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                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'05- 11:01:48 2015.11.23


         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMSC-033

Filing Date: October 15, 2015

Docket No. S-1-SC-34995

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

DeANGELO M.,

       Child-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Drew D. Tatum, District Judge

Hector H. Balderas, Attorney General
Kenneth H. Stalter, Assistant Attorney General
Santa Fe, NM

for Petitioner

Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM

for Respondent

                                       OPINION

CHÁVEZ, Justice.

{1}      DeAngelo M. (Child) was thirteen years and eight days old when during a custodial
interrogation by three law enforcement officers, he made inculpatory statements regarding
a burglary, which connected Child to a murder. Had Child made his statements nine days
earlier, his statements would not have been admissible against him in any delinquency
proceedings. NMSA 1978, § 32A-2-14(F) (2009). Had Child been fifteen years old at the
time of his statement, his statement would be admissible if the prosecution proved by a
preponderance of the evidence that Child’s statement was elicited after his knowing,

                                            1
intelligent and voluntary waiver of his constitutional and statutory rights. Section 32A-2-
14(D), (E); State v. Martinez, 1999-NMSC-018, ¶ 14, 127 N.M. 207, 979 P.2d 718.
However, because Child was thirteen years old and his statement was given to a person in
a position of authority, there is a rebuttable presumption that his statement is inadmissable
in any delinquency proceedings. Section 32A-2-14(F).

{2}     How does the prosecution rebut this presumption? The Court of Appeals held that
the prosecution must prove by clear and convincing evidence, through expert testimony, that
“Child had the maturity and intelligence of an average fifteen-year-old child to understand
his situation and the rights he possessed.” State v. DeAngelo M., 2015-NMCA-019, ¶¶ 21,
23-24, 344 P.3d 1019. The Court of Appeals reversed the district court’s denial of the
motion to suppress because the prosecution did not meet this burden and remanded for a new
trial. See id. ¶¶ 23, 24. We granted the State’s petition for certiorari, State v. DeAngelo M.,
2015-NMCERT-002, to consider the following issues: (1) whether the Court of Appeals
erred by holding that the State can only rebut the presumption of inadmissibility by showing
that the thirteen- or fourteen-year-old child has the intellectual capacity of an average
fifteen-year-old; (2) whether the Court of Appeals erred by holding that the State must rebut
the presumption of inadmissibility by clear and convincing evidence rather than by a
preponderance of the evidence; and (3) whether the Court of Appeals erred by holding that
the State can only rebut the presumption of inadmissibility through expert testimony.

{3}     We hold that Section 32A-2-14(F) requires the State to prove by clear and convincing
evidence that at the time a thirteen- or fourteen-year-old child makes a statement, confession,
or admission to a person in a position of authority, the child (1) was warned of his
constitutional and statutory rights, and (2) knowingly, intelligently, and voluntarily waived
each right. To prove the second element, the recording of the custodial interrogation which
resulted in the statement, confession, or admission must prove clearly and convincingly that
the child’s answer to open-ended questions demonstrated that the thirteen- or fourteen-year-
old child has the maturity to understand each of his or her constitutional and statutory rights
and the force of will to insist on exercising those rights. Expert testimony may assist the
fact-finder in understanding the evidence or determining the facts necessary to satisfy this
requirement, but it is not essential. We conclude that the evidence in this case does not
prove that Child knowingly, intelligently, and voluntarily waived each right. Therefore, his
statement should be suppressed.

I.     Section 32A-2-14(F) requires the State to rebut the presumption of
       inadmissibility by clear and convincing evidence

{4}     The Fifth Amendment to the United States Constitution provides individuals a
constitutional right against self-incrimination by providing that an individual shall not “be
compelled in any criminal case to be a witness against himself [or herself].” U.S. Const.
amend. V. In Miranda v. Arizona, the United States Supreme Court articulated warnings
that law enforcement must give to a suspect before the suspect can be subjected to a
custodial interrogation without compromising his or her privilege against self-incrimination.

                                              2
384 U.S. 436, 479 (1966). The Court explained that:

       Prior to any questioning, the person must be warned that he [or she] has a
       right to remain silent, that any statement he [or she] does make may be used
       as evidence against him [or her], and that he [or she] has a right to the
       presence of an attorney, either retained or appointed.

Id. at 444. “After such warnings have been given, and such opportunity afforded him [or
her], the individual may knowingly and intelligently waive these rights and agree to answer
questions or make a statement.” 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 [or she] wishes to remain silent, the interrogation must
cease.” Id. at 473-74.

{5}     “[W]hile the federal constitution provides a minimum level of protection below
which the states may not descend, states remain free to provide greater protection.” State
v. Javier M., 2001-NMSC-030, ¶ 24, 131 N.M. 1, 33 P.3d 1 (alteration in original) (internal
quotation marks and citation omitted). “Hence, it is completely within the Legislature’s
authority to provide greater statutory protection than accorded under the federal
Constitution.” Id. The New Mexico Legislature did just that by its enactment of the
Delinquency Act, NMSA 1978, §§ 32A-2-1 to -33(1993, as amended through 2009).

{6}     The Delinquency Act provides children with “greater protections than those
constitutionally afforded [to] adults with regard to the admissibility of a child’s statements
or confessions.” State v. Adam J., 2003-NMCA-080, ¶ 3, 133 N.M. 815, 70 P.3d 805 (citing
§ 32A-2-14(C)-(G)). Relevant to our inquiry in this case, Section 32A-2-14(F) provides:

               Notwithstanding any other provision to the contrary, no confessions,
       statements or admissions may be introduced against a child under the age of
       thirteen years on the allegations of the petition. There is a rebuttable
       presumption that any confessions, statements or admissions made by a child
       thirteen or fourteen years old to a person in a position of authority are
       inadmissible.

{7}     What is not clear from the text is how the prosecution is expected to rebut the
presumption. What is the prosecution’s burden of proof? What evidence will overcome the
presumption? This case requires us to construe Section 32A-2-14(F). “Statutory
interpretation is a question of law, which we review de novo.” State ex rel. Children, Youth
& Families Dep’t v. Djamila B. (In re Mahdjid B.), 2015-NMSC-003, ¶ 12, 342 P.3d 698,
702 (internal quotation marks and citation omitted). “We look first to the plain language of
the statute.” N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-
NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105. “However, we look not only to the language
used in the statute, but also to the purpose to be achieved and the wrong to be remedied.”
Djamila B., 2015-NMSC-003, ¶ 25 (internal quotation marks and citation omitted). “In

                                              3
doing so, we examine the plain language of the statute as well as the context in which it was
promulgated, including the history of the statute and the object and purpose the Legislature
sought to accomplish.” State v. Office of the Pub. Def. ex rel. Muqqddin, 2012-NMSC-029,
¶ 13, 285 P.3d 622 (internal quotation marks and citation omitted).

{8}     One of the express purposes of the Delinquency Act is “to remove from children
committing delinquent acts the adult consequences of criminal behavior, but to still hold
children committing delinquent acts accountable for their actions to the extent of the child’s
age, education, mental and physical condition, background and all other relevant factors.”
Section 32A-2-2(A). This express purpose is consistent with the overarching legislative
goals of the Children’s Code, NMSA 1978, §§ 32A-1-1 to -24-5 (1993, as amended through
2009), which ensures that children’s constitutional and statutory rights are recognized and
enforced:

               The Children’s Code shall be interpreted and construed to effectuate
       the following legislative purposes:

              A.     first to provide for the care, protection and wholesome mental
       and physical development of children coming within the provisions of the
       Children’s Code . . . ; [and]

               B.      to provide judicial and other procedures through which the
       provisions of the Children’s Code are executed and enforced and in which
       the parties are assured a fair hearing and their constitutional and other legal
       rights are recognized and enforced . . . .

Section 32A-1-3(A)-(B).

{9}     Prior to 1993 no confession, statements or admissions made by a child under the age
of fifteen could be introduced against the child. NMSA 1978, § 32-1-27(F) (1992). The
legislative rationale for categorically excluding such statements was because

       [c]hildren of tender years lack the maturity to understand constitutional rights
       and the force of will to assert those constitutional rights. Children are
       encouraged to respect and obey adults and should not be expected to assert
       their constitutional rights even under the most perfunctory questioning by
       any adult, particularly an adult of authority. By prohibiting the admission of
       statements made by children under age fifteen, Section 32-1-27(F)
       encourages children to freely converse with adults without fear that their
       statements will be used against them at a later date. In contrast, an adult or
       a child over age fifteen is unlikely to make an involuntary statement in a
       noncustodial, noncoercive atmosphere or after receiving Miranda warnings.
       The additional protection that Section 32-1-27(F) grants children under age
       fifteen helps to balance these differences in sophistication.

                                              4
State v. Jonathan M., 1990-NMSC-046, ¶ 8, 109 N.M. 789, 791 P.2d 64.

{10} However, in 1993 the Legislature revised the Children’s Code, and along with it
replaced Section 32-1-27 with Section 32A-2-14(F). Rather than excluding from evidence
all statements made by children under fifteen, the Legislature decided to exclude from
evidence only statements made by children younger than thirteen years old. See § 32A-2-
14(F). The Legislature chose to treat thirteen- and fourteen-year-old children differently
than children older than fourteen or younger than thirteen. See NMSA 1978, § 32A-2-14(F)
(1993); State v. Jade G., 2007-NMSC-010, ¶ 16, 141 N.M. 284, 154 P.3d 659 (“The fact that
the Legislature drew a distinction between children [of different ages] demonstrates its clear
intent to treat the . . . groups differently, and the plain language of this statute explains the
nature of that difference.”).

{11} By categorizing children into different age groups, the Legislature distinguished
between the different age groups’ intellectual and developmental capacities to knowingly,
intelligently, and voluntarily waive their Miranda and statutory rights. See Adam J., 2003-
NMCA-080, ¶ 20 (Alarid, J., specially concurring). For example, although Section 32A-2-
14 provides greater protections for all children than does Miranda, the Legislature treats
children fifteen and older as having the intellectual and developmental capacity of adults to
waive their constitutional and statutory rights. See Jonathan M., 1990-NMSC-046, ¶ 8
(explaining that like adults, children over fifteen are unlikely to make involuntary statements
after Miranda warnings due to their higher level of sophistication).

{12} On the opposite end of the age groups are children younger than thirteen. Unlike
children fifteen and older, the Legislature precludes the introduction of confessions,
statements, or admissions against a child under the age of thirteen on the allegations of a
delinquency petition, regardless of the context in which or to whom the statements were
made. Section 32A-2-14(F); see Jade G., 2007-NMSC-010, ¶ 16. The Legislature has made
the policy decision that children younger than thirteen lack the maturity to understand their
constitutional and statutory rights and the force of will to assert those rights. Accordingly,
Section 32A-2-14(F) provides no exceptions permitting “the admission of statements made
by children under thirteen.” Jade G., 2007-NMSC-010, ¶ 16.

{13} By creating fundamentally distinct protections for children fifteen and older and for
children younger than thirteen, the Legislature intended to “ ‘draw [a] line between children
who are too young to waive their rights and those who are not.’ ” Adam J., 2003-NMCA-
080, ¶ 8 (citations omitted). The Legislature chose not to treat thirteen- and fourteen-year-
old children categorically as belonging at one end or the other of this childhood
developmental spectrum. Some may lack the maturity to understand their constitutional and
statutory rights and the force of will to assert those rights, and some may not.

{14} To address this uncertainty, under Section 32A-2-14(F) any statement, admission,
or confession of a child thirteen or fourteen years old is presumed to be inadmissible unless
the State rebuts the presumption. The State’s burden of proof is not defined in the statute;

                                               5
therefore, it is our responsibility to make that determination. State v. Valdez (In re Valdez),
1975-NMSC-050, ¶ 12, 88 N.M. 338, 540 P.2d 818 (citing Woodby v. Immigration Serv.,
385 U.S. 276, 284 (1966)). The State argues that it should only have to prove “by a
preponderance of the evidence, that [Child] was advised of [his] rights and knowingly,
intelligently, and voluntarily waived those rights.” The State maintains that it can rebut the
presumption of inadmissibility when “the district court determines that the child made a
knowing, intelligent, and voluntary waiver of rights” by utilizing the totality of
circumstances factors listed under Section 32A-2-14(E). If we were to agree with the State’s
argument, we would in essence be treating thirteen- and fourteen-year-old children the same
as fifteen-year-old children. We conclude that the Legislature did not intend this result. The
purpose of a burden of proof is to “ ‘instruct the factfinder concerning the degree of
confidence our society thinks he [or she] should have in the correctness of factual
conclusions for a particular type of adjudication.’ ” Addington v. Texas, 441 U.S. 418, 423
(1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). The
legislative history of Section 32A-2-14(F) and the importance of protecting children younger
than fifteen years of age from unknowing or involuntary waivers of their rights leads us to
conclude that clear and convincing evidence is the proper burden of proof for rebutting the
presumption of inadmissibility under Section 32A-2-14(F). DeAngelo M., 2015-NMCA-
019, ¶¶ 14-16.

II.    To overcome the presumption, the State must prove by clear and convincing
       evidence that the thirteen- or fourteen-year-old child had the maturity to
       understand his or her constitutional and statutory rights and the force of will
       to invoke such rights

{15} We next address what clear and convincing evidence must be introduced by the State
to rebut the presumption of inadmissibility under Section 32A-2-14(F). The State maintains
that evidence relating to the Section 32A-2-14(E) factors should suffice. Section 32A-2-
14(E) provides:

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

               (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;


                                              6
               (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.

{16} The Court of Appeals held generally that “the state must present evidence as to both
the benchmark to be reached and the qualities of the child that meet it and that the thirteen-
year-old child possessed personal faculties equivalent to what is required to find an ability
to waive rights that would satisfy an adult standard for waiver.” DeAngelo M., 2015-
NMCA-019, ¶ 13. The Court of Appeals determined that lay witnesses lack the expertise
to determine whether a thirteen- or fourteen-year-old child has the intellectual
characteristics that would render him or her the equal of an average fifteen-year-old in
understanding and appreciating the significance of a Miranda waiver. See id. Consequently,
the Court of Appeals would require expert testimony, although it did not identify the type
of expertise required. Id. ¶¶ 13-15.

{17} Although we do not agree entirely with the Court of Appeals, we conclude that the
Legislature intended a different analysis by drawing a distinction between fifteen-year-old
children and thirteen- and fourteen-year-old children, although the Subsection E factors are
also relevant. We hold that the State must first prove by clear and convincing evidence that
at the time the thirteen- or fourteen-year-old child made his or her statement to a person in
a position of authority, the child had the maturity to understand his or her constitutional and
statutory rights and the force of will to assert those rights. It is not necessary to prove that
the child had the maturity and intellectual capacity of an average fifteen-year-old child. How
such a determination could be made is not evident from the Court of Appeals’ opinion.

{18} The Court of Appeals stated that expert testimony would be required. However,
Child did not introduce evidence to the trial court to establish what kind of expert might be
able to derive an opinion about children’s capacity to waive their Miranda and statutory
warnings. In his brief in chief Child cited Thomas Grisso, Adolescents’ Decision Making:
A Developmental Perspective on Constitutional Provisions in Delinquency Cases, 32 New
Eng. J. on Crim. & Civ. Confinement 3, 12 (2006) as an example of potentially useful expert
testimony.1 However, without a record that establishes the validity and reliability of the


       1
        See also Thomas Grisso, Instruments for Assessing Understanding & Appreciation
of Miranda Rights (1998); Thomas Grisso, Juveniles’ Capacities to Waive Miranda Rights:

                                               7
expert’s methodology, we are unable to make an informed decision about the utility of such
expert testimony. The undeveloped record before this Court prevents us from categorically
affirming the Court of Appeals’ broad holding, which would require expert testimony and
evaluations of the child, most likely by mental health professionals, in all cases involving
statements made by thirteen- or fourteen-year-old children to persons in a position of
authority.

{19} Absent an evaluation by an expert, interrogators in a position of authority can
preserve the evidence needed by the State to rebut the presumption of inadmissibility for
thirteen- and fourteen-year-old children under Section 32A-2-14(F). NMSA 1978, Section
29-1-16 (2006) requires law enforcement officers, with limited exceptions, to electronically
video and audio record their custodial interrogations. See, e.g., State v. Spriggs-Gore, 2003-
NMCA-046, ¶¶ 14-15, 133 N.M. 479, 64 P.3d 506 (noting that the interrogating law
enforcement officer recorded and transcribed “approximately five and one-half hours of
conversation with Defendant”). In order to obtain the clear and convincing evidence needed
to rebut the presumption of inadmissibility, the interrogator who is in a position of authority
must first adequately advise the thirteen- or fourteen-year-old child of his or her Miranda
and statutory rights and then invite the child to explain, on the record, his or her actual
comprehension and appreciation of each Miranda warning. This could be done by having
the child explain in his or her own words—without suggestions by the interrogator—what
each of the rights means to the child. An effective inquiry into a thirteen- or fourteen-year-
old child’s actual comprehension and appreciation of each right under Miranda requires
more than simple “yes” answers or a signed Miranda notification and consent form on the
child’s part, when the child may or may not be able to fully process a formal recitation of the
four warnings. It is through the child’s articulation of his or her understanding that a fact-
finder could assess whether the child appreciated the function and significance of each right
in the context of not only police questioning, but in future court proceedings. A court
deciding a motion to suppress pursuant to Section 32A-2-14(F) would be able to assess the
child’s actual understanding of the Miranda rights and whether the child made a rational
choice based on the child’s appreciation of the consequences of his or her decision from
evidence developed at the time of his or her interrogation. Ultimately, a district court judge
should suppress any statement made by a thirteen- or fourteen-year-old child unless the
judge finds that the child clearly and convincingly demonstrated his or her maturity to
understand his or her constitutional and statutory rights and possessed the force of will to
assert those rights.




An Empirical Analysis, 68 Cal. L. Rev. 1134 (1980); I. Bruce Frumkin, et. al., The Grisso
Tests for Assessing Understanding and Appreciation of Miranda Warnings with a Forensic
Sample, 30 Behav. Sci. L. 673 (2012). In 2012, Dr. Thomas Grisso published The Miranda
Rights Comprehension Instruments (MRCI), which provides instruments that have been
updated since the publication of his original Instruments for Assessing Understanding &
Appreciation of Miranda Rights.

                                              8
III.   The agents failed to produce sufficient evidence to rebut the presumption

{20} Child was born on July 15, 1997. On July 26, 2010, the State charged Child with one
count of residential burglary contrary to NMSA 1978, Sections 30-16-3(A) (1963) and 32A-
2-3(A) (2009); one count of tampering with evidence contrary to NMSA 1978, Sections 30-
22-5 (2003) and 32A-2-3(A); and one count of larceny of over $250 (but not more than
$500) contrary to NMSA 1978, Sections 30-16-1(C) (2006) and 32A-2-3(A). Around noon
on July 23, 2010, eight days after Child’s thirteenth birthday, Agent Daniel Blair transported
Child and Child’s mother to the Roosevelt County Law Enforcement Complex to interrogate
Child. Child’s mother was present during the entire interrogation.

{21} Agents Dan Aguilar and Daniel Blair, who are investigators with the District
Attorney’s office, and Detective John Mondragon, who is a detective with the Portales Police
Department, interrogated Child. When Agent Blair began advising Child of his Miranda
rights, Agent Blair appeared to agree with the Legislature’s presumption that a thirteen-year-
old child does not have the maturity to understand his or her Miranda rights when he stated
“[y]ou have to be advised of your rights pursuant to rule 32A-2-14 of the Children’s Code
Rules of Procedure and the constitution. You probably don’t understand that because I don’t
understand part of that but it’s a rule that we gotta do. Okay?”

{22} The following exchange occurred between Agent Blair and Child as Agent Blair
attempted to read and explain to Child the right to remain silent:

       Agent Blair:    It tells us—you have the right to remain silent. You don’t
                       have anything—if you . . . you do not have to say anything if
                       you do not want to. I’ve been up for a little while so I’m not
                       reading properly. Like I’m reading at a second grade
                       level—just tell me. You can probably read better. Do you
                       understand that?

       Child:          Kind of. Yeah.

       Agent Blair:    What do you think that means?

       Child:          Don’t talk on your own behalf.

       Agent Blair:    Or you don’t have to talk to us if you don’t want to and your
                       mom will explain that.

Agent Blair initially and correctly invited Child to explain in his own words what Child
understood the right to remain silent means rather than accept Child’s unclear response of
“Kind of. Yeah.” Apparently dissatisfied with Child’s explanation of his right to remain
silent, Agent Blair simply corrected Child without inviting Child to further explain his actual
comprehension and appreciation of the right for a second time. It is not clear from this

                                              9
exchange whether Child fully comprehended his right to remain silent. Agent Blair also
erroneously suggested to Child that his mother could counsel Child as an equivalent
substitute to an attorney. In any event, during the entire exchange regarding Child’s right
to remain silent, it was never developed whether Child was able to use the information
provided by the warning, grasp the significance of his right to remain silent, and weigh his
options and the consequences of his decisions.

{23} Agents Blair and Aguilar hurriedly and equivocally warned Child of his remaining
rights.

       Agent Blair:   Anything you say can be used against you in court. Okay on
                      TV when they read these—they read them to adults and that
                      means that they’ve arrested them but that’s not happening
                      here okay? That’s, that’s why I didn’t want to—uh—do you
                      understand what that means? Okay, you can talk to your
                      parents, your guardian, and an attorney. You got your
                      parent/guardian right here with you um. [Y]ou have the right
                      to have you [sic] parent/guardian parent present during any
                      questioning. If you can not afford a lawyer, one may be
                      appointed for you before any questioning. These are the ones
                      on TV. Um, if you decide to answer questions um, without
                      an attorney, you can—you still have the right to stop
                      answering questions anytime. You have the right to stop
                      answering questions any time till you talk to an attorney.
                      Now you understand what I just said?

       Child:          Not really.

       Agent Blair:   You didn’t understand those? Which ones?

       Child:         —I think I understand that you can talk to the Judge—no, you
                      can talk without an attorney. And then you can stop if it’s
                      just like—too getting out of hand. You can stop.

       Agent Blair:    —You’re right on the—

       Child:         —answering questions. Until you get an attorney.

       Agent Blair:    You’re absolutely right.

       Agent Aguilar: —Correct.

       Child:         Okay.


                                            10
This exchange failed to capture Child’s actual comprehension and appreciation of his
remaining rights. Agent Blair’s description of these rights can only be characterized as
confusing. Persons in a position of authority must advise thirteen- and fourteen-year-old
children of their constitutional and statutory rights in a clear and intelligible manner if they
want to rebut the presumption under Section 32A-2-14(F). The manner in which a child is
informed of his or her constitutional and statutory rights is relevant to whether the child
knowingly waived his or her rights. In this case, it is impossible to ascertain Child’s
comprehension and appreciation of his rights without a clear and intelligible advisement of
such rights. First, the manner in which Agent Blair advised Child of the three remaining
Miranda warnings, which included mentioning rights read on television, suggesting that the
rights only apply when people are arrested, and explaining that Child was not under arrest,
was at best confusing and at worst clearly erroneous. Thirteen- or fourteen-year-old children
possess these constitutional and statutory rights whether or not they are under arrest. It is
not surprising that Child responded that he did “[n]ot really” understand his rights as they
were presented by Agent Blair.

{24} Second, Agent Blair asked Child to identify which warnings Child did not
understand. In response, the interrogation transcript appears to indicate that Child confused
the right to remain silent with the right to an attorney. Child explained that he thought he
understood that he had a right to talk without an attorney, but that Child could then stop the
interrogation only if Child thought the interrogation was “getting out of hand” and not
answer the questions until he obtained an attorney. Agents Blair and Aguilar simply told
Child that he was absolutely correct and moved on. Given this exchange, we are left without
any clear indication of whether Child actually comprehended and appreciated each of the
Miranda warnings.

{25} As he read Child his Miranda rights, Agent Blair also presented Child with a
notification and waiver form listing those rights, and Child wrote his initials next to each
right listed on the form. Both Child and his mother signed the notification and waiver form.

{26} Child’s lack of understanding of his rights and his inability to invoke his rights was
also demonstrated by what occurred during the interrogation after the forms were signed.
Child initially admitted that he broke into the victim’s home and stole personal items
identified by Agent Blair that belonged to the victim. However, Child denied taking a gun
or any ammunition from the victim’s home, and also denied involvement in the victim’s
shooting. When Agent Blair told Child that he believed Child had shot and killed the victim,
Child denied killing the victim, became very upset, and started to cry. Child eventually told
Agent Blair “I don’t want to talk anymore.” Agents Blair and Aguilar acknowledged and
confirmed Child’s invocation of his right to remain silent. Agent Blair specifically
responded, “You don’t want to talk anymore? Okay,” while Agent Aguilar stated, “We’re
done. Then.” The interrogation stopped while Agents Blair and Aguilar collected a saliva
swab sample from Child and Child used the restroom.

{27}   Following the break, Agents Blair and Aguilar reinitiated the interrogation,

                                              11
reminding Child that he could ask to stop any further questions if he did not want to talk.

       Agent Aguilar:          DeAngelo we want to—we just, I just want to ask you
                               a few questions okay? You admitted that you went
                               into the house and took some things and stuff like
                               that—that’s all we want to talk to you about okay?
                               We don’t want to talk to you about a gun or we don’t
                               want to talk to you about any of that other stuff.
                               Okay? Is that alright?

       Child:                  (inaudible response)
       Agent Aguilar:          Okay, um, with that in mind—you just keep in mind
                               this, you can do exactly what you did the last time,
                               okay? When you’ve had enough and you don’t want
                               to talk to us anymore, you just tell us you don’t want
                               to talk anymore. Okay? Is that alright? (inaudible
                               response) Okay, now, when, when you into uh . . .
                               their house on Sunday—you remember? Yes?
                               Sunday or whatever day—over the weekend. While
                               they were gone. And the things that you took, where
                               did you hide them till you got rid of them? Or did
                               you get rid of everything?

In response, Child provided more details about the specific circumstances of how he stole
certain items from the victim’s home. Resuming the interrogation of Child after Child said
he did not want to talk does not scrupulously honor the invocation of an individual’s right
to remain silent that the law requires. State v. King, 2013-NMSC-014, ¶ 8, 300 P.3d 732.
“The moment that the unambiguous statement is made, the interrogator must ‘scrupulously
honor’ the suspect’s or person’s right by ceasing the interrogation.” Id. When Child
continued to answer questions after stating that he did not want to talk, this provided
additional evidence that Child did not possess either the maturity to understand his rights or
the force of will to assert those rights.

{28} Following this interview, Child’s charges were amended to (1) one count of first
degree murder contrary to NMSA 1978, Sections 30-2-1(A)(1) (1994) and 32A-2-3; (2) one
count of aggravated burglary contrary to NMSA 1978, Sections 30-16-4(B) (1963) and 32A-
2-3; (3) two counts of tampering with evidence contrary to Sections 30-22-5 and 32A-2-3;
and (4) one count of larceny over $250 (but not more than $500) contrary to Sections 30-16-
1 and 32A-2-3. Prior to trial, Child timely filed a motion to suppress the inculpatory
statements he made during the July 23, 2010 interview, arguing that the State failed to
adequately rebut the presumption that his statements were inadmissible pursuant to Section
32A-2-14(F).

{29}   During the suppression hearing, the State presented testimony from Agents Blair and

                                             12
Aguilar and Child’s teacher at the detention center where Child was held. The district court
found their testimony persuasive, noting in its decision letter that Agents Blair and Aguilar
both testified that “based on their experience in interviewing children of similar age, [Child]
was articulate, inquisitive and fully aware of his constitutional rights, and [Child] appeared
to be more mature and intelligent than children of his age.” The district court noted that
Child’s teacher testified that Child was “well-read, inquisitive and readily corrects the
grammar and vocabulary of other juveniles detained in the Curry County Juvenile Detention
Center, and in his opinion, [Child] is more intelligent than the average juvenile detainees in
his age group.” The district court denied Child’s motion and determined that Child
“knowingly, voluntarily and intelligently waived his constitutional rights prior to speaking
with law enforcement, and, as a result, the State has overcome the rebuttable presumption
that the statements of [Child] are inadmissible.”

{30} On this record, we conclude that the State failed to meet the burden of proof
necessary to overcome the statutory presumption against admitting Child’s statements. The
testimony of the interrogating officers is not the type of evidence that could overcome this
presumption. What must be considered is the evidence from the recorded interview, not the
officers’ characterization of Child’s maturity to understand and invoke his constitutional and
statutory rights. The State’s evidence concerning whether Child reads books, converses with
adults, corrects other children’s vocabulary and grammar, and seems more intelligent and
mature than other children is only indirectly related to whether Child actually comprehended
and appreciated each Miranda warning that he was given. While such evidence is relevant,
the court must first determine whether at the time of the interrogation the child exhibited the
maturity to understand each of his or her constitutional and statutory rights and possessed
the force of will to invoke such rights. Absent clear and convincing evidence which proves
that Child understood each right, Child’s school performance is not material evidence. In
this case, the transcript of the interrogation falls far short of establishing any of the required
showings. Accordingly, the district court erred in denying Child’s motion to suppress
because the State did not meet its burden of rebutting the presumption of inadmissibility
under Section 32A-2-14(F) by clear and convincing evidence.

IV.     Conclusion

{31} For the foregoing reasons, we affirm the Court of Appeals on different grounds and
reverse the district court’s denial of Child’s motion to suppress. We remand for further
proceedings in accordance with this opinion.

{32}    IT IS SO ORDERED.

                                                ____________________________________
                                                EDWARD L. CHÁVEZ, Justice

WE CONCUR:


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___________________________________
BARBARA J. VIGIL, Chief Justice

___________________________________
PETRA JIMENEZ MAES, Justice

___________________________________
RICHARD C. BOSSON, Justice

___________________________________
CHARLES W. DANIELS, Justice




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