{ "id": 1577337, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Richard E. LUCERO, Defendant-Appellant", "name_abbreviation": "State v. Lucero", "decision_date": "1981-05-07", "docket_number": "No. 4848", "first_page": "126", "last_page": "129", "citations": [ { "type": "official", "cite": "96 N.M. 126" }, { "type": "parallel", "cite": "628 P.2d 696" } ], "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": "430 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12124816 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/430/0387-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "88 N.M. 198", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840053 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0198-01" ] }, { "cite": "94 N.M. 780", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573154 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/94/0780-01" ] }, { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "91 N.M. 672", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571165 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/91/0672-01" ] }, { "cite": "92 N.M. 336", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557046 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0336-01" ] }, { "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": "90 N.M. 192", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870419 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0192-01" ] }, { "cite": "397 U.S. 742", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058257 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0742-01" ] }, { "cite": "68 Cal.Rptr. 645", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1968, "opinion_index": 0 }, { "cite": "262 Cal.App.2d 350", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2202758 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/cal-app-2d/262/0350-01" ] }, { "cite": "349 So.2d 1196", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9771339 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/so2d/349/1196-01" ] } ], "analysis": { "cardinality": 530, "char_count": 8865, "ocr_confidence": 0.828, "pagerank": { "raw": 1.9152698429558468e-07, "percentile": 0.7322349681390691 }, "sha256": "6c277fe4be7cd4e889621b4c2baa29ad497cc26a4d0f95467831f54fe3f552e0", "simhash": "1:7588337fe202d75d", "word_count": 1450 }, "last_updated": "2023-07-14T16:25:27.930698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, C. J., and WOOD, J, concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Richard E. LUCERO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nANDREWS, Judge.\nRichard Lucero appeals from his conviction on two counts of commercial burglary. The following events gave rise to Lucero\u2019s appeal.\nLucero, two other men and a woman were arrested by Officer Heshley on suspicion of commercial burglary. The three men were handcuffed, given their Miranda warnings, and placed in the officer\u2019s patrol car. Officer Heshley secretly turned on a tape recorder on the front seat of the patrol car, and then left the three men alone while he inventoried their car.\nWhen Officer Heshley returned to the patrol car he told the three men, \u201c[y]ou might want to listen to this tape,\u201d and played back part of the tape for them. According to Officer Heshley, the tape contained inculpatory statements.\nOn the way to the detention center and after they had heard their recorded conversation, the three suspects initiated a conversation with the officer in which they made several incriminating statements. Lucero was given his Miranda rights again after he arrived at the detention center. He signed a written waiver of his rights and gave a statement admitting his participation in the burglaries. Officer Heshley subsequently destroyed the taped conversation.\nAt a motion hearing to suppress the statements Lucero made after hearing the tape, Officer Heshley stated that he made the secret recording \u201cto see what they were saying.\u201d At trial, the officer testified that he recorded the conversation \u201cas a safety precaution for myself and also to hear what\u2019s going on in my police car when I\u2019m not in it.\u201d\nTwo issues are raised on appeal: (1) whether the trial court erred in denying Lucero\u2019s motion to suppress his oral and written statements because they were involuntary; and, (2) whether Lucero was denied his right to due process and to confront witnesses against him because of the destruction of the tape recording.\nInitially, Lucero contends that recording of his communication with his confederates constitutes an unlawful incursion into his Fourth Amendment rights. We disagree.\nIt appears to be the general rule that a prisoner in jail has no reasonable expectation of privacy and that the custodians of such a detention center have the right to exercise constant surveillance of inmates, including eavesdropping on their conversations. This rule has been held to include electronic surveillance while a person is under detention in a police building and not yet formally imprisoned.\nThe question at hand is whether the rule applies to arrested persons confined in a police vehicle; we think it does. Once a person is taken into custody by law enforcement authorities, his right to privacy has been effectively diminished, and he has no reasonable expectation that his conversation will be private.\nBrown v. State, 349 So.2d 1196 (Fla.App. 1977); see also, People v. Chandler, 262 Cal.App.2d 350, 68 Cal.Rptr. 645 (1968). When they sat in Officer Heshley\u2019s patrol car, these suspects had no reasonable expectation of privacy. Thus, Lucero\u2019s oral statement was not the \u201cfruit\u201d of an unlawful seizure of evidence.\nThe question then, is whether the officer exerted \u201can improper influence\u201d when he played the recorded conversation back to Lucero.\nTo be admissible, a confession must be free and voluntary; that is, it must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.\nBrady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In reviewing the trial court\u2019s ruling to admit defendant\u2019s statements, this Court must view the facts in a light most favorable to the trial court\u2019s decision. State v. Bloom, 90 N.M. 192, 561 P.2d 465 (1977). Admission or exclusion of evidence resides within the sound discretion of the trial court, and absent an abuse of discretion, the trial court will be affirmed. State v. Greene, 92 N.M. 347, 588 P.2d 548 (1978). Although the trial court stated that what occurred in the police car was an \u201cinterrogation in the sense of Brewer, his conclusion that Officer Heshley\u2019s purpose in playing the tape to defendant was to elicit additional inculpatory statements, does not require a holding that defendant\u2019s second statement was involuntary as a matter of law.\nIn State v. Gallegos, 92 N.M. 336, 587 P.2d 1347 (Ct.App.1978), this Court stated two prerequisites for the admission of incriminating statements made by a defendant in the presence of the police; that the defendant was advised of his Miranda rights, and that the statements were voluntary. In this case, Miranda warnings were given to Lucero. The remaining question is whether the statements made by Lucero in the patrol car and shortly after reaching the detention center were voluntary.\nIn State v. Aguirre, 91 N.M. 672, 579 P.2d 798 (Ct.App.1978), this Court adopted the test for \u201cvoluntariness\u201d established in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973):\nIn determining whether a defendant\u2019s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances \u2014 both the characteristics of the accused and the details of the interrogation.\nThe only evidence offered at the suppression hearing was the testimony of Officer Heshley. Defendant never, in any way, contradicted the officer\u2019s testimony, which was: (1) the officer played a part of the tape but asked no questions; (2) he did not threaten to use the tape against defendant; (3) the conversation en route to the police station was initiated by defendant and his confederates; and, (4) the only content of the tape would be conversation among the co-defendants. Under these uncontroverted facts, we cannot reach the conclusion that defendant\u2019s will was overborne. State v. Aguirre, supra. While the playing of the tape can be likened either to an \u201cadjuration to tell the truth\u201d or \u201cdeception\u201d, as discussed in Aguirre, these two \u201citems\u201d were not, in themselves, a basis for suppression; they were simply an aspect of the totality of the circumstances. Under the above circumstances we cannot hold that Lucero\u2019s will was overborne and cannot say that the trial court erred in holding, in the totality of the circumstances, that defendant\u2019s statements were voluntary.\nLucero next contends that he was denied due process of law and his right to confrontation because material evidence was destroyed.\nWhere evidence is destroyed, defendant must show: (1) that the state either breached some duty or intentionally deprived the defendant of evidence; (2) that the improperly \u201csuppressed\u201d evidence was material to the guilt or innocence of the accused; and, (3) that the suppression of the evidence prejudiced him. State v. Lovato, 94 N.M. 780, 617 P.2d 169 (Ct.App. 1980); Chacon v. State, 88 N.M. 198, 539 P.2d 218 (Ct.App.1975). We need not decide whether or not the first two prongs of this test are met because it is clear that the last element is not present. Lucero can show no prejudice from the destruction of the tape.\nThe evidence before the trial court was that Officer Heshley recorded over defendant\u2019s first statement. The prosecutor never had access to the statement, and the officer did not testify as to the statements made on the tape. The matter was only raised during cross-examination. On appeal, defendant argues that:\nThe tape may have indicated that Lucero only committed one of the burglaries and that his co-defendants had committed the other one. Lucero may have owed his friends a favor and they may all have figured that it was better for only one of them to go to jail than all three.\nDefendant\u2019s assertion that he was prejudiced by the destruction of this evidence consists of mere speculation, and flies in the face of his and his co-defendant\u2019s signed statements. It was never suggested to the trial court that any such hypothesized evidence would be found on the destroyed tape.\nThe trial court did not err in refusing to grant Lucero\u2019s motion for a dismissal on the basis of the unavailability of the tape recording. Defendant Richard Lucero\u2019s conviction is affirmed.\nIT IS SO ORDERED.\nHERNANDEZ, C. J., and WOOD, J, concur.\n. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).\n. Defendants were given their Miranda rights a second time while in the patrol car; however, it is not clear whether this occurred before or after the tape was played for the defendants.\n. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).", "type": "majority", "author": "ANDREWS, Judge." } ], "attorneys": [ "John B. Bigelow, Chief Public Defender, Andrea L. Smith, Asst. Appellate Defender, Santa Fe, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Carol Vigil, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "628 P.2d 696\nSTATE of New Mexico, Plaintiff-Appellee, v. Richard E. LUCERO, Defendant-Appellant.\nNo. 4848.\nCourt of Appeals of New Mexico.\nMay 7, 1981.\nJohn B. Bigelow, Chief Public Defender, Andrea L. Smith, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Carol Vigil, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0126-01", "first_page_order": 154, "last_page_order": 157 }