{ "id": 1590303, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Timothy POST, Defendant-Appellant", "name_abbreviation": "State v. Post", "decision_date": "1989-11-07", "docket_number": "No. 11026", "first_page": "177", "last_page": "182", "citations": [ { "type": "official", "cite": "109 N.M. 177" }, { "type": "parallel", "cite": "783 P.2d 487" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "98 L.Ed.2d 508", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 11299338 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/347/0067-01" ] }, { "cite": "108 S.Ct. 510", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 989", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600480, 600249, 600631, 600773, 601448, 601963, 600239, 599407, 600979, 600793, 600919, 599929 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0989-03", "/us/484/0989-12", "/us/484/0989-09", "/us/484/0989-08", "/us/484/0989-01", "/us/484/0989-07", "/us/484/0989-02", "/us/484/0989-11", "/us/484/0989-06", "/us/484/0989-04", "/us/484/0989-10", "/us/484/0989-05" ] }, { "cite": "825 F.2d 572", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10547220 ], "opinion_index": 0, "case_paths": [ "/f2d/825/0572-01" ] }, { "cite": "104 N.M. 573", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594873 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0573-01" ] }, { "cite": "488 U.S. 33", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1495401 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/us/488/0033-01" ] }, { "cite": "104 N.M. 88", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594971 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0088-01" ] }, { "cite": "92 N.M. 347", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557227 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0347-01" ] }, { "cite": "601 F.2d 768", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 498674 ], "pin_cites": [ { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/f2d/601/0768-01" ] }, { "cite": "733 F.2d 1124", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 576021 ], "pin_cites": [ { "page": "1130-31" } ], "opinion_index": 0, "case_paths": [ "/f2d/733/1124-01" ] }, { "cite": "776 F.2d 1398", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1516343 ], "weight": 2, "pin_cites": [ { "page": "1404-05" }, { "page": "1405" } ], "opinion_index": 0, "case_paths": [ "/f2d/776/1398-01" ] }, { "cite": "580 F.2d 202", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 866083 ], "pin_cites": [ { "page": "203, 205" } ], "opinion_index": 0, "case_paths": [ "/f2d/580/0202-01" ] }, { "cite": "97 N.M. 592", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555096 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0592-01" ] }, { "cite": "430 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12124816 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "404-05" }, { "page": "1242-43" } ], "opinion_index": 0, "case_paths": [ "/us/430/0387-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "weight": 5, "year": 1981, "pin_cites": [ { "page": "484-85" }, { "page": "1884-85" }, { "page": "482" }, { "page": "1883-84" } ], "opinion_index": 0, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "748 F.2d 1371", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 638650 ], "opinion_index": 0, "case_paths": [ "/f2d/748/1371-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 7, "year": 1966, "pin_cites": [ { "page": "444-45" }, { "page": "1612-13" }, { "page": "475" }, { "page": "1628" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 825, "char_count": 16408, "ocr_confidence": 0.771, "pagerank": { "raw": 3.3370748299036226e-07, "percentile": 0.8739451605093579 }, "sha256": "790673fee06bbfd6314de211b5ca1e361c849f791c161e8cd8f443d3606c2f5d", "simhash": "1:d5ac6159d84a812f", "word_count": 2639 }, "last_updated": "2023-07-14T16:43:28.780053+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and MINZNER, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Timothy POST, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBIVINS, Chief Judge.\nDefendant appeals his convictions for commercial burglary, NMSA 1978, \u00a7 30-16-3(B) (Repl.Pamp.1984), and contributing to the delinquency of a minor, NMSA 1978, \u00a7 30-6-3 (Repl.Pamp.1984). A Ciobla County jury acquitted him of two other charges, arson, NMSA 1978, \u00a7 30-17-5(A) (Repl.Pamp.1984), and conspiracy to commit arson, NMSA 1978, \u00a7\u00a7 30-28-2 (Repl.Pamp.1984), 30-17-5(A). Defendant raises four issues, claiming trial court error in (1) failing to suppress a statement defendant gave the police after invoking his right to counsel; (2) admitting evidence of the extent and amount of damage caused by fire; (3) denying motion for mistrial based on claimed prosecutorial misconduct; and (4) denying motion for directed verdict based on insufficiency of the evidence.\n. We hold defendant\u2019s statements should have been suppressed. Because of acquittal on the arson charges, the evidentiary questions will not arise on retrial; therefore, we do not decide them. We hold the prosecutor\u2019s remarks during closing argument did not require a mistrial. Finally, we set aside the convictions of commercial burglary and contributing to the delinquency of a minor and remand for new trial on those counts without use of defendant\u2019s statements.\nI. Facts and Background\nOn or about January 28, 1988, Belen High School sustained extensive fire damage. Suspecting arson, the Belen police investigated. A \u201cCrimestoppers\u201d tip identified defendant\u2019s son, Raymond Post, as the arsonist. Detective Sanchez interviewed Raymond, who confessed. Raymond implicated his father in the confession.\nOn February 1, 1988, Sanchez arrested defendant and obtained a statement in which defendant admitted participating with his son in burning the school.\nII. Discussion\nA. Invocation of Right to Counsel\nBefore interrogating defendant, Sanchez read defendant his \u201cMiranda rights,\u201d Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), from a form. After the detective read the portion of the form that advised, \u201cIf you can not afford an attorney, one will be appointed for you at no cost to you,\u201d defendant said, \u201cI will need an attorney.\u201d Sanchez continued reading the form, which advised defendant if he decided to answer the questions now, without an attorney, he had the right to stop answering at any time until he could talk to an attorney. He then asked defendant if he understood his constitutional rights. Defendant initialed each question, indicating he did understand. At Sanchez\u2019s request, he then read and signed a waiver of rights, indicating his willingness to make a statement without an attorney present.\nAt the motion to suppress, defendant\u2019s attorney questioned Officer Sanchez and received the following responses:\nQ: Before you [obtained a statement from defendant], do you recall you telling him if he could not afford an attorney as part of his Miranda warnings that an attorney would be. appointed for him?\nA: Yes.\nQ: All right. Do you recall him telling you that he wanted to see an attorney and that he could not afford one?\nA: He said he would need an attorney. He did not say he wanted an attorney at that point. He said he would need an attorney.\nQ: Okay, you didn\u2019t make any effort at that time to stop the questioning to seek counsel for him, did you?\nA: At that point, no. He didn\u2019t say he wanted an attorney at the time.\nDefendant first denied any involvement in the arson, but upon being informed by Sanchez that Raymond had been taken into custody and had given a statement implicating his father, defendant made a verbal statement. After the Miranda rights had been read to him a second time, defendant gave a written statement concerning his part in breaking into the school, his actions at the school with his son, and his use of codeine.\nDefendant moved before trial to' suppress the oral and written statements given the police. In denying the motion, the trial court relied on United States v. Obregon, 748 F.2d 1371 (10th Cir.1984). The court\u2019s order denying the motion to suppress also contained a handwritten notation following the citation to Obregon, reading: \u201cFrom the totality of the circumstances the Defendant knowingly an [sic] intelligently waived his right to counsel.\u201d\nWaiver of counsel must be more than knowing and intelligent; it must be voluntary. In Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981), the United States Supreme Court held:\n[W]hen an accused has invoked his right to have counsel present during custodial interrogation, 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____ [A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation ... until counsel has been made4 available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. [Footnote omitted.]\nNo claim is made that defendant initiated any communication, exchange, or conversation. Thus, we believe Obregon is distinguishable. The defendant in that case, who had requested an attorney, also indicated that he waived his rights on a form that included the text for an advice of rights as well as a place for a waiver of rights. The court in Obregon, however, held that the defendant had waived his rights not only because he signed the form but also because he had initiated further communication with the police, believing that making a statement would be to his advantage. United States v. Obregon. In this case, we have no evidence that defendant initiated communication with the police, only that he signed the waiver form. The record indicates that Sanchez asked defendant to sign the place indicating a waiver of his rights. In addition, defendant made a verbal statement in response to the police informing him that his son had made a statement implicating him. Under these circumstances, we conclude the record shows a continuation of questioning, or its equivalent, after defendant claims he asserted his right to counsel.\nThe critical question is therefore whether defendant sufficiently invoked his right to counsel when he said he would need an attorney. The state contends that defendant\u2019s request was equivocal. Detective Sanchez testified that he understood defendant to mean he wanted an attorney for trial, not at that moment. Defendant testified otherwise, but since the trial court denied the motion, we assume it accepted Sanchez\u2019s version of what occurred.\nMiranda states that a suspect invokes his right to counsel when he \u201cindicates in any manner\u201d he wishes to consult an attorney. 384 U.S. at 444-45, 86 S.Ct. at 1612-13. Edwards speaks of a right that has been \u201cspecifically invoked,\u201d 451 U.S. at 482, 101 S.Ct. at 1883-84, and Brewer v. Williams, 430 U.S. 387, 404-05, 97 S.Ct. 1232, 1242-43, 51 L.Ed.2d 424 (1977), refers to clear expressions of desire for counsel. In State v. Dominguez, 97 N.M. 592, 642 P.2d 195 (Ct.App.1982), this court, applying the rule in Miranda, observed that if a defendant indicates that he wishes to consult with an attorney before speaking, there can be no questioning.\nIn light of these decisions, we hold that defendant here was attempting to assert his right to counsel and did not waive his right to an attorney. The response, \u201cI will need an attorney,\u201d leaves little doubt as to defendant\u2019s wishes. See Maglio v. Jago, 580 F.2d 202, 203, 205 (6th Cir.1978) (\u201cMaybe I should have an attorney\u201d sufficient invocation of right to counsel).\nAssuming the state is correct that defendant\u2019s statement was equivocal, the cases it relies on do not support its position. The fifth and ninth circuits hold that, where a suspect makes an equivocal assertion of right to counsel, all questioning must cease, except the police may attempt to clarify the suspect\u2019s desire for counsel. See United States v. Fouche, 776 F.2d 1398, 1404-05 (9th Cir.1985); United States v. Cherry, 733 F.2d 1124, 1130-31 (5th Cir.1984); Thompson v. Wainwright, 601 F.2d 768, 772 (5th Cir.1979). Questions aimed at clarifying the desire for counsel must be strictly limited to that purpose, and if clarification reveals the suspect wants counsel, all interrogation must stop until counsel is provided. United States v. Fouche, 776 F.2d at 1405.\nEven if defendant\u2019s response, \u201cI will need an attorney,\u201d could be considered equivocal, the questions which followed did not meet the criteria of Fouche and Cherry. Detective Sanchez did not attempt to clarify defendant\u2019s desire for counsel. He continued to read the remaining rights, had defendant initial each, and then obtained a waiver of those rights from defendant. This is not a permissible method to either clarify an accused\u2019s equivocal request for counsel or to waive the accused\u2019s successfully invoked right to counsel. Thus, even under Fouche and Cherry, the statements given by defendant must be suppressed.\nA heavy burden rests on the state to demonstrate an effective waiver of the fifth amendment right to counsel. Miranda v. Arizona, 384 U.S. at 475, 86 S.Ct. at 1628. The determination of the voluntariness of an alleged waiver of a suspect\u2019s right to counsel depends not merely upon a formal statement of waiver, but upon all the facts and circumstances of the particular case. State v. Greene, 92 N.M. 347, 588 P.2d 548 (1978). That burden was not satisfied here. The trial court erred in not suppressing defendant\u2019s statements.\nB. Prosecutorial Misconduct\nDefendant claims the prosecutor went \u201cbeyond the bounds of fair conduct\u201d when, in closing argument, the prosecutor told the jury, in effect, not to let defendant avoid responsibility for his actions by hiding behind his codeine addiction. Defendant\u2019s defense was that he was unable to form the requisite specific intent to commit commercial burglary due to the effects of alcohol and codeine he had ingested that day. Defendant moved for a mistrial based upon the prosecutor\u2019s statement, which the trial court denied.\nBecause of the likelihood that on retrial defendant will assert the same defense, which may invite a similar remark, we address this issue. We hold that the extensive defense evidence regarding defendant\u2019s prolonged codeine addiction following an ankle surgery in 1978 and his use of codeine and alcohol on the night of the arson effectively opened the door to the comment made by the prosecutor. See State v. Taylor, 104 N.M. 88, 717 P.2d 64 (Ct.App.1986) (where defendant opens the door to comments by the prosecutor, such comments are invited and do not constitute reversible error, even if otherwise improper).\nWe reject defendant\u2019s claim under this point and hold that the trial court did not err in denying the motion for mistrial.\nC. Sufficiency of the Evidence to Support Convictions\nDefendant contends that the verdicts of guilty on commercial burglary and contributing to the delinquency of a minor were against the weight of the evidence. He claims the trial court erred in denying his motion for a directed verdict.\nIn addressing this question, we are mindful of our holding herein that the state may not introduce defendant\u2019s statement on retrial. The question arises whether this case should be remanded for retrial without the statement, or whether defendant should be discharged because, without the statement, there is insufficient evidence to convict him.\nA recent United States Supreme Court decision, Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), addressed this issue. The Court held that, when a trial court erroneously admits evidence that is excluded on appeal, and the remaining evidence is insufficient to support a verdict, double jeopardy does not preclude a retrial. Instead, the appellate court must consider all the evidence admitted by the trial court when deciding whether there was sufficient evidence to support a conviction. If all of the evidence, including the wrongfully admitted evidence, is sufficient, then retrial following appeal is not barred. Thus, the Lockhart decision allows the state to retry a defendant and introduce other evidence of guilt not introduced at the first trial that might replace the wrongly admitted evidence. Cf State v. Austin, 104 N.M. 573, 725 P.2d 252 (Ct.App.1985) (reversing and discharging where without wrongfully admitted evidence there was insufficient evidence to support a conviction on retrial).\nWe find the Lockhart reasoning sound and adopt it as law. We will not speculate as to what additional evidence or alternate theories the state could have brought forward had the trial court properly excluded the inadmissible evidence. A contrary rule would force the state to \u201covertry\u201d its cases, to introduce all its available evidence, however redundant, to ensure that it could retry a defendant if some of its evidence is held on appeal to be inadmissible. United States v. Gonzalez-Sanchez, 825 F.2d 572, 588 n. 57 (1st Cir.), cert. denied sub nom. Latorre v. United States, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987). We recognize that the dissenting judges in Lockhart have suggested some distinction should be made between evidence that is suppressed due to its unreliability or lack of probative character and evidence that is stricken in compliance with evidentiary rules grounded in other public policies. We assume but need not decide that this distinction is appropriate. In this case, there is no suggestion that the evidence to be suppressed is unreliable or lacks probative value.\nFollowing Lockhart, we consider all the evidence admitted at trial, including defendant\u2019s statements, in determining whether retrial is permissible. We hold that retrial is permissible. Defendant\u2019s own statement, coupled with testimony that entry was unauthorized and that defendant\u2019s son was a high school student, provides sufficient evidence to convict on commercial burglary and contributing to the delinquency of a minor.\nAccording to the written statement, defendant had been taking codeine and drinking alcohol on the day of the incident. He was not \u201cthinking straight\u201d and both he and Raymond were in a \u201cwild mood.\u201d Raymond said, \u201c[T]he school is going down.\u201d Defendant stated he thought it wrong but was too intoxicated to understand. Raymond drove defendant\u2019s car to Belen High School, told defendant to \u201cwatch out for him,\u201d jumped the fence, and \u201cwas breaking things & li[g]hting fires.\u201d Raymond returned, moved the car, and went back into the school building. Defendant wrote, \u201cI know I should have stopped him but I was very drunk.\u201d Raymond came back to the car and told defendant, \u201c[Y]ou should do something too.\u201d Defendant crossed the fence with his son\u2019s help and went inside. \u201cI broke some windows while Raymond was setting fires,\u201d he wrote. When the alarm went off, the two left. A representative of the school testified that defendant \u25a0 had no authority to enter the school. Although there was no direct testimony that defendant\u2019s son was a minor, Raymond did testify that he was a high school student.\nThat evidence supports the convictions rendered. Reasonable minds could find that defendant entered Belen High School without permission; when defendant entered the high school he intended to commit arson; and defendant was capable of forming the intent to commit arson. Therefore, the trial court\u2019s denial of directed verdict on the commercial burglary charge was proper. Reasonable minds could also find that defendant helped or did not stop his son from committing arson; this encouraged his son to commit arson; defendant acted intentionally; and his son was under age eighteen. Therefore, the trial court\u2019s denial of a directed verdict on the charge of contributing to the delinquency of a minor was proper. Whether the state can replace it with other evidence is not to be decided on this appeal. See Lockhart v. Nelson.\nIII. Conclusion\nReversed and remanded for new trial consistent with this opinion.\nIT IS SO ORDERED.\nDONNELLY and MINZNER, JJ., concur.", "type": "majority", "author": "BIVINS, Chief Judge." } ], "attorneys": [ "Hal Stratton, Atty. Gen., Patricia A. Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Jerry Daniel Herrera, Albuquerque, for defendant-appellant." ], "corrections": "", "head_matter": "783 P.2d 487\nSTATE of New Mexico, Plaintiff-Appellee, v. Timothy POST, Defendant-Appellant.\nNo. 11026.\nCourt of Appeals of New Mexico.\nNov. 7, 1989.\nHal Stratton, Atty. Gen., Patricia A. Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJerry Daniel Herrera, Albuquerque, for defendant-appellant." }, "file_name": "0177-01", "first_page_order": 213, "last_page_order": 218 }