April 07, 2009 – State of New Mexico v. Clark Perry, No. 26,842

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: 	April 7, 2009	3
NO. 26,842	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
CLARK PERRY,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	10
Denise Barela Shepherd, District Judge	11
Gary K. King, Attorney General	12
Andrea Sassa, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Hugh W. Dangler, Chief Public Defender	16
Nancy M. Hewitt, Appellate Defender	17
Joseph P. Walsh, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20

Correction Page State v. Perry, No. 26,842, filed 4/7/09. Page 2, line 15. The word “drive” was deleted.
OPINION	1
CASTILLO, Judge.	2
{1} 	Defendant’s grounds for appeal are several. Relying on the Fifth Amendment	3
to the United States Constitution as well as Article II, Section 15 of the New Mexico	4
Constitution, Defendant contends that investigators should have ceased to question	5
him thereby making his answers to their questions inadmissible. 	Additionally,	6
Defendant asserts that the trial court tendered improper jury instructions, that the	7
prosecutor’s misconduct should have resulted in a mistrial, and that neither the jury	8
verdict nor his sentence were supported by substantial evidence. Because we discern	9
no error, we affirm on all issues.	10
I. 	BACKGROUND	11
{2} 	This case arises from events that took place on the night of July 2, 2002, and	12
the early morning of July 3, 2002. The following facts are basically undisputed. On	13
that night, Defendant and Timothy Hawkins (Hawkins) were driving a vehicle around	14
Albuquerque that was owned by a friend of Hawkins, though the friend was unaware	15
that Hawkins had the vehicle. Hawkins drove to a 7-11 convenience store, robbed it	16
at gunpoint, returned to the car, and drove away. 	Defendant remained in the car	17
during the robbery. Defendant and Hawkins then drove to a Dunkin’ Donuts store	18
where they both went inside. The men did not rob the Dunkin’ Donuts because the	19

Correction Page State v. Perry, No. 26,842, filed 4/7/09. Page 2, line 15. The word “drive” was deleted.
2
“[a]tmosphere wasn’t right.” Instead, they bought a box of donuts and returned to the	1
car. They drove to a second 7-11 convenience store and again robbed it at gunpoint	2
while Defendant remained in the car.	3
{3} 	After the robberies, Defendant was driving about sixty miles an hour, running	4
stop signs, and turning the headlights on and off. Eventually, Defendant ran a stop	5
sign and struck a truck driven by Nick Nellos (Nellos). The passenger airbag in the	6
car deployed and as Hawkins struggled with the airbag, he heard someone outside the	7
car ask if they were all right. Hawkins then heard a shot, and he saw that Defendant	8
was not in the car. Hawkins got out of the car and saw Nellos on the ground near the	9
truck. 	Hawkins took the gun from Defendant and fired one or two more shots at	10
Nellos, who later died from the wounds. Defendant and Hawkins ran together from	11
the scene.	12
{4} 	The 	pair 	ran 	toward 	Lovelace 	Hospital 	and 	met 	Sheila 	Liebschwager	13
(Liebschwager), who was getting out of her van. 	Hawkins pointed the gun at	14
Liebschwager and ordered her to get back in her vehicle. Liebschwager complied	15
and drove toward Hawkins’ girlfriend’s house where Hawkins got out of the van—but	16
not before Hawkins took money and cigarettes from Liebschwager and gave	17
Defendant some of the money. Defendant continued to ride with Liebschwager until	18
he got out at a stop sign. 	When Defendant left the van, Liebschwager called the	19

3
police, and both men were arrested.	1
{5} 	After his arrest, Defendant was interviewed by two detectives, and he admitted	2
that both he and Hawkins had fired shots at Nellos. Defendant was indicted on (1) one	3
count of alternatively first degree murder, second degree murder, manslaughter, or	4
felony murder; (2) one count of conspiracy to commit first degree murder; (3) three	5
counts of armed robbery; (4) two counts of conspiracy to commit armed robbery; (5)	6
two counts of conspiracy to commit aggravated assault; (6) one count of kidnapping;	7
(7) one count of conspiracy to commit kidnapping; and (8) one count of tampering	8
with evidence. 	The State did not ultimately pursue the counts for conspiracy to	9
commit aggravated assault or the felony murder alternative.	10
{6} 	Defendant filed a motion to suppress his statements, which the trial court	11
granted in part. The case went to trial, and Defendant was convicted of second degree	12
murder and conspiracy to commit second degree murder, armed robbery and	13
conspiracy to commit armed robbery, and kidnapping and conspiracy to commit	14
kidnapping. The jury acquitted him for one count of armed robbery and one count of	15
conspiracy to commit armed robbery. The trial court directed a verdict on another	16
count of armed robbery and the evidence tampering count.	17
{7} 	After finding Defendant to be a habitual offender, the trial court imposed an	18
enhanced sentence totaling 95 years imprisonment with 20 years suspended.	19

4
Defendant appeals.	1
II. 	DISCUSSION	2
{8} 	On appeal, Defendant challenges four aspects of the investigation and the	3
subsequent trial: (1) the admission of incriminating statements made by Defendant	4
to investigators, (2) the denial of some proffered jury instructions, (3) the comments	5
made by the prosecutor during closing arguments, and (4) the sufficiency of evidence.	6
We address each argument in turn.	7
A. 	Incriminating Statements	8
{9} 	Defendant argues that the trial court improperly denied his motion to suppress	9
and admitted incriminating statements, contrary to both the United States and the New	10
Mexico Constitutions. “When reviewing the denial of a motion to suppress on appeal,	11
we view the evidence in the light most favorable to the district court’s decision. We	12
then determine whether the court properly applied the law when it denied the motion	13
to suppress.” 	State v. Castillo-Sanchez, 1999-NMCA-085, ¶ 6, 127 N.M. 540, 984	14
P.2d 787 (citation omitted).	15
{10} 	According to testimony at the suppression hearing, the two detectives who	16
questioned Defendant advised him of his constitutional rights and asked if he	17
understood them. At first, Defendant said that he did not understand. The detectives	18
provided more explanation, after which Defendant indicated he understood. One of	19

5
the detectives explained that “[w]hat we’re here for is basically a crime spree that	1
happened throughout Albuquerque early this morning[; y]ou are aware of that[,]	2
right?” Defendant answered, “Yes.” The detective then asked, “Okay, are you willing	3
to talk to us right now[?]” Defendant answered, “I ain’t really got too much to say.”	4
The detective followed up and asked, “Well, with the stuff that you do have to say do	5
you mind talking to us about it?” Defendant responded, “Yeah, all right.”	6
{11} 	After further explaining Defendant’s rights, one of the detectives asked	7
Defendant if he was “willing to talk about the things that you know about right now,”	8
and Defendant responded, “Yeah.” Defendant then signed a waiver of rights, and the	9
interview proceeded. 	One of the detectives directed the questions toward the	10
shooting. Defendant said, “I didn’t shoot the guy.” The detectives asked him who	11
had fired the shots, and Defendant responded, “Well, we both did.” At some point	12
after that admission, Defendant told the detectives, “I don’t got nothin’ else to say.”	13
Although the detectives appear to have changed the subject after this statement, they	14
continued to ask questions. Throughout the rest of the interview, Defendant said, “I	15
don’t want to keep talkin’,” and “I’m all right, but I just don’t feel like talking no	16
more.” Finally, Defendant said, “That’s all I know. I don’t want to talk no more. No	17
more.” Despite these statements, the detectives did not stop the interview.	18
{12} 	The trial court suppressed all of Defendant’s statements after he said, “I don’t	19

6
got nothin’ else to say.” The admissions made before that statement, including his	1
response to the question about who fired the shots, were allowed into evidence. The	2
State does not appeal the exclusion of the latter portion of the interview, and we	3
therefore do not address the admissibility of those statements. Defendant argues that	4
none of the interview should have been admissible because his statement, “I ain’t	5
really got too much to say,” expressed his desire to stop the questioning at that point.	6
According to Defendant, the detectives continued the interrogation and thereby failed	7
to scrupulously honor Defendant’s invocation of his right to remain silent. We first	8
address Defendant’s rights under the Fifth Amendment to the United States	9
Constitution and then turn to his argument regarding Article II, Section 15 of the New	10
Mexico Constitution.	11
1. 	The Fifth Amendment to the United States Constitution	12
{13} 	In Miranda v. Arizona, the Supreme Court of the United States considered “the	13
admissibility of statements obtained from an individual who is subjected to custodial	14
police interrogation and the necessity for procedures which assure that the individual	15
is accorded his privilege under the Fifth Amendment to the Constitution not to be	16
compelled to incriminate himself.” 	384 U.S. 436, 439 (1966). 	Under Miranda,	17
“[p]rior to any questioning, the person must be warned that he has a right to remain	18
silent, that any statement he does make may be used as evidence against him, and that	19

7
he has a right to the presence of an attorney, either retained or appointed.” Id. at 444.	1
A defendant may voluntarily and knowingly waive these rights. Id. If, however, the	2
defendant “indicates in any manner and at any stage of the process that he wishes to	3
consult with an attorney before speaking there can be no questioning.” Id. at 444-45.	4
Similarly, “if the individual is alone and indicates in any manner that he does not wish	5
to be interrogated, the police may not question him.” Id. at 445.	6
{14} 	Although Miranda dictates when questioning must cease, the Court left for	7
another day the question of when questioning may be resumed. Michigan v. Mosley,	8
423 U.S. 96, 101 (1975). 	In Mosley, the Court held that “the admissibility of	9
statements obtained after the person in custody has decided to remain silent depends	10
under Miranda on whether his right to cut off questioning was scrupulously honored.”	11
Mosley, 423 U.S. at 104 (internal quotation marks omitted). Defendant argues that his	12
statement, “I ain’t really got too much to say,” invoked his rights under the Fifth	13
Amendment because it was an indication “in any manner” that he did not wish to be	14
interrogated. Miranda, 384 U.S. at 445. Further, Defendant contends that all of his	15
later statements—including his answer to the detective’s question regarding the	16
identity 	of 	the 	shooter—were 	inadmissible 	because 	the 	detectives 	failed 	to	17
scrupulously honor his right to cut off questioning.	18
{15} 	Thus, Defendant urges us to evaluate whether Defendant invoked his right to	19

8
remain silent under Miranda and, if so, whether later statements were inadmissible	1
under Mosley. The State argues that Defendant did not invoke his right to silence,	2
according to a standard articulated in Davis v. United States, 512 U.S. 452 (1994).	3
Because we conclude that Defendant did not invoke the right to remain silent, we do	4
not reach the Mosley issue. We begin by considering the applicability of Davis.	5
{16} 	In Davis, the United States Supreme Court evaluated whether an investigator	6
is required to suspend questioning when “a suspect makes a reference to counsel that	7
is insufficiently clear.” 512 U.S. at 454. The Davis Court fashioned an objective test	8
in order to determine whether a suspect has actually invoked the right to counsel: “[I]f	9
a suspect makes a reference to an attorney that is ambiguous or equivocal in that a	10
reasonable officer in light of the circumstances would have understood only that the	11
suspect might be invoking the right to counsel, our precedents do not require the	12
cessation of questioning.” 	Id. at 459. 	Stated another way, “the suspect must	13
unambiguously request counsel.” 	Id. 	The State recognizes that Davis does not	14
address the invocation of the right to silence but nevertheless argues that the Davis	15
standard should apply to our current analysis.	16
{17} 	The federal circuit courts of appeal have taken two approaches as to whether	17
the Davis test applies to the invocation of the right to silence. 	Some courts have	18
determined outright that the Davis standard applies: “This court has interpreted Davis	19

9
to apply equally to the invocation of the right to counsel and the right to remain	1
silent.” 	Franklin v. Bradshaw, 545 F.3d 409, 414 (6th Cir. 2008); see also United	2
States v. Nelson, 450 F.3d 1201, 1211-12 (10th Cir. 2006); United States v. Acosta,	3
363 F.3d 1141, 1152 (11th Cir. 2004); Simmons v. Bowersox, 235 F.3d 1124, 1131	4
(8th Cir. 2001); United States v. Banks, 78 F.3d 1190, 1197 (7th Cir. 1996), judgment	5
vacated on other grounds by Mills v. United States, 519 U.S. 990 (1996). Other courts	6
have reviewed the circumstances of the interrogation in order to determine whether	7
the defendant’s words or actions constituted an invocation of the right to remain silent	8
or the functional equivalent of silence—without adopting Davis. See United States	9
v. Teleguz, 492 F.3d 80, 88 (1st Cir. 2007) (citing but not adopting Davis); Soffar v.	10
Cockrell, 300 F.3d 588, 594-95 & n.5 (5th Cir. 2002) (declining to address whether	11
Davis applies in this context); Burket v. Angelone, 208 F.3d 172, 200 (4th Cir. 2000)	12
(analogizing to but not adopting Davis); United States v. Ramirez, 79 F.3d 298, 303-	13
05 (2d Cir. 1996) (citing but not adopting Davis). No circuit has held that Davis is	14
entirely inapplicable to the invocation of the right to remain silent. But see Wayne D.	15
Holly, Ambiguous Invocations of the Right to Remain Silent: A Post-Davis Analysis	16
and Proposal, 29 Seton Hall L. Rev. 558, 560-62, 575 (1998) (faulting the lower	17
federal courts for applying Davis “with little or no independent analysis” and	18
proposing that Davis should not apply to the right to remain silent).	19

10
{18} 	Defendant does not raise Davis or argue that it should not apply to the facts of	1
this case. 	Instead, Defendant analogizes the facts before us to those in Cuervo v.	2
State, 967 So. 2d 155 (Fla. 2007). 	This mirrors the approach taken by the First,	3
Second, Fourth, and Fifth Circuits—evaluating whether the facts of a particular	4
interrogation support a conclusion that the defendant indicated “in any manner” that	5
he wished to cease questioning. 	Miranda, 384 U.S. at 445. Thus, before deciding	6
whether to apply Davis in this context, we will first consider whether Defendant’s	7
response could indicate “in any manner” an invocation of the right to remain silent.	8
Id.	9
{19} 	In Cuervo, a Spanish-speaking defendant moved to have an incriminating	10
statement suppressed, arguing that he had invoked his right to silence when he told the	11
police through a translator, “I don’t want to declare anything.” 967 So. 2d at 157.	12
The Florida Supreme Court concluded that this statement “constituted a clear	13
invocation of the right to remain silent,” particularly because it “came solely in	14
response to the inquiry concerning his Miranda rights.” Cuervo, 967 So. 2d at 163.	15
There is no similarity between the words used by Defendant here and the words	16
translated for the defendant in Cuervo. 	In the present case, as we explained, the	17
detective asked Defendant, “Are you willing to talk to us right now[?],” and	18
Defendant said, “I ain’t really got too much to say.” Even though both defendants	19

11
were responding to an inquiry concerning their willingness to talk to police, in	1
Cuervo, the defendant communicated that he did not want to speak. We agree with	2
the State that Defendant’s response communicated that he did not have a lot of	3
information to provide—not that he wished to remain silent. See Jones v. Kemp, 706	4
F. Supp. 1534, 1551 (N.D. Ga. 1989) (concluding that a defendant did not invoke the	5
right to remain silent because he did not refuse to answer questions and did not ask for	6
the questioning to stop).	7
{20} 	Defendant’s statement is closer to that made by the defendant in State v.	8
Perkins, 540 So. 2d 556 (La. Ct. App. 1989). In Perkins, the defendant was advised	9
of his rights, and he indicated that he understood them. 	Id. at 558. 	Before the	10
detective turned on the tape recorder, however, the defendant stated, “I don’t know if	11
I want to say too much into that thing or not.” Id. 	The detective reiterated that the	12
defendant was not required to speak; nevertheless, the defendant agreed to give a	13
statement. 	Id. 	After reviewing the conversation, the Perkins court concluded that	14
“[a]t best, it appears that the defendant may have been questioning whether to give a	15
recorded statement, as opposed to his previous unrecorded statement, but the remarks	16
clearly do not constitute an invocation of his right to remain silent.” 	Id. at 559.	17
Similarly, in the present case it appears that, at best, Defendant was qualifying the	18
quantity or quality of the information he had to offer and was not indicating that he	19

12
did not wish to speak to the detectives at all. 	See also Jones, 706 F. Supp at 1551	1
(finding that the defendant’s “statement to [an officer] that he did not want to tell	2
‘what is going on’ because he ‘might get in too much trouble’” was not an invocation	3
of the right to remain silent); People v. Montaño, 277 Cal. Rptr. 327, 334 (Dist. Ct.	4
App. 1991) (concluding that the defendant’s response, “I can’t” to an officer’s	5
question, “Can you tell us what happened?” was not an invocation of the right to	6
remain silent); State v. Gaspard, 685 So. 2d 151, 155 (La. Ct. App. 1996) (holding	7
that the statement, “I don’t know nothing about no murder,” was not an invocation of	8
the right to remain silent).	9
{21} 	According to Defendant, the circumstances of his mental state are relevant to	10
our analysis of his invocation of the right to remain silent. Defendant argues that he	11
“was having difficulty understanding the events that were transpiring around him” and	12
that as a result, “the detectives should have realized that [Defendant’s] statement that	13
he ‘ain’t really got too much to say’ was his expression of his desire to have the	14
detectives cease questioning.” Defendant relies on two points: that he did not appear	15
to understand his constitutional rights and that he was later diagnosed with mild	16
mental retardation. We disagree that these circumstances are determinative for two	17
reasons. 	First, although Defendant expressed some initial confusion about his	18
constitutional rights, the detectives continued to explain them until Defendant	19

13
indicated that he understood. Second, Defendant’s later diagnosis does not alter what	1
he communicated to the detectives. He was asked if he was willing to talk, and he	2
responded that he did not have much to say. After one of the detectives asked if he	3
would share what he did know, Defendant responded in the affirmative. Later in the	4
interview, when Defendant did not wish to speak or communicate further, he made his	5
desires clear by saying, “I don’t got nothin’ else to say.” 	Nothing evident in the	6
circumstances of the conversation should have alerted the detectives that Defendant	7
was having special difficulty understanding the developing situation.	8
{22} 	As the Second Circuit explained, “[i]n some circumstances . . . a suspect’s	9
statement as to his willingness or unwillingness to answer questions, or his silence in	10
response to some questions, does not constitute even an ambiguous or equivocal	11
invocation of the right to remain silent.” Ramirez, 79 F.3d at 304. Defendant’s words	12
did 	not 	create ambiguity 	about 	his 	desire to 	continue talking 	to 	detectives.	13
Defendant’s words communicated that he was not well informed. 	Because	14
Defendant’s statement did not even ambiguously invoke his right to remain silent	15
under Miranda, we do not further consider whether the standard articulated in	16
Davis—that a suspect must unambiguously invoke the right—should apply to the facts	17
of the present case. Accordingly, we hold that Defendant did not invoke his right to	18
remain silent under the Fifth Amendment to the United States Constitution and that	19

14
the trial court properly admitted those statements made by Defendant after he stated,	1
“I ain’t really got too much to say.”	2
2. 	Article II, Section 15 of the New Mexico Constitution	3
{23} 	Defendant also argues that the New Mexico Constitution affords him greater	4
protection than the federal constitution. Specifically, Defendant argues that under the	5
New Mexico Constitution, if investigators are unsure about whether a suspect has	6
invoked his right to remain silent, the investigators are required to ask the suspect,	7
“Are you invoking your right to remain silent?” The federal courts have imposed no	8
such clarification requirement on investigators. 	See Davis, 512 U.S. at 461-62	9
(refusing to adopt a rule requiring investigators to clarify whether a suspect has	10
requested counsel). The State contends that Defendant has provided no authority to	11
support broader state constitutional protection and that, in any event, the interrogating	12
detectives in the present case adequately clarified Defendant’s statement in the very	13
manner that he now argues should be constitutionally required. 	We begin by	14
considering the circumstances under which our courts have afforded greater	15
protections based on the New Mexico Constitution.	16
{24} 	In State v. Gomez, our Supreme Court adopted the interstitial approach to	17
interpreting our state constitution. 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d	18
1. “A state court adopting this approach may diverge from federal precedent for three	19

15
reasons: a flawed federal analysis, structural differences between state and federal	1
government, or distinctive state characteristics.” 	Id. 	Defendant argues that New	2
Mexico has interpreted the exclusionary rule—the rule requiring the suppression of	3
evidence if it was obtained in violation of a defendant’s constitutional rights—in a	4
manner that is distinctive from and more protective than the federal application of the	5
rule. As a result, Defendant argues that the New Mexico Constitution has historically	6
provided defendants with more protection from unconstitutionally obtained evidence	7
than the federal constitution, thus providing support for Defendant’s proposed	8
exclusion of the incriminating statements that he made to the detectives during the	9
interview.	10
{25} 	In order to establish the dichotomy between state and federal law, Defendant	11
cites United States v. Patane, 542 U.S. 630 (2004), and State v. Gutierrez, 116 N.M.	12
431, 863 P.2d 1052 (1993). In Patane, the United States Supreme Court considered	13
whether “a failure to give a suspect the warnings prescribed by Miranda . . . requires	14
suppression of the physical fruits of the suspect’s unwarned but voluntary statements.”	15
542 U.S. at 633-34 (citation omitted). 	The Patane Court concluded that the	16
exclusionary rule did not apply, in part, because “[u]nlike the Fourth Amendment’s	17
bar on unreasonable searches, the Self-Incrimination Clause is self-executing.” Id. at	18
640, 642. 	“[T]hose subjected to coercive police interrogations have an automatic	19

16
protection from the use of their involuntary statements (or evidence derived from their	1
statements) in any subsequent criminal trial.” Id. at 640 (internal quotation marks and	2
citation omitted).	3
{26} 	In Gutierrez, our Supreme Court evaluated whether “evidence obtained by	4
virtue of an invalid search warrant nevertheless may be admitted under the	5
exclusionary rule’s ‘good-faith’ exception.” 	116 N.M. at 432, 863 P.2d at 1053.	6
Because the federal constitution recognizes an exception to the exclusionary rule	7
based on the good-faith reliance on a subsequently invalidated warrant, see United	8
States v. Leon, 468 U.S. 897, 922 (1984), superceded by rule on other grounds as	9
stated in In re Search of Kitty’s East, 905 F.2d 1367, 1372 (10th Cir. 1990), Gutierrez	10
conducted an independent analysis of the question under Article II, Section 10 of the	11
New Mexico Constitution. 116 N.M. at 435, 863 P.2d at 1056. The Gutierrez Court	12
rejected the federal good-faith exception. Id. at 445, 863 P.2d at 1066. Thus, the New	13
Mexico Constitution requires unconstitutionally obtained evidence to be excluded	14
because “[d]enying the government the fruits of unconstitutional conduct at trial best	15
effectuates the constitutional proscription of unreasonable searches and seizures by	16
preserving the rights of the accused to the same extent as if the government’s officers	17
had stayed within the law.” Id. at 446, 863 P.2d at 1067. Gutierrez has since been	18
characterized as vesting an individual state constitutional right to the application of	19

17
the exclusionary rule in search and seizure cases. 	State v. Wagoner, 2001-NMCA-	1
014, ¶ 29, 130 N.M. 274, 24 P.3d 306. 	We are not persuaded that Patane and	2
Gutierrez demonstrate a fissure between the state and federal approaches to the issues	3
presented by the present case.	4
{27} 	The two cases address disparate aspects of constitutional law. See Oregon v.	5
Elstad, 470 U.S. 298, 304 (1985) (emphasizing that the “fundamental differences	6
between the role of the Fourth Amendment exclusionary rule and the function of	7
Miranda in guarding against the prosecutorial use of compelled statements as	8
prohibited by the Fifth Amendment”). 	Patane addresses the application of the	9
exclusionary rule to the Fifth Amendment—that “‘[n]o person . . . shall be compelled	10
in any criminal case to be a witness against himself.’” 542 U.S. at 637 (quoting U.S.	11
Const. amend. 5). 	Gutierrez dealt specifically with the exclusionary rule in the	12
context of unreasonable searches and seizures. 116 N.M. at 444, 863 P.2d at 1065.	13
It is well established that Article II, Section 10 of the New Mexico Constitution—our	14
search and seizure provision—“has been construed to provide broader protections than	15
the Fourth Amendment for the past fifteen years.” State v. Granville, 2006-NMCA-	16
098, ¶ 14, 140 N.M. 345, 142 P.3d 933. Although Gutierrez affords an individual a	17
constitutional right to application of the exclusionary rule, it does so in the context of	18
search and seizure and is silent with respect to the privilege against self incrimination.	19

18
{28} 	Defendant argues that if interrogators are not required to clarify whether a	1
suspect is invoking his right to remain silent, they will be effectively encouraged to	2
“withhold Miranda warnings and . . . thus weaken Article II, Section 15 of the New	3
Mexico Constitution.” 	Defendant’s argument is essentially about deterrence:	4
investigators will only refrain from violating a suspect’s right to remain silent if the	5
evidence obtained as the result of a violation is excluded. We disagree.	6
{29} 	Gutierrez made it clear that by affording greater protection under Article II,	7
Section 10, the Court was focused “not on deterrence or judicial integrity.” 116 N.M.	8
at 446, 863 P.2d at 1067. Instead, the focus was “to effectuate in the pending case the	9
constitutional right of the accused to be free from unreasonable search and seizure.”	10
Id. Defendant does not explain how a suspect’s right to remain silent is effectuated	11
by the imposition of a second set of constitutional requirements after investigators	12
have complied with Miranda. Defendant merely contends that “warning suspects of	13
their rights can hinder the gathering of evidence.”	14
{30} 	There is no dispute in the present case that the detectives provided Defendant	15
with the constitutionally required warnings. 	Even in the absence of a state	16
constitutional rule that mandates clarification, the detectives complied with Miranda.	17
In fact, the detectives appear to have engaged in clarification similar to that which	18
Defendant argues is necessary. When Defendant informed the detectives that he did	19

19
not have “too much to say,” one of the detectives followed up with, “Well, with the	1
stuff that you do have to say do you mind talking to us about it[?]” Defendant does	2
not provide us with other evidence or argument to support his theory that additional	3
state constitutional requirements are necessary in order to preserve the right to remain	4
silent. Defendant does not conduct a survey of other states to determine if they have	5
clarification requirements and neither will we.	6
{31} 	Defendant does not argue that the remaining Gomez criteria apply—that the	7
federal analysis is flawed or that there is a structural difference between the state and	8
federal governments. 	1997-NMSC-006, ¶ 19. 	Accordingly, we conclude that	9
Defendant has not demonstrated that Article II, Section 15 of the New Mexico	10
Constitution requires investigators to clarify whether a suspect has invoked the right	11
to remain silent.	12
B. 	Jury Instructions	13
{32} 	Defendant proffered jury instructions at trial that related to involuntary	14
manslaughter, duress, and accomplice liability. The trial court refused to give these	15
instructions. We review de novo a trial court’s denial of jury instructions. 	State v.	16
Ellis, 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186 P.3d 245.	17
1. 	Involuntary Manslaughter	18

20
{33} 	Defendant requested an instruction on the theory of involuntary manslaughter	1
as a lesser-included offense of second degree murder. “A defendant is entitled to an	2
instruction on a lesser included offense when there is some view of the evidence	3
pursuant to which the lesser offense is the highest degree of crime committed, and that	4
view [is] reasonable.” State v. Gaitan, 2002-NMSC-007, ¶ 11, 131 N.M. 758, 42 P.3d	5
1207 (internal quotation marks and citation omitted).	6
{34} 	“Voluntary manslaughter consists of manslaughter committed upon a sudden	7
quarrel or in the heat of passion.” Id. (internal quotation marks and citation omitted).	8
The Gaitan Court explained that “[t]he difference between second degree murder and	9
voluntary 	manslaughter 	is 	that 	voluntary 	manslaughter 	requires 	sufficient	10
provocation.” Id. Defendant contends, pursuant to State v. Franklin, 78 N.M. 127,	11
129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d	12
1, 4-6 (Ct. App. 1985), that the circumstances of the car accident were sufficient to	13
establish provocation justifying an involuntary manslaughter instruction. The State	14
argues that it is not reasonable to view the car accident as sufficient provocation for	15
a fatal shooting, particularly because Defendant caused the accident by driving	16
without headlights, speeding, and running the stop sign. We agree with the State that	17
without contrary evidence in the record, the trial court properly denied Defendant’s	18
requested instruction on involuntary manslaughter.	19

21
2. 	Duress	1
{35} 	Defendant submitted an instruction on duress as a defense to the kidnapping	2
charge. In order to warrant a jury instruction on the defense of duress, “a defendant	3
must make a prima facie showing that he was in fear of immediate and great bodily	4
harm to himself or another and that a reasonable person in his position would have	5
acted the same way under the circumstances.” State v. Castrillo, 112 N.M. 766, 769,	6
819 P.2d 1324, 1327 (1991), modified on other grounds by State v. Baca, 114 N.M.	7
668, 675, 845 P.2d 762, 769 (1992). Defendant’s proffered instruction was based on	8
the theory that at the time Liebschwager’s van was commandeered, he was under	9
threat of great bodily harm. 	Defendant argues that the threat stemmed from the	10
following facts: (1) Hawkins hit Defendant with the gun after Nellos was shot, (2)	11
Defendant tried to run away from Hawkins but Hawkins stopped him, (3) Hawkins	12
had the gun at the time of the kidnapping, and (4) Hawkins pushed Defendant into	13
Liebschwager’s van.	14
{36} 	The trial court refused the instruction, explaining that Defendant had not	15
provided sufficient evidence to establish the elements of duress and that “there was	16
sufficient time between the actual threat by . . . Hawkins to [D]efendant . . . to allow	17
a reasonable person to have many alternatives or options available to that person	18
[other than] the actual kidnapping in order to get away or not participate in the actual	19

22
event.” We turn to the evidence presented in order to evaluate whether Defendant	1
provided sufficient evidence to justify an instruction on duress. 	See id. (“If the	2
evidence supports a theory of the case, a defendant is entitled to instruction on that	3
theory.”).	4
{37} 	As we explained, Defendant argues that after the shooting, Hawkins first beat	5
him and then fled, commanding Defendant to follow. 	Soon afterward, the men	6
encountered Liebschwager, and Hawkins pushed Defendant into the van. During the	7
ride with Liebschwager, Hawkins had the gun. Defendant contends that it “stretches	8
reason to believe that a person who had been beaten with a gun and ordered to follow	9
the person who had just beaten you when that person still had the gun would be acting	10
under anything other than compulsion.”	11
{38} 	The State argues Defendant’s rendition of the facts is not supported by the	12
testimony received at trial. After reviewing the testimony, we agree with the State that	13
the evidence at trial did not support the defense of duress. There is no dispute that	14
Hawkins hit Defendant with the gun. 	Defendant attempts to frame the incident as	15
creating a fear of further great bodily harm because “Hawkins had already	16
demonstrated that he was willing to beat [Defendant] with a gun in order to gain his	17
acquiescence in their escape plan.” Hawkins’ testimony, however, does not support	18
this characterization of the events. Instead, Hawkins testified that he hit Defendant	19

23
because Defendant “ruined [Hawkins’] life” by shooting Nellos. 	There is no	1
indication in the testimony that Hawkins was trying to force Defendant to take a	2
certain course of action or to “gain his acquiescence.”	3
{39} 	The testimony also reflects that Defendant ran in a different direction after	4
Hawkins hit him. 	What is reflected in the record is Defendant’s contention that	5
Hawkins “ordered” Defendant to follow. 	Instead, it appears that when Defendant	6
began to run away, Hawkins told him that he was “going toward the scene” and “to	7
come with me[,] [t]o follow me.” After that, the two men ran together. There is no	8
support for a theory that Hawkins forced Defendant to follow along—it appears	9
instead that Defendant was confused and that Hawkins tried to lead him away from	10
the scene of the crime.	11
{40} 	Liebschwager testified that when Defendant and Hawkins commandeered her	12
van, it did not appear that Hawkins forced Defendant into the van. Although Hawkins	13
apparently shoved Defendant into the van, both men were having difficulty operating	14
the passenger doors because they were equipped with child locks. When Defendant	15
was able to open the front passenger door, he went over the console into the backseat.	16
Hawkins did not point the gun at Defendant. 	During the ride, Defendant gave	17
Hawkins the driving directions, and Hawkins passed them on to Liebschwager. When	18
Hawkins got out of the van, Defendant moved to the front seat and continued to give	19

24
Liebschwager driving directions.	1
{41} 	“The keystone of the [duress] analysis is that the defendant must have no	2
alternative—either before or during the event—to avoid violating the law.” State v.	3
Rios, 1999-NMCA-069, ¶ 17, 127 N.M. 334, 980 P.2d 1068 (internal quotation marks	4
and citations omitted). 	Defendant’s position is that he got into the van and	5
participated in the kidnapping because he was in imminent fear of great bodily harm.	6
The testimony does not support Defendant’s contention that he was left with no	7
alternative. Defendant was required to demonstrate “some reasonable nexus between	8
the harm feared and the crime that was committed in response to that fear.” Castrillo,	9
112 N.M. at 772, 819 P.2d at 1330. Although Defendant would like there to be an	10
inference of fear from Hawkins’ actions, the testimony does not provide this nexus.	11
The beating and the kidnapping happened close together in time, but Defendant did	12
not establish that Hawkins hit him with the gun to coerce him into escaping, and there	13
was no testimony that Hawkins threatened Defendant with violence if he did not get	14
into the van. Additionally, Defendant appears to have willingly followed Hawkins	15
after the beating in order to avoid capture at the scene of the accident. 	Defendant	16
participated in the kidnapping with no signs of coercion or fear: he climbed into the	17
backseat of the van, provided directions, and remained in the van after Hawkins left.	18
Accordingly, we hold that the trial court properly denied Defendant’s requested duress	19

25
instruction.	1
3. 	Accomplice Liability	2
{42} 	Defendant 	submitted 	two 	instructions 	relating 	to 	accomplice 	liability.	3
Defendant first tendered a modified version of UJI 14-2822 NMRA, which addresses	4
aiding and abetting an underlying crime. The modified instruction read as follows:	5
The defendant may be found guilty of a crime even though he	6
himself did not do the acts constituting the crime, if the state proves to	7
your satisfaction beyond a reasonable doubt that:	8
1. 	The defendant intended that the crime be committed;	9
2. 	The crime was committed;	10
3. 	The defendant helped, encouraged or caused the crime to be	11
committed.	12
4. 	The defendant’s intent must be the intent that is specified	13
in the specific elements instruction for the crime itself.	14
The trial court rejected this instruction, and instead gave the unmodified version of	15
UJI 14-2822, which differs only by omitting all of the language in “4.” Defendant	16
argues that the unmodified instruction permits the jury to “find a lesser intent than	17
what the crime requires.” We disagree.	18
{43} 	In State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075, our	19
Supreme Court explained that “an accessory must share the criminal intent of the	20
principal” and that the requisite intent “can be inferred from behavior which	21

26
encourages the act or which informs the confederates that the person approves of the	1
crime after the crime has been committed.” Id. ¶ 7. Most notably, the Court stated	2
that the uniform jury instruction for accessory liability, UJI 14-2822, “incorporates the	3
intent requirement and correctly states the standard for a finding that a defendant is	4
guilty as an accessory.” Carrasco, 1997-NMSC-047, ¶ 7. Thus, our Supreme Court	5
concluded that UJI 14-2822—the instruction given by the trial court in the present	6
case—is sufficient to direct the jury on the issue of intent in accessory cases.	7
Carrasco, 1997-NMSC-047, ¶ 9.	8
{44} 	Defendant contends that the holding in Carrasco should be reevaluated because	9
the jury in his case expressed confusion about the intent requirement. 	During	10
deliberations, the jury sent two questions to the trial court regarding intent. The jury	11
asked (1) whether “knowledge of the crime before or during the commission of the	12
crime [is] an intent or encouragement that a crime be committed” and (2) whether “[i]f	13
. . . person A knows that person B is going to commit a crime and person A continues	14
close association with person B throughout the crime, does that equate intent?” After	15
discussion with the parties, the trial court responded to the jury’s questions with the	16
following statement: “Please review the elements instruction for each crime . . . in	17
combination with all other instructions.”	18
{45} 	“There is a presumption that the jury follows the instructions they are given.”	19

27
State v. Sellers, 117 N.M. 644, 650, 875 P.2d 400, 406 (Ct. App. 1994). Defendant	1
is concerned that “the jury in this case could easily have viewed [Defendant’s]	2
proximity to . . . Hawkins as dispositive that [Defendant] knew what the consequences	3
of Hawkins’ actions would be instead of being required to find that [Defendant] had	4
the identical intent of . . . Hawkins.” We are unpersuaded. UJI 14-2822 directs that	5
in order to find accomplice liability, the defendant must have intended “that the crime	6
be committed.” After the trial court answered the jury’s questions, we presume that	7
the jury looked to the element instruction for each crime in order to determine the	8
intent required for the underlying crime. 	Accordingly, we see no error in the trial	9
court’s refusal to modify UJI 14-2822, and we have no reason to revisit Carrasco.	10
{46} 	Defendant also proffered UJI 14-2823 NMRA, which instructs that	11
[m]ere presence of the defendant, and even mental approbation, if	12
unaccompanied 	by 	outward 	manifestation 	or 	expression 	of 	such	13
approval, is insufficient to establish that the defendant aided and abetted	14
a crime. However, the evidence of aiding and abetting may be as broad	15
and varied as are the means of communicating thought from one	16
individual to another; by acts, conduct, words, signs or by any means	17
sufficient to incite, encourage or instigate commission of the crime.	18
The trial court denied this instruction as well. Defendant was, however, permitted to	19
argue to the jury that the State was required to prove that he had the same specific	20
intent that was required by the underlying crime. Defendant argues that in light of the	21
jury’s questions, because UJI 14-2823 was refused, “it is highly likely that the jury	22

28
found [Defendant] guilty based on a lower standard of intent.” We disagree.	1
{47} 	The use note accompanying UJI 14-2823 states that “[n]o instruction on this	2
subject shall be given.” 	Our Supreme Court has refused to find error when a trial	3
court follows the mandates dictated by the use notes to uniform jury instructions.	4
State v. Smith, 2001-NMSC-004, ¶¶ 26-28, 30, 130 N.M. 117, 19 P.3d 254. 	In	5
addition, Smith specifically addresses UJI 14-2823. Smith, 2001-NMSC-004, ¶¶ 30-	6
31. The Court explained that the essential elements instructions for the underlying	7
crimes, together with the instruction that “[t]he burden is always on the state to prove	8
guilt beyond a reasonable doubt,” were sufficient to “have prevented the jury from	9
finding [the d]efendant guilty of these crimes based on . . . mere presence at the crime	10
scene.” Id. ¶ 31.	11
{48} 	In the present case, Defendant does not argue that he did not receive the	12
essential elements instructions for the underlying crimes—only that those instructions	13
were insufficient to clearly convey the necessary intent to convict. Based on Smith,	14
we hold that the State was properly required to prove every element of the charges	15
beyond a reasonable doubt and that the essential elements instructions given by the	16
trial court prevented the jury from convicting Defendant without finding the requisite	17
intent.	18
C. 	Prosecutorial Comments	19

29
{49} 	During its closing argument, the State said to the jury, “[d]on’t point a gun to	1
something you don’t want to shoot, and don’t shoot at something you [don’t] intend	2
to kill.” 	Defendant objected. 	The trial court requested that counsel approach the	3
bench where Defendant argued that the statement was “a complete misstatement of the	4
law and the facts that came out of this case.” Defendant then moved for a mistrial or,	5
in the alternative, a curative instruction. The trial court first denied the motion for a	6
mistrial and stated that it would “now advise the jury to disregard [the comment].”	7
The State argued against the instruction. The trial court then stated that it was “not	8
sustaining the objection.” No curative instruction was given. On appeal, Defendant	9
argues that the comment permitted the jury to convict without finding the requisite	10
intent and thus lowered the State’s burden of proof.	11
{50} 	We review the denial of a motion for mistrial or a curative instruction for abuse	12
of discretion. State v. Chamberlain, 109 N.M. 173, 177, 783 P.2d 483, 487 (Ct. App.	13
1989). In addition, we consider “comments made in closing argument in the context	14
in which they occurred so that we may gain a full understanding of the comments and	15
their potential effect on the jury.” Smith, 2001-NMSC-004 ¶ 38 (internal quotation	16
marks and citation omitted). “[R]emarks by the prosecutor must be based upon the	17
evidence or be in response to the defendant’s argument.” Id. The State argues that	18
the comment was an argument attacking Defendant’s theory of the case and not a	19

30
misstatement of the law designed to lower the burden of proof. We agree with the	1
State.	2
{51} 	At trial, Defendant’s theory was that when he fired the gun, he did not intend	3
to kill Nellos but rather to shoot him in the leg. 	The State’s comments in closing	4
argument were arguably designed to raise an inference of intent to kill based on the	5
fact that Defendant pointed a gun at Nellos. See State v. Silva, 2008-NMSC-051, ¶	6
18, 144 N.M. 815, 192 P.3d 1192 (explaining that “[i]ntent is subjective and is almost	7
always inferred from other facts in the case, as it is rarely established by direct	8
evidence” (alteration in original) (internal quotation marks and citation omitted));	9
State v. Diaz, 100 N.M. 210, 213-15, 668 P.2d 326, 329-31 (Ct. App. 1983) (“In jury	10
arguments a prosecutor must confine himself to the facts introduced in evidence and	11
to the fair and reasonable inferences to be drawn therefrom.”).	12
{52} 	Defendant argues that the comments in this case were similar to those made by	13
the prosecutor in Diaz. In Diaz, this Court considered numerous comments by the	14
prosecutor and concluded that he “made improper remarks to the jury, in that 1) he	15
made overextensive references to the authority he represents, 2) he improperly made	16
vituperative remarks about [the] defendant, and 3) he derogated the defense of	17
intoxication.” 	Id. at 215, 668 P.2d at 331. 	Thus, this Court held that the remarks	18
“amounted to cumulative error,” and the defendant’s convictions were reversed. Id.	19

31
Defendant makes no similar cumulative-error argument in the present case, so the	1
holding in Diaz therefore is not instructive.	2
{53} 	Defendant, however, focuses on this Court’s determination that a specific	3
comment in Diaz, regarding the likely adverse effect on the community if the jury	4
were to find that the defendant could not form the requisite intent, was a misstatement	5
of the law and an improper attempt to instruct the jury. Id. at 214, 668 P.2d at 330.	6
This comment was not a response to the merits of the defendant’s affirmative defense.	7
Id. Instead, the statement was a message to the jury “to disregard the defense even if	8
they find it meritorious.” Id. The comment in the present case had no such message	9
for the jury. The prosecutor used a fact—that Defendant pointed a gun and shot the	10
victim—in order to argue that the jury should infer an intent to kill. 	We therefore	11
determine Diaz to be inapposite and hold that the trial court did not abuse its	12
discretion when it refused to declare a mistrial and failed to offer a curative	13
instruction.	14
D. 	Sufficiency of the Evidence	15
{54} 	Defendant makes two arguments related to the sufficiency of the evidence: (1)	16
the evidence did not support his convictions, and (2) the evidence did not support a	17
habitual offender enhancement. “When reviewing the sufficiency of the evidence, we	18
view the evidence in the light most favorable to the [s]tate; we resolve all conflicts and	19

32
indulge all permissible inferences in favor of the verdict.” State v. Neatherlin, 2007-	1
NMCA-035, ¶ 8, 141 N.M. 328, 154 P.3d 703. Defendant raises these issues pursuant	2
to Franklin, 78 N.M. at 129, 428 P.2d at 984, and Boyer, 103 N.M. at 658-60, 712	3
P.2d at 4-6.	4
{55} 	With regard to the sufficiency of the evidence to support the convictions,	5
Defendant makes no argument at all. He points to no particular facts that were not	6
supported by evidence. See Rule 12-213(A)(4) NMRA (“A contention that a verdict,	7
judgment or finding of fact is not supported by substantial evidence shall be deemed	8
waived unless the argument identifies with particularity the fact or facts that are not	9
supported by substantial evidence[.]”); State v. Mora, 2003-NMCA-072, ¶ 28, 133	10
N.M. 746, 69 P.3d 256 (“No claim is made that the evidence does not support proof	11
as to any specific required element of the offenses charged.”). Absent articulation of	12
particular facts that are not supported by substantial evidence, we affirm the jury’s	13
verdict. See Mora, 2003-NMCA-072, ¶ 28.	14
{56} 	Defendant also challenges the evidence supporting the enhancement of his	15
sentence. In order to enhance a sentence pursuant to NMSA 1978, Section 31-18-17	16
(2003), the State must establish that Defendant is the same person convicted of a prior	17
felony and that “less than ten years have passed since [D]efendant completed serving	18
his or her sentence, probation or parole for the conviction.” State v. Simmons, 2006-	19

33
NMSC-044, ¶ 8, 140 N.M. 311, 142 P.3d 899. These factors must be proved by a	1
preponderance of the evidence. Id. ¶ 10.	2
{57} 	Defendant disputes that the State adequately established that he was the same	3
person convicted of the felonies listed in the judgments offered by the State in order	4
to prove the prior felonies. The State provided the trial court with certified judgments	5
and sentences from Illinois, which listed the same name as Defendant’s and included	6
a date of birth. A detective testified that Defendant told him that he had come from	7
Illinois and, additionally, that the date of birth reported by Defendant was the same	8
date on the judgments. Finally, a fingerprint expert matched Defendant’s fingerprints	9
to those taken by the federal authorities in conjunction with the incidents from Illinois.	10
We hold that the State provided sufficient evidence for the trial court to determine by	11
a preponderance of the evidence that Defendant was the same individual named in the	12
Illinois judgments.	13
III. 	CONCLUSION	14
{58} 	We affirm the trial court.	15
{59} 	IT IS SO ORDERED.	16

34
________________________________	1
CELIA FOY CASTILLO, Judge	2
WE CONCUR:	3
________________________________	4
JONATHAN B. SUTIN, Judge	5
________________________________	6
TIMOTHY L. GARCIA, Judge	7