knowingly, intelligently, and voluntarily waived the constitutional right against self-
incrimination.” State v. Martinez, 1999-NMSC-018, ¶ 14, 127 N.M. 207, 979 P.2d 718. With
respect to children over the age of fourteen, Section 32A-2-14(E) codifies the totality of the
circumstances test and requires that courts consider “some of the circumstances that may be
particularly relevant for a juvenile” when determining whether a child’s statements are
admissible. Martinez, 1999-NMSC-018, ¶ 18. That section provides:

       In determining whether the child knowingly, intelligently and voluntarily
       waived the child’s rights, the court shall consider the following factors:


                                               7
       (1) the age and education of the respondent;

       (2) whether the respondent is in custody;

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

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

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

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

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

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

Section 32A-2-14(E).

{20} Child was approached and questioned by Deputy Carey because he suspected Child
of DWI, a delinquent act under the Children’s Code. Accordingly, Child was subject to an
investigatory detention that triggered the statutory protections of Section 32A-2-14. We
therefore analyze the totality of the circumstances surrounding Child’s questioning to
evaluate whether Child knowingly, intelligently, and voluntarily waived his statutory right
to remain silent. “In determining a knowing and intelligent waiver of rights, we ascertain
whether [Child] was fully aware of the nature of the right he was waiving and the
consequences of abandoning the right.” Martinez, 1999-NMSC-018, ¶ 21.

Validity of Child’s Waiver

{21} Applying the factors enumerated in Section 32A-2-14(E) as part of the totality of
circumstances analysis, we conclude that Child knowingly, intelligently, and voluntarily
waived his statutory right to remain silent. Child was sixteen years old at the time of
questioning. Although the trial record does not indicate Child’s educational level, our
Supreme Court has held that “a child over age fifteen is unlikely to make an involuntary
statement . . . after receiving Miranda warnings.” State v. Jonathan M., 1990-NMSC-046,
¶ 8, 109 N.M. 789, 791 P.2d 64. Child does not dispute that he was subject to an
investigatory detention, but Child suggests that his waiver was invalid because Deputy Carey
testified Child was not free to leave during questioning. We do not believe this restriction

                                             8
indicates Child’s waiver was invalid but only indicates that the statutory protections of
Section 32A-2-14 apply to Child’s situation. See Javier M., 2001-NMSC-030, ¶ 38 (“[T]he
protections of [Section 32A-2-14] are triggered . . . when a child is seized pursuant to an
investigatory detention and not free to leave.”). Officers conducted the DWI investigation
in the public parking lot of a convenience store in plain view of store employees, traffic, and
other members of the public entering and exiting the store. Further, the length of time
between Child’s initial contact with police and his arrest for DWI lasted only approximately
twelve minutes. Even though the time of day was approximately 11:00 p.m., Deputy Stevens
testified that the parking lot was well-lit by the store’s lights and the lights of the police
patrol cars. In addition, Deputy Carey testified that his demeanor toward Child was
professional and courteous and that there was no indication that Child felt in fear of the
interaction. Deputy Carey informed Child of his right to remain silent, that anything Child
said could be used against him, and that Child could exercise his right to not make any
statements or answer any questions. Deputy Carey asked Child if he understood the
advisement, and Child answered that he did. Child argues that Deputy Carey “ran through”
the advisement, failed to slow down to confirm whether Child understood his rights, and
asked Child questions that he knew were likely to elicit incriminating responses. Child does
not fully develop these arguments or cite any authority on these points. See State v. Flores,
2015-NMCA-002, ¶ 17, 340 P.3d 622 (“[This] Court has been clear that it is the
responsibility of the parties to set forth their developed arguments, it is not the court’s
responsibility to presume what they may have intended.”), cert. granted, 2014-NMCERT-
012, 344 P.3d 988. However, to the extent Child suggests that he was “tricked[] or cajoled
into a waiver[,]” evidence in the trial record fails to support such a claim. Miranda, 384 U.S.
at 476.

{22} We are also not persuaded by Child’s argument that his intoxication level during the
time of questioning impaired his ability to validly waive his statutory right. Child points to
this Court’s prior holding that evidence of extreme intoxication is inconsistent with a
knowing, intelligent, and voluntary waiver of rights. See State v. Bramlett, 1980-NMCA-
042, ¶¶ 22-23, 94 N.M. 263, 609 P.2d 345 (holding that the defendant’s statements were
inadmissible because evidence of the defendant’s extreme intoxication was not consistent
with a valid waiver of Miranda rights), overruled on other grounds by Armijo v. State ex rel.
Transp. Dep’t, 1987-NMCA-052, ¶ 8, 105 N.M. 771, 737 P.2d 552; see also State v. Young,
1994-NMCA-061, ¶ 14, 117 N.M. 688, 875 P.2d 1119 (holding that the trial court must
consider evidence of intoxication when the defendant’s extreme intoxication was not
consistent with a valid waiver of Miranda rights). In support of his argument, Child first
cites testimony from Deputy Carey that Child had difficulty opening the door of his vehicle.
Child also relies on testimony from Deputy Stevens that Child spoke in incomplete sentences
due to his intoxication, stated that he was “pretty buzzed,” and performed poorly on the field
sobriety tests. In addition, Child claims that the results of his breath alcohol concentrations
of 0.14 and 0.15 exhibited an intoxication level that detrimentally impacted his ability to
validly waive his right to remain silent.

{23}   We agree that the evidence of Child’s intoxication demonstrates he could not drive

                                              9
safely, and we are mindful that “voluntary intoxication is relevant to determining whether
a waiver was knowing and intelligent.” Young, 1994-NMCA-061, ¶ 14. However, we
disagree that the evidence in this case compels a determination that Child was extremely
intoxicated and lacked the capability to understand and waive his statutory right. In Bramlett,
the defendant’s breath alcohol concentration level was 0.23, he had difficulty walking, and
police officers prolonged their detention of the defendant “for his own protection” because
he was “too intoxicated to be released[.]” 1980-NMCA-042, ¶¶ 20-21 (internal quotation
marks omitted). Similarly, in Young, the defendant’s blood alcohol level was nearly four
times the level necessary to establish impairment for purposes of DWI. 1994-NMCA-061,
¶ 14. Evidence of Child’s intoxication stands in stark contrast to the evidence of extreme
intoxication present in Bramlett and Young. When asked about Child’s level of intoxication,
Deputy Carey described Child as having “a little bit of slurred speech” and blood shot and
watery eyes, but he testified that Child seemed to understand his questions and was not
disheveled, out of control, or mentally unbalanced. Child was unable to successfully
complete the field sobriety tests, but no evidence in the trial record supports a conclusion
that Child was unable to walk or could not care for his own safety. Moreover, Child’s breath
alcohol concentration level was markedly below the levels of the defendants in Bramlett and
Young. We believe that this evidence is consistent with a determination that Child
knowingly, intelligently, and voluntarily waived his right to remain silent.

{24} Deputy Carey denied Child’s request to allow him to call his parents while he was
being questioned, and Child further argues that Deputy Carey’s denial runs contrary to
Section 32A-2-14(E)(8) and weighs against the district court’s finding of a valid waiver.
Specifically, Child claims that the Legislature included Section 32A-2-14(E)(8) for the
specific purpose of protecting children from pressures intrinsic to the interrogation
atmosphere. Even though we consider this factor in reviewing the totality of the
circumstances, Child misconstrues our well-established application of the test. The statutory
factors set forth in Section 32A-2-14(E) “emphasiz[e] some of the circumstances that may
be particularly relevant for a juvenile,” but “presence or absence of an attorney, friend, or
relative at the questioning . . . is merely one of the factors relevant in determining the
validity of a waiver of rights[.]” Martinez, 1999-NMSC-018, ¶¶ 18, 20. We are not
convinced that the inability of Child to have his parents present during his investigatory
detention overcomes other factors that suggest Child’s waiver was knowing, intelligent, and
voluntary.

{25} Finally, Child argues that the district court based its ruling of a valid waiver on the
court’s incorrect belief that Child lied about his age at the time of questioning. After viewing
Deputy Carey’s video, the district court, in its second ruling on the validity of Child’s
waiver, stated that Child “fabricated his age” by initially telling Deputy Carey he was fifteen
rather than sixteen during questioning. Child contends that the trial record fails to support
the district court’s finding because the court mistakenly equated Child’s ability to lie with
his ability to waive his right to remain silent. However, the court did not ground its
determination on the validity of Child’s waiver solely in its conclusion that Child was
deceptive about his age. Regardless of the district court’s finding regarding Child’s

                                              10
deception, the trial record nonetheless adequately establishes that Child understood his
statutory right and the consequences of waiving that right. We are therefore convinced by
the totality of the circumstances that Child’s waiver was knowing, intelligent, and voluntary
and that the district court properly denied Child’s suppression motion.

ADMISSION OF DEPUTY CAREY’S TESTIMONY

{26} Child next argues that Deputy Carey’s testimony that Child stated he drank “three
beers . . . thirty minutes prior to [police] contacting him” was inadmissible under Section
32A-2-14(D) and prejudiced Child. Child contends that the State intentionally elicited the
improper testimony only moments after the district court viewed Deputy Carey’s video and
admonished the jury to disregard the statements Child made after Deputy Carey learned
Child’s age but before Child was advised of his right to remain silent. Child argues that the
error could not be remedied by the district court’s subsequent curative instruction given at
the end of Child’s trial to disregard Child’s statements.

{27} According to Child, the State’s improper motive in eliciting Deputy Carey’s
inadmissible testimony requires our departure from the general rule that “a prompt
admonition from the court to the jury to disregard and not consider inadmissible evidence
sufficiently cures any prejudicial effect which might otherwise result.” State v. Newman,
1989-NMCA-086, ¶ 19, 109 N.M. 263, 784 P.2d 1006. It is true that our courts apply a
different analysis to cases in which the prosecution intentionally elicits inadmissible
evidence. State v. Armijo, 2014-NMCA-013, ¶ 9, 316 P.3d 902. In those types of cases,
“regardless of whether a [district] court admonishes the jury not to consider the testimony,
[we] must determine whether there is a reasonable probability that the improperly admitted
evidence could have induced the jury’s verdict.” Id. (internal quotation marks and citation
omitted). The trial record in this case, however, fails to support Child’s assertion that the
district court issued a curative instruction related to Deputy Carey’s testimony regarding
Child’s statements. The district court, at the close of Child’s trial, instead issued a curative
instruction related to Child’s statements as recorded by Deputy Carey’s video. On appeal,
Child does not raise an issue of evidentiary error with regard to the district court’s admission
of the video. Therefore, in the absence of a curative instruction or prompt admonition from
the district court to cure any error caused by Deputy Carey’s testimony, the question of
whether the State intentionally elicited the testimony is not relevant for purposes of our
analysis. Rather, we must determine whether Deputy Carey’s testimony was inadmissible
and, if so, whether the inadmissible testimony was prejudicial or harmless to Child. See State
v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110 (“Improperly admitted evidence is not
grounds for a new trial unless the error is determined to be harmful.”).

{28}    Child is correct that Deputy Carey’s testimony that highlighted statements Child
made prior to being advised of his statutory right to remain silent was inadmissible. After
the jury viewed Deputy Carey’s video, the district court promptly excluded Child’s
statements that he drank three beers approximately fifteen to thirty minutes prior to his
encounter with police officers. Over Child’s objection, the district court then allowed the

                                              11
prosecutor to elicit testimony from Deputy Carey regarding those same statements,
specifically that Child stated he had consumed “three beers . . . thirty minutes prior to
[police] contacting him.” Child’s statements were elicited before he was advised of his
statutory right to remain silent, and the improper admission of this testimony violated
Section 32A-2-14(D). Therefore, we turn to whether Deputy Carey’s inadmissible testimony
was prejudicial or harmless to Child.

{29} For purposes of harmless error review, we apply a non-constitutional harmless error
analysis when the error implicates a violation of statutory law. “[A] non-constitutional error
is harmless when there is no reasonable probability the error affected the verdict.” Tollardo,
2012-NMSC-008, ¶ 36 (emphasis, internal quotation marks, and citation omitted). We
conduct our harmless error analysis on a case-by-case basis and “evaluate all of the
circumstances surrounding the error.” Id. ¶¶ 43-44. These circumstances necessarily
encompass “an examination of the error itself, which depending upon the facts of the
particular case could include an examination of the source of the error and the emphasis
placed upon the error.” Id. ¶ 43. We may also consider properly admitted evidence of a
defendant’s guilt “since it will provide context for understanding how the error arose and
what role it may have played in the trial proceedings[.]” Id. The circumstances of a particular
case will also dictate our examination of the error in the context of “the importance of the
erroneously admitted evidence in the prosecution’s case, as well as whether the error was
cumulative or instead introduced new facts.” Id. (alterations, internal quotation marks, and
citation omitted).

{30} Child concedes on appeal that the evidence at his trial was generally sufficient to
support his conviction for DWI. However, our inquiry for purposes of harmless error review
“is not to determine whether the evidence was sufficient to support a conviction.” Armijo,
2014-NMCA-013, ¶ 16. We instead determine whether there is a reasonable probability that
Deputy Carey’s inadmissible testimony affected the jury’s verdict. See Tollardo, 2012-
NMSC-008, ¶ 57 (“In the final analysis, determining whether an error was harmless requires
reviewing the error itself and its role in the trial proceedings, and in light of those facts,
making an educated inference about how that error was received by the jury.”). The jury was
instructed at trial that to return a guilty verdict it must find that Child “operated a motor
vehicle” and “[w]ithin three (3) hours of driving, [Child] had an alcohol concentration of
eight one-hundredths (.08) grams or more[.]” UJI 14-4503 NMRA. The State’s properly
admitted evidence pertaining to these findings consisted of Child’s breath alcohol test results
and the deputies’ testimony regarding signs of Child’s intoxication, his performance on the
field sobriety tests, and incriminating statements Child made after he waived his right to
remain silent.

{31} Deputy Carey testified that, upon approaching Child’s vehicle, he detected the odor
of alcohol and Child appeared to be intoxicated. Deputy Stevens also testified that he
smelled alcohol on Child’s breath as he spoke, that Child’s eyes were bloodshot and watery,
and that Child slurred his speech. Child also performed poorly on the field sobriety tests,
particularly with regard to the tests that gauge physical balance, and Deputy Stevens testified

                                              12
that Child’s performance was the result of his intoxication. Further, Child told Deputy
Stevens that he was “pretty buzzed,” that George had given him alcohol and forced Child
to drive, and that Child and George drove to the convenience store “to do a beer run.”
Finally, the results of Child’s breath alcohol tests established Child’s alcohol concentration
level of 0.14 and 0.15, which exceeds the limit of .08 specified in Section 66-8-102 and the
jury instruction. In light of this evidence, there is no reasonable probability that the
admission of Deputy Carey’s testimony regarding the statements Child made prior to being
advised of his right to remain silent affected the verdict. Accordingly, the district court’s
error in admitting Deputy Carey’s inadmissible testimony regarding statements Child made
before he was advised of his statutory right to remain silent was harmless.

{32} We make one final observation in connection with the course of the proceedings
below. In evaluating all the circumstances surrounding the error, we note that the genesis of
the error was the district court’s admission of Deputy Carey’s dashboard camera video
without previously determining whether Child made inadmissible statements. With regard
to the video, the trial record reflects the district court’s frustration with the timing of Child’s
suppression motion as well as the inability of both Child and the State to pinpoint any
statements that should be suppressed. Although the error before us in this appeal was
ultimately harmless, the situation underscores the importance of both (1) the requirement that
defense counsel make timely pretrial suppression motions; and (2) the State’s duty to ensure
compliance with Section 32A-2-14(D) before introducing evidence at trial that is
inadmissible under the Children’s Code.

REQUEST FOR JURY INSTRUCTION ON DURESS

{33} Lastly, Child argues that the district court erred in refusing to provide the jury with
his requested instruction on duress, UJI 14-5130 NMRA. Child’s proffered instruction was
based on the theory that Child drove to the store under threat of harm from George, who
testified that he “forced” Child to drive him. Child reiterates this same line of reasoning on
appeal, contending that George’s testimony constituted sufficient evidence that warranted
the instruction. “The propriety of jury instructions given or denied is a mixed question of law
and fact” that we review de novo. State v. Lucero, 2010-NMSC-011, ¶ 11, 147 N.M. 747,
228 P.3d 1167 (internal quotation marks and citation omitted). “When considering a
defendant’s requested instructions, we view the evidence in the light most favorable to the
giving of the requested instruction.” State v. Romero, 2005-NMCA-060, ¶ 8, 137 N.M. 456,
112 P.3d 1113. The district court’s refusal of a defendant’s requested jury instruction that
is supported by the evidence at trial is reversible error. State v. Brown, 1996-NMSC-073, ¶
34, 122 N.M. 724, 931 P.2d 69.

{34} Duress is a valid defense that is available to defendants in DWI cases. State v. Rios,
1999-NMCA-069, ¶¶ 1, 28, 127 N.M. 334, 980 P.2d 1068. Defendants who raise the defense
of duress are “not attempting to disprove a requisite mental state” but “are instead attempting
to show that they ought to be excused from criminal liability because of the circumstances
surrounding their intentional act.” Id. ¶ 12. The duress defense excuses or justifies a

                                                13
defendant’s conduct based on the principle that the defendant committed the crime “in order
to avoid a harm of greater magnitude.” State v. Gurule, 2011-NMCA-042, ¶ 19, 149 N.M.
599, 252 P.3d 823 (alteration, internal quotation marks, and citation omitted). When
applying the duress defense to the strict liability crime of DWI, our courts have adopted a
“narrowed articulation” of the defense “so as not to vitiate the protectionary purpose of the
strict liability statute.” Rios, 1999-NMCA-069, ¶¶ 16-17 (alteration, internal quotation
marks, and citation omitted). Consequently, to be entitled to a jury instruction on the defense
of duress, a defendant must present sufficient evidence that “(1) [he or she] acted under
unlawful and imminent threat of death or serious bodily injury, (2) he [or she] did not find
himself [or herself] in a position that compelled him [or her] to violate the law due to his [or
her] own recklessness, (3) he [or she] had no reasonable legal alternative, and (4) his [or her]
illegal conduct was directly caused by the threat of harm.” Id. ¶ 25 “The keystone of the
analysis is that the defendant must have no alternative—either before or during the event—to
avoid violating the law.” Rios, 1999-NMCA-069, ¶ 17 (alteration, internal quotation marks,
and citation omitted).

{35} In this case, the district court denied Defendant’s request for the instruction on the
ground that Child did not present evidence that would support that he “feared immediate
great bodily harm.”1 Although the district court used the terms of the uniform jury
instruction rather than the four-factor test articulated in Rios, its determination clearly
correlates with the first factor, and it ultimately reached the correct result. George testified
that he “forced” Child to drive him to the store that night to buy more alcohol. He further
testified that he raised his voice and told Child to “hurry” before Child’s parents returned
home. George admitted that he “pressured” Child, but he also testified that he never made
physical contact with Child or threatened Child with physical force or a weapon. We are not
persuaded that this testimony supports Child’s argument that Child acted under unlawful and
imminent threat of death or serious bodily injury.

{36} Child does not provide any other arguments, record citations, or legal authority in his
brief in chief that address the remaining factors necessary to make a prima facie showing that
he was entitled to a jury instruction on the defense of duress. See Rios, 1999-NMCA-069,
¶ 22 (“Defendant [is] required to present evidence regarding each element of the prima facie
case [for a duress instruction].”); see also Headley v. Morgan Mgmt. Corp., 2005-NMCA-
045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining to review undeveloped arguments with
no citations to the record or legal authority). Accordingly, we hold the district court properly
denied Child’s request for a jury instruction on duress.

CONCLUSION


       1
        The uniform jury instruction for the defense of duress provides that “[i]f the
defendant feared immediate great bodily harm to himself or another person if he did not
commit the crime and if a reasonable person would have acted in the same way under the
circumstances, [the jury] must find the defendant not guilty.” UJI 14-5130.

                                              14
{37}   For the foregoing reasons, we affirm Child’s conviction for DWI.

{38}   IT IS SO ORDERED.

                                           ____________________________________
                                           JAMES J. WECHSLER, Judge

WE CONCUR:

________________________________
CYNTHIA A. FRY, Judge

________________________________
LINDA M. VANZI, Judge




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