In Re Andre M.

SUPREME COURT OF ARIZONA
En Banc

) Arizona Supreme Court
) No. CV-03-0228-PR
)
) Court of Appeals
) Division Two
IN RE ANDRE M. ) No. 2 CA-JV 2002-0078
)
) Pima County Superior
) Court
) No. 15091501
)
) O P I N I O N
__________________________________)

Appeal from Superior Court of Pima County
No. 15091501
The Honorable Charles V. Harrington
REVERSED

Memorandum Decision of Court of Appeals, Division Two
2 CA-JV 2002-0078, Filed May 30, 2003
VACATED

Lee Tucker Tucson
Attorney for Andre M.

Barbara LaWall, Pima County Attorney Tucson
by Michael A. Colmenero, Deputy County Attorney
and Elizabeth Hurley, Deputy County Attorney
Attorneys for the State of Arizona

M c G R E G O R, Vice Chief Justice

¶1 We granted review to consider the standard for

determining the voluntariness of a juvenile’s confession when a

parent has been denied access to her child’s interrogation. We
exercise jurisdiction pursuant to Article VI, Section 5.3 of the

Arizona Constitution and Arizona Revised Statutes (A.R.S.)

section 12-120.24 (2003).

I.

¶2 On the morning of February 6, 2002, Andre M., then

sixteen and one-half years old, was sent to his principal’s

office at Pueblo High School in Tucson after a reported fist

fight in which Andre allegedly had been involved. Shortly

thereafter, police officers arrived on the school grounds and

briefly interviewed Andre about the fight. The school also

contacted Andre’s mother, who arrived at the school after this

interview and sat with the assistant principal and Andre as

Andre awaited further questioning by the police. During this

time, the police discovered a sawed-off shotgun that was

apparently connected to Andre in the trunk of another student’s

car. Andre’s mother was unaware of this discovery and did not

know that the police intended to question Andre about any

subject other than the fight.

¶3 At approximately 2:10 p.m., Andre’s mother told the

assistant principal that she needed to pick up her young

daughter from another school. The assistant principal assured

Andre’s mother that if she did not return in time to be present

during the police questioning, either the assistant principal or

another administrator would sit in on the interview. Upon
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receiving this assurance, Andre’s mother left to pick up her

daughter. The assistant principal, however, neglected to tell

the police officers of Andre’s mother’s wish that either she or

an administrator be present if Andre were questioned.

¶4 When Andre’s mother returned to the high school twenty

minutes later, she found Andre in a closed room being questioned

by three officers. She attempted to enter the room in which her

son was being interrogated, but a police officer seated outside

the room prevented her from doing so. The police officers

continued questioning Andre for another five to ten minutes.

¶5 During proceedings in juvenile court, Andre moved to

suppress the statements he made to the police officers during

the second interview, in which he admitted to possessing a

deadly weapon on school grounds and to possessing a firearm as a

minor. Andre argued that his statements had been made in

violation of Miranda v. Arizona, 384 U.S. 436 (1966), because 1)

he had not knowingly, intelligently, and voluntarily waived his

rights; 2) he had been questioned in an atmosphere of fear and

intimidation; and 3) he had been questioned without his mother

being present. The juvenile court denied the motion,

adjudicated Andre delinquent, and placed him on probation for

one year. The court of appeals, after considering the “totality

of the circumstances” surrounding the interrogation, affirmed.

In re Andre M., 2 CA-JV 2002-0078 ¶ 12 (Ariz. App. May 30, 2003)
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(mem. decision). We granted review to consider the impact of a

parent’s exclusion upon the voluntariness of a juvenile’s

confession.

II.

¶6 The Fifth Amendment to the United States Constitution

provides that “[n]o person shall . . . be compelled in any

criminal case to be a witness against himself.” U.S. Const.

amend. V.1 In Miranda, the Supreme Court held that this

privilege against compulsory self-incrimination applies in all

custodial interrogations and binds the states. 384 U.S. at 478;

see also Chavez v. Martinez, ___ U.S. ___, ___ (2003) (“[T]he

Miranda exclusionary rule [is] a prophylactic measure to prevent

violations of the right protected by the text of the Self-

Incrimination Clause—the admission into evidence in [a] criminal

case of confessions obtained through coercive custodial

questioning.”). A defendant may waive his Miranda rights,

“provided the waiver is made voluntarily, knowingly and

intelligently.” Miranda, 384 U.S. at 444; see also State v.

Jimenez, 165 Ariz. 444, 449, 799 P.2d 785, 790 (1990) (“To be

voluntary, a confession must not only be free from coercion, but

the defendant's waiver of his constitutional rights must be

knowing and intelligent.”).

1
The Arizona Constitution includes a similar provision:
“No person shall be compelled in any criminal case to give
evidence against himself . . . .” Ariz. Const. art. 2, § 10.
4
¶7 In determining whether a defendant has voluntarily,

knowing and intelligently waived his rights, a court must assure

that the state establishes two factors:

First, the relinquishment of the right must have been
voluntary in the sense that it was the product of a
free and deliberate choice rather than intimidation,
coercion, or deception. Second, the waiver must have
been made with a full awareness of both the nature of
the right being abandoned and the consequences of the
decision to abandon it.

Moran v. Burbine, 475 U.S. 412, 421 (1986).

¶8 When a defendant alleges that he did not voluntarily,

knowingly and intelligently waive his Miranda rights, we begin

with the presumption that “confessions resulting from custodial

interrogation are inherently involuntary; to rebut that

presumption, the state must show by a preponderance of the

evidence that the confession was freely and voluntarily made.”

Jimenez, 165 Ariz. at 448-49, 799 P.2d at 789-90. The burden of

establishing that a confession is voluntary always remains with

the state.

¶9 The state’s task of establishing the voluntariness of

a statement becomes more difficult when a juvenile is involved.

Because of the increased susceptibility and vulnerability of

juveniles, courts exhibit a heightened concern with the

voluntariness of confessions by juveniles:

When a juvenile confession occurs as a result of
police questioning, the “greatest care must be taken
to assure that the admission was voluntary, in the
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 sense not only that it was not coerced or suggested,
but also that it was not the product of ignorance of
rights or of adolescent fantasy, fright or despair.”

Id. at 449, 799 P.2d at 790 (quoting In re Gault, 387 U.S. 1, 55

(1967)).

¶10 Andre argues that the police officers, by denying his

mother access to his interrogation, deliberately and without

cause, created an atmosphere of fear and intimidation, rendering

his confession involuntary. Andre urges this court to hold that

if the police deliberately exclude a parent from his or her

child’s interrogation, without good cause to do so, any

resulting statement must be suppressed. In response, the State

argues that the court of appeals correctly affirmed the juvenile

court’s denial of Andre’s motion to suppress under the totality

of the circumstances approach. Although we decline Andre’s

invitation to adopt a per se rule of exclusion, for the reasons

stated below, we agree that the juvenile court failed to give

appropriate weight to the exclusion of Andre’s mother.

A.

¶11 To determine whether a confession is voluntary, we

consider the totality of the circumstances surrounding the

confession. Id. at 449, 799 P.2d at 790; State v. Doody, 187

Ariz. 363, 368, 930 P.2d 440, 445 (App. 1997). When a juvenile

confession is involved, a number of factors are relevant to the

totality of the circumstances analysis, “including defendant’s
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age, education, and intelligence; any advice to defendant of

constitutional rights; the length of detention and questioning;

and use of physical force.” In re Timothy C., 194 Ariz. 159,

163 ¶ 16, 978 P.2d 644, 648 (App. 1998). We previously have

noted that “[t]he presence of the child’s parents or their

consent to a waiver of rights is only one of the elements to be

considered by the trial court in determining that the statement

was voluntary and the child intelligently comprehended his

rights.” State v. Hardy, 107 Ariz. 583, 584, 491 P.2d 17, 18

(1971); see also State v. Huerstel, ___ Ariz. ___, ___ ¶ 52, 75

P.3d 698, 711 (2003) (“[T]he absence of a parent during the

questioning of a juvenile does not itself render a confession

involuntary, rather it is considered as a factor in the totality

of the circumstances analysis.”). But the state can more easily

satisfy the two-pronged inquiry of Moran if a parent attends a

juvenile’s interrogation. First, a parent can help ensure that

a juvenile will not be intimidated, coerced or deceived during

an interrogation and that any confession is the product of a

free and deliberate choice. Second, the presence of a parent

makes it more likely that the juvenile will be aware of the

nature of the right being abandoned and will understand the

consequences of a decision to abandon that right. If a parent

is not present, therefore, the state faces a more daunting task

of showing that the confession was neither coerced nor the
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result of “ignorance of rights or of adolescent fantasy, fright

or despair” than if the parent attends the interrogation.

¶12 In the case at hand, we deal with not simply the

absence of a parent during an interrogation, but with the

absence of a parent who attempted to attend the interrogation

but was prevented from doing so by the police officers. We

conclude that in evaluating the voluntariness of a juvenile’s

confession under the totality of the circumstances standard, a

court should consider conduct by law enforcement personnel that

frustrates a parent’s attempt to confer with his or her child,

prior to or during questioning, to be a particularly significant

factor in determining whether the confession was given

voluntarily, knowingly and intelligently.2

2
The instant facts can be distinguished from recent
decisions such as State v. Huerstel, ___ Ariz. ___, 75 P.3d 698
(2003), in which this court concluded that the totality of the
circumstances justified holding that Huerstel’s confessions were
voluntary. Huerstel involved a triple murder for which Huerstel
was in custody. At the police station, where he was
interrogated, two officers advised Huerstel of his Miranda
rights, and he waived them. Id. at ___ ¶44, 75 P.3d at 710.
Huerstel initially denied involvement with the alleged crime,
but confessed during a second interrogation. Id. at ___ ¶ 47,
75 P.3d at 710. The next morning, during a third interview in
an office at the jail, Huerstel confessed a second time. Id. at
___ ¶ 49, 75 P.3d at 710. Significantly, in none of these
instances was a parent present and physically prohibited from
entering the interrogation room. Id. at ___ ¶ 52, 75 P.3d at
710-11. Moreover, the trial judge obviously relied upon
Huerstel’s recorded confession, which he described as “notable
for its lack of emotion and content.” Id. at ___ ¶ 58, 75 P.3d
at 711. In addition, evidence indicated a non-coercive
atmosphere. Id.
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¶13 We recognize that circumstances may justify, or even

require, the exclusion of a parent. For example, a juvenile may

request or insist that his parent not be present. In other

situations, a parent’s actions may justify his or her exclusion.

If a parent is disruptive or threatens the officers or child at

the time of the interrogation, the presence of the parent

probably will not aid the juvenile in understanding his rights

or the consequences of waiving them. Likewise, a parent’s

presence generally will not be justified if the incident to

which the police respond involves allegations against the

parent. External circumstances also may require that

questioning proceed in the parent’s absence. For instance, if

time is of the essence and a speedy interrogation of a juvenile

is necessary to further the safety or security of others, police

officers may be justified in conducting an interrogation even if

the parent is not present. Other factors that make up the

totality of the circumstances surrounding a particular

interrogation also will affect whether an interrogation may

proceed in the absence of a parent.

¶14 When, however, the state fails to establish good cause

for barring a parent from a juvenile’s interrogation, a strong

inference arises that the state excluded the parent in order to

maintain a coercive atmosphere or to discourage the juvenile

9
from fully understanding and exercising his constitutional

rights. See, e.g., In re State ex rel. Carlo, 225 A.2d 110, 119

(N.J. 1966) (“The refusal by the police . . . to permit the

parents access to their sons during the interrogations might

well be sufficient in itself to show that the confessions were

involuntary . . . .”); In re J.J.C., 689 N.E.2d 1172, 1180 (Ill.

App. Ct. 1998) (“[W]e hold that when a juvenile’s parents are

present, request to confer with their child, and are effectively

refused by the law enforcement authorities, the presumption

arises that the juvenile’s will is overborne.”).

¶15 In this case, the record reveals no justification for

excluding Andre’s mother. Andre did not ask the police to bar

his mother from the questioning. Andre’s mother was neither

abusive nor disruptive. Indeed, the only reason suggested by

the State for excluding her was that it would have been

inconvenient for the police to interrupt the interrogation and

advise Andre of his Miranda rights in the presence of his

mother. Such limited inconvenience, however, cannot justify the

exclusion of Andre’s parent when her presence was so important

to assuring that he understood the rights guaranteed him.

B.

¶16 Because we consider the totality of the circumstances

in determining the voluntariness of a confession, the fact that

Andre’s mother was excluded, of itself, does not require that we
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find Andre’s confession involuntary. The State, however, must

overcome both the initial presumption of involuntariness and the

added inference that arises from the exclusion of Andre’s mother

without cause.

¶17 To meet its burden, the State relies upon several

factors. Andre, who was sixteen and one-half years old at the

time of the questioning, appeared to be of normal intelligence.

He was interviewed at his school rather than at a police

station, which suggests a less coercive or frightening

environment. In addition, the interview lasted a relatively

short time, and certainly the record includes no suggestion that

the police officers used physical force to make Andre confess.

¶18 On the other hand, the record does not contain the

type of evidence typically offered by the state to bolster its

showing of voluntariness. Although Andre apparently received

Miranda warnings at some point, the record does not tell us

whether Andre received age-appropriate warnings. The

administration of such warnings would have helped the State

carry its burden. The record also includes no signed

acknowledgement to indicate that Andre received and understood

his Miranda rights. Finally, although the police apparently

recorded at least a portion of their interview with Andre, the

tape recording of the interview is not part of the record of

these proceedings. Such a tape recording would have assisted
11
the juvenile judge and this court in ascertaining whether the

police officers used improper methods or created a coercive

atmosphere.

¶19 We review the trial court’s determination that Andre

voluntarily confessed under an abuse of discretion standard.

See Huerstel, ___ Ariz. at ___ ¶ 50, 75 P.3d at 710. In this

case, the limited evidence the State offered to establish that

Andre’s statements were voluntary, coupled with the negative

inference that arises from the police officers’ unjustified

exclusion of Andre’s mother from the interrogation, leads us to

conclude that the juvenile judge clearly erred in admitting

Andre’s statements.

¶20 That error does not necessarily require that we vacate

the juvenile court’s judgment. “Error is harmless if the

reviewing court can say beyond a reasonable doubt that the error

did not contribute to the verdict.” State v. Davolt, ___ Ariz.

___, ___ ¶ 39, 84 P.3d 456, 470 (2004); see also State v. Bible,

175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (“Error, be it

constitutional or otherwise, is harmless if we can say, beyond a

reasonable doubt, that the error did not contribute to or affect

the verdict.”). In this instance, we cannot find the error

harmless. Because Andre’s statements comprised almost the

entirety of the evidence presented by the State in support of

the charges against Andre, we cannot say beyond a reasonable
12
doubt that the juvenile court would have found Andre delinquent

in the absence of these statements.

III.

¶21 For the foregoing reasons, we vacate the decision of

the court of appeals and reverse the judgment of the juvenile

court.

____________________________________
Ruth V. McGregor, Vice Chief Justice

CONCURRING:

__________________________________
Charles E. Jones, Chief Justice

__________________________________
Rebecca White Berch, Justice

__________________________________
Michael D. Ryan, Justice

__________________________________
Andrew D. Hurwitz, Justice

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