State v. Carlson

• Decision Date: 30 November 2011
• Docket Number: No. 2 CA–CR 2010–0382.,2 CA–CR 2010–0382.
• Citation: 266 P.3d 369,622 Ariz. Adv. Rep. 4,228 Ariz. 343
• Parties: The STATE of Arizona, Appellant, v. Michael Jonathon CARLSON, Appellee.
• Court: Arizona Court of Appeals

228 Ariz. 343

266 P.3d 369

622 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellant,

v.Michael Jonathon CARLSON, Appellee.

No. 2 CA–CR 2010–0382.

Court of Appeals of Arizona, Division 2, Department A.

Nov. 30, 2011.

Barbara LaWall, Pima County Attorney By Jacob R. Lines, Tucson, Attorneys for Appellant.

Harley Kurlander, Tucson, Attorney for Appellee.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 Following a suppression hearing, the trial court granted the defendant Michael Carlson's motion to suppress statements he had made to law enforcement officers, finding they were taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state appealed the suppression order pursuant to A.R.S. § 13–4032(6). We affirm.

¶ 2 When reviewing a suppression order entered after a hearing, we consider only the evidence presented at the hearing, which we view in the light most favorable to upholding the trial court's order. State v. Hummons, 227 Ariz. 78, ¶ 2, 253 P.3d 275, 276 (2011); State v. Szpyrka, 220 Ariz. 59, ¶ 2, 202 P.3d 524, 526 (App.2008); State v. Sinclair, 159 Ariz. 493, 494, 768 P.2d 655, 656 (App.1988). Here, the facts relevant to the state's appeal are undisputed.

¶ 3 On June 16, 2009, Carlson had been arrested and was being held in custody in a police station when he was interrogated by a detective from the Pima County Sheriff's Department. Before questioning began, the detective attempted to recite the Miranda advisory, and the following exchange occurred:

[Detective]: ... I wanna talk to you about this, um, case.... And because of the conditions that we're under here I'm gonna read you your rights.

[Carlson]: I waive my rights. I know my rights. I have the right to remain silent. Anything that I say can and will be used. And I do have the right to remain silent. Anything that I say can and will be used against me in a court of law. An attorney will be appointed to represent me if I cannot afford one. I waive my rights.

[Detective]: All right, sir. I think you understand.

A lengthy interrogation followed in which Carlson was never given the Miranda advisory. In the course of the interrogation, Carlson made numerous incriminating statements.

¶ 4 Relying primarily on State v. Moorman, 154 Ariz. 578, 744 P.2d 679 (1987), and United States v. Bland, 908 F.2d 471 (9th Cir.1990), the trial court found that the detective “failed to fulfill her obligation to affirmatively advise the Defendant of his Miranda warnings before she began questioning him” and that she did not alert Carlson to the critical information that he had the right to an attorney to be present during questioning. As it argued below, the state contends Carlson's own “recitation of his Miranda rights [was] adequate” and “the absence of a specific warning about the presence of counsel during questioning [was] not fatal.”

¶ 5 Given the wholesale absence of a Miranda advisory by law enforcement officers here, the precise issue to be decided on appeal is not, as the state maintains, whether the “warnings” reasonably conveyed the suspect's rights. See Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). The officer conveyed no warnings. Rather, we must address whether the suspect's own recitation demonstrated he knew the rights protected by Miranda such that he voluntarily and intelligently could waive those rights even without an advisory having been given by law enforcement officials. See Maryland v. Shatzer, ––– U.S. ––––, ––––, 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010) (waiver of rights protected by Miranda must be knowing, voluntary, and intelligent). In short, this case is not about the adequacy of Miranda warnings; instead, we focus on whether Carlson's statements displayed knowledge that obviated the need for the warnings being given at all.

¶ 6 In Florida v. Powell, the Supreme Court recently reaffirmed that Miranda created “ ‘procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.’ ” ––– U.S. ––––, ––––, 130 S.Ct. 1195, 1203, 175 L.Ed.2d 1009 (2010), quoting Duckworth, 492 U.S. at 201, 109 S.Ct. 2875. It is “ ‘an absolute prerequisite to interrogation,’ ” the Court stated, “that an individual held for questioning ... ‘be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.’ ” Powell, ––– U.S. at ––––, 130 S.Ct. at 1203, quoting Miranda, 384 U.S. at 471, 86 S.Ct. 1602. Given the simplicity and importance of the advisory, Miranda declared that “we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.” 384 U.S. at 468, 86 S.Ct. 1602. Further, the Miranda Court provided that “[n]o effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.” Id. at 470, 86 S.Ct. 1602.

¶ 7 In light of the foregoing, there should be little question but that law enforcement officers must affirmatively discharge their duties under Miranda whenever conducting a custodial interrogation. Miranda was meant to provide a clear rule, see id. at 441–42, and the Supreme Court has determined that the advisory it prescribed is “too simple” and “too important” to invite “ex post facto inquiries” into whether it was required in the circumstances of a particular case. Id. at 473 n. 43. Notwithstanding this unambiguous directive from our highest court, we assume without deciding that a suspect theoretically could demonstrate full knowledge of the rights protected by Miranda and execute a valid waiver thereof even in the absence of an advisory by state officials. See United States v. Patane, 542 U.S. 630, 641, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion) (“[A] mere failure to give Miranda warnings does not, by itself, violate a suspect's constitutional rights or even the Miranda rule.”). Even allowing such an assumption, suppression of Carlson's statements was required here.

¶ 8 The essential information that must be conveyed to a suspect in a Miranda advisory is

[1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Powell, ––– U.S. at ––––, 130 S.Ct. at 1203, quoting Miranda, 384 U.S. at 479, 86 S.Ct. 1602 (alterations in Powell ). Here, Carlson unnecessarily repeated the first two components of the Miranda advisory, which suggested his knowledge of the law and his confidence in such knowledge were not commensurate. As to the third and fourth components, he stated only that “[a]n attorney will be appointed to represent me if I cannot afford one.” This lone statement both failed to demonstrate an awareness that he had a right to the presence of an attorney (as distinguished from mere eventual representation by an attorney), and that the right applied before, and continued during, any questioning. See Moorman, 154 Ariz. at 585, 744 P.2d at 686 (“[T]he warning must inform the defendant that the right to counsel exists before and during interrogation.”). Rather than confirming his knowledge of the Miranda warnings, therefore, Carlson's statements arguably demonstrated his incomplete understanding of his rights and highlighted the need for the advisory.

¶ 9 We recognize, of course, that there is “no talismanic incantation” required by Miranda, California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981) (per curiam), and courts will not construe the words used in a Miranda advisory as we might the language in a will or an easement. Duckworth, 492 U.S. at 203, 109 S.Ct. 2875. If the sum total of statements in a Miranda advisory reasonably conveys the essential information, the warning will be deemed constitutionally adequate. Powell, ––– U.S. at ––––, 130 S.Ct. at 1204. But even under this standard, a Miranda advisory may not be reduced to a right to silence and appointed counsel coupled with a warning that anything said will be admissible in court. When any element of Miranda is omitted, we do not presume it is common knowledge. See United States v. Tillman, 963 F.2d 137, 141 (6th Cir.1992). While different words or phrasings may be used to communicate the necessary information, “[t]he four warnings Miranda requires are invariable.” Powell, ––– U.S. at ––––, 130 S.Ct. at 1204; accord Moorman, 154 Ariz. at 585, 744 P.2d at 686.

¶ 10 Although Carlson's attempted recitation of Miranda certainly demonstrated some familiarity with the warnings, it omitted essential information, most importantly the right to the presence of an attorney both before and during questioning. The Supreme Court authority cited by the state is thus readily distinguishable. In each of those cases, the suspects were informed of their right to the presence of an attorney during questioning. See Powell, ––– U.S. at ––––, 130 S.Ct. at 1200 (suspect advised of right to talk to appointed attorney “before any questioning” and informed he could exercise “any of these rights at any time” during interview); Duckworth, 492 U.S. at 198, 109 S.Ct. 2875 (suspect informed: “You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning.”); Prysock, 453 U.S. at 356, 101 S.Ct. 2806 (suspect advised, “You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning.”). In contrast, Carlson's statement that “[a]n attorney will be appointed to represent me if I cannot afford one” was accompanied by nothing clarifying the substance of his right to counsel as it related to the imminent interrogation....