NOTICE: NOT FOR PUBLICATION.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

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
STATE v. MARTINEZ

Decision of the Court

2

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).
STATE v. MARTINEZ

Decision of the Court

3

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 
STATE v. MARTINEZ

Decision of the Court

4

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.
STATE v. MARTINEZ

Decision of the Court

5

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.
STATE v. MARTINEZ

Decision of the Court

6

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.
STATE v. MARTINEZ

Decision of the Court

7

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).
STATE v. MARTINEZ

Decision of the Court

8

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 unMirandized 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).
STATE v. MARTINEZ

Decision of the Court

9

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 twostep 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 prewarning 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.”).
STATE v. MARTINEZ

Decision of the Court

10

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 
STATE v. MARTINEZ

Decision of the Court

11

¶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.
STATE v. MARTINEZ

Decision of the Court

12

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 preMiranda 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.
STATE v. MARTINEZ

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

13

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. 
STATE v. MARTINEZ

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

14

¶ 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.
STATE v. MARTINEZ

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

15

¶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 
STATE v. MARTINEZ

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

16

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 “oncall” 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.”
STATE v. MARTINEZ

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

17

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.
STATE v. MARTINEZ

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

18

¶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 
STATE v. MARTINEZ

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

19

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.