State v. Madonda

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 09:20:26 2016.07.14

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-022

Filing Date: June 13, 2016

Docket No. S-1-SC-34667

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

MUZIWOKUTHULA MADONDA,

Defendant-Appellee.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
Albert J. Mitchell, Jr., District Judge

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

for Appellant

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION

VIGIL, Justice.

{1} Defendant Muziwokuthula Madonda (Defendant) was interrogated following his
arrest for the murders of two men in Tucumcari, New Mexico. At the outset of the
interrogation, law enforcement officers advised Defendant of his Miranda rights, and he
unequivocally invoked his right to remain silent and his right to counsel. However, the
officers continued to interrogate Defendant, and Defendant eventually made incriminating
statements. Defendant then moved pretrial to have the statements suppressed, arguing that
they were obtained in violation of the prophylactic rules announced in Miranda v. Arizona,

1
384 U.S. 436 (1966) and Edwards v. Arizona, 451 U.S. 477 (1981). The district court
granted Defendant’s motion to suppress the statements, and the State, in turn, filed this
interlocutory appeal. Because we hold that the officers failed to scrupulously honor
Defendant’s invocation of his Miranda rights, we affirm.

I. BACKGROUND

{2} On March 24, 2011, the New Mexico State Police were called to the Tucumcari Inn
after a relative found Bobby Gonzales and Gabriel Baca dead in the bathroom of room
number 126. The investigation, headed by New Mexico State Police Agent Josh Armijo, led
law enforcement to suspect Defendant had committed the murders. Relying in part on
information provided by Defendant’s former employer, Texas Rangers assisted the New
Mexico State Police in locating and arresting Defendant near Houston, Texas, on March 27,
2011. After his arrest, Defendant’s van was impounded and he was transported to the
Montgomery County Sheriff’s Office in Conroe, Texas.

{3} Defendant was questioned by law enforcement on three separate occasions following
his arrest. The first interrogation attempt occurred shortly after the arrest, at approximately
1:00 a.m., and was conducted by Texas Rangers Steven Rayburn and Jason Taylor. During
this interview, Defendant told the Rangers, “I will not talk,” invoking his right to remain
silent. At that point, the Rangers did not attempt to further interrogate Defendant concerning
the murders but did continue conversing with Defendant about what would happen to his van
and other belongings. Ranger Taylor asked Defendant for his consent to search Defendant’s
hotel room, which Defendant gave. Ranger Taylor then explained that the officers would
take an inventory of the contents of Defendant’s van and asked if Defendant would give the
officers permission to conduct a search of the vehicle. Defendant asked why the officers
needed his permission if they were going to search the van anyway, and Ranger Taylor
explained that officers conducting a search might “look a little deeper” because they would
be looking for evidence of criminal activity, not just creating an inventory of Defendant’s
belongings. Defendant refused to consent to the search of his vehicle. He did, however, ask
the Rangers if he could have his Bible, which was in the van. Ranger Rayburn explained that
he would have access to a Bible at the jail, but Defendant expressed that he preferred his
own Bible, which was easier to read because it had all his notes and markings in it. Ranger
Rayburn explained that he was not sure if Defendant would be allowed to have his own
Bible inside the jail and that someone else would make that decision after the inventory of
the vehicle. The conversation ended shortly thereafter and Defendant was taken to jail.

{4} Agent Armijo, Sergeant Matthew Broom, and Agent Kevin Massis of the New
Mexico State Police arrived at the Montgomery County Sheriff’s Office the following day.
While the New Mexico officers were en route to Texas, Ranger Taylor secured a search
warrant for Defendant’s van. After the three New Mexico officers arrived in Texas, Rangers
Taylor and Rayburn briefed them regarding the previous interview attempt. Ranger Rayburn
specifically advised the New Mexico officers about Defendant’s request for his Bible
because of the “possible significance” of the notes Defendant had written inside it. Agent

2
Armijo and Sergeant Broom spent approximately thirty minutes discussing their plan for
interviewing Defendant. They determined that they needed Defendant’s Bible for the
interview, so they instructed Agent Massis, who was conducting the search of Defendant’s
van, to locate and provide it to them prior to the interrogation. The Bible was not included
on the search warrant return receipt, nor was it tagged into evidence. It was, however,
numbered and photographed so the officers could keep track of it, the photograph showing
Defendant’s name written on the front page.

{5} After receiving the Bible, Agent Armijo and Sergeant Broom met with Defendant on
March 28, 2011. This second attempt to interview Defendant gave rise to the issue we
address in this opinion.

{6} The interrogation on March 28, 2011, took place in the same interview room as the
meeting between Defendant and the Rangers the day before. Defendant, Agent Armijo, and
Sergeant Broom entered the room together. The officers each carried a notebook and Agent
Armijo also had a manila envelope, which he placed on the table as he entered the room. The
three men sat at a table in the corner of the room with Defendant seated between the two
officers. Less than a minute after entering the room, Agent Armijo advised Defendant of his
Miranda rights, which Defendant indicated he understood. Then, the following exchange
occurred:

Agent Armijo: Okay. Uh, with these rights in mind, do you uh, do
you have a problem sittin’ here and talking with us?

Defendant: Oh, I would like a lawyer please.

Agent Armijo: Okay, that’s more than fair.

Defendant: Don’t know if you guys can help with that. I’ve been
here two days and no one has told me what’s going,
what’s going to happen or uh, I don’t know and
what’s the wait for, what exactly . . .

Agent Armijo: Okay, okay.

Defendant: Yeah.

Agent Armijo: Okay. Umm, so what, what, what’re you saying?
What are you asking me?

Defendant: I would like a lawyer. Talk to, to a lawyer first.

Agent Armijo: Okay, I understand that. But you said I, if I could help
you with something.

3
 Defendant: Uh . . .

Agent Armijo: With explaining to you why you’re here?

Defendant: No. I understand why I’m here. I don’t know if you
guys could help set me up with a lawyer or if it’s,
falls under a certain department or if you guys can
handle that. That’s all I’m trying to ask you.

{7} The conversation continued as Defendant and the officers discussed the process for
obtaining a lawyer. The officers explained that the court would likely appoint counsel at
Defendant’s arraignment, but the process would probably take a few days. The exchange
about obtaining a lawyer took approximately one minute, after which Agent Armijo
confirmed with Defendant, “You don’t have anything to say is what you’re telling me?” and
Defendant responded, “I don’t have anything to say.” The parties do not dispute that by this
point, Defendant had invoked both his right to counsel by saying, “I would like a lawyer,”
and his right to remain silent by saying, “I don’t have anything to say.”

{8} Next, Agent Armijo stood up and told Defendant, “Okay, sit tight for me for just a
second.” Sergeant Broom picked up the manila envelope and, at Agent Armijo’s request,
handed the envelope to Agent Armijo. Agent Armijo reached into the envelope, pulled out
Defendant’s Bible, and said to Defendant, “I just wanna double check real quick that this is
yours?” Defendant confirmed that it was his Bible and that he had asked the Rangers for it.
Agent Armijo then told Defendant that he could not give the Bible to Defendant because it
was being seized as evidence. Sergeant Broom confirmed with Defendant that he had
received another Bible in jail, but Defendant again explained that he would prefer to have
his own Bible because it had all his notes and markings in it. Sergeant Broom assured
Defendant that his Bible was “not going anywhere, okay? It’s staying with us.” Agent
Armijo then turned to leave the interrogation room, but Sergeant Broom remained seated at
the table with Defendant and Defendant’s Bible.

{9} As Agent Armijo walked toward the door, Defendant stopped him to ask “one more
question.” Defendant asked about having the money the Rangers seized from his wallet and
backpack applied to his commissary account at the jail so that he could buy warm clothes
because it was very cold in his cell. Agent Armijo told him that he could not make any
promises, but that he would “ask and see if they can put a rush on it.” Agent Armijo then
asked Defendant if there was anything else he would like Agent Armijo to tell the other
officers because this would be the last time Defendant would talk to him. Defendant replied,
“Mmm, no. If I could get the money so that I can get some warm clothes. That’s it. That
would be it. Thank you.” Agent Armijo again told Defendant, “Sit tight for me,” and left the
room.

{10} After Agent Armijo’s exit, Sergeant Broom remained in the interrogation room with

4
Defendant. A few seconds passed, then Defendant asked Sergeant Broom about the drive
from New Mexico, and the two talked briefly about travel. Defendant told Sergeant Broom
that his favorite part of the country to drive through was “Spring Colorado [sic],” and
Sergeant Broom responded that he would “check it out.”

{11} Sergeant Broom then quickly changed the topic of conversation, drawing
Defendant’s attention back to his Bible by pulling it out of the envelope and asking
Defendant, “You do a lot of reading?” Defendant replied, “Yes, I try,” while Sergeant
Broom set the Bible down on the table and began flipping through the pages. Sergeant
Broom asked Defendant what his favorite verse was. Defendant laughed then asked Sergeant
Broom about his favorite Bible verse, to which Sergeant Broom responded, “Philippians
4:13.” See Philippians 4:13 (King James) (“I can do all things through Christ which
strengtheneth me.”) Defendant then remarked, “that’s the verse I need right now,” adding
that the officers probably thought the case would be a “slam dunk, . . . until [they heard]
what happened.” Sergeant Broom told Defendant that he “would love to hear what
happened” but that he could not because Defendant had requested a lawyer. Defendant said
that he wished he had a lawyer already because he knew from watching crime shows on
television that “it [was] dangerous to talk to [law enforcement] without a lawyer.” Sergeant
Broom reiterated that he would love to hear Defendant’s story, but he could not unless
Defendant said he did not want a lawyer after all, adding that Defendant would “say the
same story” anyway, whether or not he had a lawyer present. Defendant indicated that he
was conflicted about whether or not to talk to the officers, stating that he “would like
somebody to hear [his] side of the story,” but he was also concerned because he had heard
of cases where suspects had been wrongfully convicted after speaking to police.

{12} Agent Armijo, who had recently reentered the interrogation room, then asked
Defendant, “At this point, what damage can the truth do?” Sergeant Broom and Agent
Armijo then continued to use references to “the truth” to try to convince Defendant to waive
his right to counsel and give them a statement. Sergeant Broom incorporated Defendant’s
Bible, pointing to it and saying “this right here’s the truth . . . . That’s what I want, is the
truth.” Defendant said that he “miss[ed his] Bible” to which Sergeant Broom responded, “I
know.” Defendant then asked questions about what would happen if he made a statement and
whether it would make the process move faster. Sergeant Broom told Defendant that giving
a statement would help the officers discover the truth, and Agent Armijo explained that if
the truth “sen[t him] in a different direction” he would then have to “deal with” the fact that
Defendant was “not [his] guy.” Agent Armijo then reiterated that if the truth was that
Defendant was not the killer, it did not “make sense that the truth is gonna hurt [Defendant].”
Sergeant Broom then asked Defendant, “So you want to talk to me?” Defendant responded,
“I’ll talk, I’ll talk, and maybe, . . . you know, just put the truth out there, whatever it does.”
Before Defendant began telling his story, Agent Armijo stopped to “make sure” Defendant
understood his rights, and Defendant told the officers, “I understand I have a right not to
talk, but I’ve decided to talk now.”

{13} Defendant gave the officers a version of events in which he was being framed for the

5
murders in Tucumcari. The officers did not believe his story and eventually ended the
questioning for the day. At this point, the officers secured a promise from Defendant that he
would come back and tell them the truth in the morning. The third interview took place the
following morning, March 29, 2011. Defendant ultimately confessed to the murders in
Tucumcari, as well as two other murders in Ohio. The State of New Mexico charged
Defendant with the two Tucumcari murders.

{14} Defendant subsequently filed a motion to suppress his statements made during the
March 28 and 29 interviews. The district court held a suppression hearing and ultimately
ruled in favor of Defendant, suppressing all statements from the interviews. Because
Defendant faces charges for first-degree murder, the State appealed the district court’s
suppression order directly to this Court. See State v King, 2013-NMSC-014, ¶ 2, 300 P.3d
732 (recognizing that “this Court has jurisdiction over interlocutory appeals in cases in
which a criminal defendant may be sentenced to life imprisonment”). Following oral
argument, we issued an order affirming the district court’s suppression of Defendant’s
statements. We now explain the reasoning underlying our order.

II. DISCUSSION

{15} “The standard of review for suppression rulings is whether the law was correctly
applied to the facts, viewing them in a manner most favorable to the prevailing party.” State
v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and
citation omitted). “The appellate court must defer to the district court with respect to findings
of historical fact so long as they are supported by substantial evidence.” Id. “[W]e review
de novo the district court’s application of the law to those facts.” King, 2013-NMSC-014,
¶ 4.

{16} Here, the district court found that during the second interview “Defendant advised
the officers that he did not want to speak and requested an attorney,” but the “officers
continued the interview.” Accordingly, the district court concluded, “The continued
discussion with . . . Defendant was a violation of both his State and Federal constitutional
rights to an attorney and to remain silent. All information obtained in the interviews shall be
suppressed.” On appeal, the State does not dispute the finding that Defendant invoked his
rights to counsel and to remain silent. The State contends that the finding that the interview
continued after Defendant’s invocation of the right to counsel was not supported by
substantial evidence, arguing that “the officers stopped the interview” and “[t]he officers did
not ask any questions about the investigation or otherwise engage in any conduct likely to
elicit an incriminating response until after [Defendant] brought up the investigation. . . .” We
are not persuaded by the State’s arguments and affirm the district court’s order suppressing
the statements.

A. The Officers Failed to Terminate the Interrogation After Defendant Invoked his
Right to Remain Silent and Right to Counsel

6
{17} In Miranda, 384 U.S. at 444, the United States Supreme Court held that “the
prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” Those safeguards
include the requirement that law enforcement warn every defendant in police custody, prior
to any questioning, that the defendant “has a right to remain silent, that any statement [the
defendant] does make may be used as evidence against [the defendant], and that [the
defendant] has a right to the presence of an attorney, either retained or appointed.” Id. In
addition, Miranda requires that if at any point a defendant invokes the right to counsel by
indicating that “he wishes to consult with an attorney before speaking” or invokes the right
to remain silent by indicating that “he does not wish to be interrogated,” all interrogation
must cease. Id. at 444-45.

At this point [the defendant] has shown that he intends to exercise his Fifth
Amendment privilege; any statement taken after the person invokes his
privilege cannot be other than the product of compulsion, subtle or otherwise.
Without the right to cut-off questioning, the setting of in-custody
interrogation operates on the individual to overcome free choice in producing
a statement after the privilege has been once invoked.

Id. at 474.

{18} In Edwards, 451 U.S. 477, the United States Supreme Court “added a second layer
of protection to the Miranda rules” with respect to the right to counsel. Michigan v. Harvey,
494 U.S. 344, 350 (1990). The Edwards Court held that when the subject of a custodial
interrogation has invoked the right to counsel, “a valid waiver of that right cannot be
established by showing only that he responded to further police-initiated custodial
interrogation even if he has been advised of his rights.” 451 U.S. at 484.

Edwards set forth a “bright-line rule” that all questioning must cease after an
accused requests counsel. In the absence of such a bright-line prohibition, the
authorities through “badger[ing]” or “overreaching”— explicit or subtle,
deliberate or unintentional—might otherwise wear down the accused and
persuade him to incriminate himself notwithstanding his earlier request for
counsel’s assistance.

Smith v. Illinois, 469 U.S. 91, 98 (1984) (alteration in original) (citations omitted). In other
words, the officers must “scrupulously honor” a suspect’s rights, once invoked, by ending
the interrogation. King, 2013-NMSC-014, ¶ 8 (citing Michigan v. Mosley, 423 U.S. 96, 104
(1975)). “The interrogator is not at liberty to refuse to discontinue the interrogation or to
persist in repeated efforts to wear down the suspect so as to cause the suspect to change his
or her mind.” King, 2013-NMSC-014, ¶ 8. Thus, in order to resolve the instant case, we must
determine whether or not the officers scrupulously honored Defendant’s rights by ending the
interrogation.

7
{19} “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but
also to any words or actions on the part of the police (other than those normally attendant
to arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980)
(footnotes omitted). This includes “repeated efforts to wear down [a suspect’s] resistance and
make [the suspect] change his mind” about invoking the rights described in the Miranda
warnings. Mosley, 423 U.S. at 105-06. Further, in determining whether a particular act or
question by an officer constitutes interrogation, courts consider evidence of the officer’s
intent because “where a police practice is designed to elicit an incriminating response from
the accused, it is unlikely that the practice will not also be one which the police should have
known was reasonably likely to have that effect,” especially in light of “[a]ny knowledge the
police may have had concerning the unusual susceptibility of a defendant to a particular form
of persuasion.” Innis, 446 U.S. at 301-02, n.7, 8.

{20} The record in this case demonstrates that the officers did not properly terminate their
interrogation of Defendant once he invoked his rights. After Defendant made clear that he
wanted the assistance of a lawyer and that he “[did not] have anything to say,” Agent Armijo
brought out Defendant’s Bible, which the officers had procured solely for use as an aid in
the interrogation. Agent Armijo testified at the suppression hearing that he showed the Bible
to Defendant only to determine whether it was in fact Defendant’s; however, the officers
knew Defendant had asked for his Bible the day before, they knew this was the Bible
recovered from Defendant’s van, they made plans to use the Bible during their interrogation,
and Defendant’s name was written on the front page. Based on these facts, it is obvious that
clarifying the Bible’s ownership was not the actual reason Agent Armijo pulled out the
Bible. Rather, it appears that Agent Armijo knew the Bible was Defendant’s and showed it
to him to keep him talking in hopes he would make incriminating statements. Instead of
immediately terminating the interrogation, as required by Miranda and Edwards, Agent
Armijo employed a technique he and Sergeant Broom had specifically “designed to elicit an
incriminating response from the accused.” Innis, 446 U.S. at 301, n.7. This is contrary to the
requirement that officers “scrupulously honor” a suspect’s invocation of rights by ending the
interrogation upon a defendant’s invocation of rights. King, 2013-NMSC-014, ¶ 8.

{21} After the first introduction of the Bible, Agent Armijo left the room, stating that this
would be the last time Defendant would talk to him, which suggested that the interrogation
was over. However, Sergeant Broom remained in the interrogation room with Defendant and
the Bible. Defendant briefly made small talk with Sergeant Broom about travel. Then,
Sergeant Broom immediately brought Defendant’s attention back to the Bible, asking him
about his favorite verse. Under different circumstances, such a question may be innocuous.
But given that the officers knew that Defendant’s Bible was important to him and that they
had planned to use it in the interrogation, we are convinced that Sergeant Broom instead
drew Defendant’s attention back to the Bible so that he could keep Defendant talking until
he eventually waived his rights and gave an incriminating statement. See Innis, 446 U.S. at
302, n.8 (“Any knowledge the police may have had concerning the unusual susceptibility
of a defendant to a particular form of persuasion might be an important factor in determining

8
whether the police should have known that their words or actions were reasonably likely to
elicit an incriminating response . . . .”).

{22} Following the reintroduction of Defendant’s Bible, Sergeant Broom proceeded to try
to convince Defendant that he should waive his rights and tell the officers what happened.
Though Sergeant Broom’s statements that he would love to hear Defendant’s side of the
story were not inherently coercive, they were followed by direct attempts to convince
Defendant to waive his right to counsel by minimizing the importance of the right. Sergeant
Broom told Defendant that he would tell “the same story” to officers without a lawyer as he
would tell with a lawyer, essentially suggesting to Defendant that it would make no
difference in his case whether he waited for the assistance of a lawyer or not, so he might as
well just give a statement. This is an example of precisely the type of “subtle overreach” or
“badgering” the Edwards rule was designed to prevent. See Smith, 469 U.S. at 98 (explaining
that “all questioning must cease,” otherwise through “badger[ing] or overreaching—explicit
or subtle, deliberate or unintentional,” officers may “wear down the accused and persuade
him to incriminate himself” (alteration in original)).

{23} Although Agent Armijo indicated that he would not be talking to Defendant again
after Defendant invoked his rights, he reentered the interrogation room once it appeared that
Sergeant Broom might get Defendant to waive those rights. Agent Armijo and Sergeant
Broom then directed the focus of the conversation to the importance of telling “the truth,”
using the Bible as a symbol of truth. The officers’ statements indicating that telling the truth
could not do any harm or that it would be the most beneficial course of action for Defendant
to take directly undermined the Miranda warnings that any statements Defendant made
could be used against him in subsequent proceedings. See Cuervo v. State, 967 So.2d 155,
164-65 (Fla. 2007) (stating that officers engaged in conduct tantamount to interrogation by
instructing a suspect to tell “his side of the story” because it undermined the warning that
“anything he said could be used against him in a court of law”).

{24} Here, the officers did not honor Defendant’s invocation of his rights when they failed
to terminate the interrogation. Right after Defendant indicated that he wanted an attorney and
did not want to make a statement, the officers proceeded with techniques they had
specifically planned to employ during the interrogation, and then they undermined the very
warnings which had prompted Defendant to invoke his rights in the first place. Thus, the
district court did not err in finding that the officers failed to terminate the interrogation.

B. The Officers’ Failure to ‘Scrupulously Honor’ Defendant’s Rights Warrants
Suppression of All Subsequent Statements

{25} The “fundamental purpose [of the Edwards rule] is to [p]reserv[e] the integrity of an
accused’s choice to communicate with police only through counsel.” Maryland v. Shatzer,
559 U.S. 98, 106 (2010) (second and third alterations in original) (internal quotation marks
and citation omitted).

9
 [O]nce a suspect indicates that “he is not capable of undergoing [custodial]
questioning without advice of counsel,” “any subsequent waiver that has
come at the authorities’ behest, and not at the suspect’s own instigation, is
itself the product of the inherently compelling pressures and not the purely
voluntary choice of the suspect.”

Shatzer, 559 U.S. at 104-05 (second alteration in original) (quoting Arizona v. Roberson, 486
U.S. 675, 681 (1988)). Thus, after a suspect invokes the right to counsel, “not only must the
current interrogation cease, but he may not be approached for further interrogation until
counsel has been made available to him,” McNeil v. Wisconsin, 501 U.S. 171, 176-77 (1991)
(internal quotation marks and citation omitted), or there has been a break in custody of at
least fourteen days. See Shatzer, 559 U.S. at 105, 110. Otherwise, the statements are
“inadmissible as substantive evidence at trial, even where the suspect executes a waiver and
his statements would be considered voluntary under traditional standards.” McNeil, 501 U.S.
at 177.

{26} The officers’ failure to terminate the March 28 interrogation following Defendant’s
invocation of the right to counsel mandates suppression of the statements Defendant made
during that interview as well as his statements on March 29. Because Defendant was neither
provided an attorney, nor released from custody for the requisite fourteen days between his
request for an attorney and the subsequent interrogation, the March 29 interview was not
cured of its presumptive involuntariness. See Shatzer, 559 U.S. at 105, 110. Accordingly, we
hold that it was proper for the district court to suppress all statements Defendant made after
his initial request for counsel.

III. CONCLUSION

{27} The district court properly concluded that the officers continued to interrogate
Defendant after he invoked his right to remain silent and right to counsel in violation of his
constitutional rights. We affirm the district court’s order suppressing Defendant’s oral and
video statements.

{28} IT IS SO ORDERED.

____________________________________
BARBARA J. VIGIL, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

10
____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
JUDITH K. NAKAMURA, Justice

11