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State v. Alvardo

Court of Appeals of New Mexico

June 24, 2019

STATE OF NEW MEXICO, Plaintiff-Appellant,
v.
GABRIEL ALVARDO, Defendant-Appellee.

          APPEAL FROM THE DISTRICT COURT OF LEA COUNTY Gary L. Clingman, District Judge

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellant

          L. Helen Bennett, P.C. L. Helen Bennett Albuquerque, NM for Appellee

          OPINION

          MEGAN P. DUFFY, JUDGE.

         {¶1} The State appeals, pursuant to NMSA 1978, Section 39-3-3(B)(2) (1972), the district court's order suppressing Defendant's written statements, made while he was alone in a room at the police station after he had invoked his right to counsel. We reverse and remand.

         BACKGROUND

         {¶2} Defendant, a certified massage therapist, allegedly penetrated Victim's vagina with his finger during a session. Victim reported the incident to the police later that day. After Victim underwent a sexual assault nurse examiner (SANE) exam the following afternoon that confirmed injury to her vaginal walls and a tear to her labia, the police went to Defendant's home and asked him to come to the station to give a statement. Defendant agreed and drove himself to the station that afternoon. An officer interviewed Defendant in an audio and video-recorded interview room.

         {¶3} After some introductory conversation, Defendant made several potentially incriminating statements. The officer advised Defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), after which the following exchange took place:

Defendant: I would rather speak first with an attorney. Can I do that?
Officer: That's your-That's your right.
Defendant: Can I do that right now without going to jail? Can I get an attorney first, get together with you in this same room if we have to, and talk to you?
Officer: I'm gonna make a phone call... and we're going to make a decision on that.

         The district court found that that this was an invocation of Defendant's right to an attorney. Defendant and the officer continued talking for about ten more minutes before the officer ended the interview.

         {¶5} In that period, Defendant continued to talk with the officer, discussing his religion, family, and a prior conviction. Defendant did not specifically discuss the incident with Victim, and the officer did not ask Defendant questions about the incident. The officer finally ended the interview, saying, "You know what, take a second. Let me take a break. You know, we'll take a break from each other. Give- give me a minute; I gotta run and get something anyway." {5} Defendant asked if he could call his mother with his phone since she might be worrying about him. The officer said, "I'll tell you what, ... let me run and get something and I'll come-I'll come right back." Defendant asked if he could have a piece of paper and a pen, and the officer said yes and provided them to Defendant. The officer asked Defendant if he had any weapons, briefly searched him, and took his keys. The officer said he would find out if Defendant would be able to call his ...


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