1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:______________

3 Filing Date: October 15, 2015

4 NO. S-1-SC-34995

5 STATE OF NEW MEXICO,

6 Plaintiff-Petitioner,

7 v.

8 DeANGELO M.,

9 Child-Respondent.

10 ORIGINAL PROCEEDING ON CERTIORARI

11 Drew D. Tatum, District Judge

12 Hector H. Balderas, Attorney General

13 Kenneth H. Stalter, Assistant Attorney General

14 Santa Fe, NM

15 for Petitioner

16 Robert E. Tangora, L.L.C.

17 Robert E. Tangora

18 Santa Fe, NM

19 for Respondent
1 OPINION

2 CHÁVEZ, Justice.

3 {1} DeAngelo M. (Child) was thirteen years and eight days old when during a

4 custodial interrogation by three law enforcement officers, he made inculpatory

5 statements regarding a burglary, which connectedChild to a murder. Had Child made

6 his statements nine days earlier, his statements would not have been admissible

7 against him in any delinquency proceedings. NMSA 1978, § 32A-2-14(F) (2009).

8 Had Child been fifteen years old at the time of his statement, his statement would be

9 admissible if the prosecution proved by a preponderance of the evidence that Child’s

10 statement was elicited after his knowing, intelligent and voluntary waiver of his

11 constitutional and statutory rights. Section 32A-2-14(D), (E); State v. Martinez,

12 1999-NMSC-018, ¶ 14, 127 N.M. 207, 979 P.2d 718. However, because Child was

13 thirteen years old and his statement was given to a person in a position of authority,

14 there is a rebuttable presumption that his statement is inadmissable in any

15 delinquency proceedings. Section 32A-2-14(F).

16 {2} How does the prosecution rebut this presumption? The Court of Appeals held

17 that the prosecution must prove by clear and convincing evidence, through expert

18 testimony, that “Child had the maturity and intelligence of an average fifteen-year-old

19 child to understand his situation and the rights he possessed.” State v. DeAngelo M.,
2

1 2015-NMCA-019, ¶¶ 21, 23-24, 344 P.3d 1019. The Court of Appeals reversed the

2 district court’s denial of the motion to suppress because the prosecution did not meet

3 this burden and remanded for a new trial. See id. ¶¶ 23, 24. We granted the State’s

4 petition for certiorari, State v. DeAngelo M., 2015-NMCERT-002, to consider the

5 following issues: (1) whether the Court of Appeals erred by holding that the State

6 can only rebut the presumption of inadmissibility by showing that the thirteen- or

7 fourteen-year-old child has the intellectual capacity of an average fifteen-year-old;

8 (2) whether the Court of Appeals erred by holding that the State must rebut the

9 presumption of inadmissibility by clear and convincing evidence rather than by a

10 preponderance of the evidence; and (3) whether the Court of Appeals erred by

11 holding that the State can only rebut the presumption of inadmissibility through

12 expert testimony.

13 {3} We hold that Section 32A-2-14(F) requires the State to prove by clear and

14 convincing evidence that at the time a thirteen- or fourteen-year-old child makes a

15 statement, confession, or admission to a person in a position of authority, the child

16 (1) was warned of his constitutional and statutory rights, and (2) knowingly,

17 intelligently, and voluntarily waived each right. To prove the second element, the

18 recording of the custodial interrogation which resulted in the statement, confession,
3

1 or admission must prove clearly and convincingly that the child’s answer to open2 ended questions demonstrated that the thirteen- or fourteen-year-old child has the

3 maturity to understand each of his or her constitutional and statutory rights and the

4 force of will to insist on exercising those rights. Expert testimony may assist the fact5 finder in understanding the evidence or determining the facts necessary to satisfy this

6 requirement, but it is not essential. We conclude that the evidence in this case does

7 not prove that Child knowingly, intelligently, and voluntarily waived each right.

8 Therefore, his statement should be suppressed.

9 I. Section 32A-2-14(F) requires the State to rebut the presumption of

10 inadmissibility by clear and convincing evidence

11 {4} The Fifth Amendment to the United States Constitution provides individuals

12 a constitutional right against self-incrimination by providing that an individual shall

13 not “be compelled in any criminal case to be a witness against himself [or herself].”

14 U.S. Const. amend. V. In Miranda v. Arizona, the United States Supreme Court

15 articulated warnings that law enforcement must give to a suspect before the suspect

16 can be subjected to a custodial interrogation without compromising his or her

17 privilege against self-incrimination. 384 U.S. 436, 479 (1966). The Court explained

18 that:

19 Prior to any questioning, the person must be warned that he [or she] has
4

1 a right to remain silent, that any statement he [or she] does make may be

2 used as evidence against him [or her], and that he [or she] has a right to

3 the presence of an attorney, either retained or appointed.

4 Id. at 444. “Aftersuch warnings have been given, and such opportunity afforded him

5 [or her], the individual may knowingly and intelligently waive these rights and agree

6 to answer questions or make a statement.” Id. at 479. “Once warnings have been

7 given, the subsequent procedure is clear. If the individual indicates in any manner,

8 at any time prior to or during questioning, that he [orshe] wishesto remain silent, the

9 interrogation must cease.” Id. at 473-74.

10 {5} “[W]hile the federal constitution provides a minimum level of protection below

11 which the states may not descend, states remain free to provide greater protection.”

12 State v. Javier M., 2001-NMSC-030, ¶ 24, 131 N.M. 1, 33 P.3d 1 (alteration in

13 original) (internal quotation marks and citation omitted). “Hence, it is completely

14 within the Legislature’s authority to provide greater statutory protection than

15 accorded under the federal Constitution.” Id. The New Mexico Legislature did just

16 that by its enactment of the Delinquency Act, NMSA 1978, §§ 32A-2-1 to -33(1993,

17 as amended through 2009).

18 {6} The Delinquency Act provides children with “greater protections than those

19 constitutionally afforded [to] adults with regard to the admissibility of a child’s
5

1 statements or confessions.” State v. Adam J., 2003-NMCA-080, ¶ 3, 133 N.M. 815,

2 70 P.3d 805 (citing § 32A-2-14(C)-(G)). Relevant to our inquiry in this case, Section

3 32A-2-14(F) provides:

4 Notwithstanding any other provision to the contrary, no

5 confessions, statements or admissions may be introduced against a child

6 under the age of thirteen years on the allegations of the petition. There

7 is a rebuttable presumption that any confessions, statements or

8 admissions made by a child thirteen or fourteen years old to a person in

9 a position of authority are inadmissible.

10 {7} What is not clear from the text is how the prosecution is expected to rebut the

11 presumption. What is the prosecution’s burden of proof? What evidence will

12 overcome the presumption? This case requires us to construe Section 32A-2-14(F).

13 “Statutory interpretation is a question of law, which we review de novo.” State ex rel.

14 Children, Youth & Families Dep’t v. Djamila B. (In re Mahdjid B.), 2015-NMSC15 003, ¶ 12, 342 P.3d 698, 702 (internal quotation marks and citation omitted). “We

16 look first to the plain language of the statute.” N.M. Indus. Energy Consumers v.

17 N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105.

18 “However, we look not only to the language used in the statute, but also to the

19 purpose to be achieved and the wrong to be remedied.” Djamila B., 2015-NMSC20 003, ¶ 25 (internal quotation marks and citation omitted). “In doing so, we examine

21 the plain language of the statute as well as the context in which it was promulgated,
6

1 including the history of the statute and the object and purpose the Legislature sought

2 to accomplish.” State v. Office of the Pub. Def. ex rel. Muqqddin, 2012-NMSC-029,

3 ¶ 13, 285 P.3d 622 (internal quotation marks and citation omitted).

4 {8} One of the express purposes of the Delinquency Act is “to remove from

5 children committing delinquent acts the adult consequences of criminal behavior, but

6 to still hold children committing delinquent acts accountable for their actions to the

7 extent of the child’s age, education, mental and physical condition, background and

8 all other relevant factors.” Section 32A-2-2(A). This express purpose is consistent

9 with the overarching legislative goals of the Children’s Code, NMSA 1978, §§ 32A10 1-1 to -24-5 (1993, as amended through 2009), which ensures that children’s

11 constitutional and statutory rights are recognized and enforced:

12 The Children’s Code shall be interpreted and construed to

13 effectuate the following legislative purposes:

14 A. first to provide for the care, protection and wholesome

15 mental and physical development of children coming within the

16 provisions of the Children’s Code . . . ; [and]

17 B. to provide judicial and other proceduresthrough which the

18 provisions of the Children’s Code are executed and enforced and in

19 which the parties are assured a fair hearing and their constitutional and

20 other legal rights are recognized and enforced . . . .

21 Section 32A-1-3(A)-(B).
7

1 {9} Prior to 1993 no confession, statements or admissions made by a child under

2 the age of fifteen could be introduced against the child. NMSA 1978, § 32-1-27(F)

3 (1992). The legislative rationale for categorically excluding such statements was

4 because

5 [c]hildren of tender years lack the maturity to understand constitutional

6 rights and the force of will to assert those constitutional rights. Children

7 are encouraged to respect and obey adults and should not be expected

8 to assert their constitutional rights even under the most perfunctory

9 questioning by any adult, particularly an adult of authority. By

10 prohibiting the admission of statements made by children under age

11 fifteen, Section 32-1-27(F) encourages children to freely converse with

12 adults without fear that their statements will be used against them at a

13 later date. In contrast, an adult or a child over age fifteen is unlikely to

14 make an involuntary statement in a noncustodial, noncoercive

15 atmosphere or after receiving Miranda warnings. The additional

16 protection that Section 32-1-27(F) grants children under age fifteen

17 helps to balance these differences in sophistication.

18 State v. Jonathan M., 1990-NMSC-046, ¶ 8, 109 N.M. 789, 791 P.2d 64.

19 {10} However, in 1993 the Legislature revised the Children’s Code, and along with

20 it replaced Section 32-1-27 with Section 32A-2-14(F). Rather than excluding from

21 evidence all statements made by children under fifteen, the Legislature decided to

22 exclude from evidence only statements made by children younger than thirteen years

23 old. See § 32A-2-14(F). The Legislature chose to treat thirteen- and fourteen-year24 old children differently than children older than fourteen or younger than thirteen.
8

1 See NMSA 1978, § 32A-2-14(F) (1993); State v. Jade G., 2007-NMSC-010, ¶ 16,

2 141 N.M. 284, 154 P.3d 659 (“The fact that the Legislature drew a distinction

3 between children [of different ages] demonstrates its clear intent to treat the . . .

4 groups differently, and the plain language of this statute explains the nature of that

5 difference.”).

6 {11} By categorizing children into different age groups, the Legislature

7 distinguished between the different age groups’ intellectual and developmental

8 capacities to knowingly, intelligently, and voluntarily waive their Miranda and

9 statutory rights. See Adam J., 2003-NMCA-080, ¶ 20 (Alarid, J., specially

10 concurring). For example, although Section 32A-2-14 provides greater protections

11 for all children than does Miranda, the Legislature treats children fifteen and older

12 as having the intellectual and developmental capacity of adults to waive their

13 constitutional and statutory rights. See Jonathan M., 1990-NMSC-046, ¶ 8

14 (explaining that like adults, children over fifteen are unlikely to make involuntary

15 statements after Miranda warnings due to their higher level of sophistication).

16 {12} On the opposite end of the age groups are children younger than thirteen.

17 Unlike children fifteen and older, the Legislature precludes the introduction of

18 confessions, statements, or admissions against a child under the age of thirteen on the
9

1 allegations of a delinquency petition, regardless of the context in which or to whom

2 the statements were made. Section 32A-2-14(F); see Jade G., 2007-NMSC-010, ¶ 16.

3 The Legislature has made the policy decision that children younger than thirteen lack

4 the maturity to understand their constitutional and statutory rights and the force of

5 will to assert those rights. Accordingly, Section 32A-2-14(F) provides no exceptions

6 permitting “the admission of statements made by children under thirteen.” Jade G.,

7 2007-NMSC-010, ¶ 16.

8 {13} By creating fundamentally distinct protections for children fifteen and older

9 and for children younger than thirteen, the Legislature intended to “ ‘draw [a] line

10 between children who are too young to waive their rights and those who are not.’ ”

11 Adam J., 2003-NMCA-080, ¶ 8 (citations omitted). The Legislature chose not to treat

12 thirteen- and fourteen-year-old children categorically as belonging at one end or the

13 other of this childhood developmental spectrum. Some may lack the maturity to

14 understand their constitutional and statutory rights and the force of will to assert those

15 rights, and some may not.

16 {14} To address this uncertainty, under Section 32A-2-14(F) any statement,

17 admission, or confession of a child thirteen or fourteen years old is presumed to be

18 inadmissible unless the State rebuts the presumption. The State’s burden of proof is
10

1 not defined in the statute; therefore, it is our responsibility to make that

2 determination. State v. Valdez (In re Valdez), 1975-NMSC-050, ¶ 12, 88 N.M. 338,

3 540 P.2d 818 (citing Woodby v. Immigration Serv., 385 U.S. 276, 284 (1966)). The

4 State argues that it should only have to prove “by a preponderance of the evidence,

5 that [Child] was advised of [his] rights and knowingly, intelligently, and voluntarily

6 waived those rights.” The State maintains that it can rebut the presumption of

7 inadmissibility when “the district court determines that the child made a knowing,

8 intelligent, and voluntary waiver of rights” by utilizing the totality of circumstances

9 factors listed under Section 32A-2-14(E). If we were to agree with the State’s

10 argument, we would in essence be treating thirteen- and fourteen-year-old children

11 the same as fifteen-year-old children. We conclude that the Legislature did not intend

12 this result. The purpose of a burden of proofis to “ ‘instruct the factfinder concerning

13 the degree of confidence our society thinks he [or she] should have in the correctness

14 of factual conclusions for a particular type of adjudication.’ ” Addington v. Texas,

15 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan,

16 J., concurring)). The legislative history of Section 32A-2-14(F) and the importance

17 of protecting children younger than fifteen years of age from unknowing or

18 involuntary waivers of their rights leads us to conclude that clear and convincing
11

1 evidence is the proper burden of proof for rebutting the presumption of

2 inadmissibility under Section 32A-2-14(F). DeAngelo M., 2015-NMCA-019, ¶¶ 14-

3 16.

4 II. To overcome the presumption, the State must prove by clear and

5 convincing evidence that the thirteen- or fourteen-year-old child had the

6 maturity to understand his or her constitutional and statutory rights and

7 the force of will to invoke such rights

8 {15} We next address what clear and convincing evidence must be introduced by the

9 State to rebut the presumption of inadmissibility under Section 32A-2-14(F). The

10 State maintains that evidence relating to the Section 32A-2-14(E) factors should

11 suffice. Section 32A-2-14(E) provides:

12 In determining whether the child knowingly, intelligently and

13 voluntarily waived the child’s rights, the court shall consider the

14 following factors:

15 (1) the age and education of the respondent;

16 (2) whether the respondent is in custody;

17 (3) the manner in which the respondent was advised of the

18 respondent’s rights;

19 (4) the length of questioning and circumstances under which

20 the respondent was questioned;

21 (5) the condition of the quarters where the respondent was

22 being kept at the time of being questioned;
12

1 (6) the time of day and the treatment of the respondent at the

2 time of being questioned;

3 (7) the mental and physical condition of the respondent at the

4 time of being questioned; and

5 (8) whether the respondent had the counsel of an attorney,

6 friends or relatives at the time of being questioned.

7 {16} The Court of Appeals held generally that “the state must present evidence as

8 to both the benchmark to be reached and the qualities of the child that meet it and that

9 the thirteen-year-old child possessed personal faculties equivalent to what is required

10 to find an ability to waive rights that would satisfy an adult standard for waiver.”

11 DeAngelo M., 2015-NMCA-019, ¶ 13. The Court of Appeals determined that lay

12 witnesses lack the expertise to determine whether a thirteen- or fourteen-year-old

13 child has the intellectual characteristics that would render him or her the equal of an

14 average fifteen-year-old in understanding and appreciating the significance of a

15 Miranda waiver. See id. Consequently, the Court of Appeals would require expert

16 testimony, although it did not identify the type of expertise required. Id. ¶¶ 13-15.

17 {17} Although we do not agree entirely with the Court of Appeals, we conclude that

18 the Legislature intended a different analysis by drawing a distinction between fifteen19 year-old children and thirteen- and fourteen-year-old children, although the

20 Subsection E factors are also relevant. We hold that the State must first prove by
14 See also Thomas Grisso, Instruments for Assessing Understanding & 1

15 Appreciation of Miranda Rights (1998); Thomas Grisso, Juveniles’ Capacities to

16 Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134 (1980); I. Bruce

17 Frumkin, et. al., The Grisso Tests for Assessing Understanding and Appreciation of

18 Miranda Warnings with a Forensic Sample, 30 Behav. Sci. L. 673 (2012). In 2012,

19 Dr. Thomas Grisso published The Miranda Rights Comprehension Instruments

20 (MRCI), which provides instruments that have been updated since the publication of

21 his original Instruments for Assessing Understanding & Appreciation of Miranda

22 Rights.

13

1 clear and convincing evidence that at the time the thirteen- or fourteen-year-old child

2 made his or her statement to a person in a position of authority, the child had the

3 maturity to understand his or her constitutional and statutory rights and the force of

4 will to assert those rights. It is not necessary to prove that the child had the maturity

5 and intellectual capacity of an average fifteen-year-old child. How such a

6 determination could be made is not evident from the Court of Appeals’ opinion.

7 {18} The Court of Appeals stated that expert testimony would be required.

8 However, Child did not introduce evidence to the trial court to establish what kind

9 of expert might be able to derive an opinion about children’s capacity to waive their

10 Miranda and statutory warnings. In his brief in chief Child cited Thomas Grisso,

11 Adolescents’ Decision Making: A Developmental Perspective on Constitutional

12 Provisions in Delinquency Cases, 32 New Eng. J. on Crim. & Civ. Confinement 3,

13 12 (2006) as an example of potentially useful expert testimony. However, without 1
14

1 a record that establishes the validity and reliability of the expert’s methodology, we

2 are unable to make an informed decision about the utility of such expert testimony.

3 The undeveloped record before this Court prevents us from categorically affirming

4 the Court of Appeals’ broad holding, which would require expert testimony and

5 evaluations of the child, most likely by mental health professionals, in all cases

6 involving statements made by thirteen- or fourteen-year-old children to persons in a

7 position of authority.

8 {19} Absent an evaluation by an expert, interrogators in a position of authority can

9 preserve the evidence needed by the State to rebut the presumption of inadmissibility

10 for thirteen- and fourteen-year-old children under Section 32A-2-14(F). NMSA

11 1978, Section 29-1-16 (2006) requires law enforcement officers, with limited

12 exceptions, to electronically video and audio record their custodial interrogations.

13 See, e.g., State v. Spriggs-Gore, 2003-NMCA-046, ¶¶ 14-15, 133 N.M. 479, 64 P.3d

14 506 (noting that the interrogating law enforcement officer recorded and transcribed

15 “approximately five and one-half hours of conversation with Defendant”). In order

16 to obtain the clear and convincing evidence needed to rebut the presumption of

17 inadmissibility, the interrogator who is in a position of authoritymustfirst adequately

18 advise the thirteen- or fourteen-year-old child of his or her Miranda and statutory
15

1 rights and then invite the child to explain, on the record, his or her actual

2 comprehension and appreciation of each Miranda warning. This could be done by

3 having the child explain in his or her own words—without suggestions by the

4 interrogator—what each of the rights means to the child. An effective inquiry into

5 a thirteen- or fourteen-year-old child’s actual comprehension and appreciation of each

6 right under Miranda requires more than simple “yes” answers or a signed Miranda

7 notification and consent form on the child’s part, when the child may or may not be

8 able to fully process a formal recitation of the four warnings. It is through the child’s

9 articulation of his or her understanding that a fact-finder could assess whether the

10 child appreciated the function and significance of each right in the context of not only

11 police questioning, but in future court proceedings. A court deciding a motion to

12 suppress pursuant to Section 32A-2-14(F) would be able to assess the child’s actual

13 understanding of the Miranda rights and whether the child made a rational choice

14 based on the child’s appreciation of the consequences of his or her decision from

15 evidence developed at the time of his or her interrogation. Ultimately, a district court

16 judge should suppress any statement made by a thirteen- or fourteen-year-old child

17 unless the judge finds that the child clearly and convincingly demonstrated his or her

18 maturity to understand his or her constitutional and statutory rights and possessed the
16

1 force of will to assert those rights.

2 III. The agents failed to produce sufficient evidence to rebut the presumption

3 {20} Child was born on July 15, 1997. On July 26, 2010, the State charged Child

4 with one count of residential burglary contrary to NMSA 1978, Sections 30-16-3(A)

5 (1963) and 32A-2-3(A) (2009); one count of tampering with evidence contrary to

6 NMSA 1978, Sections 30-22-5 (2003) and 32A-2-3(A); and one count of larceny of

7 over $250 (but not more than $500) contrary to NMSA 1978, Sections 30-16-1(C)

8 (2006) and 32A-2-3(A). Around noon on July 23, 2010, eight days after Child’s

9 thirteenth birthday, Agent Daniel Blair transported Child and Child’s mother to the

10 Roosevelt County Law Enforcement Complex to interrogate Child. Child’s mother

11 was present during the entire interrogation.

12 {21} Agents Dan Aguilar and Daniel Blair, who are investigators with the District

13 Attorney’s office, and Detective John Mondragon, who is a detective with the

14 Portales Police Department, interrogated Child. When Agent Blair began advising

15 Child of his Miranda rights, Agent Blair appeared to agree with the Legislature’s

16 presumption that a thirteen-year-old child does not have the maturity to understand

17 his or her Miranda rights when he stated “[y]ou have to be advised of your rights

18 pursuant to rule 32A-2-14 of the Children’s Code Rules of Procedure and the
17

1 constitution. You probably don’t understand that because I don’t understand part of

2 that but it’s a rule that we gotta do. Okay?”

3 {22} The following exchange occurred between Agent Blair and Child as Agent

4 Blair attempted to read and explain to Child the right to remain silent:

5 Agent Blair: It tells us—you have the right to remain silent. You

6 don’t have anything—if you . . . you do not have to

7 say anything if you do not want to. I’ve been up for

8 a little while so I’m not reading properly. Like I’m

9 reading at a second grade level—just tell me. You

10 can probably read better. Do you understand that?

11 Child: Kind of. Yeah.

12 Agent Blair: What do you think that means?

13 Child: Don’t talk on your own behalf.

14 Agent Blair: Or you don’t have to talk to us if you don’t want to

15 and your mom will explain that.

16 Agent Blair initially and correctly invited Child to explain in his own words what

17 Child understood the right to remain silent means rather than accept Child’s unclear

18 response of “Kind of. Yeah.” Apparently dissatisfied with Child’s explanation of his

19 right to remain silent, Agent Blair simply corrected Child without inviting Child to

20 further explain his actual comprehension and appreciation of the right for a second

21 time. It is not clear from this exchange whether Child fully comprehended his right
18

1 to remain silent. Agent Blair also erroneously suggested to Child that his mother

2 could counsel Child as an equivalent substitute to an attorney. In any event, during

3 the entire exchange regarding Child’s right to remain silent, it was never developed

4 whether Child was able to use the information provided by the warning, grasp the

5 significance of his right to remain silent, and weigh his options and the consequences

6 of his decisions.

7 {23} Agents Blair and Aguilar hurriedly and equivocally warned Child of his

8 remaining rights.

9 Agent Blair: Anything you say can be used against you in court.

10 Okay on TV when they read these—they read them

11 to adults and that means that they’ve arrested them

12 but that’s not happening here okay? That’s, that’s

13 why I didn’t want to—uh—do you understand what

14 that means? Okay, you can talk to your parents,

15 your guardian, and an attorney. You got your

16 parent/guardian right here with you um. [Y]ou have

17 the right to have you [sic] parent/guardian parent

18 present during any questioning. If you can not

19 afford a lawyer, one may be appointed for you

20 before any questioning. These are the ones on TV.

21 Um, if you decide to answer questions um, without

22 an attorney, you can—you still have the right to stop

23 answering questions anytime. You have the right to

24 stop answering questions any time till you talk to an

25 attorney. Now you understand what I just said?

26 Child: Not really.
19

1 Agent Blair: You didn’t understand those? Which ones?

2 Child: —I think I understand that you can talk to the

3 Judge—no, you can talk without an attorney. And

4 then you can stop if it’s just like—too getting out of

5 hand. You can stop.

6 Agent Blair: —You’re right on the—

7

8 Child: —answering questions. Until you get an attorney.

9

10 Agent Blair: You’re absolutely right.

11

12 Agent Aguilar: —Correct.

13

14 Child: Okay.

15 This exchange failed to capture Child’s actual comprehension and appreciation of his

16 remaining rights. Agent Blair’s description of these rights can only be characterized

17 as confusing. Persons in a position of authority must advise thirteen- and fourteen18 year-old children of their constitutional and statutory rights in a clear and intelligible

19 manner if they want to rebut the presumption under Section 32A-2-14(F). The

20 manner in which a child is informed of his or her constitutional and statutory rights

21 is relevant to whether the child knowingly waived his or her rights. In this case, it is

22 impossible to ascertain Child’s comprehension and appreciation of his rights without

23 a clear and intelligible advisement of such rights. First, the manner in which Agent

24 Blair advised Child of the three remaining Miranda warnings, which included
20

1 mentioning rights read on television, suggesting that the rights only apply when

2 people are arrested, and explaining that Child was not under arrest, was at best

3 confusing and at worst clearly erroneous. Thirteen- or fourteen-year-old children

4 possess these constitutional and statutory rights whether or not they are under arrest.

5 It is not surprising that Child responded that he did “[n]ot really” understand his

6 rights as they were presented by Agent Blair.

7 {24} Second, Agent Blair asked Child to identify which warnings Child did not

8 understand. In response, the interrogation transcript appears to indicate that Child

9 confused the right to remain silent with the right to an attorney. Child explained that

10 he thought he understood that he had a right to talk without an attorney, but that Child

11 could then stop the interrogation only if Child thought the interrogation was “getting

12 out of hand” and not answer the questions until he obtained an attorney. Agents Blair

13 and Aguilar simply told Child that he was absolutely correct and moved on. Given

14 this exchange, we are left without any clear indication of whether Child actually

15 comprehended and appreciated each of the Miranda warnings.

16 {25} As he read Child his Miranda rights, Agent Blair also presented Child with a

17 notification and waiver form listing those rights, and Child wrote his initials next to

18 each right listed on the form. Both Child and his mother signed the notification and
21

1 waiver form.

2 {26} Child’s lack of understanding of hisrights and his inability to invoke his rights

3 was also demonstrated by what occurred during the interrogation after the forms were

4 signed. Child initially admitted that he broke into the victim’s home and stole

5 personal items identified by Agent Blair that belonged to the victim. However, Child

6 denied taking a gun or any ammunition from the victim’s home, and also denied

7 involvement in the victim’s shooting. When Agent Blair told Child that he believed

8 Child had shot and killed the victim, Child denied killing the victim, became very

9 upset, and started to cry. Child eventually told Agent Blair “I don’t want to talk

10 anymore.” Agents Blair and Aguilar acknowledged and confirmed Child’s invocation

11 of his right to remain silent. Agent Blair specifically responded, “You don’t want to

12 talk anymore? Okay,” while Agent Aguilar stated, “We’re done. Then.” The

13 interrogation stopped while Agents Blair and Aguilar collected a saliva swab sample

14 from Child and Child used the restroom.

15 {27} Following the break, Agents Blair and Aguilar reinitiated the interrogation,

16 reminding Child that he could ask to stop any further questions if he did not want to

17 talk.

18 Agent Aguilar: DeAngelo we want to—we just, I just want to ask

19 you a few questions okay? You admitted that you
22

1 went into the house and took some things and stuff

2 like that—that’s all we want to talk to you about

3 okay? We don’t want to talk to you about a gun or

4 we don’t want to talk to you about any of that other

5 stuff. Okay? Is that alright?

6 Child: (inaudible response)

7 Agent Aguilar: Okay, um, with that in mind—you just keep in mind

8 this, you can do exactly what you did the last time,

9 okay? When you’ve had enough and you don’t want

10 to talk to us anymore, you just tell us you don’t want

11 to talk anymore. Okay? Is that alright? (inaudible

12 response) Okay, now, when, when you into uh . . .

13 their house on Sunday—you remember? Yes?

14 Sunday or whatever day—over the weekend. While

15 they were gone. And the things that you took, where

16 did you hide them till you got rid of them? Or did

17 you get rid of everything?

18 In response, Child provided more details about the specific circumstances of how he

19 stole certain items from the victim’s home. Resuming the interrogation of Child after

20 Child said he did not want to talk does not scrupulously honor the invocation of an

21 individual’s right to remain silent that the law requires. State v. King, 2013-NMSC22 014, ¶ 8, 300 P.3d 732. “The moment that the unambiguous statement is made, the

23 interrogator must ‘scrupulously honor’ the suspect’s or person’s right by ceasing the

24 interrogation.” Id. When Child continued to answer questions after stating that he

25 did not want to talk, this provided additional evidence that Child did not possess
23

1 either the maturity to understand his rights or the force of will to assert those rights.

2 {28} Following this interview, Child’s charges were amended to (1) one count of

3 first degree murder contrary to NMSA 1978, Sections 30-2-1(A)(1) (1994) and 32A4 2-3; (2) one count of aggravated burglary contrary to NMSA 1978, Sections 30-16-

5 4(B) (1963) and 32A-2-3; (3) two counts of tampering with evidence contrary to

6 Sections 30-22-5 and 32A-2-3; and (4) one count of larceny over $250 (but not more

7 than $500) contrary to Sections 30-16-1 and 32A-2-3. Prior to trial, Child timely

8 filed a motion to suppress the inculpatory statements he made during the July 23,

9 2010 interview, arguing that the State failed to adequately rebut the presumption that

10 his statements were inadmissible pursuant to Section 32A-2-14(F).

11 {29} During the suppression hearing, the State presented testimony from Agents

12 Blair and Aguilar and Child’s teacher at the detention center where Child was held.

13 The district court found their testimony persuasive, noting in its decision letter that

14 Agents Blair and Aguilar both testified that “based on their experience in

15 interviewing children of similar age, [Child] was articulate, inquisitive and fully

16 aware of his constitutional rights, and [Child] appeared to be more mature and

17 intelligent than children of his age.” The district court noted that Child’s teacher

18 testified that Child was “well-read, inquisitive and readily corrects the grammar and
24

1 vocabulary of other juveniles detained in the Curry County Juvenile Detention

2 Center, and in his opinion, [Child] is more intelligent than the average juvenile

3 detainees in his age group.” The district court denied Child’s motion and determined

4 that Child “knowingly, voluntarily and intelligently waived his constitutional rights

5 prior to speaking with law enforcement, and, as a result, the State has overcome the

6 rebuttable presumption that the statements of [Child] are inadmissible.”

7 {30} On this record, we conclude that the State failed to meet the burden of proof

8 necessary to overcome the statutory presumption against admitting Child’s

9 statements. The testimony of the interrogating officers is not the type of evidence that

10 could overcome this presumption. What must be considered is the evidence from the

11 recorded interview, not the officers’ characterization of Child’s maturity to

12 understand and invoke his constitutional and statutory rights. The State’s evidence

13 concerning whether Child reads books, converses with adults, corrects other

14 children’s vocabulary and grammar, and seems more intelligent and mature than other

15 children is only indirectly related to whether Child actually comprehended and

16 appreciated each Miranda warning that he was given. While such evidence is

17 relevant, the court must first determine whether at the time of the interrogation the

18 child exhibited the maturity to understand each of his or her constitutional and
25

1 statutory rights and possessed the force of will to invoke such rights. Absent clear

2 and convincing evidence which proves that Child understood each right, Child’s

3 school performance is not material evidence. In this case, the transcript of the

4 interrogation falls far short of establishing any of the required showings.

5 Accordingly, the district court erred in denying Child’s motion to suppress because

6 the State did not meet its burden of rebutting the presumption of inadmissibility under

7 Section 32A-2-14(F) by clear and convincing evidence.

8 IV. Conclusion

9 {31} For the foregoing reasons, we affirm the Court of Appeals on different grounds

10 and reverse the district court’s denial of Child’s motion to suppress. We remand for

11 further proceedings in accordance with this opinion.

12 {32} IT IS SO ORDERED.

13 ______________________________

14 EDWARD L. CHÁVEZ, Justice

15 WE CONCUR:

16 ___________________________________

17 BARBARA J. VIGIL, Chief Justice
26

1 ___________________________________

2 PETRA JIMENEZ MAES, Justice

3 ___________________________________

4 RICHARD C. BOSSON, Justice

5 ___________________________________

6 CHARLES W. DANIELS, Justice