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


 2 STATE OF NEW MEXICO

 3          Plaintiff-Appellant,

 4 v.                                                                                     NO. 32,765

 5 SISTO MONTOYA,

 6          Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Christina P. Argyres, District Judge

 9 Gary K. King, Attorney General
10 Corinna Laszlo-Henry, Assistant Attorney General
11 Santa Fe, NM

12 for Appellant

13 Bennett J. Baur, Acting Chief Public Defender
14 Santa Fe, NM

15 for Appellee
 1                              MEMORANDUM OPINION

 2 WECHSLER, Judge.

 3   {1}   The State appeals from the district court’s order suppressing Defendant’s

 4 statements based on a violation of Miranda v. Arizona, 384 U.S. 436 (1966). Our

 5 notice proposed to affirm and the State filed a memorandum in opposition. We remain

 6 unpersuaded by the State’s arguments and therefore affirm.

 7   {2}   The State’s issues relate to its central contention that the district court erred in

 8 suppressing Defendant’s statements because the police continued questioning him

 9 after he invoked his right to counsel. [DS 3; RP 129, 142, 163] “On appeal, we review

10 the [district] court’s findings of fact for substantial evidence and review de novo the

11 ultimate determination of whether a defendant validly waived his or her Miranda

12 rights prior to police questioning.” State v. Barrera, 2001-NMSC-014, ¶ 23, 130 N.M.

13 227, 22 P.3d 1177.

14   {3}   We agree that officers need not halt the questioning of a suspect who makes an

15 equivocal request for counsel. [DS 3] See State v. Castillo-Sanchez, 1999-NMCA-085,

16 ¶ 16, 127 N.M. 540, 984 P.2d 787. Here, however, we agree with the district court that

17 Defendant’s request for an attorney was unequivocal, lacked ambiguity, and was

18 further made under circumstances that a reasonable officer would have understood

19 Defendant to be confirming his expressed desire for an attorney. As set forth in our
 1 notice, after the Detective told Defendant that polygraphs were typically given to

 2 people who denied any touching, Defendant countered, “But I didn’t touch them.”

 3 [RP 164] And when the Detective next asked Defendant if he would be willing to

 4 submit to a polygraph, Defendant responded, “Well, now, now I would ask for a

 5 lawyer.” [RP 164] The Detective then again referenced the polygraph exam and

 6 questioned Defendant if he would ask for an attorney. [RP 164] Defendant, in turn,

 7 confirmed “yeah,” denied having touched the girls, and stated, “I don’t know what’s

 8 going to happen here if they’re trying to twist it around or what.” [RP 164] In light of

 9 Defendant’s two unequivocal statements indicating his desire for an attorney, followed

10 by his denials of wrongdoing and his expressed concern that things would be

11 “twist[ed] around,” [RP 164] we conclude that a reasonable officer would have

12 understood Defendant to request, and then further confirm why he desired, an

13 attorney. See Barrera, 2001-NMSC-014, ¶ 28 (“Resolution of whether a valid waiver

14 of counsel has occurred depends upon the totality of the circumstances and the

15 particular facts surrounding each case, including consideration of the mental and

16 physical condition, background, experience and conduct of the accused.” (internal

17 quotation marks and citation omitted)).

18   {4}   We thus do not agree that Defendant’s request for an attorney was somehow

19 contingent upon or limited in scope to advisement by an attorney on the subject of a


                                              2
 1 polygraph. [MIO 8-9] We recognize that Defendant made his requests for an attorney

 2 shortly after the Detective referenced a polygraph exam. [MIO 2, 9] However, in the

 3 overall circumstances of the exchange, Defendant unequivocally requested an attorney

 4 and did so in the context of his declaration that “I didn’t touch them” [RP 164] and his

 5 expressed concern that “I don’t know what’s going to happen here if they’re trying to

 6 twist it around or what.” [RP 164] Under such circumstances, Defendant’s request for

 7 an attorney is clear.

 8   {5}   We further disagree with the State’s argument that Defendant reinstated the

 9 conversation after requesting an attorney. [MIO 9-10] In this regard, the State views

10 Defendant as having interrupted the Detective when the Detective attempted to ask

11 “clarifying” questions as to whether Defendant wanted an attorney. [MIO 1, 2-3] In

12 our view, however, clarification was not needed because Defendant had unequivocally

13 and unambiguously stated, “Well, now, now I would ask for a lawyer.” [RP 164]

14 Moreover, as noted above, we do not view Defendant’s subsequent declaration that

15 “I haven’t touched these girls” [RP 164; MIO 3] and “I don’t know what’s going to

16 happen here if they’re trying to twist it around or what” [RP 164] as reinstating the

17 conversation. Instead, we agree with the district court that Defendant’s statements

18 simply confirmed and explained the reason for his expressed desire for an attorney.

19 [RP 166]


                                              3
 1   {6}     We lastly address the State’s argument that Defendant, later in the conversation

 2 when the Detective returned to whether Defendant wanted an attorney, appeared to

 3 change his mind about wanting an attorney. [MIO 11; RP 164] Any equivocation on

 4 Defendant’s part, however, was immaterial because, at this point, Defendant had

 5 already invoked his right to an attorney and had not reinitiated the conversation. Any

 6 further questioning should have already ceased until Defendant was provided an

 7 attorney. See State v. Bailey, 2008-NMCA-084, ¶ 9, 144 N.M. 279, 186 P.3d 908

 8 (providing that once an accused invokes his or her right to counsel, he or she cannot

 9 be subject to any further interrogation until counsel has been made available unless

10 the accused initiates further communication).

11   {7}     For the reasons set forth in our calendar and above, we affirm the district

12 court’s suppression ruling [RP 163] based on the violation of Defendant’s Miranda

13 rights.

14   {8}     IT IS SO ORDERED.


15                                                   ________________________________
16                                                   JAMES J. WECHSLER, Judge




                                                 4
1 WE CONCUR:


2 ________________________________
3 RODERICK T. KENNEDY, Chief Judge


4 ________________________________
5 MICHAEL D. BUSTAMANTE, Judge




                                     5
