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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            NO. 32,273

 5 MERLE EDAAKIE, JR.,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
 8 Grant L. Foutz, District Judge


 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   M. Anne Kelly, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Law Works L.L.C.
15 John A. McCall
16 Albuquerque, NM

17 for Appellant


18                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2   {1}   Defendant, Merle Edaakie, Jr., appeals his convictions for second degree

 3 murder and tampering with evidence. Defendant argues that the admission of self-

 4 implicating statements was reversible error and also challenges the sufficiency of the

 5 evidence on which he was convicted. We affirm.

 6 BACKGROUND

 7   {2}   Three detectives visited Defendant at his home in connection with a death

 8 resulting from a stabbing that occurred in Gallup, New Mexico. At the time of the

 9 visit, Defendant, among others, was a person of interest. The detectives sought to

10 interview Defendant, but lacked probable cause to seek a warrant for Defendant’s

11 arrest. One of the detectives gave Defendant a card and asked Defendant to call when

12 he was “in town.” Later that afternoon, Defendant drove, unaccompanied and

13 unescorted, to the police station.

14   {3}   At the police station, Defendant entered through the front door and was given

15 a standard visitor’s pass. A detective who had been alerted to Defendant’s presence

16 by a secretary escorted Defendant to the interview room. The interview was recorded

17 on video and, separately, on audio. The camera was positioned above the parties, set

18 at an angle to face into the corner of the room where the discussion took place. A

19 detective seated Defendant in a chair set against the side of a desk between the desk


                                             2
 1 and a wall. Defendant had a small amount of extra space between the wall and his

 2 seat. One detective sat at the desk and another sat a few feet in front of Defendant, but

 3 at an angle so as to orient himself toward both the detective at the desk and Defendant.

 4   {4}   The interview lasted about two hours and forty minutes, with a few breaks in

 5 the discussion. Three detectives interviewed Defendant, not more than two at a time.

 6 During the course of the interview, Defendant placed himself at the scene of the crime.

 7 When detectives confronted Defendant with assertions that there were witnesses who

 8 saw him stab the victim and that the victim identified him before dying, Defendant

 9 repeatedly denied being the killer. Eventually, Defendant—who seemingly was a

10 member of the Zuni Pueblo—said that his other person, his witch, must have stabbed

11 the victim.

12   {5}   After further questioning, a detective read Defendant his rights under Miranda

13 v. Arizona, 384 U.S. 436 (1966), and Defendant signed a waiver of those rights. The

14 interview continued for approximately one hour after Defendant signed the Miranda

15 waiver, covering much of the same ground. Just after the detective began reading

16 Defendant his Miranda rights, Defendant asked if he was being placed in custody and

17 was told that he was not. After the interview, Defendant left.




                                               3
 1   {6}   Defendant filed a pre-trial motion to suppress the interview. Subsequent to a

 2 hearing, the district court denied Defendant’s motion. After trial, a jury convicted

 3 Defendant of second degree murder and tampering with evidence.

 4 ADMISSION OF THE INTERVIEW

 5   {7}   Defendant contends that the interview he gave to police officers was improperly

 6 admitted into evidence over his motion to suppress because the interview took place

 7 under circumstances that constituted a custodial interrogation and he was not informed

 8 of his Miranda rights until after he implicated himself. Defendant further argues that

 9 even a valid waiver of his Miranda rights during the course of the interview does not

10 make his post-waiver self-implicating statements admissible. Defendant’s arguments

11 raise a question of the application of the law to the facts, which we review de novo.

12 State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442.

13   {8}   The Fifth Amendment provides that “[n]o person . . . shall be compelled in any

14 criminal case to be a witness against himself[.]” U.S. Const. amend V. In accordance

15 with these rights, Miranda held that, prior to being made the subject of custodial

16 interrogation, a person “must be warned that he has a right to remain silent, that any

17 statement he does make may be used as evidence against him, and that he has a right

18 to the presence of an attorney, either retained or appointed.” 384 U.S. at 444. The

19 right to Miranda warnings are triggered by a combination of two circumstances:


                                              4
 1 warnings are required when a person is (1) interrogated and (2) while in the custody

 2 of law enforcement. State v. Wilson, 2007-NMCA-111, ¶ 12, 142 N.M. 737, 169 P.3d

 3 1184. The State concedes that Defendant was interrogated; therefore, the Miranda

 4 issue in this case narrows to whether Defendant was in custody during the

 5 interrogation.

 6   {9}    A person is in custody if under formal arrest or if the person’s freedom of

 7 movement is restrained to “the degree associated with a formal arrest.” Stansbury v.

 8 California, 511 U.S. 318, 322 (1994) (internal quotation marks and citation omitted).

 9 The test for custody is objective, and in order to determine whether an interrogation

10 is objectively custodial, we look to the totality of the circumstances. Id. at 323-24.

11   {10}   Defendant contends that his freedom of movement was restrained to the degree

12 associated with formal arrest. He argues that the following circumstances, in

13 combination, support this legal conclusion: he was “afraid” to come to the police

14 station and speak with the detectives; he was told that there were witnesses who saw

15 him commit the crime and that the victim identified him before dying; he was

16 questioned for an extended length of time; the physical circumstances of the

17 questioning were constraining; and he was not told that he could leave until the end

18 of the interview.




                                              5
 1   {11}   In State v. Munoz, 1998-NMSC-048, 126 N.M. 535, 972 P.2d 847, our Supreme

 2 Court addressed an interrogation under related circumstances. In Munoz, two FBI

 3 agents sought out the defendant at his home. Id. ¶ 3. The agents told the defendant

 4 that they wanted to speak with him about a death, but wanted to do so away from his

 5 home. Id. ¶ 3. The defendant later testified that he had been scared, but went with the

 6 agents because his grandfather urged him to go. Id. ¶ 4. Outside of the house, the

 7 agents informed the defendant that he was not obligated to speak with them, was not

 8 under arrest, and could leave at any time. Id. ¶ 5. The agents drove the defendant to

 9 an empty parking lot near his home to conduct the interview. Id. ¶ 6. The defendant

10 was told by the agents that the essential facts were known and that lying would be a

11 waste of time. Id. ¶ 8. The defendant verbally confessed and also signed a

12 handwritten confession. Id. ¶ 13. The interview took approximately one hundred

13 minutes. Id. ¶ 35. After the interview, the agents drove the defendant home. Id. ¶ 15.

14 The defendant testified that he had been intimidated by the location of the interview.

15 Id. ¶ 10. The Court found that the defendant was not in custody during the

16 interrogation. Id. ¶ 44. The Court relied on facts that the defendant was informed that

17 he was free to leave at any time, was not placed under arrest, was not handcuffed or

18 searched, was not locked in the car or prevented from leaving it, and was taken home

19 by the agents after the interview. Id. ¶ 43.


                                              6
 1   {12}   State v. Bravo is also instructive. In Bravo, five police officers went to the

 2 home of the defendant. 2006-NMCA-019, ¶ 12, 139 N.M. 93, 128 P.3d 1070. The

 3 defendant and her husband were asked whether they would be willing to give a

 4 supplemental statement because the police received information inconsistent with their

 5 original statements. Id. The defendant and her husband agreed and followed the

 6 officers to the police station to be interviewed.         Id.   The interview lasted

 7 approximately two hours. Id. ¶ 13. In holding that the defendant was not in custody,

 8 we relied on the facts that the defendant was never placed in handcuffs, was never told

 9 that she was under arrest, and did not claim that she was tired. Id.

10   {13}   Munoz and Bravo underscore the point that an interrogation in a coercive

11 environment, without more, is insufficient to establish custody. See Munoz, 1998-

12 NMSC-048, ¶ 44 (stating that, without formal arrest or restraint on freedom of

13 movement, “a non-custodial situation is not converted to one in which Miranda

14 applies simply because . . . the questioning took place in a ‘coercive environment’”

15 (internal quotation marks and citation omitted)). In the case before us, Defendant

16 voluntarily went to the police station several hours after he was given the card of one

17 of the detectives who visited his home. Although he argues that he was afraid, he, like

18 the defendant in Munoz, chose to talk to the police. See id. ¶¶ 43-44 (holding that the

19 defendant was not in custody when, despite being scared, he went and spoke with


                                               7
 1 police voluntarily). Furthermore, the citation to the record provided by Defendant for

 2 his having been afraid indicates only that he was afraid to be seen entering the police

 3 station, not that he was afraid to speak with the police.

 4   {14}   Although Defendant was not told that he was free to go at any time, he arrived

 5 under his own power and of his own volition. He entered through the front door and

 6 received a visitor’s pass. Early in the interview, he was told not to worry that he

 7 would be “thrown in [jail]” and that when the interview was over, he would be “free

 8 to go.” The door to the room where he was interrogated was unlocked and, at least

 9 once, he took a break. He was never handcuffed or otherwise physically restrained.

10 He retained possession of his cellphone and, at one point while the detectives were out

11 of the room, appeared to use it. Although Defendant was, like the defendant in

12 Munoz, told that the police had evidence against him, detectives never told Defendant

13 that he was being arrested and, when he asked whether he was being taken into

14 custody, he was told that he was not. The interview took place in a small office with

15 Defendant seated in a chair with his back to the wall and the door to the office closed

16 but, under the totality of the circumstances, this set-up is not sufficient to render the

17 interrogation custodial. See Nieto, 2000-NMSC-031, ¶ 21 (holding an interrogation

18 non-custodial when it took place in a small office with the door closed and the

19 defendant’s back to the wall with an officer between the defendant and the door, given


                                               8
 1 that the defendant agreed to accompany the police to the station, was free to leave, and

 2 was provided with transportation to and from the interview). The length of the

 3 interview—approximately two hours and forty minutes—is unhelpful to Defendant,

 4 who did not complain of being tired. See Bravo, 2006-NMCA-019, ¶ 13 (holding that

 5 a two-hour interrogation at a police station when the defendant did not complain of

 6 being tired was non-custodial). After the interview, Defendant left to go to work.

 7 Despite the inherently coercive environment of a police station interview room, the

 8 totality of the circumstances do not indicate that Defendant’s freedom of movement

 9 was restrained in a way associated with formal arrest. Defendant was never in

10 custody, and a Miranda warning was not required.

11   {15}   We agree with Defendant that a valid waiver of his Miranda rights in the

12 middle of a custodial interrogation would not be sufficient to render admissible even

13 that portion of his statement made after the waiver. See Missouri v. Seibert, 542 U.S.

14 600, 611 (2004) (holding unconstitutional the tactic of custodial interrogation without

15 issuing a Miranda warning and then, upon receiving implicating information, issuing

16 the warning and then repeating the question to obtain the information under waiver

17 of Miranda rights). However, because Defendant was never in custody, a Miranda

18 waiver was not required.

19 SUFFICIENCY OF THE MIRANDA WARNING


                                              9
 1   {16}   Defendant argues that because he was only advised during the course of his

 2 interview that a lawyer would be appointed for him if he could not afford one and not,

 3 specifically, that the appointed lawyer would be free of charge, the Miranda warning

 4 was insufficient. Because Defendant was not in custody and a Miranda warning was

 5 therefore not required, we decline to consider this argument.

 6 SUFFICIENCY OF THE EVIDENCE

 7   {17}   Defendant contends that he was convicted on the basis of insufficient evidence.

 8 He argues that the evidence was merely circumstantial and relied heavily on

 9 Defendant’s “unusual and ambiguous” statements to police. A challenge to the

10 sufficiency of the evidence is reviewed under the substantial evidence standard. State

11 v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. When reviewing

12 a conviction, “we resolve all disputed facts in favor of the State, indulge all reasonable

13 inferences in support of the verdict, and disregard all evidence and inferences to the

14 contrary.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

15 Substantial evidence is that which, after viewing the evidence deferentially in favor

16 of the verdict, a rational jury could have found the essential elements of the crime

17 beyond a reasonable doubt. Id.

18   {18}   It is undisputed that the victim was stabbed to death. The State presented

19 evidence from Defendant and others that he was at the scene of the crime. Defendant


                                               10
 1 knew that the victim was in an apartment with a woman he thought to be his

 2 girlfriend. Defendant admits that he banged on the door angrily and tried to break a

 3 window. Defendant denied stabbing the victim, but when the police told him that

 4 there were witnesses to the stabbing, Defendant told them that it must have been his

 5 other person, his witch. Defendant also claimed that he dreamed of blood and that he

 6 already knew of the killing when he received text messages about it the following

 7 morning. Viewed as a whole and in the light most favorable to the State, this evidence

 8 is sufficient to support the jury’s verdict that Defendant killed the victim. See id. ¶ 23

 9 (stating that circumstantial evidence can be substantial evidence and that the elements

10 of the evidence are viewed in combination when measured for support of the verdict).

11 CONCLUSION

12   {19}   For the foregoing reasons, we affirm the judgment of the district court.

13   {20}   IT IS SO ORDERED.


14                                                  ________________________________
15                                                  JAMES J. WECHSLER, Judge


16 WE CONCUR:


17 ________________________________
18 MICHAEL D. BUSTAMANTE, Judge



                                               11
1 ________________________________
2 LINDA M. VANZI, Judge




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