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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Filing Date: April 11, 2019
3 STATE OF NEW MEXICO,
4 Plaintiff-Appellant,
5 v. NO. S-1-SC-36123
6 JEREMIAH ORDONEZ,
7 Defendant-Appellee.
8 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 9 Douglas R. Driggers, District Judge
10 Hector H. Balderas, Attorney General 11 John J. Woykovsky, Assistant Attorney General 12 Santa Fe, NM
13 for Appellant
14 Bennett J. Baur, Chief Public Defender 15 C. David Henderson, Appellate Defender 16 Brian Parrish, Assistant Appellate Defender 17 J.K. Theodosia Johnson, Assistant Appellate Defender 18 Santa Fe, NM
19 for Appellee 1 DECISION
2 NAKAMURA, Chief Justice.
3 {1} The State challenges the district court’s decision to suppress Defendant
4 Jeremiah Ordonez’s verbal confession. Finding no error, we affirm.
5 I. BACKGROUND
6 {2} While already incarcerated at the Metropolitan Detention Center (MDC) for
7 other crimes not relevant here, Ordonez wrote a letter in which he confessed to killing
8 a man several years earlier. Ordonez mailed the letter to a church it appears he never
9 attended.
10 {3} The police ultimately obtained the letter and two officers, Deputy Richard
11 Chavez and Detective Robert Nevarez of the Doña Ana County Sheriff’s Office,
12 visited Ordonez at the MDC and questioned him. After the officers advised Ordonez
13 of his Miranda rights, he confirmed for the officers what he wrote in his letter: he
14 shot and killed a man. Ordonez further clarified that the killing occurred in the course
15 of a robbery. Ordonez was indicted on first-degree felony murder and other charges.
2 1 {4} Ordonez was appointed counsel, and counsel asked Dr. William E. Foote to
2 perform a psychological evaluation of Ordonez. In his report Dr. Foote concluded that
3 Ordonez suffered from mental illness and did not understand his Miranda rights or
4 knowingly and intelligently waive them when the officers interrogated him at the
5 MDC.
6 {5} A few days after Ordonez’s counsel received Dr. Foote’s report, Ordonez
7 moved to suppress the verbal confession he provided to the officers arguing that they
8 failed to obtain a valid waiver of his Miranda rights at the time of the questioning.
9 Ordonez conceded that the officers read him the standard Miranda warnings and
10 reviewed the warnings with him. Nevertheless, Ordonez contended that he had not
11 knowingly and intelligently waived his rights.1
12 {6} The district court agreed, and concluded that Ordonez “did not understand the
13 consequences of his statement or his interrogation, specifically that his statement
14 would be used against him in a court of law” and suppressed the statements Ordonez
15 made during the interrogation. The propriety of the district court’s ruling on
16 Ordonez’s suppression motion is now before this Court on interlocutory review. See
17 State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (“[T]he
1 17 The motion included a host of other arguments that we do not summarize here.
3 1 legislature intended for us to have jurisdiction over interlocutory appeals in situations
2 where a defendant may possibly be sentenced to life imprisonment . . . .”).
3 II. DISCUSSION
4 {7} At the outset, we note that the resolution of the issue before us does not require
5 clarification of what, if anything, the officers should have done to comply with
6 Miranda given the fact that Ordonez suffers from mental illness. This case only
7 requires us to apply the principles articulated in Miranda and its progeny to the facts
8 presented. In other words, we treat this matter as a straightforward Miranda case.
9 {8} “[T]he Fifth Amendment has been interpreted as requiring the State, prior to a
10 custodial interrogation of an accused, to advise the accused (1) of the right to remain
11 silent; (2) that any statement made by the accused may be used as evidence against
12 him or her; and (3) of the right to the presence of an attorney, either retained or
13 appointed.” State v. Gutierrez, 2011-NMSC-024, ¶ 7, 150 N.M. 232, 258 P.3d 1024.
14 Once these warnings have been issued, a defendant may waive these rights. See State
15 v. Martinez, 1999-NMSC-018, ¶¶ 13-14, 127 N.M. 207, 979 P.2d 718.
16 {9} The United States Supreme Court’s case law makes clear that the validity of any
17 waiver turns on a two-fold inquiry: the waiver must be (1) “voluntary” and also must
4 1 be (2) “knowing and intelligent.” State v. Fekete, 1995-NMSC-049, ¶ 49, 120 N.M.
2 290, 901 P.2d 708. The Supreme Court has stated this two-part test as follows:
3 First, the relinquishment of the right must have been voluntary in the 4 sense that it was the product of a free and deliberate choice rather than 5 intimidation, coercion, or deception. Second, the waiver must have been 6 made with a full awareness of both the nature of the right being 7 abandoned and the consequences of the decision to abandon it.
8 Id. (internal quotation marks and citation omitted). “The prosecution bears the burden
9 of showing by a preponderance of the evidence that a defendant’s waiver was
10 knowing and intelligent.” Id. ¶ 48.
11 {10} There is no question Ordonez was advised of his Miranda rights. Additionally,
12 the district court concluded that Ordonez did voluntarily waive his rights, and that
13 conclusion is not challenged. The district court was not convinced, however, that
14 Ordonez “knowingly and intelligently” waived his rights. As noted, the court was not
15 convinced that Ordonez understood that the statements he made to the officers could
16 be used as evidence against him in a court of law and suppressed the statements for
17 this reason. The State contends that this ruling was error.
18 {11} According to the State, there is ample evidence in the record that Ordonez did
19 understand that the statements he gave to the officers could be used against him. The
20 State also emphasizes that Ordonez expected to be charged by confessing and did so
5 1 for the express purpose of being incarcerated at a federal prison. According to the
2 State, this suggests that Ordonez must have known that his voluntarily-given
3 statements would be used against him in court.
4 {12} The standard of review we apply here is well settled. “A decision to suppress
5 evidence obtained from a warrantless search is reviewed as a mixed question of fact
6 and law. We review any factual questions under a substantial evidence standard and
7 we review the application of law to the facts de novo.” State v. Sewell,
8 2009-NMSC-033, ¶ 12, 146 N.M. 428, 211 P.3d 885 (alteration, internal quotation
9 marks, and citations omitted). “[W]e accept the factual findings of the district court
10 unless they are clearly erroneous, and view the evidence in the light most favorable
11 to the district court’s ruling.” Martinez, 1999-NMSC-018, ¶ 15 (internal quotation
12 marks and citation omitted).
13 {13} The legal standard the State must satisfy to demonstrate, as a matter of law, that
14 Ordonez’s waiver was knowing and intelligent is identified in our case law. We
15 “evaluate the totality of the circumstances and the particular facts, including
16 consideration of the mental and physical condition, background, experience, and
17 conduct of the accused, as well as the conduct of the police, in determining whether
18 the State has successfully carried its burden in demonstrating a knowing and voluntary
6 1 waiver.” Id. ¶ 14 (internal quotation marks and citation omitted). “Every reasonable
2 presumption against waiver is indulged.” Id. (alteration, internal quotation marks, and
3 citation omitted). Considered collectively, our standard of review and the governing
4 legal standard require the State to demonstrate that, given the totality of the
5 circumstances presented to the district court, it made a clear error when it determined
6 that the State failed to prove by a preponderance of the evidence that Ordonez
7 understood that the statements he made to the officers could be used against him in
8 court. For the reasons set out below, the State cannot make this showing.
9 {14} Deputy Chavez initially testified—when questioned by the State on direct
10 examination—that he believed Ordonez did understand the Miranda warnings when
11 Detective Nevarez read them to him at the beginning of the interrogation. Deputy
12 Chavez nevertheless freely and openly acknowledged that Ordonez demonstrated
13 confusion from the very beginning of the interrogation.
14 Prosecutor: [W]as there time that was taken to explain the 15 Miranda warnings in detail to the defendant? 16 Deputy Chavez: Yes. 17 Prosecutor: Did he have certain questions about them or need 18 some clarification with respect to the Miranda 19 warnings? 20 Deputy Chavez: He did. 21 Prosecutor: Will you please describe that to Judge Driggers. 22 Deputy Chavez: I believe there was—there seemed to be a little bit of 23 confusion as far as—I believe the word he used was
7 1 “waivering.” However, that was clarified by myself 2 and Investigator Nevarez so that he understood what 3 it meant for him to waive his right to an attorney and 4 agree to speak to us in reference to the case.
5 The confusion surrounding the word “waiver” that Deputy Chavez identifies is
6 significant and requires explanation. As will become clear, that confusion was not
7 remedied (despite Deputy Chavez’s claim to the contrary) and contributes
8 meaningfully to our conclusion that the Miranda warning given here was ineffective.
9 {15} At the beginning of the interrogation, Ordonez was read his Miranda rights and
10 was then provided a card he was asked to read aloud. The words on the card indicated
11 that Ordonez understood his rights, wished to waive them and speak with the officers,
12 knew what he was doing in electing to speak, and had not been induced to speak by
13 threats or promises. After Ordonez finished reading the card, Detective Nevarez asked
14 him “Do you understand that waiver?” Ordonez responded “Uh, kinda sort of yeah.”
15 Given this uncertain response, Detective Nevarez sought clarification. He explained
16 to Ordonez that the words on the card meant that Ordonez understood his rights and
17 understood that he could speak to an attorney before he spoke with them. After
18 offering this incomplete point of clarification, Detective Nevarez again asked Ordonez
19 “Do you understand?” Ordonez responded “Yeah.” Detective Nevarez then asked
8 1 “Do you wish to talk to us at this time?” Ordonez answered “Yeah, I don’t want to
2 waiver.” For reasons discussed immediately below, this response is plainly equivocal.
3 {16} The words “waiver” and “waver” are nearly identically spelled, have identical
4 pronunciations, yet have distinct meanings. The only reason Ordonez is quoted as
5 having used the word “waiver” with an “i” in the crucial quote “Yeah, I don’t want
6 to waiver” is because the individual who transcribed the interrogation assumed
7 Ordonez used the word “waiver” and, therefore, elected to spell the word Ordonez
8 used this way. This is not to say that the transcriber erred; Ordonez’s response could
9 be construed as a statement that he did not want to “waive” his rights. Alternatively,
10 the statement could be construed to mean that Ordonez was not “wavering” from his
11 decision to waive his rights and speak with and confess to the officers. In the
12 exchanges immediately following Ordonez’s equivocal use of the word “wa(i)ver,”
13 he informed the officers that “I want to exercise my rights” and “at this time would
14 like to talk”; that he would like “access to a legal library” during his “charges” and
15 “trial,” but would like to “self represent myself” later on; and he declined to sign the
16 waiver-of-rights form the officers presented to him because he was not “wa(i)vering.”
17 Thus, while Officer Chavez expressed confidence that any confusion that stemmed
18 from Ordonez’s puzzling use of the word “wa(i)ver” was rectified, this statement is
9 1 not to be credited as we must view the evidence in the light most favorable to the
2 district court’s decision. Martinez, 1999-NMSC-018, ¶ 15.
3 {17} Viewing the record in that light, it is clear that the officers did not adequately
4 rectify the confusion that took hold early in the interrogation. In fact, defense
5 counsel’s cross-examination of Deputy Chavez revealed that Deputy Chavez himself
6 doubted that Ordonez understood his rights and specifically doubted that Ordonez
7 understood that any statements he made could be used against him in court.
8 {18} Defense counsel asked Deputy Chavez whether it was fair to infer that Ordonez
9 understood his rights given his response “Uh, kinda sort of yeah” when asked if he
10 understood the Miranda warning and given his response “I don’t want to waiver”
11 when asked whether he wished to speak to the officers at that time. Deputy Chavez
12 responded “No, sir.” Deputy Chavez went on to acknowledge, at other points during
13 cross-examination, that there were other reasons to suspect Ordonez was not
14 adequately informed that his statements (to the extent he wished to make any) could
15 be used against him in court, and that it would have been preferable to obtain
16 clarification from Ordonez that he did in fact understand this aspect of the Miranda
17 rights. One such instance occurred during the following exchange:
18 Deputy Chavez: Investigator Nevarez asked, “But at this time, do you 19 wish to talk to us?” Mr. Ordonez says, “Sure, why
10 1 not?” Investigator Nevarez said, “Without an 2 attorney present?” Mr. Ordonez said, “Sure, why 3 not?” 4 Defense Counsel: At this point, okay, he’s saying, “Sure, why not?” 5 Okay. Is he ever reminded of the implications of 6 talking to you guys when he says, “Sure, why not?” 7 Is he reminded? 8 Deputy Chavez: No, he’s not reminded after the initial on page one. 9 No, sir. 10 Defense Counsel: A response to that question, “Sure, why not?” should 11 have been . . . “Well, because what you say could be 12 used against you in a court of law.” . . . That should 13 have been the response. 14 Deputy Chavez: I can’t tell you what Investigator Nevarez should 15 have said at that point. I’m not Investigator Nevarez. 16 Defense Counsel: What would you have said at that point? You were 17 there. 18 Deputy Chavez: Again, I would have wanted explicit clarification as 19 to whether or not Mr. Ordonez wanted to waive his 20 rights and agree to speak to me, or whether or not he 21 was exercising his rights. That’s just—again, that’s 22 my personal preference.
23 In another exchange, Deputy Chavez conceded that, after Ordonez exhibited
24 confusion about his rights, the officers failed to clarify whether Ordonez actually
25 understood that any statements he made could be used against him in court.
26 Deputy Chavez: I say, “You’re saying you want to talk to us about 27 this letter, and you don’t want an attorney with you 28 right now. That’s what you’re saying.” Mr. 29 Ordonez says, “That’s what I’m saying that I want?” 30 I say, “Yes.” Investigator Nevarez said, “That’s 31 what the signing represents.”
11 1 Defense Counsel: Let me stop you there. Is that all that signing 2 represents, that he can have an attorney? 3 Deputy Chavez: No. 4 Defense Counsel: What else does it represent? 5 Deputy Chavez: Well, that encompasses that he understands in its 6 entirety the Miranda warning. And it’s not a card; 7 it’s actually a full piece of—it should be a full piece 8 of paper that he read and that Investigator Nevarez 9 reads to him. 10 Defense Counsel: But in any event, it doesn’t just mean that he can 11 have an attorney with him right now? 12 Deputy Chavez: That’s correct. 13 Defense Counsel: It doesn’t just mean that he can stop questioning at 14 any point right now? 15 Deputy Chavez: That’s correct. 16 Defense Counsel: It includes the right to understand that what he says 17 can be used against him in court? 18 Deputy Chavez: Yes, sir. 19 Defense Counsel: But that’s not gone over with him, is it? 20 Deputy Chavez: It was gone over initially. 21 Defense Counsel: Initially? 22 Deputy Chavez: On page one, yes. 23 Defense Counsel: But after he shows signs of confusion, you don’t 24 revisit it with him, do you? 25 Deputy Chavez: No, sir.
26 After eliciting this response, defense counsel further questioned Deputy Chavez about
27 whether he and Detective Nevarez had really done enough to ensure that Ordonez
28 understood all of the Miranda rights. As the following exchange makes clear, Deputy
29 Chavez conceded that they had not.
30 Defense Counsel: I’d like you to read line one through line nine, 31 please.
12 1 Deputy Chavez: Line number one. Investigator Nevarez asked, 2 “That’s what the signing represents.” I asked—oh, 3 excuse me, I say, “Yes, it’s a signature that covers 4 your statement on the tape right here, bro. That’s all 5 it is.” 6 Defense Counsel: Let me stop you there. That isn’t technically all it is, 7 is it? You’re in the moment, you’re talking to Mr. 8 Ordonez in an interrogation room, but you say that’s 9 all it is. The signing doesn’t just represent the stuff 10 we’ve talked about, that he can have a lawyer and 11 that he can stop the questioning at any point; is that 12 correct? 13 Deputy Chavez: Yes, that’s correct. 14 Defense Counsel: Okay. So keep reading, please. 15 Deputy Chavez: Mr. Ordonez says, “Okay, so will write, will sign the 16 right to an attorney, but I get the right to—are these 17 all my rights?” 18 Defense Counsel: I’ll stop you there. So, again, another question that 19 shows that he’s seeking information from the two of 20 you about a better understanding of his rights— 21 Deputy Chavez: Yes. 22 Defense Counsel: —is that correct? Okay. And what is Detective 23 Nevarez’s response? 24 Deputy Chavez: Investigator Nevarez says, “The rights that I’ve read 25 to you on the other side are, you have a right to have 26 an attorney present with you during questioning, and 27 you just told us that you want to speak with us now 28 without an attorney present. And later on, should 29 you decide you want an attorney, you have a 30 right—or excuse me, you have that right as well.” 31 Defense Counsel: Okay. The rights on the other side, does it 32 encompass just the right to have an attorney? 33 Deputy Chavez: No, sir. 34 Defense Counsel: What other rights does it encompass? 35 Deputy Chavez: All of the rights that were explained to him at the 36 beginning, at the initial—the actual Miranda sheet.
13 1 Defense Counsel: So, again, Detective Nevarez does not get into these 2 further rights with Mr. Ordonez? 3 Deputy Chavez: He does not. 4 Defense Counsel: He stops with the right to counsel? 5 Deputy Chavez: Yes, sir.
6 Deputy Chavez also conceded that Ordonez’s apparent confusion and his
7 unwillingness to sign a waiver-of-rights form caused him concern regarding
8 Ordonez’s understanding of his rights.
9 Defense Counsel: Please keep reading at 10. 10 Deputy Chavez: Mr. Ordonez says, “Well, I want to—I want to 11 represent”—or excuse me—“I want to self-represent 12 myself.” Investigator Nevarez says, “Okay. And 13 that’s what you’re doing right now, then.” Mr. 14 Ordonez says, “Okay. Well, I—we could just skip 15 all of this waiver stuff, and I’ll go ahead and talk.” 16 Defense Counsel: Let me stop you right there. I think you’ve said 17 earlier that you would rather be more explicit than 18 just this? 19 Deputy Chavez: Yes, sir. 20 Defense Counsel: Is this another example, Deputy, where you would 21 want to be more explicit with a subject that you were 22 interrogating in advising the subject of his rights? 23 Deputy Chavez: Personally, yes. 24 Defense Counsel: But that doesn’t happen, does it? 25 Deputy Chavez: No, sir. 26 Defense Counsel: What’s the next thing that Detective Nevarez says? 27 Deputy Chavez: Investigator Nevarez asked, “Go right into it, okay.” 28 Defense Counsel: Okay. So he doesn’t get into it. He doesn’t give a 29 further explanation to ascertain if Mr. Ordonez 30 understands, does he? 31 Deputy Chavez: No.
14 1 Defense Counsel: He stops right there, and that’s where you get right 2 into it. And then what does Mr. Ordonez say? 3 Deputy Chavez: Mr. Ordonez says, “Yeah, cause I don’t feel 4 comfortable signing this right now.” 5 Defense Counsel: Okay. He didn’t feel comfortable signing it? 6 Deputy Chavez: No, he didn’t. 7 Defense Counsel: And yet Detective Nevarez moves on, doesn’t he? 8 He goes into the questioning? 9 Deputy Chavez: Yes. 10 Defense Counsel: And is this another example where if you were the 11 lead on this, where you would want to get into it a 12 little more with the subject if you heard the subject 13 say, [“]Yeah, ’cause I don’t feel comfortable signing 14 this right now”? 15 Deputy Chavez: Yes. Personally, I would have addressed that a little 16 bit further, although, I mean, it’s not necessary.
17 {19} These concessions and acknowledgments more than adequately support the
18 district court’s finding that Ordonez did not understand that his statements could be
19 used against him when he purportedly waived his rights and spoke to the officers.
20 Deputy Chavez expressed doubt about whether Ordonez understood that his
21 statements could be used against him in court and questioned (more generally)
22 whether Ordonez understood his rights. While it is true that Ordonez was initially
23 informed that his statements could be used against him, Deputy Chavez acknowledged
24 that he and Detective Nevarez never revisited this particular aspect of Miranda after
25 Ordonez expressed general confusion about his rights. Our review of the transcript
26 of the interrogation confirms that Deputy Chavez is correct. After Ordonez confessed
15 1 and the officers once more addressed the Miranda rights with him, they did not revisit
2 the fact that Ordonez’s statements could be used against him in court.
3 {20} Throughout its brief in chief, the State emphasizes other evidence that suggests
4 that Ordonez did understand that any statements he elected to make could be used
5 against him. We acknowledge that there is competing evidence in this case and that,
6 had the district court ruled in the State’s favor below, the result of this appeal could
7 possibly be different. But the State did not prevail below, and because there is
8 substantial evidence to support the district court’s findings and because its findings
9 are not clearly erroneous, the State’s fact-based arguments gain no traction. See State
10 v. Ortiz, 2017-NMCA-006, ¶ 24, 387 P.3d 323 (“We will not second guess the
11 fact-finder’s decision concerning the credibility of witnesses or substitute our
12 judgment for that of the fact-finder.”).
13 {21} The State contends that the district court’s findings are clearly erroneous
14 because logic dictates that Ordonez must have understood that any statements he made
15 to the officers would be used against him in court because Ordonez knew that he
16 would be charged as a consequence of his confession and confessed in order to ensure
17 that he would be incarcerated at a federal prison. This argument has intuitive
18 appeal—if Ordonez knew speaking to the officers would secure his imprisonment, he
16 1 must have known that his statements would be used against him in court. But this
2 argument fails upon closer scrutiny.
3 {22} It is, of course, untrue that Ordonez’s decision to speak with the officers assured
4 him a place in federal prison. In fact, it is entirely unclear how Ordonez’s decision to
5 confess to a violation of New Mexico law to state law enforcement officers could
6 possibly ensure Ordonez’s transfer to or incarceration within a federal prison. In fact,
7 Ordonez’s decision to speak to the officers exposed him to a host of consequences
8 (that cannot be fully predicted) including the possibility that Ordonez might face
9 additional incarceration at the MDC to await trial for the shooting murder to which he
10 confessed to Detective Nevarez and Deputy Chavez. This possibility is laced with
11 irony as Ordonez wrongly assumed that confessing would somehow expedite his
12 departure from the MDC.
13 {23} For these reasons, it is not true that Ordonez must have understood that his
14 statements could be used against him in court because he believed that his statements
15 would ensure his federal imprisonment. In fact, Ordonez’s belief that speaking to the
16 officers would assure him this outcome suggests, if it suggests anything, that Ordonez
17 did not understand what was meant by the warning that any statements Ordonez
18 elected to make could be used against him.
17 1 {24} This is not to say that the officers were required to advise Ordonez of all the
2 possible consequences that might flow from the decision to waive his rights and speak
3 to them. Miranda imposes no such requirement. Gutierrez, 2011-NMSC-024, ¶ 20.
4 The officers were only required to inform Ordonez with sufficient clarity that his
5 statements could be used against him in court. The district court found that this did
6 not occur and that determination is supported by substantial evidence and is not
7 clearly erroneous.
8 III. CONCLUSION
9 {25} The district court’s findings were supported by substantial evidence and were
10 not clearly erroneous. Likewise, the court’s understanding of the law and its
11 application to the facts presented in this case was not erroneous. The district court’s
12 ruling is affirmed.
13 {26} IT IS SO ORDERED.
14 ___________________________________ 15 JUDITH K. NAKAMURA, Chief Justice
16 WE CONCUR:
18 1 ____________________________________ 2 BARBARA J. VIGIL, Justice
3 __________________________________ 4 MICHAEL E. VIGIL, Justice
5 __________________________________ 6 PETRA JIMENEZ MAES, Justice, Retired 7 Sitting by designation
8 ____________________________________ 9 CHARLES W. DANIELS, Justice, Retired 10 Sitting by designation