NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DANIEL DAVITT, Appellant.

No. 1 CA-CR 22-0553 

Appeal from the Superior Court in Maricopa County

No. CR2017-118418-001

The Honorable Justin Beresky, Judge

The Honorable John Hannah, Jr., Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Ashley Torkelson Levine

Counsel for Appellee

Stephen M. Johnson, Phoenix

Counsel for Appellant

FILED 12-19-2023
STATE v. DAVITT

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Kent E. Cattani and Judge Anni Hill Foster joined.

C A M P B E L L, Judge:

¶1 Daniel Davitt appeals the superior court’s denial of his 

motion to suppress statements he made during a confrontation call.

Because we find no abuse of discretion, we affirm. 

BACKGROUND

¶2 Davitt was indicted on multiple molestation charges 

involving his two minor step-granddaughters, Laura and Rachel1, 

occurring between May 2014 and May 2016. Before trial, the court held a 

voluntariness hearing to address the admissibility of statements Davitt 

made during a recorded confrontation call with the victims’ mother, 

Melanie. Davitt argues that the circumstances surrounding the call 

rendered any incriminating statements inadmissible as involuntary 

confessions resulting from coercion by a state agent.

¶3 In 2017, the Avondale Police Department organized the 

confrontation call, recording it pursuant to Arizona’s one-party consent 

statute. See A.R.S. § 13-3012(9) (permitting the state to record a phone call 

as long as one party to the call consents). Before the call, detectives 

instructed Melanie about the goal of the call—getting Davitt’s “point of 

view and account of the incident(s)”—and they cautioned her not to make 

promises, threats, or use coercion in exchange for admissions. During the 

call, Melanie and the detectives exchanged notes about the content and 

direction of the conversation. 

¶4 Melanie initiated the call and Davitt did not answer. He 

quickly called back, beginning what became the two-hour-long 

confrontation call. Davitt repeatedly denied sexual contact with either 

victim, but expressly admitted to inappropriately massaging 11-year-old 

Laura. At one point in the call, he said Laura may have “inadvertently” 

1 We use pseudonyms to protect the identities of the victims and 

witnesses.
STATE v. DAVITT

Decision of the Court

3

touched his penis for a quarter of a second. He quickly retracted this 

statement. While denying any sexual intent behind massaging his 

step-granddaughter, he referred to the massage as being “foreplay which 

[he] carried on later in the bedroom with [his] wife.” 

¶5 Throughout the call, Melanie urged Davitt to confirm various 

instances of sexual contact that Laura disclosed to her. When pressed to tell 

“the truth,” Davitt repeatedly stated he would admit to anything that 

would bring the family back together. But he did not admit to sexual contact 

with either victim without immediately retracting the admission.

¶6 In September 2022, a jury convicted Davitt of one count of 

sexual conduct with a minor and five counts of child molestation. He timely 

appealed, challenging the trial court’s denial of his motion to suppress the 

confrontation-call statements. 

DISCUSSION

¶7 “To be admissible, a statement must be voluntary, not 

obtained by coercion or improper inducement.” State v. Ellison, 213 Ariz. 

116, 127, ¶ 30 (2006). We will uphold a trial court’s ruling on a motion to 

suppress absent an abuse of discretion, but we review legal conclusions de 

novo. State v. Aldana, 252 Ariz. 69, 71–72, ¶ 10 (App. 2021). 

¶8 Davitt argues that his incriminating statements were the 

direct result of Melanie’s coercion. He asserts that because Melanie was 

acting as an agent of the police, admitting his statements in evidence 

violated his constitutional rights. We disagree. When considering the 

totality of the circumstances of the confrontation call, the record supports

the trial court’s finding that his will was not overborne by coercion or 

promises. First, Davitt placed the phone call to Melanie and could have 

ended the conversation at any time. Second, Davitt was not promised 

prosecutorial leniency in return for a confession. Third, Davitt did not 

confess to the crimes of which he was convicted. 

¶9 In State v. Deng, 1 CA-CR 15-0638, 2017 WL 525966, (Ariz. 

App. Feb. 9, 2017) (mem. decision), this court rejected a similar argument

that a confrontation call should have been suppressed on the basis that the 

victim, who initiated the call, was acting as a state agent and used 

psychological pressure to coerce a confession. Id. at *2, ¶¶ 6, 8, 10. We

concluded that the statements at issue were voluntary even assuming the 

victim was acting as a state agent. Id. at *3, ¶ 12. We held that the victim’s 

“trickery at the behest of the State” did not amount to coercion, especially 

considering the other circumstances of the call. Id. at *2, ¶ 10. 
STATE v. DAVITT

Decision of the Court

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¶10 Here, Davitt, like Deng, made the call, could have hung up 

the phone, and was in the comfort of his own home throughout the call. Id.; 

see also State v. Valvano, 1 CA-CR 20-0489, 2022 WL 244951, at *2, ¶ 9 (Ariz. 

App. Jan. 27, 2022) (mem. decision) (finding confrontation-call statements 

voluntary because appellant “could have terminated the calls before 

incriminating himself[,] . . . made the call, apologized for the abuse, and 

invited further dialogue”). The record shows that even if Melanie was 

acting as a state agent, Davitt’s will was not overborne by her conduct.

¶11 To the extent that Davitt argues his statements were 

involuntary because he was promised leniency in exchange for a 

confession, we disagree. State v. Snee, 244 Ariz. 37, 39, ¶ 11 (App. 2018) 

(holding a statement is involuntary if “(1) a promise was in fact made, and 

(2) the suspect relied on that promise in making the statement” (citation 

omitted)). At no point during the phone call did Melanie promise not to 

press charges or to protect him against prosecution. See State v. Williams, 27 

Ariz. App. 279, 285 (1976) (noting promises of leniency by the police are the 

kind of promises that render incriminating statements involuntary). At 

most, Melanie pleaded with Davitt to confess so she could defend him to 

her family. And even so, Davitt never confessed to sexually-motivated 

contact with her daughters. 

¶12 Davitt goes on to argue that his Fifth Amendment right to 

remain silent and Sixth Amendment right to counsel were violated by the 

introduction of this evidence. But Davitt was neither in custody nor 

formally charged with any crime at the time of the call. See Deng, 

1 CA-CR 15-0638, at *3, ¶ 12 (“[defendant] was not entitled to Miranda

warnings because during the phone call he was not in custody or otherwise 

deprived of his freedom of action.”); State v. Fulminante, 161 Ariz. 237, 246 

(1988) (noting pre-indictment questioning does not trigger the Sixth 

Amendment right to counsel). Accordingly, neither Davitt’s right against 

self-incrimination nor his right to counsel were implicated. 

¶13 Finally, Davitt argues that admitting the call into evidence 

violated his Fourth Amendment right against unreasonable searches and 

seizures. He asserts that the confrontation call was “more than just a 

one-sided consent phone call” and was unconstitutional because “[t]he 

police knew they never would have been able to ask the questions they 

were having the mother ask the defendant.” Davitt does not explain, 

however, how Melanie being coached by detectives during a confrontation 

call rendered his statements involuntary. And his Fourth Amendment

argument fails because, as Davitt concedes, the recorded call was 

authorized under Arizona law. See State v. Allgood, 171 Ariz. 522, 523–24 
STATE v. DAVITT

Decision of the Court

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(App. 1992) (“Monitoring and recording of a telephone conversation with 

the consent of one party . . . is authorized by statute in Arizona” and 

permissible under the Fourth Amendment.); A.R.S. § 13-3012(9). Because 

Melanie consented to recording the call, Davitt’s lack of consent is not 

relevant. See State v. Stanley, 123 Ariz. 95, 102 (App. 1979). 

CONCLUSION

¶14 Because Davitt’s constitutional rights were not violated, we 

need not address whether Melanie was acting as a state agent. Accordingly, 

the court finds Davitt’s incriminating statements to have been properly 

deemed voluntary by the trial court. We affirm.