IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMSC-027
Filing Date: May 27, 2009
Docket No. 30,443/30,454 consolidated
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOSEPH EVANS,
Defendant-Appellant.
INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF MCKINLEY
COUNTY
Robert A. Aragon, District Judge
Hugh W. Dangler, Chief Public Defender
Michael L. Rosenfield, Assistant Public Defender
Albuquerque, NM
for Appellant
Gary K. King, Attorney General
Martha Anne Kelly, Assistant Attorney General
Santa Fe, NM
for Appellee
OPINION
BOSSON, Justice.
{1} This Opinion addresses two interlocutory appeals, which we hereby consolidate on
our own motion. Joseph Evans (“Defendant”) appeals the district court’s denial of his
motion to suppress his confession, which he argues was involuntary. The State appeals the
district court’s suppression of physical evidence stemming from a search warrant which the
district court concluded lacked probable cause. We affirm the district court’s decision not
to suppress the confession and reverse as to the suppression of the physical evidence. This
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case is remanded to the district court for further proceedings.
BACKGROUND
{2} Police discovered Felicia Penaloza’s body partially wrapped in a fitted, white bed
sheet, lying face-down in an arroyo northwest of Gallup on September 12, 2005. She was
16 years old. The Office of the Medical Investigator determined that she had been
asphyxiated by a ligature around her neck, and by a black plastic trash bag tied over her
head. The plastic bag was cinched around her neck with an “electrical type wire,” according
to an affidavit that police filed in support of an application for a search warrant.
{3} According to the same affidavit, police interviewed Seferino Griego three days after
discovering Penaloza’s body. Griego inculpated Defendant in the crime. Police also
interviewed Defendant’s mother, Sheree Thornton, whose account gave police further reason
to believe Defendant may have been involved in the crime. We will address the statements
of Griego and Thornton in detail below. Thornton also allowed New Mexico State Police
Agent Patrick Ness to view the basement of her house where Defendant apparently kept a
bedroom. Agent Ness saw exposed electrical wiring, sheets, two mattresses without linen,
and a number of electrical wires of different sizes and colors. Police then interviewed a
McKinley County Probation Officer who overheard Griego accuse Defendant of killing
Griego’s “girlfriend,” and Defendant later say, “I guess I am a murderer.”
{4} On September 17, 2005, New Mexico State Police Agent Henrietta Soland applied
to McKinley County Magistrate Judge John Carey for a warrant to search Thornton’s house.
Magistrate Judge Carey granted the application, and police executed the search warrant on
the same day, finding, among other things, a piece of an electrical cord which police claim
matched the cord found around Victim’s neck.
{5} The following day Agent Ness, who had not participated in the execution of the
search warrant, and Agent Soland interviewed Defendant at the McKinley County Adult
Detention Center. Defendant had been detained there for 13 days on charges unrelated to
the present case. In a 90-minute interrogation, conducted in the afternoon in a visiting room
at the detention center, Defendant ultimately acknowledged culpability in Victim’s death.
His story changed considerably throughout the course of the interrogation. He initially
denied any involvement in the death, saying that he was merely present at his house when
Victim was there. Then he denied killing her, but said he put the bag over her head after she
was dead. Then he said he was with her when she “quit moving.” And finally, he claimed
he accidentally strangled her, although it is unclear in his testimony that he confessed to
strangling her in the same manner as described in the medical examiner’s autopsy report.
Throughout the second half of the interrogation, Agent Ness made several statements which
Defendant claims were impermissibly coercive.
Procedural History
2
{6} The District Attorney for the Eleventh Judicial District charged Defendant by
criminal information on November 29, 2005 with an open count of murder in connection
with Victim’s death. The information also charged Defendant with one count of kidnapping
and one count of tampering with evidence. Defendant waived his right to a preliminary
hearing.
{7} Both of the appeals in this case are before this Court pursuant to State v. Smallwood,
2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821, where we held that this Court has
jurisdiction over interlocutory appeals in which a criminal defendant “may possibly be
sentenced to life imprisonment or death.”
{8} The first appeal, by the State, challenges the district court’s suppression of the
physical evidence obtained in the search of Thornton’s house. The district court overturned
Magistrate Judge Carey’s finding of probable cause, but offered no explanation for its ruling,
except for “the lack of probable cause as portrayed in the affidavit.” The State argues that
the affidavit provided the magistrate with a sufficient factual basis to conclude that there was
probable cause to search. For reasons explained below, we agree and therefore reverse the
district court on this issue.
{9} In the second appeal, Defendant argues that his confession was invalid because police
tactics in eliciting the confession amounted to unconstitutional coercion. We disagree, and
therefore affirm the district court for reasons explained in detail below.
DISCUSSION
Probable Cause for Search Warrant
{10} The Fourth Amendment to the United States Constitution requires police to obtain
a warrant, issued by a judge or magistrate, before executing any search or seizure, subject
to “a few specifically established and well-delineated exceptions.” Katz v. United States, 389
U.S. 347, 357 (1967). Probable cause to search a specific location exists when there are
reasonable grounds to believe that a crime has been committed in that place, or that evidence
of a crime will be found there. See State v. Gonzales, 2003-NMCA-008, ¶¶ 11-12, 133 N.M.
158, 61 P.3d 867.
{11} Put another way, before a valid search warrant may issue, the affidavit must show:
“(1) that the items sought to be seized are evidence of a crime; and (2) that the criminal
evidence sought is located at the place to be searched.” State v. Herrera, 102 N.M. 254, 257,
694 P.2d 510, 513 (1985); see also State v. Baca, 97 N.M. 379, 379-80, 640 P.2d 485, 485-
86 (1982) (same). There are no “bright-line, hard-and-fast rules” for determining probable
cause, but the degree of proof necessary to establish probable cause is “more than a
suspicion or possibility but less than a certainty of proof.” State v. Nyce, 2006-NMSC-026,
¶ 10, 139 N.M. 647, 137 P.3d 587 (internal quotation marks and citations omitted).
3
{12} Our inquiry focuses on the issuing judge’s conclusion as to probable cause. In this
case, that means we look at the magistrate’s conclusions, not the district court’s. If we
conclude that the magistrate’s conclusions as to probable cause were correct, we uphold
those conclusions regardless of the decision reached by the district court.
{13} We break our inquiry into two components. First we look at the magistrate’s
probable cause determination as to Victim’s death. Then we address the related but separate
question of probable cause that evidence from the murder would be found in the specific
location to be searched.
{14} Defendant argues that the search warrant affidavit was insufficient because it relied
principally on the statement of Seferino Griego, who told police, among other things, that
he saw Defendant with Victim shortly before she died. If it were true that the only evidence
the State presented in its affidavit was a single witness’s account that Defendant was seen
with Victim around the time of her death, Defendant might well be correct. But the State
presented much more than that. In addition to Griego’s account, the State offered evidence
obtained from the prior consensual search of Defendant’s bedroom, including “numerous
electrical wires/chords [sic] of different sizes and colors.” In the same search, the agent also
saw two mattresses without linens and other bedding material—observations which take on
added importance given that Victim’s body was found wrapped in sheets and tied with
electrical wires.
{15} The State also presented statements from Defendant’s mother which showed
Defendant telling conflicting stories about his activities the night he borrowed his mother’s
van, around the time Victim disappeared. The State presented a statement from a probation
officer who told police that during a chance encounter between Defendant and Griego in the
booking area of the McKinley County jail, Griego loudly accused Defendant of killing
Griego’s “girlfriend.” The probation officer said that Defendant did not immediately
respond to Griego’s accusation, but once he was in his holding cell, said “I guess I am a
murderer.”
{16} In addition, the State presented Griego’s allegation that Defendant had called him
around the time of Victim’s death saying cryptically that he, Defendant, needed to “take out
the garbage” and “take out the trash.” Griego told police that the conversation confused him.
{17} Like Griego’s statements to police, the allegation that Defendant said, “I must be a
murderer,” by itself, would likely not give rise to a finding of probable cause. Jailhouses are
commonly understood to be places of exaggeration, deception, and braggadocio. Police gave
little information in the affidavit about the manner in which Defendant spoke. Was he
boastful, contemplative, sarcastic? It is not clear. Nonetheless, the statement can be
considered in context with all the other information police provided in support of the search
warrant application.
{18} Similarly, the stripped mattresses and exposed electrical wires in Defendant’s
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bedroom, along with the electrical wires and sheets on Victim’s body, would be insufficient
if they stood alone. Nothing in the affidavit definitively matches the electrical wires in the
basement bedroom with the wire found around Victim’s neck. Police apparently made such
a match only after executing the search warrant. In State v. Hernandez, 111 N.M. 226, 229,
804 P.2d 417, 420 (Ct. App. 1990), our Court of Appeals held that there was no probable
cause to support a search warrant where police presented evidence that blood had been found
at the scene of a burglary and the defendant was later found to have a cut on his hand. The
blood at the scene was apparently not matched chemically or genetically to the accused. A
trail of stolen items led from the burgled location “in the direction towards” the accused’s
residence. Id. at 227, 804 P.2d at 418. Considering only the evidence of blood at the scene
and on the accused’s hand, along with the trail of stolen items, our Court of Appeals found
a lack of probable cause to search the accused’s house. Id. at 229, 804 P.2d at 420.
{19} Defendant argues that the present case is the same as Hernandez, asserting that the
affidavit contains “a glaring lack of any concrete information.” Defendant further argues
that the primary reason given to acquire the search warrant is that one person, Griego, said
Defendant was the last person seen with Victim. In arguing that this Court should treat the
present warrant the same way the Court of Appeals treated the affidavit in Hernandez,
Defendant overlooks two important things. First, Griego’s testimony is not the only basis
the State provided for a search warrant. Second, far from a “lack of concrete information,”
the affidavit contains, as we have described, a considerable amount of information from
several different sources.
{20} Like the investigators in Hernandez, the police in this case found physical evidence
at the scene of the crime which provides a link to further evidence found on the accused or,
in this case, in Defendant’s bedroom. In Hernandez, the evidence at the scene was blood,
and the evidence on the accused was the cut hand. In the present case, the evidence at the
scene was electrical wires and missing bed sheets, while the evidence at the scene was
similar wires and bed sheets on the corpse. The critical difference between the cases is that
here, police provided valid and significant evidence, in addition to the physical evidence,
connecting Defendant with the crime. In Hernandez, police did not.
{21} True, the affidavit in this case provides no single piece of evidence as telling as the
“reddish stain” and foul odor in the trunk of the accused murderer’s car in State v. Ferrari,
80 N.M. 714, 717, 460 P.2d 244, 247 (1969), where this Court concluded that a police search
warrant affidavit adequately supported probable cause. But such overwhelming physical
evidence is not required in every case to establish probable cause. Here, the police
demonstrated substantial investigative efforts to supplement the physical evidence they did
have: the electrical wire and bed sheets. They obtained statements from at least three
named witnesses, including a description of Defendant’s own words in jail and the strong
suggestion that he had told associates and family members different things about his
activities on the evening in question. All of this information viewed “as a whole,” Gonzales,
2003-NMCA-008, ¶ 14, makes clear that the magistrate judge was justified in finding a
probability that Defendant was involved in Victim’s disappearance and death.
5
{22} Defendant argues that there is “no causal relationship” between Victim’s
disappearance and Defendant’s statement that he needed to “take out the garbage.” He
similarly argues that the affidavit “totally fails to show any significance” in the fact that
Griego last saw Defendant with Victim. These arguments are unavailing. We have never
said that police must establish every link in the inferential chain that leads to probable cause.
Rather, all that is required is that police make a showing that permits “more than a suspicion
or possibility but less than a certainty of proof.” Nyce, 2006-NMSC-026, ¶ 10 (internal
quotation marks and citations omitted).
The Affidavit Established a Sufficient Nexus With the Place Searched
{23} We now turn to the issue of whether the evidence supports a finding of probable
cause to believe that evidence might be found in the basement bedroom of the house of
Defendant’s mother.
{24} We take this opportunity to clear up some ambiguity in our case law. Some of our
cases have implied that probable cause to believe a suspect has committed murder
necessarily produces probable cause to search the suspect’s home. See Ferrari, 80 N.M. at
718, 460 P.2d at 248 (observing that probable cause that a suspect committed murder “[is
ordinarily sufficient] to justify the search of [the suspect's] house and the surrounding area
and his business”). That is not true in every case. Probable cause to believe a defendant has
committed a crime, and particularly the crime of murder, will often exist simultaneously with
probable cause to believe there is evidence in the accused’s home. But probable cause does
not follow ineluctably from an allegation of murder or any other crime. The link between
the two conclusions must be made by the reviewing judge or magistrate on a case-by-case
basis. Numerous courts in our sister states, as well as federal courts, have made clear that
probable cause to believe an accused has committed a crime does not necessarily equate to
probable cause that the home of the accused will contain evidence of the crime. See, e.g.,
United States v. Waxman, 572 F. Supp. 1136, 1146 (E.D. Pa. 1983) (“It does not follow in
all cases, however, that simply from the existence of probable cause to believe a suspect is
guilty, there also is probable cause to search his residence.”); State v. Dillon, 419 So. 2d 46,
51 (La. Ct. App. 1982) (“[F]acts supporting probable cause to arrest do not necessarily give
rise to probable cause to search a defendant's residence . . . .”); Commonwealth v. Cinelli,
449 N.E.2d 1207, 1216 (Mass. 1983) (In the context of a murder charge, relying on United
States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979), for the proposition that
“[i]nformation establishing that a person is guilty of a crime does not necessarily constitute
probable cause to search the person's residence.”).
{25} The fundamental inquiry is whether there is probable cause to believe there will be
evidence of a crime at a particular location. See Herrera, 102 N.M. at 257, 694 P.2d at 513.
Residence may be a component of this, but residence is not necessary, nor is it always
sufficient, to establish probable cause to believe that the location to be searched contains
evidence of a crime. Police must give the issuing magistrate probable cause to believe that
evidence will be at the particular location in question, whether it is a suspect’s home or not.
6
{26} In this case, there was probable cause to search even though it is not totally clear in
the affidavit that Defendant made his residence at his mother’s house. The affidavit sought
a warrant to search a house at 1506 South Cliff Drive in Gallup. Before filing the affidavit,
police had already done a preliminary, consensual search of the basement.
{27} In that initial search, police discovered electrical wiring and bedding similar to those
found at the crime scene which, as we have already noted, provide an inferential link
between Defendant and Victim’s death. In addition to this indication that there would be
further evidence at the house, Thornton told police that Defendant had been in her house on,
or near, the night Victim was last seen with Defendant, and that Defendant left the residence
in Thornton’s van. It would be a reasonable inference from the information presented in the
affidavit that Victim was also at Thornton’s house on the night in question. Defendant told
his mother he needed to borrow her van to pick Victim up from Griego’s house. Defendant
later told a different, and conflicting, story to his mother, saying that he had come home
alone and that Victim had showed up at Thornton’s house with another man. Regardless of
which story is true, both place Victim at Thornton’s house on the night in question. Finally,
it appears from the face of the affidavit that Thornton and Defendant referred to the
basement as “home” —a suggestion that the basement was Defendant’s primary residence.
{28} The magistrate found probable cause. Viewing all of the evidence in totality, we
conclude that it had a sufficient basis in evidence to do so. Because the district court
concluded otherwise, we reverse the district court as to its granting of Defendant’s motion
to suppress the evidence gathered pursuant to the search warrant. The district court offered
no basis for its conclusions, so we cannot explain in any greater detail our basis for reversing
that court.
ADMISSIBILITY OF CONFESSION
{29} Defendant argues that his September 18, 2005 statement to police, admitting
culpability in Victim’s death, should have been suppressed for two reasons. First, he asserts
that police used coercive tactics which rendered his statement involuntary. Second,
Defendant argues that because police relied on information unlawfully seized from the
basement room in his mother’s house, the confession was tainted. Defendant further argues
that his September 19, 2005 confession, made one day after the first confession, should have
been suppressed because it was tainted by the initial, allegedly coerced confession.
{30} Defendant agrees with the State that he voluntarily waived his Miranda rights, and
he makes no claim to this Court that he did not receive his Miranda warnings and validly
waived them. Rather, he asserts only that police used coercive means to obtain his
confession, after the proper Miranda waivers.
{31} Because we have already determined that police lawfully seized the evidence from
the house of Defendant’s mother, we need not address his argument that unlawfully seized
evidence tainted the confession. We begin, then, with Defendant’s contention that his
7
September 18 statement was coerced.
STANDARD OF REVIEW
{32} We review de novo the voluntariness of confessions. See State v. Attaway, 117 N.M.
141, 145, 870 P.2d 103, 107 (1994) (citing Aguilar v. State, 106 N.M. 798, 799, 751 P.2d
178, 179 (1988)).
{33} We base our determination of whether a confession is voluntary on whether “official
coercion” has occurred. State v. Munoz, 1998-NMSC-048, ¶ 21, 126 N.M. 535, 972 P.2d
847 (internal quotation marks and citation omitted). Official coercion occurs when “a
defendant’s ‘will has been overborne and his capacity for self-determination [has been]
critically impaired.’” Id. ¶ 20 (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)).
There must be an “essential link between coercive activity of the State . . . and a resulting
confession by a defendant.” Id. ¶ 21 (quoting Colorado v. Connelly, 479 U.S. 157, 165
(1986)); see also State v. Barr, No. 30,191, slip op. at 11 (N.M. Sup. Ct. May 22, 2009).
{34} On a claim that police coerced a statement, the prosecution bears the burden of
proving by a preponderance of the evidence that a defendant's statement was voluntary.
State v. Fekete, 120 N.M. 290, 298, 901 P.2d 708, 716 (1995). The failure to make such a
showing requires a ruling that the confession was involuntary as a matter of law. State v.
Tindle, 104 N.M. 195, 198, 718 P.2d 705, 708 (Ct. App. 1986).
{35} Defendant asserts that he was high on methamphetamines during his September 18
interrogation at the McKinley County Detention Center, where he was already incarcerated
on an unrelated charge. He claims the drugs, combined with a lack of sleep, made him
hallucinate during the interrogation. He appears to assert, although it is somewhat unclear
in the record, that in describing his actions to police he was narrating what he saw in his
hallucinations, rather than describing his memory of reality. Defendant alleges that, in
concert with other aspects of the interrogation, which we detail below, the hallucinations
made his confession involuntary.
{36} The district court viewed with skepticism Defendant’s claims about the purported
hallucinations and their effect on his capacity. The court concluded, after hearing testimony
from Defendant and from his interrogators, that Defendant “was in full control of his
faculties when these interviews took place.”
{37} If faced with conflicting evidence, we defer to the district court’s factual findings,
so long as those findings are supported by evidence in the record. State v. Cooper, 1997-
NMSC-058, ¶ 26, 124 N.M 277, 949 P.2d 660 (citing Culombe, 367 U.S. at 603). We are
unable to view the witness’s demeanor or his manner of speech, and therefore are not in a
position to evaluate many of the aspects of witness credibility that the trier of fact may
evaluate. While we are not required to accept the district court’s conclusion that Defendant
was fully able to distinguish between reality and fantasy during his interrogation, we do give
8
credence to that factual finding, particularly because there is little in the record, apart from
Defendant’s own words, which suggests otherwise.
{38} Our own reading of the transcript discloses no indications that Defendant was
“narrating” from hallucinations. To be sure, there is a disjointed and rambling quality to
Defendant’s long and, at times, nonsensical responses. In addition to the lack of obvious
signs in the transcript that Defendant was describing things that did not exist, there is no
indication in the record that the law enforcement officers who interrogated Defendant were
aware of his purportedly vulnerable mental state. Case law makes clear that when
interrogators are unaware of, and therefore cannot exploit, the mental or emotional
vulnerabilities of a suspect, the crucial link between the confession and official action is
missing. See Connelly, 479 U.S. at 165; see also Fekete, 120 N.M. at 299, 901 P.2d at 717
(“[A] confession is not involuntary solely because of a defendant's mental state.”).
{39} It is clear, therefore, that Defendant’s assertion of hallucinations is insufficient to
render his confession involuntary. Our analysis does not end there, however, because we
must look to the totality of circumstances in making our determination as to the
voluntariness of Defendant’s confession.
{40} We turn next to Defendant’s claims that several statements made by his interrogators
were coercive to the point that they made his confession involuntary. All of the statements
were made by Agent Ness and were in response either to Defendant’s claims that he was not
involved in the killing, or that his involvement was only minimal. They were part of Agent
Ness’s larger effort to convince Defendant that confessing would be beneficial to his
case—an effort we discuss in greater detail below. The State stipulated that Agent Ness
made the statements that follow:
“You’re digging a hole you’re not gonna be able to get out of.”
“This is the one percent of the time, I tell you, if you keep quiet they’re
gonna hammer you.”
“[I]f you leave it like it is, you’re through . . . .”
Defendant’s interrogator made this statement after Defendant denied involvement in the
killing:
“Just because you don’t wanna be a rat, you’re gonna be treated as a monster
in court and you’re never gonna get out of prison.”
{41} These statements were part of an interrogation at the county jail that lasted about 90
minutes. They occur in rapid succession, about midway through the interrogation, and after
many minutes of long and somewhat rambling statements by Defendant. It is clear on
reading the transcript of the interrogation that Defendant essentially dominated the first half
of the discourse. About halfway through the interrogation, Agent Ness began steering the
9
interview by asking more pointed questions.
{42} Many cases have noted that threats and promises may rise to the level of coercive
behavior by police. See, e.g., Tindle, 104 N.M. at 199, 718 P.2d at 709 (holding that an
express promise of leniency “renders a confession involuntary as a matter of law”); cf. State
v. Lobato, 2006-NMCA-051, ¶¶ 16-21, 139 N.M. 431, 134 P.3d 122 (holding that an
interrogator leaving the “overall impression” that the accused would receive treatment if he
confessed does not amount to coercion); State v. Munoz, 111 N.M. 118, 121, 802 P.2d 23,
26 (Ct. App. 1990) (holding that a confession was voluntary where police told the accused
that “in his experience, first offenders who cooperated were less likely to go to jail than other
defendants”). We have also noted, however, that where promises are merely implied, they
are only one factor to be considered in the overall totality of circumstances. Tindle, 104
N.M. at 199-200, 718 P.2d at 709-10. Threats of physical violence, where credible, can
render a confession involuntary. See Arizona v. Fulminante, 499 U.S. 279, 286-87 (1991).
THREATS
{43} The critical difference in the case law between impermissibly coercive threats and
threats which do not cross the line is in how credible and immediate the accused perceives
the threat to be. Threats which the accused may perceive as real have been held to be
impermissibly coercive. See id. (holding that where defendant-inmate had a below-average
IQ and had already received “rough treatment” by other inmates and was a convicted child
murderer, a promise to protect him from further physical violence if he confessed amounted
to a “credible threat” of physical violence). On the other hand, threats that merely highlight
potential real consequences, or are “adjurations to tell the truth,” are not characterized as
impermissibly coercive. See, e.g., Tindle, 104 N.M. at 197-200, 718 P.2d 707-10 (holding
that police threat to the defendant that the court would “hang [your] ass” if the defendant did
not confess, a comment which was disputed by the State, did not render confession
involuntary). It is not per se coercive for police to truthfully inform an accused about the
potential consequences of his alleged actions. See United States v. Munoz, 150 F. Supp. 2d
1125, 1135 (D. Kan. 2001).
{44} Three of the four statements at issue here could be taken as threats: (1) “they’re
gonna hammer you”; (2) “you’re through”; and (3) “you’re gonna be treated like a monster
in court and you’re never gonna get out of prison.” All of these statements lie between the
two poles described above—the statements are more than adjurations to tell the truth, but
less than credible threats of violence. “You’re never gonna get out of prison” can reasonably
be taken to refer to a potential life sentence—well within reality for a first-degree murder
conviction, which is at issue in this case. “You’re gonna be treated like a monster in court”
appears to be a reference to the way those in court might perceive Defendant. The comment
may be a stretch or an exaggeration, but it is not out of the realm of a real possibility. Agent
Ness never specified what he meant by “you’re through,” or who he was referring to as
“they” in “they’re gonna hammer you.” Both statements, taken in isolation, could be taken
as a threat of physical violence. However, taken in context with the entire interrogation,
10
where Agent Ness repeatedly communicated to Defendant that he was not interested in
vengeance, and certainly not in physical vengeance, the statements—vague though they
are—cannot credibly be taken to threaten Defendant with physical violence.
{45} Viewing the interrogation as a whole, what Agent Ness appeared to be trying to tell
Defendant is that unless he explained himself to Ness—unless he confessed—he would not
be able to explain himself to a jury, which would have only the physical evidence with which
to judge Defendant. That physical evidence, Agent Ness told Defendant, was damning. In
truth, Defendant might have another chance to explain himself at trial, if he chose to testify.
Telling Agent Ness the truth, however, even if Defendant ultimately did not testify, could
accomplish the same goal. In short, Agent Ness’s statements constitute half-truths —a
reasonable expression of opinion about consequences to Defendant if he did not talk, but an
exaggeration when it came to telling Defendant that the interrogation with police was his
best chance to talk. The exaggeration is particularly acute when contrasted with the Miranda
warnings given, which highlight the accused’s right to remain silent and that anything said
may be used against him. On the other hand, there is some truth to Agent Ness’s assertions
to Defendant. If, as Defendant maintained for a short time during the interrogation, he
accidentally strangled Victim during a struggle, that could produce a markedly different
result at trial than if he strangled her in cold blood. It could bring about a conviction for
second-degree murder rather than first-degree murder.
{46} Our case law makes clear that deception is not coercive per se. See State v. Aguirre,
91 N.M. 672, 674, 579 P.2d 798, 800 (Ct. App. 1978) ("[D]eception, in itself, is not a basis
for ruling, as a matter of law, that a confession should be suppressed."). The degree of
deception is but one factor to consider in deciding whether a confession was given contrary
to the accused’s free will. Considering the deception as one factor in our analysis, we must
also consider Defendant’s probable reaction to those statements. Cooper, 1997-NMSC-058,
¶ 27 (citing Culombe, 367 U.S. at 603, 604). At the time of the confession, Defendant was
a 30-year-old man who, in the district court’s words, was “in full control of his faculties,”
and who had prior exposure to the criminal justice system.1 Agent Ness made veiled and
somewhat ambiguous threats to Defendant, but unlike the “mentally dull” teenage defendant
in Payne v. Arkansas, 356 U.S. 560, 567 (1958), or an illiterate defendant with mental
retardation, as in Culombe, 367 U.S. at 620, Defendant had an adult capacity to sort
exaggerated tough talk from real threats. There is certainly a point at which police threats,
promises, or deception, would cross the line into coercion, but that line has not been crossed
here.2
1
The record discloses that Defendant did not have any criminal convictions prior to
the incarceration mentioned in this case. The charges for which he was incarcerated do not
appear in the record.
2
Agent Ness also made one deceptive factual claim, and several others that might
have been deceptive, although given the incomplete record before us, it is impossible to
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{47} Defendant also asserts that because he maintained his innocence “for approximately
the first hour” of the interrogation before claiming culpability, and because he admitted to
actions that do not comport exactly with Victim’s manner of death, his confession was
involuntary. Defendant asserts that “[w]hen the product of a ‘confession’ is a misstatement
of how the homicide was committed, it must, by definition, not be a volitional act.”
(Emphasis added.) This assertion is untenable as a simple matter of self-evident fact.
Defendant is claiming, in essence, that people do not intentionally lie: he is asserting that
where a statement is factually inaccurate, it could not have been made on purpose. There
is no basis for assuming, out of hand, that an imprecise confession is involuntary. An
accused may be willing to admit the bare facts of a crime, but unwilling to confront the
unpleasant details. It does not mean that the bare facts are not true.
{48} Additionally, it is not definitively clear, as Defendant would have it, that he
confessed to something that did not happen. Defendant claims that he described putting a
type of choke hold on the Victim, while the Office of the Medical Examiner determined that
Victim’s death was caused by ligature asphyxiation, as well as by the plastic bag placed over
Victim’s head.
{49} This discussion centers around the following exchange between Agent Henrietta
Soland (“HS”) and Defendant (“JE”):
HS: And you, you had your, your arm around her. . .
JE: I just had my arm just, I was holding her down, I had my arm, I had my
arm up like this, okay.
HS: Like a choke hold?
JE: Yeah, but I was holding her down. I was sitting on the couch and she
was sitting beside me. . .and I was holding her, and all of a sudden I was
determine if they were. Agent Ness claimed that police had found Defendant’s “biological
lipids” on Victim’s body—a meaningless phrase which appears to be aimed at evoking DNA
evidence. Agent Ness also told Defendant that police had found Defendant’s fingerprints
on the bag over Victim’s head, evidence which does not appear in the affidavit or anywhere
else in the record. Agent Ness also strongly implied that Victim’s blood was found on
Defendant’s clothes, another evidentiary claim not supported in the present record. Because
this is an interlocutory appeal, there is insufficient evidence in the present record to
determine whether these last two claims are true. Although Defendant did not raise this
issue before this Court, we note that our Court of Appeals has previously noted that
misrepresentations “do not necessarily invalidate a confession.” Lobato, 2006-NMCA-051,
¶ 13; see also Frazier v. Cupp, 394 U.S. 731, 737, 739 (1969) (noting that while it was
relevant that police had falsely told the defendant that the co-conspirator had already
confessed, such circumstances were "insufficient . . . to make this otherwise voluntary
confession inadmissible"). In the event of a conviction, Defendant may raise these and other
issues on appeal.
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closing my eyes and it was like please and she stopped.
{50} It is true that Defendant acknowledges the suggestion by Agent Soland that he had
her in something “like a choke hold.” But his description immediately following that
acknowledgment does not sound much “like a choke hold” at all. We are also deprived of
whatever gesture Defendant gave when he said he had his arm “up like this.” Given the
disjointed descriptions that Defendant gave throughout the interrogation, we cannot say
definitively that he described killing Victim “accidentally” by “choking her to death with his
arm,” as Defendant now claims.
{51} The Office of the Medical Investigator concluded that Victim died due to asphyxia
from ligature strangulation combined with airway obstruction with a plastic bag. The bag
around Victim’s head, we must note, is fully consistent in the accounts of both Defendant
and the medical examiner. The only difference is that the medical examiner concluded that
a ligature—a wire, rope, cord or the like—had strangled Victim, while Defendant’s account
is ambiguous as to how the strangulation happened. Defendant does not mention anywhere
using a rope or cord of any sort, except when he described tying the bag around Victim’s
head.
{52} This is not the sort of discrepancy that supports a claim that Defendant confessed to
a crime he did not commit. It is, rather, a minor inconsistency. It is possible that this sort
of inconsistency suggests that Defendant did not commit the crime, but that is a question
ideally suited for a jury to determine. It is not a question we answer at this stage, and it does
not render his confession involuntary as a matter of law.
{53} Defendant also argues that his confession was involuntary because Agent Ness was
“proficient” at interrogation techniques, and because Defendant was in custody at the time
of the interrogation. He cites no case, and we find none, holding that the proficiency of an
interrogator is more or less likely to render a confession involuntary. As for the proposition
that the confession was rendered involuntary because Defendant was in custody, we merely
note that Defendant was incarcerated on an unrelated charge, and had been in jail for almost
two weeks at the time of his confession. The whole interrogation here lasted some 90
minutes. There are no allegations of food or sleep deprivation, or of any physical violence
or threats thereof. There are no allegations of overt threats, and no allegations of overt
promises. There can be little doubt that an interrogation inside a jail is inherently more
coercive than an interrogation in a suspect’s home, but it is not coercive per se.
{54} Because we conclude that the September 18 statement was voluntary, we need not
address Defendant’s argument that the later confession, on September 19 was tainted by the
first.
CONCLUSION
{55} We affirm the district court’s decision not to suppress Defendant’s confession. We
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reverse the district court’s decision to suppress the physical evidence seized as a result of the
search warrant. We remand for further proceedings consistent with this Opinion.
{56} IT IS SO ORDERED.
____________________________________
RICHARD C. BOSSON, Justice
WE CONCUR:
____________________________________
EDWARD L. CHÁVEZ, Chief Justice
____________________________________
PATRICIO M. SERNA, Justice
____________________________________
PETRA JIMENEZ MAES, Justice
____________________________________
CHARLES W. DANIELS, Justice
Topic Index for State v. Evans, No. 30,454 / 30,443
CT Constitutional Law
CT-CF Confession
CA Criminal Procedure
CA-AW Affidavit for Search Warrant
CA-CF Confession
CA-PA Probable Cause
CA-SZ Search and Seizure
CA-SW Search Warrant
CA-MR Motion to Suppress
CL Criminal Law
CL-CG Criminal law, general
CL-MU Murder
EV Evidence
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EV-SU Suppression of Evidence
15