Opinion
No. 2 CA-CR 2018-0050
06-06-2019
THE STATE OF ARIZONA, Appellee, v. RENGELL ALIZE NICKELSON, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Sarah L. Mayhew, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20162966002
The Honorable Michael Butler, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Sarah L. Mayhew, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Rengell Nickelson was convicted of armed robbery, aggravated robbery, and two counts of aggravated assault. The trial court sentenced him to concurrent prison terms, the longest of which were seven years each. On appeal, Nickelson argues the court erred by admitting his statements to police while in custody, after he had invoked his right to counsel upon being advised of his rights under Miranda v. Arizona, 396 U.S. 868 (1969). For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming Nickelson's convictions. See State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 2 (App. 2013). In April 2016, Nickelson was dating Sierra Chapin whom he had met through a cell phone application known as "MeetMe.com." Using the alias Jazmine, Chapin talked to other people on MeetMe.com, including J.G. Nickelson, Chapin, and Nickelson's best friend, Asong, devised a plan using "sexual promises" to persuade J.G. to bring marijuana to a meeting with Chapin.
¶3 When J.G. arrived for the meeting at a wash near Asong's house, he saw Chapin and started walking toward her. Nickelson and Asong, who were wearing ski masks, came out from behind a wall and demanded that J.G. get on the ground. Nickelson was carrying mace, and Asong had a gun. They dragged J.G. behind a wall, and Nickelson told J.G. to empty his pockets. According to J.G., Nickelson said "he was doing this because his grandpa was sick." After taking J.G.'s truck keys, Nickelson walked away, and Asong pointed the gun at J.G.'s face. When Nickelson returned, he again asked for everything J.G. had in his possession.
¶4 After they had taken J.G.'s belongings, Nickelson and Asong sprayed mace in J.G.'s face and then shot him in the back of the neck. Nickelson blacked out for several seconds, and when he tried to open his eyes he saw the men running away and heard one of them say, "I think we killed him." J.G. began screaming, and some nearby construction workers came to help. J.G. was transported to the hospital, where doctors removed the bullet, which had traveled into his arm. J.G. underwent physical therapy for several months and continues to suffer from neuropathy.
¶5 During the investigation that followed, officers were unable to determine the identity of J.G.'s assailants. About two months later, however, J.G. saw a picture of Chapin on a social media website and notified a Tucson Police Department detective. The detective located Chapin, who later identified Nickelson and Asong as J.G.'s assailants.
Asong died in May 2016.
¶6 A grand jury indicted Nickelson for one count each of attempted first-degree murder, armed robbery, aggravated robbery, aggravated assault involving a deadly weapon or dangerous instrument, and aggravated assault causing temporary but substantial disfigurement. Before trial, upon the state's motion, the trial court dismissed without prejudice the attempted first-degree murder charge. A jury convicted Nickelson of the remaining offenses, and the court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Chapin was similarly indicted, but she agreed to plead guilty to one count of aggravated assault causing temporary but substantial disfigurement in exchange for testifying at Nickelson's trial.
Discussion
¶7 Nickelson argues the trial court "violated [his] Fifth Amendment rights against compelled self-incrimination when it permitted the state to admit his statements to police obtained while he remained shackled to a table in a police interrogation room for 12 hours, after a midstream Miranda warning during which he invoked his right to an attorney." We review a trial court's decision to admit a defendant's statements for an abuse of discretion. State v. Payne, 233 Ariz. 484, ¶ 35 (2013). However, we review constitutional issues de novo. State v. Boggs, 218 Ariz. 325, ¶ 25 (2008).
In resolving this issue, we limit our review to the evidence presented at the hearing on the state's motion to admit Nickelson's statements, and we view that evidence in the light most favorable to upholding the trial court's ruling. See State v. Dean, 241 Ariz. 387, ¶¶ 2, 23 (App. 2017) (discussing motion to suppress); cf. State v. Zimmerman, 166 Ariz. 325, 328 (App. 1990) (treating motion in limine as motion to suppress).
¶8 The Fifth Amendment to the United States Constitution protects against self-incrimination. U.S. Const. amends. V, XIV; see Malloy v. Hogan, 378 U.S. 1, 6 (1964). This protection ensures that "an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action." Maness v. Meyers, 419 U.S. 449, 461 (1975). Consequently, before any questioning in a custodial setting, an individual "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." Miranda, 384 U.S. at 444. An individual may waive these rights, however, "provided the waiver is made voluntarily, knowingly and intelligently." Id.
Our supreme court has determined that our state's equivalent to the Fifth Amendment, article II, § 10 of the Arizona Constitution, is not construed more broadly than the Fifth Amendment. State v. White, 102 Ariz. 162, 163 (1967); see also State v. Superior Court, 149 Ariz. 601, 602 (App. 1986).
¶9 Once an accused invokes his Miranda right to counsel, police may not subject him to further custodial interrogation without counsel "unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see also Maryland v. Shatzer, 559 U.S. 98, 104 (2010); State v. Yonkman, 231 Ariz. 496, ¶ 8 (2013). The Edwards rule is designed "to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Michigan v. Harvey, 494 U.S. 344, 350 (1990). It creates a presumption that once a suspect invokes his Miranda right to counsel, any waiver of that right during a subsequent interrogation initiated by police is involuntary. Montejo v. Louisiana, 556 U.S. 778, 787-88 (2009); McNeil v. Wisconsin, 501 U.S. 171, 177 (1991).
¶10 After Chapin identified Nickelson as one of J.G.'s assailants, Nickelson was detained and taken to a police station, where he was interviewed three times the same day by the detective. During the first interview at approximately 9:45 a.m., while the detective was asking Nickelson about where he had lived, Nickelson volunteered that he had recently been to Virginia to "make sure [his grandfather] was okay" and then again for his grandfather's funeral. During the second interview ten minutes later, the detective advised Nickelson of his rights pursuant to Miranda, and Nickelson requested an attorney. Nickelson remained in the interrogation room for the next several hours while officers obtained a warrant and searched his home. Later that evening, when a sergeant checked on Nickelson, Nickelson asked "what he was going to be charged with," and the sergeant answered that he would be charged with offenses related to the robberies. When Nickelson continued asking other questions, the sergeant told Nickelson he would need to talk to the detective. The sergeant then informed the detective that Nickelson had some questions, and the detective went to see Nickelson. The following exchange occurred:
Q: Rengell?
A: Yeah.
Q: Okay you asked to uh, speak with me?
A: Yes, 'cause . . . I [asked] them what was on, they was like, "Oh there's no question, you were at the scene.["] And I'm like, "Okay well I have no knowledge of any of this . . . ["]
Q: Okay.
A: . . . and you're tellin' me that . . .
Q: Hol, hol, hold on let me stop you right there okay. Um, okay uh, last time I was in here uh, tried to speak with you, you did say you want a lawyer.
A: Hm-mm.
Q: Okay so uh, just so we're clear I need to read you your Miranda Rights again.
A: Okay.
¶11 The detective again advised Nickelson of his Miranda rights, and Nickelson acknowledged that he understood them and that he was waiving them, including his right to an attorney. During this third interview, Nickelson denied any involvement in the crime—instead he suggested that Chapin was accusing him because he had broken up with her—and he again mentioned that his grandfather had been sick around the time the assault had occurred.
¶12 Before trial, the state filed a motion to admit Nickelson's statements made during the first and third interviews. The state maintained Nickelson's statements about his grandfather during the first interview, before the detective had advised Nickelson of the Miranda rights, were admissible because they were "not the result of 'interrogation'" but were instead "volunteered" while the detective "was simply gathering . . . general biographical information." It also argued that Nickelson's statements during the third interview were admissible because they were "made following a valid waiver of Miranda."
¶13 Nickelson responded that all of his statements should be precluded. As to the first interview, he asserted that the detective's questions "were not simply biographical" because they were "reasonably likely to elicit an incriminating response." And as to the third interview, he argued his statements violated the Edwards rule because "he did not initiate contact." Rather, he maintained he asked to speak to the detective only after "police came to the interrogation room and began speaking to [him]."
¶14 During an evidentiary hearing on the motion, both the detective and the sergeant testified. Based in part on the state's concession that there was "potentially a [Miranda] violation" during the first interview, the court precluded Nickelson's statements made during that interview and the second interview. However, the court noted, "The officers were very, very good with . . . Miranda after that." The court therefore ruled it would allow Nickelson's statements during the third interview, explaining:
[A]s it relates to [the] third interview, I don't know what was said to . . . Nickelson, but even [so], he started it when he said I asked him what was on. So when somebody came in, he asked. He was the one who initiated it to start with, that's confirmed by the testimony of [the sergeant], and then when [the detective] came back in he made sure . . . Nickelson understood his Miranda rights before he asked any additional questions.
I will then allow statements from the third subject to allowing contextual statements from . . . Nickelson as we go along for the sake of completeness.
¶15 On the first day of trial, the state filed a motion for an additional ruling to limit the statements that would be admitted from the third interview. The state noted that it only sought to introduce Nickelson's statements concerning his grandfather and requested the court order that those statements would "not open the door to the admission of any other self-serving hearsay statements." Nickelson stated he had no objection to the portion requested by the state, but was unsure about the need for additional portions. The trial court stated it would permit Nickelson to revisit the issue as the trial progressed. After the detective read the state's requested portion of the interview during his trial testimony, Nickelson did not request that the detective read additional portions.
¶16 On appeal, Nickelson argues this case "fall[s] . . . squarely within the Edwards rule." He contends that, despite his request for counsel, the police "reinitiated interrogation by keeping [him] in the same coercive custodial interrogation setting until his will was overcome." He therefore maintains the trial court erred in admitting his statements made during the third interview.
¶17 The first question under Edwards is whether the suspect actually invoked his right to counsel. Smith v. Illinois, 469 U.S. 91, 95 (1984); State v. Eastlack, 180 Ariz. 243, 250 (1994). "Invocation of the Miranda right to counsel 'requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.'" Davis v. United States, 512 U.S. 452, 459 (1994) (quoting McNeil, 501 at 178). Here, it is undisputed that Nickelson requested an attorney after hearing the Miranda warnings during the second interview.
¶18 The next question is whether the suspect reinitiated contact with the police. Smith, 469 U.S. at 95. "[I]nquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally 'initiate' a conversation in the sense in which that word was used in Edwards." Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983). By contrast, an accused initiates contact by asking questions that "can[] be fairly said to represent a desire on [his] part . . . to open up a more generalized discussion relating directly or indirectly to the investigation." Id. For example, in Bradshaw, the Supreme Court determined the defendant's question—"Well, what is going to happen to me now?"—showed "a desire for a generalized discussion about the investigation" and, therefore, the defendant initiated contact. Id. at 1045-46.
¶19 Here, when the sergeant checked on Nickelson, Nickelson asked what he was being charged with. After the sergeant answered, Nickelson began asking additional questions "about why he was being charged with what." The sergeant told Nickelson that "he would need to talk to [the detective] if he needed to ask those questions" and then informed the detective. When the detective entered the room, Nickelson indicated he wanted to discuss the investigation and the evidence against him. Nickelson's questions to the sergeant and subsequent statements to the detective "evinced a willingness and a desire for a generalized discussion about the investigation." Id. They were not mere inquiries "arising out of the incidents of the custodial relationship." Id. at 1046. Indeed, the detective understood Nickelson was asking about the investigation and immediately told Nickelson to stop talking because of his previous request for counsel. See id. We thus conclude Nickelson reinitiated contact with the police. See Smith, 469 U.S. at 95.
¶20 Nickelson nevertheless contends, "The fact that [he] asked [the sergeant] a question is irrelevant; that question came after some other unknown officers told [Nickelson] that the police had evidence placing him at the scene." But Nickelson asking the sergeant a question about the investigation is precisely the type of suspect-initiated contact that Edwards requires. See Edwards, 451 U.S. at 484-85; see also Smith, 469 U.S. at 95. Although Nickelson stated to the detective at the start of the third interview that some officers had said to him, "Oh there's no question, you were at the scene," there is dispute about whether this occurred. The sergeant testified at the hearing that he "would not have said that." See State v. Cid, 181 Ariz. 496, 500 (App. 1995) (trial court as finder-of-fact, not appellate court, weighs evidence and determines witness credibility). Moreover, the trial court found that even assuming something had been said to Nickelson, Nickelson had initiated the first contact when he "asked [the sergeant] what was on." The court's finding is supported by the record, including Nickelson's own statements during the third interview. See State v. Teagle, 217 Ariz. 17, ¶ 19 (App. 2007) (we defer to trial court's factual findings).
¶21 Nickelson additionally argues that he "did not 'reinitiate' the interrogation because there was never a break in the custodial interrogation setting." Without citing any authority, he maintains, "The cases in which 'reinitiation' was found to be waiver involve an actual cessation of the custodial situation in some meaningful fashion." Although many of the Edwards-related cases involve a formal break in custody, see, e.g., Shatzer, 559 U.S. at 109-10, all that is necessary is a break in interrogation for a suspect to reinitiate communication. For example, in Bradshaw, there was no cessation of custody—after being placed under arrest, the defendant was advised of his Miranda rights and requested an attorney; "[s]ometime later," while being transferred to jail, the defendant reinitiated contact. 462 U.S. at 1041-42. Likewise, in State v. Finch, the defendant reinitiated contact with police after requesting counsel during the same post-arrest interview. 202 Ariz. 410, ¶¶ 15-16 (2002).
¶22 In sum, when a suspect reinitiates a "generalized discussion about the investigation," there is no violation of the Edwards rule. Bradshaw, 462 U.S. at 1046; see also Edwards, 451 U.S. at 484-85; Collazo v. Estelle, 940 F.2d 411, 427 (9th Cir. 1991) ("Edwards allows an exception where the second round of questioning is initiated by the suspect."). We conclude the record supports the trial court's finding that Nickelson reinitiated the conversation in this case. Accordingly, the court did not err by admitting Nickelson's statements on this basis. See Payne, 233 Ariz. 484, ¶ 35; Boggs, 218 Ariz. 325, ¶ 25.
¶23 Nickelson next asserts the state "cannot satisfy its burden of proving that [his] subsequent waiver of his right to counsel . . . was knowing, intelligent, or voluntary." See Bradshaw, 462 U.S. at 1046; see also Smith, 469 U.S. at 95. But Nickelson did not raise this argument below. Accordingly, it is forfeited for all but fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶¶ 12, 21 (2018). Because Nickelson fails to argue on appeal that this particular issue constitutes fundamental, prejudicial error, the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008). Even assuming the argument were not waived, however, we find no fundamental, prejudicial error.
Nickelson characterizes all the arguments raised in his opening brief as one issue and maintains it was preserved because he "objected to the admission of the statements on the grounds that the statements were obtained in violation of Miranda." With respect to the third interview, however, Nickelson only challenged the reinitiation aspect of Edwards. This was insufficient to preserve his argument on appeal that his waiver was not knowing, intelligent, and voluntary. See State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008) (objection on one ground does not preserve issue on another ground). The same is true with respect to Nickelson's last argument concerning a purported violation under Missouri v. Seibert, 542 U.S. 600 (2004). Simply put, the trial court was never given an opportunity to address these issues. See Lopez, 217 Ariz. 433, ¶ 6.
¶24 A waiver of Miranda rights must be made voluntarily, knowingly, and intelligently. Miranda, 384 U.S. at 444. To be voluntary, the waiver must be "the product of a free and deliberate choice rather than intimidation, coercion, or deception." In re Andre M., 207 Ariz. 482, ¶ 7 (2004) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). A knowing and intelligent waiver occurs when the suspect has a "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. (quoting Moran, 475 U.S. at 421); see also State v. Naranjo, 234 Ariz. 233, ¶ 7 (2014). This determination is based on "the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." Bradshaw, 462 U.S. at 1046 (quoting Edwards, 451 U.S. at 486 n.9). It "depends 'upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.'" Id. (quoting North Carolina v. Butler, 441 U.S. 369, 374-75 (1979)).
Contrary to Nickelson's assertion otherwise, the Edwards presumption of involuntariness does not apply here because no Edwards violation occurred. See McNeil, 501 U.S. at 177.
¶25 Here, as discussed above, Nickelson reinitiated contact with the police by asking questions about what he was being charged with and why. The record contains no evidence that "the police made [any] threats, promises or inducements to talk." Id. Nickelson indicated during both the second and third interviews that he understood his rights under Miranda. He also stated multiple times during the third interview that he was willing to talk to the detective, despite previously requesting counsel. And after agreeing to answer the detective's questions, Nickelson asked, "So you're sayin' because I wanna speak with you that's bein' waived." The detective responded by asking Nickelson whether he was "willing to speak with [him] without an attorney present," and Nickelson agreed. The detective confirmed once more that Nickelson was "waiving [his] right to an attorney at this point," and Nickelson responded, "Yes."
¶26 Although Nickelson contends he was "a 19-year-old high school student with learning disabilities who had never been in trouble before," nothing in the record shows the police were aware of his disabilities or that these factors rendered him unable to understand his rights or the consequences of waiving them. See Andre M., 207 Ariz. 482, ¶ 7. As the state points out, Nickelson's maturity and comprehension of the situation is demonstrated by his initial request for counsel after being advised of his Miranda rights. Cf. State v. Carrillo, 156 Ariz. 125, 134 (1988) (evidence defendant understood Miranda rights based in part on defendant's actual exercise of constitutional rights). Accordingly, based on the record before us, we conclude Nickelson has failed to show that the waiver of his Miranda right to counsel was not voluntary, knowing, and intelligent. See Escalante, 245 Ariz. 135, ¶¶ 12, 21.
¶27 Relying on Missouri v. Seibert, 542 U.S. 600 (2004), Nickelson lastly maintains that his statements were the result of "a deliberate attempt by law enforcement to circumvent Miranda through mid-stream warnings" after unwarned admissions were made during a custodial interview. Again, however, Nickelson did not raise this specific argument below. See Escalante, 245 Ariz. 135, ¶¶ 12, 21. Nor has he argued on appeal that fundamental, prejudicial error occurred with respect to this issue. Therefore, the argument is waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17. Even assuming the argument were not waived, however, we find no fundamental, prejudicial error.
In the last section of his opening brief, Nickelson refers generally to the trial court's error "in violation of Miranda" and argues that if his objection below did not preserve this issue, it is nevertheless reviewable for fundamental error. See supra n.5. The recitation of general legal principles relating to fundamental error coupled with a general description of prejudice is not proper argument. For each issue subject to fundamental-error review, the discussion should include specific reasons why the claimed error is fundamental and how the error relating to that issue caused prejudice. See State v. Henderson, 210 Ariz. 561, ¶ 26 (2005) ("The showing [of prejudice] a defendant must make varies, depending upon the type of error that occurred and the facts of a particular case."). But although the arguments are waived, we address the merits.
¶28 "[A] suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Oregon v. Elstad, 470 U.S. 298, 318 (1985). In Seibert, however, the Supreme Court disapproved the practice of "custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession," at which point, the interrogating officer advises the suspect of the Miranda rights and then secures the same confession a second time. 542 U.S. at 604. In that case, Officer Hanrahan instructed another officer to arrest Seibert without advising her of her Miranda warnings. Id. Seibert was taken to the police station, and after she was left alone in an interview room for approximately twenty minutes, Officer Hanrahan questioned her for thirty to forty minutes, leading Seibert to admit knowledge of the crime. Id. at 604-05. After a short break, Hanrahan advised Seibert of her Miranda rights and obtained a signed waiver. Id. at 605. Hanrahan then resumed the questioning, referred back to Seibert's pre-Miranda statements, and confirmed that she had admitted knowledge of the crime. Id. The Court held the second confession was inadmissible because the "midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement." Id. at 604.
¶29 Relying on Seibert, Nickelson maintains that the detective "intentionally did not give [Nickelson] any Miranda warnings at first so that [he] would not assert his Miranda rights to stop speaking." He further contends that the detective "left [Nickelson] chained to a table in a locked interrogation room, with police coming and going every fifteen minutes, until [Nickelson] finally agreed to waive his right to an attorney," and that the detective then "asked questions that covered the very same information" from the first interview.
¶30 This case is distinguishable from Seibert. Although the detective acknowledged that he did not give the Miranda warnings at the outset of the first interview, he explained that he did so to establish rapport and gather background information. See State v. Landrum, 112 Ariz. 555, 559 (1976) (Miranda does not apply to detective's "clearly neutral, nonaccusatory" questions "in furtherance of proper preliminary investigation" (quoting State v. Mathis, 110 Ariz. 254, 255 (1974))). Perhaps more importantly, Nickelson's initial statements concerning his grandfather during the first interview were unsolicited. Indeed, the detective testified that Nickelson's comment "ca[ught him] off guard." Although the detective asked follow-up questions during the first interview without advising Nickelson of the Miranda rights, the detective did advise Nickelson during the second interview, and Nickelson invoked his right to counsel. The detective honored that request. The third interview occurred only after Nickelson reinitiated contact with officers and waived his previously invoked rights under Miranda.
¶31 Additionally, in Seibert, "the Supreme Court in a plurality decision held that courts should review two-step interrogation cases by first determining whether the police deliberately withheld the Miranda warnings." State v. Zamora, 220 Ariz. 63, ¶ 16 (App. 2009). "To determine deliberateness, 'courts should consider whether objective evidence and any available subjective evidence . . . support an inference that the two-step interrogation procedure was used to undermine the Miranda warning.'" Id. (quoting United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006)).
"In a plurality decision, when 'no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds.'" State v. Zamora, 220 Ariz. 63, n.8 (App. 2009) (quoting United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006)). Justice Kennedy's concurring opinion in Seibert is controlling because "it is the narrowest opinion concurring in the Court's judgment." Id. --------
¶32 Here, for the reasons discussed above, we cannot say the detective later acted deliberately to undermine Miranda, see id. ¶ 18; see also Seibert, 542 U.S. at 607. We thus apply Elstad, under which "[u]ncoerced post-Miranda warning statements are admissible if the Fifth Amendment waiver was valid." Zamora, 220 Ariz. 63, ¶ 18. Having found no error with respect to Nickelson's waiver before the third interview, supra ¶¶ 24-25, we likewise conclude Nickelson has not met his burden of showing fundamental error under Seibert or Elstad. See Escalante, 245 Ariz. 135, ¶¶ 12, 21.
¶33 As a final matter, even assuming there was any error in the admission of Nickelson's statements made during the third interview concerning his grandfather, we agree with the state that it was harmless. See id.; see also Arizona v. Fulminante, 499 U.S. 279, 284-85 (1991) (admission of coerced confession subject to harmless-error review). The erroneous admission of evidence that is entirely cumulative constitutes harmless error. State v. Granados, 235 Ariz. 321, ¶ 35 (App. 2014). Here, the objectionable evidence regarding the death of Nickelson's grandfather and its timing was otherwise properly admitted through the testimony of Chapin and Nickelson's father. Cf. State v. Kemp, 185 Ariz. 52, 61 (1996) (any error in admitting co-defendant's statements harmless where evidence was cumulative to defendant's own admissions). Specifically, Chapin testified that around the time of the assault Nickelson's grandfather "was sick and about to pass," noting that Nickelson "had little time to go to be with him." Nickelson's father also testified that, in the spring of 2016, Nickelson's grandfather had been sick, hospitalized, and passed away, adding that he lived in Virginia and Nickelson visited him a few times. We are thus satisfied beyond a reasonable doubt that any potential error did not affect the verdicts. See State v. Bass, 198 Ariz. 571, ¶ 39 (2000).
Disposition
¶34 For the reasons stated above, we affirm Nickelson's convictions and sentences.