This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,570 9 JUAN GARCIA MURO, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 12 Gary L. Clingman, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 James W. Grayson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Will O’Connell, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22

MEMORANDUM OPINION 23 CASTILLO, Judge. 242 Defendant appeals his conviction for sec ond degree murder. He raises a single 1 issue, challenging the admission of his taped confession. For the reasons that follow, 2 we affirm. 3 BACKGROUND 4 Defendant was arrested on su spicion of murder pursuant to a warrant. He was 5 subsequently taken to an interview room at the police station for questioning. The 6 officer opened the interview by explaining th at she was investigating the murder of 7 Darrell Blagg. The officer proceeded with the Mirandawarnings, including the 8 standard advice that Defendant had the ri ght to counsel. The officer then asked 9 Defendant if he wanted to speak to her, and he answered affirmatively. Defendant 10 then signed a waiver of rights statement, and the interview proceeded. 11 The officer explained that Defendant had been arrested for murder and 12 intimidation of a witness, and asked De fendant what had happened. Defendant 13 initially denied involvement. However, after the officer informed Defendant that she 14 had a great deal of information implicating him in the crime, Defendant told her that 15 a third party named Billy Kelly had murdered the victim. Defendant contended that 16 his only actual involvement had been to sell the gun used to kill the victim and other 17 guns belonging to the victim. When the o fficer explained that the evidence did not 18 support his position, Defendant admitted that he had been at the house at the time of 193 the murder, and stated that he saw Billy Kelly shoot the victim. The officer then 1 informed Defendant that a convenience store video showed Billy Kelly at the store at 2 the time of the murder, and that witnesses had stated that Billy Kelly’s car was not in 3 the driveway at the time of the shooting. 4 After a pause Defendant asked when hecould make a phone call, and indicated 5 that he wanted to call his brother Adam. Th e officer indicated that he could call at that 6 time, and asked if Defendant wished to call anyone else. In response Defendant said 7 he wanted to call his sister because “I gue ss I am gonna need my lawyer for this one.” 8 The officer immediately asked, “Do you want a lawyer now? Is that what you’re 9 asking?” Defendant replied, “No. I need to have her call one.” 10 The officer then retrieved Defendant’s cell phone and left th e interview room. 11 Defendant proceeded to make a series of calls, the first of which reached an answering 12 machine. Defendant then pl aced a call to his sister-in-law, told her that he had been 13 arrested for murder, and asked her to inform Adam. Finally Defendant called his 14 sister. After telling her that he had been arrested for murder, Defendant indicated that 15 he had been at the scene and knew who did it, but that it was not him. A second 16 officer, who had entered the room moment s before, then asked Defendant if they 17 could talk about it further. The first officer returned to the interview at about that 18 time. Defendant told his sister that the officers wanted to talk and that his cell phone 194 had very little time remaining. Then De fendant hung up, and the interview resumed. 1 Defendant provided a brief summary of his story to the second officer. In 2 response the officer reiterated that they kne w Billy Kelly was not at the residence at 3 the time of the shooting. Defendant then admitted shooting the victim and, for the 4 remaining thirty minutes of the interview, proceeded to provide details about the 5 shooting. 6 Below, Defendant filed a motion to suppress his statement to the police on 7 grounds that the officers had impermissibly continued to questi on him after he had 8 invoked his right to counsel. The districtcourt found that De fendant had knowingly 9 and voluntarily waived his rights, and that his reference to counsel in the course of the 10 interview was “equivocal at best.” The di strict court therefore concluded that the 11 continued questioning was permissible, and denied the motion. This ruling is 12 challenged on appeal. 13 STANDARD OF REVIEW 14 “A ruling on a motion to suppress evidence presents a mixed question of law 15 and fact.” State v. Rivera , 2008-NMSC-056, ¶ 10, 144 N.M. 836, 192 P.3d 1213. 16 Generally speaking, we revi ew factual findings under a s ubstantial evidence standard, 17 and we review de novo whether the district court correctly applied the law to the facts. 18 See id. Because there is no dispute as to the underlying facts in this case, we review 195 the district court’s ultimate determination de novo. 1 DISCUSSION 2 “In order to protect a defendant’s ri ght against self-incrimination, law 3 enforcement officers must, before beginni ng questioning, inform a person in custody 4 (1) of the right to remain silent, (2) of the prospect that any statement made may be 5 used as evidence against him or her, and (3) of the right toan attorney.” State v. 6 Bailey , 2008-NMCA-084, ¶ 3, 144 N.M. 279, 186 P. 3d 908. “However, any of those 7 rights may be waived, provided the waiver is made voluntarily, knowingly and 8 intelligently.” Id. (internal quotation marks omitted). In this case it is undisputed that 9 Defendant was fully advised, and that he waived his rights at the beginning of the 10 interview. Subsequently however, Defendantclaims to have invoked his right to 11 counsel. The issue on app eal concerns the proprietyof the questioning which 12 continued thereafter. 13 Generally speaking, once a suspect ha s invoked his right to have counsel 14 present, he is not subject to further interrogation until counsel has been made available 15 to him. Bailey , 2008-NMCA-084, ¶ 9 (quoting Edwards v. Arizona , 451 U.S. 477, 16 484-85 (1981)). However, the suspect must clearly articulate his desire to have 17 counsel present. Id. ¶ 10. “[O]fficers need not halt the questioning of a suspect who 18 makes an equivocal request for counsel.” State v. Castillo-Sanchez , 1999-NMCA- 196 085, ¶ 16, 127 N.M. 540, 984 P.2d 787 (discussing Davis v. United States , 512 U.S. 1 452, 459 (1994)). 2 In this case, the only statement that mi ght be regarded as a request for counsel 3 occurred when Defendant indicated that he wanted to call his sister because, “I guess 4 I am gonna need my lawyer for this one.” Defendant contends that this should be 5 regarded as an unequivocal invocation of the right to counsel. We disagree. 6 Although we lack authority addressing the precise language at issue in this case, 7 analogous statements have been evaluated. For example, a suspect’s question, “ I can 8 ask for an attorney here?” was deemed “at best ambiguous” and was therefore not 9 treated as an invocation of the right to counsel. State v. Bravo , 2006-NMCA-019, ¶ 10 17, 139 N.M. 93, 128 P.3d 1070. The questions , “Do I need an attorney?” and “Who 11 can help me?” have been deemed similarly ambiguous. State v. Barrera , 2001- 12 NMSC-014, ¶ 31, 130 N.M. 227, 22 P.3d 1177 (addressing the former question); 13 Castillo-Sanchez , 1999-NMCA-085, ¶ 17 (addressing the latter question). 14 Perhaps the best example is found in Bailey ; there, a suspect’s statement, “I 15 don’t think I should say anything else without seeing a lawyer,” was deemed 16 equivocal on two levels. 2008-NMCA-084, ¶ 11. The prefatory “I don’t think I 17 should” language could have signified th at the suspect was merely considering 18 whether to demand a lawyer, and the “anything else” language created ambiguity as 197 to the topical scope of the intended limitation. Id. The same ambiguities are 1 presented in this case. The prefatory “Iguess” language “could reasonably have been 2 interpreted to mean that he was considering whether he needed a lawyer but had not 3 yet decided to demand one.” Id. And in light of the “for this one” language, the 4 officer could have been “uncertain whether Defendant did not want to talk about the 5 details of . . . the immediate topic of disc ussion” (ie, the fact that the police had 6 evidence indicating that Billy Kelly was not the shooter), “or wh ether he referred to 7 any further discussion of any kind.” Id. By analogy, therefore, we conclude that 8 Defendant’s statement was insufficiently clear to convey to the officer that he wanted 9 an attorney. 10 In this context, when an equivocal re quest is made, officers need not stop to 11 seek clarification. Castillo-Sanchez , 1999-NMCA-085, ¶ 16. As a result, the officer 12 was under no obligation to seek clarification in this case. Nevertheless, immediately 13 after Defendant referred to counsel th e officer observed “good police practice,” 14 Bailey , 2008-NMCA-084, ¶ 11, by as king, “Do you want a lawyer now? Is that what 15 you’re asking?” In reply Defendant stated, “N o. I need to have [my sister] call one.” 16 Defendant contends that this rectified the preceding ambiguity and should be deemed 17 an effective invocation of the right to c ounsel, such that the subsequent questioning 18 was impermissible. Once again, we disagree. 198 As previously stated, officers are only required to cease questioning when a 1 clear, unequivocal request for an attorney is made. Castillo-Sanchez , 1999-NMCA2 085, ¶ 16. Like his preceding statement, De fendant’s response to the officer’s inquiry 3 did not clarify any request for an attorney , principally because he answered “No.” 4 And although Defendant followed this denial w ith a statement of intent to have his 5 sister call a lawyer, he gaveno indication when the assist ance of counsel was desired. 6 His comment could therefore have reasonably been understood to reflect an intention 7 to obtain counsel at some indeterminate point in the future. 8 Nor did Defendant’s ensuing course of conduct indicate that he was requesting 9 an attorney. See generally id. at ¶17 (looking at subsequent conduct in connection 10 with an ambiguous statement). Although Defendant was immediately provided his 11 cell phone, he made several phone calls to other individuals before calling his sister, 12 and even then he made no reference to counsel, despite having ample opportunity to 13 do so. Under such circumstances, Defendant’s ambiguous statements cannot be 14 regarded as an unequivocal invocation of the right to counsel. 15 In light of the foregoing considerations , the officers’ continued questioning was 16 not improper. We therefore conclude that the taped c onfession was properly admitted 17 at trial. 18 CONCLUSION 199 For the foregoing reasons, we affirm. 1 IT IS SO ORDERED. 2

________________________________ 3 CELIA FOY CASTILLO, Judge 4 WE CONCUR: 5

__________________________________ 6 JAMES J. WECHSLER, Judge 7

__________________________________ 8 JONATHAN B. SUTIN, Judge 9