State v. Dammann

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

KEVIN WILLIAM DAMMANN, Appellant.

No. 1 CA-CR 24-0472
FILED 10-01-2025

Appeal from the Superior Court in Maricopa County
No. CR2023-155747-001
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Vingelli & Company, Law Offices, PLLC, Scottsdale
By John N. Vingelli
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Joseph A. Newberg, II
Counsel for Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge Daniel J. Kiley joined.

F U R U Y A, Judge:

¶1 Kevin William Dammann appeals his convictions for one
count of aggravated assault and one count of disorderly conduct, arguing
the superior court erred in denying his motion to suppress. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Dammann was identified as a suspect in an assault case
against his ex-girlfriend. Phoenix Police Officer Wells was tasked with
locating and taking Dammann into custody, which he did in early
December 2023. During arrest, but before being Mirandized,1 Dammann
made statements about the assault to Officer Wells. Later at the police
station, Officer Wells read Dammann his Miranda rights and Dammann
agreed to speak with Officer Wells about the assault.

¶3 Dammann was charged with three counts of aggravated
assault (Counts 1, 2, and 3) and one count (Count 4) of disorderly conduct,
all as domestic violence offenses. Dammann moved to suppress his pre-
and post-Miranda statements. After the suppression hearing, the court
granted Dammann’s motion regarding his pre-Miranda statements made
while he was being arrested but denied the motion as to his post-Miranda
statements made during the later interview at the station.

¶4 A jury found Dammann guilty on all counts, but the court
dismissed Counts 2 and 3 as duplicative. Dammann was sentenced to three
years of supervised probation for Counts 1 and 4.

1 Referring to a police officer’s notification to a suspect of their
“Miranda Rights.” See Miranda v. Arizona, 384 U.S. 460, 479 (1966) (Supreme
Court mandating that police apprise an individual in custody, prior to
questioning, of the following: (1) their right to remain silent, (2) that
anything they say can be used against them in court, and (3) that they have
a right to an attorney or to have one appointed if they cannot afford one).

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¶5 Dammann timely appealed and we have jurisdiction under
Article 6, Section 9 of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) Sections 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶6 Damman contends his post-Miranda statements2 to Officer
Wells were the product of an unconstitutional two-stage interrogation and
should have been suppressed. We review a trial court’s ruling on a motion
to suppress for abuse of discretion and consider only the evidence
presented at the suppression hearing. State v. Rushing, 243 Ariz. 212, 225
¶ 56 (2017) (citation omitted). Such evidence is viewed in a light most
favorable to upholding the ruling. Id.

¶7 Miranda warnings protect a suspect’s right against self-
incrimination by requiring law enforcement to inform in-custody suspects
of their rights before interrogation. Miranda v. Arizona, 384 U.S. 436, 467–69
(1966). To ensure these warnings are timely given, pre-Miranda responses
to police interrogations made by in-custody suspects are generally
inadmissible. State v. Aldana, 252 Ariz. 69, 72 ¶ 11 (App. 2021) (citation
omitted). Post-Miranda responses are generally admissible but may be
suppressed if obtained through an impermissible two-stage interrogation.
Id.

¶8 A two-stage interrogation occurs when police delay giving
Miranda warnings and engage the suspect in questioning, only to later give
the Miranda warnings and conduct further questioning. State v. Zamora, 220
Ariz. 63, 66 ¶ 1 n.2 (App. 2009) (citation omitted). Such interrogations are
improper when employed strategically as part of a tactic to thwart Miranda.
As we have explained, impermissible two-stage interrogations occur when,

[i]n the first stage, police interrogate a person in custody
without having given the person his Miranda warnings and
the person has made statements in response to that
questioning. Then, in the second stage, the police give the
person his Miranda warnings, the person waives his right to
remain silent and the person repeats his prior statements in
response to the police repeating the questions or lines of
questions asked prior to the Miranda warnings being given.

2 The court’s suppression of Dammann’s pre-Miranda statements to
police is not named as an issue for this appeal and we do not address it.

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Id. However, the occurrence of a two-stage interrogation does not, by itself,
conclusively require suppression of post-Miranda responses.

¶9 To determine whether post-Miranda responses are admissible
when police have delayed giving the Miranda warnings, the court must first
decide whether the two-stage interrogation was deliberately used to
circumvent Miranda. Missouri v. Seibert, 542 U.S. 600, 621–22 (Kennedy, J.,
concurring); see also U.S. v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006)
(synthesizing a formal two-stage interrogation analysis from the Seibert
plurality opinion and Justice Kennedy’s concurrence). The court should
consider both objective and subjective evidence in this inquiry. Williams,
435 F.3d at 1158.

¶10 If the court finds that the police did not use the two-stage
interrogation to circumvent Miranda, the court must then determine
whether the suspect’s waiver of Miranda rights was voluntary. Oregon v.
Elstad, 470 U.S. 298, 318 (1985) (“The relevant inquiry is whether, in fact, the
second statement was also voluntarily made.”); Williams, 435 F.3d at 1158
(“In situations where the two-step strategy was not deliberately employed,
Elstad continues to govern the admissibility of postwarning statements.”).
Only if the court finds the two-stage interrogation was deliberately
implemented to circumvent Miranda must it then proceed to analyze
whether the delayed warnings effectively informed the suspect of his rights
using a multifactor test. Seibert, 542 U.S. at 611–12, 615 (Souter, J., plurality
opinion) (identifying five factors the court should consider in its analysis);
Williams, 435 F.3d at 1160 (adding a sixth factor from Justice Kennedy’s
Seibert concurrence).

¶11 Here, Dammann asserts the court erred because it made no
findings as to whether the two-stage interrogation was deliberate. He
further argues the delayed warnings were both deliberate and ineffective.
But the absence of express findings does not establish error. See Mong Ming
Club v. Tang, 77 Ariz. 63, 67 (1954) (“On appeal, we as a reviewing court,
must assume that the trial court found, in addition to express findings of
fact appearing in the record, such additional facts as are necessary to sustain
the judgment, if they are reasonably supported by the evidence, and not in
conflict with the express findings.”). We further presume trial judges know
and apply the law. State v. Lee, 189 Ariz. 608, 616 (1997) (citations omitted).

¶12 In this case, the court ordered Dammann’s pre-Miranda
statements suppressed but admitted his post-Miranda statements made
during his later interview. Though the court did not provide explicit
findings in its ruling on the motion to suppress, we will nevertheless

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uphold its order if reasonably supported by the evidence and not in conflict
with its express findings. Mong Ming Club, 77 Ariz. at 67. The record
contains reasonable evidence to support an implicit finding that the two-
stage interrogation was non-deliberate and that Dammann’s post-Miranda
statements were voluntary.

¶13 First, Officer Wells was unprepared to interrogate Dammann
upon arrest because Officer Wells had limited knowledge of the assault
case. At the suppression hearing, Officer Wells testified that when he
interviews a suspect, he wants to be “well versed on the case and what was
going on prior to talking to [the suspect] about that.” However, upon
arresting Dammann, Officer Wells expressed he did not know the case
details when he told Dammann, “We’re just the pick ‘em up guys. I’m not
the detective working the case.” Officer Wells also testified that because his
role was simply to apprehend suspects for questioning by detectives, he is
generally provided with limited information about the case. And unlike in
Seibert, where the arresting officer was specifically instructed to “refrain
from giving Miranda warnings,” Seibert, 542 U.S. at 604, no evidence in this
record suggests that Officer Wells received similar instructions from the
investigating detectives. Thus, it does not appear from the evidence that
Officer Wells had sufficient information during Dammann’s arrest to
conduct an interrogation or strategize to later catch Dammann unawares by
means of a deliberate two-stage process.

¶14 Second, Officer Wells’ actions and testimony show that not
only was he unwilling to interrogate Dammann upon arrest, but he was
also unaware that he would conduct a later interview. During his arrest,
Dammann asked multiple times why he was being arrested. Rather than
engage, Officer Wells deflected by saying, “Hang tight man” and “We’ll
talk to you about that in a minute.” Moreover, Officer Wells testified he was
not expecting to interview Dammann but did so at the station because the
case detective was unavailable, and it was requested of him. On this
evidence, we conclude that the record supports an implied finding that the
two-stage interrogation used was not deliberately employed to thwart
Dammann’s Miranda rights.

¶15 Further, evidence also supports an implicit finding that
Dammann’s post-Miranda waiver was voluntary. See Elstad, 470 U.S. at 318.
After Dammann arrived at the station, Officer Wells confirmed his identity
and read him the Miranda warnings. After reading the warnings, Officer
Wells asked Dammann if he understood them and if he would speak with
Officer Wells voluntarily. Dammann agreed, saying “yes” twice. Nothing
in the record indicates any concerns regarding threats, intimidation,

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incapacity, or any other circumstance that would contradict the voluntary
nature of Dammann’s waiver. Moreover, “Fifth Amendment
protections . . . are not self-executing” and must be affirmatively asserted.
State v. Melendez, 259 Ariz. 282, 289 ¶ 19 (2025). And “answering questions
after police properly give the Miranda warnings constitutes a waiver of
these rights by conduct.” Id. at ¶ 20 (citation modified) (quoting State v.
Trostle, 191 Ariz. 4, 14 (1997)). Damman did not unequivocally and
unambiguously invoke his right to remain silent. As noted, he expressly
agreed to speak with police and did so. Thus, we conclude that the record
supports an implied finding that Dammann’s waiver was voluntary as to
his post-Miranda statements.

¶16 Because reasonable evidence supports findings that the two-
stage interrogation in this case was not deliberate and Dammann’s waiver
of rights as to his post-Miranda statements was voluntary, we discern no
error.

CONCLUSION

¶17 We affirm the trial court’s ruling on the motion to suppress
and affirm Dammann’s convictions.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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