State v. Yonkman

• Decision Date: 26 April 2012
• Docket Number: No. 2 CA–CR 2010–0338.,2 CA–CR 2010–0338.
• Citation: 274 P.3d 1225,229 Ariz. 291,633 Ariz. Adv. Rep. 4
• Parties: The STATE of Arizona, Appellee, v. David James YONKMAN, Appellant.
• Court: Arizona Court of Appeals

229 Ariz. 291

274 P.3d 1225

633 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee,

v.David James YONKMAN, Appellant.

No. 2 CA–CR 2010–0338.

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

April 26, 2012.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani and Alan L. Amann, Tucson, Attorneys for Appellee.

Lori J. Lefferts, Pima County Public Defender By Lisa M. Hise, Tucson, Attorneys for Appellant.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 Appellant David Yonkman was convicted after a jury trial of sexual abuse and sexual conduct with a minor based on acts he committed against his stepdaughter. He was sentenced to a mitigated term of four years' imprisonment for sexual conduct with a minor, followed by lifetime probation for sexual abuse. He argues the trial court abused its discretion in admitting other-act evidence about his alleged molestation of two other victims, precluding evidence of his prior acquittal on those molestation charges, denying his motion to suppress, and admitting prior consistent statements. Because we conclude his confession was obtained in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and the Fifth and Fourteenth Amendments to the United States Constitution, we reverse the order denying the motion to suppress the confession. Accordingly, his convictions and sentences are reversed, and the case is remanded to the trial court.

¶ 2 We state the facts in the light most favorable to upholding the convictions. State v. Fontes, 195 Ariz. 229, ¶ 2, 986 P.2d 897, 898 (App.1998). In March 2010, fifteen-year-old C. told her mother, K., that Yonkman, her stepfather, had “been touching [her] inappropriately.” K. reported the allegations to police, and C. underwent a forensic interview in which she repeated the allegations.

¶ 3 At trial, C. testified about two separate incidents in which she had awoken to find her pants off, her underwear around her ankles, and Yonkman fondling her breasts and/or her vagina. The state also presented the testimony of two of C.'s friends who allegedly had been molested by Yonkman during sleepovers at the Yonkman home. Yonkman later admitted in an interview with police that he had touched C. on her breasts and vagina.

¶ 4 Yonkman was charged with sexual abuse and sexual conduct with a minor; he was convicted and sentenced as set forth above, and this timely appeal followed.

Motion to Suppress Confession

¶ 5 Yonkman argues the trial court erred in denying his motion to suppress the incriminating statements he made to a detective. “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. Carlson, 228 Ariz. 343, ¶ 2, 266 P.3d 369, 370 (App.2011). We defer to the court's factual findings but review de novo its ultimate legal conclusions. State v. Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App.2006).

¶ 6 At the suppression hearing, the parties stipulated to the following facts surrounding Yonkman's first encounter with a police officer during which he had invoked his right to counsel. A Tucson Police officer went to the Yonkman home on March 27, 2010, in response to C.'s allegations of sexual contact. When Yonkman arrived, he was detained by the officer and read the Miranda warnings.¹ He immediately invoked his right to counsel, and the officer asked no further questions about the allegations.

¶ 7 Several days later, Tucson Police Detective Gabriel Rivera received a telephone call from K. stating that C. had recanted the allegations. ² Rivera told K. that he could close the case if Yonkman would undergo a polygraph test and give a statement. When K. confirmed to Rivera that she would pass this information on to Yonkman, Rivera gave her his contact information specifically for her to provide it to Yonkman. Rivera later acknowledged that his “only way ... to get in contact” with Yonkman was through K. Later that day, Yonkman called Rivera to schedule an appointment for an interview. They set the appointment for April 1, and Yonkman appeared at the police station on the scheduled date. At the station, Rivera took Yonkman into an interview room and told him he was free to leave at any time and that he did not have to talk to Rivera. However, Rivera reread the Miranda warnings because the circumstances of the interview “could be construed as [Yonkman] being detained or under arrest.” Yonkman stated he understood his rights and agreed to answer Rivera's questions.³ Yonkman eventually admitted to touching C.'s breasts and vagina, and he was arrested.

¶ 8 Before trial, Yonkman moved to suppress the statements on the grounds the state could not establish he had validly waived his right to counsel after previously invoking that right, citing the rule set forth in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). There, the Court held that a suspect in custody who invokes his right to counsel after being read the Miranda advisory “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484–85, 101 S.Ct. 1880; accord State v. Staatz, 159 Ariz. 411, 414, 768 P.2d 143, 146 (1988), disapproved on other grounds by State v. LeBlanc, 186 Ariz. 437, 440, 924 P.2d 441, 444 (1996). In other words, the state cannot establish a valid waiver of a defendant's right to counsel once he has invoked that right “by showing only that he responded to further police-initiated custodial interrogation.” Edwards, 451 U.S. at 484, 101 S.Ct. 1880.⁴ The rule is based on the presumption that a suspect who invokes his right to counsel after being read the Miranda warnings has determined he is unable to proceed without the advice of an attorney. See Arizona v. Roberson, 486 U.S. 675, 683, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).

¶ 9 In Maryland v. Shatzer, ––– U.S. ––––, ––––, 130 S.Ct. 1213, 1217, 1223, 175 L.Ed.2d 1045 (2010), the Supreme Court recently extended the Edwards rule to breaks in custody lasting less than fourteen days. The Court reasoned:

The protections offered by Miranda, which we have deemed sufficient to ensure that the police respect the suspect's desire to have an attorney present the first time police interrogate him, adequately ensure that result when a suspect who initially requested counsel is reinterrogated after a break in custody that is of sufficient duration to dissipate its coercive effects.

Shatzer, ––– U.S. at ––––, 130 S.Ct. at 1222. The Court found a fourteen-day period “provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.” Id. at ––––, 130 S.Ct. at 1223. Thus, under Edwards and Shatzer, a suspect who invokes his right to counsel and is released from custody cannot be interrogated again by law enforcement within fourteen days of his invocation unless he reinitiates the communication.

¶ 10 An accused has reinitiated conversation with the police when he makes a statement that expresses a willingness and generalized desire to talk about his case. Oregon v. Bradshaw, 462 U.S. 1039, 1045–46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (plurality opinion). Here, although Yonkman seemingly expressed a willingness to talk about his case with the detective, he did so only in response to the detective's suggestion, communicated through K., that the detective would close the case if Yonkman would take a polygraph test and make a statement. And, the record demonstrates that Rivera was well aware that he was conveying a message to Yonkman through K. Thus, Yonkman did not initiate the conversation with the police; rather, the detective initiated the interview. See The American Heritage Dictionary 662 (2d college ed.1991) ( “initiate” means “[t]o cause to begin”); see also Bradshaw, 462 U.S. at 1045, 103 S.Ct. 2830 (relying on dictionary definition of “initiate”).

¶ 11 Such a “police-initiated custodial interrogation,” Edwards, 451 U.S. at 484, 101 S.Ct. 1880, was a clear violation of the bright-line rules of Edwards and Shatzer. “What Edwards requires for a valid waiver is a statement by the accused initiated solely by him, without any prompting by the police.” State v. Beaupre, 123 N.H. 155, 459 A.2d 233, 235 (1983); see, e.g., O'Brien v. State, 56 So.3d 884, 888–89 (Fla.Dist.Ct.App.2011) (attempts to persuade defendant to reconsider decision to invoke counsel constitute interrogation in violation of Miranda ). “In the absence of such a bright-line prohibition [on reinterrogation after invocation], the authorities through ‘badgering’ or ‘overreaching’—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.” Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).

¶ 12 That the detective delivered the invitation through K. does not negate that his invitation constituted a reinitiation. See Ex parte Williams, 31 So.3d 670, 683 (Ala.2009) (“With third-party communications, the police are still prohibited from reinitiating questioning, and the impetus for reinitiation must still come from the accused.”); cf. United States v. Henry, 447 U.S. 264, 270–71, 274, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (Sixth Amendment right to counsel violated when government agent “intentionally creat [ed] a situation likely to induce [defendant] to make incriminating statements without the assistance of counsel” by paying informant to engage defendant in conversation while they were fellow inmates).

¶ 13 The trial court denied Yonkman's motion to suppress the statements, concluding, “Yonkman indeed voluntarily reinitiated by...