State of Arizona v. Giovani Fuster Melendez

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,

v.

GIOVANI FUSTER MELENDEZ,
Appellant.

No. CR-23-0215-PR
Filed March 28, 2025

Appeal from the Superior Court in Maricopa County
The Honorable Stephen M. Hopkins, Judge (Retired)
No. CR2019-104831-001
AFFIRMED

Opinion of the Court of Appeals, Division One
256 Ariz. 14 (App. 2023)
VACATED

COUNSEL:

Kristin K. Mayes, Arizona Attorney General, Joshua D. Bendor (argued),
Solicitor General, Alice M. Jones, Deputy Solicitor General, Eric K.
Knobloch, Assistant Attorney General, Phoenix, Attorneys for State of
Arizona

Gary Kula, Maricopa County Public Defender, Dawnese C. Hustad
(argued), Deputy Public Defender, Phoenix, Attorneys for Giovani Fuster
Melendez

Molly Brizgys (argued), Mitchell Stein Carey Chapman PC, Phoenix,
Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice
 STATE V. MELENDEZ
Opinion of the Court

VICE CHIEF JUSTICE LOPEZ authored the Opinion of the Court, in which
JUSTICES BEENE, KING, BRUTINEL (RETIRED) 1 and BERCH (RETIRED)
2 joined. JUSTICE BOLICK concurred. CHIEF JUSTICE TIMMER
concurred.

VICE CHIEF JUSTICE LOPEZ, Opinion of the Court:

¶1 We consider whether the State violates a defendant’s due
process rights under the Fourteenth Amendment to the United States
Constitution when it comments at trial, for impeachment purposes, on a
defendant’s post-Miranda statements and temporary deferrals to answering
some questions during an in-custody interview. We hold that the State may
use a defendant’s post-Miranda statements and his temporary deferrals to
responding to some questions for impeachment purposes if the defendant,
during the in-custody interview, fails to unambiguously invoke his Miranda
rights and ultimately speaks on the substantive matters raised by the
questions. We conclude that the State did not violate the defendant’s due
process rights and affirm his convictions and sentences.

BACKGROUND

¶2 In 2017, Giovani Fuster Melendez moved from Puerto Rico to
Arizona and rented an apartment in Phoenix with his mother. Melendez’s
mother attended church services held at the apartment complex, pastored
by the parents of the victim (“A.G.”). Melendez became acquainted with
A.G. through the family church connection. Melendez and his mother
moved out of the apartment complex in late 2018.

¶3 One year later, Melendez returned to the apartment complex
and saw A.G. standing in the parking lot. Melendez parked his car, walked
toward A.G., and asked, “are you the pastor’s son?” When A.G. responded

1 Although Justice Brutinel retired prior to the issuance of this Opinion, he
participated in the decision of the Court.
2 Justice Montgomery is recused from this matter. Pursuant to article 6,

section 3 of the Arizona Constitution, Justice Rebecca White Berch (Ret.) of
the Arizona Supreme Court was designated to sit in this matter.
2
 STATE V. MELENDEZ
Opinion of the Court

and started walking toward him, Melendez pulled a gun and fired multiple
shots at A.G. Each shot missed A.G., hitting the surrounding apartment
complex walls. Melendez then ran to his car and drove back to his
apartment.

¶4 Shortly after the shooting, officers took Melendez into
custody and interviewed him at a nearby precinct. The officer read
Melendez his Miranda rights and Melendez confirmed that he understood
them. The interview began with a question about Melendez’s car, but
immediately after, Melendez asked what would happen if he chose to not
speak. The officer said that Melendez had the right to remain silent, and if
he did not feel comfortable talking, he could say “I don’t want to talk
anymore.” Melendez immediately replied, “yeah I don’t want to talk
anymore.” The interview ended.

¶5 Five hours later, a detective interviewed Melendez at the
Phoenix police station. Before asking any questions, the detective re-read
Melendez his Miranda rights and he again confirmed he understood them.
The detective asked Melendez about his background, then inquired why he
was upset with the pastor’s son. Melendez explained that he “never had a
personal problem with them,” and even had dinner with the pastor’s family
a week before the shooting. But Melendez reserved his answer when asked
why he shot at the pastor’s son:

Detective: So what made you go over there today and
shoot the pastor’s son?

Melendez: I want to hold uh . . . I want to hold um some
stuff I want to say.

Detective: Ok.

Melendez: Just because I . . . I feel a little blindsided.

Detective: And that’s fine however you feel I’m not gonna
you know force you to say anything you don’t
want to. Like I said I just want to get your side
of the story.

3
 STATE V. MELENDEZ
Opinion of the Court

¶6 The detective then asked about the gun used in the crime.
Melendez explained that he owned and always carried the gun for
protection, that it was a .45 caliber Glock registered to him, and the police
could find it in his apartment. But when asked if he felt he needed to protect
himself from the pastor’s son, he again deferred and said, “I still want to
hold up on some information.” The detective followed up by asking if there
was anything Melendez wanted to tell her, but he did not reply. The
detective then squarely addressed Melendez’s actions:

Detective: Do you understand that it’s a crime to shoot
somebody or shoot your gun at somebody?

Melendez: Yeah I know what is a crime and what is not.

Detective: Do you believe you committed a crime today?

Melendez: I still want to hold myself on some things.

Detective: Did you shoot at somebody today?

Melendez: I . . . I would um . . . I would hold uh
information.

Detective: Ok, so we will set that aside.

¶7 At this point, halfway through the thirty-minute interview,
Melendez confirmed his willingness to continue. The detective told
Melendez, “if you don’t feel comfortable talking to me about it, that’s fine,
it’s your decision.” Melendez replied, “I don’t mind talking to you. Thank
you for being nice. Nothing like the [TV] shows.”

¶8 Although the conversation up to this point remained
congenial, the detective abruptly told Melendez he would be going to jail.
Melendez explained he felt “blindsided,” and the detective asked if she
could explain anything he was not sure about. To this, Melendez asked
what the pastor was saying. The detective clarified that the pastor was not
saying anything, but other witnesses reported Melendez asking A.G. if he
was the pastor’s son. When asked why he was interested in what the pastor
was saying, Melendez responded, “I’m going to pass this question.”
Melendez continued to defer his answers:

4
 STATE V. MELENDEZ
Opinion of the Court

Detective: So I am just so confused then, why would you
go over there with a gun?

Melendez: That’s what I want to say about my relationship
with the pastor and the pastor’s sons.

Detective: Okay. Is there somebody else that you were
after and not them?

Melendez: Sorry I apologize, I don’t mean to you know
ignore you. So I want to pass again.

Detective: Okay. I’ll make sure I make that clear you have
no problem with the pastor or his family.

Melendez: Yeah, I have never had any trouble with them.

Detective: I guess I’ll just wonder why you went over there
with a gun. You were upset today?

Melendez: Um . . . I’ll pass again.

Detective: Okay. Alright is there anything else that you
want to tell me or you feel like I forgot to ask
you about today? . . . Did you work today?

Melendez: Yes, I went to work.

Detective: Did anything happen before you went to the
pastor’s house or apartment? Did anything
happen today to make you mad?

Melendez: I’ll pass this question. Sorry.

¶9 When asked if he remembered any of the day’s events, he
said, “I’ll pass that question . . . I just want to hold what I did today, and
any information that you are trying to figure out. I just want to hold
everything for now.” The detective responded, “that’s fine. That’s your

5
 STATE V. MELENDEZ
Opinion of the Court

right,” and said, “I’ll give you one more chance to let it off your chest.”
Melendez affirmed he was fine, and the detective left the room to get water.

¶10 When the detective returned, Melendez volunteered his
version of the events. He said he wanted to tell her something and
explained, “I wanted to wait because . . . I don’t know what people on the
other side are trying to do, what they are trying to say.” He told her it was
his habit to drive around when bored, and that day he drove to his old
apartment complex. There, Melendez explained, he saw A.G. in the
parking lot, asked if he was the pastor’s son, and A.G. responded, “Oh, qué
pasa cabrón?” Melendez later testified at trial that the word “cabrón,” in
Puerto Rico, is offensive depending on the context. A.G. then appeared
hostile because, while making this greeting, he walked towards Melendez
and moved his hand “looking for something.” Melendez shot at A.G. in
response to this perceived aggression. The detective thanked Melendez for
his honesty and concluded the interview.

¶11 The State charged Melendez with aggravated assault and five
counts of endangerment. At trial, Melendez testified that he fired at A.G.
in self-defense because he believed A.G. was about to retrieve a gun from
his pocket and shoot him.

¶12 On cross-examination, the prosecutor attempted to impeach
Melendez’s trial testimony that he acted in self-defense by noting that, prior
to claiming self-defense in the interview, Melendez decided to “pass” and
“hold” on many of his answers. The prosecutor also confirmed that
Melendez asserted self-defense only after the detective informed him that
he was going to jail for the shooting:

Prosecutor: Isn’t it true that while you were talking to [the
detective] you never claimed self-defense until
after she told you [that] you were going to jail
for shooting at the pastor’s son?

Melendez: She just happened to bring me that information
as I was already decided to come in that it was
self-defense.

Prosecutor: Okay. But, again, after she told you you’re
going to jail for shooting at the pastor’s son,

6
 STATE V. MELENDEZ
Opinion of the Court

that’s when you’re claiming that it was
self-defense?

Melendez: ‘Cause she told me: I will be right back, you
know, and—and she told me that it was like my
last chance to say something, and she went
outside. And then when she came, I had
decided to—to tell her that it was self-defense.

Prosecutor: Okay. I’m glad you brought that up. So isn’t it
true that you were asked probably ten times
direct questions such as: What made you go
over there and shoot today? Do you remember
her asking you that?

Melendez: Yes.

¶13 During closing arguments, the prosecutor urged the jury to
question the credibility of Melendez’s self-defense claim because a
“reasonable person” would have answered the detective’s questions about
the motive for the shooting if he “really just shot in self-defense.” The
prosecutor also emphasized Melendez’s reticence to assert his self-defense
claim during his interview until the detective informed him that he was
going to jail:

I counted ten or 11 times that he is asked a direct question
about: Why did you go over there and shoot? Why did you
have a gun? Why did you ask that question?

And his answer was something along the lines of: I want to
hold that information. I’m going to pass on that question. I
mean, if you were shot at or if you believe that you were going
to be shot at, and that’s why you discharge your own gun at
somebody four times, once the police do get there, don’t you
want to tell them that? Wouldn’t you want to say: Hang on
one second, you have me in handcuffs, you put me in here,
but here’s what happened.

¶14 The jury convicted Melendez on all charges and the superior
court sentenced him to presumptive, concurrent terms of 7.5 years’

7
 STATE V. MELENDEZ
Opinion of the Court

imprisonment for aggravated assault and 2.25 years’ imprisonment for each
count of endangerment.

¶15 On appeal, Melendez’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), advising the court of appeals that there were no meritorious grounds
for reversal. After review of the record, the court ordered the parties to
brief whether the State’s references to Melendez’s refusal to answer certain
questions during custodial interrogation violated his constitutional rights
and whether fundamental prejudicial error occurred. After briefing, the
court held that “such error occurred when the State cross-examined
Melendez about his selective silence and then asked the jury to hold that
silence against him during closing argument.” State v. Melendez, 256 Ariz.
14, 17 ¶ 2 (App. 2023). The State sought review in this Court. We granted
review because this case presents a recurring issue of statewide importance.
We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. §§ 13-4031, -4033(A)(1).

DISCUSSION

¶16 Melendez argues that the trial court erred by allowing the
State to comment at trial on what he and the court of appeals describe as
his post-Miranda “selective silence”—or his decision to temporarily defer
answering questions during his police interview—in violation of the
Fourteenth Amendment’s Due Process Clause. Melendez did not object to
this alleged error at trial, so we review for fundamental error. State v.
Escalante, 245 Ariz. 135, 140 ¶ 12 (2018). In fundamental error review, we
first determine whether a trial court erred. Id. at 142 ¶ 21. If so, we evaluate
whether the error was fundamental and prejudicial. Id. “A defendant
establishes fundamental error by showing that (1) the error went to the
foundation of the case, (2) the error took from the defendant a right essential
to his defense, or (3) the error was so egregious that he could not possibly
have received a fair trial.” Id. (emphasis in original). If the defendant
proves both fundamental error and prejudice, we must grant a new trial.
Id.

I.

¶17 Melendez’s challenge rests on the Fourteenth Amendment,
but his substantive claim arises from his right against self-incrimination

8
 STATE V. MELENDEZ
Opinion of the Court

under the Fifth Amendment. For this reason, we begin our analysis with
that constitutional provision.

A.

¶18 The Fifth Amendment, incorporated against the states
through the Fourteenth Amendment, provides that: “No person . . . shall be
compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V. The privilege against self-incrimination is viable “only when the
person is guaranteed the right to remain silent.” Miranda v. Arizona, 384
U.S. 436, 460 (1966) (internal quotation marks omitted) (quoting Malloy v.
Hogan, 378 U.S. 1, 8 (1964)). To safeguard this right, the Supreme Court
mandated that police apprise an individual in custody, prior to questioning,
of the following: his right to remain silent, that anything he says can be used
against him in court, and that he has a right to an attorney or to have one
appointed if he cannot afford one. Id. at 479. This advisement is, of course,
the Miranda warning.

¶19 These Fifth Amendment protections, however, are not
self-executing. A suspect must assert them. Salinas v. Texas, 570 U.S. 178,
181 (2013) (“It has long been settled that the privilege ‘generally is not
self-executing’ and that a witness who desires its protection ‘must claim it.’”
(quoting Minnesota v. Murphy, 465 U.S. 420, 425, 427 (1984))). To claim the
right to remain silent, an individual must unequivocally and
“unambiguously” invoke it. Berghuis v. Thompkins, 560 U.S. 370, 379, 381–82
(2010) (holding that a suspect did not unambiguously invoke his right to
remain silent by merely remaining silent for two hours and forty-five
minutes); State v. Payne, 233 Ariz. 484, 501 ¶ 40 (2013) (“An invocation of
the right to silence must be unequivocal and unambiguous . . . .”). Thus, a
suspect who simply remains quiet “has not done enough to put police on
notice that he is relying on his Fifth Amendment privilege.” Salinas, 570
U.S. at 188.

¶20 Once an individual invokes his right to remain silent, police
must cease questioning. Michigan v. Mosley, 423 U.S. 96, 103–04 (1975).
Prosecutors may not comment at trial on a defendant’s post-invocation
silence. Jenkins v. Anderson, 447 U.S. 231, 235 (1980). However,
“[a]nswering questions after police properly give the Miranda warnings
constitutes a waiver [of these rights] by conduct.” State v. Trostle, 191 Ariz.
4, 14 (1997) (quoting State v. Tapia, 159 Ariz. 284, 287 (1988)); see also Berghuis,

9
 STATE V. MELENDEZ
Opinion of the Court

560 U.S. at 385 (“As a general proposition, the law can presume that an
individual who, with a full understanding of his or her rights, acts in a
manner inconsistent with their exercise has made a deliberate choice to
relinquish the protection those rights afford.”).

B.

¶21 The record belies any claim that Melendez unequivocally or
unambiguously invoked his right to remain silent during his second
interview. The State twice issued Miranda warnings to Melendez. During
the first interview, the officer ceased post-Miranda questioning immediately
after Melendez said, “I don’t want to talk anymore.” Thus, Melendez knew
how to unequivocally invoke his right to remain silent and that such an
invocation would be honored. During his second interview, however, after
his second Miranda warning, Melendez elected to proceed with
questioning. In light of Melendez’s earlier invocation, we cannot conclude
he unequivocally or unambiguously invoked his right to remain silent in
his second interview when he stated that he would “hold” and “pass” on
answering certain questions “for now.” Indeed, Melendez’s mid-interview
statement that he was willing to continue the interview buttresses this
conclusion.

¶22 Melendez’s statements are more aptly characterized as
tactical deferrals to responding to specific questions than unequivocal
refusals to answer. Melendez repeatedly confirmed during his interview
and at trial that he merely intended to delay his answers. For example, in
response to one of the detective’s questions about the day’s events,
Melendez clarified that he did not wish to discuss the shooting because he
“just want[ed] to hold everything for now.” Following that and similar
deferrals, and immediately prior to asserting his self-defense claim,
Melendez explained that he “wanted to wait” to explain his conduct until
he knew what “people on the other side” were saying about the shooting.
Critically, Melendez actually confessed to the shooting and asserted
self-defense during the interview. These statements effectively answered
the questions to which he had intentionally demurred. At trial, Melendez
confirmed that he had “already decided to come in that it was self-defense”
during the interview even before the detective told him he would be going
to jail.

10
 STATE V. MELENDEZ
Opinion of the Court

¶23 On this record, Melendez’s initial expressed reticence to
answer certain questions about the crime until he knew the information
police had gathered about the shooting, and his subsequent answers,
constitute neither unequivocal nor unambiguous invocations of his right to
remain silent. Moreover, because Melendez never invoked his right to
remain silent, tactically delayed his responses, and ultimately answered the
substance of the questions during the interview, there was no “selective
silence.” We therefore need not decide here whether silence in response to
only some questions during police questioning constitutes an invocation of
the Fifth Amendment right against self-incrimination.

II.

¶24 We now turn to Melendez’s claim that the State violated his
Fourteenth Amendment due process rights.

A.

¶25 The Fourteenth Amendment provides that states may not
“deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1; see also Ariz. Const. art. 2, § 4. Melendez
argues that the State violated his due process rights by promising him, in
the Miranda warning, his right to remain silent, but then vitiated his right
by impeaching him at trial with his refusal to answer certain questions
during his custodial interview and commenting on his deferred answers
during closing argument.

¶26 “The touchstone of due process under both the Arizona and
federal constitutions is fundamental fairness.” State v. Melendez, 172 Ariz.
68, 71 (1992) (holding it constitutionally unfair for the State to provide a
prisoner the right to legal representation and then call that counsel to testify
against the prisoner regarding said legal representation). Impeachment of
a defendant’s trial testimony with his post-Miranda silence implicates this
notion of constitutional, fundamental fairness. Doyle v. Ohio, 426 U.S. 610,
618–19 (1976).

¶27 In Doyle, the Supreme Court consolidated two cases where
prosecutors sought to impeach a defendant’s trial testimony with his
post-Miranda silence. Id. at 611. Notably, during the interrogations, the
defendants did not invoke their right to remain silent, but effectively

11
 STATE V. MELENDEZ
Opinion of the Court

remained entirely silent after receiving Miranda warnings. Id. at 611, 614
n.5. At trial, the state impeached the defendants’ exculpatory testimony
with their failure to explain their innocence to officers during their
post-Miranda interviews. Id. at 616–17. The Court held that it would be
“fundamentally unfair,” and thus a violation of the Fourteenth
Amendment’s Due Process Clause, for the state to use this silence for
impeachment purposes because the Miranda warning impliedly promises
“that silence will carry no penalty.” Id. at 618–19.

B.

¶28 We now consider whether Doyle applies to this case.
Melendez argues that the prosecutor violated Doyle by referencing his
alleged “selective silence” during the State’s cross-examination and closing
argument. We do not need to reach this argument because Melendez was
not selectively silent.

¶29 Rather than remaining absolutely or selectively silent,
Melendez continued to speak throughout the interrogation. As noted
above, Melendez’s deferral statements did not invoke his right to remain
silent but were intended to delay giving his version of events until he knew
what others would say. Accordingly, because Melendez responded to each
question, he “[did] not remain[] silent at all.” Anderson v. Charles, 447 U.S.
404, 408 (1980).

¶30 Moreover, Doyle is readily distinguishable from this case. In
Anderson v. Charles, the Supreme Court held that Doyle’s unfairness
concerns about penalizing post-Miranda silence are absent when a
defendant is impeached with his prior inconsistent statements. Id.
at 407–08. In Anderson, the defendant was tried for killing a man and
stealing his car. Id. at 404–05. The defendant testified he retrieved the car
in a different location than he had identified in a post-Miranda
interrogation. Id. at 405. The prosecution impeached the defendant’s
testimony with this prior inconsistent statement, but in doing so, also
commented on the defendant’s initial failure during the interrogation to
describe the location where he had stolen the car. Id. at 405–06. The Sixth
Circuit held that this reference to the defendant’s silence violated Doyle. Id.
at 407.

12
 STATE V. MELENDEZ
Opinion of the Court

¶31 The Supreme Court reversed, holding that Doyle’s prohibition
on the use of post-Miranda silence to impeach a defendant’s trial testimony
did not apply where the prosecutor’s impeachment involved a defendant’s
prior inconsistent statements. Id. at 408–09. The Court explained that “a
defendant who voluntarily speaks after receiving Miranda warnings has not
been induced to remain silent,” and, “[a]s to the subject matter of his
statements, the defendant has not remained silent at all.” Id. at 408. In that
circumstance, there is “no unfair use of silence.” Id. The Court reasoned
that the reference to the defendant’s silence was part of an impeachment
which, “taken as a whole,” was “not designed to draw meaning from
silence, but to elicit an explanation for a prior inconsistent statement.” Id.
at 408–09. Therefore, the impeachment was proper. See id. at 409.

¶32 Here, the prosecutor’s cross-examination of Melendez is more
akin to the permissible impeachment by prior inconsistent statement in
Anderson than the prohibited impeachment by true silence in Doyle. Cf.
Jenkins, 447 U.S. at 239 (“Common law traditionally has allowed witnesses
to be impeached by their previous failure to state a fact in circumstances in
which that fact naturally would have been asserted.”). Taken as a whole,
the prosecutor contrasted Melendez’s self-defense testimony with the
self-defense claim he made during his interview. The prosecutor
contextualized the latter primarily with references to Melendez’s
words—not his silence. To do this, the prosecutor walked through each of
Melendez’s deferrals prefacing his self-defense claim and occasionally
referenced Melendez’s failure to answer questions during his interrogation.
Melendez contends that these references, and the comments on his
deferrals, were intended to draw meaning from silence. Not so.

¶33 Like the Court in Anderson, we conclude that the prosecutor’s
trial references to Melendez’s deferrals to answering interview questions
do not implicate Doyle. As a whole, the impeachment was intended to
question the legitimacy of Melendez’s self-defense claim—unequivocal
during trial but preceded by wavering tactical deferrals during his
interview—which Melendez used as a ploy to stall his answers until he
knew what witnesses had told police about the shooting. The prosecutor,
during cross-examination and closing argument, exploited Melendez’s
stalling primarily by invoking Melendez’s words, not his silence, to
describe Melendez’s attempt to craft a narrative consistent with other
investigative information. Although the prosecutor referenced Melendez’s
silence, as in Anderson, it was part of the prosecution’s overall attempt to

13
 STATE V. MELENDEZ
Opinion of the Court

impeach Melendez’s testimony with his prior statements. See State v. Tuzon, 118 Ariz. 205, 207 (1978) (holding that prosecutors do not violate Doyle
when impeaching a defendant with his post-Miranda interrogation
statements that omitted facts later testified to at trial).

¶34 Unlike in Doyle, Melendez’s deferrals to answering some
questions never resulted in post-Miranda silence because he ultimately and
voluntarily answered the substance of the questions when he asserted his
defense in the same interview—almost every question Melendez initially
“passed” on went to his involvement in the shooting and his motive.
Having voluntarily spoken about his role and motive in the crime, after
receiving Miranda warnings, Melendez did not remain silent at all “as to the
subject matter of his statements.” Anderson, 447 U.S. at 408. Taken as a
whole, the prosecutor’s cross-examination and closing arguments did not
violate Melendez’s due process rights. Although we hold that Melendez
did not invoke his right to silence in these circumstances, we leave for
another day whether similar deferrals, absent a suspect claiming a defense
in the same interview, constitute an invocation of the right against
self-incrimination.

C.

¶35 This case is not a perfect fit under the Anderson rubric, but
Anderson is more apt than Doyle. But even if we declined to apply Anderson
on the ground that it involved impeachment by inconsistent statements
rather than by statements implying Melendez tailored his defense to meet
witness accounts, we still would conclude that the prosecutor’s use of
Melendez’s post-Miranda statements and deferred answers did not violate
his due process rights because Melendez was not selectively silent.

¶36 Melendez and the court of appeals rely, in part, on State v.
Sorrell, 132 Ariz. 328 (1982), and State v. Routhier, 137 Ariz. 90 (1983), to
conclude that the State’s impeachment violated Melendez’s due process
rights. Melendez, 256 Ariz. at 26 ¶¶ 26–29. We are unpersuaded. In Sorrell,
the defendant unambiguously invoked his right to silence immediately
after being informed of his Miranda rights, waited ninety minutes after
being placed in a holding cell, and then gave a statement pronouncing his
innocence following a second Miranda warning. 132 Ariz. at 329. At trial,
the prosecutor emphasized the defendant’s delay in explaining his conduct
by referencing his silence via invocation in his first interview. Id. We held

14
 STATE V. MELENDEZ
Opinion of the Court

that the state may not comment on the defendant’s silence after invocation,
even if he later decides to waive his rights. Id. at 330. Sorrell is inapposite
because Melendez neither unequivocally nor unambiguously invoked his
right to silence during the second interrogation.

¶37 Routhier also fails to advance Melendez’s position. There, the
defendant initially spoke with a detective after signing a waiver of his
Miranda rights, but later invoked his right to counsel, thereby terminating
questioning. Routhier, 137 Ariz. at 93–94. Three days later, another
detective interviewed the defendant before counsel had been provided. Id.
at 94. While cross-examining the defendant at trial, the prosecution
confirmed he “at no point mentioned any kind of self-defense” when
initially speaking with the detective. Id. at 95. We held that it was
permissible for the prosecution to comment on what the defendant
volunteered to say prior to reinvoking his rights, but the prosecutor
“violated [the] appellant’s fifth amendment right to silence” when
commenting on what the defendant failed to say during that time. Id. at 96.
Critically, we emphasized that the prosecutor violated the defendant’s
rights by commenting on his “failure to make a complete statement or to
answer particular questions,” in light of the defendant’s “express
invocation of his rights.” Id. (holding that “it was impermissible to ask
questions on matters about which the appellant had not made any comment
or given any information”).

¶38 The court of appeals also relied on three pre-Doyle and
pre-Anderson cases—State v. Shing, 109 Ariz. 361 (1973), State v. Anderson, 110 Ariz. 238 (1973), and State v. Ward, 112 Ariz. 391 (1975). Melendez, 256
Ariz. at 24–25 ¶¶ 17–21, 26 ¶ 34, 29 ¶ 49. These cases, too, are
distinguishable because they involve the classic Doyle
scenario—impeachment based on defendants’ true silence rather than
deferrals, which did not constitute silence. Unlike Melendez, the
defendants in those cases refused to answer any police questions and told
their stories for the first time at trial. See Shing, 109 Ariz. at 362; Anderson,
110 Ariz. at 239; Ward, 112 Ariz. at 392.

¶39 Here, the prosecutor did not violate Melendez’s rights by
commenting on Melendez’s post-Miranda deferrals to some questions prior
to admitting the actus reus by asserting his self-defense claim. Unlike Doyle,
Sorrell, or Routhier, where the defendants declined to answer questions and
never asserted a defense during their custodial interviews before invoking

15
 STATE V. MELENDEZ
Opinion of the Court

their rights or otherwise ending the interviews, Melendez failed to invoke
his right to remain silent and, by asserting his defense, ultimately answered
the questions he had “passed” on in the same interview. In other words,
the prosecutor did not impermissibly ask questions at trial “on matters
about which [Melendez] had not made any comment or given any
information.” Routhier, 137 Ariz. at 96. Melendez’s statements about his
role in the shooting, his defense, his attempt to discern what other witnesses
had told the detective, and his reason for deferring answers to several
questions were all matters he eventually discussed with police. In context
of the unique facts of this case, the prosecutor did not impeach Melendez
for his silence, but rather for his admitted attempt to elicit information from
the interviewing officer before telling his version of the story.

III.

¶40 Courts diverge on whether Doyle precludes use of
post-Miranda selective silence to impeach a testifying defendant. Some
courts have concluded that Doyle prohibits prosecutors from this use of a
defendant’s selective silence. See, e.g., United States v. Williams, 665 F.2d 107,
109–10 (6th Cir. 1981) (holding that the defendant’s due process rights, as
recognized by Doyle, were violated when the prosecution cross-examined
him about his failure to answer some questions during a post-Miranda
interrogation); see also Bartley v. Commonwealth, 445 S.W.3d 1, 12 (Ky. 2014)
(recognizing that due process “ordinarily bars the use of an accused’s
post-Miranda-warning selective silence”). Other courts have declined to
extend Doyle to prohibit impeachment using a defendant’s selective silence.
See, e.g., United States v. Burns, 276 F.3d 439, 441–42 (8th Cir. 2002) (holding
that the admission of a defendant’s silence in response to one question did
not violate Doyle because the defendant waived his Miranda rights and did
not unequivocally invoke his constitutional right to silence); see also People
v. Bowman, 136 Cal. Rptr. 3d 119, 127 (Ct. App. 2011) (holding that “the
Doyle rule did not prohibit the prosecution’s use of [defendant’s] selective
silence” because the defendant did not state that he wanted to cease all
further questioning or invoke his right of silence).

¶41 We note, without comment, that our jurisprudence has
touched upon this issue. See, e.g., State v. Maturana, 180 Ariz. 126, 130 (1994)
(reasoning that, by choosing to answer “some questions and remain silent
as to others,” the state was permitted to comment on the defendant’s silence
because he “never invoked his right to remain silent”; “[b]ecause defendant

16
 STATE V. MELENDEZ
Opinion of the Court

did not invoke his right to remain silent, there is no Doyle violation”); State
v. Reinhold, 123 Ariz. 50, 53 (1979) (explaining that reference to the
defendant’s selective silence did not violate Doyle because the defendant
“did not invoke his right to remain silent”).

¶42 Our holding that Melendez’s deferred answers do not
constitute selective silence obviates the need to decide whether a
prosecutor’s use of selective silence for impeachment implicates Doyle.
Accordingly, we decline to address our jurisprudence beyond the facts of
this case and we leave for another day the question of Doyle’s applicability
to selective silence.

IV.

¶43 With no Doyle due process violation in this case, “this issue
becomes one of state evidentiary law.” State v. Henry, 176 Ariz. 569, 580
(1993). Melendez argued in the court of appeals that the trial court erred in
not precluding, pursuant to Arizona Rule of Evidence 403, the prosecution
from referencing his “passing” and “holding” on certain questions during
his in-custody interview. Rule 403 provides that “[t]he court may exclude
relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, [or] misleading the
jury.” The court of appeals did not address this argument, finding it moot,
because it reversed Melendez’s convictions and sentences on other
grounds. Melendez, 256 Ariz. at 32 ¶ 64. We decide this issue in the interest
of judicial economy. Lewis v. N.J. Riebe Enters., Inc., 170 Ariz. 384, 394 (1992)
(“Under Rule 23[(m)(2)], Arizona Rules of Civil Appellate Procedure, this
court has the authority either to decide these issues [raised in but not
addressed by the court of appeals] or to remand to the court of appeals for
decision.”).

¶44 Melendez relies on United States v. Hale, 422 U.S. 171, 180
(1975), for the proposition that silence at the time of arrest is generally not
very probative, but carries a significant potential for unfair prejudice. Hale
is distinguishable, however, because it was predicated on the defendant’s
absolute silence, which is markedly absent here. 422 U.S. at 181 (“[W]e hold
that under the circumstances of this case it was prejudicial error for the trial
court to permit cross-examination of respondent concerning his silence
during police interrogation.”). Here, there was no Rule 403 error because
the prosecution had the right to impeach Melendez with his own

17
 STATE V. MELENDEZ
Opinion of the Court

post-Miranda statements that did not invoke his right to remain silent. Cf.
Salinas, 570 U.S. at 183 (recognizing “the general principle that the
Government has the right to everyone’s testimony” (quoting Garner v.
United States, 424 U.S. 648, 658 n.11 (1976))). The probative value of
Melendez’s post-Miranda statements was not substantially outweighed by
a danger of unfair prejudice.

CONCLUSION

¶45 The court of appeals posits that a bright line rule vitiating
Doyle’s due process protections if a defendant merely utters a single word
post-Miranda would be “unreasonable.” Melendez, 256 Ariz. at 27 ¶ 41. But
that circumstance is not before us. Melendez answered substantive
questions in his post-Miranda interview and spoke about his presence at the
crime scene, his relationship with the victim, his role in the shooting, his
self-defense claim, his possession of the gun used in the offense and where
the detective could retrieve it, and his decision to temporarily defer
answering certain questions—which he ultimately answered in his
interview—until he knew what witnesses said to the police about the
shooting. Melendez waived his right to silence when he commented and
provided information on all of these topics. See Anderson, 447 U.S. at 408;
Routhier, 137 Ariz. at 96. The prosecutor was entitled to use these
statements for impeachment purposes at trial. It would be unreasonable to
extend Doyle’s due process protections to this circumstance.

¶46 The trial court did not err by permitting the State to comment
on Melendez’s post-Miranda statements and temporary deferrals to
answering some questions. Accordingly, we affirm Melendez’s convictions
and sentences and vacate the court of appeals’ opinion.

18
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

BOLICK, J., concurring.

¶47 I join the Court’s opinion in full. In light of U.S. Supreme
Court precedents and our opinions applying them, I find this a very close
case, though I conclude that the Court has reached the correct outcome. But
I believe that trying to make sense of the Supreme Court’s hopelessly
muddled cases applying Miranda’s “prophylactic” rules is unnecessary
because those rules exceed the U.S. Supreme Court’s authority with regard
to state criminal proceedings and procedures. Instead, I would focus
exclusively on whether a defendant’s Fifth Amendment right against
self-incrimination was violated through a coerced confession or otherwise.
Here, it clearly was not.

A.

¶48 This case requires us to determine whether the prosecution
could properly use Melendez’s alleged selective silence to discredit his
argument of self-defense. Precedents from the Supreme Court and this
Court are unclear and inconsistent. In Doyle v. Ohio, 426 U.S. 610, 618 (1976),
for instance, the Supreme Court noted that although “the Miranda warnings
contain no express assurance that silence will carry no penalty, such
assurance is implicit,” and, therefore, “it would be fundamentally unfair
and a deprivation of due process to allow the arrested person’s silence to
be used to impeach an explanation subsequently offered at trial.”
Thereafter, in Anderson v. Charles, 447 U.S. 404, 408 (1980), the Court
clarified that “Doyle does not apply to cross-examination that merely
inquires into prior inconsistent statements.” Thus, we are left to determine
whether a partly silent, partly loquacious suspect falls into the first category
or the second.

¶49 This Court’s cases are somewhat in tension as well. In State v.
Routhier, 137 Ariz. 90, 96 (1983), for instance, this Court held, rather
categorically, that while it was permissible for the prosecutor to ask
questions at trial “on matters which the [defendant] had volunteered prior
to reinvoking his rights, it was impermissible to ask questions on matters
about which the [defendant] had not made any comment or given any
information.” But in State v. Maturana, 180 Ariz. 126, 130 (1994), this Court
held that trial testimony regarding a defendant’s silence in response to
certain questions was not improper because the defendant “never invoked
his right to remain silent—he merely chose to answer some questions and

19
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

remain silent as to others. Indeed, he chose to do so after being read his
rights and stating that he understood them.”

¶50 The Court’s opinion here meticulously analyzes applicable
federal and state jurisprudence and, in my view, correctly determines that
Melendez’s selective silence was not shielded from the prosecutor’s
commentary. This laborious inquiry is necessitated, as the Supreme Court
observed in Doyle, by the fact that “every post-arrest silence is insolubly
ambiguous because of what the State is required to advise the person
arrested.” 426 U.S. at 617. That language is important and revealing: this
Court is required to resolve insolubly ambiguous issues regarding a
suspect’s silence not because of the Fifth Amendment right against
self-incrimination, but because of due process implications flowing from
“what the State is required to advise the person arrested.” See id.

¶51 Our Court and others have reflexively concluded that a police
officer’s, or a prosecutor’s, or a trial court’s wrong guess as to which side of
this ambiguity a particular comment or inquiry falls means that the state
has “violated [the defendant’s] [F]ifth [A]mendment right to silence.”
Routhier, 137 Ariz. at 96. That is so despite the fact that the Supreme Court
has stated repeatedly that the failure to follow Miranda’s prophylactic rules
is not tantamount to a Fifth Amendment violation. See, e.g., Vega v. Tekoh, 597 U.S. 134, 149 (2022) (noting that it is an “insupportable position” to
suggest that a “Miranda violation is tantamount to a violation of the Fifth
Amendment”). If there is an ambiguity that we need to clear up in this area
of law, it is not the dividing line between protected and unprotected silence,
which today’s opinion attempts to fathom, but between the Constitution’s
guarantees and the prophylactic rules the Supreme Court has articulated to
direct their enforcement. I believe the states are bound only by the former,
not the latter; and that is where this Court’s focus should be directed in
cases like this one.

B.

¶52 In relevant part, the Fifth Amendment provides: “No
person . . . shall be compelled in any criminal case to be a witness against
himself . . . .” U.S. Const. amend. V. That protection was extended to the
states through the due process guarantee of the Fourteenth Amendment.
Malloy v. Hogan, 378 U.S. 1, 6 (1964).

20
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

¶53 Miranda v. Arizona, 384 U.S. 436 (1966), was a watershed
decision in effectuating this constitutional guarantee. The Court’s majority
noted the history of widespread physical and psychological practices that
were used to induce involuntary confessions, concluding that “[u]nless a
proper limitation upon custodial interrogation is achieved—such as these
decisions will advance—there can be no assurance that practices of this
nature will be eradicated in the foreseeable future.” Id. at 447.

¶54 The actual holding in Miranda is that “the Fifth Amendment
privilege is available outside of criminal court proceedings and serves to
protect persons in all settings in which their freedom of action is curtailed
in any significant way from being compelled to incriminate themselves.”
Id. at 467. But the 5–4 majority also concluded that “without proper
safeguards the process of in-custody interrogation of persons suspected or
accused of crime contains inherently compelling pressures which work to
undermine the individual’s will to resist and to compel him to speak where
he would not otherwise do so freely.” Id. To avoid such coercive pressure,
“the accused must be adequately and effectively apprised of his rights and
the exercise of those rights must be fully honored.” Id.

¶55 The Court emphasized that “we cannot say that the
Constitution necessarily requires adherence to any particular solution,” nor
does the decision “create[] a constitutional straitjacket which will handicap
sound efforts at reform.” Id. But until it was shown alternatives “which are
at least as effective in apprising accused persons of their right of silence and
in assuring a continuous opportunity to exercise it,” certain procedures
must be observed. Id. These procedures consist of the now-familiar
“Miranda warning” and rules, which the Court summarized as follows:

[W]hen an individual is taken into custody or otherwise
deprived of his freedom by the authorities in any significant
way and is subjected to questioning, . . . [h]e must be warned
prior to any questioning that he has the right to remain silent,
that anything he says can be used against him in a court of
law, that he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires. Opportunity to
exercise these rights must be afforded to him throughout the
interrogation. After such warnings have been given, and such
opportunity afforded him, the individual may knowingly and

21
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

intelligently waive these rights and agree to answer questions
or make a statement. But unless and until such warnings and
waiver are demonstrated by the prosecution at trial, no
evidence obtained as a result of interrogation can be used
against him.

Id. at 478–79.

¶56 In dissent, Justice Clark warned that the creation of “[s]uch a
strict constitutional specific inserted at the nerve center of crime detection
may well kill the patient,” id. at 500 (Clark, J., concurring in the result and
dissenting in part), and accused the majority of “in one full sweep changing
the traditional rules of custodial interrogation which this Court has for so
long recognized as a justifiable and proper tool in balancing individual
rights against the rights of society,” id. at 503. Justice White, joined by
Justices Harlan and Stewart, declared that the majority’s ruling “makes
very little sense in terms of the compulsion which the Fifth Amendment
proscribes. . . . Confessions and incriminating admissions, as such, are not
forbidden evidence; only those which are compelled are banned.” Id. at 536
(White, J., dissenting).

¶57 Regardless of the dissenters’ concerns, over the course of the
ensuing six decades, Miranda has surely greatly curtailed the coercive
practices that gave rise to both the Fifth Amendment and the decision itself.
Indeed, the Miranda warning is so deeply ensconced in the public
consciousness that most Americans probably could recite it even without
the benefit of a civics class, so long as they watch crime shows on television.
And, of course, police interrogation practices and transparency have
evolved greatly since that decision.

¶58 But at the same time, as this Court’s review of the applicable
precedents today evidences, enforcement of the Fifth Amendment’s
guarantee against self-incrimination has been eclipsed by compliance with
the Miranda rules as ends in themselves, with the deleterious yet predictable
result that legitimate law enforcement practices that do not produce
coerced confessions are sometimes nonetheless subject to exclusion at trial.

¶59 This distinction between Miranda’s holding and its
implementing rules was expressly recognized and accorded significance in
Michigan v. Tucker, 417 U.S. 433 (1974). During a custodial interrogation of

22
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

a suspect before the Court issued its Miranda decision, the suspect identified
a witness before he was advised that he had the right to appointed counsel.
Id. at 436–37. The Supreme Court determined that the witness’s testimony
did not have to be excluded. Id. at 452.

¶60 The Court first considered “whether the police conduct
complained of directly infringed upon respondent’s right against
compulsory self-incrimination or whether it instead violated only the
prophylactic rules developed to protect that right.” Id. at 439. Looking at
the constitutional right, the Court found that the “evils at which it was to
strike” involved forced confessions, so that pre-Miranda decisions focused
on whether confessions were voluntary. Id. at 440–41. By contrast, the
Court in Miranda recognized that the “procedural safeguards” it set forth
“were not themselves rights protected by the Constitution but were instead
measures to insure that the right against compulsory self-incrimination was
protected.” Id. at 444 (citing Miranda, 384 U.S. at 467). The Court noted that
“no one could contend that the interrogation faced by respondent bore any
resemblance to the historical practices at which the right against
compulsory self-incrimination was aimed.” Id. Although the full panoply
of Miranda warnings were not provided, the Court declared that “when
balancing the interests involved, we must weigh the strong interest under
any system of justice of making available to the trier of fact all concededly
relevant and trustworthy evidence which either party seeks to adduce.” Id.
at 450. Under the circumstances the case presented, the Court ruled in favor
of allowing the testimony. Id. at 452.

¶61 But any hope that the Court would elevate constitutional
substance over jurisprudential form proved short-lived. In addition to
Doyle and other decisions applying Miranda’s prophylactic rules, the
Supreme Court further confused matters in Dickerson v. United States, 530
U.S. 428 (2000). There the Court considered an act of Congress, enacted
ostensibly pursuant to its enforcement powers under Section 5 of the
Fourteenth Amendment, providing that admissibility of a defendant’s
statements made in custodial interrogations would depend on their
voluntariness. Id. at 431–32.

¶62 Previously, the Supreme Court held in City of Boerne v. Flores, 521 U.S. 507, 535–36 (1997), that Congress may not use its Section 5
enforcement authority to supersede the Court’s decisions interpreting and
applying the Constitution. The Court in Dickerson acknowledged that

23
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

“Congress retains the ultimate authority to modify or set aside any
judicially created rules of evidence and procedure that are not required by
the Constitution,” 530 U.S. at 437, and conceded “that there is language in
some of our opinions that supports the view” that Miranda’s prophylactic
rules were not constitutionally mandated, id. at 438. The Court grounded
its hegemony over the subject matter, to the exclusion of Congress, in its
supervisory authority over federal courts and in the fact that it had
consistently applied the decision to the states—therefore, it must have been
a constitutional decision. Id. at 437–38.

¶63 Thus, the Court justified its authority to impose prophylactic
rules on the states not because of a constitutional violation but on the basis
that it had previously done so. And it completely elided the distinction it
had consistently drawn, starting with Miranda itself, between the holding in
that case, which was constitutionally based, and the rules it set forth to
implement that holding, which were not constitutionally based.

¶64 The Dickerson majority never exactly said that the Miranda
rules were constitutionally mandated, but instead that they have
“constitutional underpinnings.” Id. at 440 n.5. Presumably, everything the
Court does has constitutional underpinnings so long as it is acting under its
Article III authority, which it does when it holds a law unconstitutional, as
opposed to exceeding those powers by, say, legislating.

¶65 Given logical holes of such enormous girth, Justice Scalia
(joined in dissent by Justice Thomas) could not resist spotlighting them.
Scalia observed that even though the Court invalidated the statute, the
majority never expressly stated that the congressional enactment violated
the Constitution. “The reason the statement does not appear is not
only . . . that it would be absurd, inasmuch as [the statute] excludes from
trial precisely what the Constitution excludes from trial, viz., compelled
confessions; but also that Justices whose votes are needed to compose
today’s majority are on record as believing that a violation of Miranda is not
a violation of the Constitution.” 3 Id. at 445 (Scalia, J., dissenting) (emphasis
in original). The “only thing that can possibly mean,” Scalia charged, “is

3 Indeed, Chief Justice Rehnquist, who authored Dickerson, also authored
Michigan v. Tucker, which, as noted supra ¶¶ 59–60, was premised on
precisely the opposite conclusion. See Dickerson, 530 U.S. at 451 (Scalia, J.,
dissenting).
24
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

that this Court has the power, not merely to apply the Constitution but to
expand it, imposing what it regards as useful ‘prophylactic’ restrictions
upon Congress and the States. That is an immense and frightening
antidemocratic power, and it does not exist.” Id. at 446.

¶66 Turning to the Miranda rules themselves, Scalia observed that
what makes them “unacceptable as a matter of straightforward
constitutional interpretation” is their “palpable hostility toward the act of
confession per se, rather than toward what the Constitution abhors,
compelled confession.” Id. at 450 (emphasis in original). Apropos of the case
before us, the “Constitution is not, unlike the Miranda majority, offended by
a criminal’s commendable qualm of conscience or fortunate fit of
stupidity.” Id.

¶67 Much as I agree with Justice Scalia, were Dickerson the
Supreme Court’s final word on the subject, I would not have cause to write
separately in this case. We would have to accept that Miranda is
constitutionally mandated in its totality and constrain ourselves to
conscientiously parsing the precedents applying its many dimensions, as
the Court has done here. See Dickerson, 530 U.S. at 432 (holding that
“Miranda and its progeny . . . govern the admissibility of statements made
during custodial interrogation in both state and federal courts.”).

¶68 But remarkably, the Supreme Court reversed itself on this
question yet again in Vega v. Tekoh. Presented in that case was the question
of whether a police interrogation of a suspect without a Miranda warning
gives rise to a claim for damages under 42 U.S.C. § 1983. Vega, 597 U.S.
at 138. That majestic statute provides a cause of action for violations of
rights “secured by the Constitution and laws” under color of state law. Id.
at 141. It typically provides a remedy for violations of the Fourteenth
Amendment and provisions of the Bill of Rights that are incorporated
through that amendment to the states. See, e.g., Monroe v. Pape, 365 U.S. 167,
172 (1961), overruled in part on other grounds by Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978).

¶69 The Court held in Vega that the failure to provide the Miranda
warning did not give rise to a § 1983 claim because the rules are not
mandated by the Constitution. 597 U.S. at 150. Putting a fine point on it,
the Court remarked that “[i]f a Miranda violation were tantamount to a
violation of the Fifth Amendment, our answer would of course be

25
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

different.” Id. at 141. The Court recounted many cases in which it had
distinguished between Miranda’s constitutional holding and its
implementing rules, upholding actions that violated the latter but
conformed to the former, id. at 144–46, before concluding that “a violation
of Miranda is not itself a violation of the Fifth Amendment,” id. at 152. For
the moment, at least, that is the Supreme Court’s final pronouncement on
the subject.

C.

¶70 So how do state courts untangle this jurisprudential pretzel?
By virtue of the Supremacy Clause, U.S. Const. art. VI, cl. 2, we are bound
by the Supreme Court’s interpretation of the federal constitution and laws;
but under principles of federalism, unlike federal courts that are subject to
the Supreme Court’s supervisory authority, we are not otherwise bound by
its decisions. What do we do with a constitutional ruling that does not
enforce a constitutional right?

¶71 “In our federalist system of dual sovereignty, states retain
certain antecedent powers, including the power to protect their citizens
from crime.” Simpson v. Miller, 241 Ariz. 341, 345 ¶ 8 (2017); see also Bond v.
United States, 572 U.S. 844, 848 (2014) (noting that “our constitutional
structure leaves local criminal activity primarily to the States”). The states’
authority may be supplanted only by constitutional guarantees and valid
federal statutes. Cf. Bond, 572 U.S. at 858 (noting that the Supreme Court
applies federalism principles by construing federal statutes, when possible,
to avoid imposing obligations under Section 5 of the Fourteenth
Amendment or to preempt state laws). Even then, the Supreme Court has
“repeatedly held that the Government’s regulatory interest in community
safety can, in appropriate circumstances, outweigh an individual’s liberty
interest.” United States v. Salerno, 481 U.S. 739, 748 (1987).

¶72 Dickerson itself acknowledged that “[i]t is beyond dispute that
we do not hold a supervisory power over the courts of the several States.”
530 U.S. at 438. “With respect to proceedings in state courts, our ‘authority
is limited to enforcing the commands of the United States Constitution.’”
Id. (quoting Mu’Min v. Virginia, 500 U.S. 415, 422 (1991)).

¶73 In Vega, the Court explained that Dickerson essentially
proclaimed that the Miranda rules have the status of a law of the United

26
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

States that is binding on the states under the Supremacy Clause—which
Justice Alito, writing for the Vega majority, aptly characterized as “a bold
and controversial claim of authority.”4 597 U.S. at 149 & n.5. Of course,
judicial creation of such a law, as Justice Scalia correctly depicted it,
“flagrantly offends fundamental principles of separation of powers.”
Dickerson, 530 U.S. at 454 (Scalia, J., dissenting). On closer inspection,
though, Dickerson actually based its imposition of the Miranda rules on the
states on the fact that the Court had done so since Miranda—reasoning
circularly that Miranda must have announced a constitutional rule because
that decision “and two of its companion cases applied the rule to
proceedings in state courts,” id. at 438 (majority opinion)—and now that
practice was protected by stare decisis, id. at 443–44. In reality, the Supreme
Court has never articulated a constitutional basis for imposing Miranda’s
prophylactic rules on the states.

¶74 Indeed, Justice Stevens, who joined the Dickerson majority,
urged elsewhere that “[t]his Court’s power to require state courts to exclude
probative self-incriminatory statements rests entirely on the premise that
the use of such evidence violates the Federal Constitution.” Oregon v.
Elstad, 470 U.S. 298, 370 (1985) (Stevens, J., dissenting). “If the Court does
not accept that premise,” Justice Stevens continued, “it must regard the
holding in the Miranda case itself, as well as all of the federal jurisprudence
that has evolved from that decision, as nothing more than an illegitimate
exercise of raw judicial power.” Id. at 371. Justice Scalia amplified that
point in his Dickerson dissent, stating that “our continued application of the
Miranda code to the States despite our consistent statements that running
afoul of its dictates does not necessarily—or even usually—result in an

4 Legal scholars, including one who is now a member of the Supreme Court,

have voiced similar concerns. See, e.g., Amy Coney Barrett, Substantive
Canons and Faithful Agency, 90 B.U. L. Rev. 109, 174 (2010) (Remarking that
legal textualists “have emphatically rejected the proposition that federal
courts may adopt doctrinal tests that overenforce the Constitution by
imposing limits on state actors that go beyond those set by the document
itself. The dispute over the constitutional status of Miranda warnings is the
most well-known example” (footnote omitted)); Joseph D. Grano,
Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy,
80 Nw. U. L. Rev. 100, 124 (1985) (“[F]ederalism and separation of power
considerations should . . . temper our zeal for attributing by implication
what [A]rticle III does not convey in explicit terms.”).
27
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

actual constitutional violation, represents not the source of Miranda’s
salvation but rather evidence of its ultimate illegitimacy.” Dickerson, 530
U.S. at 456 (Scalia, J., dissenting).

¶75 Now that Vega has definitively established that “a violation of
Miranda is not itself a violation of the Fifth Amendment,” 597 U.S. at 152, I
see no basis whatsoever to reflexively follow the prophylactic rules. It may
be that they are independently required by the Arizona Constitution, laws,
or court rules, or that they constitute voluntary best practices. But I believe
that Arizona is free to chart its own course, so long as we scrupulously
protect the constitutional right against self-incrimination.

¶76 As to my colleague Chief Justice Timmer’s concurrence, her
recitation of what the Supreme Court said in Vega is entirely correct. But
try as it might, the Court cannot make one plus one equal three. That Court
has stated—consistently, clearly, and categorically—that its constitutional
rulings can bind the states only when demanded by the Constitution.
Supra ¶¶ 70–75. Just as plainly, Vega’s holding is that Miranda’s
prophylactic rules are not commanded by the Fifth Amendment. Vega, 597
U.S. at 149. We are bound only by the Supreme Court’s constitutional
holdings, not (as contrasted with the federal courts) by its prophylactic
rulemaking, nor by its musings about what a prior opinion (Dickerson) was
purported to have done through its hitherto unknown legislating authority.
Even taking a broad view of Miranda, and Vega’s reluctance to overturn it
even as it disavowed the constitutional authority for its prophylactic rules,
I believe the states have wide latitude to determine their rules and
procedures to effectively enforce the Fifth Amendment’s right against
self-incrimination.

¶77 Indeed, Miranda itself noted that policymakers permissibly
may implement different procedures that are “at least as effective in
apprising accused persons of their right of silence and in assuring a
continuous opportunity to exercise it.” 384 U.S. at 467. It may well be that
the widespread use of videotaped custodial interviews, coupled with a
warning advising the suspect of the right to remain silent, would satisfy
even Miranda, and could certainly assure that no Fifth Amendment
violation occurs.

¶78 Beyond that, and to the case before us, Arizona may wish to
warn suspects that their silence may be used against them in certain

28
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

circumstances. In England, for instance, from which our cherished
protection against self-incrimination derives, evidence of silence is
permissible at trial although neither the prosecutor nor court may comment
on it. Gordon Van Kessel, The Suspect as a Source of Testimonial Evidence: A
Comparison of the English and American Approaches, 38 Hastings L.J. 1, 6
(1986). Certainly, as in the case here, silence or selective silence may be
probative evidence depending on the totality of circumstances. Such an
approach would avoid the Doyle conundrum in which due process concerns
emanate not from the right against self-incrimination but “implicitly” from
“what the State is required to advise the person arrested.” 426 U.S. at 617.

¶79 At the same time, the Arizona Constitution may in certain
instances provide greater protections for criminal suspects and defendants
than does its federal counterpart. See, e.g., State v. Ault, 150 Ariz. 459, 464–65
(1986) (rejecting the federal inevitable discovery doctrine); State v. Bolt, 142
Ariz. 260, 264–65 (1984) (holding that warrantless home entry is per se
unlawful absent exigent circumstances); State v. Mixton, 250 Ariz. 282,
306 ¶ 114 (2021) (Bolick, J., dissenting) (contending that the private affairs
clause provides greater protection against warrantless searches than the
Fourth Amendment); see generally Clint Bolick, Principles of State
Constitutional Interpretation, 53 Ariz. St. L.J. 771, 778 & n.40 (2021).

¶80 Following Miranda’s prophylactic rules sixty years later, at a
time in which the abuses to which they were directed have largely receded
and in which transparency of the arrest and interrogation process has
greatly expanded, is no minor imposition. As the Supreme Court
acknowledged in Dickerson, the “disadvantage of the Miranda rule is that
statements which may be by no means involuntary, made by a defendant
who is aware of his ‘rights,’ may nonetheless be excluded and a guilty
defendant go free as a result.” 530 U.S. at 444. Were this Court to rule
differently than it does today, with procedural form predominating over
constitutional substance, that would be exactly the result here, as there is
no evidence of coercion.

¶81 I realize it is a bit of a Yogi Berra-ism, 5 but I cannot make the
point more plainly than this: there is no constitutional violation unless there

5Yogi Berra was the legendary New York Yankees’ catcher (winning more
World Series Championships than any other player), manager, and coach,

29
 STATE V. MELENDEZ
JUSTICE BOLICK, Concurring

is a constitutional violation. The Supreme Court has clearly instructed that
a violation of the rules is not a violation of the Constitution. In cases
involving the right against self-incrimination, that right, and whether it was
protected or violated, should be our exclusive focus.

who often turned out memorable quotes, spanning the obvious (“It ain’t
over ‘til it’s over.”) to the incomprehensible (“Ninety percent of the game is
half mental.”). See Yogi Berra, The Yogi Book: I Really Didn’t Say Everything
I Said! (1999).
30
 STATE V. MELENDEZ
CHIEF JUSTICE TIMMER, Concurring

TIMMER, C. J., concurring.

¶82 I join the Court’s opinion in full. I write separately to address
Justice Bolick’s suggestion in his concurrence that we should assess the
voluntariness of a confession without regard to Miranda’s requirement that
procedural safeguards—for example, advising people they have a right to
remain silent and the right to an attorney—must be in place to protect the
Fifth Amendment privilege against compelled self-incrimination during
custodial interrogation. See supra ¶ 47; Miranda v. Arizona, 384 U.S. 436, 444
(1966). He reasons we are not bound by Miranda’s decision regarding these
safeguards because they “exceed the U.S. Supreme Court’s authority with
regard to state criminal proceedings and procedures.” See supra ¶ 47; see
also supra ¶ 51 (asserting that states are bound only by constitutional
guarantees and not “the prophylactic rules the Supreme Court has
articulated to direct their enforcement”). As always, Justice Bolick has
penned a thoughtful and elegantly written analysis. But I cannot let pass
his assertion that this Court may “chart its own course” away from Miranda,
see supra ¶ 75, without stressing that the authority of the U.S. Supreme
Court over matters of federal constitutional law is not a matter of state
discretion, and adherence to its precedent is not optional.

¶83 The Supreme Court has repeatedly said that states are bound
to apply Miranda’s requirement that law enforcement provide warnings to
a suspect to safeguard against compelled self-incrimination. See Dickerson
v. United States, 530 U.S. 428, 438–39 (2000) (concluding that Miranda’s
protections are constitutionally required and listing numerous cases in
which the Supreme Court has applied the rule to state court proceedings).
In Vega v. Tekoh, 597 U.S. 134 (2022), which Justice Bolick relies on, see
supra ¶¶ 68–69, the Court left the Miranda warnings intact as the governing
rule for custodial interrogations in state and federal courts. Justice Alito,
who authored the majority opinion, described Dickerson as concluding that
the Miranda rule “has the status of a Law of the United States that is binding
on the States under the Supremacy Clause.” Id. at 149 (cleaned up).
Although recognizing that “[w]hether [the] Court has the authority to
create constitutionally based prophylactic rules that bind both federal and
state courts has been the subject of debate among jurists and
commentators,” Justice Alito accepted that this is “what the Court did in
Miranda,” and his opinion in Vega “[did] not disturb that decision in any
way.” Id. at 149 n.5. Thus, far from undermining Miranda, Vega reaffirmed

31
 STATE V. MELENDEZ
CHIEF JUSTICE TIMMER, Concurring

its status as binding precedent under the Supremacy Clause, leaving no
room for lower courts to unilaterally discard its safeguards.

¶84 Justice Bolick raises many excellent points, and Vega may
foreshadow the Supreme Court’s step down a path that leads to Miranda’s
demise. But not yet. As stated by the Supreme Court, “[if] a precedent of
this Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, [courts] should follow the case
which directly controls, leaving to this Court the prerogative of overruling
its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989). Adhering to this hierarchical judicial authority is not
“reflexive,” see supra ¶ 75, but reinforces the stability and integrity of the
judicial system by respecting the Supremacy Clause.

¶85 Following the Miranda framework is not a matter of choice; it
is a constitutional imperative. Until the Supreme Court speaks otherwise,
our role is not to predict its trajectory but to uphold the law as it stands.

32