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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. 169

8              

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