1

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-022

Filing Date: June 13, 2016

Docket No. S-1-SC-34667

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

MUZIWOKUTHULA MADONDA,

Defendant-Appellee.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY

Albert J. Mitchell, Jr., District Judge

Hector H. Balderas, Attorney General

Kenneth H. Stalter, Assistant Attorney General

Santa Fe, NM

for Appellant

Bennett J. Baur, Chief Public Defender

Mary Barket, Assistant Appellate Defender

Santa Fe, NM

for Appellee

OPINION

VIGIL, Justice.

{1} Defendant Muziwokuthula Madonda (Defendant) was interrogated following his

arrest for the murders of two men in Tucumcari, New Mexico. At the outset of the

interrogation, law enforcement officers advised Defendant of his Miranda rights, and he

unequivocally invoked his right to remain silent and his right to counsel. However, the

officers continued to interrogate Defendant, and Defendant eventually made incriminating

statements. Defendant then moved pretrial to have the statements suppressed, arguing that

they were obtained in violation of the prophylactic rules announced in Miranda v. Arizona,
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384 U.S. 436 (1966) and Edwards v. Arizona, 451 U.S. 477 (1981). The district court

granted Defendant’s motion to suppress the statements, and the State, in turn, filed this

interlocutory appeal. Because we hold that the officers failed to scrupulously honor

Defendant’s invocation of his Miranda rights, we affirm.

I. BACKGROUND

{2} On March 24, 2011, the New Mexico State Police were called to the Tucumcari Inn

after a relative found Bobby Gonzales and Gabriel Baca dead in the bathroom of room

number 126. The investigation, headed by New Mexico State Police Agent Josh Armijo, led

law enforcement to suspect Defendant had committed the murders. Relying in part on

information provided by Defendant’s former employer, Texas Rangers assisted the New

Mexico State Police in locating and arresting Defendant near Houston, Texas, on March 27,

2011. After his arrest, Defendant’s van was impounded and he was transported to the

Montgomery County Sheriff’s Office in Conroe, Texas.

{3} Defendant was questioned by law enforcement on three separate occasions following

his arrest. The first interrogation attempt occurred shortly after the arrest, at approximately

1:00 a.m., and was conducted by Texas Rangers Steven Rayburn and Jason Taylor. During

this interview, Defendant told the Rangers, “I will not talk,” invoking his right to remain

silent. At that point, the Rangers did not attempt to further interrogate Defendant concerning

the murders but did continue conversing with Defendant about what would happen to his van

and other belongings. Ranger Taylor asked Defendant for his consent to search Defendant’s

hotel room, which Defendant gave. Ranger Taylor then explained that the officers would

take an inventory of the contents of Defendant’s van and asked if Defendant would give the

officers permission to conduct a search of the vehicle. Defendant asked why the officers

needed his permission if they were going to search the van anyway, and Ranger Taylor

explained that officers conducting a search might “look a little deeper” because they would

be looking for evidence of criminal activity, not just creating an inventory of Defendant’s

belongings. Defendant refused to consent to the search of his vehicle. He did, however, ask

the Rangers if he could have his Bible, which was in the van. Ranger Rayburn explained that

he would have access to a Bible at the jail, but Defendant expressed that he preferred his

own Bible, which was easier to read because it had all his notes and markings in it. Ranger

Rayburn explained that he was not sure if Defendant would be allowed to have his own

Bible inside the jail and that someone else would make that decision after the inventory of

the vehicle. The conversation ended shortly thereafter and Defendant was taken to jail.

{4} Agent Armijo, Sergeant Matthew Broom, and Agent Kevin Massis of the New

Mexico State Police arrived at the Montgomery County Sheriff’s Office the following day.

While the New Mexico officers were en route to Texas, Ranger Taylor secured a search

warrant for Defendant’s van. After the three New Mexico officers arrived in Texas, Rangers

Taylor and Rayburn briefed them regarding the previous interview attempt. Ranger Rayburn

specifically advised the New Mexico officers about Defendant’s request for his Bible

because of the “possible significance” of the notes Defendant had written inside it. Agent
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Armijo and Sergeant Broom spent approximately thirty minutes discussing their plan for

interviewing Defendant. They determined that they needed Defendant’s Bible for the

interview, so they instructed Agent Massis, who was conducting the search of Defendant’s

van, to locate and provide it to them prior to the interrogation. The Bible was not included

on the search warrant return receipt, nor was it tagged into evidence. It was, however,

numbered and photographed so the officers could keep track of it, the photograph showing

Defendant’s name written on the front page.

{5} After receiving the Bible, Agent Armijo and Sergeant Broom met with Defendant on

March 28, 2011. This second attempt to interview Defendant gave rise to the issue we

address in this opinion.

{6} The interrogation on March 28, 2011, took place in the same interview room as the

meeting between Defendant and the Rangers the day before. Defendant, Agent Armijo, and

Sergeant Broom entered the room together. The officers each carried a notebook and Agent

Armijo also had a manila envelope, which he placed on the table as he entered the room. The

three men sat at a table in the corner of the room with Defendant seated between the two

officers. Less than a minute after entering the room, Agent Armijo advised Defendant of his

Miranda rights, which Defendant indicated he understood. Then, the following exchange

occurred:

Agent Armijo: Okay. Uh, with these rights in mind, do you uh, do

you have a problem sittin’ here and talking with us?

Defendant: Oh, I would like a lawyer please.

Agent Armijo: Okay, that’s more than fair. 

Defendant: Don’t know if you guys can help with that. I’ve been

here two days and no one has told me what’s going,

what’s going to happen or uh, I don’t know and

what’s the wait for, what exactly . . .

Agent Armijo: Okay, okay.

Defendant: Yeah.

Agent Armijo: Okay. Umm, so what, what, what’re you saying?

What are you asking me?

Defendant: I would like a lawyer. Talk to, to a lawyer first.

Agent Armijo: Okay, I understand that. But you said I, if I could help

you with something.
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Defendant: Uh . . .

Agent Armijo: With explaining to you why you’re here?

Defendant: No. I understand why I’m here. I don’t know if you

guys could help set me up with a lawyer or if it’s,

falls under a certain department or if you guys can

handle that. That’s all I’m trying to ask you.

{7} The conversation continued as Defendant and the officers discussed the process for

obtaining a lawyer. The officers explained that the court would likely appoint counsel at

Defendant’s arraignment, but the process would probably take a few days. The exchange

about obtaining a lawyer took approximately one minute, after which Agent Armijo

confirmed with Defendant, “You don’t have anything to say is what you’re telling me?” and

Defendant responded, “I don’t have anything to say.” The parties do not dispute that by this

point, Defendant had invoked both his right to counsel by saying, “I would like a lawyer,”

and his right to remain silent by saying, “I don’t have anything to say.”

{8} Next, Agent Armijo stood up and told Defendant, “Okay, sit tight for me for just a

second.” Sergeant Broom picked up the manila envelope and, at Agent Armijo’s request,

handed the envelope to Agent Armijo. Agent Armijo reached into the envelope, pulled out

Defendant’s Bible, and said to Defendant, “I just wanna double check real quick that this is

yours?” Defendant confirmed that it was his Bible and that he had asked the Rangers for it.

Agent Armijo then told Defendant that he could not give the Bible to Defendant because it

was being seized as evidence. Sergeant Broom confirmed with Defendant that he had

received another Bible in jail, but Defendant again explained that he would prefer to have

his own Bible because it had all his notes and markings in it. Sergeant Broom assured

Defendant that his Bible was “not going anywhere, okay? It’s staying with us.” Agent

Armijo then turned to leave the interrogation room, but Sergeant Broom remained seated at

the table with Defendant and Defendant’s Bible.

{9} As Agent Armijo walked toward the door, Defendant stopped him to ask “one more

question.” Defendant asked about having the money the Rangers seized from his wallet and

backpack applied to his commissary account at the jail so that he could buy warm clothes

because it was very cold in his cell. Agent Armijo told him that he could not make any

promises, but that he would “ask and see if they can put a rush on it.” Agent Armijo then

asked Defendant if there was anything else he would like Agent Armijo to tell the other

officers because this would be the last time Defendant would talk to him. Defendant replied,

“Mmm, no. If I could get the money so that I can get some warm clothes. That’s it. That

would be it. Thank you.” Agent Armijo again told Defendant, “Sit tight for me,” and left the

room.

{10} After Agent Armijo’s exit, Sergeant Broom remained in the interrogation room with
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Defendant. A few seconds passed, then Defendant asked Sergeant Broom about the drive

from New Mexico, and the two talked briefly about travel. Defendant told Sergeant Broom

that his favorite part of the country to drive through was “Spring Colorado [sic],” and

Sergeant Broom responded that he would “check it out.”

{11} Sergeant Broom then quickly changed the topic of conversation, drawing

Defendant’s attention back to his Bible by pulling it out of the envelope and asking

Defendant, “You do a lot of reading?” Defendant replied, “Yes, I try,” while Sergeant

Broom set the Bible down on the table and began flipping through the pages. Sergeant

Broom asked Defendant what his favorite verse was. Defendant laughed then asked Sergeant

Broom about his favorite Bible verse, to which Sergeant Broom responded, “Philippians

4:13.” See Philippians 4:13 (King James) (“I can do all things through Christ which

strengtheneth me.”) Defendant then remarked, “that’s the verse I need right now,” adding

that the officers probably thought the case would be a “slam dunk, . . . until [they heard]

what happened.” Sergeant Broom told Defendant that he “would love to hear what

happened” but that he could not because Defendant had requested a lawyer. Defendant said

that he wished he had a lawyer already because he knew from watching crime shows on

television that “it [was] dangerous to talk to [law enforcement] without a lawyer.” Sergeant

Broom reiterated that he would love to hear Defendant’s story, but he could not unless

Defendant said he did not want a lawyer after all, adding that Defendant would “say the

same story” anyway, whether or not he had a lawyer present. Defendant indicated that he

was conflicted about whether or not to talk to the officers, stating that he “would like

somebody to hear [his] side of the story,” but he was also concerned because he had heard

of cases where suspects had been wrongfully convicted after speaking to police.

{12} Agent Armijo, who had recently reentered the interrogation room, then asked

Defendant, “At this point, what damage can the truth do?” Sergeant Broom and Agent

Armijo then continued to use references to “the truth” to try to convince Defendant to waive

his right to counsel and give them a statement. Sergeant Broom incorporated Defendant’s

Bible, pointing to it and saying “this right here’s the truth . . . . That’s what I want, is the

truth.” Defendant said that he “miss[ed his] Bible” to which Sergeant Broom responded, “I

know.” Defendant then asked questions about what would happen if he made a statement and

whether it would make the process move faster. Sergeant Broom told Defendant that giving

a statement would help the officers discover the truth, and Agent Armijo explained that if

the truth “sen[t him] in a different direction” he would then have to “deal with” the fact that

Defendant was “not [his] guy.” Agent Armijo then reiterated that if the truth was that

Defendant was not the killer, it did not “make sense that the truth is gonna hurt [Defendant].”

Sergeant Broom then asked Defendant, “So you want to talk to me?” Defendant responded,

“I’ll talk, I’ll talk, and maybe, . . . you know, just put the truth out there, whatever it does.”

Before Defendant began telling his story, Agent Armijo stopped to “make sure” Defendant

understood his rights, and Defendant told the officers, “I understand I have a right not to

talk, but I’ve decided to talk now.”

{13} Defendant gave the officers a version of events in which he was being framed for the
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murders in Tucumcari. The officers did not believe his story and eventually ended the

questioning for the day. At this point, the officers secured a promise from Defendant that he

would come back and tell them the truth in the morning. The third interview took place the

following morning, March 29, 2011. Defendant ultimately confessed to the murders in

Tucumcari, as well as two other murders in Ohio. The State of New Mexico charged

Defendant with the two Tucumcari murders.

{14} Defendant subsequently filed a motion to suppress his statements made during the

March 28 and 29 interviews. The district court held a suppression hearing and ultimately

ruled in favor of Defendant, suppressing all statements from the interviews. Because

Defendant faces charges for first-degree murder, the State appealed the district court’s

suppression order directly to this Court. See State v King, 2013-NMSC-014, ¶ 2, 300 P.3d

732 (recognizing that “this Court has jurisdiction over interlocutory appeals in cases in

which a criminal defendant may be sentenced to life imprisonment”). Following oral

argument, we issued an order affirming the district court’s suppression of Defendant’s

statements. We now explain the reasoning underlying our order.

II. DISCUSSION

{15} “The standard of review for suppression rulings is whether the law was correctly

applied to the facts, viewing them in a manner most favorable to the prevailing party.” State

v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and

citation omitted). “The appellate court must defer to the district court with respect to findings

of historical fact so long as they are supported by substantial evidence.” Id. “[W]e review

de novo the district court’s application of the law to those facts.” King, 2013-NMSC-014,

¶ 4.

{16} Here, the district court found that during the second interview “Defendant advised

the officers that he did not want to speak and requested an attorney,” but the “officers

continued the interview.” Accordingly, the district court concluded, “The continued

discussion with . . . Defendant was a violation of both his State and Federal constitutional

rights to an attorney and to remain silent. All information obtained in the interviews shall be

suppressed.” On appeal, the State does not dispute the finding that Defendant invoked his

rights to counsel and to remain silent. The State contends that the finding that the interview

continued after Defendant’s invocation of the right to counsel was not supported by

substantial evidence, arguing that “the officers stopped the interview” and “[t]he officers did

not ask any questions about the investigation or otherwise engage in any conduct likely to

elicit an incriminating response until after [Defendant] brought up the investigation. . . .” We

are not persuaded by the State’s arguments and affirm the district court’s order suppressing

the statements.

A. The Officers Failed to Terminate the Interrogation After Defendant Invoked his

Right to Remain Silent and Right to Counsel
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{17} In Miranda, 384 U.S. at 444, the United States Supreme Court held that “the

prosecution may not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.” Those safeguards

include the requirement that law enforcement warn every defendant in police custody, prior

to any questioning, that the defendant “has a right to remain silent, that any statement [the

defendant] does make may be used as evidence against [the defendant], and that [the

defendant] has a right to the presence of an attorney, either retained or appointed.” Id. In

addition, Miranda requires that if at any point a defendant invokes the right to counsel by

indicating that “he wishes to consult with an attorney before speaking” or invokes the right

to remain silent by indicating that “he does not wish to be interrogated,” all interrogation

must cease. Id. at 444-45.

At this point [the defendant] has shown that he intends to exercise his Fifth

Amendment privilege; any statement taken after the person invokes his

privilege cannot be other than the product of compulsion, subtle or otherwise.

Without the right to cut-off questioning, the setting of in-custody

interrogation operates on the individual to overcome free choice in producing

a statement after the privilege has been once invoked.

Id. at 474.

{18} In Edwards, 451 U.S. 477, the United States Supreme Court “added a second layer

of protection to the Miranda rules” with respect to the right to counsel. Michigan v. Harvey,

494 U.S. 344, 350 (1990). The Edwards Court held that when the subject of a custodial

interrogation has invoked the right to counsel, “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.” 451 U.S. at 484.

Edwards set forth a “bright-line rule” that all questioning must cease after an

accused requests counsel. In the absence of such a bright-line prohibition, the

authorities through “badger[ing]” or “overreaching”— explicit or subtle,

deliberate or unintentional—might otherwise wear down the accused and

persuade him to incriminate himself notwithstanding his earlier request for

counsel’s assistance.

Smith v. Illinois, 469 U.S. 91, 98 (1984) (alteration in original) (citations omitted). In other

words, the officers must “scrupulously honor” a suspect’s rights, once invoked, by ending

the interrogation. King, 2013-NMSC-014, ¶ 8 (citing Michigan v. Mosley, 423 U.S. 96, 104

(1975)). “The interrogator is not at liberty to refuse to discontinue the interrogation or to

persist in repeated efforts to wear down the suspect so as to cause the suspect to change his

or her mind.” King, 2013-NMSC-014, ¶ 8. Thus, in order to resolve the instant case, we must

determine whether or not the officers scrupulously honored Defendant’s rights by ending the

interrogation.
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{19} “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but

also to any words or actions on the part of the police (other than those normally attendant

to arrest and custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980)

(footnotes omitted). This includes “repeated efforts to wear down [a suspect’s] resistance and

make [the suspect] change his mind” about invoking the rights described in the Miranda

warnings. Mosley, 423 U.S. at 105-06. Further, in determining whether a particular act or

question by an officer constitutes interrogation, courts consider evidence of the officer’s

intent because “where a police practice is designed to elicit an incriminating response from

the accused, it is unlikely that the practice will not also be one which the police should have

known was reasonably likely to have that effect,” especially in light of “[a]ny knowledge the

police may have had concerning the unusual susceptibility of a defendant to a particular form

of persuasion.” Innis, 446 U.S. at 301-02, n.7, 8.

{20} The record in this case demonstrates that the officers did not properly terminate their

interrogation of Defendant once he invoked his rights. After Defendant made clear that he

wanted the assistance of a lawyer and that he “[did not] have anything to say,” Agent Armijo

brought out Defendant’s Bible, which the officers had procured solely for use as an aid in

the interrogation. Agent Armijo testified at the suppression hearing that he showed the Bible

to Defendant only to determine whether it was in fact Defendant’s; however, the officers

knew Defendant had asked for his Bible the day before, they knew this was the Bible

recovered from Defendant’s van, they made plans to use the Bible during their interrogation,

and Defendant’s name was written on the front page. Based on these facts, it is obvious that

clarifying the Bible’s ownership was not the actual reason Agent Armijo pulled out the

Bible. Rather, it appears that Agent Armijo knew the Bible was Defendant’s and showed it

to him to keep him talking in hopes he would make incriminating statements. Instead of

immediately terminating the interrogation, as required by Miranda and Edwards, Agent

Armijo employed a technique he and Sergeant Broom had specifically “designed to elicit an

incriminating response from the accused.” Innis, 446 U.S. at 301, n.7. This is contrary to the

requirement that officers “scrupulously honor” a suspect’s invocation of rights by ending the

interrogation upon a defendant’s invocation of rights. King, 2013-NMSC-014, ¶ 8.

{21} After the first introduction of the Bible, Agent Armijo left the room, stating that this

would be the last time Defendant would talk to him, which suggested that the interrogation

was over. However, Sergeant Broom remained in the interrogation room with Defendant and

the Bible. Defendant briefly made small talk with Sergeant Broom about travel. Then,

Sergeant Broom immediately brought Defendant’s attention back to the Bible, asking him

about his favorite verse. Under different circumstances, such a question may be innocuous.

But given that the officers knew that Defendant’s Bible was important to him and that they

had planned to use it in the interrogation, we are convinced that Sergeant Broom instead

drew Defendant’s attention back to the Bible so that he could keep Defendant talking until

he eventually waived his rights and gave an incriminating statement. See Innis, 446 U.S. at

302, n.8 (“Any knowledge the police may have had concerning the unusual susceptibility

of a defendant to a particular form of persuasion might be an important factor in determining
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whether the police should have known that their words or actions were reasonably likely to

elicit an incriminating response . . . .”).

{22} Following the reintroduction of Defendant’s Bible, Sergeant Broom proceeded to try

to convince Defendant that he should waive his rights and tell the officers what happened.

Though Sergeant Broom’s statements that he would love to hear Defendant’s side of the

story were not inherently coercive, they were followed by direct attempts to convince

Defendant to waive his right to counsel by minimizing the importance of the right. Sergeant

Broom told Defendant that he would tell “the same story” to officers without a lawyer as he

would tell with a lawyer, essentially suggesting to Defendant that it would make no

difference in his case whether he waited for the assistance of a lawyer or not, so he might as

well just give a statement. This is an example of precisely the type of “subtle overreach” or

“badgering” the Edwards rule was designed to prevent. See Smith, 469 U.S. at 98 (explaining

that “all questioning must cease,” otherwise through “badger[ing] or overreaching—explicit

or subtle, deliberate or unintentional,” officers may “wear down the accused and persuade

him to incriminate himself” (alteration in original)).

{23} Although Agent Armijo indicated that he would not be talking to Defendant again

after Defendant invoked his rights, he reentered the interrogation room once it appeared that

Sergeant Broom might get Defendant to waive those rights. Agent Armijo and Sergeant

Broom then directed the focus of the conversation to the importance of telling “the truth,”

using the Bible as a symbol of truth. The officers’ statements indicating that telling the truth

could not do any harm or that it would be the most beneficial course of action for Defendant

to take directly undermined the Miranda warnings that any statements Defendant made

could be used against him in subsequent proceedings. See Cuervo v. State, 967 So.2d 155,

164-65 (Fla. 2007) (stating that officers engaged in conduct tantamount to interrogation by

instructing a suspect to tell “his side of the story” because it undermined the warning that

“anything he said could be used against him in a court of law”).

{24} Here, the officers did not honor Defendant’s invocation of his rights when they failed

to terminate the interrogation. Right after Defendant indicated that he wanted an attorney and

did not want to make a statement, the officers proceeded with techniques they had

specifically planned to employ during the interrogation, and then they undermined the very

warnings which had prompted Defendant to invoke his rights in the first place. Thus, the

district court did not err in finding that the officers failed to terminate the interrogation.

B. The Officers’ Failure to ‘Scrupulously Honor’ Defendant’s Rights Warrants

Suppression of All Subsequent Statements

{25} The “fundamental purpose [of the Edwards rule] is to [p]reserv[e] the integrity of an

accused’s choice to communicate with police only through counsel.” Maryland v. Shatzer,

559 U.S. 98, 106 (2010) (second and third alterations in original) (internal quotation marks

and citation omitted).
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[O]nce a suspect indicates that “he is not capable of undergoing [custodial]

questioning without advice of counsel,” “any subsequent waiver that has

come at the authorities’ behest, and not at the suspect’s own instigation, is

itself the product of the inherently compelling pressures and not the purely

voluntary choice of the suspect.”

Shatzer, 559 U.S. at 104-05 (second alteration in original) (quoting Arizona v. Roberson, 486

U.S. 675, 681 (1988)). Thus, after a suspect invokes the right to counsel, “not only must the

current interrogation cease, but he may not be approached for further interrogation until

counsel has been made available to him,” McNeil v. Wisconsin, 501 U.S. 171, 176-77 (1991)

(internal quotation marks and citation omitted), or there has been a break in custody of at

least fourteen days. See Shatzer, 559 U.S. at 105, 110. Otherwise, the statements are

“inadmissible as substantive evidence at trial, even where the suspect executes a waiver and

his statements would be considered voluntary under traditional standards.” McNeil, 501 U.S.

at 177.

{26} The officers’ failure to terminate the March 28 interrogation following Defendant’s

invocation of the right to counsel mandates suppression of the statements Defendant made

during that interview as well as his statements on March 29. Because Defendant was neither

provided an attorney, nor released from custody for the requisite fourteen days between his

request for an attorney and the subsequent interrogation, the March 29 interview was not

cured of its presumptive involuntariness. See Shatzer, 559 U.S. at 105, 110. Accordingly, we

hold that it was proper for the district court to suppress all statements Defendant made after

his initial request for counsel.

III. CONCLUSION

{27} The district court properly concluded that the officers continued to interrogate

Defendant after he invoked his right to remain silent and right to counsel in violation of his

constitutional rights. We affirm the district court’s order suppressing Defendant’s oral and

video statements.

{28} IT IS SO ORDERED.

____________________________________

BARBARA J. VIGIL, Justice

WE CONCUR:

____________________________________

CHARLES W. DANIELS, Chief Justice

____________________________________

PETRA JIMENEZ MAES, Justice
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____________________________________

EDWARD L. CHÁVEZ, Justice

____________________________________

JUDITH K. NAKAMURA, Justice