FROM THE DISTRICT COURT OF LEA COUNTY Mark Sanchez, District
Bennett J. Baur, Chief Public Defender David Henderson,
Assistant Appellate Defender Santa Fe, NM for Appellant.
H. Balderas, Attorney General Kenneth H. Stalter, Assistant
Attorney General Albuquerque, NM for Appellee.
JIMENEZ MAES, Justice.
In this case we examine the circumstances under which
detectives may question a juvenile defendant in the absence
of and without notification of a court-appointed attorney or
court-appointed guardian ad litem. Juan Rivas's
(Defendant) convictions arose from his killing of
eighty-three-year-old Clara Alvarez as she slept in her bed
on July 29, 2011. Defendant was fifteen years old at the
time. The State filed a petition alleging several delinquent
acts under the New Mexico Children's Code (Children's
Code) and added an allegation that Defendant was a serious
youthful offender under the Children's Code, given his
charge of first-degree murder. Evidence presented at trial
included two statements Defendant had made to detectives.
Defendant made the first statement prior to the filing of the
petition, and the second after the filing and after a
detention hearing was held and guardian and counsel were
appointed. Based on the evidence presented, a jury convicted
Defendant of first-degree murder, aggravated burglary,
tampering with evidence, and unlawful taking of a motor
vehicle. Defendant was then sentenced to life imprisonment.
Defendant appeals directly to this Court, as mandated by the
New Mexico Constitution and our Rules of Appellate Procedure.
See N.M. Const. art. VI, § 2; Rule 12-102(A)(1)
NMRA. We affirm Defendant's convictions and sentence.
FACTS AND PROCEDURAL HISTORY
In the early morning hours of July 29, 2011, Defendant,
fifteen years old at the time, snuck into Clara Alvarez's
backyard along with his thirteen-year-old friend E.S. Alvarez
was eighty-three years old and lived alone. Defendant and
E.S. remained in Alvarez's backyard for about an hour. As
they remained, Defendant searched for an entry point into the
house, fashioned a weapon out of a stick, and dispatched E.S.
to his grandmother's house to get scissors. E.S. left for
his grandmother's house but did not return to
Alvarez's house that day.
Defendant eventually broke into the house alone. He walked
through the house, entered Alvarez's bedroom, and stabbed
her multiple times with his stick and a knife from her
kitchen as she slept in her bed. After determining Alvarez
was dead, he drove away from the house in her car. Defendant
returned to the house multiple times over the next two days,
enlisting his younger brother, B.R., and other friends to
assist with disposal of Alvarez's body.
Just after midnight on August 1, responding to a welfare
check request, police officers entered Alvarez's home and
found her body in the bedroom, wrapped in a mattress pad and
telephone cord. The officers secured the house and called for
investigation by a detective unit. Investigators later
recovered a left palm print on Alvarez's washing machine,
which returned a match for Defendant's print.
Later that day, Sergeant Shane Blevins drove to
Defendant's house, hoping to question him. As Blevins
drove in the vicinity of the house, he passed a woman and a
young man on foot. When he arrived at the house, he observed
a vehicle matching the description of the vehicle taken from
Alvarez's house. Blevins then returned to the people he
had passed on the street, identified himself as a police
officer, and asked the young man his name. The young man
replied by giving the name B.R. and explained the woman with
him was his mother. Blevins told them he was looking for Juan
Rivas. On further questioning, Mrs. Rivas and the young man
agreed to accompany Blevins in his police cruiser to the
police station to answer additional questions. With the two
in tow, Blevins drove back to Defendant's house briefly
to drop off the Rivases' dog, and they arrived just as
two other individuals were arriving. The two individuals
identified themselves as Juan Rivas Sr. (Mr. Rivas) and B.R.
Based on those revelations, Blevins soon learned the young
man who had previously identified himself as B.R. was
actually Juan Rivas Jr.-Defendant in this case. Officers then
drove Defendant and his parents to the station for
Defendant arrived at the station at around 9:30 p.m. that
evening, and officers placed him in an interview
room. Detective Nathan Eubank entered the room
and introduced himself, and Defendant did the same. Eubank
asked Defendant for his date of birth; Defendant responded by
asking, "Why?" Eubank explained he was
investigating a murder and needed to establish some
preliminary information before they could talk about it.
"All right, " Defendant replied.
Eubank then explained he would read Defendant certain rights
he was granted as a juvenile, and Defendant asked, "Why
a juvenile, though?" Eubank explained the State was
"very particular" about Defendant's rights
because he was a juvenile, under eighteen years of age.
Defendant acknowledged the explanation, and Eubank added that
Defendant should say something if he failed to understand any
of the rights read. Defendant replied, "Yes, sir."
Eubank reiterated that he was investigating a murder and then
read Defendant an explanation of various rights, verbatim,
from a New Mexico juvenile advice of rights form.
Once finished, Eubank asked if Defendant had understood it
all, and Defendant hesitated, wondering about "the last
one." Eubank explained again that Defendant had the
right to have an attorney present as Eubank asked questions,
that Defendant was not required to speak with Eubank at all,
and that if he did speak, he had the right to stop speaking
at any time. On hearing that, Defendant asked, "Oh, so I
just stop talking to you?" Eubank replied, "Yeah,
you just say, 'I don't want to talk anymore.'
" Defendant suggested he understood, responding,
"All right, then, man." Eubank asked Defendant to
print and sign his name on the advice of rights form, which
would signify "that he understood all of that, "
and Defendant did so. (9} Eubank then showed
Defendant text at the bottom of the advice of rights form,
asked him to read it, and asked him to indicate by marking
where specified whether he was willing to speak with Eubank.
Defendant read the text aloud, which inquires of individuals
being questioned: "[a]fter being advised of your rights
and with those rights in mind, do you wish to voluntarily
give up those rights and talk to me now?" Defendant
responded affirmatively and indicated his affirmation by
marking "yes" as specified on the form. After
Defendant had signed and marked the form, Eubank noted that
with the legal "mumbo jumbo" out of the way, they
could discuss the matters Eubank was investigating.
Defendant explained he had chosen Alvarez's house to
burglarize because he "liked her car." He had
"just got angry" that night, he noted, and it had
gotten out of hand. He and E.S. had been together in
Alvarez's backyard, but eventually he had "socked
out" E.S., causing him to leave. Defendant had ripped
open a window screen to gain entry to the house, he
explained, and he had then walked from the laundry room to
Alvarez's bedroom. He had, he noted, taken a
"stick" from Alvarez's backyard into the
bedroom. Eubank asked if Alvarez had looked at Defendant at
that point; Defendant responded that she "didn't
have a chance" and that he "was just laughing"
as he stabbed her repeatedly with the stick. Defendant
acknowledged he had taken a knife from Alvarez's kitchen
and had stabbed her with that as well. He left the stick, he
noted, in Alvarez's bedroom. He maintained throughout the
interview that he had acted alone in breaking into
Alvarez's house and killing her.
Eubank then asked where Defendant had stabbed Alvarez.
"I don't know, " Defendant responded, "I
was just going at her"; he added he could feel
"happy" only after he "got out" all of
his anger. That accomplished, he noted, he had taken
rosaries, jewelry, and money from Alvarez's house. He
then burned his clothes, washed and disposed of his shoes,
and told his mother the police would find him. As Defendant
described the jewelry he had taken from Alvarez's house,
Eubank asked Defendant if earlier he had been wearing a ring
that belonged to Alvarez. Defendant responded that he had
been and asked Eubank if he wanted it. Defendant briefly
searched his pockets, located the ring, and handed it to
Eubank, confirming he had taken it from Alvarez's house.
Defendant acknowledged he had done some very
"serious" things. Eubank asked Defendant if he had
any remorse-to which Defendant responded, "Nah."
On August 2, 2011, the State filed a delinquency petition in
children's court, alleging Defendant had committed
first-degree murder, aggravated burglary, tampering with
evidence, and unlawful taking of a motor vehicle. The same
day, the State added a motion to join Juan Rivas Sr. as a
party to the petition. Defendant was held in a juvenile
Defendant appeared in children's court on August 3 for a
detention hearing, as prescribed by statute. At that
hearing-Defendant's first appearance in court in the
proceeding-the district judge advised Defendant he had
various rights, including a right to representation by an
attorney at all stages of the proceedings. The district judge
then appointed a public defender for Defendant, and the
public defender shortly thereafter entered a not guilty plea
on Defendant's behalf. Based on information Mr. Rivas
might have knowledge regarding the incidents of that evening
and might have interests diverging from Defendant's, an
assigned juvenile probation officer recommended a guardian ad
litem be appointed to represent Defendant's best
interests. Based on that recommendation, the court appointed
Defendant a guardian ad litem but made no other specific
findings supporting the appointment. The court's written
order specified only that "[t]he child has no parent,
guardian or custodian appearing on behalf of the child, or
his/her interests are in conflict with those of the
The State also filed on August 3 a notice of intent to seek
an adult sentence, alleging that Defendant was a serious
youthful offender. The children's court ordered the case
set for a preliminary hearing before the district court.
(15} The district court held the preliminary
hearing a few months later, on November 17, 2011. After
finding probable cause on each of the charges, the judge
bound Defendant over for trial in district court on each of
the four counts. Defendant was arraigned in district court on
December 19, 2011.
In the interim, as Defendant awaited his preliminary hearing
in district court, Mr. Rivas called Eubank on August 5 and
left a message indicating Defendant had an urgent desire to
speak with Eubank. On August 6, Eubank and his colleague,
Detective Conger, visited with Defendant at the juvenile
detention center, where he was being held. Eubank explained
Defendant's father had left word with the detectives that
Defendant hoped to speak with them, and asked if that was
true. Defendant responded affirmatively.
Much as he had a few days prior when they first met, Eubank
read Defendant the script verbatim from the standard juvenile
advice of rights form and asked Defendant to indicate where
appropriate on the form if he wished to speak with the
detectives. And again, Defendant indicated he would indeed
speak with them.
At this meeting, however, Defendant gave an account different
from the one he had given a few days earlier. Defendant
maintained that E.S. had actually participated in killing
Alvarez and that it had been E.S.'s plan all along.
Moreover, Defendant added, E.S. had revealed he was following
directions from a person named "Scooby." Scooby was
apparently "big and connected, " Defendant
explained, and had numerous tattoos. Defendant acknowledged
in this account that he had stabbed Alvarez, but he reported
E.S. had retrieved and actually used the knives from the
kitchen. It was also E.S.'s idea, Defendant added, to
take the money and jewelry from the house. E.S. had advised
Defendant to take the blame, Defendant insisted, and had
promised to "help" should Defendant be caught.
Defendant's case was set for trial in December 2012. On
December 6, 2012, just two business days before trial was
scheduled to begin, Defendant's counsel moved to suppress
the second statement Defendant had made to the detectives.
Eubank had made no effort to contact Defendant's counsel
prior to the second interview, counsel noted, and thus he
contended the interview had violated Defendant's federal
and state constitutional rights to counsel, as well as his
statutory right to counsel provided by the Children's
Code. Defendant's counsel made reference to the statement
Defendant gave in his second interview as Defendant's
"second" statement, and he explained a failure to
move to suppress this second statement would render him
"doubly ineffective." Defendant's counsel made
no motion of any kind, however, with respect to the first
The State advanced two arguments in response. The motion was
untimely under Rule 5-601 NMRA, the State noted, and its
appearance on the eve of what promised to be a lengthy trial
was highly prejudicial. And regardless of the timeliness of
the motion, the State added, no right had been violated
because Defendant had knowingly, voluntarily, and
intelligently waived his rights prior to giving the
The district court heard argument on Defendant's motion
on the day of jury selection-the opening day of trial. The
court reviewed an audio recording of a phone call between
Eubank and Mr. Rivas, a recording of Defendant's second
interview with the detectives, and the standard advice of
rights and waiver form Defendant had read and signed in the
course of both the August 1 and August 6 interviews. After
hearing arguments from the parties, the court noted the
motion was untimely and should be denied on that ground
alone. But even on the merits, the court explained, the
record revealed Defendant had desired to speak with the
detectives, he had been adequately advised regarding his
rights, and he had understood and answered questions
appropriately in the interview. Those factors, the district
court concluded, indicated Defendant had known he had a right
to an attorney and he had knowingly and voluntarily waived
the right. The district court thus denied the motion and took
up the trial as scheduled.
The State presented a comprehensive case at trial, including
numerous witnesses and at least two hundred exhibits, which
included recordings of Defendant's two separate
interviews with the detectives. Defendant was eventually
convicted of all four counts-first-degree murder, aggravated
burglary, tampering with evidence, and unlawful taking of a
motor vehicle-and sentenced to a term of life imprisonment.
Defendant appealed directly to this Court, contending (1) his
various trial counsel were ineffective for failing to move to
suppress statements he made in his August 1 interview, and
(2) the district court erred in denying suppression of
statements he made in his August 6 interview. See
N.M. Const. ...