State of Arizona v. David James Yonkman , 231 Ariz. 496 ( 2013 )


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  •                         SUPREME COURT OF ARIZONA
    En Banc
    STATE OF ARIZONA,                 )     Arizona Supreme Court
    )     No. CR-12-0238-PR
    )
    Appellee, )     Court of Appeals
    )     Division Two
    v.               )     No. 2 CA-CR 10-0338
    )
    )     Pima County
    DAVID JAMES YONKMAN,              )     Superior Court
    )     No. CR20101253001
    )
    Appellant. )     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                     Phoenix
    By   Kent E. Cattani, Chief Counsel,
    Criminal Appeals/Capital Litigation
    Joseph T. Maziarz, Assistant Attorney General
    Alan L. Amann, Assistant Attorney General             Tucson
    Attorneys for State of Arizona
    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.   FACTS AND PROCEDURAL HISTORY
    ¶2           On March 27, 2010, David James Yonkman’s wife, Kelly,
    called police and reported that Yonkman had sexually molested
    her daughter.     A police officer went to Yonkman’s residence, but
    Yonkman   was   not     there.    When       he   returned,    the    officer   read
    Yonkman his Miranda rights.              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
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    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.                            Yonkman
    confessed    after      approximately           thirty      minutes,    and     officers
    arrested him at the conclusion of the interview.
    ¶5          Yonkman      moved       to   suppress      the     confession     based    on
    Edwards,    the     involuntariness             of    his      confession,      and    the
    involuntariness of his Miranda waiver.                         After an evidentiary
    hearing,    the   superior       court     ruled      the   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          The court of appeals reversed Yonkman’s convictions
    and    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.     DISCUSSION
    A.     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     accused       himself    initiates       further     communication,
    exchanges,         or    conversations      with     the   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    into
    waiving his previously asserted Miranda rights.”                            Michigan v.
    Harvey, 
    494 U.S. 344
    , 350 (1990).                    It creates a presumption of
    involuntariness of any resulting waiver that occurs in response
    to    “further      police-initiated         custodial       interrogation        even   if
    [the defendant] has been advised of his rights.”                           
    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         to    suppress.”).                 Because       Yonkman’s
    confession     occurred         within        fourteen          days    of     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. We
       review      a   trial      court’s      ruling       on    a    motion   to
    suppress for abuse of discretion.                  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       third    parties.           Authority
    5
    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   assessing     whether        a     suspect     “initiate[d]        a
    discussion    with    police   through       the   communication     of    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    Hook     v.
    Anderson, 
    488 F.3d 411
    , 418, 422-23 (6th Cir. 2007).                      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.”           
    Id. at 421. ¶12
             Other courts have agreed with the reasoning in Van
    Hook.    See, e.g., Ex parte Williams, 
    31 So. 3d 670
    , 682-83 (Ala.
    2009)    (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
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    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     reasonably         likely       to     elicit    an
    incriminating response”).                 In Fox v. Ward, 
    200 F.3d 1286
    , 1297-
    98    (10th    Cir.    2000),       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    those       jurisdictions             that     might       find         police
    initiation       based    on       officer       conduct       not     amounting          to    full
    interrogation         under     Innis       nonetheless            find        that     incidental
    “police       contacts   .     .     .    made       for    other     legitimate         purposes
    concerning the case do not constitute such initiation.”                                   LaFave,
    supra ¶ 13, § 6.9(f); see also Oregon v. Bradshaw, 
    462 U.S. 1039
    ,     1045       (1983)     (plurality            opinion)        (noting          that      some
    inquiries       “relating       to       routine       incidents          of     the     custodial
    7
    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.        Such   an   action   is   far   removed   from   the
    coercive conduct    Edwards        seeks to prevent.         See Colorado v.
    Connelly, 
    479 U.S. 157
    , 170 (1986) (“The sole concern of the
    Fifth Amendment . . . is governmental coercion.”).                     Indeed,
    Rivera   likely   had   a    professional    duty     to    speak   with   Kelly
    regarding   the   alleged     recantation.       During     the   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.   The call was therefore not coercive.
    ¶16         The call Yonkman later initiated to Detective Rivera
    to set up an interview reopened the dialog between them.                     See
    
    Edwards, 451 U.S. at 485
    -86 & n.9.           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       properly      found      that
    Yonkman reinitiated the contact.                   Neither the purpose nor the
    policy rationales of Edwards would be advanced by suppressing
    Yonkman’s confession.
    B.     Remaining Issues
    ¶18            Yonkman     raised      several    arguments        that    the    court    of
    appeals      did     not    address      because       it     found   that        Yonkman’s
    confession violated Edwards.               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    that    prior    consistent         statements        were
    improperly admitted.             Because we hold that Yonkman’s confession
    did not violate            Edwards, we remand for the determination of
    these remaining issues.
    III.     CONCLUSION
    ¶19            For the foregoing reasons, we vacate the opinion of
    the   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