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FILE' 

IN CLERKI O!IPICI ' 

IUPREJAE COURr,ITA'I'I Of Will ..... 

. llo\~ 2015 t 

'f.lt., ;tJZ 

This opinion was flied ~ record r . _.., 

-~ &upreme Court Clel1< 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, ) 

) 

Respondent, ) No. 90846-0 

) 

v. ) En Bane 

) 

NICHOLAS KEITH MAYER, ) OCT 2 2 2015 ) Filed 

Petitioner. ) 

) 

WIGGINS, J.-We must determine whether a deputy sheriff inadequately 

advised the defendant of his rights under Miranda1 when he initially told the defendant 

that a lawyer would be appointed for him prior to questioning if he could not afford one 

but also said that no lawyer would be appointed for him unless he was arrested, jailed, 

and taken to court. The deputy did not clarify that the defendant was not obligated to 

respond to questions until he had the opportunity to confer with a lawyer. We hold that 

although this Miranda advisement was contradictory and confusing and thus violated 

the defendant's Miranda rights, the error was harmless in light of the overwhelming 

untainted evidence of Nicholas Mayer's guilt. Accordingly, we affirm the Court of 

Appeals and sustain the defendant's conviction. 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

 	 
	 
   
		

		

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

FACTS 

One evening, two hooded gunmen robbed KC Teriyaki, a casual restaurant in 

Salmon Creek, while the employees were closing the restaurant for the day. The 

masked gunmen pushed one of the employees inside the restaurant; pointed a gun 

at the employee; grabbed a bag from inside; and then fled with the bag, which 

contained cash from the day's sales. Police responded to the scene and interviewed 

the employees as well as the restaurant's owner. 

The timing and method of the robbery led police to suspect that someone with 

inside knowledge was involved in the planning of the robbery. The owner identified 

Emily Mayer as a disgruntled ex-employee, and Emily and her brother-Mayer, the 

defendant in the instant case-became suspects. 2 An anonymous tipster called 911 

shortly thereafter and told police that he had overheard Mayer bragging about robbing 

a restaurant. The caller provided a description of Mayer's vehicle. Police then stopped 

the vehicle, detained Mayer and the vehicle's other occupants, and transported them 

to the police station for questioning regarding the robbery. 3 

Deputy Tom Dennison of the Clark County Sheriff's Office questioned Mayer in 

an interview room at the police station. Dennison began by reading Mayer his Miranda 

rights and asking if he could record the interview. Mayer initially waived his Miranda 

2 We refer to defendant Mayer's sister Emily as "Emily" to avoid confusion. No disrespect is 

intended. 

3 Suspicion regarding Mayer's involvement in the robbery, stemming largely from the tip provided 

by the anonymous informant, appears to have been the reason for the stop. The Court of Appeals 

held that reasonable suspicion supported the stop, and we denied review on that issue. The 

parties' briefing does not discuss the reason that Mayer was then transported to the police station, 

and it does not appear Mayer has ever raised that issue on appeal. Thus, the issue of whether 

probable cause existed to take Mayer into custody is not before us. 

2 

 	 
	 
   
		

		

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

rights and agreed to the recording. Once recording began, Dennison again advised 

Mayer of his Miranda rights: 

You have the right to remain silent. Anything you say can be used against 

you in a court of law. You have the right at this time to talk to a lawyer 

and have him present with you while you are being questioned. If you 

cannot afford to hire a lawyer, one will be appointed to represent you 

before questioning if you wish. You can decide at any time to exercise 

these rights and not answer any questions or make any statements. 

This time, however, Mayer asked Dennison to clarify how he could obtain appointed 

counsel: 

DEPUTY DENNISON: ... Do you understand each of these rights as 

I've explained them to you? 

MR. MAYER: Yes. Um, If I wanted an attorney and I can't afford one, 

what -- what would -- ? 

DEPUTY DENNISON: If you wanted an attorney-- you know, if you 

were charged with a crime and arrested, if you wanted an attorney and 

couldn't afford one, the Court would be willing to appoint you one. Do 

you want me to go over that with you again? 

MR. MAYER: Yeah, but how would that work? Will you be-- how it--

how I--

DEPUTY DENNISON: You're not under arrest at this point, right? 

MR. MAYER: Oh, okay. Okay. 

DEPUTY DENNISON: So, if you were, then you would be taken to 

jail and then you'd go before a judge and then he would ask you whatever 

at that point, if you were being charged, you would [sic] afforded an 

attorney if you couldn't hi -- you know, if you weren't able to afford one. 

MR. MAYER: All right. I understand. 

DEPUTY DENNISON: Understand? 

MR. MAYER: Yeah. 

DEPUTY DENNISON: Okay. So you do understand your rights? 

MR. MAYER: Yes. 

After this exchange, Mayer waived his Miranda rights, agreed to speak with Dennison 

regarding the robbery, and made incriminating statements. Mayer admitted, among 

other things, that on the day of the robbery he met with his sister Emily, who drove the 

getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant; 

3 

 	 
	 
   
		

		

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

Mayer entered the restaurant with Taylor; Taylor was armed with a handgun, and 

Mayer had a knife; Mayer told the employees "give me the money"; Taylor grabbed 

the deposit bag containing money; Mayer ran from the restaurant with Taylor; they 

were picked up by Emily; and Mayer split the proceeds of the robbery with Taylor. 

Mayer was arrested and charged with 11 criminal counts (later reduced to 1 0 

counts), including robbery in the first degree. Mayer moved to suppress the 

incriminating statements he made during his interview with Dennison, but the superior 

court denied the motion after a hearing. 

During the five-day trial, the State introduced Mayer's confession and called 

several witnesses who testified regarding the events surrounding the robbery and 

Mayer's involvement in the robbery. Among the witnesses were Mayer's accomplice 

and sister Emily; his other accomplice, John Taylor; Mayer's girlfriend, Sarah Baker; 

Mayer's friend Brandon Sheldon, to whom Mayer entrusted a revolver around the time 

of the robbery; restaurant employee and robbery victim AI Juarismi Ortiz Garcia 

(Ortiz); eyewitness Bobbie Woodworth; and Matthew Scott, the tipster who alerted the 

police to Mayer's whereabouts. 

Ortiz and Woodworth described the robbery, both testifying that two masked 

gunmen entered KC Teriyaki, pushed one of the employees inside, pointed a gun at 

the employee, and then fled. Ortiz testified that one of the robbers carried a revolver 

and pointed it at Ortiz and demanded money. One of the two robbers then grabbed 

the money bag before fleeing. 

Because both robbers were masked, neither Ortiz nor Woodworth identified 

them, but several other witnesses implicated Mayer as one of the two robbers. 

4 

 	 
	 
   
		

		

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

Mayer's two accomplices, Emily and Taylor, testified at length regarding the planning 

and execution of the robbery, including the details of Mayer's involvement. Emily 

testified that she drove her brother and Taylor to a gas station near the restaurant and 

picked them up when they called shortly afterwards. Mayer and Taylor then sat in the 

backseat, counting the money taken during the robbery. Taylor testified that the Mayer 

siblings had approached him with a plan to rob KC Teriyaki; that he agreed to help; 

that he and the defendant went to the restaurant armed, respectively, with a "Glock" 

and a revolver; and that both he and Mayer wore bandannas over their faces. Taylor 

further testified that after they entered the restaurant, Mayer pointed his gun at an 

employee and demanded the money; that Mayer told the employee to '"[g]ive me the 

money"'; that he (Taylor) grabbed the money off a stool; and that after they fled the 

restaurant, Mayer called his sister, who picked them up and drove them away. 

Mayer's girlfriend, Baker, testified that Mayer had called her on the date of the 

robbery and told her that he had "robbed someplace" and "was running from the cops." 

Baker further testified that when she met Mayer later that night, he told her that the 

place he had robbed was a "Chinese or Teriyaki place." He then showed her cash and 

bragged that he had obtained it from the robbery. Scott, Mayer's friend who provided 

the anonymous tip that led to Mayer's arrest, also testified that he saw Mayer with a 

"good wad of cash" shortly after the robbery. 

Another friend of Mayer's, Sheldon, testified that Mayer gave him a revolver 

wrapped in a bandanna (Sheldon called it a "handkerchief") around the time of the 

robbery. A sample taken from blood found on the bandanna matched a DNA 

(deoxyribonucleic acid) sample taken from Mayer. 

5 

 	 
	 
   
		

		

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

The jury ultimately convicted Mayer on all 10 pending counts. The trial court 

sentenced Mayer to 306 months of imprisonment. The Court of Appeals unanimously 

affirmed the conviction and sentence in an unpublished opinion. State v. Mayer, noted 

at 183 Wn. App. 1016, 2014 WL 4363178. Mayer petitioned for discretionary review 

on three separate grounds; we granted review on his Miranda challenge only. 4 

STANDARD OF REVIEW 

The trial court issued findings of fact and conclusions of law in its order denying 

Mayer's motion to suppress. We review the trial court's findings of fact for substantial 

evidence. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). The trial court's 

legal conclusions regarding the adequacy of the Miranda warnings are issues of law 

that we review de novo. See State v. Daniels, 160 Wn.2d 256, 261, 156 P.3d 905 

(2007); State v. Johnson, 94 Wn. App. 882, 897, 974 P.2d 855 (1999). The test for 

whether a constitutional error is harmless is whether the untainted evidence of the 

defendant's guilt is so overwhelming that it necessarily leads to the same outcome. In 

re Pers. Restraint of Cross, 180 Wn.2d 664, 688, 327 P.3d 660 (2014) (citing State v. 

Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)). 

ANALYSIS 

I. Miranda violation 

The first question presented in this case is whether Dennison's explanation of 

Mayer's rights satisfies Miranda's requirements. 5 Under Miranda and its progeny, the 

4 The other issues that Mayer raised in his petition for discretionary review were a challenge to 

the Court of Appeals' holding that Mayer had waived review of two issues that Mayer listed in his 

statement of additional grounds and a claim that the stop of Mayer's vehicle was pretextual. 

5 Mayer also claims that his questions about how he could obtain appointed counsel constituted 

6 

 	 
	 
   
		

		

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

State bears the burden of demonstrating that a suspect knowingly and intelligently 

waived his Miranda rights before it may introduce incriminating statements made 

during the course of custodial interrogation. Miranda, 384 U.S. at 475. "Only if the 

'totality of the circumstances surrounding the interrogation' reveal both an uncoerced 

choice and the requisite level of comprehension may a court properly conclude that 

the Miranda rights have been waived." Moran v. Burbine, 475 U.S. 412, 421, 106 S. 

Ct. 1135, 89 L. Ed. 2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 

S. Ct. 2560, 61 L. Ed. 2d 197 (1979)). 

Here, the State has not met its burden of showing that Mayer had the requisite 

level of comprehension regarding his rights at the time he waived them. While 

Dennison began the interview by providing an accurate and adequate explanation of 

Mayer's rights under the Fifth Amendment to the federal constitution, Dennison's 

responses to Mayer's questions regarding the appointment of counsel obscured the 

meaning of the initial warnings and likely confused Mayer regarding the timing of when 

his right to the presence of appointed counsel-and perhaps his other Miranda rights 

as well-would attach. Dennison did not cure· the contradiction by clarifying how 

Mayer might exercise his Miranda rights during the interrogation that was about to 

an unequivocal invocation of his right to counsel. We disagree. The police must stop an 

interrogation if a suspect makes "an unambiguous or unequivocal request for counsel." Davis v. 

United States, 512 U.S. 452, 461-62, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). But Mayer's 

briefing does not point to any specific statements that Mayer made during the interview that might 

constitute a clear invocation of the right to counsel. The transcript of the interview shows that 

Mayer asked how he might obtain an attorney if he wanted one. Questions regarding the process 

for obtaining counsel are not tantamount to an actual, unequivocal request for counsel. We 

therefore reject Mayer's argument that he invoked his right to counsel. 

7 

 	 
	 
   
		

		

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

commence. Consequently, the State has failed to establish that Mayer's waiver of his 

Miranda rights was knowing and intelligent. 

A. The prerequisites of a valid Miranda waiver 

The Supreme Court summarizes Miranda's central holdings at the beginning of 

the Miranda opinion itself. In pertinent part, the summary states: 

[T]he prosecution may not use statements, whether exculpatory or 

inculpatory, stemming from custodial interrogation of the defendant 

unless it demonstrates the use of procedural safeguards effective to 

secure the privilege against self-incrimination .... [U]nless other fully 

effective means are devised to inform accused persons of their right of 

silence and to assure a continuous opportunity to exercise it, the 

following measures are required. Prior to any questioning, the person 

must be warned that he has a right to remain silent, that any statement 

he does make may be used as evidence against him, and that he has a 

right to the presence of an attorney, either retained or appointed. The 

defendant may waive effectuation of these rights, provided the waiver is 

made voluntarily, knowingly and intelligently. If, however, he indicates in 

any manner and at any stage of the process that he wishes to consult 

with an attorney before speaking there can be no questioning .... 

Miranda, 384 U.S. at 444-45 (emphasis added). As the above-emphasized text 

indicates, the Supreme Court stressed that the rights set forth in what became known 

as the "Miranda warnings" must be explained fully prior to questioning. See id. This 

explanation of rights must convey to the suspect that his right to silence-and his 

opportunity to exercise that right-applies continuously throughout the interrogation 

process. See id. In creating these protections, the Court stated that '"[w]e cannot 

penalize a defendant who, not understanding his constitutional rights, does not make 

the formal request and by such failure demonstrates his helplessness."' /d. at 471 

(quoting People v. Dorado, 62 Cal. 2d 338, 351, 398 P.2d 361, 42 Cal. Rptr. 169 

8 

 	 
	 
   
		

		

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

(1965), overruled on other grounds by People v. Cahill, 5 Cal. 4th 478, 509-10, 853 

P.2d 1037, 20 Cal. Rptr. 2d 582 (1993)). 

The Miranda Court recognized one important qualification to the rights 

conveyed in the Miranda warnings-specifically, that there need not be a "'station 

house lawyer'" immediately available to talk to a suspect prior to any police 

interrogation. /d. at 474. But the Court stressed that the unavailability of such counsel 

only increases the responsibility of police to avoid impinging on the suspect's other 

Fifth Amendment rights: 

[l]f police propose to interrogate a person they must make known to him 

that he is entitled to a lawyer and that if he cannot afford one, a lawyer 

will be provided for him prior to any interrogation. If authorities conclude 

that they will not provide counsel during a reasonable period of time in 

which investigation in the field is carried out, they may refrain from doing 

so without violating the person's Fifth Amendment privilege so long as 

they do not question him during that time. 

/d. As this text suggests, the unavailability of appointed counsel does not negate the 

suspect's right to an appointed attorney and his right to speak to such an attorney 

prior to questioning. Rather, a suspect retains those rights and may give them effect 

by invoking his right to silence, thus precluding the police from questioning him unless 

and until an attorney can be present. See id. 

"If the interrogation continues without the presence of an attorney and a 

statement is taken, a heavy burden rests on the government to demonstrate that the 

defendant knowingly and intelligently waived his privilege against self-incrimination 

and his right to retained or appointed counsel." /d. at 475. To be knowing and 

intelligent, a waiver must be "made with a full awareness of both the nature of the right 

being abandoned and the consequences of the decision to abandon it." Moran, 475 

9 

 	 
	 
   
		

		

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

U.S. at 421. To satisfy its burden of showing a valid waiver, the government need not 

demonstrate that the Miranda warnings given were a word-for-word copy of the 

language that the Supreme Court provided in Miranda itself. See Duckworth v. Eagan, 

492 U.S. 195, 202, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989); California v. Prysock, 

453 U.S. 355, 359, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981 ). But "[t]he warnings 

required and the waiver necessary in accordance with [the Miranda opinion] are, in 

the absence of a fully effective equivalent, prerequisites to the admissibility of any 

statement made by a defendant." Miranda, 384 U.S. at 476 (emphasis added). 

As the Supreme Court has stated, courts have held that an effective Miranda 

equivalent cannot link the right to appointed counsel to future events that would occur, 

if ever, only after the interrogation: 

Other courts considering the precise question presented by this 

case-whether a criminal defendant was adequately informed of his right 

to the presence of appointed counsel prior to and during interrogationhave not required a verbatim recital of the words of the Miranda opinion 

but rather have examined the warnings given to determine if the 

reference to the right to appointed counsel was linked with some future 

point in time after the police interrogation. 

Prysock, 453 U.S. at 360. In one of the cited cases, the Ninth Circuit held that federal 

agents had provided inadequate Miranda warnings because they advised the suspect 

"[a]t one point ... that she had a right to the presence of counsel'when she answered 

any questions"' but told her at another point that "she could 'have an attorney 

appointed to represent you when you first appear before the U. S. Commissioner or 

the Court."' United States v. Garcia, 431 F.2d 134, 134 (9th Cir. 1970); compare id., 

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

10 

 	 
	 
   
		

		

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

Garcia because the detective who provided arguably contradictory warnings went on 

to clarify "that if Defendant wanted counsel, [the detective] would not question him"). 

Ultimately, the adequacy of the warnings and the validity of a purported waiver 

turn on the particular facts and circumstances surrounding the case. State v. Earls, 

116 Wn.2d 364, 378-79, 805 P.2d 211 (1991) (citing Edwards v. Arizona, 451 U.S. 

477, 482, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981 )). The dispositive inquiry is "whether 

the warnings reasonably 'conve[y] to [a suspect] his rights as required by Miranda."' 

Duckworth, 492 U.S. at 203 (alterations in original) (quoting Prysock, 453 U.S. at 361 ). 

B. Mayer was given conflicting and confusing explanations of his Miranda rights 

While Dennison initially provided proper Miranda warnings, his responses to 

Mayer's questions regarding the appointment of counsel were contradictory and 

confusing. In his initial recitation of the Miranda warnings, Dennison told Mayer, "If 

you cannot afford to hire a lawyer, one will be appointed to represent you before 

questioning if you wish." At this point, Dennison's questioning of Mayer was obviously 

about to commence. According to the initial Miranda warnings, Mayer thus should 

have had immediate access to appointed counsel. 

But moments later, after Mayer asked how he could obtain an appointed 

attorney, Dennison told Mayer that counsel would be appointed only "if you were 

charged with a crime and arrested[ and] if you wanted an attorney and couldn't afford 

one." (Emphasis added.) When Mayer then asked for further clarification on how the 

appointment process would work, Dennison responded by telling Mayer, "You're not 

under arrest at this point .... So, if you were, then you would be taken to jail and then 

11 

 	 
	 
   
		

		

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

you'd go before a judge and ... you would [be] afforded an attorney ... if you weren't 

able to afford one." (Emphasis added.) 

These statements by Dennison conditioned Mayer's right to appointed counsel 

on the occurrence of several future events: being arrested, which Dennison stressed 

had not yet occurred; being charged with a crime; being taken to jail; and being taken 

before a judge. Plainly, all of these events would occur, if at all, after the impending 

interrogation rather than before. Thus, Dennison's responses to Mayer's questions 

about the appointment process contradicted his earlier statement, as part of the initial 

Miranda recitation, that counsel would be appointed for him "before questioning." 

Had the explanation of Mayer's rights ended after Dennison's initial recitation, 

we could reject Mayer's Miranda challenge with no need for extended comment. 

Similarly, Dennison's later statements regarding the timing of appointment of counsel 

would not necessarily run afoul of Miranda if we were to read them in isolation. As a 

practical matter, Dennison may well have been accurately describing the appointment 

process in Clark County when he told Mayer that he would not be able to have counsel 

appointed for him unless and until he was arrested, jailed, charged, and arraigned. 

Taken together, however, Dennison's description of the process for appointment of 

counsel appeared to contradict his initial Miranda warnings. 

The State points out that in his initial Miranda warnings, Dennison also told 

Mayer that he could "'decide at any time to exercise these rights and not answer any 

questions or make any statements,"' suggesting that this adequately conveyed to 

Mayer that his ability to exercise his rights was not time limited. But this argument 

ignores the fact that seconds after Dennison said that Mayer could exercise these 

12 

 	 
	 
   
		

		

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

rights "at any time," he stressed that Mayer was not yet under arrest and told Mayer 

that he could not exercise at least one of his rights-his right to appointed counselunless several contingent future events occurred. These later statements contradicted 

the "at any time" warning and suggested that at least some of Mayer's Miranda rights 

had not yet attached-and that they would not attach until he was, at the very least, 

arrested. The "at any time" statement thus did not immunize Dennison's warnings 

against the defects created by his later responses to Mayer's questions. 

C. The contradictory statements rendered the Miranda warnings unclear 

"[D]ifferent and conflicting sets of warnings" render a Miranda waiver invalid if, 

as a result of the conflicting instructions, the meaning of the warnings becomes 

unclear. United States v. San Juan-Cruz, 314 F.3d 384, 387-88 (9th Cir. 2002). For 

the reasons explained above, Dennison's instructions regarding the timing of the right 

to counsel conflicted with his initial recitation of Mayer's Miranda rights. Dennison did 

not offer curative clarifications comparable to those provided in Duckworth, 492 U.S. 

at 203. Because of this, the apparent contradiction in Dennison's instructions rendered 

the explanation of Mayer's Miranda rights unclear. 

Courts have recognized a number of circumstances under which the police can 

impermissibly undermine the meaning or significance of the Miranda warnings and fail 

to reasonably convey their meaning, thus negating the validity of a suspect's waiver 

of his Miranda rights. Courts have held confessions inadmissible, for instance, in 

cases where the police "downplay[] the relevance of the warnings[] and their 

application to the current questioning." Doody v. Schriro, 548 F.3d 847, 862-63 (9th 

Cir. 2008) (Doody 1). Giving "different and conflicting sets of warnings" also renders a 

13 

 	 
	 
   
		

		

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

suspect's Miranda waiver invalid if, as a result of the conflicting instructions, the 

meaning of the warnings becomes unclear. See San Juan-Cruz, 314 F.3d at 387-88; 

see also United States v. Connell, 869 F.2d 1349, 1352 (9th Cir. 1989) ("We reject as 

fatally flawed ... a version of the Miranda litany if the combination or wording of its 

.. warnings is in some way affirmatively misleading .... "). 

On the other hand, the police may expand on the Miranda warnings or clarify 

the rights they convey, including the right to appointed counsel and the time at which 

an indigent suspect can expect to have counsel appointed for him, so long as the 

explanation as a whole clearly informs the suspect of his rights. For example, in 

Duckworth, the primary case on which the State relies, the Supreme Court upheld the 

adequacy of the following written advice of rights form: 

"Before we ask you any questions, you must understand your rights. You 

have the right to remain silent. Anything you say can be used against 

you in court. You have a right to talk to a lawyer for advice before we ask 

you any questions, and to have him with you during questioning. You 

have this right to the advice and presence of a lawyer even if you cannot 

afford to hire one. We have no way of giving you a lawyer, but one will 

be appointed for you, if you wish, if and when you go to court. If you wish 

to answer questions now without a lawyer present, you have the right to 

stop answering questions at any time. You also have the right to stop 

answering at any time until you've talked to a lawyer." 

Duckworth, 492 U.S. at 198 (emphasis added) (emphasis omitted). The Supreme 

Court held that this warning "touched all the bases required by Miranda," specifically 

citing the above-emphasized portions of the advice-of-rights form. /d. at 203. The 

Court explicitly distinguished Duckworth from cases in which "'the reference to the 

right to appointed counsel was linked [to a] future point in time after the police 

interrogation."' /d. at 204 (alteration in original) (quoting Prysock, 453 U.S. at 360). 

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

Unlike the advice-of-rights form in Duckworth, Dennison's warnings conditioned 

the attachment of Mayer's right to appointed counsel on several future events and did 

not clarify how Mayer might protect his Fifth Amendment rights despite the 

unavailability of appointed counsel. The advice-of-rights form at issue in Duckworth 

explicitly told suspects how they can protect their Miranda rights despite the 

unavailability of appointed counsel: '"If you wish to answer questions now without a 

lawyer present, you have the right to stop answering questions at any time. You also 

have the right to stop answering at any time until you've talked to a lawyer."' /d. at 198. 

The Supreme Court specifically quoted this portion of the Duckworth advice-of-rights 

form in holding that the form adequately conveyed suspects' rights under Miranda. 

See id. at 203. 

Dennison could have cured any injury done to Mayer's Miranda rights if he had 

offered a comparable clarification after telling Mayer that appointed counsel was not 

yet available. But instead, Dennison simply told Mayer that he had no way of getting . 

an appointed attorney at that time and left it at that. Dennison's failure to clarify how 

Mayer might protect his Fifth Amendment rights despite his inability to obtain 

appointed counsel is fatal to the State's argument that Mayer knowingly and 

intelligently waived his Fifth Amendment rights under Miranda and its progeny. The 

right to speak to counsel prior to questioning and have counsel present during 

questioning is absolute. If, as a practical matter, no attorney is available to speak to 

an indigent suspect prior to questioning, the suspect may protect his right to have 

counsel present during questioning by remaining silent until such time that counsel 

can be provided for him. The advice-of-rights form in Duckworth explicitly informed 

15 

 	 
	 
   
		

		

State 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 other things: 

The officers [in Duckworth] did not deviate from the printed form with 

inaccurate and garbled elaborations. There was no downplaying of the 

significance of the warnings. Most importantly, there was no implication 

that the right to counsel was available only if the individual being 

questioned had committed a crime. 

Doody v. Ryan, 649 F.3d 986, 1004 (9th Cir. 2011) (Doody II). Similarly here, 

Dennison's explanations introduced a number of key elements that were not present 

in Duckworth. Dennison emphasized that Mayer was not under arrest, thus 

downplaying the significance of the warnings and the adversarial nature of the 

encounter. See Doody I, 548 F.3d at 862-63 (suspect's Miranda waiver invalid 

because officers undermined the suspect's awareness that he was faced with a phase 

of the adversary system and "downplayed the relevance of the warnings[] and their 

application to the current questioning"). Dennison further suggested that appointed 

counsel was available only to suspects who had been arrested, charged, jailed, and 

arraigned. Because he provided no clarification explaining how Mayer, who was 

16 

 	 
	 
   
		

		

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

indigent, 6 could protect his Fifth Amendment rights without appointed counsel, 

Dennison increased the already palpable sense of isolation that a suspect 

experiences during police interrogation. Duckworth sets forth the minimum standards 

that must be met for an effective Miranda warning. In this case, the explanation of 

Mayer's rights did not meet those standards. 

Of course, police officers may inform a suspect facing interrogation that 

appointed counsel is not immediately available. But if they tell a suspect that 

appointed counsel is not available until a future point in time, they must also clarify 

that this does not affect the suspect's right to have counsel present during 

interrogation and his right to remain silent unless and until a lawyer can be present. 

Without such a clarification, the suspect may perceive the officer's statement that 

appointed counsel is not yet available as contradicting the earlier Miranda warnings 

and as suggesting that his Miranda rights had not yet attached. Such a clarification 

was provided in Duckworth; it was not provided in Mayer's case. 

Instead, Dennison's explanation of Mayer's right to counsel places this case 

squarely in the category that Duckworth explicitly distinguished: cases where the 

police link the right to appointed counsel to a future point in time after the police 

interrogation. Duckworth, 492 U.S. at 204 (quoting Prysock, 453 U.S. at 360). By 

creating such a linkage, Dennison's explanation of Mayer's Fifth Amendment rights 

under Miranda became unclear at best and misleading at worst. 

6 In addition to Mayer's suggestion during the custodial interview that he could not afford an 

attorney, Mayer's judgment and sentence includes assessments for court-appointed attorney and 

defense expert fees, indicating that he ultimately was represented by court-appointed counsel at 

trial. 

17 

 	 
	 
   
		

		

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

D. Conclusion on Miranda challenge 

Dennison's linkage of Mayer's right to appointed counsel to conditional future 

events (arrest, jail, charge, and arraignment) contradicted his earlier statements that 

Mayer could have access to appointed counsel "before questioning" and that he could 

exercise his rights "at any time." Critically, and unlike in Duckworth, Dennison did not 

tell Mayer that despite the fact that no appointed attorney was immediately available, 

Mayer's other Miranda rights remained in full effect and he could protect his right to 

the presence of counsel by remaining silent until he could speak to an attorney. Under 

these circumstances, Dennison's explanation of Mayer's rights was deficient, and the 

State has failed to meet its burden of establishing that Mayer knowingly and 

intelligently waived his rights. Mayer's subsequent confession therefore should have 

been suppressed. 

II. Harmless error 

Next we must determine whether the error in admitting Mayer's confession was 

harmless. Where an error is constitutional in nature, we consider an error harmless 

only if the untainted evidence is so overwhelming that it necessarily leads to the same 

outcome. In re Pers. Restraint of Cross, 180 Wn.2d at 688 (citing Guloy, 104 Wn.2d 

at 426). 

The key issue at trial was whether Mayer was one of the two masked gunmen 

who carried out the robbery. Mayer does not dispute that a robbery meeting all the 

elements of first degree robbery7 occurred at KC Teriyaki on the date alleged in the 

7 The elements of first degree robbery are (1) an unlawful and (2) intentional taking of personal 

property from the person or in the presence of another (3) against the person's will (4) by the use 

18 

 	 
	 
   
		

		

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

information, leaving the robbers' identity as the decisive factual dispute. In this case, 

the State presented overwhelming untainted evidence at trial establishing that Mayer 

was one of the robbers. Mayer's two accomplices testified as to Mayer's participation 

in the planning and execution of the robbery. The key aspects of their testimony were 

corroborated by the testimony of other witnesses. Those other witnesses also 

provided additional, independent, and compelling evidence of Mayer's guilt. 

Emily testified regarding the drive to and getaway from the robbery, and Taylor's 

testimony established the key details of Mayer's participation in the robbery itself. 

Mayer argues that Emily and Taylor were "compromised witnesses who had motive to 

lie about the defendant's involvement in order to divert their own level of culpability." 

This argument might be persuasive if Mayer's accomplices were the prosecution's 

only witnesses. But they were not, and the testimony of the other witnesses 

corroborates the accomplices' testimony and clearly demonstrates Mayer's identity as 

one of the robbers. 

For example, Taylor testified that Mayer had been armed with a revolver during 

the robbery and that he pointed the revolver at the KC Teriyaki employee when he 

demanded the money. Two other trial witnesses corroborated Taylor's testimony: Ortiz 

testified that the robber who had demanded the money had been armed with a 

revolver, and Sheldon testified that Mayer gave him a revolver wrapped in a bandanna 

around the time of the robbery. A blood sample from that bandanna contained DNA 

or threatened use of immediate force, violence, or fear of injury to obtain the property or overcome 

resistance to the taking (5) while armed with a deadly weapon or what appears to be a deadly 

weapon (6) in the state of Washington. RCW 9A.56.190, .200; Clerk's Papers at 243 Uury 

instruction 12). 

19 

 	 
	 
   
		

		

State 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 Mayer with a "good wad of cash" shortly after the robbery. 

We view the testimony of each of these individual witnesses and the DNA 

evidence collectively, not in isolation. Taken together, the evidence of Mayer's guilt is 

so overwhelming that the jury necessarily would have reached the same conclusion 

even in the absence of Mayer's confession. The error in admitting Mayer's confession 

was harmless. 

8 The record suggests that the police learned that the gun might be with Sheldon as a result of 

Mayer's confession, but neither Miranda nor our state constitution's article I, section 9 require 

suppression of physical evidence obtained as a result of a confession taken in violation of Miranda 

unless the defendant was actually coerced. See State v. Russell, 125 Wn.2d 24, 56-62, 882 P.2d 

747 (1994). While Dennison's statements to Mayer were confusing and potentially misleading, 

they clearly do not rise to the level of actual coercion, which requires a showing that the 

defendant's will was overborne under the totality of the circumstances. See State v. Broadaway, 

133 Wn.2d 118, 132, 942 P.2d 363 (1997). Thus, the DNA evidence is not tainted, for the purposes 

of the harmlessness analysis, by the deficient Miranda warnings that Mayer received. 

20 

 	 
	 
   
		

		

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

CONCLUSION 

Mayer's confession should have been suppressed because the State has not 

established that Mayer's waiver of his Miranda rights was knowing, intelligent, and 

voluntary. But because any error in admitting the confession is harmless, we affirm 

Mayer's conviction. 

21 

 	 
	 
   
		

		

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

WE CONCUR. 

22 

0~/l 

ibNAcU4f 

 	 
	 
   
		

		

State v. Mayer (Nicholas K.) 

No. 90846-0 

MADSEN, C.J. (concurring)-! agree with the majority that Nicholas Mayer's 

conviction should be affirmed. I agree that the record contains overwhelming evidence 

of his guilt. This holds true whether or not his statements to police are considered. I part 

company with the majority concerning the efficacy of the Miranda 1 warnings given in 

this case. In my view, considering the totality of the circumstances, Mayer validly 

waived his Miranda rights. 

ANALYSIS 

The right to counsel under our state constitution and the federal constitution is the 

same. State v. Earls, 116 Wn.2d 364, 378, 805 P.2d 211 (1991). The Fifth and 

Fourteenth Amendments' prohibition against compelled self-incrimination requires that 

custodial interrogation be preceded by advice to the accused that he has the right to 

remain silent and the right to the presence of an attorney. Id. (citing Miranda, 384 U.S. at 

4 79). The person being interrogated may validly waive the right to counsel. I d. (citing 

Miranda, 384 U.S. at 475); U.S. CONST. amends. V, XIV. If such questioning takes 

place without an attorney present, the State has the heavy burden of establishing the 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

 	 
	 
   
		

		

No. 90846-0 

(Madsen, C .J., concurring) 

defendant's waiver of his privilege against self-incrimination and his right to retained or 

appointed counsel. !d. at 378-79 (citing Miranda, 384 U.S. at 475). The State's burden 

is met if it can prove the voluntariness of the statement by a preponderance of the 

evidence. ld. at 379 (citing Lego v. Twomey, 404 U.S. 477, 486-87, 92 S. Ct. 619, 30 L. 

Ed. 2d 618 (1972)). "To be valid, the waiver must be a voluntary, knowing, and 

intelligent relinquishment of a known right." ld. (citing Edwards v. Arizona, 451 U.S. 

477,482, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)). "The determination ofwhether or 

not a valid waiver was made depends 'upon the particular facts and circumstances 

surrounding that case, including the background, experience, and conduct of the 

accused."' I d. (internal quotation marks omitted) (quoting Edwards, 451 U.S. at 482). 

Restated, we consider the totality of the circumstances. 

"[T]he determination whether statements obtained during custodial 

interrogation are admissible against the accused is to be made upon an 

inquiry into the totality of the circumstances surrounding the interrogation, 

to ascertain whether the accused in fact knowingly and voluntarily decided 

to forgo his rights to remain silent and to have the assistance of counsel." 

State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008) (alteration in original) (quoting 

Fare v. Michael C., 442 U.S. 707, 724-25, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979)). 

Included in such "totality" assessment are the defendant's "age, experience, intelligence, 

education, and background; whether he or she has the capacity to understand any 

warnings given and his or her Fifth Amendment rights; and the consequences of waiving 

these rights." ld. at 103. 

2 

 	 
	 
   
		

		

No. 90846-0 

(Madsen, C.J., concurring) 

Here, the majority parses through the language of the warning that Mayer received 

and the subsequent statements police made to Mayer in response to his questions. While 

the majority's consideration of the language used is not improper, the majority ignores 

other considerations that play a crucial role in properly assessing Mayer's waiver, 

particularly his background and experience. As the Supreme Court has explained, 

"Reviewing courts ... need not examine Miranda warnings as if construing a will or 

defining the terms of an easement. The inquiry is simply whether the warnings 

reasonably 'conve[y] to [a suspect] his rights as required by Miranda."' Duckworth v. 

Eagan, 492 U.S.l95, 203, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989) (second and third 

alterations in original) (quoting California v. Prysock, 453 U.S. 355, 361, 101 S. Ct. 

2806, 69 L. Ed. 2d 696 (1981)). 

In my view, as was the case in Duckworth, the warnings given to Mayer "touched 

all of the bases required by Miranda." !d. The police read Mayer his Miranda rights 

twice: once before the taped interview and again on the recording of the interview after 

Mayer had agreed to such recording. Each time, police informed Mayer that he had the 

right to remain silent and that anything he said could be used against him in court. 1 

Verbatim Report of Proceedings (VRP) at 7 4, 79. Police further stated, 

"You have the right at this time to talk to a lawyer and have him present 

with you while you are being questioned. If you cannot afford to hire a 

lawyer, one will be appointed to represent you before questioning if you 

wish. You can decide at any time to exercise these rights and not answer 

any questions or make any statements." 

!d. at 74-75, 79 (emphasis added). 

3 

 	 
	 
   
		

		

No. 90846-0 

(Madsen, C.J., concurring) 

This case is controlled by Duckworth, where a comparable Miranda warning was 

held to be sufficient. See Duckworth, 492 U.S. at 203. Here, after the first Miranda 

warning, Mayer affirmatively acknowledged that he understood '"each of these rights."' 

1 VRP at 7 5. After the second Miranda warning, which was read to him on the 

recording, he again acknowledged that he understood "each of these rights" as described 

above. !d. at 79. Mayer then inquired how he could go about getting appointed counsel 

"[i]fi wanted an attorney and I can't afford one." !d. (emphasis added). Police then 

answered (somewhat in artfully) that if he were arrested, taken to jail, and appeared before 

a judge, and if he were not able to afford an attorney the judge would appoint him a 

lawyer. See id. Mayer acknowledged that he understood. !d. After addressing Mayer's 

question about the process for acquiring court appointed counsel, police continued the 

interview. Police again asked Mayer if he understood his rights; he acknowledged that he 

did. !d. at 80. Police then twice asked Mayer, "keeping your rights in mind," if Mayer 

wanted to continue the interview and discuss the robbery. !d. He answered 

affirmatively. !d. Over the course of the following half-hour interview, Mayer discussed 

his role in the robbery. He never indicated that he wanted to stop the interview, and he 

never asked for an attorney during questioning. !d. at 81-82. 

In Duckworth, the warning at issue described defendant's right to counsel before 

police asked him' questions and informed him that he could stop answering questions at 

any time until he'talked to a lawyer. See 492 U.S. at 198, 205. The warning also 

included an advisement that a lawyer "'will be appointed for you, if you wish, if and 

4 

 	 
	 
   
		

		

No. 90846-0 

(Madsen, C.J., concurring) 

when you go to court.'" I d. at 19 8 (emphasis omitted). This language in the Duckworth 

advisement anticipated and answered the question that Mayer asked police at his 

interview regarding the process for getting appointed counsel. See id.; 1 VRP at 79. The 

Duckworth Court distinguished some language appearing in its earlier Prysock opinion, 

which suggested that "Miranda warnings would not be sufficient 'if the reference to the 

right to appointed counsel was linked [to a] future point in time after the police 

interrogation.'" Duckworth, 492 U.S. at 204-05 (first emphasis added) (alteration in 

original) (quoting Prysock, 453 U.S. at 360). The Duckworth Court explained that "the 

vice referred to in Pry sock was that such warnings would not apprise the accused of his 

right to have an attorney present if he chose to answer questions." !d. The Court held 

that the above described warnings did not suffer from such defect. !d. The same is true 

here. As in Duckworth, the warnings, in their totality, satisfied Miranda. !d. 

The Duckworth Court reiterated that '"the "rigidity" of Miranda [does not] 

exten[ d] to the precise formulation of the warnings given a criminal defendant,' and that 

'no talismanic incantation [is] required to satisfy its strictures."' !d. at 202-03 (alterations 

in original) (quoting Prysock, 453 U.S. at 359). Miranda requires "only that the suspect 

be informed ... that he has the right to an attorney before and during questioning, and 

that an attorney would be appointed for him if he could not afford one." !d. at 204. 

Accordingly, Miranda requires that "police not question a suspect unless he waives his 

right to counsel." !d. (emphasis added). Both in Duckworth and in the present case, the 

defendant did so. !d. 

5 

 	 
	 
   
		

		

No. 90846-0 

(Madsen, C.J., concurring) 

Further, the record of the suppression hearing indicates that Mayer had a 

substantial criminal history with multiple arrests and convictions going back to 2003. On 

cross-examination, he admitted that he had been arrested multiple times in 2003, 2006, 

2007, 2008, and 2011. See 1 VRP at 155-57. Mayer admitted that "[a]s far as [he could] 

remember," each time he had been arrested he had been read his Miranda rights; that he 

had been advised of his Miranda rights "at least nine times" prior to receiving the 

warnings at issue here; and that he was "very familiar with Miranda warnings." !d. at 

157. Considering the totality of the circumstances, including Mayer's substantial 

experience, background, and familiarity with Miranda warnings, it is simply implausible 

that he was confused by the rights advisement given here or that he was not clear about 

his right to an attorney during questioning. In my view, there was no Miranda violation 

here. 

Finally, as we noted in Earls, "[Defendant] was aware of his rights and the State's 

intention to use his statements against him. Furthermore, his decision not to invoke those 

rights was not induced by threat or promise. Thus, his waiver was valid as a matter of 

law." Earls, 116 Wn.2d at 380 (citing Moran v. Burbine, 475 U.S. 412, 422-23, 106 S. 

Ct. 1135, 89 L. Ed. 2d 410 (1986)). The same is true here. For the reasons discussed, 

Mayer's interview statements to police were properly admitted at trial. I would affirm his 

conviction and concur in the result on this basis. 

6 

 	 
	 
   
		

		

No. 90846-0 

(Madsen, C.J., concurring) 

7 

 	 
	 
   
		

		

State v. Mayer, No. 90846-0 (Gonzalez, J., concurring in result) 

No. 90846-0 

GONZALEZ, J. (concurring in result)-! concur with the majority in result. I 

write separately because I would affirm without addressing the adequacy of the 

Miranda1 warning on the basis that-as the majority ultimately concludes-any error 

was harmless in light of the overwhelming untainted evidence. See In re Pers. 

Restraint of Cross, 180 Wn.2d 664,688, 327 P.3d 660 (2014); State v. Guloy, 104 

Wn.2d 412, 426, 705 P.2d 1182 (1985). Consequently, we need not reach the 

constitutional issue. The evidence included ample accomplice testimony, 

corroborating testimony from other witnesses, and DNA (deoxyribonucleic acid) 

evidence linking Mayer to the crime. I respectfully concur in result. 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

1 

 	 
	 
   
		

		

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

2