State v. Mayer ( 2015 )

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FILE' This opinion was flied ~ record r . _..,
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IN CLERKI O!IPICI '
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 90846-0
)
v. ) En Bane
)
NICHOLAS KEITH MAYER, )
) Filed OCT 2 2 2015
Petitioner. )
)
WIGGINS, J.-We must determine whether a deputy sheriff inadequately
advised the defendant of his rights under Miranda 1 when he initially told the defendant
that a lawyer would be appointed for him prior to questioning if he could not afford one
but also said that no lawyer would be appointed for him unless he was arrested, jailed,
and taken to court. The deputy did not clarify that the defendant was not obligated to
respond to questions until he had the opportunity to confer with a lawyer. We hold that
although this Miranda advisement was contradictory and confusing and thus violated
the defendant's Miranda rights, the error was harmless in light of the overwhelming
untainted evidence of Nicholas Mayer's guilt. Accordingly, we affirm the Court of
Appeals and sustain the defendant's conviction.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
 State
 v. Mayer
 (Nicholas),
   
No. 90846-0      
FACTS
One evening, two hooded gunmen robbed KC Teriyaki, a casual restaurant in
Salmon Creek, while the employees were closing the restaurant for the day. The
masked gunmen pushed one of the employees inside the restaurant; pointed a gun
at the employee; grabbed a bag from inside; and then fled with the bag, which
contained cash from the day's sales. Police responded to the scene and interviewed
the employees as well as the restaurant's owner.
The timing and method of the robbery led police to suspect that someone with
inside knowledge was involved in the planning of the robbery. The owner identified
Emily Mayer as a disgruntled ex-employee, and Emily and her brother-Mayer, the
defendant in the instant case-became suspects. 2 An anonymous tipster called 911
shortly thereafter and told police that he had overheard Mayer bragging about robbing
a restaurant. The caller provided a description of Mayer's vehicle. Police then stopped
the vehicle, detained Mayer and the vehicle's other occupants, and transported them
to the police station for questioning regarding the robbery. 3
Deputy Tom Dennison of the Clark County Sheriff's Office questioned Mayer in
an interview room at the police station. Dennison began by reading Mayer his Miranda
rights and asking if he could record the interview. Mayer initially waived his Miranda
2
We refer to defendant Mayer's sister Emily as "Emily" to avoid confusion. No disrespect is
intended.
3
Suspicion regarding Mayer's involvement in the robbery, stemming largely from the tip provided
by the anonymous informant, appears to have been the reason for the stop. The Court of Appeals
held that reasonable suspicion supported the stop, and we denied review on that issue. The
parties' briefing does not discuss the reason that Mayer was then transported to the police station,
and it does not appear Mayer has ever raised that issue on appeal. Thus, the issue of whether
probable cause existed to take Mayer into custody is not before us.
2
 Statev. Mayer
 (Nicholas),
   
No. 90846-0      
rights and agreed to the recording. Once recording began, Dennison again advised
Mayer of his Miranda rights:
You have the right to remain silent. Anything you say can be used against
you in a court of law. You have the right at this time to talk to a lawyer
and have him present with you while you are being questioned. If you
cannot afford to hire a lawyer, one will be appointed to represent you
before questioning if you wish. You can decide at any time to exercise
these rights and not answer any questions or make any statements.
This time, however, Mayer asked Dennison to clarify how he could obtain appointed
counsel:
DEPUTY DENNISON: ... Do you understand each of these rights as
I've explained them to you?
MR. MAYER: Yes. Um, If I wanted an attorney and I can't afford one,
what -- what would -- ?
DEPUTY DENNISON: If you wanted an attorney-- you know, if you
were charged with a crime and arrested, if you wanted an attorney and
couldn't afford one, the Court would be willing to appoint you one. Do
you want me to go over that with you again?
MR. MAYER: Yeah, but how would that work? Will you be-- how it--
how I--
DEPUTY DENNISON: You're not under arrest at this point, right?
MR. MAYER: Oh, okay. Okay.
DEPUTY DENNISON: So, if you were, then you would be taken to
jail and then you'd go before a judge and then he would ask you whatever
at that point, if you were being charged, you would [sic] afforded an
attorney if you couldn't hi -- you know, if you weren't able to afford one.
MR. MAYER: All right. I understand.
DEPUTY DENNISON: Understand?
MR. MAYER: Yeah.
DEPUTY DENNISON: Okay. So you do understand your rights?
MR. MAYER: Yes.
After this exchange, Mayer waived his Miranda rights, agreed to speak with Dennison
regarding the robbery, and made incriminating statements. Mayer admitted, among
other things, that on the day of the robbery he met with his sister Emily, who drove the
getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant;
3
             
State v. Mayer (Nicholas), No. 90846-0
Mayer entered the restaurant with Taylor; Taylor was armed with a handgun, and
Mayer had a knife; Mayer told the employees "give me the money"; Taylor grabbed
the deposit bag containing money; Mayer ran from the restaurant with Taylor; they
were picked up by Emily; and Mayer split the proceeds of the robbery with Taylor.
Mayer was arrested and charged with 11 criminal counts (later reduced to 10
counts), including robbery in the first degree. Mayer moved to suppress the
incriminating statements he made during his interview with Dennison, but the superior
court denied the motion after a hearing.
During the five-day trial, the State introduced Mayer's confession and called
several witnesses who testified regarding the events surrounding the robbery and
Mayer's involvement in the robbery. Among the witnesses were Mayer's accomplice
and sister Emily; his other accomplice, John Taylor; Mayer's girlfriend, Sarah Baker;
Mayer's friend Brandon Sheldon, to whom Mayer entrusted a revolver around the time
of the robbery; restaurant employee and robbery victim AI Juarismi Ortiz Garcia
(Ortiz); eyewitness Bobbie Woodworth; and Matthew Scott, the tipster who alerted the
police to Mayer's whereabouts.
Ortiz and Woodworth described the robbery, both testifying that two masked
gunmen entered KC Teriyaki, pushed one of the employees inside, pointed a gun at
the employee, and then fled. Ortiz testified that one of the robbers carried a revolver
and pointed it at Ortiz and demanded money. One of the two robbers then grabbed
the money bag before fleeing.
Because both robbers were masked, neither Ortiz nor Woodworth identified
them, but several other witnesses implicated Mayer as one of the two robbers.
4
             
State v. Mayer (Nicholas), No. 90846-0
Mayer's two accomplices, Emily and Taylor, testified at length regarding the planning
and execution of the robbery, including the details of Mayer's involvement. Emily
testified that she drove her brother and Taylor to a gas station near the restaurant and
picked them up when they called shortly afterwards. Mayer and Taylor then sat in the
backseat, counting the money taken during the robbery. Taylor testified that the Mayer
siblings had approached him with a plan to rob KC Teriyaki; that he agreed to help;
that he and the defendant went to the restaurant armed, respectively, with a "Glock"
and a revolver; and that both he and Mayer wore bandannas over their faces. Taylor
further testified that after they entered the restaurant, Mayer pointed his gun at an
employee and demanded the money; that Mayer told the employee to '"[g]ive me the
money"'; that he (Taylor) grabbed the money off a stool; and that after they fled the
restaurant, Mayer called his sister, who picked them up and drove them away.
Mayer's girlfriend, Baker, testified that Mayer had called her on the date of the
robbery and told her that he had "robbed someplace" and "was running from the cops."
Baker further testified that when she met Mayer later that night, he told her that the
place he had robbed was a "Chinese or Teriyaki place." He then showed her cash and
bragged that he had obtained it from the robbery. Scott, Mayer's friend who provided
the anonymous tip that led to Mayer's arrest, also testified that he saw Mayer with a
"good wad of cash" shortly after the robbery.
Another friend of Mayer's, Sheldon, testified that Mayer gave him a revolver
wrapped in a bandanna (Sheldon called it a "handkerchief") around the time of the
robbery. A sample taken from blood found on the bandanna matched a DNA
(deoxyribonucleic acid) sample taken from Mayer.
5
             
State v. Mayer (Nicholas), No. 90846-0
The jury ultimately convicted Mayer on all 10 pending counts. The trial court
sentenced Mayer to 306 months of imprisonment. The Court of Appeals unanimously
affirmed the conviction and sentence in an unpublished opinion. State v. Mayer, noted
at 183 Wn. App. 1016, 2014 WL 4363178. Mayer petitioned for discretionary review
on three separate grounds; we granted review on his Miranda challenge only. 4
STANDARD OF REVIEW
The trial court issued findings of fact and conclusions of law in its order denying
Mayer's motion to suppress. We review the trial court's findings of fact for substantial
evidence. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). The trial court's
legal conclusions regarding the adequacy of the Miranda warnings are issues of law
that we review de novo. See State v. Daniels, 160 Wn.2d 256, 261, 156 P.3d 905(2007); State v. Johnson, 94 Wn. App. 882, 897, 974 P.2d 855 (1999). The test for
whether a constitutional error is harmless is whether the untainted evidence of the
defendant's guilt is so overwhelming that it necessarily leads to the same outcome. In
re Pers. Restraint of Cross, 180 Wn.2d 664, 688, 327 P.3d 660 (2014) (citing State v.
Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)).
ANALYSIS
I. Miranda violation
The first question presented in this case is whether Dennison's explanation of
Mayer's rights satisfies Miranda's requirements. 5 Under Miranda and its progeny, the
4
The other issues that Mayer raised in his petition for discretionary review were a challenge to
the Court of Appeals' holding that Mayer had waived review of two issues that Mayer listed in his
statement of additional grounds and a claim that the stop of Mayer's vehicle was pretextual.
5
Mayer also claims that his questions about how he could obtain appointed counsel constituted
6
             
State v. Mayer (Nicholas), No. 90846-0
State bears the burden of demonstrating that a suspect knowingly and intelligently
waived his Miranda rights before it may introduce incriminating statements made
during the course of custodial interrogation. Miranda, 384 U.S. at 475. "Only if the
'totality of the circumstances surrounding the interrogation' reveal both an uncoerced
choice and the requisite level of comprehension may a court properly conclude that
the Miranda rights have been waived." Moran v. Burbine, 475 U.S. 412, 421, 106 S.
Ct. 1135, 89 L. Ed. 2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99
S. Ct. 2560, 61 L. Ed. 2d 197 (1979)).
Here, the State has not met its burden of showing that Mayer had the requisite
level of comprehension regarding his rights at the time he waived them. While
Dennison began the interview by providing an accurate and adequate explanation of
Mayer's rights under the Fifth Amendment to the federal constitution, Dennison's
responses to Mayer's questions regarding the appointment of counsel obscured the
meaning of the initial warnings and likely confused Mayer regarding the timing of when
his right to the presence of appointed counsel-and perhaps his other Miranda rights
as well-would attach. Dennison did not cure· the contradiction by clarifying how
Mayer might exercise his Miranda rights during the interrogation that was about to
an unequivocal invocation of his right to counsel. We disagree. The police must stop an
interrogation if a suspect makes "an unambiguous or unequivocal request for counsel." Davis v.
United States, 512 U.S. 452, 461-62, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). But Mayer's
briefing does not point to any specific statements that Mayer made during the interview that might
constitute a clear invocation of the right to counsel. The transcript of the interview shows that
Mayer asked how he might obtain an attorney if he wanted one. Questions regarding the process
for obtaining counsel are not tantamount to an actual, unequivocal request for counsel. We
therefore reject Mayer's argument that he invoked his right to counsel.
7
             
State v. Mayer (Nicholas), No. 90846-0
commence. Consequently, the State has failed to establish that Mayer's waiver of his
Miranda rights was knowing and intelligent.
A. The prerequisites of a valid Miranda waiver
The Supreme Court summarizes Miranda's central holdings at the beginning of
the Miranda opinion itself. In pertinent part, the summary states:
[T]he prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination .... [U]nless other fully
effective means are devised to inform accused persons of their right of
silence and to assure a continuous opportunity to exercise it, the
following measures are required. Prior to any questioning, the person
must be warned that he has a right to remain silent, that any statement
he does make may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the waiver is
made voluntarily, knowingly and intelligently. If, however, he indicates in
any manner and at any stage of the process that he wishes to consult
with an attorney before speaking there can be no questioning ....
Miranda, 384 U.S. at 444-45 (emphasis added). As the above-emphasized text
indicates, the Supreme Court stressed that the rights set forth in what became known
as the "Miranda warnings" must be explained fully prior to questioning. See id. This
explanation of rights must convey to the suspect that his right to silence-and his
opportunity to exercise that right-applies continuously throughout the interrogation
process. See id. In creating these protections, the Court stated that '"[w]e cannot
penalize a defendant who, not understanding his constitutional rights, does not make
the formal request and by such failure demonstrates his helplessness."' /d. at 471
(quoting People v. Dorado, 62 Cal. 2d 338, 351, 398 P.2d 361, 42 Cal. Rptr. 1698
             
State v. Mayer (Nicholas), No. 90846-0
(1965), overruled on other grounds by People v. Cahill, 5 Cal. 4th 478, 509-10, 853
P.2d 1037, 20 Cal. Rptr. 2d 582 (1993)).
The Miranda Court recognized one important qualification to the rights
conveyed in the Miranda warnings-specifically, that there need not be a "'station
house lawyer'" immediately available to talk to a suspect prior to any police
interrogation. /d. at 474. But the Court stressed that the unavailability of such counsel
only increases the responsibility of police to avoid impinging on the suspect's other
Fifth Amendment rights:
[l]f police propose to interrogate a person they must make known to him
that he is entitled to a lawyer and that if he cannot afford one, a lawyer
will be provided for him prior to any interrogation. If authorities conclude
that they will not provide counsel during a reasonable period of time in
which investigation in the field is carried out, they may refrain from doing
so without violating the person's Fifth Amendment privilege so long as
they do not question him during that time.
/d. As this text suggests, the unavailability of appointed counsel does not negate the
suspect's right to an appointed attorney and his right to speak to such an attorney
prior to questioning. Rather, a suspect retains those rights and may give them effect
by invoking his right to silence, thus precluding the police from questioning him unless
and until an attorney can be present. See id."If the interrogation continues without the presence of an attorney and a
statement is taken, a heavy burden rests on the government to demonstrate that the
defendant knowingly and intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel." /d. at 475. To be knowing and
intelligent, a waiver must be "made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it." Moran, 475
9
 Statev: Mayer
 (Nicholas),
         
No. 90846-0
U.S. at 421. To satisfy its burden of showing a valid waiver, the government need not
demonstrate that the Miranda warnings given were a word-for-word copy of the
language that the Supreme Court provided in Miranda itself. See Duckworth v. Eagan,
492 U.S. 195, 202, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989); California v. Prysock,
453 U.S. 355, 359, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981 ). But "[t]he warnings
required and the waiver necessary in accordance with [the Miranda opinion] are, in
the absence of a fully effective equivalent, prerequisites to the admissibility of any
statement made by a defendant." Miranda, 384 U.S. at 476 (emphasis added).
As the Supreme Court has stated, courts have held that an effective Miranda
equivalent cannot link the right to appointed counsel to future events that would occur,
if ever, only after the interrogation:
Other courts considering the precise question presented by this
case-whether a criminal defendant was adequately informed of his right
to the presence of appointed counsel prior to and during interrogation-
have not required a verbatim recital of the words of the Miranda opinion
but rather have examined the warnings given to determine if the
reference to the right to appointed counsel was linked with some future
point in time after the police interrogation.
Prysock, 453 U.S. at 360. In one of the cited cases, the Ninth Circuit held that federal
agents had provided inadequate Miranda warnings because they advised the suspect
"[a]t one point ... that she had a right to the presence of counsel'when she answered
any questions"' but told her at another point that "she could 'have an attorney
appointed to represent you when you first appear before the U. S. Commissioner or
the Court."' United States v. Garcia, 431 F.2d 134, 134 (9th Cir. 1970); compare id.,with United States v. McCarty, 835 F. Supp. 2d 938, 959 (D. Haw. 2011) (distinguishing
10
 Statev. Mayer
 (Nicholas),
         
No. 90846-0
Garcia because the detective who provided arguably contradictory warnings went on
to clarify "that if Defendant wanted counsel, [the detective] would not question him").
Ultimately, the adequacy of the warnings and the validity of a purported waiver
turn on the particular facts and circumstances surrounding the case. State v. Earls,
116 Wn.2d 364, 378-79, 805 P.2d 211 (1991) (citing Edwards v. Arizona, 451 U.S.
477, 482, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981 )). The dispositive inquiry is "whether
the warnings reasonably 'conve[y] to [a suspect] his rights as required by Miranda."'
Duckworth, 492 U.S. at 203 (alterations in original) (quoting Prysock, 453 U.S. at 361 ).
B. Mayer was given conflicting and confusing explanations of his Miranda rights
While Dennison initially provided proper Miranda warnings, his responses to
Mayer's questions regarding the appointment of counsel were contradictory and
confusing. In his initial recitation of the Miranda warnings, Dennison told Mayer, "If
you cannot afford to hire a lawyer, one will be appointed to represent you before
questioning if you wish." At this point, Dennison's questioning of Mayer was obviously
about to commence. According to the initial Miranda warnings, Mayer thus should
have had immediate access to appointed counsel.
But moments later, after Mayer asked how he could obtain an appointed
attorney, Dennison told Mayer that counsel would be appointed only "if you were
charged with a crime and arrested[ and] if you wanted an attorney and couldn't afford
one." (Emphasis added.) When Mayer then asked for further clarification on how the
appointment process would work, Dennison responded by telling Mayer, "You're not
under arrest at this point .... So, if you were, then you would be taken to jail and then
11
             
State v. Mayer (Nicholas), No. 90846-0
you'd go before a judge and ... you would [be] afforded an attorney ... if you weren't
able to afford one." (Emphasis added.)
These statements by Dennison conditioned Mayer's right to appointed counsel
on the occurrence of several future events: being arrested, which Dennison stressed
had not yet occurred; being charged with a crime; being taken to jail; and being taken
before a judge. Plainly, all of these events would occur, if at all, after the impending
interrogation rather than before. Thus, Dennison's responses to Mayer's questions
about the appointment process contradicted his earlier statement, as part of the initial
Miranda recitation, that counsel would be appointed for him "before questioning."
Had the explanation of Mayer's rights ended after Dennison's initial recitation,
we could reject Mayer's Miranda challenge with no need for extended comment.
Similarly, Dennison's later statements regarding the timing of appointment of counsel
would not necessarily run afoul of Miranda if we were to read them in isolation. As a
practical matter, Dennison may well have been accurately describing the appointment
process in Clark County when he told Mayer that he would not be able to have counsel
appointed for him unless and until he was arrested, jailed, charged, and arraigned.
Taken together, however, Dennison's description of the process for appointment of
counsel appeared to contradict his initial Miranda warnings.
The State points out that in his initial Miranda warnings, Dennison also told
Mayer that he could "'decide at any time to exercise these rights and not answer any
questions or make any statements,"' suggesting that this adequately conveyed to
Mayer that his ability to exercise his rights was not time limited. But this argument
ignores the fact that seconds after Dennison said that Mayer could exercise these
12
             
State v. Mayer (Nicholas), No. 90846-0
rights "at any time," he stressed that Mayer was not yet under arrest and told Mayer
that he could not exercise at least one of his rights-his right to appointed counsel-
unless several contingent future events occurred. These later statements contradicted
the "at any time" warning and suggested that at least some of Mayer's Miranda rights
had not yet attached-and that they would not attach until he was, at the very least,
arrested. The "at any time" statement thus did not immunize Dennison's warnings
against the defects created by his later responses to Mayer's questions.
C. The contradictory statements rendered the Miranda warnings unclear
"[D]ifferent and conflicting sets of warnings" render a Miranda waiver invalid if,
as a result of the conflicting instructions, the meaning of the warnings becomes
unclear. United States v. San Juan-Cruz, 314 F.3d 384, 387-88 (9th Cir. 2002). For
the reasons explained above, Dennison's instructions regarding the timing of the right
to counsel conflicted with his initial recitation of Mayer's Miranda rights. Dennison did
not offer curative clarifications comparable to those provided in Duckworth, 492 U.S.
at 203. Because of this, the apparent contradiction in Dennison's instructions rendered
the explanation of Mayer's Miranda rights unclear.
Courts have recognized a number of circumstances under which the police can
impermissibly undermine the meaning or significance of the Miranda warnings and fail
to reasonably convey their meaning, thus negating the validity of a suspect's waiver
of his Miranda rights. Courts have held confessions inadmissible, for instance, in
cases where the police "downplay[] the relevance of the warnings[] and their
application to the current questioning." Doody v. Schriro, 548 F.3d 847, 862-63 (9th
Cir. 2008) (Doody 1). Giving "different and conflicting sets of warnings" also renders a
13
             
State v. Mayer (Nicholas), No. 90846-0
suspect's Miranda waiver invalid if, as a result of the conflicting instructions, the
meaning of the warnings becomes unclear. See San Juan-Cruz, 314 F.3d at 387-88;
see also United States v. Connell, 869 F.2d 1349, 1352 (9th Cir. 1989) ("We reject as
fatally flawed ... a version of the Miranda litany if the combination or wording of its
.
warnings is in some way affirmatively misleading .... ").
On the other hand, the police may expand on the Miranda warnings or clarify
the rights they convey, including the right to appointed counsel and the time at which
an indigent suspect can expect to have counsel appointed for him, so long as the
explanation as a whole clearly informs the suspect of his rights. For example, in
Duckworth, the primary case on which the State relies, the Supreme Court upheld the
adequacy of the following written advice of rights form:
"Before we ask you any questions, you must understand your rights. You
have the right to remain silent. Anything you say can be used against
you in court. 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. You
have this right to the advice and presence of a lawyer even if you cannot
afford to hire one. We have no way of giving you a lawyer, but one will
be appointed for you, if you wish, if and when you go to court. If you wish
to answer questions now without a lawyer present, you have the right to
stop answering questions at any time. You also have the right to stop
answering at any time until you've talked to a lawyer."
Duckworth, 492 U.S. at 198 (emphasis added) (emphasis omitted). The Supreme
Court held that this warning "touched all the bases required by Miranda," specifically
citing the above-emphasized portions of the advice-of-rights form. /d. at 203. The
Court explicitly distinguished Duckworth from cases in which "'the reference to the
right to appointed counsel was linked [to a] future point in time after the police
interrogation."' /d. at 204 (alteration in original) (quoting Prysock, 453 U.S. at 360).
14
             
State v. Mayer (Nicholas), No. 90846-0
Unlike the advice-of-rights form in Duckworth, Dennison's warnings conditioned
the attachment of Mayer's right to appointed counsel on several future events and did
not clarify how Mayer might protect his Fifth Amendment rights despite the
unavailability of appointed counsel. The advice-of-rights form at issue in Duckworth
explicitly told suspects how they can protect their Miranda rights despite the
unavailability of appointed counsel: '"If you wish to answer questions now without a
lawyer present, you have the right to stop answering questions at any time. You also
have the right to stop answering at any time until you've talked to a lawyer."' /d. at 198.
The Supreme Court specifically quoted this portion of the Duckworth advice-of-rights
form in holding that the form adequately conveyed suspects' rights under Miranda.
See id. at 203.
Dennison could have cured any injury done to Mayer's Miranda rights if he had
offered a comparable clarification after telling Mayer that appointed counsel was not
yet available. But instead, Dennison simply told Mayer that he had no way of getting .
an appointed attorney at that time and left it at that. Dennison's failure to clarify how
Mayer might protect his Fifth Amendment rights despite his inability to obtain
appointed counsel is fatal to the State's argument that Mayer knowingly and
intelligently waived his Fifth Amendment rights under Miranda and its progeny. The
right to speak to counsel prior to questioning and have counsel present during
questioning is absolute. If, as a practical matter, no attorney is available to speak to
an indigent suspect prior to questioning, the suspect may protect his right to have
counsel present during questioning by remaining silent until such time that counsel
can be provided for him. The advice-of-rights form in Duckworth explicitly informed
15
 Statev. Mayer
 (Nicholas),
         
No. 90846-0
suspects of this method for protecting the right to counsel. Dennison's response to
Mayer's question included no such clarification.
Duckworth reasoned that the advice-of-rights form given to Duckworth had
"touched" on all the basic principles required by Miranda. Duckworth, 492 U.S. at 203.
Here, by contrast, there is no evidence that Mayer accurately understood his Fifth
Amendment rights. In Doody II, the Ninth Circuit distinguished Duckworth because,
among other things:
The officers [in Duckworth] did not deviate from the printed form with
inaccurate and garbled elaborations. There was no downplaying of the
significance of the warnings. Most importantly, there was no implication
that the right to counsel was available only if the individual being
questioned had committed a crime.
Doody v. Ryan, 649 F.3d 986, 1004 (9th Cir. 2011) (Doody II). Similarly here,
Dennison's explanations introduced a number of key elements that were not present
in Duckworth. Dennison emphasized that Mayer was not under arrest, thus
downplaying the significance of the warnings and the adversarial nature of the
encounter. See Doody I, 548 F.3d at 862-63 (suspect's Miranda waiver invalid
because officers undermined the suspect's awareness that he was faced with a phase
of the adversary system and "downplayed the relevance of the warnings[] and their
application to the current questioning"). Dennison further suggested that appointed
counsel was available only to suspects who had been arrested, charged, jailed, and
arraigned. Because he provided no clarification explaining how Mayer, who was
16
             
State v. Mayer (Nicholas), No. 90846-0
indigent, 6 could protect his Fifth Amendment rights without appointed counsel,
Dennison increased the already palpable sense of isolation that a suspect
experiences during police interrogation. Duckworth sets forth the minimum standards
that must be met for an effective Miranda warning. In this case, the explanation of
Mayer's rights did not meet those standards.
Of course, police officers may inform a suspect facing interrogation that
appointed counsel is not immediately available. But if they tell a suspect that
appointed counsel is not available until a future point in time, they must also clarify
that this does not affect the suspect's right to have counsel present during
interrogation and his right to remain silent unless and until a lawyer can be present.
Without such a clarification, the suspect may perceive the officer's statement that
appointed counsel is not yet available as contradicting the earlier Miranda warnings
and as suggesting that his Miranda rights had not yet attached. Such a clarification
was provided in Duckworth; it was not provided in Mayer's case.
Instead, Dennison's explanation of Mayer's right to counsel places this case
squarely in the category that Duckworth explicitly distinguished: cases where the
police link the right to appointed counsel to a future point in time after the police
interrogation. Duckworth, 492 U.S. at 204 (quoting Prysock, 453 U.S. at 360). By
creating such a linkage, Dennison's explanation of Mayer's Fifth Amendment rights
under Miranda became unclear at best and misleading at worst.
6
In addition to Mayer's suggestion during the custodial interview that he could not afford an
attorney, Mayer's judgment and sentence includes assessments for court-appointed attorney and
defense expert fees, indicating that he ultimately was represented by court-appointed counsel at
trial.
17
             
State v. Mayer (Nicholas), No. 90846-0
D. Conclusion on Miranda challenge
Dennison's linkage of Mayer's right to appointed counsel to conditional future
events (arrest, jail, charge, and arraignment) contradicted his earlier statements that
Mayer could have access to appointed counsel "before questioning" and that he could
exercise his rights "at any time." Critically, and unlike in Duckworth, Dennison did not
tell Mayer that despite the fact that no appointed attorney was immediately available,
Mayer's other Miranda rights remained in full effect and he could protect his right to
the presence of counsel by remaining silent until he could speak to an attorney. Under
these circumstances, Dennison's explanation of Mayer's rights was deficient, and the
State has failed to meet its burden of establishing that Mayer knowingly and
intelligently waived his rights. Mayer's subsequent confession therefore should have
been suppressed.
II. Harmless error
Next we must determine whether the error in admitting Mayer's confession was
harmless. Where an error is constitutional in nature, we consider an error harmless
only if the untainted evidence is so overwhelming that it necessarily leads to the same
outcome. In re Pers. Restraint of Cross, 180 Wn.2d at 688 (citing Guloy, 104 Wn.2d
at 426).
The key issue at trial was whether Mayer was one of the two masked gunmen
who carried out the robbery. Mayer does not dispute that a robbery meeting all the
elements of first degree robbery 7 occurred at KC Teriyaki on the date alleged in the
7The elements of first degree robbery are (1) an unlawful and (2) intentional taking of personal
property from the person or in the presence of another (3) against the person's will (4) by the use
18
             
State v. Mayer (Nicholas), No. 90846-0
information, leaving the robbers' identity as the decisive factual dispute. In this case,
the State presented overwhelming untainted evidence at trial establishing that Mayer
was one of the robbers. Mayer's two accomplices testified as to Mayer's participation
in the planning and execution of the robbery. The key aspects of their testimony were
corroborated by the testimony of other witnesses. Those other witnesses also
provided additional, independent, and compelling evidence of Mayer's guilt.
Emily testified regarding the drive to and getaway from the robbery, and Taylor's
testimony established the key details of Mayer's participation in the robbery itself.
Mayer argues that Emily and Taylor were "compromised witnesses who had motive to
lie about the defendant's involvement in order to divert their own level of culpability."
This argument might be persuasive if Mayer's accomplices were the prosecution's
only witnesses. But they were not, and the testimony of the other witnesses
corroborates the accomplices' testimony and clearly demonstrates Mayer's identity as
one of the robbers.
For example, Taylor testified that Mayer had been armed with a revolver during
the robbery and that he pointed the revolver at the KC Teriyaki employee when he
demanded the money. Two other trial witnesses corroborated Taylor's testimony: Ortiz
testified that the robber who had demanded the money had been armed with a
revolver, and Sheldon testified that Mayer gave him a revolver wrapped in a bandanna
around the time of the robbery. A blood sample from that bandanna contained DNA
or threatened use of immediate force, violence, or fear of injury to obtain the property or overcome
resistance to the taking (5) while armed with a deadly weapon or what appears to be a deadly
weapon (6) in the state of Washington. RCW 9A.56.190, .200; Clerk's Papers at 243 Uury
instruction 12).
19
             
Statev. Mayer (Nicholas), No. 90846-0
that matched a sample taken from Mayer. 8 If anything, the jury would have found
Taylor's testimony on these points more credible than Mayer's confession since Mayer
claimed in his interview with Dennison that he had been armed only with a knife-a
statement plainly at odds with the testimony of Ortiz and Woodworth.
Mayer's girlfriend, Baker, also testified at trial and provided compelling
testimony identifying Mayer as one of the robbers. Baker testified that Mayer had
called her shortly on the date of the robbery and told her that he had "robbed
someplace" and "was running from the cops"; when she met Mayer later that night,
Mayer specified that he had robbed a "Chinese or Teriyaki place." Later, Baker
reluctantly admitted after a lengthy cross-examination that Mayer had told her that he
had committed the robbery using a gun. Baker also testified that Mayer had shown
her cash that he said he had obtained from the robbery. Scott similarly testified that
he saw Mayer with a "good wad of cash" shortly after the robbery.
We view the testimony of each of these individual witnesses and the DNA
evidence collectively, not in isolation. Taken together, the evidence of Mayer's guilt is
so overwhelming that the jury necessarily would have reached the same conclusion
even in the absence of Mayer's confession. The error in admitting Mayer's confession
was harmless.
8
The record suggests that the police learned that the gun might be with Sheldon as a result of
Mayer's confession, but neither Miranda nor our state constitution's article I, section 9 require
suppression of physical evidence obtained as a result of a confession taken in violation of Miranda
unless the defendant was actually coerced. See State v. Russell, 125 Wn.2d 24, 56-62, 882 P.2d
747 (1994). While Dennison's statements to Mayer were confusing and potentially misleading,
they clearly do not rise to the level of actual coercion, which requires a showing that the
defendant's will was overborne under the totality of the circumstances. See State v. Broadaway,
133 Wn.2d 118, 132, 942 P.2d 363 (1997). Thus, the DNA evidence is not tainted, for the purposes
of the harmlessness analysis, by the deficient Miranda warnings that Mayer received.
20
             
State v. Mayer (Nicholas), No. 90846-0
CONCLUSION
Mayer's confession should have been suppressed because the State has not
established that Mayer's waiver of his Miranda rights was knowing, intelligent, and
voluntary. But because any error in admitting the confession is harmless, we affirm
Mayer's conviction.
21
             
State v. Mayer (Nicholas), No. 90846-0
WE CONCUR.
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22
             
State v. Mayer (Nicholas K.)
No. 90846-0
MADSEN, C.J. (concurring)-! agree with the majority that Nicholas Mayer's
conviction should be affirmed. I agree that the record contains overwhelming evidence
of his guilt. This holds true whether or not his statements to police are considered. I part
company with the majority concerning the efficacy of the Miranda 1 warnings given in
this case. In my view, considering the totality of the circumstances, Mayer validly
waived his Miranda rights.
ANALYSIS
The right to counsel under our state constitution and the federal constitution is the
same. State v. Earls, 116 Wn.2d 364, 378, 805 P.2d 211 (1991). The Fifth and
Fourteenth Amendments' prohibition against compelled self-incrimination requires that
custodial interrogation be preceded by advice to the accused that he has the right to
remain silent and the right to the presence of an attorney. Id. (citing Miranda, 384 U.S. at
479). The person being interrogated may validly waive the right to counsel. I d. (citing
Miranda, 384 U.S. at 475); U.S. CONST. amends. V, XIV. If such questioning takes
place without an attorney present, the State has the heavy burden of establishing the
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
             
No. 90846-0
(Madsen, C .J., concurring)
defendant's waiver of his privilege against self-incrimination and his right to retained or
appointed counsel. !d. at 378-79 (citing Miranda, 384 U.S. at 475). The State's burden
is met if it can prove the voluntariness of the statement by a preponderance of the
evidence. ld. at 379 (citing Lego v. Twomey, 404 U.S. 477, 486-87, 92 S. Ct. 619, 30 L.
Ed. 2d 618 (1972)). "To be valid, the waiver must be a voluntary, knowing, and
intelligent relinquishment of a known right." ld. (citing Edwards v. Arizona, 451 U.S.
477,482, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)). "The determination ofwhether or
not a valid waiver was made depends 'upon the particular facts and circumstances
surrounding that case, including the background, experience, and conduct of the
accused."' I d. (internal quotation marks omitted) (quoting Edwards, 451 U.S. at 482).
Restated, we consider the totality of the circumstances.
"[T]he determination whether statements obtained during custodial
interrogation are admissible against the accused is to be made upon an
inquiry into the totality of the circumstances surrounding the interrogation,
to ascertain whether the accused in fact knowingly and voluntarily decided
to forgo his rights to remain silent and to have the assistance of counsel."
State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008) (alteration in original) (quoting
Fare v. Michael C., 442 U.S. 707, 724-25, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979)).
Included in such "totality" assessment are the defendant's "age, experience, intelligence,
education, and background; whether he or she has the capacity to understand any
warnings given and his or her Fifth Amendment rights; and the consequences of waiving
these rights." ld. at 103.
2
             
No. 90846-0
(Madsen, C.J., concurring)
Here, the majority parses through the language of the warning that Mayer received
and the subsequent statements police made to Mayer in response to his questions. While
the majority's consideration of the language used is not improper, the majority ignores
other considerations that play a crucial role in properly assessing Mayer's waiver,
particularly his background and experience. As the Supreme Court has explained,
"Reviewing courts ... need not examine Miranda warnings as if construing a will or
defining the terms of an easement. The inquiry is simply whether the warnings
reasonably 'conve[y] to [a suspect] his rights as required by Miranda."' Duckworth v.
Eagan, 492 U.S.l95, 203, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989) (second and third
alterations in original) (quoting California v. Prysock, 453 U.S. 355, 361, 101 S. Ct.
2806, 69 L. Ed. 2d 696 (1981)).
In my view, as was the case in Duckworth, the warnings given to Mayer "touched
all of the bases required by Miranda." !d. The police read Mayer his Miranda rights
twice: once before the taped interview and again on the recording of the interview after
Mayer had agreed to such recording. Each time, police informed Mayer that he had the
right to remain silent and that anything he said could be used against him in court. 1
Verbatim Report of Proceedings (VRP) at 74, 79. Police further stated,
"You have the right at this time to talk to a lawyer and have him present
with you while you are being questioned. If you cannot afford to hire a
lawyer, one will be appointed to represent you before questioning ifyou
wish. You can decide at any time to exercise these rights and not answer
any questions or make any statements."
!d. at 74-75, 79 (emphasis added).
3
             
No. 90846-0
(Madsen, C.J., concurring)
This case is controlled by Duckworth, where a comparable Miranda warning was
held to be sufficient. See Duckworth, 492 U.S. at 203. Here, after the first Miranda
warning, Mayer affirmatively acknowledged that he understood '"each of these rights."'
1 VRP at 7 5. After the second Miranda warning, which was read to him on the
recording, he again acknowledged that he understood "each of these rights" as described
above. !d. at 79. Mayer then inquired how he could go about getting appointed counsel
"[i]fi wanted an attorney and I can't afford one." !d. (emphasis added). Police then
answered (somewhat in artfully) that if he were arrested, taken to jail, and appeared before
a judge, and if he were not able to afford an attorney the judge would appoint him a
lawyer. See id. Mayer acknowledged that he understood. !d. After addressing Mayer's
question about the process for acquiring court appointed counsel, police continued the
interview. Police again asked Mayer if he understood his rights; he acknowledged that he
did. !d. at 80. Police then twice asked Mayer, "keeping your rights in mind," if Mayer
wanted to continue the interview and discuss the robbery. !d. He answered
affirmatively. !d. Over the course of the following half-hour interview, Mayer discussed
his role in the robbery. He never indicated that he wanted to stop the interview, and he
never asked for an attorney during questioning. !d. at 81-82.
In Duckworth, the warning at issue described defendant's right to counsel before
police asked him' questions and informed him that he could stop answering questions at
any time until he'talked to a lawyer. See 492 U.S. at 198, 205. The warning also
included an advisement that a lawyer "'will be appointed for you, if you wish, if and
4
             
No. 90846-0
(Madsen, C.J., concurring)
when you go to court.'" I d. at 19 8 (emphasis omitted). This language in the Duckworth
advisement anticipated and answered the question that Mayer asked police at his
interview regarding the process for getting appointed counsel. See id.; 1 VRP at 79. The
Duckworth Court distinguished some language appearing in its earlier Prysock opinion,
which suggested that "Miranda warnings would not be sufficient 'if the reference to the
right to appointed counsel was linked [to a] future point in time after the police
interrogation.'" Duckworth, 492 U.S. at 204-05 (first emphasis added) (alteration in
original) (quoting Prysock, 453 U.S. at 360). The Duckworth Court explained that "the
vice referred to in Prysock was that such warnings would not apprise the accused of his
right to have an attorney present if he chose to answer questions." !d. The Court held
that the above described warnings did not suffer from such defect. !d. The same is true
here. As in Duckworth, the warnings, in their totality, satisfied Miranda. !d.
The Duckworth Court reiterated that '"the "rigidity" of Miranda [does not]
exten[ d] to the precise formulation of the warnings given a criminal defendant,' and that
'no talismanic incantation [is] required to satisfy its strictures."' !d. at 202-03 (alterations
in original) (quoting Prysock, 453 U.S. at 359). Miranda requires "only that the suspect
be informed ... that he has the right to an attorney before and during questioning, and
that an attorney would be appointed for him if he could not afford one." !d. at 204.
Accordingly, Miranda requires that "police not question a suspect unless he waives his
right to counsel." !d. (emphasis added). Both in Duckworth and in the present case, the
defendant did so. !d.
5
             
No. 90846-0
(Madsen, C.J., concurring)
Further, the record of the suppression hearing indicates that Mayer had a
substantial criminal history with multiple arrests and convictions going back to 2003. On
cross-examination, he admitted that he had been arrested multiple times in 2003, 2006,
2007, 2008, and 2011. See 1 VRP at 155-57. Mayer admitted that "[a]s far as [he could]
remember," each time he had been arrested he had been read his Miranda rights; that he
had been advised of his Miranda rights "at least nine times" prior to receiving the
warnings at issue here; and that he was "very familiar with Miranda warnings." !d. at
157. Considering the totality of the circumstances, including Mayer's substantial
experience, background, and familiarity with Miranda warnings, it is simply implausible
that he was confused by the rights advisement given here or that he was not clear about
his right to an attorney during questioning. In my view, there was no Miranda violation
here.
Finally, as we noted in Earls, "[Defendant] was aware of his rights and the State's
intention to use his statements against him. Furthermore, his decision not to invoke those
rights was not induced by threat or promise. Thus, his waiver was valid as a matter of
law." Earls, 116 Wn.2d at 380 (citing Moran v. Burbine, 475 U.S. 412, 422-23, 106 S.
Ct. 1135, 89 L. Ed. 2d 410 (1986)). The same is true here. For the reasons discussed,
Mayer's interview statements to police were properly admitted at trial. I would affirm his
conviction and concur in the result on this basis.
6
             
No. 90846-0
(Madsen, C.J., concurring)
7
             
State v. Mayer, No. 90846-0 (Gonzalez, J., concurring in result)
No. 90846-0
GONZALEZ, J. (concurring in result)-! concur with the majority in result. I
write separately because I would affirm without addressing the adequacy of the
Miranda 1 warning on the basis that-as the majority ultimately concludes-any error
was harmless in light of the overwhelming untainted evidence. See In re Pers.
Restraint of Cross, 180 Wn.2d 664,688, 327 P.3d 660 (2014); State v. Guloy, 104
Wn.2d 412, 426, 705 P.2d 1182 (1985). Consequently, we need not reach the
constitutional issue. The evidence included ample accomplice testimony,
corroborating testimony from other witnesses, and DNA (deoxyribonucleic acid)
evidence linking Mayer to the crime. I respectfully concur in result.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
1
             
State v. Mayer, No. 90846-0 (Gonzalez, J., concurring)
2