" This Miranda protection "come[s] into play whenever a person in custody is subjected to either express questioning or its functional equivalent." State v. Edwards, 97 N.M. 141, 143-44, 637 P.2d 572, 574-75 (Ct.App.), cert. denied, 97 N.M. 621, 642 P.2d 607 (1981). An interrogation, therefore, is the threshold requirement when a defendant alleges a violation of his Miranda rights.

Defendant contends that the trial court erred in its submission to the jury of the lesser and necessarily included offense of fraud over $250 for two criminal counts of fraud over $2500. Defendant relies on State v. Archuleta, 108 N.M. 397, 772 P.2d 1320 (Ct.App.), cert. denied, 108 N.M. 354, 772 P.2d 884 (1989), and State v. Edwards, 97 N.M. 141, 637 P.2d 572 (Ct.App.), cert. denied, 97 N.M. 621, 642 P.2d 607 (1981), for the proposition that when a defendant is prejudiced, it is reversible error to have given such an instruction over the defendant's objection. Defendant contends that there was insufficient evidence to support submission to the jury of the two counts of fraud over $2500 and that he was prejudiced by lack of notice that the State would offer a lesser included offense instruction on these counts.

{11} " Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." Rhode Island v. Innis , 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) ; State v. Edwards , 1981-NMCA-119, ¶¶ 12-14, 97 N.M. 141, 637 P.2d 572 (applying Innis ). " Miranda requires that if at any point a defendant invokes the right to counsel by indicating that he wishes to consult with an attorney before speaking or invokes the right to remain silent by indicating that he does not wish to be interrogated, all interrogation must cease."

Additional claims listed in the docketing statement and not briefed are deemed abandoned. State v. Edwards, 97 N.M. 141, 637 P.2d 572 (Ct.App.), cert. denied, 97 N.M. 621, 642 P.2d 607 (1981). We affirm.

In addition, the district court gave the State the option to file a nolle prosequi for the case, but the State refused to do so. See State v. Ware, 1993-NMCA-041, ¶ 8, 115 N.M. 339, 850 P.2d 1042 ("A nolle prosequi is a dismissal of criminal charges filed by the prosecutor, usually without prejudice."); State v. Edwards, 1981-NMCA-119, ¶ 6, 97 N.M. 141, 637 P.2d 572 ("A nolle prosequi does not amount to an acquittal. . . . [T]he accused may be reindicted or reinformed against.

Before the Uniform Jury Instructions were recompiled in 1986 into their current form, the self-defense instruction explicitly shifted the burden to the State: "The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self-defense." NMSA 1978, U.J.I.Crim. 41.41; see State v. Edwards, 97 N.M. 141, 145, 637 P.2d 572, 576 (Ct.App.), cert. denied, 97 N.M. 621, 642 P.2d 607 (1981). After the 1986 recompilation, this statement was inexplicably eliminated when U.J.I.Crim. 41.41 was replaced by SCRA 14-5171.

As the state points out, however, the inquiry is whether Deputy Ulibarri's statement was one which he should have known to be reasonably likely to elicit an incriminating response from defendant. See State v. Edwards, 97 N.M. 141, 144, 637 P.2d 572, 575 (Ct.App. 1981). The single remark about unclaimed property did not amount to the functional equivalent of interrogation.

See, e.g., Ex parte Johnson, 433 So.2d 479 (Ala. 1983); Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979); State v. Bobbitt, 420 So.2d 362 (Fla.Dist.Ct.App. 1982); Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975); State v. McNulty, 60 Haw. 259, 588 P.2d 438 (1978); People v. Williams, 57 Ill.2d 239, 311 N.E.2d 681 (1974); Berry v. State, 268 Ind. 432, 376 N.E.2d 808 (1978); State v. Cruse, 228 N.W.2d 28 (Iowa 1975); State v. Sharp, 338 So.2d 654 (La. 1976); State v. O'Brien, 434 A.2d 9 (Me. 1981); Wright v. State, 29 Md. App. 57, 349 A.2d 391 (1975); Commonwealth v. Zezima, 387 Mass. 748, 443 N.E.2d 1282 (1982); People v. Jackson, 390 Mich. 621, 212 N.W.2d 918 (1973); State v. Austin, 332 N.W.2d 21 (Minn. 1983); Sloan v. State, 368 So.2d 228 (Miss. 1979); State v. McGowan, 621 S.W.2d 557 (Mo.Ct.App. 1981); State v. Archbold, 178 Neb. 433, 133 N.W.2d 601 (1965); State v. Edwards, 97 N.M. 141, 637 P.2d 572 (Ct.App. 1981); State v. Boone, 299 N.C. 681, 263 S.E.2d 758 (1980); Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982); State v. Baker, ___ R.I. ___, 417 A.2d 906 (1980); Luck v. State, 588 S.W.2d 371 (Tex.Crim.App. 1979). The dissenting opinion's citations to federal decisions imply that some federal courts require the defendant to prove self-defense.

{11} "Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); State v. Edwards, 1981-NMCA-119, ¶¶ 12-14, 97 N.M. 141, 637 P.2d 572 (applying Innis). "Miranda requires that if at any point a defendant invokes the right to counsel by indicating that he wishes to consult with an attorney before speaking or invokes the right to remain silent by indicating that he does not wish to be interrogated, all interrogation must cease."

Instead, it "simply h[eld] there must be evidence of the crime to sustain the conviction." State v. Edwards, 1981-NMCA-119, ¶¶ 25, 27, 97 N.M. 141, 637 P.2d 572 (relying on Burrus, La Boon, and McFall in holding that involuntary manslaughter was a necessarily included offense of second degree murder and rejecting the defendant's argument that the second-degree murder charge did not provide notice that he could be convicted of involuntary manslaughter). More recent cases refer to voluntary manslaughter as a lesser included offense of first-degree or second-degree murder, albeit without analysis.