State v. Martinez

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

VICTOR ABRAHAM MARTINEZ, JR., Appellant.

No. 1 CA-CR 13-0107
FILED 10-21-2014

Appeal from the Superior Court in Maricopa County
No. CR2010-100587-001
The Honorable Roger E. Brodman, Judge
The Honorable Karen L. O’Connor, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
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MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Judge Kent E. Cattani joined. Presiding Judge Patricia K. Norris concurred
in part and dissented in part.

W I N T H R O P, Judge:

¶1 Victor Abraham Martinez, Jr., appeals his convictions and
sentences for second-degree murder, a class one dangerous felony and
domestic violence offense, and child abuse, a class two felony and
dangerous crime against children. Martinez argues the superior court erred
by admitting into evidence his statements to the police, alleging the police
deliberately engaged in an unlawful “two-step” interrogation to undermine
the effectiveness of a Miranda1 warning. For the following reasons, we
affirm.

FACTUAL AND PROCEDURAL BACKGROUND2

¶2 As a Tempe Police Department SWAT team executed a
warrant to search a home in Guadalupe, Arizona, a man approached the
residence. Tempe Police Detective Tyler Watkins ordered the man to lie on
the ground and handcuffed him, while other officers pointed their weapons
at him. Detective Watkins recognized the man as Victor Martinez, a
“possible investigative lead” in the fatal shooting of his former girlfriend;
in fact, the SWAT team was executing the search warrant on Martinez’s
home. Martinez remained handcuffed under the guard of Detective
Watkins for five to ten minutes, while Tempe Police Sergeant Michael Hill,
who was supervising the investigation, instructed Detective Jennifer
Baniszewski to invite Martinez to the police station for voluntary
questioning. Detective Baniszewski removed the handcuffs from Martinez
and requested that he voluntarily speak with her at the police station.
Martinez agreed, and Detective Baniszewski and another officer

1 See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

2 We view the evidence presented at the suppression hearing in the
light most favorable to upholding the superior court’s ruling admitting
Martinez’s post-Miranda statements. See State v. Ellison, 213 Ariz. 116, 126,
¶ 25, 140 P.3d 899, 909 (2006).

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handcuffed Martinez per Tempe Police Department policy and transported
him to the station in an unmarked police vehicle; Martinez sat in the front
passenger seat, while Detective Baniszewski sat in the back seat and the
other officer drove. An officer removed the handcuffs at the police station.

¶3 At 11:38 p.m., Detective Baniszewski indicated to Martinez
her view that he was at the station voluntarily, and that he was free to leave
at any time. The detective then began interviewing Martinez without
providing him with a Miranda warning. Throughout the interview, many
of Martinez’s statements and answers to the detective’s questions were
difficult to understand, internally inconsistent, and/or nonresponsive.
Detective Baniszewski questioned Martinez extensively about his
relationship with his former girlfriend, leading to him making statements
about his arguments with her over the phone and in-person, and the
detective repeatedly asked Martinez about the last time he saw the
deceased. The detective also asked Martinez about “the part with the gun,”
which led to a discussion about Martinez’s experience with firearms and an
incident involving a gun and his father. Detective Baniszewski later told
Martinez about evidence uncovered during the pending investigation,
including small-caliber ammunition found in Martinez’s home, phone
records between Martinez and the victim, and the location of “the gun.”
The detective also confronted Martinez about the inconsistencies in his
statements.

¶4 After two hours of questioning, Martinez told Detective
Baniszewski “it was an accident,” he “[b]lacked out,” and he “threw [the
gun] away . . . in the trash can at the bus stop . . . in Phoenix at 7th Avenue
and Camelback.” Shortly after these statements, Martinez asked for a
shower. The detective responded, “[l]et me see what I can do,” but
continued to question Martinez. Soon thereafter, Martinez stated the
“accident” happened in front of his house, where he “just blacked out . . . I
started shooting and blacking out.” Over the next forty minutes, an
increasingly despondent Martinez provided often vague and/or
nonresponsive answers to Detective Baniszewski’s questions, while
continuing to maintain the shooting was an accident and that he “started
shaking and [] blacked out,” until the questioning was terminated.

¶5 While Detective Baniszewski questioned Martinez, Sergeant
Hill “periodically” listened in on the interview and communicated with
Detective Baniszewski by text message. During the questioning, Sergeant
Hill also placed two phone calls to an on-call deputy county attorney: first,
to tell the attorney Martinez was being questioned and, second, because
Sergeant Hill “wanted some general advice on . . . the prudent way to

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proceed” given the interview had “reached a repetitive wall in questioning,
[such] that it kept just going in circles” and because police had just obtained
a search warrant for a buccal swab. After consulting the deputy county
attorney, Sergeant Hill directed Tempe Police Detective David Larson to
serve the search warrant on Martinez, read him the Miranda warning, and
“continue on with the interview, if the subject was willing.”3

¶6 Thirty minutes after Detective Baniszewski finished
questioning Martinez, Detective Larson let Martinez use the restroom and
brought him more water. After another thirty minutes, Detective Larson
conducted the buccal swab search, advised Martinez of his rights pursuant
to Miranda, and confirmed Martinez understood those rights.

¶7 Detective Larson began the interrogation by telling Martinez
he was a “blank slate” and stating, “I really don’t know anything that [has]
been going on [with the previous interview]. Except that I know kind of
what happened and why we’re out here and what’s being investigated right
now.” He asked Martinez to “walk [him] through . . . what happened
Sunday afternoon.” Approximately thirty minutes into the interrogation,
Martinez admitted he held a loaded .22 caliber semi-automatic Ruger
handgun in his right hand just before he “started shaking [and] blacked
out,” and he broke down when he “saw [his former girlfriend] not
breathing.” Martinez also stated the victim’s daughter was asleep in her
car seat in the back. Martinez told Detective Larson that he later got into
the driver’s seat next to his former girlfriend, drove the car a short distance
to a parking lot, and left it there, along with the former girlfriend’s body

3 The dissent relies on an unsupported premise in arguing that
Sergeant Hill “admitted he had decided to ‘pull’ the first detective because
the ‘on-call’ county attorney had become ‘alarmed’ about what had gone
on during the first interrogation.” Infra at ¶ 37. While questioning Sergeant
Hill at the suppression hearing, defense counsel queried, “And when [the
on-call attorney] tells you to pull Baniszewski because he’s alarmed about
what’s going on, you followed that –- that request, or that order, correct?”
The sergeant simply responded, “Yes.” The description of the deputy
county attorney as being “alarmed,” however, was an unsupported
characterization used only by defense counsel. As ultimately posed,
defense counsel’s question did not require Sergeant Hill to adopt that
characterization in his answer, and he did not do so. In fact, nothing in the
record supports that characterization of the evidence by defense counsel, a
characterization not adopted by either Sergeant Hill or any other witness.

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and the child. At the conclusion of the interrogation, Detective Larson
placed Martinez under arrest.

¶8 At a pre-trial suppression hearing, Sergeant Hill and
Detectives Baniszewski and Larson testified there was no pre-interview
plan to conduct a two-step interview. Each stated there was no protocol or
training program in the Tempe Police Department suggesting a procedure
in which one detective would conduct a pre-Miranda interview, with
another detective subsequently conducting a post-Miranda interrogation.
Sergeant Hill testified he asked Detective Larson to advise Martinez of his
rights pursuant to Miranda and interrogate him because the interview with
Detective Baniszewski was “going in circles.” Sergeant Hill believed
Martinez’s custody status had changed with the buccal swab warrant and
the need to press him harder; and the on-call deputy county attorney
advised him to proceed with a second interview with a different detective.
Detective Larson testified he had not watched Detective Baniszewski
question Martinez because he was performing other tasks incidental to the
investigation, including searching trash cans in Phoenix for the gun used to
shoot the victim.4 He also testified he did not discuss the content of the
questioning with Sergeant Hill, and Detective Baniszewski testified she did
not discuss the questioning with Detective Larson.

¶9 The superior court determined Martinez was in custody
during questioning by Detective Baniszewski, and although the statements
were voluntary and not coerced, they were obtained in violation of Miranda
and therefore inadmissible in the State’s case-in-chief. The court also found
“there is no evidence to suggest that Detectives Baniszewski and Larson, or
any other member of the Tempe Police Department, deliberately planned
to undermine Miranda so that a ‘two-step’ interrogation technique could be
implemented.” Further, after finding Detective Larson had advised
Martinez of his rights under Miranda, Martinez had affirmed he understood
those rights, and Martinez’s statements were voluntary and not the result
of any force or threats, the court ruled Martinez’s statements to Detective
Larson were admissible.

¶10 At trial, the State presented Martinez’s statements to
Detective Larson during its case-in-chief. The jury convicted Martinez of
the lesser-included offense of second-degree murder and of child abuse,

4 Detective Larson testified he did not know the source of the
information leading him to that location.

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and he was sentenced to aggravated, consecutive prison terms totaling
forty-four years.

¶11 Martinez filed a timely notice of appeal. We have jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (West 2014),5 13-4031,
and 13-4033(A).

ANALYSIS

¶12 The Fifth Amendment to the United States Constitution
guarantees that “[n]o person . . . shall be compelled in any criminal case to
be a witness against himself.” U.S. Const. amend. V; see also Malloy v. Hogan,
378 U.S. 1, 6 (1964) (holding “that the Fifth Amendment’s exception from
compulsory self-incrimination is also protected by the Fourteenth
Amendment against abridgment by the States”). Pursuant to Miranda, “the
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.” 384 U.S. at 444.

¶13 The superior court excluded Martinez’s pre-Miranda warning
statements to the police, but Martinez argues the court erred by admitting
his post-warning statements because the police deliberately employed an
unlawful two-step interrogation technique. We review a superior court’s
ruling on a motion to suppress for an abuse of discretion. State v. Cruz, 218
Ariz. 149, 161, ¶ 47, 181 P.3d 196, 208 (2008). We defer to the court’s findings
of fact, but review de novo its conclusions of law. State v. Zamora, 220 Ariz.
63, 67, ¶ 7, 202 P.3d 528, 532 (App. 2009).

I. In Custody

¶14 As a threshold matter, the State argues the superior court
erred by finding Martinez was in custody before Detective Larson provided
Martinez with a Miranda warning. The procedural safeguards of Miranda
apply only when a suspect is “in custody or otherwise deprived of his
freedom of action in any significant way.” Oregon v. Mathiason, 429 U.S.
492, 495 (1977) (per curiam) (internal quotation marks omitted). “Whether
one is in custody is determined objectively: Under the circumstances,

5 We cite the current version of the applicable constitutional
provisions, statutes, and rules, because no revisions material to this
decision have occurred since the events in question.

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would a reasonable person feel deprived of his freedom of action?” State v.
Stanley, 167 Ariz. 519, 523, 809 P.2d 944, 948 (1991) (citation omitted). Four
factors guide this objective inquiry: (1) “whether the objective indicia of
arrest are present,” (2) “the site of the interrogation,” (3) “the length and
form of the investigation,” and (4) “whether the investigation had focused
on the accused.”6 State v. Carter, 145 Ariz. 101, 105, 700 P.2d 488, 492 (1985)
(citation omitted); see also Stansbury v. California, 511 U.S. 318, 323 (1994) (per
curiam) (“[T]he initial determination of custody depends on the objective
circumstances of the interrogation, not on the subjective views harbored by
either the interrogating officers or the person being questioned.”). The
“objective indicia of arrest” include “the booking process,” the use of
“physical restraints such as handcuffs,” the display of weapons, and the
manner in which the police transported the suspect. State v. Cruz-Mata, 138
Ariz. 370, 373, 674 P.2d 1368, 1371 (1983).

¶15 In this case, although the police officers told Martinez he was
free to leave and Martinez agreed to go to the police station for questioning,
the superior court reasonably concluded that Martinez was “in custody”
before receiving his Miranda warning based on the objective evidence
presented at the suppression hearing. The objective indicia of arrest
included the use of handcuffs and display of weapons outside the suspect’s
home, and the handcuffed transportation of Martinez to the police station.
The pre-Miranda questioning took place in a police station interview room
and took the form of a three-hour question-and-answer session, during
which Detective Baniszewski confronted Martinez with the evidence in the
investigation and inconsistencies in his statements. Although the police
officers testified Martinez was “an investigative lead,” this fact is irrelevant
because nothing in the record suggests the police made this status known
to Martinez. See Stansbury, 511 U.S. at 324 (“[A] police officer’s subjective
view that the individual under questioning is a suspect, if undisclosed, does
not bear upon the question whether the individual is in custody for
purposes of Miranda.” (citation omitted)). Consequently, although there
was some basis for the police officers’ stated belief that Martinez was not in
custody, we conclude the superior court did not err in finding he was in
custody or abuse its discretion in suppressing his pre-Miranda statements.

6 Although Arizona case law inconsistently includes this fourth factor
in the custody analysis, we have included it here to resolve any doubts in
our approach in favor of Martinez. See State v. Wright, 161 Ariz. 394, 397
n.1, 778 P.2d 1290, 1293 n.1 (App. 1989) (recognizing an inconsistency in
Arizona case law).

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II. Post-Miranda Statements

¶16 We next consider the admissibility of Martinez’s statements
after the Miranda warning. Relying on Missouri v. Seibert, 542 U.S. 600
(2004), Martinez argues the police deliberately engaged in an unlawful
“two-step” interrogation to undermine the effectiveness of the Miranda
warning, and that his statements are thus inadmissible. We disagree.

¶17 Under Oregon v. Elstad, 470 U.S. 298, 309 (1985), statements
made after a suspect is Mirandized are admissible notwithstanding an un-
Mirandized prior interview, and the admissibility of any post-Miranda
statement “should turn . . . solely on whether it is knowingly and voluntarily
made.” (Emphasis added.) “[A] careful and thorough administration of
Miranda warnings serves to cure the condition that rendered the unwarned
statement inadmissible.” Id. at 310-11.

¶18 In Seibert, the United States Supreme Court created a limited
exception to the Elstad rule, but only for cases in which law enforcement
officers deliberately use the two-step interrogation technique ”in a
calculated way to undermine the Miranda warning.” 542 U.S. at 622
(Kennedy, J., concurring).7 The Seibert analysis thus turns on whether law
enforcement officers had a pre-determined plan to conduct a two-step
process.

¶19 To make this determination, courts consider “objective
evidence and any available subjective evidence, such as an officer’s
testimony.” United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006)
(citing Seibert, 542 U.S. at 616). Objective evidence includes:

(1) the completeness and detail of the prewarning
interrogation, (2) the overlapping content of the two rounds
of interrogation, (3) the timing and circumstances of both
interrogations, (4) the continuity of police personnel, (5) the
extent to which the interrogator’s questions treated the
second round of interrogation as continuous with the first and
(6) whether any curative measures were taken.

7 This court has previously concluded Justice Kennedy’s concurrence
in Seibert is the controlling opinion. Zamora, 220 Ariz. at 69-70 n.8, ¶ 16, 202
P.3d at 534-35 n.8 (citation omitted).

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Id. at 1160.8 The State bears the burden of proving by a preponderance of
the evidence that it did not employ a deliberate two-step interrogation
technique. See United States v. Williams, 681 F.3d 35, 41 (2d Cir. 2012).

¶20 If the court determines the police deliberately used the two-
step technique, then “postwarning statements that are related to the
substance of prewarning statements must be excluded unless curative
measures are taken before the postwarning statement is made.” Seibert, 542
U.S. at 622. If the court determines the police did not deliberately employ
the two-step technique, “[t]he admissibility of postwarning statements
should continue to be governed by the principles of Elstad.” Id.

¶21 In this case, the subjective evidence favors the admissibility of
the post-warning statements. At the suppression hearing, Sergeant Hill and
Detectives Baniszewski and Larson each testified there was no protocol or
training in the Tempe Police Department involving a deliberate two-step
interrogation technique, and Sergeant Hill testified he did not direct the
detectives to initiate such a technique. By finding the evidence failed to
demonstrate the officers acted deliberately to undermine Miranda, the
superior court implicitly found this testimony credible. Because the
superior court is in a better position to determine credibility, we defer to its
determination regarding this issue. See State v. Mendoza–Ruiz, 225 Ariz. 473,
475, ¶ 6, 240 P.3d 1235, 1237 (App. 2010). As a result, the subjective evidence
supports the conclusion that the Tempe police officers did not employ a
deliberate two-step interrogation strategy.

¶22 Turning to the objective evidence, the six factors, taken
together, favor admissibility. Under the first factor, the court examines the
completeness and detail of the pre-warning interrogation; under the second
factor, the court examines the overlapping content of both rounds of
questioning. Here, although Detective Baniszewski’s questions in the pre-
warning interview sought completeness, both the questions and answers
revealed few details about the subject crimes. Martinez described in detail
his relationship with the victim, his background with guns, and the
circumstances of his meeting with the victim, but he offered very little about

8 Although Justice Kennedy’s concurrence relied on the intent of the
interrogators to determine whether they deliberately employed a two-step
technique, the use of objective evidence stems from the recognition that a
police officer will rarely admit a deliberate attempt to circumvent
constitutional rights. See Seibert, 542 U.S. at 616 n.6 (“Because the intent of
the officer will rarely be as candidly admitted as it was here . . . , the focus
is on facts apart from intent that show the question-first tactic at work.”).

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the crimes to Detective Baniszewski beyond his statement that he “started
shooting and blacking out” and repeated assertions that “it was an
accident” and he was “shaking” as he “blacked out.” As a result of
Martinez’s reticence to describe the details of “the accident” in the first
round of questioning and Detective Larson’s “blank slate” approach in the
second round, there was some overlap in content, but the second interview
went into much greater detail. For example, in his post-warning statements
to Detective Larson, although Martinez repeated that he “started shaking
[and] blacked out,” he further acknowledged that he “saw her not
breathing,” and stated the victim “started bleeding [from] [h]er head.” He
also acknowledged that what he did was “wrong,” and at the end of the
second round of questioning, Martinez also stated that what he did “would
be considered a crime.”

¶23 The third factor, the timing and circumstances of both
interrogations, weighs neither in favor of nor against the admissibility of
Martinez’s post-Miranda statements. The fact that Martinez was afforded a
bathroom and water break, coupled with the full hour-long break in
between rounds of questioning, tends to objectively signal a lack of
continuity. However, the location of the questioning suggests continuity
because both interviews occurred in the same room of the police station.

¶24 The fourth and fifth factors, the continuity of police personnel
and the extent to which the interrogator’s questions treated the second
round of interrogation as continuous with the first, favor admissibility
because different detectives conducted the interrogations, and, unlike the
detective in Seibert, Detective Larson did not refer to questions asked and
answers elicited during the unwarned phase of questioning. See Seibert, 542
U.S. at 621 (“The officer confronted the defendant with her inadmissible
prewarning statements and pushed her to acknowledge them.”).
Moreover, nothing objectively contradicts the testimony of Detective
Baniszewski that she did not discuss her interview of Martinez with
Detective Larson or Detective Larson’s testimony that he was not briefed
on the first interview by either Sergeant Hill or Detective Baniszewski.
Further, although Sergeant Hill was the officer directing the investigation,
nothing in the record suggests he coordinated the content of the two
interviews or that Martinez was ever aware of his presence.9

9 The dissent highlights the role of the on-call deputy county attorney,
concluding that when the attorney realized police officers had failed to
Mirandize Martinez, he suggested ways to “manage and minimize” the

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¶25 Finally, the sixth factor, whether any curative measures were
taken, is evaluated when an interrogator has deliberately employed the
two-step interrogation strategy, and requires the court to evaluate the
effectiveness of the midstream Miranda warning. See Seibert, 542 U.S. at 615,
622; Williams, 435 F.3d at 1160. This factor weighs against admissibility in
this case because the police took few curative measures to remedy any harm
from the unwarned statements. Although the police undertook some
curative measures, including advising Martinez that he was starting with a
“blank slate” with a new officer, those measures did not include “a
substantial break in time and circumstances between” rounds of questioning
and/or “an additional warning that explains the likely inadmissibility of
the prewarning custodial statement.” Seibert, 542 U.S. at 622 (emphasis
added).

¶26 Even though this final factor weighs against admissibility, the
objective factors taken as a whole, and coupled with the subjective
evidence, strongly weigh in favor of admissibility. We conclude that, under
the Seibert analysis, the superior court did not err in finding the police
officers did not deliberately use a two-step interrogation technique in an
effort to undermine Miranda. Further, the record fully supports the court’s
determination that Martinez’s “statements were voluntary and not the
result of any force or threats,” and Martinez does not otherwise challenge
the statements pursuant to Elstad. See Seibert, 542 U.S. at 622; Elstad, 470 U.S.
at 309. Accordingly, we conclude the superior court did not err by ruling
the post-Miranda statements were admissible.

problem. Infra at ¶ 38. But there is no dispute that at some point after
Martinez made incriminating statements in the pre-Miranda interview,
there was an intentional decision to Mirandize him and attempt to obtain
an admissible statement. This type of “intent” is not improper under Elstad,
and the focus under the Seibert exception to Elstad is instead on whether the
officers intended – prior to the first interview – to engage in a two-step
process. The on-call attorney’s alleged intervention in this case weighs in
favor of – and not against – a finding that there was not a pre-determined
plan to conduct a two-step interview. There would have been little or no
reason to consult with the county attorney’s office at any time before or
during the first interview if police officers had pre-planned a two-step
interview process. The second call to that office thus suggests the police
officers had not anticipated the circumstances with which they were faced,
and that there was not a pre-determined two-step interview plan.

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CONCLUSION

¶27 For the foregoing reasons, we affirm Martinez’s convictions
and sentences.

NORRIS, Presiding Judge, concurring in part, dissenting in part.

¶28 This appeal arises out of statements made by the defendant,
Victor Martinez, to one police detective, Jennifer Baniszewski (“first
detective”), in which he admitted shooting the victim and leaving her for
dead before being warned of his Miranda rights, and which he then repeated
to a second police detective, David Larson (“second detective”), after being
warned of his Miranda rights. I agree with the majority that the superior
court did not abuse its discretion in finding Martinez was in custody before
police finally warned him of his Miranda rights and in suppressing his pre-
Miranda statements. See supra ¶ 15.

¶29 In addition to the circumstances noted by the majority in
affirming the superior court’s “in-custody” finding, id., the length and form
of the first detective’s interrogation of Martinez would have lead a
reasonable person to believe he was not free to leave and “go about his
business.” State v. Zamora, 220 Ariz. 63, 68, ¶ 10, 202 P.3d 528, 533 (App.
2009). By approximately 90 minutes into her interrogation of Martinez, the
first detective had confronted him with discrepancies in his story and had
repeatedly accused him of lying about what had happened. The first
detective then pressed him to acknowledge and accept responsibility for
shooting the victim which he then did:

First detective: Okay, then tell me about
it. You’re sitting here saying lie . . . lie . . . lie . . .
Tell me about the . . . Tell me about it? Show me
that Victor cares. Show me that Victor wants to
make it right . . . . You need to show me. Tell me
what happened Victor.

Martinez: I told you already.

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Norris, J., Concurring in Part; Dissenting in Part

First detective: No you didn’t. You lied
and you showed me that you could give a shit.
You lied. . . . You show me you don’t care.
Please tell me there’s someone in there that
does. Victor.

Martinez: What do you want me to tell
you?
First detective: Do you love her? Tell me
did you love her?

Martinez: Yeah I did.

First detective: Then make it right for
her. Tell me what happened? You’re going to
feel so much better when you do. . . .

Martinez: I’m telling you it was an
accident.

¶30 After Martinez admitted “it” was an accident, and during the
next 35 or so minutes, Martinez provided more details about the shooting,
see infra ¶ 33, including acknowledging to the first detective he thought the
victim had died “right away.”

¶31 Because Martinez was in custody during the first detective’s
interrogation, the police were required to warn him of his Miranda rights.
Thus, as the majority correctly concludes, the issue becomes whether the
police deliberately engaged in an unconstitutional “two-step” interrogation
to undermine the effectiveness of the Miranda warnings they finally gave to
Martinez thereby rendering his post-Miranda statements inadmissible. See
supra ¶ 16. Although I agree with the majority that to determine
deliberateness, a court should consider the objective evidence and any
available subjective evidence, such as a police officer’s testimony,10 see supra

10On appeal, the State argues that whether police officers
deliberately violated Miranda is governed by “a purely subjective standard”
that focuses only on the subjective intent of the officers involved in the
interrogations, although the State does acknowledge a court may consider
objective evidence if it impeaches or rebuts the officers’ testimony. This
was not, however, the position taken by the State in the superior court.

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Norris, J., Concurring in Part; Dissenting in Part

¶ 19, I respectfully disagree with the majority’s conclusion the superior
court “did not err by ruling the post-Miranda statements were admissible.”
See supra ¶ 26. In disagreeing with the majority, I recognize that as a
reviewing court, we normally defer to factual findings made by a superior
court in ruling on a motion to suppress. But this deferential standard of
review is inapplicable to the extent a superior court’s ultimate finding
constitutes a conclusion of law, Zamora, 220 Ariz. at 67, ¶ 7, 202 P.3d at 532,
and we are not bound by a discretionary finding of fact when it is “not
justified by, and clearly against, reason and evidence.” State v. Chappel, 135
Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983). That is the case here.

¶32 Turning to the objective evidence, see supra ¶ 19, the record
demonstrates Martinez’s statements to the first detective in the first
interrogation were remarkably complete and detailed, contrary to the
majority’s characterization of what he said. See supra ¶¶ 3-4, 22. And,
contrary to the majority’s description of the first and second interrogation,
see supra ¶ 22, the content of the two interrogations – measured by
Martinez’s answers – substantially overlapped.

¶33 In the first interrogation, Martinez told the first detective he
had argued with the victim (“I was asking her if she wanted to spend time
with me” and “she said no.”), the victim was in the front seat of her car, in
front of his house, he had his gun in his right hand, he “started shooting
and blacking out,” he could not remember how many times the gun went
off, but he “couldn’t stop, my hand was shaking,” and he thought the victim
had died right away. He also told the first detective he had moved the
victim’s car and thrown away the gun. In the second interrogation,
Martinez told the second detective the victim told him she did not want to
hear from him that he loved her, although he did not mean to hurt her, he
“didn’t have no control over it,” he had the gun in his right hand, he could
not remember how many times the gun went off but “it just started going
off and [I] started blacking out and then I freaked out after that,” after the
shooting, the victim was not breathing, he moved the victim’s car, and gave
“some guy” the gun.

There, the State affirmatively argued a court should consider the objective
evidence and any available subjective evidence to decide deliberateness.
Further, the State’s argument flies in the face of this court’s recognition in
Zamora that to determine deliberateness, a court should consider the
objective evidence and any available subjective evidence. 220 Ariz. at 70,
¶ 16, 202 P.3d at 535.

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 STATE v. MARTINEZ
Norris, J., Concurring in Part; Dissenting in Part

¶34 As is evident from this comparison, although certain of the
details related by Martinez differ from the first interrogation to the second
interrogation, much of what he said was the same. In the first interrogation
Martinez described the circumstances of the shooting, told the first
detective he had shot the victim and left her for dead. Martinez told the
second detective essentially the same story. The only material difference
between the first and second interrogation was that in the second
interrogation, Martinez acknowledged what he had done would be
considered a crime. Nevertheless, the first detective had essentially
succeeded in obtaining a confession. The die was cast. And, given what
Martinez had told the first detective, it did not take the second detective
long to have Martinez repeat the story. As Justice Kennedy explained in
Missouri v. Seibert, “the two-step technique permits the accused to conclude
that the right not to respond did not exist when the earlier incriminating
statements were made. The strategy is based on the assumption that
Miranda warnings will tend to mean less when recited midinterrogation,
after inculpatory statements have already been obtained.” Missouri v.
Seibert, 542 U.S. 600, 620, 124 S. Ct. 2601, 2615, 159 L. Ed. 2d 643 (2004).

¶35 That brings me to the timing and circumstances of the two
interrogations. As the majority notes, after the first detective finished the
first interrogation, the police waited an hour—actually 66 minutes—before
beginning the second interrogation. Having elicited what was for all
practical purposes a confession from Martinez in the first interrogation, the
66 minutes hardly signaled an objective break in the continuity of the
questioning, as the majority states. See supra ¶ 23. Instead, from an
objective standpoint, it simply signaled a brief pause in what was a single
interrogation, albeit one involving two different detectives. The second
detective began the second interrogation by pressing Martinez for the
details as to what had happened. After only 24 minutes, Martinez began to
tell the second detective what had happened just before he shot the victim;
then in the next 40 minutes, Martinez told the second detective he had shot
the victim, left her for dead, moved the car, and disposed of the gun.

¶36 Finally, I turn to the continuity of police personnel and the
extent to which the second detective’s questions treated the second
interrogation as continuous with the first interrogation. In this case, these
factors are closely entwined. Although the first detective testified at the
suppression hearing she did not discuss her interrogation of Martinez with
the second detective, see supra ¶ 8, and the sergeant in charge of the
investigation testified he did not discuss the first interrogation with the

15
 STATE v. MARTINEZ
Norris, J., Concurring in Part; Dissenting in Part

second detective,11 the record reveals the sergeant and his role in the two
interrogations provided both continuity between the two interrogations
and the deliberate nature of the Miranda violation that occurred here.

¶37 The sergeant directed the investigation. He was the one that
assigned the first detective to interrogate Martinez. He oversaw that
interrogation and watched portions of it. After Martinez had incriminated
himself in the first interrogation, the sergeant spoke to the “on-call” county
attorney who was advising him in the investigation. After speaking to the
“on-call” county attorney, the sergeant decided to take a break, bring in the
second detective, and have the second detective advise Martinez of his
Miranda rights. Although at the suppression hearing, the sergeant first
explained he made that decision because the first detective had reached a
“repetitive wall in questioning”—even though Martinez had admitted
shooting the victim, leaving her for dead, moving the victim’s car, and
disposing of the gun—the sergeant then admitted he had decided to “pull”
the first detective because the “on-call” county attorney had become
“alarmed” about what had gone on during the first interrogation:

Q. And when [the “on-call” county attorney]
tells you to pull [the first detective] because he’s
alarmed about what’s going on, you followed
that – – that request, or that order, correct?

A. Yes.

¶38 Even though the sergeant did not explain what had alarmed
the “on-call” county attorney, the only logical conclusion is that the “on-
call” county attorney realized the police had failed to warn Martinez of his

11As the majority notes, at the beginning of the second
interrogation, the second detective told Martinez he was a “blank slate” and
“really [didn't] know anything that [had] been going on [in the first
interrogation].” See supra ¶ 7. Whether the second detective was in fact a
blank slate is open to question. After interrogating Martinez for five
minutes, the second detective questioned Martinez’s statement that the
victim was just a friend: “well I know she’s more than that . . . . But I know
a little bit about what’s going on and some of the things you’re saying right
now are a little different than what we all know is the truth. So . . . Tell me
about your relationship with her.”

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 STATE v. MARTINEZ
Norris, J., Concurring in Part; Dissenting in Part

Miranda rights.12 The sergeant thus tried to manage and minimize the
Miranda problem. Otherwise, why take a break? Why bring in a second
detective? After all, in the first interrogation Martinez had confessed to
shooting the victim and leaving her for dead. And, why direct the second
detective to begin his questioning with the Miranda warnings? The answers
are obvious. Although the sergeant did not share with the second detective
what had happened in the first interrogation, the sergeant knew what had
happened. The sergeant supplied the continuity between the first and the
second interrogation.

¶39 The objective factors do not, thus, favor admissibility of
Martinez’s post-Miranda statements to the police. And, neither does the
subjective evidence presented by the State at the suppression hearing.

¶40 As the majority correctly notes, the record does not contain
direct evidence that the officers had adopted a predetermined plan—before
the first interview—to conduct an unconstitutional two-step interrogation.
See supra note 9 and ¶ 26. But, seldom will police admit to engaging in an
unconstitutional two-step interrogation.

Once a law enforcement officer has detained a
suspect and subjects him to interrogation—as was
the case in Seibert and is the case here—there is
rarely, if ever, a legitimate reason to delay
giving a Miranda warning until after the suspect
has confessed. Instead, the most plausible
reason for the delay is an illegitimate one, which
is the interrogator’s desire to weaken the
warning’s effectiveness.

United States v. Williams, 435 F.3d 1148, 1159 (9th Cir. 2006) (footnote
omitted). That is the case here.

12The majority suggests the involvement of the “on-call”
county attorney demonstrates the police officers had not deliberately
planned to undermine Martinez’s Miranda rights through an
unconstitutional two-step interrogation because they contacted him only
after the first interview when they were faced with unanticipated
circumstances. See supra note 9. The sergeant contacted the “on-call”
attorney, however, before anyone interviewed Martinez, and consulted
with the “on-call” attorney during the first interrogation.

17
 STATE v. MARTINEZ
Norris, J., Concurring in Part; Dissenting in Part

¶41 First, the Miranda violation was not a “rookie mistake.” The
police interrogated Martinez beginning on January 4, 2010, and through the
early hours of the next day. At that time, the sergeant had been with the
City of Tempe for 24 years, and the first detective had been with the police
department for 20 years. They were experienced officers and Miranda has
been on the proverbial books since 1966.

¶42 Second, the reason given by the sergeant at the suppression
hearing as to why the police had not warned Martinez of his Miranda rights
is simply not credible, especially in light of his experience. At the
suppression hearing, the sergeant suggested that the reason why police had
not warned Martinez of his Miranda rights was because they initially had
lacked sufficient information to arrest him. Miranda warnings, however,
are not required only when police have probable cause to arrest. Probable
cause to arrest is a relevant circumstance, but it is not dispositive, as the
sergeant seemed to think. State v. Dickey, 125 Ariz. 163, 168, 608 P.2d 302,
307 (1980). Instead, Miranda warnings are required whenever police subject
a person to a custodial interrogation. Id.; see also State v. Carlson, 228 Ariz.
343, 345, ¶ 7, 266 P.3d 369, 371 (App. 2011) (“[L]aw enforcement officers
must affirmatively discharge their duties under Miranda whenever
conducting a custodial interrogation.”).

¶43 Third, even taking the sergeant’s explanation at face value,
the first detective’s interrogation of Martinez became custodial when
Martinez began to incriminate himself (“I’m telling you it was an
accident.”). Although at the suppression hearing the sergeant and first
detective testified Martinez was still free to leave at the end of the first
interrogation, their testimony is also not credible given Martinez’s
admission in the first interrogation that he had shot the victim and left her
for dead. The first interrogation was a custodial interrogation and the
police were obligated to advise Martinez of his Miranda rights, yet they
failed to do so. Their explanations for not doing so are not credible in light
of the circumstances.

¶44 The superior court found “no evidence to suggest that [the
two detectives], or any other member of the Tempe Police Department,
deliberately planned to undermine Miranda so that a ‘two-step’
interrogation technique could be implemented.” Based on the objective
evidence and the less-than-credible explanations offered by the police for
the Miranda violation that occurred here, I disagree. I respectfully dissent
from the majority’s affirmance of the superior court’s finding the police
officers did not deliberately use a “two-step interrogation technique in an

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 STATE v. MARTINEZ
Norris, J., Concurring in Part; Dissenting in Part

effort to undermine Miranda.” See supra ¶ 26. The superior court should
have suppressed Martinez’s post-Miranda statements. I would, therefore,
reverse Martinez’s convictions and remand for a new trial.

:gsh

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