State v. Davitt

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

DANIEL DAVITT, Appellant.

No. 1 CA-CR 22-0553
FILED 12-19-2023

Appeal from the Superior Court in Maricopa County
No. CR2017-118418-001
The Honorable Justin Beresky, Judge
The Honorable John Hannah, Jr., Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Ashley Torkelson Levine
Counsel for Appellee

Stephen M. Johnson, Phoenix
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Anni Hill Foster joined.

C A M P B E L L, Judge:

¶1 Daniel Davitt appeals the superior court’s denial of his
motion to suppress statements he made during a confrontation call.
Because we find no abuse of discretion, we affirm.

BACKGROUND

¶2 Davitt was indicted on multiple molestation charges
involving his two minor step-granddaughters, Laura and Rachel1,
occurring between May 2014 and May 2016. Before trial, the court held a
voluntariness hearing to address the admissibility of statements Davitt
made during a recorded confrontation call with the victims’ mother,
Melanie. Davitt argues that the circumstances surrounding the call
rendered any incriminating statements inadmissible as involuntary
confessions resulting from coercion by a state agent.

¶3 In 2017, the Avondale Police Department organized the
confrontation call, recording it pursuant to Arizona’s one-party consent
statute. See A.R.S. § 13-3012(9) (permitting the state to record a phone call
as long as one party to the call consents). Before the call, detectives
instructed Melanie about the goal of the call—getting Davitt’s “point of
view and account of the incident(s)”—and they cautioned her not to make
promises, threats, or use coercion in exchange for admissions. During the
call, Melanie and the detectives exchanged notes about the content and
direction of the conversation.

¶4 Melanie initiated the call and Davitt did not answer. He
quickly called back, beginning what became the two-hour-long
confrontation call. Davitt repeatedly denied sexual contact with either
victim, but expressly admitted to inappropriately massaging 11-year-old
Laura. At one point in the call, he said Laura may have “inadvertently”

1 We use pseudonyms to protect the identities of the victims and
witnesses.

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touched his penis for a quarter of a second. He quickly retracted this
statement. While denying any sexual intent behind massaging his
step-granddaughter, he referred to the massage as being “foreplay which
[he] carried on later in the bedroom with [his] wife.”

¶5 Throughout the call, Melanie urged Davitt to confirm various
instances of sexual contact that Laura disclosed to her. When pressed to tell
“the truth,” Davitt repeatedly stated he would admit to anything that
would bring the family back together. But he did not admit to sexual contact
with either victim without immediately retracting the admission.

¶6 In September 2022, a jury convicted Davitt of one count of
sexual conduct with a minor and five counts of child molestation. He timely
appealed, challenging the trial court’s denial of his motion to suppress the
confrontation-call statements.

DISCUSSION

¶7 “To be admissible, a statement must be voluntary, not
obtained by coercion or improper inducement.” State v. Ellison, 213 Ariz.
116, 127, ¶ 30 (2006). We will uphold a trial court’s ruling on a motion to
suppress absent an abuse of discretion, but we review legal conclusions de
novo. State v. Aldana, 252 Ariz. 69, 71–72, ¶ 10 (App. 2021).

¶8 Davitt argues that his incriminating statements were the
direct result of Melanie’s coercion. He asserts that because Melanie was
acting as an agent of the police, admitting his statements in evidence
violated his constitutional rights. We disagree. When considering the
totality of the circumstances of the confrontation call, the record supports
the trial court’s finding that his will was not overborne by coercion or
promises. First, Davitt placed the phone call to Melanie and could have
ended the conversation at any time. Second, Davitt was not promised
prosecutorial leniency in return for a confession. Third, Davitt did not
confess to the crimes of which he was convicted.

¶9 In State v. Deng, 1 CA-CR 15-0638, 2017 WL 525966, (Ariz.
App. Feb. 9, 2017) (mem. decision), this court rejected a similar argument
that a confrontation call should have been suppressed on the basis that the
victim, who initiated the call, was acting as a state agent and used
psychological pressure to coerce a confession. Id. at *2, ¶¶ 6, 8, 10. We
concluded that the statements at issue were voluntary even assuming the
victim was acting as a state agent. Id. at *3, ¶ 12. We held that the victim’s
“trickery at the behest of the State” did not amount to coercion, especially
considering the other circumstances of the call. Id. at *2, ¶ 10.

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¶10 Here, Davitt, like Deng, made the call, could have hung up
the phone, and was in the comfort of his own home throughout the call. Id.;
see also State v. Valvano, 1 CA-CR 20-0489, 2022 WL 244951, at *2, ¶ 9 (Ariz.
App. Jan. 27, 2022) (mem. decision) (finding confrontation-call statements
voluntary because appellant “could have terminated the calls before
incriminating himself[,] . . . made the call, apologized for the abuse, and
invited further dialogue”). The record shows that even if Melanie was
acting as a state agent, Davitt’s will was not overborne by her conduct.

¶11 To the extent that Davitt argues his statements were
involuntary because he was promised leniency in exchange for a
confession, we disagree. State v. Snee, 244 Ariz. 37, 39, ¶ 11 (App. 2018)
(holding a statement is involuntary if “(1) a promise was in fact made, and
(2) the suspect relied on that promise in making the statement” (citation
omitted)). At no point during the phone call did Melanie promise not to
press charges or to protect him against prosecution. See State v. Williams, 27
Ariz. App. 279, 285 (1976) (noting promises of leniency by the police are the
kind of promises that render incriminating statements involuntary). At
most, Melanie pleaded with Davitt to confess so she could defend him to
her family. And even so, Davitt never confessed to sexually-motivated
contact with her daughters.

¶12 Davitt goes on to argue that his Fifth Amendment right to
remain silent and Sixth Amendment right to counsel were violated by the
introduction of this evidence. But Davitt was neither in custody nor
formally charged with any crime at the time of the call. See Deng,
1 CA-CR 15-0638, at *3, ¶ 12 (“[defendant] was not entitled to Miranda
warnings because during the phone call he was not in custody or otherwise
deprived of his freedom of action.”); State v. Fulminante, 161 Ariz. 237, 246
(1988) (noting pre-indictment questioning does not trigger the Sixth
Amendment right to counsel). Accordingly, neither Davitt’s right against
self-incrimination nor his right to counsel were implicated.

¶13 Finally, Davitt argues that admitting the call into evidence
violated his Fourth Amendment right against unreasonable searches and
seizures. He asserts that the confrontation call was “more than just a
one-sided consent phone call” and was unconstitutional because “[t]he
police knew they never would have been able to ask the questions they
were having the mother ask the defendant.” Davitt does not explain,
however, how Melanie being coached by detectives during a confrontation
call rendered his statements involuntary. And his Fourth Amendment
argument fails because, as Davitt concedes, the recorded call was
authorized under Arizona law. See State v. Allgood, 171 Ariz. 522, 523–24

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(App. 1992) (“Monitoring and recording of a telephone conversation with
the consent of one party . . . is authorized by statute in Arizona” and
permissible under the Fourth Amendment.); A.R.S. § 13-3012(9). Because
Melanie consented to recording the call, Davitt’s lack of consent is not
relevant. See State v. Stanley, 123 Ariz. 95, 102 (App. 1979).

CONCLUSION

¶14 Because Davitt’s constitutional rights were not violated, we
need not address whether Melanie was acting as a state agent. Accordingly,
the court finds Davitt’s incriminating statements to have been properly
deemed voluntary by the trial court. We affirm.

AMY M. WOOD • Clerk of the Court
FILED: TM

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