                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                      ARIEL VALENZUELA, Appellant.

                             No. 1 CA-CR 18-0429
                               FILED 9-5-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-001270-001
                 The Honorable Joan M. Sinclair, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Barbara Hull, Attorney at Law, Phoenix
By Barbara L. Hull
Counsel for Appellant
                        STATE v. VALENZUELA
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Maria Elena Cruz joined.


C A T T A N I, Judge:

¶1            Ariel Valenzuela appeals his convictions and sentences for
first degree murder and promoting prison contraband. He challenges the
superior court’s denial of his motion to suppress statements he asserts were
taken in violation of Miranda1 and made involuntarily. For reasons that
follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           While Valenzuela was an inmate at the state prison in
Buckeye, he and a group of inmates attacked and killed A.C., a fellow
inmate. During the attack, Valenzuela inflicted a fatal stab wound to A.C.’s
chest with a “prison-made” weapon.            Multiple inmates identified
Valenzuela as A.C.’s killer, and Valenzuela eventually admitted his
involvement in the attack, including that he stabbed A.C. three times.
Nevertheless, Valenzuela claimed his weapon was defective, others had
also stabbed A.C., and that he was not responsible for A.C.’s death. The
State charged Valenzuela with first degree murder and promoting prison
contraband.

¶3             Before trial, Valenzuela moved to suppress statements taken
in violation of Miranda and requested a voluntariness hearing. The superior
court conducted an evidentiary hearing and heard testimony from criminal
investigations unit (“CIU”) investigators, who had spoken with Valenzuela
three times during their investigation, and from special security unit
(“SSU”) correctional officers, who had spoken with him twice during their
administrative investigation.

¶4           CIU investigators first attempted to speak with Valenzuela
the night of the murder. After being provided Miranda warnings,
Valenzuela invoked his right to counsel and all questioning ceased. The
next morning, an SSU officer transported Valenzuela from his housing unit


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


                                     2
                        STATE v. VALENZUELA
                          Decision of the Court

to an SSU office, but Valenzuela refused to speak with the officer. Before
being transported back to his housing unit, Valenzuela asked to speak with
a specific SSU officer and claimed to have “game changing information.”
Valenzuela then admitted to his involvement in the attack but insisted he
was not A.C.’s killer.

¶5            Fourteen days later, CIU investigators asked to speak with
Valenzuela again, but he refused. In the final CIU interview more than a
year later, after reaching out to investigators, Valenzuela waived his
Miranda rights, and largely repeated the statements he made to the SSU
investigators. Valenzuela requested that CIU place him in protective
custody in exchange for his statements. CIU investigators indicated that
they could make a recommendation to prison officials, but that they had no
control over his housing status and could make no promises.

¶6           The superior court heard argument and denied the motion to
suppress, finding that Valenzuela had reinitiated contact with law
enforcement and that his statements were voluntary. At trial, the court
allowed the State to present Valenzuela’s statements from the second SSU
interview and the final CIU interview.

¶7           A jury returned guilty verdicts on both counts and found two
aggravating factors as to the promoting prison contraband offense. The
superior court found Valenzuela had multiple prior felony convictions and
sentenced him to concurrent terms, the longest of which is life
imprisonment without the possibility of release. Valenzuela timely
appealed, and we have jurisdiction under A.R.S. § 13-4033(A).

                              DISCUSSION

I.    Alleged Miranda Violation.

¶8             Valenzuela argues the superior court abused its discretion by
refusing to suppress statements taken in violation of Miranda. Valenzuela
claims that SSU’s initial interview violated Miranda, and any subsequent
statements should have been suppressed as “fruit of the poisonous tree.”
See Wong Sun v. United States, 371 U.S. 471 (1963). We review a ruling on a
motion to suppress for abuse of discretion; we defer to the court’s factual
findings but consider the court’s legal conclusions de novo. State v.
Peterson, 228 Ariz. 405, 407–08, ¶ 6 (App. 2011). We consider only evidence
presented at the suppression hearing, and we view the facts in the light
most favorable to upholding the court’s ruling. State v. Naranjo, 234 Ariz.
233, 238, ¶ 4 (2014).



                                     3
                         STATE v. VALENZUELA
                           Decision of the Court

¶9             To safeguard the privilege against compulsory self-
incrimination, Miranda requires that law enforcement advise suspects of
their rights before conducting a custodial interrogation. State v. Maciel, 240
Ariz. 46, 49, ¶ 10 (2016). When a suspect invokes his right to counsel, law
enforcement may not subject him to further questioning without counsel
present until after a 14-day break in custody. Maryland v. Shatzer, 559 U.S.
98, 109–11 (2010); Edwards v. Arizona, 451 U.S. 477, 482–85 (1981). There can
be a break in custody for these purposes even if the suspect remains
incarcerated for a prior conviction. Shatzer, 559 U.S. at 112–14. And a
suspect may waive this requirement by reinitiating communication with
law enforcement. Edwards, 451 U.S. at 484–85; see also State v. Yonkman, 231
Ariz. 496, 498, ¶ 8 (2013). To constitute a valid waiver, the suspect need
only express “a desire for a generalized discussion about the investigation”;
an explicit waiver statement is not required. Oregon v. Bradshaw, 462 U.S.
1039, 1045–46 (1983); see also North Carolina v. Butler, 441 U.S. 369, 375–76
(1979).

¶10           Although Valenzuela invoked his right to counsel in the
initial CIU interview, he reinitiated contact with SSU the next day and
expressed a desire to give his version of events. Similarly, more than a year
later, Valenzuela reinitiated contact with CIU, waived his Miranda rights,
and, once again, gave his version of events. In both instances, Valenzuela
maintained that he was not ultimately responsible for A.C.’s murder,
admitting only that he was involved in the attack and possessed a weapon.
The record does not show that these statements were the product of
coercive conduct by either unit; Valenzuela appears to have understood his
Miranda rights, and he personally initiated the discussions during which he
provided information regarding the attack on A.C..

¶11            Moreover, assuming SSU’s failure to wait 14 days before
contacting Valenzuela was improper, the unit’s initial attempt to speak with
Valenzuela did not yield a confession. The only statements admitted at trial
were obtained after Valenzuela reinitiated contact and provided a valid
waiver of his rights. There is no indication from the record that SSU’s
conduct so tainted all subsequent voluntary statements to warrant
suppression. State v. Fulminante, 161 Ariz. 237, 246 (1988) (holding
voluntary confession admissible if the taint of prior constitutional violation
sufficiently attenuated).

¶12            Finally, even if Valenzuela’s statements to SSU had been
taken in violation of Miranda and admitted in error, the error was harmless.
See State v. Montes, 136 Ariz. 491, 497 (1983) (applying harmless error
analysis to the improper admission of statements at trial). “A constitutional


                                      4
                         STATE v. VALENZUELA
                           Decision of the Court

error is harmless if it can be said beyond a reasonable doubt that the error
had no influence on the verdict of the jury.” Id. Valenzuela’s statements in
the final CIU interview, made over one year later, were free of any coercive
effects of SSU’s contact and were admissible at trial. See Fulminante, 161
Ariz. at 246. Had the potentially tainted statements to SSU been
suppressed, the jury would have nonetheless heard Valenzuela’s
inculpatory statements, along with substantial eye-witness testimony that
he was A.C.’s killer.

¶13           Accordingly, the superior court did not abuse its discretion
by rejecting Valenzuela’s Miranda argument.

II.   Alleged Involuntariness.

¶14            Valenzuela argues his statements were involuntary because
of the restrictions and dangers associated with being an inmate, coercive
conduct by SSU and CIU, and alleged promises made by CIU. We review
the superior court’s determination of voluntariness for abuse of discretion,
State v. Jones, 203 Ariz. 1, 5, ¶ 8 (2002), and consider the totality of the
circumstances surrounding the challenged confession. State v. Stanley, 167
Ariz. 519, 524 (1991). We start with the rebuttable presumption that a
confession made within the context of a custodial interrogation is
inherently involuntary. State v. Jimenez, 165 Ariz. 444, 448–49 (1990).

¶15            A confession is involuntary if (1) prompted by impermissible
police conduct, (2) attributable to coercive pressures that have not been
dispelled, or (3) derived directly from a prior involuntary statement. State
v. Amaya-Ruiz, 166 Ariz. 152, 164 (1990). Typically, a promise of leniency or
another benefit, even by implication, is impermissibly coercive. State v.
Lopez, 174 Ariz. 131, 138 (1992). The evidence, however, must show the
promise was in fact made and relied upon by the suspect. Id. It is not
enough that a promise was made “couched in terms of a mere possibility.”
State v. McVay, 127 Ariz. 18, 20 (1980).

¶16            Here, the evidence shows that Valenzuela understood his
Miranda rights, expressed a desire to speak with SSU and CIU, and spoke
with both units after making that request. Without more, the pressures
inherent in incarceration do not demonstrate an atmosphere of coercion.
See Shatzer, 559 U.S. at 112–14. Moreover, CIU officers explicitly refused to
make any promises to Valenzuela regarding protective custody and noted
their lack of control over his housing status. The simple offer to provide a
housing recommendation to prison officials was not impermissibly
coercive. See State v. Tapia, 159 Ariz. 284, 290–91 (1988).



                                     5
                        STATE v. VALENZUELA
                          Decision of the Court

¶17          We conclude, based on the totality of circumstances, that the
superior court did not abuse its discretion by finding that Valenzuela’s
statements were voluntary.

                              CONCLUSION

¶18          For the foregoing reasons, we affirm Valenzuela’s convictions
and sentences.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




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