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State v. Bregar

Court of Appeals of New Mexico

December 13, 2016

STATE OF NEW MEXICO, Plaintiff-Appellee,
DARLA BREGAR, Defendant-Appellant.


          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General for Appellee

          Bennett J. Baur, Chief Public Defender Matthew J. O'Gorman, Assistant Appellate Defender Mary Barket, Assistant Appellate Defender for Appellant


          J. MILES HANISEE, Judge

         {1} New Mexico State Highway 217, in Bernalillo County, begins in Yrisarri, running east a few miles before abruptly turning due north. From there the road tracks a straight line alongside the Sandia mountain range. Bernalillo County Sheriff's Office (BCSO) Deputy Axel Plum was working a late shift patrolling Highway 217 on the night of December 1, 2008, when he discovered a wrecked Jeep Cherokee by the side of the highway. Deputy Plum found two people on the ground near the Jeep: Defendant Darla Bregar and Thomas Spurlin. Bregar was on the driver's side of the car, her body contorted into a position that Deputy Plum would describe at trial as "grotesque." Spurlin was deceased, his body lying further from the Jeep on the passenger side. Bregar was taken to the hospital by ambulance and survived.

         {2} Shortly before 5:00 a.m., BCSO Deputies Lawrence Tonna and Gilbert Garcia went to the hospital to interview Bregar. Bregar admitted to driving the vehicle the night before, although she did not remember the crash. Deputy Garcia arrested her and obtained a warrant to have her blood drawn and tested. The result of the test showed that Bregar had a blood alcohol concentration (BAC) of 0.09 at the time of the blood draw.[1]

         {3} A grand jury indicted Bregar, charging her with one count of vehicular homicide, contrary to NMSA 1978, Section 66-8-101 (2004, amended 2016), and one count of per se DWI, contrary to NMSA 1978, Section 66-8-102(C)(1) (2008, amended 2016). At trial, Bregar testified that she did not remember the accident or whether she was driving the Jeep. She maintained that at the time of the accident, she had been wearing a knee brace that would have prevented her from operating a vehicle. Thus, Bregar's defense was that Spurlin was the driver, or at least that the State had failed to prove that Bregar had been driving beyond a reasonable doubt. The jury returned guilty verdicts on both counts charged in the indictment.

         {4} Bregar's appeal of her conviction concerns the district court's denial of her pretrial motion to suppress her statements to Deputy Tonna at the hospital and its admission of certain expert opinion testimony by Deputy Garcia.


         {5} Bregar's argument in district court and on appeal is that her inculpatory hospital- bed statements to the police officers were not voluntarily made, and therefore, their admission into evidence at trial violated her constitutional right to due process of law under the Fourteenth Amendment of the United States Constitution. See Colorado v. Connelly, 479 U.S. 157, 163 (1986). We apply a "totality of the circumstances" test to these claims, Aguilar v. State, 1988-NMSC-004, ¶ 7, 106 N.M. 798, 751 P.2d 178 (internal quotation marks and citations omitted), derived from the "three-phased process" set out in Justice Frankfurter's opinion for the United States Supreme Court in Culombe v. Connecticut, 367 U.S. 568, 603-05 (1961).

In the first phase, there is the business of finding the crude historical facts, the external, 'phenomenological' occurrences and events surrounding the confession. In other words, the court begins with a determination of what happened. We are not restricted to examining only those facts deemed dispositive by the trial court. . . . However, when faced with conflicting evidence, we will defer to the factual findings of the trial court, as long as those findings are supported by evidence in the record. . . .
The second phase is a determination of how the accused reacted to the external facts. This is an admittedly imprecise effort to infer-or imaginatively recreate-the internal psychological response of the accused to the actions of law enforcement officials.
The third phase is an evaluation of the legal significance of the way the accused reacted to the factual circumstances. This requires the application of the due process standards to the court's perception of how the defendant reacted. We are not required to accept the trial court's legal conclusion that the police officers did not act coercively.

State v. Cooper, 1997-NMSC-058, ¶¶ 26-28, 124 N.M. 277, 949 P.2d 660 (alteration, internal quotation marks, and citations omitted).

         {6} A defendant's right to seek exclusion of his or her statements to police on the basis of whether the confessed statement was "voluntary" is legally grounded upon an established principle that the use of "certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned." Connelly, 479 U.S. at 163 (internal quotation marks and citation omitted). The right to exclude a defendant's statement in state court is derived from Section 1 of the Fourteenth Amendment, which provides that "no [s]tate shall deprive any person of life, liberty, or property, without due process of law." See Connelly, 479 U.S. at 163.

         {7} Whether a statement to police officers is "involuntary" and therefore subject to exclusion under the Fourteenth Amendment does not turn solely on whether the defendant makes a statement of his own free will, however. For example, in Connelly, the defendant confessed to committing a murder as a result of "command hallucinations . . . [that] interfered with [the defendant's] . . . ability to make free and rational choices." Id. at 161 (internal quotation marks omitted). The Court noted that although "mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry." Id. at 165. Instead, there must be some indication that coercive police misconduct brought about the confession. Id.; see also Aguilar, 1988-NMSC- 004, ¶ 20 ("[A d]efendant's mental condition by itself without coercive police conduct causally related to the confession is no basis for concluding that the confession was not voluntarily given.").

         {8} The district court held a lengthy hearing on the motion to suppress. Four fact witnesses testified for the State about the circumstances surrounding Bregar's confession, and Bregar called a fifth witness to testify as an expert in "general nursing" regarding Bregar's injuries and mental state at the time of the interview-i.e., explaining "how [Bregar] reacted to the external facts." Cooper, 1997-NMSC-058, ¶ 27 (internal quotation marks and citation omitted). Bregar herself did not testify at the hearing on her motion to suppress. Although the district court made relatively scant findings of fact, the witnesses' testimony does not conflict in any significant material respect. We therefore summarize each witness's testimony before evaluating the voluntariness of Bregar's statements.

         {9} The first witness at the suppression hearing was Deputy Plum, who testified that Bregar was "nonresponsive" when he first saw her at the scene of the crash and that her breathing sounded "distressed[.]" Deputy Plum immediately called for emergency medical assistance, but did not attempt to reposition Bregar so that she could breathe more easily because he was afraid that doing so would aggravate her other injuries.

          (10} The second witness to testify at the suppression hearing was Emergency Medical Technician Carol Morgan (EMT Morgan). EMT Morgan testified that she arrived at the accident scene shortly after Deputy Plum called for medical assistance. Bregar was able to tell Morgan her name, but "[i]t was hard to make out what [Bregar] was saying." Morgan smelled alcohol on Bregar's breath and noted that Bregar was unable to observe events around her or comply with simple requests. Bregar's blood pressure was found to be within "the norm for being involved in an accident." Morgan and several other EMTs at the scene strapped Bregar to a long spine board and put her in an ambulance.

         {11} Hospital records show that Bregar had a broken jaw, several fractured ribs, seven broken vertebra, and a "subarachnoid hemorrhage that had an overlying hematoma, which means that she received a [blow] to her head, considered a traumatic injury." Bruising, gas, and fluids in and around Bregar's lungs and chest wall would have made it difficult for her to breathe. Bregar was receiving oxygen through a tube inserted into her nose.

         {12} EMT Morgan also recalled that hospital personnel assessed Bregar's mental capacity using the "Glasgow Coma Scale " (GCS). The GCS is a ubiquitous assessment of brain trauma using a patient's eye, verbal, and motor responses to instructions. Eye movements are assessed on a scale of 1 to 4, verbal responses on a scale of 1 to 5, and motor responses on a scale of 1 to 6. A GCS Score of 8 is comatose; 15 is considered "normal." Hospital records showed that Bregar's GCS Score was 12 when she was admitted, but that by the next day (it is unclear at what precise time this second assessment occurred), Bregar's GCS Score had reached 15.

         {13} The third witness to testify at the hearing on Defendant's motion to suppress was Deputy Tonna. At the time of the crash, Deputies Tonna and Garcia were both members of the BCSO Traffic Investigation Unit, and were dispatched to the scene to conduct an accident investigation. Deputy Tonna was the lead investigator, gathering evidence and documenting the scene of the crash, while Deputy Garcia took photographs and other measurements. Deputy Tonna noted that the damage to the Jeep was "consistent with it being involved in a rollover." He also observed a large bottle of Svedka vodka on the ground near the vehicle, "completely clean[, ] like it had just been placed there." Deputy Tonna was told by EMT Morgan that Bregar had a "strong odor of alcohol emanating from her breath, prior to being transported to the hospital."

         {14} Before interviewing Bregar, Deputy Tonna learned that other officers had already been dispatched to the hospital to conduct a DWI investigation, but had been turned away by hospital staff because Bregar "was [still] actively being treated[.]" The interview did not begin until 5:00 a.m., and was not recorded. Deputy Tonna described the interview as follows:

I started out by identifying ourselves. . . and then I asked [Bregar] if she knew where she was at. She said she was at the hospital. [I] then asked her what had happened with the crash, and at first she said that she didn't wreck. Then, I asked her again where she had been this evening, and she stated that her and Anthony had gone to her friend's, Myra's house, in Tijeras, New Mexico, and that while there, they stayed for two hours and had a few beers.
. . . .
[T]hen I asked her to describe what type of vehicle she had or she drove. She said she had a '97 Jeep Cherokee. Then, I asked her what their plans were after leaving from Myra's house, and she said that-her words were, "I was taking [Mr. Spurlin] home." Then, I asked her if anybody else drives her vehicle, and she said nobody drives her ...

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