§ Questioning ▸ Right to Counsel
United States v. Martinez
AI case brief Pro
Plain-English breakdown — what was held, and what it means on the street.
AI-generated summary · verify against the full opinion below · not legal advice
Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 19, 2024 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 23-2193 No. 24-2002 No. 24-2004
SANTIAGO MARTINEZ,
Defendant - Appellee. _________________________________
Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:21-CR-01934-MV-1) _________________________________
C. Paige Messec, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with her on the brief), Office of the United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellant.
Violet N. D. Edelman, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellee. _________________________________
Before PHILLIPS, CARSON, and FEDERICO, Circuit Judges. _________________________________
FEDERICO, Circuit Judge. _________________________________ Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 2
This Government appeal arises out of a pending murder prosecution in
New Mexico currently in the pretrial phase. In the early hours of November
13, 2021, DeAnna Suazo suffered an untimely death outside her home on the
Taos Pueblo, where she was discovered underneath her running vehicle with
signs that she had been run over. A week later, following a “failed” polygraph
test, her boyfriend, Santiago Martinez, made statements indicating that he
pushed Suazo to the ground in front of her vehicle and then ran her over with
it.
Martinez was indicted by a grand jury in the United States District of
New Mexico on one count of second-degree murder in Indian Country in
violation of 18 U.S.C. §§ 1111(a) and 1153. Several pretrial motions were
adjudicated before the district court and are now before us in three separate
appeals, which we consolidated into one.
First, Martinez filed a motion to suppress statements that he made to a
Federal Bureau of Investigation (FBI) agent during a post-polygraph
interview. The district court granted the motion and suppressed the
statements. The Government now appeals this decision in case number 23-
2193.
Second, the Government filed a motion in limine seeking a pretrial
determination on the admissibility of certain text messages exchanged
between Suazo and Martinez prior to Suazo’s death. These messages, spanning
2 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 3
the six months before her death, are purported to be evidence that Suazo was
unhappy with their relationship and wanted to end it. The Government argued
that these messages were not hearsay per Federal Rule of Evidence (Rule)
801(c)(2), as they were not offered for the truth of the matter asserted but
rather to show their effect on Martinez as the listener. The district court ruled
these text messages inadmissible at trial. That decision is now on appeal in
case number 24-2002.
Third, the Government sought an in-limine ruling that the witness
testimony of a prior incident in which Martinez assaulted and acted violently
toward Suazo would be admissible at trial as “other crimes, wrongs, or acts”
under Rule 404(b). Again, the district court disagreed with the Government
and issued an order excluding this evidence from trial, a decision now before
us on appeal in case number 24-2004.
In this interlocutory appeal, we have jurisdiction under 18 U.S.C. § 3731.
Considering the record and arguments in full, we reverse and remand for
further proceedings consistent with this opinion.
3 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 4
I
A1
On November 12 and 13, 2021, Suazo and her boyfriend of 10 years,
Martinez, both of whom were 29 years old, were at their residence in Taos
Pueblo, New Mexico. After Suazo and Martinez went grocery shopping
together the evening of the 12th, Suazo prepared dinner at their home, and
they ate between approximately 5:00 and 6:00 p.m. After dinner, Martinez
played video games while Suazo, a noted artist, worked on her artwork. That
evening and into the morning of the next day, they consumed alcohol and
smoked marijuana together.
According to Martinez’s original account of the events, at some point they
took a break from their respective activities to sit in Suazo’s vehicle to listen
to music, as there was no music system inside the house. Suazo sat in the
driver’s seat and Martinez sat in the passenger seat. They continued drinking
alcohol inside the vehicle. Martinez stated that there was no one else at the
residence or in the area.
1 The facts in this section are allegations from the criminal complaint
and are recited here for background purposes. We emphasize that Martinez is presumed innocent of the charge in the indictment unless or until a jury finds the Government has proved him guilty beyond a reasonable doubt. Agnew v. United States, 165 U.S. 36, 51 (1897). 4 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 5
Per Martinez, in the early hours of November 13, he exited the vehicle
and went inside the house to add wood to a fire. He was uncertain how long he
had been inside due to his level of intoxication. Upon returning outside at
around 3:30 a.m., he found Suazo’s vehicle running and Suazo unresponsive on
the ground near the front driver’s side tire of the vehicle. Because, as Martinez
reported, the front tire was against Suazo’s head and on her arm, he moved the
vehicle to free her arm from under the tire.
Martinez did not call 911; instead, he called members of his and Suazo’s
families to tell them she was deceased. Family members arrived at the scene
and performed CPR on Suazo, while another family member called emergency
services. Local police from the Taos Pueblo Department of Public Safety and
paramedics initially responded to the scene. After assessing the situation, local
police contacted the FBI, who arrived to assist. Paramedics transported Suazo
to the hospital, where she was pronounced dead upon arrival.
Law enforcement officers observed significant injuries to Suazo’s body,
including some injuries consistent with being run over by a vehicle. Law
enforcement also observed (1) the driver’s side door of the vehicle was open, (2)
a dark, dried red substance near the inside driver’s side door handle, and (3)
wet spots on the dirt outside the driver’s front and rear doors. Additionally,
one witness interviewed by law enforcement at the scene described Suazo and
Martinez’s relationship as “toxic.” Aplt. App. I at 35.
5 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 6
Martinez told investigators at the scene that he and Suazo had never
been in a physical altercation and that he did not know how Suazo ended up
under her vehicle. When speaking with Martinez, officers observed a fresh cut
on the knuckle of his right index finger, abrasions on his arms, hands, and
elbows, and blood on his sweatshirt.
B2
When speaking to FBI agents at the scene the morning of November 13,
2021, Martinez volunteered to take a “lie detector test.” Aplt. App. II at 32.
Over a week later, on the morning of November 22, 2021, two FBI agents,
Mariana Manachi and Michelle Cobb, went to Suazo’s great-aunt’s house to
follow up on Martinez’s offer and speak with him. Suazo’s family members, as
well as Martinez and his parents, were there assisting with cleaning the house
and managing affairs following Suazo’s funeral. The two agents asked to speak
with Martinez at the Taos Police Department, to which he agreed.
Martinez and his parents drove together to the Taos Police Department,
arriving separately from the agents. Upon arriving, the three were escorted to
a room specifically arranged to provide a private space for discussion. Inside
2The facts in this section are derived from testimony and exhibits presented at a suppression hearing before the district court. 6 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 7
the room were Martinez, his parents, and two FBI agents, including Agent
Cobb.
A 10-to-15-minute discussion ensued, during which the two agents
sought Martinez’s cooperation in answering additional questions. In keeping
with their practice of conducting one-on-one interviews, the agents requested
to speak with Martinez individually. They also presented to Martinez the
option of taking a polygraph test, clarifying that it was not mandatory.
Martinez’s parents encouraged him to cooperate, and he agreed, stating he
would “do whatever.” Id. at 26. His parents then left the room, returning to the
lobby area to allow the agents to chat privately with Martinez. The agents did
not explain to Martinez’s parents how long the interview would take.
Once alone in the room with Martinez, the two agents began recording
their conversation with him at approximately 10:26 a.m. After asking some
questions about the events of November 12 and 13, Agent Cobb inquired into
whether Martinez was still willing to take a polygraph test, suggesting that it
could “clear [his] name quickly.” Aplt. App. I at 191. Martinez consented,
stating, “If that’s what I need to do, then I’ll do it.” Id. During this conversation,
neither agent mentioned the possibility of a post-polygraph interview. The
recording was turned off at approximately 10:32 a.m.
7 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 8
1
Martinez was escorted to a different room for the administration of the
polygraph test, where Special Agent Donna Coyle had set up the polygraph
machine. This room was located down the hall from the original room within
the police station and featured a one-way mirror. The room measured
approximately 10-by-20 feet, containing one table and two chairs. Only Agent
Coyle and Martinez were inside this secondary room, while Agent Cobb
observed from the other side of the one-way mirror and was able to see and
hear into the room without being perceived.
Agent Coyle then began recording her conversation with Martinez at
approximately 10:34 a.m. She introduced herself and informed him that, before
beginning, she would advise him of his rights and must obtain his consent to
proceed with the polygraph test. She advised him: “I want to make sure that
you know that you’re not in custody . . . and you’re here on your own free will.”
Id. She further explained that although “it might feel like . . . [he] [could not]
go anywhere,” he was “free to leave at any time during [the] test.” Id. at 192.
Agent Coyle customarily informs individuals of their Miranda rights before a
polygraph test, irrespective of whether they are in custody.
She then read aloud a standard “advice of rights” form from a computer
screen, which provided:
8 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 9
Before we ask you any questions, you must understand your rights.
You have the right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we ask you any questions.
You have the right to have a lawyer with you during questioning.
If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.
Id. at 56, 192–93. Martinez confirmed that he understood his rights, did not
have any questions, and electronically signed the form containing this advice
of rights.
Agent Coyle then proceeded to read aloud a polygraph consent form,
again from a computer screen, which provided:
AFFILIATION
Before we begin an examination by means of the polygraph in connection with:
the death of Deanna Suazo
you must understand your rights.
YOUR RIGHTS
You have the right to refuse to take the polygraph test. 9 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 10
If you agree to take the polygraph test, you have the right to stop the test at anytime.
If you agree to take the polygraph test, you have the right to refuse to answer any individual question.
WAIVER AND CONSENT
I have read this statement of my rights and I understand what my rights are. I voluntarily agree to be examined by means of the polygraph during this interview. I understand and know what I am doing. No threats or promises have been used against me to obtain my consent to the use of the polygraph.
I understand that the polygraph examination may be monitored or recorded.
I understand that any attempt to affect the results of the polygraph examination by intentionally manipulating any physiology, regardless of motivation, will be construed as a polygraph countermeasure. Furthermore, I understand that such attempts, or failure to follow the examiner’s instructions, will be deemed as purposeful non- cooperation.
With the above understanding, I agree to submit to a polygraph examination.
Id. at 57, 193. Agent Coyle asked Martinez to read the bolded language aloud,
which he did. He did not have any questions about the rights listed in this form
and indicated his affirmance by electronically signing it. Martinez reviewed
both forms on a computer screen and was not provided with a paper copy of
either. The recording was turned off at approximately 10:41 a.m.
10 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 11
2
Agent Coyle proceeded to administer an unrecorded pre-polygraph
interview, which lasted approximately an hour and a half. During the pre-test
interview, Agent Coyle asked Martinez various administrative questions about
his background, including health, education, and employment, described what
the polygraph would entail, and conducted a practice round. She also said,
“something to the effect of, ‘if you don’t do well, then we will discuss that at the
end.’” Aplt. App. II at 95. When Agent Coyle finished the pre-test interview,
she offered Martinez the opportunity to use the restroom.
3
After Martinez returned unescorted from the restroom, Agent Coyle
began the polygraph, which lasted between thirty minutes and an hour. She
administered two sets of questions to Martinez. Each set could yield one of
three possible results: no deception indicated, inconclusive, or deception
indicated.
In the first set, Agent Coyle asked, “Did you do anything to harm
De[A]nna that night?” and “Did you participate in harming De[A]nna that
night?” Aplt. App. I at 47, 147. The results were inconclusive as to Martinez’s
truthfulness. Agent Coyle then modified her questions for the second set,
asking instead, “Did you do anything to injure De[A]nna that night?” and “Did
11 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 12
you participate in injuring De[A]nna that night?” Aplt. App. I at 47, 147. This
time, the results indicated deception in Martinez’s responses.
4
Upon Martinez “failing” the second part of the test, Agent Coyle
immediately launched into a post-test interview, turning the recorder back on
before she began questioning him. This post-test interview lasted
approximately three hours. Agent Coyle began by stating: “So it’s completely
clear that you weren’t being honest with me today. . . . [Y]ou didn’t pass the
test today. . . . So what we need to talk about is what happened to DeAnna.
Okay?” Aplt. App. I at 225. She recognized that he was in a “scary” and “awful”
situation and encouraged him to tell the truth out of love for Suazo and her
family. Id.
Despite Agent Coyle’s persistent questioning into what happened the
night Suazo died, Martinez repeatedly stated that he did not remember. But
he also made several admissions. He admitted: “we probably did argue,” that
“[Suazo] told me a couple times that she didn’t want to be with me,” and “I hurt
her . . . so bad that I couldn’t even get her back, and it’s my fault.” Id. at 234,
236, 239. He also mentioned that he would tell her parents “[t]hat it was an
accident,” and “I’m taking responsibility that your daughter is . . . gone because
it was just us two, and who else to blame but me.” Id. at 237. As to remembering
the details, he professed, “I’m still thinking, and I’m going to own up to it.” Id.
12 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 13
Agent Coyle repeatedly told Martinez that he was a good person, that good
people make mistakes, and that he would eventually take responsibility and
be forgiven.
Approximately an hour and fifty minutes into the post-test interview,
Martinez had not provided any specific information about what had happened
to Suazo. At that point, Agent Coyle said, “I’m seeing right through you. . . .
I’m seeing through your crap.” Id. at 242. She told Martinez that he was
“completely bullshitting” and he should not “bullshit [her] anymore.” Id.
Martinez then provided specifics, explaining that “[w]e were together in
the car, drinking, being together, and it just went south.” Id. He continued,
“[w]e were arguing” and “I didn’t like what she said,” because “she didn’t want
to be with me,” so “I took it the wrong way and hurt her.” Id. While they were
arguing, he stated she was yelling at him “to stop and to calm down” and
“[k]ept telling me to go to sleep . . . .” Id. at 244. He went on, “me being foolish
and drunk, I didn’t listen to her,” and “that’s when it happened.” Id. He was
“mad” and “didn’t want her to leave,” so he “pushed her,” causing her to fall on
the ground in front of her vehicle. Id. at 242–43. At that point, “angry” and “not
thinking,” he “got in the car and pressed on the gas” and “hit her,” after which
he went back inside the house. Id. at 243–44.
Agent Coyle wanted Martinez to start from the beginning, repeat what
happened, and be specific, so he recounted again:
13 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 14
[We] [c]ame back home. . . . We ate dinner. She cooked for me. . . . We were eating. . . . We were playing games. She was working. She wanted to play so we started playing together. We were playing for a couple hours because . . . we play a long time on there. Got her music out, her little speaker. We kept playing and drinking. I was in and out. We decided to go outside together to go into her car and continue drinking and listening to music. So we both went out there. We went out there together. We got in her car. We were sitting in there for a long time, talking back and forth. And that’s when we started to argue about how things weren’t going right or how it -- we wanted to -- how I wanted it to. We started arguing, and I must have switched seats or I went out to the other side, onto the driver’s side. We were arguing. Things got out of hand. I -- I pushed her, got on her side, accidentally pressed on the -- on the gas, and I hit her. . . . I felt her. . . . I got out. She was still laying there. I didn’t do anything. I was in shock. I didn’t want to believe what happened just happened. And that’s when I went inside, went inside to my house, did whatever I was doing, went in there, checked on how I was putting wood . . . and then . . . went back out and found her like that. And me not putting two and two together that -- that I did it on accident, I didn’t want to believe when I found her.
Id. at 245.
At the end of the post-test interview, Agent Coyle gave Martinez some
snacks, checked to see if he had enough water, and offered him another
opportunity to use the restroom. Martinez asked “when [he would] be able to
go,” to which Agent Coyle responded that she needed to “talk to the case agent
real quick.” Id. at 247. Agent Coyle then asked Martinez if he wanted to write
a statement describing what had happened the night of Suazo’s death. When
he declined, Agent Coyle left the interview room to allow him to reconsider.
When she returned, Martinez repeated that he did not want to write a
14 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 15
statement. Shortly thereafter, Agent Cobb entered the interview room and
arrested him. Martinez stated that he thought he was going home. The entire
process – from when Martinez was first read his Miranda warnings to the
conclusion of all interviewing – took approximately six hours.
C3
The FBI also undertook additional steps as part of its investigation into
DeAnna’s death. On November 19, 2021, law enforcement executed a search
warrant on Martinez’s cell phone. The cell phone data indicated that between
July 18 and November 12, 2021, Martinez exchanged 924 text messages with
Suazo. The messages included multiple exchanges in which Suazo expressed
her desire to end their relationship.4
On July 18, 2021 (118 days before Suazo’s death), Suazo sent the
following text messages to Martinez:
Suazo Martinez I am honestly over us. I don’t want to spread your birthday with you. I would rather much break up before this weekend. I don’t want to be in this relationship as a mentioned a whole bunch of times. I don’t think we’re moving
3 The facts in this section are drawn from three pretrial motions filed by
the Government before the district court.
4 We adopt the Government’s format for presenting the text messages
and do not include any [sic] notations in any of the messages despite potential errors. 15 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 16
forward, I think the both of us are growing apart. *spend*
Aplt. App. I at 131. He did not respond via text message.
On July 23, 2021 (113 days before Suazo’s death), Suazo and Martinez
exchanged the following text messages:
Suazo Martinez I’m done.
We’re done I’m walking back home Already told my parents Ok so you told we’re officially done? Because we are. That you got all hurt because I was smoking a cigarette
Id. at 132.
On August 28, 2021 (77 days before her death), Suazo and Martinez
exchanged the following text messages:
Suazo Martinez Your sister and I tried helping you out and you denied that so… night Stop calling me with threats Walking home I’m outside
Id.
16 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 17
On September 9, 2021 (65 days before Suazo’s death), Suazo sent
Martinez this lengthy text message, to which Martinez responded the following
day:
Suazo Martinez I am officially breaking up with you. I would say this in person or even a call, but your aggressive behavior makes me tell you this via text. You can’t handle your drink, you go above your limit each time and I end up as “the bad person” for trying to help you monitor your drinking. It’s not fun anymore, it’s a huge burden and I’m past those days. We both have better things and responsibilities to take care of.
Also, it’s really lame that you try to cheat with much younger females, aka it’s against the law. I can’t help you or be by your side defending you anymore. Take care of yourself before taking care of others. Also seek the help you need through the people you love in your fam. I’m stepping away. We’re on our way now babe I love you so much and can’t wait to be there with you [heart emoji] be careful on your way down
Id. at 132–33.
On September 26, 2021 (48 days before Suazo’s death), Suazo and
Martinez exchanged these text messages:
17 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 18
Suazo Martinez I have it, we are done broken up!
I offered my help all night into the morning and YOU decided to deny that. It’s not my fault that you can’t handle your alcohol, you didn’t want to leave with me last night, when I was practically begging you Whatever I walked all this morning We’re done. I’m not going to argue with someone who doesn’t appreciate me. I’m blocking you. Whatever go ahead I’ve been trying to reach you all night Sure you did. Look at all my texts to you!?! Ok, fine, we’re done. Im done putting up with you and your behavior. I don’t need this or you. You’d be the same damn way Whatever Yeah you don’t need me Yea I don’t. Bye. Obviously you didn’t care last night Bye! Uh huh sure you didn’t fucking care So bye I’m done arguing to a brick wall. Bye. We’re done. Yeah helped by me walking this morning Drive safe, and I’ll get my stuff out this week.
18 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 19
Yeah I’ll take it out I don’t need your aggression, I’ll do myself and be out of your way.
Id. at 133–34.
On November 5, 2021 (eight days before Suazo’s death), Suazo and
Martinez exchanged the following text messages:
Suazo Martinez I’m not saying this because I’m mad. I’m saying this because it’s how I’ve been feeling for a long time now. We really need to take time from each other. I’m not in the right place to be in a relationship with you. I’m sorry [Suazo] all I asked was to tie my hair. I’ll learn how so you don’t have to worry. Not going to argue about this and if you don’t want to stay around me then you don’t have to. It’s not about your hair, it’s about how we argue or get mad at every little thing. It’s not just me but it’s also you too.
I’m not happy anymore. Even when we try to have fun usually something happens between us, and that reinsurers that I’m not happy. I wasn’t the one getting mad this morning. We’ll if your not happy then It’s both of our attitudes, when I helped you find your phone you could have said “thank you.”
19 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 20
Instead you just walked out of the house.
I need time to work on my priorities, my work and school. Being around you everyday prevents me from doing that. I know my attitude is bad and I’m going to work on controlling it. Sorry I didn’t say anything cause I was already 20 minutes late. Okay I understand that, if I prevent you then shouldn’t be with me. I’m sorry [Suazo]
Id. at 134.
Lastly, on November 5, 2021 (seven days before Suazo’s death), Suazo
and Martinez exchanged the following text messages:
Suazo Martinez This photo makes it very clear for me to end this relationship. You pretended to be single around this time last year. Now you can have what you really wanted, being single.
[Suazo attached a photo of a screenshot of Martinez’s phone in which Martinez received a sexual picture of another female] There’s a cop up here. Going next door. I don’t think that was the cops looked like my uncles brown truck.
Id. at 174.
20 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 21
Additionally, FBI agents interviewed friends and family of Suazo and
Martinez following Suazo’s death. From these interviews, the Government
learned from multiple witnesses of an incident approximately eleven months
before Suazo’s death, where Martinez pinned her down and strangled her to
prevent her from leaving his home. According to the witnesses, Martinez’s
parents had to intervene to help Suazo escape.
II
On December 21, 2021, a grand jury in the United States District of New
Mexico returned an indictment charging Martinez with one count of second-
degree murder in Indian Country, in violation of 18 U.S.C. §§ 1111(a) and 1153.
He pleaded not guilty at an arraignment held on December 30, 2021.
In anticipation of trial, the parties filed pretrial motions. On March 1,
2023, Martinez filed a motion to suppress the statements he made during the
post-polygraph interview. Therein, Martinez argued that law enforcement
should have re-Mirandized him before the post-polygraph interview,
contending that the initial Miranda advisement given prior to the polygraph
was insufficient for the subsequent interrogation because he was unaware
there would be additional questioning at the end of the polygraph test.
On March 21 and May 2, 2023, the Government filed two related motions
in limine to admit into evidence seven text message exchanges between Suazo
21 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 22
and Martinez in which Suazo discussed breaking up with Martinez. The
Government argued they were seeking to admit the messages for a non-
hearsay purpose in compliance with Rule 801(c)(2), as they were not being
offered for the truth of the matter asserted – that Suazo actually intended to
break up with Martinez – but for their effect on Martinez, the recipient.
Specifically, the messages were intended to demonstrate, amongst other
things, Martinez’s belief that Suazo wanted to end their relationship, thereby
providing him with a motive for murder.
On April 3, 2023, the Government filed a notice of intent pursuant to
Rule 404(b) seeking to elicit witness testimony of a prior instance of physical
abuse perpetrated by Martinez against Suazo.
The district court held a hearing on the motions on October 26, 2023. In
three separate written orders, issued on November 30, December 5, and
December 7, 2023, the district court granted Martinez’s motion to suppress and
denied the Government’s motions.
The Government now appeals those rulings in this interlocutory appeal.
“An appeal by the United States shall lie to a court of appeals from a decision
or order of a district court suppressing or excluding evidence . . . in a criminal
proceeding,” provided “the defendant has [not] been put in jeopardy and before
the verdict or finding on an indictment or information,” so long as “the United
States attorney certifies to the district court that the appeal is not taken for
22 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 23
purpose of delay and that the evidence is a substantial proof of a fact material
in the proceeding.” 18 U.S.C. § 3731. Here, the Government filed three separate
notices of appeal, challenging each of the aforementioned written orders by the
district court. For each notice of appeal, the United States Attorney certified
that “this appeal is not taken for purpose of delay and that the excluded
evidence is a substantial proof of a fact material in this proceeding.” Aplt. App.
II at 266–68. Accordingly, we have jurisdiction to review these timely appeal.
III
We now turn to whether the district court erred in excluding as evidence
in Martinez’s impeding trial: (1) his post-polygraph statements to the FBI, (2)
text messages between Suazo and Martinez in which she discussed ending
their relationship, and (3) witness testimony of a prior act of violence
perpetrated by Martinez against Suazo.
A
First, the Government argues that the district court erred in suppressing
Martinez’s post-polygraph statements by ruling that Martinez had been
“constitutionally entitled to a new advisement of his Miranda rights prior to
the post-test interview.” Op. Br. at 18 (quoting Aplt. App. II at 246).
Specifically, the Government contends that Martinez validly waived his Fifth
Amendment privilege to remain silent before the polygraph, there was no
23 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 24
significant change in circumstances that would have required re-Mirandizing
him before the post-polygraph interview, and that his confession was
voluntarily made. According to the Government, the district court misapplied
the totality of the circumstances test, as none of the factors identified by the
district court justified the suppression of Martinez’s statements.
1
We review de novo the legal question of whether the defendant
voluntarily, knowingly, and intelligently waived his Miranda rights. United
States v. Burson, 531 F.3d 1254, 1256 (10th Cir. 2008). Moreover, we review
the district court’s underlying factual findings for clear error. United States v.
Warrington, 78 F.4th 1158, 1166 (10th Cir. 2023). We will reverse a district
court’s findings of fact “only if they are without factual support in the record”
or if we, “considering all the evidence, [are] left with a definite and firm
conviction that a mistake has been made.” United States v. Cortes-Gomez, 926
F.3d 699, 708 (10th Cir. 2019). As a court reviewing the record on appeal, we
must consider the evidence adduced at the suppression hearing in the light
most favorable to the prevailing party, here, Martinez. United States v. Young,
964 F.3d 938, 942 (10th Cir. 2020).
2
The Fifth Amendment to the United States Constitution guarantees that
“[n]o person . . . shall be compelled in any criminal case to be a witness against
24 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 25
himself . . . .” U.S. Const. amend. V. Whenever a question arises regarding the
validity of a defendant’s waiver of their right against self-incrimination, the
issue is governed by this portion of the Fifth Amendment.
In Miranda v Arizona, the Supreme Court explained that an individual’s
Fifth Amendment privilege against self-incrimination is “jeopardized” when
they are in custody and subjected to questioning. 384 US 436, 478 (1966). Thus,
the Court held that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination.” Id. at 444. That is, a person
subject to custodial interrogation must be given specific rights advisements
and warnings designed to safeguard their Fifth Amendment rights. Id. at 444–
45.
A proper Miranda warning does not require magic words. Duckworth v.
Eagan, 492 U.S. 195, 202–03 (1989) (“We have never insisted that Miranda
warnings be given in the exact form described in that decision.”). Rather, the
warning must reasonably inform an individual in custody of the following: (1)
the right to remain silent, (2) that any statement may be used against them in
court, (3) the right to have an attorney present during questioning, and (4) the
right to have an attorney appointed if they cannot afford one. Id.
25 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 26
Law enforcement officials are not required to issue Miranda warnings to
every person they arrest or question – only those subject to “custodial
interrogation.” Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam). A
suspect is “in custody” for purposes of Miranda when placed under formal
arrest or when a reasonable person in the suspect’s position would have
understood the situation to constitute a “‘restraint on freedom of movement’ of
the degree associated with a formal arrest.” California v. Beheler, 463 U.S.
1121, 1125 (1983) (quoting Mathiason, 429 U.S. at 495). Further,
“interrogation” refers not only to express questioning but also to any words or
actions on the part of the police – other than those normally attendant to arrest
and custody – that the police should know are reasonably likely to elicit an
incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291,
301 (1980).
The defendant bears the initial burden of establishing they were subject
to custodial interrogation. United States v. Davis, 792 F.2d 1299, 1309 (5th Cir.
1986) (holding that the defendant “ha[s] the burden of proving that he was
under arrest or in custody”); United States v. Jorgensen, 871 F.2d 725, 729 (8th
Cir. 1989) (same); United States v. Woodson, 30 F.4th 1295, 1302 (11th Cir.
2022) (same). Once the defendant establishes a prima facie case of custodial
interrogation, the burden shifts to the Government to establish by a
preponderance of the evidence that any waiver of the defendant’s Fifth
26 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 27
Amendment privilege comported with the requirements of Miranda and its
progeny. Miranda, 384 U.S. at 475. If the defendant did not voluntarily,
knowingly, and intelligently waive their rights, Miranda prevents statements
obtained during a custodial interrogation from being used at trial. Id. at 471–
73.
3
On appeal, the Government does not contest the district court’s legal
conclusion that Martinez was in custody during the post-polygraph interview.
Thus, primarily at issue is whether the Government has met its burden of
demonstrating that Martinez validly waived his Miranda rights in connection
with the post-polygraph interview.
“[A] suspect may waive [their] Fifth Amendment privilege, ‘provided the
waiver is made voluntarily, knowingly and intelligently.’” Colorado v. Spring,
479 U.S. 564, 572 (1987) (quoting Miranda, 384 U.S. at 444). To be voluntary,
the relinquishment must be the “product of a free and deliberate choice rather
than intimidation, coercion, or deception.” Id. at 573 (quoting Moran v.
Burbine, 475 U.S. 412, 421 (1986)).
To be knowing and intelligent, the waiver “must have been made with a
full awareness both of the nature of the right being abandoned and the
consequences of the decision to abandon it.” Id. (quoting Moran, 475 U.S. at
421). Put simply, the suspect must comprehend the meaning of the words in
27 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 28
the warning. Id. at 574. The “Constitution does not require that a criminal
suspect know and understand every possible consequence of a waiver of the
Fifth Amendment privilege.” Id. (emphasis added). Rather, they need only be
made aware of their options: (1) they “may choose not to talk to law
enforcement officers,” (2) “talk only with counsel present,” or (3) “discontinue
talking at any time.” Id.
Moreover, a waiver need not be expressly given; it may be implied if the
suspect understands their rights and engages in a course of conduct indicating
waiver. North Carolina v. Butler, 441 U.S. 369, 373 (1979). In sum, a Fifth
Amendment waiver is only valid if the “totality of the circumstances . . . reveal
both an uncoerced choice and the requisite level of comprehension . . . .” Spring,
479 U.S. at 573 (quoting Moran, 475 U.S. at 421).
This appeal raises two questions: (1) whether a suspect’s signed waiver
provided in response to Miranda warnings given prior to a polygraph test –
without clear mention that a post-polygraph interview could follow – is limited
in scope to just the polygraph test; and (2) whether Miranda warnings given
before a polygraph test become stale or ineffective by the time of or during a
post-polygraph interview, such that the suspect should have been re-
Mirandized. We address each issue in turn.
28 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 29
4
The first issue concerns whether Martinez’s executed waiver of his Fifth
Amendment privilege was valid and, if so, whether it was limited in scope to
only the polygraph test, excluding the post-polygraph interview. In his motion
to suppress before the district court, Martinez challenged the validity of any
purported waiver of his rights, asserting he never voluntarily, knowingly, or
intelligently waived them. See Aplt. App. I at 54 (“Any waiver of Mr. Martinez’
Fifth Amendment rights was not knowing and voluntary based on the totality
of the circumstances.”).
Martinez’s challenge to the voluntariness of the signing and execution of
the rights advisement and waiver – i.e., that it resulted from intimidation,
coercion, or deception, Spring, 479 U.S. at 572 – cannot be credibly made.
There is no evidence, for example, that Agent Coyle committed or threatened
to commit any act of violence against Martinez,5 handcuffed or restrained him,
5 Involuntary confession cases offer useful insights on voluntariness. See,
e.g., Beecher v. Alabama, 389 U.S. 35, 36–37 (1967) (per curiam) (concluding confession involuntary where police held a gun to the suspect’s head and subsequently shot at him before extracting a confession); Payne v. Arkansas, 356 U.S. 560, 566–67 (1958) (concluding confession involuntary where the police threatened the suspect with mob violence); Brown v. Mississippi, 297 U.S. 278, 284–86 (1936) (concluding confession involuntary where suspects were brutally whipped and tortured until they confessed).
29 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 30
deprived him of food, water, or restroom breaks,6 or made any threats,
promises, or inducements to him7 in an effort to obtain the waiver of his rights.
That leaves us with the questions of whether his executed waiver was
knowing and intelligent, and whether it was limited in scope to only the
polygraph test. Id. Martinez asserted before the district court that his waiver
was not knowing and intelligent, in part, because the “Miranda warning that
[Agent] Coyle administered to [him] was a standard advice of rights and did
not indicate that he would be subject to a post-polygraph examination.” Aplt.
App. I at 54.
Recall that Martinez initially proposed and later voluntarily agreed to
undergo a polygraph test. Once in the polygraph-testing room, Agent Coyle
6 See, e.g., Culombe v. Connecticut, 367 U.S. 568, 622–23 (1961) (concluding confession involuntary where suspect was deprived of adequate food, rest, and human contact); Payne, 356 U.S. at 564, 567–68 (concluding confession involuntary where suspect was deprived of food for over 24 hours); Chambers v. Florida, 309 U.S. 227, 231, 238–41 (1940) (concluding confession involuntary where the suspect was held in extended detention without adequate food or rest).
7 See, e.g., Arizona v. Fulminante, 499 U.S. 279, 287–88 (1991) (concluding confession involuntary where a government informant promised the suspect protection from physical harm in exchange for the confession); Lynumn v. Illinois, 372 U.S. 528, 533–34 (1963) (concluding confession involuntary where the police threatened the suspect with losing custody of her children and welfare benefits if she did not cooperate); Spano v. New York, 360 U.S. 315, 323–34 (1959) (concluding confession involuntary where police used the suspect’s close childhood friend, who was a police officer, to suggest that the officer would be fired if the suspect did not cooperate). 30 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 31
introduced herself, informed Martinez that she would advise him of his rights,
and told him that she needed his consent to proceed with the polygraph test.
She then read aloud a standard advice of rights form, which Martinez
confirmed he understood, had no questions about, and electronically signed.
The rights form advised Martinez of his Miranda rights and hit all the marks
Miranda and its progeny require. See Duckworth, 492 U.S. at 202–03.
Following the initial advisement of rights, Agent Coyle read aloud a polygraph
consent form, which Martinez also read a portion of aloud and then
electronically signed. At this point, Martinez had not been told explicitly that
there could be an interview after the polygraph test; however, he also had not
been assured that one would not occur.
To determine whether the waiver was knowing and intelligent, we
consider the totality of the circumstances, including the defendant’s “age,
experience, education, background, and intelligence,” amongst other
characteristics, to determine “whether [they] ha[d] the capacity to understand
the warnings given [to them], the nature of [their] Fifth Amendment rights,
and the consequences of waiving those rights.” Fare v. Michael C., 442 U.S.
707, 725 (1979).
The focus of our inquiry is whether Martinez had the capacity to
understand the rights he was waiving, not whether he understood how the
interrogation would be conducted. Spring, 479 U.S. at 577 (“[A] suspect’s
31 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 32
awareness of all the possible subjects of questioning in advance of interrogation
is not relevant to determining whether the suspect voluntarily, knowingly, and
intelligently waived his Fifth Amendment privilege.”). Police are not required
to inform a suspect of what questions they plan to ask, how long the
questioning will take, who will be asking the questions, or any other specifics
for a waiver to be knowing and intelligent. In this context, an advice of rights
form is not required to “ma[k]e it clear to the [suspect] that [they are] not
merely taking a polygraph examination but [are also] going to be asked
questions about a specific offense under investigation.” United States v.
Gillyard, 726 F.2d 1426, 1429 (9th Cir. 1984).
Martinez does not argue that he did not have the capacity to understand
his options – i.e., (1) “choose not to talk to law enforcement officers,” (2) “talk
only with counsel present,” or (3) “discontinue talking at any time.” Spring,
479 U.S. at 574. Nor is there any allegation that he misunderstood the
consequences of speaking freely to law enforcement. As stated, not only were
his rights read to him, but he also read a portion of the polygraph rights
advisement aloud, stated affirmatively he understood his rights, and signed
the form to indicate his waiver of the rights listed. Thus, we conclude that
Martinez’s post hoc claim that he was unaware there was a possibility of
further questioning after the polygraph test did not affect his ability to
comprehend the meaning of the warnings he was given at the outset.
32 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 33
Still, if the officers or the rights advisement itself, implicitly or explicitly,
create the impression that the defendant’s Miranda rights apply only to certain
phases of questioning or under specific conditions, it could limit the scope of
the defendant’s valid waiver.
Martinez argues that at the time he was advised of these rights, he was
not informed that there could be a post-polygraph interview. Because he was
unaware of the possibility of additional questioning after the polygraph test,
he argues any valid waiver does not extend in scope to the post-polygraph
interview. The district court agreed and concluded that by signing the rights
advisement form, “Martinez did not knowingly and intelligently relinquish his
rights in connection with the post-test interview.” Aplt. App. II at 238 (emphasis
added).
This argument is unavailing for two reasons. First, neither Agent Coyle
nor the advisement of rights form suggested or indicated that Martinez’s Fifth
Amendment privilege could be invoked only during the pre-polygraph
interview or polygraph test. Second, “it would have been unreasonable for
[Martinez] . . . to assume that [he] would not be informed of the polygraph
readings and asked to explain any unfavorable result.”8 Wyrick v. Fields, 459
U.S. 42, 47 (1982) (per curiam).
8 Even if this language in Fields is dicta, we are “bound by Supreme
Court dicta almost as firmly as by the Court’s outright holdings, particularly 33 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 34
Accordingly, we hold that Martinez’s signed waiver of his Fifth
Amendment rights was voluntary, knowing, and intelligent and was not
limited in scope to only the polygraph test. The district court erred in
concluding otherwise.
5
Nevertheless, a valid initial waiver does not extend indefinitely. The
district court held that “Martinez was constitutionally entitled to a new
advisement of his Miranda rights prior to the post-test interview.” Aplt. App.
at 246. Because he was not provided with “renewed warnings,” “the post-test
interview was conducted in violation of Mr. Martinez’s Fifth Amendment
rights and, as a result, the content of the post-test interview, and all
statements made by Mr. Martinez” were suppressed by the district court. Id.
Here lies the heart of this appeal.
In certain circumstances, a suspect must be readvised of their Miranda
rights and reaffirm their waiver, as the warnings can become “stale” if
changing circumstances diminish their effectiveness. United States v.
Rodriguez-Preciado, 399 F.3d 1118, 1128–29 (9th Cir.), amended, 416 F.3d 939
(9th Cir. 2005). The Supreme Court, however, has rejected a per se rule
when the dicta is recent and not enfeebled by later statements.” United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir. 2017) (quoting United States v. Nelson, 383 F.3d 1227, 1232 (10th Cir. 2004)). 34 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 35
requiring a suspect to be readvised of their rights in specific situations, instead
favoring a flexible approach that focuses on the totality of the circumstances.
See Fields, 459 U.S. at 48–49 (per curiam) (rejecting per se rule requiring police
to readvise suspect of their rights before questioning them about the results of
a polygraph examination). Because it so closely aligns with the facts before us,
Fields deserves a closer look.
In 1982, the Supreme Court in Fields considered whether a defendant
needed to be readvised of his Miranda rights after completing a polygraph
examination. 459 U.S. at 46–47. Before initiation of the test, Fields received a
written consent document informing him of his Miranda rights, which he
waived in writing. Id. at 44. At the conclusion of the polygraph examination,
which took less than two hours, the examiner told Fields “there had been some
deceit, and asked him if he could explain why his answers were bothering him.”
Id. Fields then made several admissions, which he later sought to suppress.
Id. at 44–45. Fields is on-point, factually and legally, to this case.
In a per curiam decision, the Supreme Court held that the police did not
need to readvise Fields of his Miranda rights as he had continued to make a
voluntary, knowing, and intelligent waiver. See id. at 49. The Court concluded
Miranda warnings remain effective for subsequent questioning unless “the
circumstances change[] so seriously that [the suspect’s] answers no longer were
voluntary, or unless [the suspect] no longer was making a ‘knowing and
35 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 36
intelligent relinquishment or abandonment’ of [their] rights.” Id. at 47 (quoting
Edwards v. Arizona, 451 U.S. 477, 482 (1981)).
Accordingly, we apply a totality of the circumstances test when
determining whether a subsequent interrogation (whether in the polygraph
context or not) requires officers to readvise the suspect of their Miranda rights
and obtain a new waiver. See id. at 48. First, we ask whether – at the time the
initial Miranda warnings were provided – the defendant knew, understood,
and validly waived their rights and this waiver was not limited in scope. Id. If
so, we then consider whether anything occurred between the warnings and the
defendant’s statements that rendered the defendant unable to fully and
properly evaluate the effect of exercising or waiving those rights before making
a statement to law enforcement. See id. at 47.
Because we have already held that Martinez’s executed waiver of his
Fifth Amendment privilege was voluntary, knowing, and intelligent and was
not limited in scope, we must now consider whether circumstances changed so
significantly between his (a) initial waiver and the polygraph test and (b) the
post-polygraph interview that he was required to be re-Mirandized and provide
a new waiver before the post-polygraph interview.
Our court has yet to address which factors should be evaluated in making
this determination. We find several factors relevant to this inquiry: (1) the
passage of time between the initial rights waiver and the subsequent
36 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 37
interrogation, (2) any material changes in the location or environment between
the initial and subsequent interrogation, (3) whether the subject matter of the
questioning changed or shifted between the initial and subsequent
interrogation, (4) whether the suspect was made aware that follow-up
questions or another interrogation could occur, and (5) any other
circumstances suggesting that the effectiveness of the earlier Miranda
warning had diminished by the time of the subsequent interrogation.9
Passage of time. First, we consider the passage of time between the initial
waiver and the subsequent interrogation, including whether there were any
significant breaks or interruptions. As time elapses between an initial waiver
and a subsequent interrogation, a suspect’s ability to recall and understand
9 Other circuits have identified the following as the most significant factors to consider when determining whether a suspect who was Mirandized before a polygraph must be re-Mirandized before a post-polygraph interview: (1) who initiated the post-polygraph questioning, (2) whether the defendant has consulted with counsel, and (3) whether the signed waiver clearly specifies that it applies to post-polygraph questioning or only to the polygraph test. See United States v. Leon-Delfis, 203 F.3d 103, 111 (1st Cir. 2000); United States v. Johnson, 816 F.2d 918, 921 n.4 (3d Cir. 1987); United States v. Gillyard, 726 F.2d 1426, 1429 (9th Cir. 1984).
We decline to adopt the first two factors because they do not necessarily reflect whether the suspect’s understanding of their rights or the voluntariness of their waiver was affected by any meaningful change in circumstances between the polygraph and post-polygraph interrogation. So too, the third factor speaks to the existence and scope of any waiver – specifically whether the signed waiver was broad enough to cover both the polygraph and any follow-up questioning – rather than on whether subsequent events impacted the suspect’s ability to understand or voluntarily maintain the waiver. 37 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 38
their Miranda rights might diminish. However, “the passage of time alone
[does not] invalidate[] previously given Miranda warnings.” Mitchell v. Gibson,
262 F.3d 1036, 1057 (10th Cir. 2001). “Courts have consistently upheld the
integrity of Miranda warnings even in cases where ‘several hours’ have elapsed
between the reading of the warning and the interrogation.” Id. at 1057–58
(quoting United States v. Frankson, 83 F.3d 79, 83 (4th Cir. 1996)).
Here, there was no break in time between the advisement of his rights,
the pre-polygraph interview, the polygraph test, and the post-polygraph
interrogation. The advisement of rights and waiver took less than 10 minutes,
the pre-polygraph interview lasted about an hour and a half, the polygraph
test itself ranged between thirty minutes to an hour, and the post-polygraph
interview extended for approximately three hours. Altogether, from the time
Martinez was given his Miranda warnings and waived these rights to the
conclusion of all questioning, the entire process spanned roughly six hours.
Less than three hours elapsed between his advisement of rights and the start
of the post-polygraph interview. This relatively short time frame suggests that
the initial advisement of rights remained fresh throughout the process.
Changes in the environment. When considering whether there were
changes in the location or environment between the initial and subsequent
interrogation, see id. at 1058 (analyzing “whether the character of the
interrogation had changed significantly”), we examine, inter alia, whether the
38 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 39
initial and subsequent interrogations occurred in the same location, whether
the same law enforcement personnel conducted both interrogations, and
whether the same individuals were present during both interrogations. A
change in the location or environment may lead to a significant change in
circumstances because it might alter the psychological or emotional state of
the suspect, which could make them more likely to forget, confuse, or
misunderstand their rights.
Here, both the polygraph test and post-polygraph interview took place in
the same room and were conducted by the same person, Agent Coyle, with only
Martinez and Agent Coyle present the entire time. These facts indicate
continuity rather than a significant shift in the interrogation environment.
Subject matter of the questioning. We also evaluate whether the subject
matter of the questioning changed or shifted between the initial and
subsequent interrogation. See id. (examining “whether the questions put to the
defendant subsequently would have caused him to forget the rights of which
he had been advised and which he had previously understood”).
Here, during both the polygraph examination and the post-polygraph
interview, the subject matter of the questioning remained the same – Martinez
was fully aware that he was being asked about, and then accused of, causing
Suazo’s death. The consistent focus on the same subject matter throughout the
questioning demonstrates no substantial change in circumstances.
39 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 40
Awareness of follow-up interrogation. Additionally, we consider whether
the suspect was informed in advance that follow-up questions or further
interrogation could take place. Awareness of a follow-up interrogation reduces
the likelihood that the subsequent questioning would feel like a distinct or
separate event, thereby preserving the effectiveness of the initial Miranda
warnings and waiver of rights.
Here, Agent Coyle told Martinez during the pre-polygraph interview,
“something to the effect of, ‘if you don’t do well, then we will discuss that at the
end,’” Aplt. App. II at 95, putting Martinez on notice that subsequent
questioning could occur. Like Miranda warnings, magic words are not required
to put a suspect on notice that follow-up questions or interrogation may be
forthcoming. That is especially true when, as here, the agent concludes the
suspect provided deceptive responses during the polygraph test. Just as in
Fields, “it would have been unreasonable for [Martinez] . . . to assume that [he]
would not be informed of the polygraph readings and asked to explain any
unfavorable result.” 459 U.S. at 47.
Any other circumstances. Lastly, we consider any other circumstances
suggesting that the effectiveness of the earlier Miranda warning had or had
not diminished by the time of the subsequent interrogation. Rodriguez-
Preciado, 399 F.3d at 1129. In support, Martinez points to the five factors the
40 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 41
district court found indicative of a change in circumstances. We address each
in turn.
First, the district court determined that Martinez’s status as a “young
man who had no previous exposure to the criminal justice system,” and who
was not represented by counsel, weighed in favor of a change in circumstances.
Aplt. App. II at 238 (quoting United States v. Johnson, 816 F.2d 918, 921 n.4
(3d Cir. 1987)). Yet these facts pertain more to whether Martinez’s initial
waiver was knowing and voluntary, rather than whether there was a
subsequent change in circumstances. Relevant to our inquiry, Martinez’s age
of 29 does not necessarily qualify him as young. And while he may not have
been represented by counsel, that was of his choosing. He first spoke to FBI
agents the morning of Suazo’s death and was not reapproached about a
subsequent interview until more than a week later. Either way, his age and
status as unrepresented by counsel remained unchanged for the duration of
his time at the Taos Police Department.
Second, the district court concluded there was a change in circumstance
because Martinez was never advised, either orally or in writing, prior to
signing the advice of rights form that post-examination questioning was a
possibility. However, before the polygraph test, Agent Coyle told Martinez,
“something to the effect of, ‘if you don’t do well, then we will discuss that at the
end.’” Aplt. App. II at 95. Moreover, this argument is foreclosed by Fields. 459
41 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 42
U.S. at 47 (“[I]t would have been unreasonable for Fields and his attorneys to
assume that Fields would not be informed of the polygraph readings and asked
to explain any unfavorable result.”). Thus, this fact is unpersuasive.
Third, the district court pointed to the fact that although Martinez
initially raised the possibility of a polygraph, it was the FBI agents who took
the concrete steps to arrange it. This fact is both obvious and mostly irrelevant.
The Government has the duty to investigate crimes, so naturally it arranged
the polygraph test because it has both the polygraph machine and the
polygrapher. This fact does little to explain any change in the circumstances
or conditions under which Martinez initially waived his rights.
Fourth, the district court highlighted that Agent Coyle, not Martinez,
initiated the post-test interview. While who initiated the subsequent
interrogation can be relevant to whether a suspect implicitly waived their
rights – since initiating contact can be seen as a course of conduct indicating
waiver, see Butler, 441 U.S. at 373 – it again does not address whether the
conditions under which the suspect initially waived their rights had changed.
Lastly, the district court emphasized that Agent Coyle “effectively
switched her role from that of neutral test administrator to an interrogator”
who refused to accept Martinez’s claimed loss of memory, who proposed her
own facts, and who employed an “unrelentingly aggressive and accusatory
post-test questioning” for “over three hours . . . .” Aplt. App. II at 242–44. The
42 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 43
Government asserts that these factual findings characterizing the post-
polygraph interview were erroneous.
We agree. This characterization of the interview assumes, without basis
in the record, that Agent Coyle was ever “neutral” such that her role switched
while she was in the room with Martinez. Agent Coyle works for the FBI to
conduct interviews and polygraph examinations. Although objectivity should
be central to her role as a criminal investigator, no reasonable person in
Martinez’s position would or should conclude that an FBI Agent is simply a
“neutral test administrator . . . .” Aplt. App. II at 242. This is particularly true
after she advised him of his Miranda rights and informed him that FBI agents
wanted to discuss Suazo’s death, where, by Martinez’s account, he was the only
person present when she died.
Moreover, the shift in the tone and manner of questioning may have
represented a change in conditions but, in light of the other circumstances just
discussed, it was not significant enough to cause Martinez to forget or
misunderstand his initial rights. After all, it is unsurprising that a polygraph
test would be conducted in a less accusatory manner than a subsequent post-
polygraph interview.
Considering the totality of the circumstances, merely “[d]isconnecting
the polygraph equipment effectuated no significant change in the character of
the interrogation,” and “would not have caused [Martinez] to forget the rights
43 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 44
of which he had been advised and which he had understood moments before.”
Fields, 459 U.S. at 47, 49. Therefore, we hold that the district court erred in
suppressing Martinez’s post-polygraph statements on the grounds that he was
required to be re-Mirandized and his waiver reaffirmed before the post-
polygraph interview.
6
As a last resort, Martinez alternatively argues that his post-polygraph
statements were made involuntarily or were the product of coercion. Although
this argument was not presented to the district court in his motion to suppress,
Martinez asserts we “may affirm [the district court] for any reason supported
by the record.” Resp. Br. at 53 (quoting United States v. Myers, 362 F.3d 667,
674 n.7 (10th Cir. 2004)) (alteration in original). We decline to consider this
new argument raised by Martinez for the first time on appeal, particularly as
this case is in the pretrial phase and the district court has not been provided
an opportunity to address it in the first instance.
B
In the second appeal, the Government argues that the district court
erred in excluding text messages from Suazo to Martinez, in which she
repeatedly expressed her intent to break up with him, on hearsay grounds per
Rule 801(c). The Government asserts that these messages show their impact
44 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 45
on Martinez as the listener, rather than prove Suazo actually intended to end
the relationship. That effect, according to the Government, is his potential
motive or intent to harm Suazo in response to her expressed desire to leave
him. Additionally, the Government sought to introduce this evidence to
contradict Martinez’s claim that on the morning of her death the couple was
“fine” and had no issues. Op. Br. at 19–20 (quoting Aplt. App. I at 135).
1
“We review a district court’s evidentiary rulings for an abuse of
discretion, considering the record as a whole.” United States v. Ledford, 443
F.3d 702, 707 (10th Cir. 2005). A district court abuses its discretion when its
decision is “arbitrary, capricious or whimsical” or when it commits legal error.
United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir. 1997) (quoting
United States v. Wright, 826 F.2d 938, 943 (10th Cir. 1987)). We will not
reverse an evidentiary determination that “falls within the ‘bounds of
permissible choice in the circumstances.’” Id. (quoting United States v.
Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996)).
2
The Federal Rules of Evidence define “hearsay” as a statement that “the
declarant does not make while testifying at the current trial or hearing . . .
offere[d] in evidence to prove the truth of the matter asserted in the
45 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 46
statement.” Fed. R. Evid. 801(c). Hearsay is generally inadmissible unless it
falls within a specific exception to the hearsay rule. Fed. R. Evid. 802.
However, “[i]f the significance of an offered statement lies solely in the
fact that it was made, no issue is raised as to the truth of anything asserted,
and the statement is not hearsay.” Fed. R. Evid. 801(c) advisory committee’s
note to 1972 proposed rules. Thus, “[w]e have long held that a statement
offered to establish its effect on the listener is not hearsay.” United States v.
Murry, 31 F.4th 1274, 1292 (10th Cir. 2022). Statements admitted for this
purpose can be relevant to proving the intent, knowledge, beliefs, motivation,
or any other reaction of the person who heard it. See 30B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 6719 (3d ed. 2024). For
example, such statements can explain “why the listener acted as [they] did.”
United States v. Churn, 800 F.3d 768, 776 (6th Cir. 2015); accord 4 Christopher
B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:20 (4th ed. 2024)
(“Sometimes the point is to explain why a person behaved as [they] did, since
words read in print or heard in conversation can motivate or inform the person
who reads them or hears them spoken.”).
3
The district court excluded the messages on the basis that they “‘invite[d]
the jury to accept as true’ [Suazo’s] statements of her intent to break up with
Mr. Martinez.” Aplt. App. II at 252 (quoting United States v. Graham, 47 F.4th
46 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 47
561, 567 (7th Cir. 2022)). Because Martinez “either did not respond at all,
responded but did not address the portions of her messages that indicated her
intent to end their relationship, or apologized and even agreed that she should
not be with him if she was unhappy,” the district court determined that the
messages could not have been offered to show that they caused him to develop
the motive or intent to kill her and were instead being offered to show that she
wanted to break up with him. Id. The district court, therefore, ruled that the
messages were inadmissible hearsay. Id. at 254.
The Government disputes that it sought to admit the text messages for
the truth of the matter asserted, or in other words, “that [Suazo] actually
intended to break up with [Martinez].” Op. Br. at 19 (quoting Aplt. App. I at
130). We agree that the text messages were not offered for a hearsay purpose
and hold that the district court erred in excluding them as inadmissible on this
basis.
First, for these statements to be admissible, it is not necessary for the
Government to prove that Suazo genuinely intended to break up with
Martinez. Rather, the evidentiary value lies in the fact that her phone
communicated this information to his phone. Hypothetically, even if someone
else had taken Suazo’s phone and written all the pertinent messages, the effect
on Martinez would still be the same.
47 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 48
Second, the district court erred as a matter of law by requiring the
Government to produce evidence of Martinez’s responses to the messages to
establish their effect on him as the listener. For the “effect on the listener”
exception to be applicable, it is sufficient that the listener received the
information and that it had some impact on them. See, e.g, United States v.
Farley, 992 F.2d 1122, 1125 (10th Cir. 1993) (holding that child sex abuse
victim’s statements to sibling that “[defendant] is going to get you. He’s a bad
man,” as overheard by their mother, could be used to explain the mother’s
suspicion and decision to question the victim); United States v. Morales-
Macias, 855 F.2d 693, 695 (10th Cir. 1988) (holding that witness’s testimony
that his brother instructed him to go to a bar in El Paso to meet a man who
would take him to Albuquerque for $500 was properly offered to explain why
the witness went to the bar and rode in the man’s vehicle); United States v.
Twitty, 689 F. App’x 890, 893–95 (10th Cir. 2017) (unpublished)10 (holding that
redacted court orders, which defendant referenced in threatening letters he
sent to court staff and related parties, were not hearsay because the redacted
orders were not offered to prove the truth of the statements in the orders but
to show the effect on the defendant, to establish his intent to send threatening
communications, and to provide context for the letters).
10 Unpublished decisions are cited for their persuasive value only and
are not binding precedent from this Court. 10th Cir. R. 32.1(A). 48 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 49
The effect may manifest in the listener’s mind or actions, whether
through verbal communication or non-verbal behavior. Moreover, the effect
does not necessarily have to occur close in time to when the statement was
made. What is more, we have never required the proponent of the statement
to prove that the listener responded directly to or acknowledged – in writing or
otherwise – the original message.
The relevant inquiry is whether the evidence supports reasonable
inferences about how the statements influenced the listener’s state of mind,
decisions, or actions in a way that is pertinent to the case. The proponent of
the statement does not need direct evidence that the statement caused the
effect, such as the listener explicitly saying they felt a certain way or took a
particular action because of the statement. Rather, causation can be inferred
through reasonable inferences.
The district court noted that in response to Suazo’s messages indicating
her desire to end the relationship, Martinez either did not respond, responded
without addressing her intent to break up, or showed contrition by agreeing
that she should not stay with him if she was unhappy. As a result, the district
court indicates that the Government’s actual intent in using these messages is
to suggest a different effect on Martinez that is not supported by his responses
to Suazo’s messages. The district court was concerned that the Government
49 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 50
was attempting to infer a motive or emotional state (such as distress or anger)
from the text messages that Martinez’s text responses may not substantiate.
Noting this concern, the most reasonable inference to make from reading
the text messages is that they represent only a part of the communications
between Suazo and Martinez. There were implicitly additional interactions
after or in between those messages – potentially in person or over the phone –
that are not captured in the text responses. See, e.g., Aplt. App. I at 132–33
(Martinez responding the next day to break up message by texting: “We’re on
our way now babe I love you so much and can’t wait to be there with you [heart
emoji] be careful on your way down”). Meaning, the effect of the text messages
on Martinez is not recorded solely by his text message responses or, in some
instances, perceived lack thereof.
Most significantly, the district court misinterprets the reaction the
Government is purporting Suazo’s text messages caused. The Government is
not intending to offer into evidence Suazo’s text messages to explain why
Martinez responded the way he did over text. Instead, it would like to use the
messages to explain why he “acted as [he] did” in allegedly killing Suazo.
Churn, 800 F.3d at 776. The argument is that these messages reveal
Martinez’s perception of a fractured relationship, and thus reveal Martinez’s
motive to kill Suazo.
50 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 51
We stress that these points are simply the Government’s arguments
based on reasonable inferences drawn from the evidence. Undoubtedly,
Martinez can still present counterarguments to the jury, challenging how and
whether this evidence supports the Government’s theory of his motive, if any.
He may also have other valid objections to the admission of this evidence.
Recall that this appeal came to us from an in limine ruling. “Although
the Federal Rules of Evidence do not explicitly authorize in limine rulings, the
practice has developed pursuant to the district court’s inherent authority to
manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984).
Beyond our determination in this appeal that it was error to rule in limine that
the text messages must be excluded from the trial evidence as inadmissible
hearsay, our decision does not otherwise undermine the district court’s
inherent authority to manage the evidence admitted at trial.
C
Lastly, in the third appeal, the Government argues that the district court
erred in excluding witness testimony that, approximately eleven months before
Suazo’s death, Martinez once pinned her down and strangled her so that she
could not leave his home. The Government asserts that this prior act of violence
is not offered to prove Martinez’s propensity for violence, but it is admissible
under Rule 404(b) to show intent, motive, lack of accident, and to rebut
51 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 52
Martinez’s claim that he and Suazo had never been in a physical fight. Because
prior acts of violence toward the same victim are routinely admitted in similar
cases, the Government contends that the district court misapplied both Rule
404(b) and relevant case law in excluding this evidence.
The district court ruled that the witness testimony of a prior instance of
domestic violence perpetrated by Martinez against Suazo was inadmissible
because the Government failed to meet its burden of demonstrating a
permissible use of the domestic abuse evidence that would not involve “a chain
of inferences dependent upon the conclusion that [Mr. Martinez] has violent
tendencies and acted consistent with those tendencies.” Aplt. App. II at 261
(quoting United States v. Commanche, 577 F.3d 1261, 1269 (10th Cir. 2009))
(alteration in original). It reasoned “[t]he relevance of the prior bad acts
evidence here thus would require the jury first to conclude that Mr. Martinez
‘had a propensity for committing violence against [Suazo] and that the alleged
murder was such an incident.’” Id. (quoting United States v. Eaves, 180 F.
Supp. 3d 938, 942 (N.D. Okla. 2016)).
We consider the admissibility of evidence under Rule 404(b) to be a “case-
specific inquiry” and rely heavily on the district court’s “broad discretion.”
United States v. Henthorn, 864 F.3d 1241, 1248 (10th Cir. 2017) (quoting
United States v. Mares, 441 F.3d 1152, 1157 (10th Cir. 2006)). The timing of
the district court’s ruling is important because it first ruled Martinez’s
52 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 53
statements to Agent Coyle to be inadmissible before it ruled on this motion in
limine under Rule 404(b). Because we have now reversed the decision to
suppress the post-polygraph statements, we likewise reverse and remand the
Rule 404(b) ruling for reconsideration in recognition of the changed evidentiary
landscape. The best course of action is to permit the parties to recalibrate their
arguments and presentations and give the district court the opportunity to
reweigh these arguments in this case-specific inquiry.
IV
In conclusion, we REVERSE the in limine rulings excluding Martinez’s
post-polygraph statements, the text messages between Suazo and Martinez
discussing the end of their relationship, and testimony about an alleged act of
domestic violence perpetrated by Martinez against Suazo. We REMAND for
further proceedings consistent with this opinion.
53