                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                            STATE OF ARIZONA,
                                  Appellee,

                                        v.

                     SHAUN MARZINE HUDSON, JR.,
                             Appellant.

                             No. 1 CA-CR 14-0132
                              FILED 11-17-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-111248-001
                The Honorable Dawn M. Bergin, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Ballecher & Segal, Phoenix
By Natalee E. Segal
Counsel for Appellant
                           STATE v. HUDSON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.


O R O Z C O, Judge:

¶1             Shaun Hudson appeals his convictions for aggravated
assault, a class 3 dangerous felony; unlawful imprisonment, a class 6 felony;
disorderly conduct, a class 6 dangerous felony; assault, a class 3
misdemeanor; assault, a class 1 misdemeanor; disorderly conduct, a class 1
misdemeanor; and preventing the use of a telephone in an emergency, a
class 2 misdemeanor. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Hudson and S.P. married in 2008, and S.P. filed for divorce in
February 2013. In March 2013, S.P. started a new job. Hudson agreed to
watch their children at her house while she was at work. On March 8, 2013,
Hudson and S.P. were involved in a domestic dispute and the police were
called. Hudson left before police arrived, but later that day turned himself
in to police. During a taped interview, Avondale Police Department
Detective Heatherington read Hudson his Miranda1 rights and asked:

      Q: Are you willing to answer some questions for me?

      A: Some, yeah.

      Q: Okay.

      A: I feel like I should have an attorney.

After a pause, Detective Heatherington continued the interview and asked
“what happened this morning?” Hudson then confessed.

¶3           During trial, the State attempted to have the recorded
interview admitted into evidence and used Detective Kalcum to lay the
foundation for its admission. Hudson objected based on the best evidence


1     See Miranda v. Arizona, 384 U.S. 436 (1966).



                                     2
                            STATE v. HUDSON
                            Decision of the Court

rule,2 arguing that Detective Kalcum—who merely monitored Hudson’s
interview—was not present for the first ten minutes of the interview.3
Therefore, Hudson argued that Detective Kalcum should only testify as to
those portions of the interview that she actually observed. However,
Hudson then stipulated to the admission of the entire interview, indicating,
“I would rather [the interview] be played in full context than just the
portion that [Detective Kalcum monitored].” The interview was then
played for the jury.4 Hudson was found guilty and timely appealed. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1,
13-4031, and -4033.A.1 (West 2015).5

                                  DISCUSSION

¶4             On appeal, Hudson asserts that the trial court should have sua
sponte suppressed the recorded interview because Detective
Heatherington continued questioning him after he requested an attorney.
Hudson, however, did not move to suppress the interview before or during
trial. Hudson’s failure to assert his alleged invocation of the right to counsel
at the trial court normally would preclude appellate review. See State v.
Newell, 212 Ariz. 389, 398, ¶ 34 (2006); see also State v. Tison, 129 Ariz. 526,
535 (1981) (stating that “[i]ssues concerning the suppression of evidence
which were not raised in the trial court are waived on appeal”). However,
we may review a suppression argument that is raised for the first time on
appeal for fundamental error. State v. Cañez, 202 Ariz. 133, 151, ¶ 51 (2002).
Fundamental error is “error going to the foundation of the case, error that
takes from the defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair trial.”
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).




2      See Ariz. R. Evid. 1002.

3     The interviewer, Detective Heatherington, was unavailable as a
witness for trial.

4      Although the parties stipulated to playing the entire interview, the
interview had already been partially redacted by the parties. The redacted
version of the interview was played at trial.

5     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


                                       3
                            STATE v. HUDSON
                            Decision of the Court

¶5           When we review for fundamental error, the defendant has the
burden of persuasion. Id. To prevail, the defendant “must establish both
that fundamental error exists and that the error in his case caused him
prejudice.” Id.; see also State v. Hunter, 142 Ariz. 88, 90 (1984) (noting that
defendant must prove fundamental error of such magnitude that it
prevented a fair trial). “We view the facts in the light most favorable to
upholding the conviction.” State v. Yonkman, 233 Ariz. 369, 371, ¶2 (App.
2013).

I.     Fundamental Error

¶6            The Fifth and Fourteenth Amendments to the United States
Constitution provide that a suspect has a right against self-incrimination,
which includes the right to counsel during a custodial interrogation.
Miranda v. Arizona, 384 U.S. at 478–79. If a suspect requests counsel, “the
interrogation must cease until an attorney is present.” Id. at 474. However,
“law enforcement officers may continue questioning until and unless the
suspect clearly requests an attorney.” Davis v. United States, 512 U.S. 452,
461 (1994) (emphasis added).

¶7             Determining whether a suspect has invoked the right to
counsel is an objective inquiry, and invocation requires “some statement
that can reasonably be construed to be an expression of a desire” for an
attorney. Id. at 459 (citation omitted). Thus, the defendant must
unequivocally request counsel before an officer is required to cease
questioning. Id. By comparison, “if a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable officer in light
of the circumstances would have understood only that the suspect might be
invoking the right to counsel,” police can continue questioning. Id. (first
emphasis added).

¶8             For example, the statement “[m]aybe I should talk to a
lawyer” was held to be an equivocal request for counsel. Id. at 461–62.
Therefore, police were not required to cease questioning. Id.; see also State
v. Eastlack, 180 Ariz. 243, 250–51 (1994) (holding that “I think I better talk to
a lawyer first” was equivocal); State v. Ellison, 213 Ariz. 116, 127, ¶ 29 (2006)
(finding that “I think I might want an attorney” was equivocal). On the
other hand, the statement “if you're going to pursue this and try to pin it on
me, I want a lawyer because I'm not going to say nothing else until I can
talk to a lawyer” was an unequivocal request for counsel requiring officers
to cease questioning. State v. Spears, 184 Ariz. 277, 286 (1996); see also State
v. Finehout, 136 Ariz. 226, 230 (1983) (finding that “I’m not going to say
anymore until I talk to a lawyer” was unequivocal).


                                       4
                            STATE v. HUDSON
                            Decision of the Court

¶9            We conclude that no error, much less fundamental error,
occurred because Hudson did not unequivocally invoke the right to
counsel. Hudson’s statements are similar to the statements in Davis,
Eastlack, and Ellison. The court in those cases held that the defendants’
statements were equivocal because they did not clearly articulate the
request for counsel, and thus did not invoke the right. See Davis, 512 U.S.
at 461–62; Eastlack, 180 Ariz. at 250–51; Ellison, 213 Ariz. at 127, ¶ 29. In the
same way, Hudson’s statement “I feel like I should have an attorney” was
equivocal; it indicated only that Hudson might be invoking his right to
counsel.6 See Davis, 512 U.S. at 459.

¶10           Moreover, viewing Hudson’s statements in light of the
circumstances further underscores their ambiguity. See id. Hudson’s
willingness to answer “some” questions even though he “[felt] like [he]
should have an attorney” was contradictory. As a result, a reasonable
officer would consider the statements equivocal. See Newell, 212 Ariz. at
397-98, ¶ 32 (reasoning that a suspect’s contradictory statements render a
request for counsel equivocal).7

¶11           Without citing authority, Hudson argues that “it is clear from
the audio tape that [his statement] was clear and unambiguous.” To bolster
this, Hudson argues that Detective Kalcum “would have ceased
questioning if she heard Hudson making the purported statement on the
audio tape.” This argument misstates Officer Kalcum’s testimony. At trial,
Officer Kalcum testified that she did not hear Hudson’s purported request
for an attorney. Then, defense counsel asked:

       Q:     If you did hear [Hudson ask for an attorney] and had
       been there[]to hear that initial portion of the interview, what
       if anything, would you have done?




6      “[I]f we were to require questioning to cease if a suspect makes a
statement that might be a request for an attorney, [the] clarity and ease of
application would be lost.” Davis, 512 U.S. at 461. Officers would have to
make judgment calls regarding whether a suspect has invoked the right to
counsel, “even though he has not said so.” Id.

7      Even though it would have been “entirely appropriate” for Detective
Heatherington to clarify Hudson’s statement before proceeding, see Newell,
212 Ariz. at 398, ¶ 33, Detective Heatherington was not constitutionally
required to do so. See Ellison, 213 Ariz. at 127, ¶ 29.


                                       5
                           STATE v. HUDSON
                           Decision of the Court

      A:     I wouldn’t have done anything. At that point in time,
      the detective would have stopped the interview and ended it
      and gone out [of] the room, [if] he had not, then I would have
      assisted with that, but --

      Q:     So assuming that the [] jury listens to [Hudson’s
      interview] that’s now in evidence and they hear within the
      first minute of the questioning where Mr. Hudson says that
      he would like an attorney, then it’s your testimony that the
      interview should have stopped at that portion?

      A:     If that is correct and that’s what’s on the tape, then yes.

(Emphasis added). Defense counsel’s cross-examination questions did not
accurately paraphrase what was on the tape. Contrary to Hudson’s
argument, Detective Kalcum testified that she would have ceased
questioning if Hudson unequivocally stated “he would like an attorney.”
This is categorically different from Hudson’s actual, equivocal statement: “I
feel like I should have an attorney.” On this record, Hudson did not carry
the burden of proving that any error, much less fundamental error,
occurred.

II.   Prejudice

¶12           Even if the court fundamentally erred, Hudson has not
proven prejudice. Hudson argues that he was prejudiced because the
prosecutor commented on Hudson’s request for an attorney, “essentially
vouching for the Detective and his method of interviewing,” and the
prosecutor “used Hudson’s statements to establish [Hudson’s mens rea] in
her closing.”

¶13            It is well established that “a prosecutor may not comment on
a defendant's post-arrest, post-Miranda warnings silence as evidence of
guilt.” State v. Ramirez, 178 Ariz. 116, 125 (1994).8 A prosecutor may,
however, “comment on a defendant's post-Miranda warning statements
‘because       a      defendant      who       voluntarily   speaks   after
receiving Miranda warnings has not been induced to remain
silent.’“ Id. (citation and punctuation omitted).



8      A prosecutor’s improper comments about the exercise of the right to
remain silent “will be fundamental error.” State v. Fleming, 117 Ariz. 122,
127 (1977).


                                      6
                          STATE v. HUDSON
                          Decision of the Court

¶14          Hudson’s argument mischaracterizes the prosecutor’s
comments. Hudson did not remain silent, but instead answered questions
after he was read his Miranda rights. Furthermore, the prosecutor never
commented on Hudson’s silence. Rather, the prosecutor commented on
Hudson’s admissions in the interview, as well as the inadequacy of his
purported request for counsel and the propriety of Detective
Heatherington’s questioning. These were proper comments on Hudson’s
post-Miranda statements.

¶15           Further undermining Hudson’s allegation of prejudice is his
own reliance on the interview as a component of his defense. During
closing argument, defense counsel frequently referred to the interview and
even quoted from it at length. Defense counsel discussed Hudson’s
interview as evidence of his intent, his cooperation with officers and his
purported request for an attorney. Defense counsel also urged the jury “to
listen to [Hudson’s] interview and listen to [Hudson’s] own words.” We
therefore find no prejudice.

                            CONCLUSION

¶16           For the foregoing reasons, we affirm Hudson’s convictions
and the resulting sentences.




                               :ama




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