STATE OF ARIZONA v DAVID JAMES YONKMAN

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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) ) Appellee, ) ) v. ) ) ) DAVID JAMES YONKMAN, ) ) ) Appellant. ) _________________________________ ) Arizona Supreme Court No. CR-12-0238-PR Court of Appeals Division Two No. 2 CA-CR 10-0338 Pima County Superior Court No. CR20101253001 O P I N I O N Appeal from the Superior Court in Pima County The Honorable John S. Leonardo, Presiding Judge AFFIRMED IN PART ________________________________________________________________ Opinion of the Court of Appeals, Division Two 229 Ariz. 291, 274 P.3d 1225 (App. 2012) VACATED AND REMANDED ________________________________________________________________ THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Joseph T. Maziarz, Assistant Attorney General Alan L. Amann, Assistant Attorney General Attorneys for State of Arizona Phoenix Tucson LORI J. LEFFERTS, PIMA COUNTY PUBLIC DEFENDER Tucson By Lisa M. Hise, Deputy Public Defender David J. Euchner, Deputy Public Defender Attorneys for David James Yonkman ________________________________________________________________ B E R C H, Chief Justice ¶1 This case addresses whether a police officer s response to a phone call placed by a suspect s wife reinitiates an interrogation for purposes of Edwards v. Arizona, 451 U.S. 477 (1981). We conclude that it does not. When the suspect later contacted police and arranged an interview, the suspect reinitiated the interrogation. I. ¶2 FACTS AND PROCEDURAL HISTORY On March 27, 2010, David James Yonkman s wife, Kelly, called police and reported that Yonkman had sexually molested her daughter. Yonkman was A police officer went to Yonkman s residence, but not there. When Yonkman his Miranda rights. he returned, the officer read After Yonkman requested counsel, the officer ceased questioning and departed. ¶3 A few days later, Kelly called Detective Rivera to say that her daughter had recanted. Rivera told Kelly that Yonkman could come in and take a polygraph if he wanted to so that Rivera could close the investigation. Rivera did not ask her to relay the message, but a few hours later Yonkman called Rivera and scheduled a meeting for April 1 at the police station. During this call, Rivera told Yonkman that he could come to the station if he wanted to, but he would not be under arrest, could leave at any time, and his prior Miranda warnings would remain in effect. ¶4 Yonkman arrived at the police station approximately forty minutes early for the April 1 interview. Although the door to the interview room locked automatically, Rivera reminded 2 Yonkman that he was not under arrest and was free to leave. During the interview, Yonkman asked what would happen if he requested an attorney; Rivera responded that they would wait to do the interview until he obtained one. Rivera read Yonkman his Miranda rights, and Yonkman consented to questioning. confessed after approximately thirty minutes, Yonkman and officers arrested him at the conclusion of the interview. ¶5 Yonkman Edwards, the moved to suppress involuntariness of the his the superior court ruled the based confession, involuntariness of his Miranda waiver. hearing, confession and on the After an evidentiary confession admissible, finding that Yonkman had reinitiated contact with Rivera and that Yonkman s interview statements were voluntary. A jury found Yonkman guilty of one count of sexual abuse and one count of sexual conduct with a minor. ¶6 and The court of appeals reversed Yonkman s convictions ordered a new trial, finding Yonkman s confession inadmissible because Rivera had induce[d] Yonkman s contact with police and the subsequent interrogation in violation of Edwards. State v. Yonkman, 229 Ariz. 291, 295 ¶ 14, 298 ¶ 28, 274 P.3d 1225, 1229, 1233 (App. 2012). ¶7 We granted the State s petition for review because this case presents a recurring issue of statewide importance. 3 We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. A. DISCUSSION Reinitiation of Contact ¶8 Once a suspect invokes his Miranda right to counsel, police may not subject him to custodial interrogation without counsel for fourteen days following his release from custody unless the exchanges, accused or himself conversations initiates with the further communication, police. Maryland v. Shatzer, 130 S. Ct. 1213, 1219, 1223 (2010) (quoting Edwards, 451 U.S. at 485). The Edwards rule limiting police re- initiation of questioning following the invocation of rights is designed to prevent police from badgering a defendant waiving his previously asserted Miranda rights. Harvey, 494 U.S. 344, 350 (1990). into Michigan v. It creates a presumption of involuntariness of any resulting waiver that occurs in response to further police-initiated custodial interrogation [the defendant] has been advised of his rights. even if Shatzer, 130 S. Ct. at 1219-20 (quoting Edwards, 451 U.S. at 484). But, [w]hen a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering. Montejo v. Louisiana, 556 U.S. 778, 795 (2009). Such noncustodial or noninterrogative interactions with the State do not involve the inherently compelling pressures that one might 4 reasonably fear could lead to involuntary waivers. Id. (citation omitted) (quoting Miranda v. Arizona, 384 U.S. 436, 467 (1966)). ¶9 We assume, without deciding, that Yonkman effectively invoked his Miranda right to counsel when first questioned near his residence on March 27, 2010, and that he was in custody then and during the April 1, 2010 interview at the police station. Cf. Shatzer, 130 S. Ct. at 1223 ( In every case involving Edwards, the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks confession occurred to suppress. ). within fourteen Because days of Yonkman s his initial invocation of his right to counsel, its admissibility turns on whether Yonkman or the police reinitiated the contact, whether Yonkman knowingly and voluntarily waived his Miranda rights, and whether the confession itself was voluntarily given. See id. at 1219-22. motion We review a trial court s suppress for abuse of discretion. ruling on a to State v. Manuel, 229 Ariz. 1, 4 ¶ 11, 270 P.3d 828, 831 (2011). ¶10 A suspect may reinitiate questioning after terminating it by reopening a dialog with officers about the investigation. See Edwards, 451 U.S. at 485-86 & n.9. The United States Supreme Court has not addressed whether police can reinitiate interrogation through contact with 5 third parties. Authority from other jurisdictions is also sparse, but we are not aware of any court that has found an Edwards violation in circumstances like those presented here. ¶11 In discussion assessing with police whether through a the suspect initiate[d] communication of a a third party, the Court of Appeals for the Sixth Circuit found no distinction between direct communications and those from others, concluding that what is important is [that] the impetus for discussion comes from the suspect himself. Van Anderson, 488 F.3d 411, 418, 422-23 (6th Cir. 2007). Hook v. We agree with that court s assessment that the Constitution provides no protection against friends or family members who convince [a suspect] to talk with police or against third-party cajoling, pleading, or threatening. ¶12 Hook. 2009) Id. at 421. Other courts have agreed with the reasoning in Van See, e.g., Ex parte Williams, 31 So. 3d 670, 682-83 (Ala. (noting that an accused can initiate further interrogation through a third party ); cf. People v. Lucas, 548 N.E.2d 1003, 1009-11 (Ill. 1989) (finding no potential Edwards violation when suspect submitted to a polygraph after speaking with family members who were asked by officers to find out . . . what actually happened ). ¶13 Several jurisdictions do not find that officers have reinitiated questioning unless the officers conduct rises to 6 the level of interrogation of the suspect under Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (holding that interrogation under Miranda is words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are incriminating response ). 98 (10th Cir. 2000), reasonably likely to elicit an In Fox v. Ward, 200 F.3d 1286, 1297- for example, the court held that the officers had not reinitiated questioning merely by handing their business cards to the suspect after he had requested a lawyer. Instead, the court concluded that the suspect reinitiated contact by indicating that he wanted to talk as the officers were walking away. Id.; see also Wayne R. LaFave et al., 2 Criminal Procedure § 6.9(f) (3d ed. 2012) ( One view, certainly subject to dispute, is that . . . police conduct is not relevant unless it actually amounted to interrogation or its functional equivalent under Innis. ). ¶14 Even initiation based interrogation police those on under contacts jurisdictions . officer Innis . . that conduct nonetheless made for not might amounting find other find that police to full incidental legitimate concerning the case do not constitute such initiation. purposes LaFave, supra ¶ 13, § 6.9(f); see also Oregon v. Bradshaw, 462 U.S. 1039, 1045 inquiries (1983) relating (plurality to routine 7 opinion) incidents (noting of the that some custodial relationship, whether made by the suspect or an officer, do not generally constitute reinitiation). ¶15 Here, the police did not reinitiate contact. Kelly contacted Detective Rivera to report her daughter s recantation. Yonkman argues that Rivera sought to use Kelly to deliver a message to Yonkman that Rivera could not convey directly. He urges us to find this an improper reinitiation under Edwards. But Rivera did not call Kelly; he merely answered a telephone call from the person who initially reported the allegations of sexual misconduct. coercive conduct Such Edwards an action is far seeks to prevent. removed from the See Colorado v. Connelly, 479 U.S. 157, 170 (1986) ( The sole concern of the Fifth Amendment . . . is governmental coercion. ). Rivera likely regarding the had a alleged professional recantation. duty to During speak the Indeed, with Kelly conversation, Rivera advised Kelly of the status of the case, but neither asked to speak to Yonkman nor suggested that Kelly have Yonkman call him. ¶16 The call was therefore not coercive. The call Yonkman later initiated to Detective Rivera to set up an interview reopened the dialog between them. Edwards, 451 U.S. at 485-86 & n.9. See Moreover, the interview took place one to two days later, giving Yonkman time to reflect on his decision to speak with Rivera. 8 ¶17 Accordingly, the trial court Yonkman reinitiated the contact. properly found that Neither the purpose nor the policy rationales of Edwards would be advanced by suppressing Yonkman s confession. B. Remaining Issues ¶18 Yonkman appeals did not raised several address arguments because confession violated Edwards. it that found the that court of Yonkman s See Yonkman, 229 Ariz. at 294 ¶ 7 n.3, 297-98 ¶¶ 22-27, 274 P.3d at 1228 n.3, 1231-32. These arguments include that his Miranda waiver was involuntary, that Kelly was acting as an agent of the State, that he was improperly precluded from introducing evidence of his acquittal for prior acts, and improperly admitted. did not violate that prior consistent statements were Because we hold that Yonkman s confession Edwards, we remand for the determination of these remaining issues. III. ¶19 the CONCLUSION For the foregoing reasons, we vacate the opinion of court of appeals and remand to that court for further proceedings consistent with this opinion. __________________________________ Rebecca White Berch, Chief Justice 9 CONCURRING: __________________________________ Scott Bales, Vice Chief Justice __________________________________ John Pelander, Justice __________________________________ Robert M. Brutinel, Justice __________________________________ Ann A. Scott Timmer, Justice 10

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