State of Arizona v. David James Yonkman

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.

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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

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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

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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

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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.

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¶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

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CONCURRING:

__________________________________
Scott Bales, Vice Chief Justice

__________________________________
John Pelander, Justice

__________________________________
Robert M. Brutinel, Justice

__________________________________
Ann A. Scott Timmer, Justice

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