This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
STATE OF NEW MEXICO 2 Plaintiff-Appellant, 3

v. NO. 32,765 4 SISTO MONTOYA, 5 Defendant-Appellee. 6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Christina P. Argyres, District Judge 8 Gary K. King, Attorney General 9 Corinna Laszlo-Henry, Assistant Attorney General 10 Santa Fe, NM 11 for Appellant 12 Bennett J. Baur, Acting Chief Public Defender 13 Santa Fe, NM 14 for Appellee 15MEMORANDUM OPINION 1 WECHSLER, Judge. 2 {1} The State appeals from the district court’s order suppressing Defendant’s 3 statements based on a violation of Miranda v. Arizona , 384 U.S. 436 (1966). Our 4 notice proposed to affirm and the State filed a memorandum in opposition. We remain 5 unpersuaded by the State’s arguments and therefore affirm. 6 {2} The State’s issues relate to its central contention that the district court erred in 7 suppressing Defendant’s statements becau se the police continued questioning him 8 after he invoked his right to counsel. [DS 3; RP 129, 142, 163] “On appeal, we review 9 the [district] court’s findings of fact fo r substantial evidence and review de novo the 10 ultimate determination of whether a de fendant validly waived his or her Miranda 11 rights prior to police questioning.” State v. Barrera , 2001-NMSC-014, ¶ 23, 130 N.M. 12 227, 22 P.3d 1177. 13
{3} We agree that officers need not halt the questioning of a suspect who makes an 14 equivocal request for counsel. [DS 3] See State v. Castillo-Sanchez , 1999-NMCA-085, 15 ¶ 16, 127 N.M. 540, 984 P.2d 787. Here, however, we agree with the district court that 16 Defendant’s request for an attorney was unequivocal , lacked ambiguity, and was 17 further made under circumstances that a reasonable officer would have understood 18 Defendant to be confirming hi s expressed desire for an attorney. As set forth in our 192 notice, after the Detective told Defendant that polygraphs were typically given to 1 people who denied any touc hing, Defendant countered, “But I didn’t touch them.” 2 [RP 164] And when the Detective next as ked Defendant if hewould be willing to 3 submit to a polygraph, Defendant responde d, “Well, now, now I would ask for a 4 lawyer.” [RP 164] The Detective then again referenced the polygraph exam and 5 questioned Defendant if he w ould ask for an attorney. [RP 164] Defendant, in turn, 6 confirmed “yeah,” denied having touched the girls, and stated, “I don’t know what’s 7 going to happen here if they’re trying to tw ist it around or what.” [RP 164] In light of 8 Defendant’s two unequivocal statements indicating his desire for an attorney, followed 9 by his denials of wrongdoing and his expressed concern that things would be 10 “twist[ed] around,” [RP 164] we concludethat a reasonable officer would have 11 understood Defendant to request, and thenfurther confirm why he desired, an 12 attorney. See Barrera , 2001-NMSC-014, ¶ 28 (“Resoluti on of whether a valid waiver 13 of counsel has occurred depends upon the totality of the circumstances and the 14 particular facts surrounding each case, including consideration of the mental and 15 physical condition, background, experience and conduct of the accused.” (internal 16 quotation marks and citation omitted)). 17
{4} We thus do not agree that Defendant’s request for an attorney was somehow 18 contingent upon or limited in scope to advise ment by an attorney on the subject of a 193 polygraph. [MIO 8-9] We recognize that De fendant made his requests for an attorney 1 shortly after the Detective referenced a pol ygraph exam. [MIO 2, 9] However, in the 2 overall circumstances of the exchange, Defendant unequivocally re quested an attorney 3 and did so in the context of his declarati on that “I didn’t touch them” [RP 164] and his 4 expressed concern that “I don’t know what’s going to happen here if they’re trying to 5 twist it around or what.” [RP 164] Under suchcircumstances, Defendant’s request for 6 an attorney is clear. 7 {5} We further disagree with the State’s ar gument that Defendant reinstated the 8 conversation after requesting anattorney. [MIO 9-10] In this regard, the State views 9 Defendant as having interrupted the Detec tive when the Detective attempted to ask 10 “clarifying” questions as towhether Defendant wanted anattorney. [MIO 1, 2-3] In 11 our view, however, clarification was not needed because Defendant had unequivocally 12 and unambiguously stated, “Well, now, now I would ask for a lawyer.” [RP 164] 13 Moreover, as noted above, we do not view Defendant’s subsequent declaration that 14 “I haven’t touched these girls” [RP 164; MIO 3] and “I don’t know what’s going to 15 happen here if they’re tryi ng to twist it around or what” [RP 164] as reinstating the 16 conversation. Instead, we agree with the di strict court that Defendant’s statements 17 simply confirmed and explained the reason fo r his expressed desirefor an attorney. 18 [RP 166] 194 {6} We lastly address the State’s argument th at Defendant, later in the conversation 1 when the Detective returned to whether Defendant wantedan attorney, appeared to 2 change his mind about wanting an attorn ey. [MIO 11; RP 164] Any equivocation on 3 Defendant’s part, however, was immaterialbecause, at this point, Defendant had 4 already invoked his right to an attorney and had not reinitiated th e conversation. Any 5 further questioning should have already ceased until Defendant was provided an 6 attorney . See State v. Bailey , 2008-NMCA-084, ¶ 9, 144 N.M. 279, 186 P.3d 908 7 (providing that once an accused invokes his or her right to counsel, he or she cannot 8 be subject to any further interrogation until counsel has been made available unless 9 the accused initiates further communication). 10
{7} For the reasons set forth in our cale ndar and above, we af firm the district 11 court’s suppression ruling [RP 163] based on the violation of Defendant’s Miranda 12 rights. 13
{8} IT IS SO ORDERED. 14

__________ ______________________ 15 JAMES J. WECHSLER, Judge 165 WE CONCUR: 1

________________________________ 2 RODERICK T. KENNEDY, Chief Judge 3

________________________________ 4 MICHAEL D. BUSTAMANTE, Judge 5