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


 2 Opinion Number: _______________

 3 Filing Date:      November 4, 2014

 4 NO. 31,413


 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 DEANGELO M.,

 9       Child-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
11 Drew D. Tatum, District Judge


12 Gary K. King, Attorney General
13 Pranava Upadrashta, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Robert E. Tangora, L.L.C.
17 Robert E. Tangora
18 Santa Fe, NM

19 for Appellant
 1                                      OPINION

 2 KENNEDY, Chief Judge.

 3   {1}   DeAngelo M. (Child) appeals his convictions for second-degree murder,

 4 burglary, larceny, and tampering with evidence. Child appeals the district court’s

 5 denial of his motion to suppress statements he made during an interrogation by three

 6 investigating officers and contends that the State did not overcome the rebuttable

 7 statutory presumption that his statements were inadmissible against him because he

 8 was thirteen years of age. See NMSA 1978, § 32A-2-14(F) (2009).

 9   {2}   We evaluate whether the State successfully rebutted the presumption of

10 inadmissibility of statements made by a thirteen-year-old child under Section 32A-2-

11 14(F). We conclude that the evidence presented by the State to the district court did

12 not rebut the presumption of inadmissibility with clear and convincing evidence.

13 State v. Adam J., 2003-NMCA-080, ¶¶ 10-11, 133 N.M. 815, 70 P.3d 805. Therefore,

14 Child’s statements were improperly admitted. We reverse the district court on its

15 denial of the motion to suppress Child’s statements. We affirm on the issues of denial

16 of his motion to sever, request for a bill of particulars, and demand for a twelve-

17 person jury. Accordingly, we remand this case for a new trial.
 1 I.      BACKGROUND

 2   {3}   Child was eight days past turning age thirteen when he was interrogated by

 3 three investigators in connection with the murder of Angel Vale. The officers

 4 interviewed neighbors and witnesses, including Child’s mother. On July 23, two

 5 retired police officers, who were acting as agents of the district attorney, and a

 6 uniformed police officer drove Child and his mother to the Roosevelt County Law

 7 Enforcement Complex where they questioned him.               His mother was present

 8 throughout the interrogation. One officer read and explained Child’s Miranda rights

 9 to him, which, according to the officer’s testimony, Child appeared to understand.

10 During the interrogation, Child made inculpatory statements to the officers regarding

11 the burglary of Vale’s home. Child was arrested.

12   {4}   Child filed a motion to suppress his statements. Two of the investigators and

13 Child’s teacher at the Curry County Juvenile Detention Center testified at the

14 suppression hearing. The district court found that Child had knowingly, intelligently,

15 and voluntarily waived his rights and denied his motion to suppress his statements.

16 Child also filed a motion to sever the murder, aggravated burglary, one count of

17 tampering with evidence from larceny, and the second count of tampering, a motion

18 for a bill of particulars, and a motion to compel the State to allow the case to be heard




                                               2
 1 by twelve jurors instead of six. The district court denied each motion. Defendant

 2 timely filed this appeal.

 3 II.     DISCUSSION

 4 A.      Child’s Motion to Suppress His Statements

 5   {5}   Prior to trial, Child filed a motion to suppress his statements that were obtained

 6 during the interrogation by the two district attorney investigators and a police officer

 7 based on the State’s failure to rebut the presumption of inadmissibility for a thirteen-

 8 year-old child’s statements under Section 32A-2-14(F). The district court denied the

 9 motion. The denial of a motion to suppress is reviewed de novo. See State v.

10 Gutierrez, 2011-NMSC-024, ¶ 7, 150 N.M. 232, 258 P.3d 1024; State v. Jade G.,

11 2007-NMSC-010, ¶ 15, 141 N.M. 284, 154 P.3d 659.

12   {6}   Child argues that the standard created in Adam J. for the State to rebut the

13 “presumptive inadmissibility” of statements by a child under the age of fifteen years

14 is contrary to legislative intent because it requires comparison of the accused’s ability

15 to give a knowing, intelligent, and voluntary waiver of rights to an average of other

16 protected young children, instead of requiring an individualized determination of

17 whether the child has the ability to understand legal consequences and not to be

18 unduly influenced by authority figures. Child further argues that, even if Adam J. was




                                               3
 1 correct, the State did not sufficiently rebut the presumption that his statements to the

 2 police were inadmissible. 2003-NMCA-080, ¶ 7.

 3   {7}   The State argues that the Adam J. standard is appropriate and that the State

 4 rebutted the presumption that Child’s statements were inadmissible by presenting

 5 evidence from the two investigating officers and his teacher regarding his personal

 6 traits that supported the district court’s finding that he had the ability to knowingly,

 7 intelligently, and voluntarily waive his rights.1 For the reasons that follow, we

 8 conclude that Adam J., while equating a particular age to a legislative line between

 9 children who do or do not have the developmental maturity to make a valid waiver,

10 nevertheless significantly expands the range of inquiry to assess factors “particular

11 to an individual child.” Id. ¶ 8. Viewing this case in light of the expansive evaluation

12 of circumstance and personal characteristics that Adam J. and Subsection (F) require

13 to be conducted by the district court with regard to thirteen-year-old children, we

14 conclude that the State’s evidence was insufficient to rebut the presumption that

15 Child was incapable of a valid waiver of his right under Section 32A-2-14(F).




         1
16         Child does not challenge the adequacy of the advice of Miranda rights given
17 to him by the officers in this case.

                                              4
 1 1.      The Two-Tier Analysis of Ability to Waive Rights and Knowing,
 2         Intelligent, and Voluntary Waiver Under Section 32A-2-14 of the
 3         Children’s Code

 4   {8}   The capacity to waive Fifth Amendment rights is assumed for children over

 5 fifteen and for adults. See State v. Jonathan M., 1990-NMSC-046, ¶ 8, 109 N.M.

 6 789, 791 P.2d 64; see also Gutierrez, 2011-NMSC-024, ¶ 7 (requiring the same

 7 assessment for adults and children when determining the legitimacy of a Miranda

 8 waiver); State v. Martinez, 1999-NMSC-018, ¶¶ 14-15, 127 N.M. 207, 979 P.2d 718

 9 (determining that the factors used in evaluating a waiver of constitutional rights for

10 juveniles over the age of fourteen are essentially the same as those used for an adult).

11 This is because Section 32A-2-14 of the Children’s Code assumes that children

12 fifteen years old and older are more similar in development and maturity to adults

13 and, therefore, are better able to protect their rights. See Jonathan M., 1990-NMSC-

14 046, ¶ 8 (explaining that children over fifteen and adults are unlikely to make

15 involuntary statements after Miranda warnings due to their higher level of

16 sophistication); see also Martinez, 1999-NMSC-018, ¶ 18 (stating that Section 32A-

17 2-14 codifies that the adult rule for a successful waiver of rights applies to children

18 fifteen years old and older). When a defendant fifteen years old and older raises his

19 lack of capacity to waive Fifth Amendment rights, the state must prove that he waived

20 his rights by a preponderance of the evidence. Gutierrez, 2011-NMSC-024, ¶ 7.



                                              5
 1   {9}   However, the Children’s Code emphasizes the difficulty a child younger than

 2 fifteen experiences due to a lack of maturity and development when waiving Fifth

 3 Amendment rights. The Children’s Code protects children younger than fifteen years

 4 old by creating a rebuttable presumption that statements given by thirteen- or

 5 fourteen-year-old children are inadmissible.       Section 32A-2-14(F); see In re

 6 Francesca L., 2000-NMCA-019, ¶ 7, 128 N.M. 673, 997 P.2d 147 (holding that the

 7 Children’s Code grants heightened protection only for the statements of those under

 8 fifteen years old), overruled on other grounds by Adam J., 2003-NMCA-080, ¶ 10.

 9 The rebuttable presumption of inadmissibility created by Subsection (F) “stresses age

10 in its effort to draw the line between children who are too young to waive their rights

11 and those who are not.” Adam J., 2003-NMCA-080, ¶ 8. The presumption is based

12 on a legislative recognition that most children under fifteen are less capable of

13 understanding and protecting their legal interests than are older children and adults.

14 E.g., Jonathan M., 1990-NMSC-046, ¶ 8 (interpreting previous version of Section

15 32A-2-14 to reflect that young children do not have the capacity to understand or

16 protect their constitutional rights).      Subsection (F) creates a constitutional

17 classification based on age that requires this level of protection. Francesca L., 2000-

18 NMCA-019, ¶ 12. It is an age-based presumption that is intended to “draw the line




                                              6
 1 between children who are too young to waive their rights and those who are not.”

 2 Adam J., 2003-NMCA-080, ¶ 8.

 3   {10}   The child’s “[a]ge is particularly pertinent because Subsection [(F)] creates a

 4 distinction based upon the age of a child.” Francesca L., 2000-NMCA-019, ¶ 12.

 5 A child’s proximity in age to thirteen is also relevant to this determination and can

 6 alone serve as an indication that the state did not rebut the presumption. See Adam

 7 J., 2003-NMCA-080, ¶ 5 (stating that the district court could have determined that

 8 the state did not rebut the presumption based exclusively on the fact that the child had

 9 only recently turned thirteen).       Without sufficient intellectual and emotional

10 development, not only are young children unable to understand and protect their legal

11 interests, they are also unable to understand the legal consequences of their

12 statements. They may also be affected by the inherent intimidation of questioning by

13 authority figures such as police. Gallegos v. Colorado, 370 U.S. 49, 54 (1962)

14 (stating that a fourteen-year-old child is unequal to police in knowledge and

15 understanding of consequences of interrogation questions and is unable to protect his

16 interests). For these reasons, our Legislature has required the state to rebut a

17 presumption that a child of thirteen years is incapable of giving a valid waiver of his

18 rights before his statement can be used against him. Section 32A-2-14(F); Adam J.,

19 2003-NMCA-080, ¶ 6.



                                               7
 1   {11}   Section 32A-2-14(F) specifically provides heightened protection to thirteen-

 2 year-old children beyond the specific requirements of Subsection (E). Adam J., 2003-

 3 NMCA-080, ¶¶ 3, 10. Thus, before ever deciding admissibility based on whether the

 4 waiver was knowing, intelligent, and voluntary, the district court must make an initial

 5 determination of whether a thirteen-year-old child who has made a statement is

 6 capable of such a waiver. Id. ¶ 10; Francesca L., 2000-NMCA-019, ¶ 10. The

 7 statutory expectation is simply that thirteen-year-old children are presumed incapable

 8 of a valid waiver absent a showing that the child had at least the same ability to give

 9 a knowing, voluntary, and intelligent waiver as an average fifteen-year-old child. See

10 Adam J., 2003-NMCA-080, ¶¶ 9-11.2              The child’s personal traits, including

11 “background, maturity, intelligence, ability to understand and react to new situations,

12 and other relevant personal factors” are examined to determine whether the child is

13 sufficiently above average as to rebut the presumption. Id. ¶ 8.

14   {12}   Even while “an analysis of the circumstances may assist the children’s court

15 in understanding the child’s personal traits, such analysis is secondary to, and does

16 not substitute for, an analysis of the child’s personal traits” under Subsection (F).



            2
17           Although Adam J. and Francesca L. speak of comparing the child-defendant
18   to the average thirteen- or fourteen-year-old, Child here is only days past his
19   thirteenth birthday. Even if he was advanced for his age to the developmental level
20   of an average fourteen-year-old child, he would still presumptively have given an
21   inadmissible statement.

                                              8
 1 Adam J., 2003-NMCA-080, ¶ 10. Thus, under Section 32A-2-14, the determination

 2 of whether a thirteen-year-old child knowingly, intelligently, and voluntarily waived

 3 his rights first requires an analysis of the child’s “personal traits.” The focus in this

 4 case must be on the child’s maturity, intelligence, and development. In short, the

 5 state must affirmatively distinguish the particular child’s ability to waive rights from

 6 the presumptive inability to do so established by Subsection (F) of any child under

 7 the age of fifteen. Adam J., 2003-NMCA-080, ¶¶ 9-11. If the district court is not

 8 satisfied that the rebuttable presumption of incapacity has been overcome based on

 9 competent evidence of the personal traits of the child beyond age alone, then the

10 court’s inquiry is complete at that point, and the statement is excluded. Id. ¶ 10

11 (holding that the child’s ability to waive is a threshold determination and must be

12 decided before determining the statement’s admissibility as the product of a knowing,

13 intelligent, and voluntary waiver).

14   {13}   For the state to make such a distinction, the characteristics of an average

15 fifteen-year-old child must be established by the evidence, as well as the individual

16 characteristics of the child. We note that, upon the question of competency being

17 raised by the adult defendant in a criminal case, evaluating his or her competency to

18 stand trial “must be professionally evaluated by a qualified professional.” State v.

19 Flores, 2005-NMCA-135, ¶ 17, 138 N.M. 636, 124 P.3d 1175. We do not regard



                                               9
 1 competency being that a defendant “understands the nature and significance of the

 2 proceedings, has a factual understanding of the charges, and is able to assist his

 3 attorney in his defense” to be so far removed in concept or scope from determining

 4 a thirteen- or fourteen-year-old child’s developmental status with regard to having the

 5 ability to waive Fifth Amendment rights. Id. ¶ 16 (internal quotation marks and

 6 citation omitted). This consideration is particularly acute when the child, as here, has

 7 only recently turned thirteen. See Francesca L., 2000-NMCA-019, ¶ 12; see also

 8 Adam J., 2003-NMCA-080, ¶ 5 (acknowledging that “the children’s court’s finding

 9 that the child had only recently turned thirteen . . . was relevant to its conclusion that

10 the child was entitled to a heightened protection because of her age” (internal

11 quotation marks and citation omitted)). We regard as beyond the ability of lay

12 witnesses, such as were presented by the State in this case, the task of rebutting a

13 presumption that a thirteen-year-old does not possess the developmental attributes to

14 render him capable of a waiver and distinguishing those characteristics head-to-head

15 against the developmental level of an average fifteen-year-old child. We believe that

16 a hearing that is equivalent to a competency hearing in the quality of its evidence is

17 required. At that hearing, the state must present evidence as to both the benchmark

18 to be reached and the qualities of the child that meet it and that the thirteen-year-old

19 child possessed personal faculties equivalent to what is required to find an ability to



                                               10
 1 waive rights that would satisfy an adult standard for waiver. Anything less is

 2 insufficient. In this case, the poorly presented evidence of two retired police officers

 3 and a teacher, who had no background with Child beyond being a half-day teacher

 4 to all of the children in the juvenile detention facility, is insufficient as we discuss

 5 below. Although competency to stand trial must meet only a preponderance standard,

 6 this situation is different. We next take this opportunity to establish the standard of

 7 proof required to rebut the presumption of inadmissibility of Child’s statements.

 8 2.       Clear and Convincing Evidence is Required to Rebut the Presumption

 9   {14}   The question of the proper standard of proof is generally a matter for judicial

10 resolution. In re Valdez, 1975-NMSC-050, ¶ 12, 88 N.M. 338, 540 P.2d 818.

11 Although the parties did not raise the issue of the level of evidence required to show

12 that Child did not have the ability to waive his rights, we take this opportunity to

13 clarify the law.

14   {15}   For persons older than fifteen years where a valid waiver is presumed by law,

15 waiver may be proved by a preponderance of the evidence. Gutierrez, 2011-NMSC-

16 024, ¶ 7. For children thirteen or fourteen years old, there is a rebuttable presumption

17 of inadmissibility, which, by providing “heightened protection” of constitutional

18 proportions to those children, necessarily alters the level of proof required for the

19 state to meet its burden. Our Supreme Court has held that where fundamental



                                              11
 1 liberties are involved and matters involving psychological testimony are subject to

 2 some interpretation, the standard of proof must reflect the gravity of the interests at

 3 stake. Valdez, 1975-NMSC-050, ¶ 20. Specifically, our Supreme Court has held that

 4 the state must meet a “heavy burden” in order to overcome a statutory rebuttable

 5 presumption. State v. Gallegos, 2011-NMSC-027, ¶ 55, 149 N.M. 704, 254 P.3d 655.

 6 Other cases indicate that the gravity of the burden requires clear and convincing

 7 evidence. See Weeks v. Bailey, 1927-NMSC-048, ¶ 9, 33 N.M. 193, 263 P. 29

 8 (stating that “only clear and convincing evidence can overcome [a rebuttable]

 9 presumption” (internal quotation marks and citation omitted)); see also In re

10 Adoption of J.J.B., 1995-NMSC-026, ¶ 59, 119 N.M. 638, 894 P.2d 994 (stating that

11 “presumption favoring the natural parent can be rebutted by showing serious parental

12 inadequacy with clear and convincing evidence”); Lucero v. Lucero, 1994-NMCA-

13 128, ¶ 24, 118 N.M. 636, 884 P.2d 527 (holding that substantial evidence supported

14 the district court’s finding that “presumption of a lack of testamentary capacity was

15 overcome by clear and convincing evidence” (internal quotation marks and citation

16 omitted)), superseded on other grounds by statute as stated in Clinesmith v.

17 Temmerman, 2013-NMCA-024, 298 P.3d 458, cert. denied, 2013-NMCERT-001, 299

18 P.3d 863; Valdez, 1975-NMSC-050, ¶ 20 (“For evidence to be clear and convincing,

19 it must instantly tilt the scales in the affirmative when weighed against the evidence



                                             12
 1 in opposition and the fact finder’s mind is left with an abiding conviction that the

 2 evidence is true.” (internal quotation marks and citation omitted)).

 3   {16}   Thus, we hold that rebutting the presumption in Section 32A-2-14(F) requires

 4 the state to present clear and convincing evidence that, in the totality of the

 5 circumstances, the child’s personal traits give him an above-average ability to

 6 knowingly, intelligently, and voluntarily waive his rights in the way the statute

 7 presumes a fifteen-year-old child can. We now apply this standard to the proceedings

 8 in this case.

 9 3.       The District Court Erred in Denying Child’s Motion to Suppress His
10          Statements to Police Officers

11   {17}   Child’s statements cannot be properly admitted unless the State proves that, by

12 clear and convincing evidence, he was capable of a knowing, intelligent, and

13 voluntary waiver of his rights.3 We need to go no farther in this case than examining

14 the evidence presented concerning Child’s individual attributes to conclude that he

15 was not capable of effectively waiving his rights in this instance. The State presented

16 evidence from three persons during the suppression hearing: two of the three




          3
17          We note that, although the State claims that Child was party to a voluntary
18 interview and not a custodial interrogation, he does not raise the issue.

                                              13
 1 investigating officers who interrogated Child, Agents Dan Blair and Dan Aguilar;4

 2 and Ron Allen, who had been Child’s teacher at the detention center.

 3   {18}   Agents Blair and Aguilar testified that, based on their experience interviewing

 4 children of similar age, Child was articulate, inquisitive, and aware of his

 5 constitutional rights, was more mature and intelligent than average and, in their

 6 opinion, had knowingly, intelligently, and voluntarily waived his rights. Agent Blair

 7 testified about Child based only upon the contact he had with Child during the

 8 interrogation. He did not review any school or other records concerning Child.

 9 Agent Blair stated that Child engaged in conversations with adults, seemed interested

10 in learning, was aware of his surroundings, and asked questions about his rights and

11 stated he understood. Agent Blair also testified initially that Child’s mother had

12 stated that he was an “A” and “B” student, but mentioned, on cross-examination, that

13 she had also stated that he had “C” and “D” grades in some classes and had not told

14 Agent Blair about an “F” grade. No evidence of Child’s actual grades was presented.

15 Agent Blair stated that Child was articulate and had checked out a young adult book

16 of over four hundred pages from the library on the day before the interrogation.




         4
17         Agents Blair and Aguilar were both investigators from the District Attorney’s
18 Office. Both were retired police officers.

                                              14
 1 There was no evidence as to why he chose that book or that he had read any of it yet.5

 2 From this, however, Agent Blair concluded that Child seemed mature and more

 3 intelligent than most children his age and, based solely on the interview, he believed

 4 Child’s waiver was knowing, intelligent, and voluntary. No comparison beyond

 5 “children his age” was ever provided. This is insufficient under the standard we have

 6 enunciated in Francesca L. and Adam J.

 7   {19}   Agent Aguilar testified that Child was more inquisitive about his rights as

 8 compared to other children he had interviewed, was more independent, understood

 9 the officers’ questions, and appeared to understand his rights. Any statement relating

10 Child’s capacity specifically to the standard we employ was not provided to the

11 district court. He testified that Child seemed more advanced than the average

12 thirteen-year-old child with whom he had come into contact as a detective in crimes

13 against children. Agent Aguilar felt that Child was actively involved in the

14 explanation of his rights. This testimony was similarly inadequate.

15   {20}   Allen, Child’s teacher, testified that Child was well-read, inquisitive, and

16 readily corrected the grammar and vocabulary of the other juveniles in the detention

17 center and, in his opinion, Child was more intelligent than the average detainees in



          5
18          Child was in the eighth grade at the time. The book has been designated at
19 a fourth-grade reading level.
20 http://www.scholastic.com/teachers/book/twilight#cart/cleanup.

                                             15
 1 his age group. Allen testified that he had only taught half time between an alternative

 2 school and the juvenile detention center where Child was being held and, therefore,

 3 compared Child only to other children in the alternative school. He had no other

 4 contact with Child prior to his arrest or knowledge of the capabilities of children not

 5 in an alternative school. Allen stated that the reading levels of the students at

 6 alternative schools ranged from far below average to average or above, that the

 7 students were typically behind, and that Child’s intelligence was generally above the

 8 other average alternative school students. Allen was unable to define “average”

 9 beyond the students at the school whose ages were not mentioned. Allen stated that

10 Child seemed well-read and read more than the other children and was intelligent and

11 inquisitive, though he was at an average math level.

12   {21}   However, Allen did not mention Child’s school records, nor was he asked to

13 testify regarding Child’s grades or testing scores prior to being in custody, or

14 otherwise asked to conclude that Child had the maturity and discernment of an

15 average fifteen-year-old child. See Moreno v. State, 510 S.W.2d 116, 119 (Tex. App.

16 1974) (evaluating extensive records, including psychiatric diagnostic reports, to

17 determine that the sixteen-year-old child had average intelligence and was more

18 socially mature than average). Nor did Allen make any conclusion regarding Child’s

19 ability to understand complex legal rights and having sufficient capacity to waive



                                             16
 1 those rights. We conclude that the evidence presented by the three witnesses did not

 2 establish that Child had the maturity and intelligence of an average fifteen-year-old

 3 child to understand his situation and the rights he possessed.

 4   {22}   Evaluating the evidence against Adam J. and the standards we have enunciated

 5 here, we note first that Child’s age is at the very lowest possible end of the age range

 6 at which his statements can be used at all. Particularly important is the proximity of

 7 his age to that which would render his statements conclusively inadmissible. Adam

 8 J., 2003-NMCA-080, ¶ 5; Francesca L., 2000-NMCA-019, ¶ 6 (holding proximity

 9 to age thirteen to be of possibly conclusive significance). Comparing him to other

10 thirteen-year-old children, or other children whose ages and developmental levels are

11 either not stated or irrelevant, does not provide evidence that he is as advanced as a

12 fifteen-year-old child, leaving the presumption of Subsection (F) intact as to his own

13 age of thirteen.

14   {23}   We conclude that the evidence presented by the State through answers to a

15 significant number of leading questions did not amount to clear and convincing

16 evidence of Child’s ability to waive his legal rights. The testimony of the

17 investigating officers was based solely on their single interaction with Child during

18 the interrogation. Each officer provided no more than the knowledge they had about

19 Child based on the interaction during the interrogation and some statements from his



                                              17
 1 mother. On this basis alone, they concluded that Child seemed more intelligent and

 2 mature than most children of unknown ages that they have worked with and was able

 3 to waive his rights. They did not compare Child’s abilities and maturity to the

 4 panoply of other average juveniles of any stated age level. The officers also did not

 5 testify in detail about the quality of the other children they had previously dealt with

 6 or the nature of those contacts. The investigators, given the likelihood of bias

 7 stemming from their role as Child’s accusers, can be assumed to have colored views

 8 of their own opinions and actions. See State v. Gomez, 1997-NMSC-006, ¶¶ 36, 38,

 9 122 N.M. 777, 932 P.2d 1 (stating that law enforcement is a competitive enterprise);

10 see also State v. Bomboy, 2007-NMCA-081, ¶ 14, 141 N.M. 853, 161 P.3d 898

11 (stating that the competitive pressures of law enforcement may compromise

12 judgment), rev’d on other grounds, 2008-NMSC-029, 144 N.M. 151, 184 P.3d 1045.

13 Furthermore, Allen’s testimony, showing his lack of contact with Child prior to being

14 held at the detention center, meant he could only compare Child to other children in

15 the detention center and alternative school. He neither made reference to average

16 thirteen-year-old children in general nor spoke to objective measures, such as Child’s

17 school records or testing scores from his regular school. Allen’s testimony similarly

18 does not fulfill the State’s burden of presenting clear and convincing evidence in a

19 matter of such gravity as this.



                                              18
 1   {24}   The question in cases where the child benefits from the rebuttable presumption

 2 of inadmissibility is not simply whether the child seems to be intelligent or mature,

 3 which seems to have been the State’s sole thrust in its case. Instead, the question for

 4 the district court is whether, under a clear and convincing standard of proof, the State

 5 presented evidence that Child has above-average intelligence, maturity, and other

 6 relevant personal traits compared to average thirteen-year-old children that show that

 7 he has the capacity to understand his rights and understand the consequences of

 8 waiving those rights in the way a fifteen-year-old child would. The State did not do

 9 so here. Whether Child reads books, converses with adults, corrects vocabulary and

10 grammar, and “seems” more intelligent and mature than other children from the

11 perspective of his arresting officers is not clear and convincing evidence that he had

12 an above-average ability based on his personal traits and understanding of the

13 situation to allow him to waive his rights. More evidence is needed to overcome the

14 statutory presumption against admitting the statements of a thirteen-year-old child.

15 As such, Child’s statements were inadmissible, and we reverse the district court’s

16 denial of Child’s motion to suppress and remand for a new trial. We now address

17 Child’s other arguments that may arise should this case be tried again.




                                              19
 1 B.       Child’s Motion to Sever the Charges

 2   {25}   Child filed a motion to sever the murder, aggravated burglary, and one count

 3 of tampering with evidence charges from larceny and the second count of tampering.

 4 The district court denied the motion to sever on the grounds that the courses of

 5 conduct alleged in all five charges were based on a connected series of acts, the

 6 evidence would have been cross-admissible, and Child failed to show sufficient

 7 prejudice to warrant severance of the charges. The denial of a motion to sever is

 8 reviewed under an abuse of discretion standard. State v. Lovett, 2012-NMSC-036,

 9 ¶ 10, 286 P.3d 265.

10   {26}   Child argues that the evidence of the larceny, primarily his confession, would

11 not be cross-admissible because it was improper evidence under Rule 11-404(B)

12 NMRA. Child further argues that, even if the evidence was cross-admissible, it

13 should have been kept out because the probative value was substantially outweighed

14 by the danger of unfair prejudice under Rule 11-403 NMRA. The State argues that

15 the evidence would be cross-admissible because it is proper other act evidence

16 because it shows intent, opportunity, knowledge, and absence of mistake. The State

17 points out that Child did not fully argue his reasoning for the inadmissibility of the

18 evidence under Rule 11-403, but the State argues that the probative value of the

19 evidence is the other act evidence of intent, opportunity, knowledge, and absence of


                                              20
 1 mistake and that the potential prejudice is diluted by the varying time frames between

 2 the alleged acts and the nature of the crimes charged.

 3   {27}   Rule 5-203(A) NMRA requires the state to join certain charges if the offenses

 4 “are of the same or similar character, even if not part of a single scheme or plan[] or

 5 . . . are based on the same conduct or on a series of acts either connected together or

 6 constituting parts of a single scheme or plan.” State v. Gallegos, 2007-NMSC-007,

 7 ¶ 10, 141 N.M. 185, 152 P.3d 828. Even when offenses are properly joined, a district

 8 court may abuse its discretion in failing to sever charges if there is prejudice to the

 9 accused. Id. ¶¶ 9, 16.

10   {28}   The first step of this inquiry requires determination of whether the evidence

11 pertaining to each charge would be cross-admissible in separate trials. Id. ¶ 19. The

12 defendant may be prejudiced by admission of evidence that would be otherwise

13 inadmissible. Id. “On the other hand, cross-admissibility of evidence dispels any

14 inference of prejudice.” Id. (alteration, internal quotation marks, and citation

15 omitted).

16   {29}   Cross-admissibility is determined through an analysis of Rule 11-404(B). See

17 Gallegos, 2007-NMSC-007, ¶¶ 20-21. Under Rule 11-404(B)(1), “[e]vidence of a

18 crime, wrong, or other act is not admissible to prove a person’s character in order to

19 show that on a particular occasion the person acted in accordance with the character.”



                                              21
 1 Nevertheless, evidence of a crime, wrong, or other act may permissibly be used for

 2 another purpose, “such as proving motive, opportunity, intent, preparation, plan,

 3 knowledge, identity, absence of mistake, or lack of accident.” Rule 11-404(B)(2).

 4 “It remains within a [district] court’s discretion to admit evidence of . . . prior acts . . .

 5 when the [s]tate shows that such evidence is relevant to a material issue other than

 6 conformity with character.” Martinez, 1999-NMSC-018, ¶ 30 (alteration, internal

 7 quotation marks, and citation omitted). The state must “identify and articulate the

 8 consequential fact to which the evidence is directed.” Gallegos, 2007-NMSC-007,

 9 ¶ 22.

10   {30}   The evidence in this case would have been cross-admissible because the

11 evidence was proper other act evidence in accordance with Rule 11-404(B)(2). The

12 evidence of the larceny, including Child’s statement, was evidence of his knowledge

13 and opportunity in relation to the eventual murder of Vale. From this evidence, the

14 jury could infer that Child knew how to gain access to Vale’s house and that he had

15 the opportunity to do so previously and could have done so again. This does not

16 require the inference that Child has the propensity or character to commit larceny and,

17 therefore, murder, which would be improper character evidence under Rule 11-

18 404(B)(1). Instead, it is permissible under Rule 11-404(B)(2). We conclude that the




                                                 22
 1 district court did not abuse its discretion by denying Child’s motion to sever. We

 2 affirm the district court on this issue.

 3 C.       Child’s Motion for Bill of Particulars/Statement of Facts

 4   {31}   Child argues that the denial of his motion for a bill of particulars violated his

 5 due process rights because he required an understanding of the State’s theory for

 6 connecting the crimes charged and the specific evidence that would be used in order

 7 to adequately prepare his defense. The State argues that Child was able to adequately

 8 prepare his defense because the delinquency petition described the offenses. He was

 9 given a witness list and had access to 1200 documents due to the State’s open file

10 policy. We review the district court’s denial of a motion for a bill of particulars for

11 an abuse of discretion. State v. Mankiller, 1986-NMCA-053, ¶ 18, 104 N.M. 461,

12 722 P.2d 1183.

13   {32}   As our precedent indicates, “[t]he object of a bill of particulars . . . is to enable

14 [an accused] to properly prepare his defense[.]” State v. Mosley, 1965-NMSC-081,

15 ¶ 4, 75 N.M. 348, 404 P.2d 304; State v. Archuleta, 1970-NMCA-131, ¶ 32, 82 N.M.

16 378, 482 P.2d 242. The bill of particulars must “give [the accused] and the court

17 reasonable information as to the nature and character of the crime charged.” State v.

18 Shroyer, 1945-NMSC-014, ¶ 70, 49 N.M. 196, 160 P.2d 444; see Mosley, 1965-

19 NMSC-081, ¶ 4. However, these requirements do not require the state to “plead



                                                 23
 1 evidence[.]” Mosley, 1965-NMSC-081, ¶ 4. A bill of particulars/statement of facts

 2 is generally not required when the state maintains an open file policy. Mankiller,

 3 1986-NMCA-053, ¶ 18. In determining whether to require a bill of particulars, the

 4 district court must consider the whole record. Archuleta, 1970-NMCA-131, ¶ 33. In

 5 order to satisfy due process, the primary determination is whether the accused had

 6 enough information to adequately prepare his defense. Mosley, 1965-NMSC-081,

 7 ¶ 4.

 8   {33}   In his request for a bill of particulars, Child asked for the following:

 9          1.    Each fact, stated with specificity and particularity, upon which the
10                State relies to prove each element of the offense charged.

11          2.    The theory of the case.

12          3.    Each witness or exhibit that will prove the facts described.

13          4.     A description with as much detail and precision as possible, and
14                the manner in which the alleged offense was committed.

15          5.    A description with as much detail and precision as possible, and
16                the means by which the alleged offense was committed.

17 As the State indicates, Child was previously furnished with the State’s witness list

18 and all of the State’s 1200 documents and, as a result, appears to have had access to

19 all material relevant to the State’s case against him. The delinquency petition stated

20 with particularity each of the crimes charged, including the dates and locations of the

21 alleged offenses, the crimes charged and the relevant statutory provisions, and the


                                               24
 1 items stolen or moved. Therefore, there would be no question as to the nature and

 2 character of the crimes charged.

 3   {34}   Child asserts that “simply knowing what was in the State’s file was not

 4 enough.” However, our precedent indicates that access to the state’s files normally

 5 is enough for the accused to prepare a defense. Other cases have considered similar

 6 requests to Child’s and have determined that knowledge of the evidence on which the

 7 state would rely, the particular acts that were being relied on, and the means, manner,

 8 or method were not necessary for the accused to adequately prepare a defense.

 9 Archuleta, 1970-NMCA-131, ¶ 33 (stating that providing the defendant with the

10 evidence on which the state would rely would require it to plead evidence, which is

11 not necessary); State v. Coulter, 1973-NMCA-019, ¶ 9, 84 N.M. 647, 506 P.2d 804

12 (holding that the defendant was not prejudiced when the state had made available all

13 the information in its files to defense counsel). This is especially true when the state

14 maintains an open file because the child already has access to the entirety of the

15 evidence and the witnesses the state will use against him. Coulter, 1973-NMCA-019,

16 ¶ 11. In the present case, Child’s request, including that he “needed to know how the

17 State intended to connect all the crimes charged” and the theory of the case, if not

18 within the documents already in Child’s possession, would require the State to plead

19 evidence, which is not required to satisfy due process. We fail to see how Child was



                                              25
 1 prejudiced. Child does not allege how he was prejudiced by proceeding to trial with

 2 the information contained in the charging documents and provided in discovery.

 3 Child was aware of the crimes with which he was charged and had access to all of the

 4 State’s documents. There was nothing more to be given.

 5   {35}   The district court was in the best position to assess the whole record and

 6 determined that Child had sufficient information to prepare his defense. See

 7 Archuleta, 1970-NMCA-131, ¶¶ 33-34. Because Child had access to the entirety of

 8 the State’s documents and witness list, and the delinquency petition stated with

 9 particularity the charges against him, we hold that Child had enough information to

10 prepare his defense in accordance with due process. The district court did not abuse

11 its discretion by denying Child’s motion for a bill of particulars. We affirm the

12 district court.

13 D.       Child’s Motion to Compel the State to Allow a Twelve-Member Jury

14   {36}   Child filed a motion to compel the State to allow the case to be heard by twelve

15 jurors instead of six. The district court denied the motion to compel. An appellate

16 court reviews issues of statutory interpretation de novo. Schuster v. State Dep’t of

17 Taxation & Revenue, 2012-NMSC-025, ¶ 9, 283 P.3d 288.

18   {37}   Child argues that, under State v. Lorenzo P., 2011-NMCA-013, ¶ 11, 149 N.M.

19 373, 249 P.3d 85, he is entitled to a twelve-member jury because an adult facing the



                                               26
 1 same charges would be entitled to a twelve-member jury and that NMSA 1978,

 2 Section 32A-2-16(A) (2009) and Section 32A-2-14(A) entitle him to the same rights

 3 as an adult. The State argues that, under Section 32A-2-16(A), Child is entitled only

 4 to a six-member jury unless he is subject to adult penalties and, because the State did

 5 not seek adult penalties, he is not entitled to a twelve-member jury.

 6   {38}   “A child . . . is entitled to the same basic rights as an adult, except as otherwise

 7 provided in the Children’s Code[.]” Section 32A-2-14(A) (emphasis added). The

 8 relevant section of the Children’s Code, Section 32A-2-16(A), specifically provides

 9 that, if a “child [is] facing a juvenile disposition[, he] shall be entitled to a six-

10 member jury.” If the state has “invoke[d] an adult sentence,” the child is entitled to

11 a twelve-member jury. Id. While the crimes charged are serious offenses and would

12 entitle an adult to a twelve-member jury, whether the child is entitled to a twelve-

13 member jury is not determined by the charges, but by the state’s decision to invoke

14 an adult sentence. Id. That is not the case here. The State’s petition for delinquency

15 terms Child as a “delinquent child.” The jury instructions describe the offenses as a

16 “delinquent act,” and the State did not seek an adult sentence. We have stated that

17 we apply the Children’s Code as written. Lorenzo P., 2011-NMCA-013, ¶ 21.

18 Section 32A-2-16(A) is a specific circumstance in which the rights of the child are

19 otherwise provided for in the Children’s Code. A child is entitled to a six-member



                                                 27
 1 jury unless subject to an adult sentence. Child acknowledges this clear language of

 2 the statute. Thus, Child was not entitled to a twelve-member jury, and we affirm the

 3 district court’s denial of his motion to compel.

 4 III.     CONCLUSION

 5   {39}   We hold that the State is required to present clear and convincing evidence that

 6 Child had an above-average ability based on his personal traits and understanding of

 7 the situation to waive his rights in order to rebut the presumption of inadmissibility

 8 under Section 32A-2-14(F). The State did not meet this burden, thus, Child’s

 9 statements were inadmissible. We reverse the district court’s order denying Child’s

10 motion to suppress his statements and affirm the district court’s denial of his motion

11 to sever, the motion for a bill of particulars, and the motion to compel a twelve-

12 member jury. This case is remanded for further proceedings in accordance with this

13 Opinion.

14   {40}   IT IS SO ORDERED.



15                                           ____________________________________
16                                           RODERICK T. KENNEDY, Chief Judge




                                               28
1 WE CONCUR:



2 ___________________________
3 JONATHAN B. SUTIN, Judge



4 ___________________________
5 M. MONICA ZAMORA, Judge




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