### NOTICE: SLIP OPINION (not the court’s final written decision) The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinionsthat areoriginally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent courtorders. For example,a court may issue an order makingsubstantive changesto a slip opinionor publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (forstyle, grammar,citation,format, punctuation, etc.)are made before the opinions that have precedential value are published in the official reports of court decisions:the Washington Reports 2dand the Washington Appellate Reports. An opinion in theofficial reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of thecourt’sopinion is found in the advance sheets and the bound volumes of theofficial reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports
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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, 

### ) 

## OCT 22 2015 ) Filed Petitioner. ) ) WIGGINS, J.-We must determine whether a deputy sheriff inadequately advised the defendantofhis rights under Miranda 1when he initiallytold the defendant that a lawyerwould be appointed for him priorto questioning if he could notafford one butalso said that no lawyerwould be appointed for him unless hewas arrested,jailed, and taken to court. The deputy did not clarify that the defendantwas not obligated to respond to questions until he had the opportunityto conferwith 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 ofthe 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. 2An anonymous tipster called 911 shortly thereafter and told police that he had overheard Mayer bragging about robbing
a restaurant. The caller provided a description ofMayer'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 DeputyTom Dennison ofthe Clark County Sheriff's Office questioned Mayer in
an interview room atthe 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 forthe stop. The Court ofAppeals held that reasonable suspicion supported the stop, and we denied review on that issue. The parties' briefing does not discussthe reason that Mayerwas 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. 

### 2State 

### v. Mayer (Nicholas), No. 90846-0 rights and agreed to the recording. Once recording began, Dennison again advised Mayer of his Miranda rights: You havethe rightto 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 ofthese rights as I've explained them to you? MR. MAYER: Yes. Um, If Iwanted 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, ifyou wanted an attorney and couldn't afford one, the Court would be willing to appoint you one. Do you want me to go overthat with you again? MR. MAYER: Yeah, but howwould 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 ajudgeand then he would askyou whatever at that point, if you were being charged, you would [sic] afforded an attorney ifyou couldn't hi -- you know, ifyou 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. Afterthis exchange, Mayerwaived his Miranda rights, agreed to speakwith Dennison regarding the robbery, and made incriminating statements. Mayer admitted, among otherthings, that on the day ofthe robbery he metwith his sister Emily, who drovethe getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant;



### 3State 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 ofthe 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 interviewwith Dennison, butthe 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'sfriend 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 BobbieWoodworth; and Matthew Scott, the tipsterwho alerted the police to Mayer's whereabouts. Ortiz and Woodworth described the robbery, both testifying that two masked gunmen entered KC Teriyaki, pushed one ofthe employees inside, pointed a gun at the employee, and then fled. Ortiz testified that one ofthe 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.
4State 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 Taylorto a gas station nearthe restaurant and picked them up when they called shortly afterwards. Mayer and Taylor then sat in the backseat, counting the moneytaken during the robbery. Taylortestified thatthe 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 Mayertold 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 ofthe robbery and told herthat 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 orTeriyaki place." He then showed hercash 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 ofcash" shortly afterthe 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.
5State v. Mayer (Nicholas), No. 90846-0 The jury ultimately convicted Mayer on all 10 pending counts. The trial court sentenced Mayerto 306 months of imprisonment. The Court ofAppeals 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 offact and conclusions of law in its order denying Mayer's motion to suppress. We review the trial court's findings offact for substantial evidence. State v. Garvin, 166Wn.2d 242, 249, 207 P.3d 1266 (2009). Thetrial 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 ofCross, 180Wn.2d 664, 688, 327 P.3d 660 (2014) (citing State v. Guloy, 104Wn.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 ofAppeals' holding that Mayer had waived review oftwo 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
6State 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 ofthe 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 ofthe initialwarnings and likely confused Mayer regarding the timing ofwhen his right to the presence ofappointed 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 statementsthat Mayer made during the interviewthat 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 ifhe 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. 7State 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 ofa 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 waiveris made voluntarily, knowingly andintelligently. If, however, he indicates in any manner and at any stage ofthe 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 defendantwho, 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

8State v. Mayer (Nicholas), No. 90846-0 (1965), overruled on othergrounds 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 ofsuch 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 priorto 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, awaiver must be "madewith afull awareness of both the nature ofthe right being abandoned and the consequences of the decision to abandon it." Moran, 475
9State 

### v: Mayer (Nicholas), No. 90846-0 U.S. at 421. To satisfy its burden ofshowing a valid waiver, the government need not demonstrate that the Miranda warnings given were a word-for-word copy of the languagethatthe 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 linkthe right to appointed counsel to future events thatwould occur, if ever, only afterthe interrogation: Other courts considering the precise question presented by this case-whethera criminal defendantwas adequately informed ofhis right to the presence of appointed counsel prior to and during interrogationhave not required a verbatim recital ofthe words ofthe 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 ofthe 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 ofcounsel'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 UnitedStates

## v. McCarty, 835 F. Supp. 2d 938, 959 (D. Haw. 2011) (distinguishing

10State v. Mayer (Nicholas), No. 90846-0 Garcia because the detective who provided arguably contradictory warnings went on to clarify "that if Defendantwanted counsel, [the detective] would not question him"). Ultimately, the adequacy ofthe warnings and the validity ofa 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. at361 ). B. Mayer was given conflicting andconfusing explanations ofhis 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 ifyou wish." At this point, Dennison's questioning of Mayerwas 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 "ifyou were charged with a crime and arrested[ and] ifyou 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 atthis point

.... So, ifyou were, then you wouldbe taken tojail and then

11State v. Mayer (Nicholas), No. 90846-0 you'd go before ajudge and

...you would[be] afforded an attorney
... ifyou 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, afterthe impending interrogation rather than before. Thus, Dennison's responses to Mayer's questions aboutthe appointment process contradicted his earlier statement, as part ofthe 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 ofcounsel would not necessarily run afoul of Miranda ifwe were to read them in isolation. As a practical matter, Dennison may well have been accurately describing the appointment process in Clark Countywhen he told Mayerthat hewould not be ableto 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 Mayerthat 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
12State 

### 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 counselunless several contingentfuture events occurred. These laterstatements 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 contradictorystatements rendered the Miranda warnings unclear "[D]ifferent and conflicting sets ofwarnings" 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 ofthe 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 ofthis, the apparentcontradiction in Dennison's instructions rendered the explanation of Mayer's Miranda rights unclear. Courts have recognized a number ofcircumstances underwhich the police can impermissibly underminethe meaning or significance ofthe 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 ofwarnings" also renders a
13State v. Mayer (Nicholas), No. 90846-0 suspect's Miranda waiver invalid if, as a result of the conflicting instructions, the meaning ofthe 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 ofthe 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 ofthe following written advice of rights form: "Beforewe ask you anyquestions, 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 lawyerfor advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice andpresence ofa lawyereven if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, ifyou wish, ifand when you go to court. Ifyou wish to answer questions nowwithout a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering atanytime untilyou'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).

14State v. Mayer (Nicholas), No. 90846-0 Unlike the advice-of-rights form in Duckworth, Dennison'swarnings 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 havethe right to stop answering at any time until you'vetalked to a lawyer."' 

### /d. at 198. The Supreme Court specifically quoted this portion ofthe 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 

### 15State v. 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 otherthings: The officers [in Duckworth] did not deviate from the printed form with inaccurate and garbled elaborations. There was no downplaying of the significance ofthe 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

16State 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'sjudgment and sentence includes assessmentsfor court-appointed attorney and defense expert fees, indicating that he ultimately was represented by court-appointed counsel at trial. 17State 

### 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 Mayercould 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 Mayerthat 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 ofcounsel by remaining silent until he could speakto 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 Nextwe must determinewhetherthe error in admitting Mayer's confession was harmless. Where an error is constitutional in nature, we consider an error harmless only ifthe untainted evidence is so overwhelming that it necessarily leadsto the same outcome. In re Pers. Restraint ofCross, 180 Wn.2d at 688 (citing Guloy, 104 Wn.2d at 426). The key issue at trial was whether Mayerwas one ofthe two masked gunmen who carried out the robbery. Mayer does not dispute that a robbery meeting all the elements offirst degree robbery7 occurred at KC Teriyaki on the date alleged in the

7 The elements offirst degree robbery are (1) an unlawful and (2) intentional taking of personal property from the person or in the presence of another (3) againstthe person's will (4) by the use
18State 

### 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 ofthe robbers. Mayer's two accomplices testified as to Mayer's participation in the planning and execution ofthe robbery. The key aspects oftheir testimony were corroborated by the testimony of other witnesses. Those other witnesses also provided additional, independent, and compelling evidence of Mayer's guilt. Emilytestified regarding the driveto and getawayfrom the robbery, and Taylor's testimony established the key details of Mayer's participation in the robbery itself. Mayer argues that Emily and Taylorwere "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 ofthe 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 othertrial witnesses corroborated Taylor'stestimony: Ortiz testified that the robber who had demanded the money had been armed with a revolver, and Sheldon testified that Mayergave him a revolverwrapped in a bandanna around the time of the robbery. A blood sample from that bandanna contained DNA

orthreatened use ofimmediateforce, violence, orfear of injuryto obtain the property orovercome 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).

19State 

### v. 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 Mayerwith a "good wad of cash" shortly afterthe 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 ofphysical evidence obtained as a result ofaconfession taken in violation of Miranda unless the defendant was actually coerced. See State 

### v. Russell, 125Wn.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 ofthe circumstances. See State 

### v. Broadaway, 133Wn.2d 118, 132, 942 P.2d 363 (1997). Thus, the DNAevidence is nottainted, forthe purposes ofthe harmlessness analysis, by the deficient Miranda warnings that Mayer received. 20State 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.



### 21State v. Mayer (Nicholas), No. 90846-0

WE CONCUR.



### 22

# 0~/l 

# ibNAcU4f

### State v. Mayer (Nicholas K.)



### No. 90846-0 MADSEN, C.J. (concurring)-! agree withthe majority thatNicholas Mayer's conviction shouldbe affirmed. I agreethatthe record contains overwhelming evidence ofhis guilt. This holds true whether or not his statements to police are considered. Ipart companywiththe majority concerningthe efficacy oftheMiranda 1

### warnings given in this case. Inmyview, considering thetotality ofthe circumstances, Mayervalidly waivedhis Miranda 

### rights. ANALYSIS The rightto counsel under our state constitution andthe federal constitution is the
same. State v. Earls, 

### 116 Wn.2d 364, 378, 805 P.2d 211 (1991). TheFifth and FourteenthAmendments' prohibition against compelled self-incriminationrequires that custodial interrogationbe precededby adviceto the accused thathe has the right to remain silent andthe rightto the presence ofan attorney. Id. 

### (citingMiranda, 

### 384 U.S. at 479). The personbeing interrogatedmay validly waive the rightto counsel. 

### Id. (citing Miranda, 

### 384 U.S. at475); U.S. CONST. 

### amends. V, XIV. Ifsuch questioning takes placewithout an attorney present, the State has the heavyburden ofestablishingthe

1Miranda 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 waiverofhis privilege against self-incrimination and his rightto retained or appointed counsel. 

### !d. at 378-79 (citing

### Miranda, 384 U.S. at475). The State'sburden is metif

### itcanprovethe voluntariness ofthe statementby apreponderance ofthe evidence. 

### ld. at 379 (citing

### Lego v. Twomey, 404 U.S. 477, 486-87, 92 S. Ct. 619, 30 L. 

### Ed. 2d618 (1972)). "Tobevalid, the waivermustbe avoluntary, knowing, and intelligentrelinquishment ofa knownright." 

### ld. (citing

### Edwards v. Arizona, 451 U.S. 477,482, 101 S. Ct. 1880, 68 L. 

### Ed. 2d 378 (1981)). "The determination ofwhetheror not avalid waiverwas made depends 'upontheparticular facts and circumstances surroundingthat case, includingthebackground, experience, and conductofthe accused."' I

### d. (internal quotation marks omitted) (quoting

### Edwards, 451 U.S. at482). Restated, we considerthe totality ofthe circumstances. "[T]he determination whether statements obtained during custodial interrogation are admissible againstthe accused is to be made upon an inquiry into the totality ofthe circumstances surroundingthe interrogation, to ascertain whetherthe accused in fact knowingly andvoluntarily decided to forgo his rights to remain silent andto have the assistance ofcounsel." 

### 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, andbackground; whetherhe or she has the capacityto understand any warnings given and his orherFifthAmendmentrights; andthe consequences ofwaiving these rights." 

### ld. at 103.

2No. 90846-0 

### (Madsen, C.J., concurring) Here, the majorityparses throughthe language ofthe warningthatMayerreceived andthe subsequent statementspolicemadeto Mayer in responsetohis questions. While the majority's consideration ofthe languageused is not improper, the majority ignores otherconsiderations thatplay a crucial role inproperly assessingMayer'swaiver, particularly his background and experience. As the Supreme Courthas explained, "Reviewing courts ...need notexamine

### Miranda warnings as ifconstruing awill or definingthe terms ofan easement. The inquiry is simply whetherthe warnings reasonably 'conve[y] to [a suspect] his rights as requiredby

### Miranda."' Duckworthv. 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)). Inmyview, as was the case in

### Duckworth, the warnings givento Mayer "touched all ofthe bases requiredby

### Miranda." !d. ThepolicereadMayerhis

### Miranda rights twice: once beforethe taped interview and again ontherecording ofthe interview after Mayerhad agreedto suchrecording. Eachtime, police informedMayerthathehadthe right to remain silent andthat anythinghe said couldbe used againsthim in court. 1 VerbatimReport ofProceedings (VRP) at 74, 79. Police further stated, "Youhavetheright

### atthis time to talkto a lawyer andhavehimpresent withyou whileyou arebeing questioned. Ifyou cannot affordto hire a lawyer, one willbe appointedtorepresentyou 

### before questioning if you wish. You can decide atany time to exercise these rights andnotanswer any questions ormake anystatements." !d. at 74-75, 79 (emphasis added).

3No. 90846-0 (Madsen, C.J., concurring)


### This case is controlledby

### Duckworth, where a comparable

### Miranda warningwas heldto be sufficient. 

### See Duckworth, 492 U.S. at 203. Here, afterthe first

### Miranda warning, Mayer affirmatively acknowledgedthathe understood '"each oftheserights."' 1VRP at 75. Afterthe second

### Miranda warning, which was readto him onthe recording, he again acknowledgedthathe understood "eachoftheserights" as described above. 

### !d. at79. Mayerthen inquiredhowhe could go about getting appointed counsel 

### "[i]fiwanted an attorney and I can'tafford one." 

### !d. (emphasis added). Policethen answered (somewhatinartfully) that ifhe were arrested, takentojail, and appearedbefore

ajudge, and ifhe werenot able to afford an attorney thejudgewould appointhim a lawyer. 

### See id. Mayer acknowledgedthathe understood. 

### !d. After addressingMayer's question abouttheprocess for acquiring court appointed counsel, police continuedthe interview. Police again askedMayer ifheunderstood his rights; he acknowledgedthathe did. 

### !d. at 80. Policethentwice askedMayer, "keepingyourrights in mind," ifMayer wantedto continuethe interview and discusstherobbery. 

### !d. He answered affirmatively. 

### !d. Overthe course ofthe following half-hourinterview, Mayer discussed his role inthe robbery. He neverindicatedthathe wantedto stop the interview, andhe

neverasked for an attorney during questioning. 

### !d. at 81-82. In

### Duckworth, the warning at issue described defendant'srightto counsel before police asked him'questions and informedhimthathe could stop answering questions at any time until he'talkedto a lawyer. 

### See 492 U.S. at 198, 205. Thewarning also included an advisementthat a lawyer "'willbe appointed for you, ifyou wish, ifand

4

### No. 90846-0 (Madsen, C.J., concurring)


### whenyou go to court.'" 

### Id. at 198

### (emphasis omitted). This language inthe

### Duckworth advisement anticipated and answeredthe questionthatMayer askedpolice athis interviewregarding theprocess for getting appointed counsel. 

### See id.; 1VRP at 79. The 

### Duckworth Court distinguished some language appearing in its earlier

### Prysockopinion, which suggestedthat 

### "Miranda warnings would notbe sufficient 'ifthe referenceto 

### the rightto appointed counsel was linked [to a] future pointintime 

### afterthepolice interrogation.'" 

### Duckworth, 492 U.S. at 204-05 (first emphasis added) (alteration in original) (quoting

### Prysock, 453 U.S. at 360). The

### Duckworth Court explainedthat "the vicereferredto in

### Pry sockwas that suchwarnings wouldnot apprise the accused ofhis rightto have an attorneypresentifhe choseto answer questions." 

### !d. The Courtheld thatthe 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 Courtreiteratedthat '"the "rigidity" of

### Miranda [does not] exten[d] to theprecise formulation ofthe warnings given a criminal defendant,' andthat 'notalismanic incantation [is] requiredto satisfy its strictures."' 

### !d. at202-03 (alterations in original) (quoting

### Prysock, 453 U.S. at 359). 

### Miranda requires "onlythatthe suspect beinformed
...thathehas therightto an attorney before and during questioning, and that an attorney wouldbe appointed for him ifhe couldnot afford one." 

### !d. at 204. Accordingly, 

### Miranda requires that "police not question a suspect 

### unless he waiveshis rightto counsel." 

### !d. (emphasis added). Both in

### Duckworth and inthepresent case, the defendant did so. 

### !d.

5No. 90846-0 (Madsen, C.J., concurring) 

### Further, the record ofthe suppressionhearing indicates thatMayerhad a substantial criminal historywith multiple arrests and convictions goingbackto 2003. On cross-examination, he admittedthathe hadbeen arrested multipletimes in 2003, 2006, 2007, 2008, and 2011. See 

### 1VRP at 155-57. Mayer admitted that "[a]s far as [he could] remember," eachtime he hadbeen arrestedhe hadbeenreadhis Miranda

### rights; thathe hadbeen advised ofhis Miranda 

### rights "atleastnine times"priorto receiving the warnings at issue here; and thathe was "veryfamiliar withMiranda 

### warnings." !d. 

### at 157. Consideringthe totality ofthe circumstances, includingMayer's substantial experience, background, and familiarity withMiranda 

### warnings, it is simply implausible thathe was confusedby the rights advisement givenhere orthathe was not clear about his rightto an attorney during questioning. In my view, there was noMiranda 

### violation here. Finally, as we noted inEarls, 

### "[Defendant] was aware ofhis rights andthe State's intentionto use his statements againsthim. Furthermore, his decisionnotto invokethose rights was not induced by threat orpromise. Thus, his waiverwas valid as amatter of law." Earls, 

### 116 Wn.2d at 380 (citingMoran v. Burbine, 

### 475 U.S. 412, 422-23, 106 S. Ct. 1135, 89 L. 

### Ed. 2d 410 (1986)). The same is true here. Forthereasons discussed, Mayer's interview statements to police wereproperly admitted attrial. I would affirm his conviction and concur inthe result on this basis.

6No. 90846-0 (Madsen, C.J., concurring)

7State v. Mayer, No. 90846-0 (Gonzalez, J., concurring inresult)



### No. 90846-0
GONZALEZ,

### J. (concurring inresult)-! concurwiththe majority inresult. I write separatelybecauseI would affirm without addressing the adequacy ofthe Miranda1

### warning onthebasis that-asthe majority ultimately concludes-anyerror was harmless in light ofthe overwhelminguntainted evidence. SeeIn rePers. Restraintof Cross, 180 Wn.2d 664,688, 327 P.3d 660 (2014); State v. Guloy, 104 Wn.2d412, 426, 705 P.2d 1182 (1985). Consequently, we neednotreachthe constitutional issue. The evidence included ample accomplicetestimony, corroboratingtestimony from otherwitnesses, and DNA (deoxyribonucleic acid) evidence linking Mayerto the crime. Irespectfully concurinresult.

1Miranda v. Arizona, 384U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 1State v. Mayer, No. 90846-0 (Gonzalez, J., concurring)

2