                        SUPREME COURT OF ARIZONA
                                 En Banc

STATE OF ARIZONA,                 )     Arizona Supreme Court
                                  )     No. CR-12-0238-PR
                                  )
                        Appellee, )     Court of Appeals
                                  )     Division Two
                 v.               )     No. 2 CA-CR 10-0338
                                  )
                                  )     Pima County
DAVID JAMES YONKMAN,              )     Superior Court
                                  )     No. CR20101253001
                                  )
                       Appellant. )     O P I N I O N
_________________________________ )

          Appeal from the Superior Court in Pima County
         The Honorable John S. Leonardo, Presiding Judge

                        AFFIRMED IN PART
________________________________________________________________

          Opinion of the Court of Appeals, Division Two
             229 Ariz. 291, 274 P.3d 1225 (App. 2012)

                      VACATED AND REMANDED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                     Phoenix
     By   Kent E. Cattani, Chief Counsel,
          Criminal Appeals/Capital Litigation
          Joseph T. Maziarz, Assistant Attorney General
          Alan L. Amann, Assistant Attorney General             Tucson
Attorneys for State of Arizona

LORI J. LEFFERTS, PIMA COUNTY PUBLIC DEFENDER             Tucson
     By   Lisa M. Hise, Deputy Public Defender
          David J. Euchner, Deputy Public Defender
Attorneys for David James Yonkman
________________________________________________________________

B E R C H, Chief Justice

¶1        This   case     addresses   whether   a   police   officer’s

response to a phone call placed by a suspect’s wife reinitiates
an interrogation for purposes of Edwards v. Arizona, 451 U.S.

477 (1981).       We conclude that it does not.                    When the suspect

later contacted police and arranged an interview, the suspect

reinitiated the interrogation.

                       I.   FACTS AND PROCEDURAL HISTORY

¶2           On March 27, 2010, David James Yonkman’s wife, Kelly,

called police and reported that Yonkman had sexually molested

her daughter.     A police officer went to Yonkman’s residence, but

Yonkman   was   not     there.    When       he   returned,    the    officer   read

Yonkman his Miranda rights.              After Yonkman requested counsel,

the officer ceased questioning and departed.

¶3           A few days later, Kelly called Detective Rivera to say

that her daughter had recanted.              Rivera told Kelly that Yonkman

could come in and take a polygraph “if he wanted to” so that

Rivera could close the investigation.                  Rivera did not ask her to

relay the message, but a few hours later Yonkman called Rivera

and   scheduled    a    meeting   for   April      1    at   the    police   station.

During this call, Rivera told Yonkman that he could come to the

station if he wanted to, but he would not be under arrest, could

leave at any time, and his prior Miranda warnings would remain

in effect.

¶4           Yonkman arrived at the police station approximately

forty minutes early for the April 1 interview.                         Although the

door to the interview room locked automatically, Rivera reminded

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Yonkman that he was not under arrest and was free to leave.

During the interview, Yonkman asked what would happen if he

requested an attorney; Rivera responded that they would wait to

do the interview until he obtained one.                     Rivera read Yonkman his

Miranda rights, and Yonkman consented to questioning.                            Yonkman

confessed    after      approximately           thirty      minutes,    and     officers

arrested him at the conclusion of the interview.

¶5          Yonkman      moved       to   suppress      the     confession     based    on

Edwards,    the     involuntariness             of    his      confession,      and    the

involuntariness of his Miranda waiver.                         After an evidentiary

hearing,    the   superior       court     ruled      the   confession     admissible,

finding that Yonkman had reinitiated contact with Rivera and

that   Yonkman’s       interview      statements        were    voluntary.       A    jury

found Yonkman guilty of one count of sexual abuse and one count

of sexual conduct with a minor.

¶6          The court of appeals reversed Yonkman’s convictions

and    ordered     a     new     trial,         finding        Yonkman’s      confession

inadmissible because Rivera had “induce[d]” Yonkman’s contact

with police and the subsequent interrogation in violation of

Edwards.    State v. Yonkman, 229 Ariz. 291, 295 ¶ 14, 298 ¶ 28,

274 P.3d 1225, 1229, 1233 (App. 2012).

¶7          We    granted      the    State’s        petition    for   review    because

this case presents a recurring issue of statewide importance.



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We have jurisdiction pursuant to Article 6, Section 5(3) of the

Arizona Constitution and A.R.S. § 12-120.24.

                                    II.     DISCUSSION

       A.     Reinitiation of Contact

¶8            Once a suspect invokes his Miranda right to counsel,

police may not subject him to custodial interrogation without

counsel for fourteen days following his release from custody

“unless     the     accused       himself    initiates       further     communication,

exchanges,         or    conversations      with     the   police.”        Maryland       v.

Shatzer, 130 S. Ct. 1213, 1219, 1223 (2010) (quoting Edwards,

451    U.S.    at       485).      The     Edwards    rule    limiting      police       re-

initiation of questioning following the invocation of rights is

designed      “to       prevent   police    from     badgering      a   defendant    into

waiving his previously asserted Miranda rights.”                            Michigan v.

Harvey, 494 U.S. 344, 350 (1990).                    It creates a presumption of

involuntariness of any resulting waiver that occurs in response

to    “further      police-initiated         custodial       interrogation        even   if

[the defendant] has been advised of his rights.”                           Shatzer, 130

S. Ct. at 1219-20 (quoting Edwards, 451 U.S. at 484).                                But,

“[w]hen a defendant is not in custody, he is in control, and

need only shut his door or walk away to avoid police badgering.”

Montejo       v.    Louisiana,       556     U.S.     778,    795       (2009).      Such

noncustodial or “noninterrogative interactions with the State do

not involve the ‘inherently compelling pressures’ that one might

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reasonably     fear       could     lead      to   involuntary           waivers.”           Id.

(citation omitted) (quoting Miranda v. Arizona, 384 U.S. 436,

467 (1966)).

¶9           We assume, without deciding, that Yonkman effectively

invoked his Miranda right to counsel when first questioned near

his residence on March 27, 2010, and that he was in custody then

and during the April 1, 2010 interview at the police station.

Cf.   Shatzer,      130    S.    Ct.     at   1223       (“In    every       case    involving

Edwards, the courts must determine whether the suspect was in

custody when he requested counsel and when he later made the

statements     he     seeks         to    suppress.”).                 Because       Yonkman’s

confession     occurred         within        fourteen          days    of     his     initial

invocation of his right to counsel, its admissibility turns on

whether Yonkman or the police reinitiated the contact, whether

Yonkman knowingly and voluntarily waived his Miranda rights, and

whether the confession itself was voluntarily given.                                See id. at

1219-22.      We    review      a   trial      court’s      ruling       on    a    motion   to

suppress for abuse of discretion.                  State v. Manuel, 229 Ariz. 1,

4 ¶ 11, 270 P.3d 828, 831 (2011).

¶10          A suspect may reinitiate questioning after terminating

it by reopening a dialog with officers about the investigation.

See   Edwards,     451    U.S.      at   485-86      &    n.9.         The    United    States

Supreme Court has not addressed whether police can reinitiate

interrogation       through       contact     with       third    parties.           Authority

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from other jurisdictions is also sparse, but we are not aware of

any court that has found an Edwards violation in circumstances

like those presented here.

¶11          In   assessing     whether        a     suspect     “initiate[d]        a

discussion    with    police   through       the   communication     of    a    third

party,” the Court of Appeals for the Sixth Circuit found no

distinction between direct communications and those from others,

concluding that “what is important is [that] the impetus for

discussion    comes    from    the    suspect      himself.”        Van    Hook     v.

Anderson, 488 F.3d 411, 418, 422-23 (6th Cir. 2007).                      We agree

with that court’s assessment that the Constitution provides no

“protection against friends or family members who convince [a

suspect] to talk with police” or “against third-party cajoling,

pleading, or threatening.”           Id. at 421.

¶12          Other courts have agreed with the reasoning in Van

Hook.    See, e.g., Ex parte Williams, 31 So. 3d 670, 682-83 (Ala.

2009)    (noting      that     “an     accused        can      initiate        further

interrogation through a third party”); cf. People v. Lucas, 548

N.E.2d 1003, 1009-11 (Ill. 1989) (finding no potential Edwards

violation when suspect submitted to a polygraph after speaking

with    family    members     who    were    asked     by   officers      to     “find

out . . . what actually happened”).

¶13          Several jurisdictions do not find that officers have

reinitiated questioning unless the officers’ conduct rises to

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the level of interrogation of the suspect under Rhode Island v.

Innis,    446    U.S.    291,       301    (1980)          (holding    that       interrogation

under Miranda is “words or actions on the part of the police

(other than those normally attendant to arrest and custody) that

the    police    should       know       are     reasonably         likely       to     elicit    an

incriminating response”).                 In Fox v. Ward, 200 F.3d 1286, 1297-

98    (10th    Cir.    2000),       for    example,          the    court       held     that    the

officers had not reinitiated questioning merely by handing their

business cards to the suspect after he had requested a lawyer.

Instead,       the    court     concluded            that     the     suspect          reinitiated

contact by indicating that he wanted to talk as the officers

were walking away.             Id.; see also Wayne R. LaFave et al., 2

Criminal Procedure § 6.9(f) (3d ed. 2012) (“One view, certainly

subject to dispute, is that . . . police conduct is not relevant

unless it actually amounted to interrogation or its functional

equivalent under Innis.”).

¶14            Even    those       jurisdictions             that     might       find         police

initiation       based    on       officer       conduct       not     amounting          to    full

interrogation         under     Innis       nonetheless            find        that     incidental

“police       contacts   .     .     .    made       for    other     legitimate         purposes

concerning the case do not constitute such initiation.”                                   LaFave,

supra ¶ 13, § 6.9(f); see also Oregon v. Bradshaw, 462 U.S.

1039,     1045       (1983)     (plurality            opinion)        (noting          that      some

inquiries       “relating       to       routine       incidents          of     the     custodial

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relationship,” whether made by the suspect or an officer, do not

generally constitute reinitiation).

¶15         Here, the police did not reinitiate contact.                   Kelly

contacted Detective Rivera to report her daughter’s recantation.

Yonkman argues that Rivera sought to use Kelly to deliver a

message to Yonkman that Rivera could not convey directly.                    He

urges us to find this an improper reinitiation under Edwards.

But Rivera did not call Kelly; he merely answered a telephone

call from the person who initially reported the allegations of

sexual   misconduct.        Such   an   action   is   far   removed   from   the

coercive conduct    Edwards        seeks to prevent.         See Colorado v.

Connelly, 479 U.S. 157, 170 (1986) (“The sole concern of the

Fifth Amendment . . . is governmental coercion.”).                     Indeed,

Rivera   likely   had   a    professional    duty     to    speak   with   Kelly

regarding   the   alleged     recantation.       During     the   conversation,

Rivera advised Kelly of the status of the case, but neither

asked to speak to Yonkman nor suggested that Kelly have Yonkman

call him.   The call was therefore not coercive.

¶16         The call Yonkman later initiated to Detective Rivera

to set up an interview reopened the dialog between them.                     See

Edwards, 451 U.S. at 485-86 & n.9.           Moreover, the interview took

place one to two days later, giving Yonkman time to reflect on

his decision to speak with Rivera.



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¶17            Accordingly,       the    trial     court       properly      found      that

Yonkman reinitiated the contact.                   Neither the purpose nor the

policy rationales of Edwards would be advanced by suppressing

Yonkman’s confession.

        B.     Remaining Issues

¶18            Yonkman     raised      several    arguments        that    the    court    of

appeals      did     not    address      because       it     found   that        Yonkman’s

confession violated Edwards.               See Yonkman, 229 Ariz. at 294 ¶ 7

n.3, 297-98 ¶¶ 22-27, 274 P.3d at 1228 n.3, 1231-32.                                 These

arguments include that his Miranda waiver was involuntary, that

Kelly    was    acting      as    an    agent     of    the    State,      that    he     was

improperly precluded from introducing evidence of his acquittal

for   prior     acts,      and    that    prior    consistent         statements        were

improperly admitted.             Because we hold that Yonkman’s confession

did not violate            Edwards, we remand for the determination of

these remaining issues.

                                  III.     CONCLUSION

¶19            For the foregoing reasons, we vacate the opinion of

the   court     of   appeals      and    remand    to       that   court    for    further

proceedings consistent with this opinion.



                                          __________________________________
                                          Rebecca White Berch, Chief Justice




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CONCURRING:


__________________________________
Scott Bales, Vice Chief Justice


__________________________________
John Pelander, Justice


__________________________________
Robert M. Brutinel, Justice


__________________________________
Ann A. Scott Timmer, Justice




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