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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee

,

v.

ARIEL VALENZUELA
, Appellant

.

No. 1 CA

- CR 18

- 0429

Appeal from the Superior Court in Maricopa County

No. CR 2016

- 001270

- 001 The Honorable Joan M. Sinclair

, Judge

AFFIRMED

COUNSEL

Arizona Attorney General ’ s Office , Phoenix By Joshua C. Smith Counsel for Appellee

Barbara Hull

, Attorney at Law
, Phoenix By Barbara L. Hull C ounsel for Appellant FILED 9-5-2019STATE v. VALENZUELA Decis ion of the Court

2 MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Maria Elena Cruz joined.

C A T T A N I
, Judge:

¶1 Ariel Valenzuela appeals his convictions and sentences for first degree m urder and promoting prison contraband. He challenges the superior court’s denial of his motion to suppress statements he asserts were taken in violation of Miranda 1 an d made involuntar ily

. For reasons that follow, we affirm.

FACTS AND PROC EDURAL BACKGROUND

¶2 While Valenzuela was an inmate at the state prison in Buckeye, he and a group of inmates attacked and killed A.C.
, a fellow
inmate

. During the attack, Valenzuela inflicted a fatal stab wound to A.C. ’ s chest with a “prison

- made” weapon

. Multiple inmates identified Valenzuela as A.C. ’ s killer

, and Valenzuela eventually admitted his involvement in the attack, including that he stabbed A.C. three times

. Nevertheless, Valenzuela claimed his weapon was defective

, others had also stabbed A.C., and that he was not responsible for A.C. ’ s death

. The State charged Valenzuela with first degree murder and promoting prison contraband.

¶3 Before trial, Valenzuela moved to suppress statements taken in violation of Miranda and requested a voluntariness hearing. The superior court conducted an evi dentiary hearing and heard testimony from criminal investigations unit (“CIU”) investigators
, who had spoke n with Valenzuela three times during their investigation, and from special security unit (“SSU”) correctional officers , who had spoke n with him twice during their administrative investigation

.
¶4 CIU investigators first attempted to speak with Valenzuela the night of the murder. After being provided Miranda warnings
, Valenzuela invoked his right to counsel and all questioning ceased

. The
next morni ng, an SSU officer transported Valenzuela from his housing unit

1 Miranda v. Arizona , 384 U.S. 436 (1966).STATE v. VALENZUELA Decis ion of the Court

3 to an SSU office, but Valenzuela refused to speak with the officer. Before being transported back to his housing unit, Valenzuela asked to speak with a specific SSU officer and claimed to have “game changing information

. ” Valenzuela then ad mitted to his involvement in the attack but insisted he

was not A.C.’s killer.

¶5 F ourteen day s later , CIU investigators asked to speak with Valenzuela again
, but he refused

. In the final CIU interview more than a year later, after reaching out to investigators, Valenzuela waived his Miranda rights

, and largely repeated the statements he made to the SSU investigators

. V alenzuela requested that CIU place him in protective custody in exchange for his stat ements

. CIU investigators indicated that they could make a recommendation to prison officials

, but that they had no control over his housing status and could make no promises

. ¶6 T he superior court heard argument and denied the motion to
suppress , finding that Valenzuela had reinitiated contact with law enforcement and that his statements were voluntar y

. At trial, the court allowed the State to present Valenzuela ’s statements from the second SSU interview and the final CIU interview

.
¶7 A jury returned guilty verdicts on both counts and found two aggravating factors as to the promoting prison contraband offense

. T he superior court found Valenzuela had multiple prior felony convictions and sentenced him to concurrent terms, the longest of which is life imprisonment without the possibility of release

. Valenzuela timely appealed, and we have jurisdiction under A.R.S. § 13

- 4033(A)

.

DISCUSSION

I. Alleged Miranda Violation.

¶8 Valenzuela argues the superior court abused its discretion by refusing to suppress statements taken in violation of Miranda

. Valenzuela clai ms that SSU ’s initial interview violated Miranda

, and any subsequent

statements should have been suppressed as “ fruit of the poisonous tree

. ”
See Wong Sun v. United States , 371 U.S. 471 (1963). We review a ruling on a motion to suppress for abuse of discretion ; we defer to the court ’ s factual findings but consider the court ’ s legal conclusions de novo

. State v. Peterson , 228 Ariz. 405, 407

– 08 , ¶ 6 (App. 2011)

. We consider only evidence presente d at the suppression hearing, and we view the facts in the light most favorable to upholding the court ’ s ruling. State v. Naranjo , 234 Ariz. 233, 238, ¶ 4 (2014).STATE v. VALENZUELA Decis ion of the Court

4 ¶9 To safeguard the privilege against compulsory self

incrimination, Miranda requires that law enforcement advise suspects of their rights before conducting a custodial interrogation

. State v. Maciel , 240 Ariz. 46, 49, ¶ 10 (2016). Whe n a suspect invokes his right to counsel, law enforcement may not subject him to further questioning without counsel present until after a 14

- day break in custody

. Maryland v. Shatzer , 559 U.S. 98, 109

– 1 1 (2010); Edwards v. Arizona , 451 U.S. 477, 48 2

– 8 5 (1981)

. There can be a break in custody for these purposes even if the suspect remains incarcerated for a prior conviction. Shatzer , 559 U.S. at 11 2

– 14

. And a suspect may waive this requirement by reinitiating communication with law enforcement

. Edwards , 451 U.S. at 484

– 85 ; see also State v. Yonkman , 231 Ariz. 496, 498, ¶ 8 (2013). To constitute a valid waiver, the suspect need only express “a desire for a generalized discussion about the investigation” ; an explicit waiver statement is not required. Oregon v. Bradshaw , 462 U.S. 1039, 10 45

– 46 (1983); see also N orth Carolina v. Butler , 441 U.S. 369, 375

– 76 (1979).

¶10 Alt hough Valenzuela invoked his right to counsel in the initial CIU interview, he reinitiated contact with SSU the next day and expressed a desire to give his version of events. Similarly

, more than a year later

, Valenzuela reinitiated contact with CIU, waived his Miranda rights, and , once again, gave hi s version of events

. In both instances, Valenzuela maintained that he was not ultimately responsible for A.C. ’ s murder, admitting only that he was invo lved in the attack and possessed a weapon. The record does not show that these statements were the product of coercive conduct by either unit ; Valenzuela appears to have understood his Miranda rights, and he personally initiated the discussions during which he provide d information regarding the attack on A.C.

.
¶11 Moreover, a ssuming SSU ’ s failure to wait 14 days before contacting Valenzuela was improper
, the unit’s initial attempt to speak with Valenzuela did not yield a confession

. T he only statements admitted at trial were obtained after Valenzuela re initiated contact and provided a valid waiver of his rights. There is no indication from the record that SSU ’s conduc t so tainted all subsequent voluntary statements to warrant suppression. State v. Fulm inante , 161 Ariz. 237, 246 (1988 ) ( holding voluntary confession admissible if the taint of prior constitutional violation sufficiently attenuated )

. ¶12 Finally, e ven if Valenzuela ’s statements to SSU had been taken in violation of Miranda and admitted in error, the error was harmless. See State v. Montes , 136 Ariz. 491, 497 (1983) (applying harmless error analysis to the improper admission of statements at trial). “A constitutionalSTATE v. VALENZUELA Decis ion of the Court

5 error is harmless if it can be said beyond a reasonable doubt that the error had no influence on the verdict of the jury.” Id

. Valenzuela ’s statements in the final CIU interview, made over one year later

, were free of any coercive effects of SSU ’s contact and were admissible at trial

. See Fulminante , 161 Ari z. at 246. Had the potentially tainted statements to SSU been suppressed, t he jury would have nonetheless heard Valenzuela’s inculpatory statements , along with substantial eye

- witness testimony that he was A.C. ’ s killer.

¶13 Accordingly, the superior court did not abuse its discretion by rejecting Valenzuela’s Miranda argument

.

II. Alleged Inv oluntariness.

¶14 Valenzuela argues his statements were in voluntary because of the restrictions and dangers associated with being an inmate

, coercive conduct by SSU and CIU

, and alleged promises made by CIU

. We review the superior court ’ s determination of voluntariness for abuse of discretion

, State v. Jones , 203 Ariz. 1, 5, ¶ 8 (200 2 )

, and consider the totality of the
circumstances surrounding the challenged con fession

. State v. Stanley , 167 Ariz. 519, 524 (1991). We start with the rebutta b l e presumption that a confession made within the context of a custodial interrogation is inherently involuntary

. State v. Jimenez , 165 Ariz. 444, 448

– 49 (1990).

¶15 A confession is involuntary if (1) prompted by impermissible police conduct, (2) attributable to coercive pressures that have not been dispelled, or (3) derived directly from a prior involuntary statement. State v. Amaya

- Ruiz , 166 Ariz. 152, 164 (1990)

. Typically, a promise of leniency or another benefit , even by implication

, is impermissibly coercive. State v. Lopez , 174 Ariz. 131, 138 (1992)

. The evidence , however, must show the promise was in fact made and relied upon by the suspect. Id

. It is not enough that a promise was made “ couched in terms of a mere possibility .” State v. McVay , 127 Ariz. 18, 20 (1980)

. ¶16 Here, t he evidence shows that Valenzuela understood his Miranda rights, ex pressed a desire to speak with SSU and CIU

, and spoke with both units after making that request. Without more

, the pressure s inherent in incarceration do not demonstrate an atmosphere of coercion

. See Shatzer, 559 U.S. at 11 2

– 1 4

. Moreover
, CIU officers explicitly refused to make any promise s to Valenzuela regarding protective custody and noted their lack of control over his housing status. The simple offer to provide a housing recommend ation t o prison officials was not impermissibly
coercive. See State v. Tapia , 159 Ariz. 284, 290

– 91 (1988)

.STATE v. VALENZUELA Decis ion of the Court

6 ¶17 We conclude, b ased on the totality of circu m stances, that the superior court did not abuse its discretion by finding that Valenzuela ’ s statements were voluntary.

CONCLUSION

¶18 For the foregoing reasons , we affirm Valenzuela ’ s convictions and sentences.