State of Arizona v. Erick Antonio Diliz

Opinions

Opinion

IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

ERICK ANTONIO DILIZ,

Appellant.

No. 2 CA-CR 2025-0136 Filed September 4, 2026

Appeal from the Superior Court in Cochise County No. S0200CR202300135

The Honorable Jason A. Lindstrom, Judge

VACATED AND REMANDED

COUNSEL

Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee

Attorney Slade Smith PLLC, Tucson By Slade Smith Counsel for Appellant

Opinion of the Court

OPINION

Judge Eckerstrom authored the opinion of the Court, in which Judge O’Neil concurred and Presiding Judge Gard dissented in part.

E C K E R S T R O M, Judge:

¶1 Erick Diliz appeals from his convictions and sentences for first-degree murder, aggravated assault, and unlawful flight. He challenges the denial of his motion to suppress and the sufficiency of the evidence as to one of the counts of aggravated assault.1 For the following reasons, we vacate his convictions and sentences and remand for a new trial.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury’s verdicts and resolve all reasonable inferences against Diliz. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In February 2023, a state trooper had been stationed along Interstate 10 to work with federal law enforcement on cross-border criminal activity. Based on recent reports from federal law enforcement, the trooper followed a truck and checked its license plate. That plate reported as stolen. To execute a traffic stop, the trooper requested that supporting law enforcement prepare spike strips on the road ahead of the truck. One mile before the spike strips, the trooper activated his lights and sirens. Over the course of the attempted traffic stop, the truck drove between 77 and 120 miles per hour. The truck drove over the spike strips and rolled over. The trooper found Diliz in the truck’s driver seat. Three of the truck’s passengers died from the rollover and five were injured.

¶3 Diliz was also injured. A detective interviewed Diliz in his hospital room before he was discharged. Before trial, Diliz moved to suppress his statements made during the interview, arguing they had been obtained involuntarily and in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The state conceded that Diliz was in custody but asserted that he

1Diliz also argues the trial court erred by accepting unsigned jury

verdict forms. Because we vacate and remand Diliz’s convictions and sentences on another ground, we need not address this alleged clerical error.

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initiated the conversation absent coercion from the detective. After a suppression hearing, the trial court concluded that while Diliz initially invoked his rights, he “unambiguously and voluntarily engaged the Detective in a new conversation,” thus waiving his right to remain silent. The court denied both of Diliz’s suppression motions.

¶4 At the conclusion of a seven-day trial, a jury found Diliz guilty of three counts of first-degree felony murder, one count of unlawful flight, and seven counts of aggravated assault. The trial court sentenced him to concurrent prison terms, the longest of which is life imprisonment with the possibility of release after twenty-five years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

I. Miranda Violation

¶5 Diliz argues the trial court erred by admitting his custodial statements obtained in violation of Miranda. We review a court’s decision to admit a defendant’s statements for an abuse of discretion. State v. Payne, 233 Ariz. 484, ¶ 35 (2013). In doing so, we consider only the evidence presented at the suppression hearing, State v. Mitcham, 258 Ariz. 432, ¶ 13 (2024), and defer to the court’s factual findings if substantial evidence supports them, State v. Adair, 241 Ariz. 58, ¶ 9 (2016). However, we do not defer to the ultimate legal conclusions the trial court draws from those facts; rather, we review those conclusions de novo. See State v. Evans, 237 Ariz. 231, ¶ 6 (2015) (“ultimate legal determination” on mixed question of law and fact reviewed de novo); State v. Boggs, 218 Ariz. 325, ¶ 25 (2008) (constitutional questions reviewed de novo).

¶6 Here, the operative facts underlying the motion to suppress are not disputed. The day after the incident, a detective approached Diliz in his hospital room for an interview. The detective captured the exchange on an audio recording which occurred in relevant part as follows:

DILIZ: I don’t wanna, dude, I don’t wanna be questioned about anything right now.

DETECTIVE: Okay. Yeah, you don’t have to be questioned about anything. Um . . .

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DILIZ: You see my head? Looks like I got a frickin’ egg on it, man.

DETECTIVE: Okay. Yep. I w—I won’t ask you any questions at all. All right? If you change your mind, you let me know. Okay?

DILIZ: Okay.

DETECTIVE: I’ll turn this back on, and I’ll tell you. So, um, I’ll just get this out of the way, even though I know you’re not gonna answer any questions. You don’t wanna answer any questions. I’m just gonna read this for ya, and then if you decide to ask questions after that you can. All right? Um, you’ve been detained for having committed the crime of homicide and aggravated assault.

DILIZ: What the fuck? What do you mean?

DETECTIVE: Um, before proceeding in this matter, it is my responsibility to inform you of your rights. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to the presence of an attorney to assist you prior to questioning and be with you during questioning if you so desire. If you cannot afford an attorney, you have the right to have an attorney appointed for you prior to questioning. Do you understand?

DILIZ: Why am I getting charged with homicide and aggravated assault? I didn’t kill anybody.

DETECTIVE: So, I can answer those questions and, um, if—if you do wanna talk about it, I’m —I’m happy to answer those questions. Um . . .

DILIZ: Okay.

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DETECTIVE: . . . the—the things that I just read, do you understand?

DILIZ: Yeah. Yeah. But, well, I didn’t kill anybody.

DETECTIVE: Okay.

DILIZ: What the fuck?

DETECTIVE: So, um, do you—before, just a couple of seconds ago, you said you didn’t wanna talk or answer any questions. Do—do you wanna talk now, and I’ll answer what I can? Um, so it—it’ll basically be like a conversation that we’re havin’. Is that what you wanna do?

DILIZ: You guys have fucked me over a lot of times before. I’m not saying you specifically, I’m saying cops in general, so this is kind of— all right, tell me what the fuck happened.

The detective then continued to interview Diliz about the incident for nearly an hour.

¶7 Diliz argues the detective violated his Fifth Amendment right to remain silent by failing to scrupulously honor his invocation of the right to remain silent. The Fifth Amendment provides protections against self-incrimination, which includes the right to remain silent during custodial interrogations. U.S. Const. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6, 13 (1964) (“[T]he Fifth Amendment’s exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States.”); Ariz. Const. art. II, § 10 (guaranteeing “[n]o person shall be compelled in any criminal case to give evidence against himself”).

¶8 The Fifth Amendment protections are not self-executing, and an individual must assert them. State v. Melendez, 259 Ariz. 282, ¶ 19 (2025). The invocation must be objectively unequivocal and unambiguous. Payne, 233 Ariz. 484, ¶ 40. However, the “[i]nvocation of the right to remain silent need not be made with precision.” State v. Cota, 229 Ariz. 136, ¶ 26 (2012); see also Davis v. United States, 512 U.S. 452, 459 (1994) (to invoke Miranda

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protections, individual need not “speak with the discrimination of an Oxford don”).

¶9 Arizona courts have repeatedly held that statements similar to Diliz’s constitute an invocation of the right to remain silent. State v. Finehout, 136 Ariz. 226, 229 (1983) (“Well, I ain’t going to say any more” unambiguous invocation of right to remain silent); State v. Strayhand, 184 Ariz. 571, 585 (App. 1995) (“Well, I don’t want [to] answer anymore” clear invocation of right to remain silent); see also State v. Szpyrka, 220 Ariz. 59,

¶ 5 (App. 2008) (“I got nothin’ to say” sufficiently unambiguous invocation of Fifth Amendment). Nor was the invocation ambiguous to the detective. During the interview, the detective reiterated, at least four separate times, his understanding that Diliz did not want to answer “any questions.” And, in the suppression hearing, the detective acknowledged that he understood Diliz’s statement—“I don’t wanna be questioned about anything right now”—as an invocation of his right to remain silent. Therefore, the record amply supports the trial court’s determination that Diliz had invoked his right to remain silent.2

¶10 When a suspect invokes their right to remain silent at any time before or during interrogation, the questioning must stop. Miranda, 384 U.S. at 473-74; Szpyrka, 220 Ariz. 59, ¶ 4. Thereafter, a suspect’s invocation of his right to remain silent must be “scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 104 (1975) (quoting Miranda, 384 U.S. at 479); State v. Carter, 145 Ariz. 101, 107 (1985). Under Miranda, interrogation includes both express questioning or its functional equivalent, meaning “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980).

¶11 In practice, once a defendant has invoked his right to remain silent, further comments by officers that operate to “delay, confuse, or burden the suspect in his assertion of his rights”—even if not related to the

2Relying on Melendez, the state contends that Diliz did not unequivocally and unambiguously invoke his rights. 259 Ariz. 282. In Melendez, our supreme court characterized a defendant’s statements that he would “hold” and “pass” on answering certain questions as “tactical deferrals.” Id. ¶¶ 21-22. But merely demurring on answering some of an officer’s questions bears no resemblance to Diliz’s immediate assertion that he did not wish to be questioned at all.

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alleged crime—violate the requirement that the invocation be scrupulously honored. Szpyrka, 220 Ariz. 59, ¶¶ 6-8 (quoting Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987)). Accordingly, we have found impermissible those interrogation tactics, however subtle, that operate to persuade a suspect to relent from a decision to invoke. Id. ¶¶ 7-9 (asking suspect if he wanted to give his side of story improper even when presented under guise of clarifying whether suspect was invoking); Strayhand, 184 Ariz. at 585-87 (detective redirecting interview away from alleged crime and toward suspect’s personal problems before returning to questions about crime).3

¶12 Here, rather than scrupulously honoring Diliz’s invocation, the detective made several comments—some subtle, others direct— oriented towards persuading Diliz to reconsider his decision to invoke. When Diliz explained that he did not want to be questioned because of his physical condition, the detective responded, “If you change your mind, you let me know. Okay?” Then, the detective suggested that Diliz might wish to initiate further dialogue about the crime after hearing the formal basis for his detention and the Miranda advisory: “I’m just gonna read this for ya, and then if you decide to ask questions after that you can. All right?”4 Crucially, after Diliz reacted with surprise to the homicide charges, the detective twice conditioned any further explanation for those charges on the defendant’s willingness to talk about the crime: “[I]f you do want to talk about it, I’m—I’m happy to answer those questions. . . . [J]ust a couple

3The dissent suggests that an officer may permissibly engage in tactics to induce a suspect to reinitiate an interrogation so long as the defendant ultimately does so “of his own free will.” But, as Szpyrka and Strayhand aptly demonstrate, once a suspect has invoked their right to silence, all interrogation tactics or inducements to answer questions of any kind—even non-coercive ones—must stop. 220 Ariz. 59; 184 Ariz. 571. Whether an officer’s tactics amounted to coercive behavior that overbore the will of the suspect would be pertinent to a voluntariness claim—a separate inquiry we do not address. See Boggs, 218 Ariz. 325, ¶ 44; State v. Montes, 136 Ariz. 491, 494 (1983) (“Voluntariness and Miranda [violations] are two separate inquiries.”).

4We do not determine whether indirect suggestions that a defendant

might wish to reconsider an invocation, such as those that occurred here, would, standing alone, constitute a failure to scrupulously honor an invocation. We merely hold that the sum total of such suggestions here— coupled with the detective’s offer to trade information about the case if Diliz waived his right to remain silent—constitute such a failure.

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of seconds ago, you said you didn’t wanna talk or answer any questions. Do—do you wanna talk now, and I’ll answer what I can?”

¶13 As the state correctly observes, an officer’s statements “normally attendant to arrest and custody” are not themselves considered interrogation. Innis, 446 U.S. at 300-02; see, e.g., State v. Maximo, 170 Ariz. 94, 98 (App. 1991) (“Merely informing a defendant of the circumstances of an investigation is not tantamount to interrogation.”). It therefore argues that the detective engaged in no impermissible conduct when he advised Diliz of the basis for his detention and then read the Miranda advisory. But, the detective did more than that. He framed those events as a basis for Diliz to reconsider whether to reinitiate a dialogue about the offense. And, the detective went far beyond the tasks normally attendant to detention when he expressly sought Diliz’s waiver of his right to remain silent in return for providing further information regarding the basis for the homicide charges. Far from scrupulously honoring Diliz’s invocation, the latter action constituted a plain inducement to persuade Diliz to answer questions about the incident. See Szpyrka, 220 Ariz. 59, ¶¶ 8-10 (officer invitations to speak post-invocation that alluded to “potential benefit of speaking to the officer” characterized as interrogation).

¶14 In this respect, the detective’s actions are akin to those we found impermissible in Szpyrka and Strayhand. In those cases, we found that the officers had improperly conducted interrogation practices that might be considered non-coercive and lawful in other contexts. See Szpyrka, 220 Ariz. 59, ¶¶ 6-7 (acknowledging entitlement of officer to clarify ambiguous invocation but finding detective’s persistent efforts to clarify an unambiguous invocation failed to scrupulously honor defendant’s right to remain silent); Strayhand, 184 Ariz. at 585-86 (detective failed to scrupulously honor invocation when he prolonged post-invocation conversation with non-investigatory discussion of defendant’s personal problems).

¶15 The state, however, contends the trial court correctly concluded that Diliz waived his right to remain silent by reinitiating conversation with the detective. A suspect may indeed waive his rights by “initiat[ing] further communication, exchanges, or conversations” with law enforcement. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). However, waivers do not occur when the suspect, as here, reinitiates discussion in response to law enforcement inducements to do so. See Innis, 446 U.S. at 300-01 (suspect’s responses to statements from police likely to elicit an incriminating response not valid waiver); State v. Jones, 203 Ariz. 1, ¶ 15

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(2002) (same); Szpyrka, 220 Ariz. 59, ¶¶ 6-8 (no waiver where reinitiation occurred only after officer declined to acknowledge invocation coupled with suggestion of benefit to reinitiation); Strayhand, 184 Ariz. at 585-86 (no waiver where reinitiation occurred after detective continued discussion on non-incident topics before returning to interrogation about crimes).

¶16 Furthermore, not every post-invocation exchange constitutes a reinitiation. Rather, the suspect must express “a desire for a generalized discussion about the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). Relying on Bradshaw, the state maintains that “Diliz initiated discussion by telling [the detective] to tell [Diliz] what happened.” See id. at 1040-41, 1045-46.

¶17 But whether reinitiation has occurred turns on the specific interplay between the officer and the suspect. In Bradshaw, the defendant invoked his Fifth Amendment right to counsel. 462 U.S. at 1041-42. The officer scrupulously honored that invocation and immediately ended the conversation. Id. After some time had passed, the defendant reinitiated the conversation when, without prompting of any kind, he asked the officer, “Well, what is going to happen to me now?” Id.

¶18 Here, as discussed above, the detective did not scrupulously honor the invocation but rather persistently treated it as something Diliz might want to reconsider. And, Diliz sought further details about his case only after the detective had suggested that learning about the charges against him might cause him to want to ask such questions. 5 Then, Diliz proceeded with the interview only after the detective conditioned providing information about the nature of the charges on Diliz’s agreement to answer questions about the case: a plain inducement.

5In the context of the specific undisputed record of the dialogue, we

cannot agree that Diliz’s eventual question (about why he had been charged with homicide) itself constituted a reinitiation. In setting forth the ground rules of the interaction, the detective signaled that he would perceive Diliz asking questions as something different than answering them: “[E]ven though I know you’re not gonna answer any questions . . . I’m just gonna read this for ya, and then if you decide to ask questions after that you can.” (Emphasis added.) Notably, the detective abided by those ground rules and did not treat Diliz’s post-Miranda question about the charges as a reinitiation.

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¶19 Our dissenting colleague contends that the trial court’s differing assessment is an equally plausible construction of the events and that we therefore owe deference to it. See Adair, 241 Ariz. 58, ¶ 9 (“[W]e generally defer to a trial court’s factual findings if reasonably supported by the evidence.”). But here, the facts pertinent to our conclusion are undisputed. Indeed, the accuracy of the audio recording and the transcript of the interrogation was unchallenged by either party during the suppression hearing. And, the sole basis for our legal conclusion, the content and sequence of the exchange, was likewise undisputed.

¶20 The dissent misreads State v. Alvarez-Soto, 261 Ariz. 21 (2025), as holding that this court must defer to how the trial court applies undisputed facts to the controlling law. There, our supreme court disapproved of this court’s reasoning when we drew different factual conclusions than the trial court from a video recording that provided incomplete information. Alvarez-Soto, 261 Ariz. 21, ¶ 32. As our supreme court observed, where the legally crucial sequence of events depicted in video evidence is factually disputed, the credibility and the demeanor of witnesses and the context provided by the witness testimony are rendered relevant. Id. ¶¶ 31-33. In short, we erred in failing to honor the trial court’s conclusions as to crucial disputed facts over which the trial court possessed superior information. See id. Notably, however, our supreme court reaffirmed that it was not disturbing this court’s long-settled entitlement to conduct de novo review on the application of undisputed facts to the law. Id. ¶ 13 (“We defer to the trial court’s factual findings if they are supported by the record but review de novo whether those facts establish reasonable suspicion.”).

¶21 In short, Arizona appellate courts do not defer to the trial court in arriving at ultimate legal determinations based on undisputed events. Id.; Evans, 237 Ariz. 231, ¶ 6 (“ultimate legal determination” on “mixed question of fact and law” reviewed “de novo”). Citing this settled principle, we have reversed a trial court when addressing a similar issue to that presented here. Szpyrka, 220 Ariz. 59, ¶¶ 2, 7 (disagreeing with trial court’s characterization of undisputed dialogue between detective and defendant and observing that “we review the court’s ultimate legal conclusions de novo”).

¶22 For the above reasons, we conclude Diliz’s statements were obtained in violation of his Miranda right to remain silent, and the trial court abused its discretion by denying the motion to suppress. Having done so, we must determine whether that error requires reversal. When statements

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are inadmissible because they were taken in violation of Miranda, we review the remaining evidence against the defendant to determine whether the erroneously admitted statements were harmless. State v. Rodriguez, 186 Ariz. 240, 246 (1996). To show harmlessness, however, the state bears the burden of proving beyond a reasonable doubt that the error did not contribute to the verdict. State v. Henderson, 210 Ariz. 561, ¶ 18 (2005). The state has offered no argument that the admission of the statements was harmless as to any count. It has therefore failed to meet its burden of demonstrating harmlessness. See id. Accordingly, we vacate Diliz’s convictions and sentences in this cause number and remand for a new trial.6

II. Sufficiency of Evidence for Aggravated Assault7

¶23 Diliz argues there was insufficient evidence to support his conviction for aggravated assault against M.M. We review de novo the sufficiency of the evidence. State v. Pena, 235 Ariz. 277, ¶ 5 (2014). We will affirm if substantial evidence supports the verdict. State v. Scott, 177 Ariz. 131, 138 (1993). Substantial evidence is evidence that a reasonable fact-finder “could accept as sufficient to support a guilty verdict beyond a reasonable doubt.” Pena, 235 Ariz. 277, ¶ 5 (quoting State v. Hausner, 230 Ariz. 60, ¶ 50 (2012)). Substantial evidence may be direct or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005). We will not reweigh conflicting evidence or reassess witness credibility on appeal. State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (App. 2013). We view all facts in the light most favorable to sustain the verdict and resolve all conflicts in the evidence against Diliz. See Pena, 235 Ariz. 277, ¶ 5.

6On appeal, Diliz suggests that the detective’s promise to explain the

basis for his charges in return for Diliz’s waiver itself rendered Diliz’s statements involuntary. See Hutto v. Ross, 429 U.S. 28, 30 (1976) (any threat or promise, “however slight,” to induce waiver renders statements involuntary). But we need not reach this issue because we suppress the underlying statements on other grounds and because Diliz did not argue to the trial court that the detective’s promise, standing alone, rendered his statements involuntary.

7We address this issue although we are vacating all counts. We do so because Diliz would be entitled to an acquittal, rather than mere remand, on the disputed count if we determined the state had presented insufficient evidence to support it. See Ariz. R. Crim. P. 20(a).

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¶24 To support Diliz’s conviction, the state had to demonstrate he used the vehicle as “a deadly weapon or dangerous instrument” to “intentionally, knowingly or recklessly” cause a “physical injury” to M.M. See A.R.S. §§ 13-1203(A)(1), 13-1204(A)(2). The jury was instructed that “physical injury” means impairment of one’s physical condition. See A.R.S. § 13-105(33). Diliz contends that the state failed to provide substantial evidence that one victim, M.M., suffered such injury.

¶25 The state provided substantial evidence that Diliz recklessly caused a high-speed vehicular accident that was fatal to three passengers and injurious to others. Although M.M.’s treating doctor testified from medical records that M.M. was the “least injured” of the vehicle’s passengers, those records also stated that M.M. was “an unrestrained passenger” who was “injured in collision.” M.M.’s treating doctor administered pain medication to him and recommended a follow-up appointment for a “wound recheck.” Somewhat conflictingly, those records also stated that M.M. showed “no evidence of trauma,” had “no complaints of pain,” and suffered “no injuries.” But, viewing the evidence in the light most favorable to the state as we must, we conclude the state presented evidence from which a reasonable juror could conclude that M.M. suffered some physical injury from the high-speed roll-over caused by Diliz’s reckless driving. See Pena, 235 Ariz. 277, ¶ 5.

Disposition

¶26 For the foregoing reasons, Diliz’s convictions and sentences are vacated, and this case is remanded for a new trial.

G A R D, Presiding Judge, dissenting in part:

¶27 The parties offered the trial court competing interpretations of an audio-recorded discussion between Diliz and a detective.8 Diliz argued the detective had failed to honor his invocation of his right to remain silent, see Michigan v. Mosley, 423 U.S. 96, 103-04 (1975), while the state argued Diliz had reinitiated contact with the detective following his invocation, permitting further questioning, see Oregon v. Bradshaw, 462 U.S. 1039, 1044-46 (1983) (plurality opinion).

8I join Section II of the majority’s decision, in which it concludes that

the evidence was sufficient to support Diliz’s conviction for aggravated assault against M.M.

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¶28 After receiving both the recording and a written transcript of the conversation and hearing testimony from Diliz and the detective, the trial court resolved the dispute in the state’s favor. The court entered detailed factual findings, including that Diliz had “demonstrated a willingness and a desire for a generalized discussion about the investigation” and had “reinitiated conversation with the [d]etective on his own accord.” It also rejected Diliz’s assertion that the detective had promised “to provide answers [about his charges] in return for a confession.” Based on these findings, the court determined that no Miranda violation had occurred and denied Diliz’s motion to suppress. I respectfully dissent from the majority’s decision reversing this well-supported ruling.

The majority errs by independently reviewing and drawing its own inferences from the recorded conversation.

¶29 The majority gives no meaningful deference to the trial court’s factual findings, which are dispositive of the motion to suppress. See State v. Alvarez-Soto, 261 Ariz. 21, ¶ 31 (2025) (“We defer to the trial court’s factual findings if they are reasonably supported by the record but review de novo the ultimate constitutional question presented in the motion to suppress.”). Instead, it independently reviews the recorded conversation and, based on inferences drawn from the detective’s words, opines that he induced Diliz to ask questions and then conditioned his answers on Diliz’s agreement to speak. Based on this assessment, the majority concludes that the detective failed to honor Diliz’s invocation and the court erred by finding Diliz had reinitiated the discussion “on his own accord.”

¶30 But as explained below, even if the record could support the inferences the majority draws, which I question, it equally supports the trial court’s finding that Diliz reinitiated his conversation with the detective. This is particularly true when one views the record, as we must, in the light most favorable to sustaining the court’s ruling. See Alvarez-Soto, 261 Ariz. 21, ¶ 31. Under these circumstances, the majority should have deferred to the court’s findings and resolved all conflicting inferences in favor of upholding them. See id. ¶¶ 33 & 34 (when recording “is open to differing interpretations or requires contextual testimony, appellate courts must defer to the trial court’s findings if reasonably supported by the evidence”); see also State v. Staatz, 159 Ariz. 411, 414-15 (1988) (“The trial court occupies the position of resolving factual disputes, and where conflicting inferences may be drawn from the evidence, we must resolve the issues in a manner

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most likely to uphold the trial court’s findings.”), disapproved on other grounds by State v. LeBlanc, 186 Ariz. 437, 440 (1996).

¶31 The majority nonetheless maintains that it owes the trial court no deference because the recording’s accuracy, and therefore the relevant factual record, is undisputed, leaving for appellate review only the ultimate legal question whether a constitutional violation occurred. See Alvarez-Soto, 261 Ariz. 21, ¶ 31. But the majority does not simply apply the law to a set of established and agreed-upon facts. It instead infers from the detective’s facially neutral statements an implicit and persistent effort to “persuad[e] Diliz to reconsider his decision to invoke.” The majority then uses that inference to proclaim the trial court’s finding of reinitiation erroneous because, in light of the majority’s interpretation of the recording, Diliz could not have acted of his own free will. See id. ¶ 34 (recognizing interest in reinforcing “the trial court’s role as the primary factfinder” and preventing “appellate reweighing of evidence under the guise of ‘independent’ review”).

¶32 The majority’s threshold question should have been whether, when viewed in the light most favorable to affirming the trial court’s ruling, the record reasonably supports the court’s interpretation. See Alvarez-Soto, 261 Ariz. 21, ¶¶ 31, 34. But the majority bypasses this question and instead effectively applies the approach our supreme court disapproved in Alvarez-Soto. Although that case specifically addressed video recordings, it stands for the broader principle that an appellate court may not independently review any recording, draw its own inferences from it, and use those inferences alone to overturn a trial court’s otherwise-supported decision on a motion to suppress. Alvarez-Soto, 261 Ariz. 21, ¶¶ 29-34. That is precisely what the majority does here.

The trial court’s finding that Diliz reinitiated the conversation is supported by the record and dispositive of the Miranda issue.

¶33 It is well-established that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’” Mosley, 423 U.S. at 104 (quoting Miranda v. Arizona, 384 U.S. 436, 474, 479 (1966)); see also State v. Finehout, 136 Ariz. 226, 230 (1983). “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74. Officers must likewise refrain from engaging in actions that are the functional equivalent of interrogation. See State v. Stanley, 167 Ariz. 519, 524 (1991) (functional equivalent of

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questioning “encompasses ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect’” (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980))). And they may not “persist[] in repeated efforts to wear down [a suspect’s] resistance and make him change his mind” about remaining silent. Mosley, 423 U.S. at 105-06; see also (Steven) Smith v. Illinois, 469 U.S. 91, 98 (1984) (per curiam) (requirement that questioning cease after suspect invokes right to counsel reflects concern that “through ‘badger[ing]’ or ‘overreaching’— explicit or subtle, deliberate or unintentional—[authorities] might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance” (alteration in Smith) (quoting Bradshaw, 462 U.S. at 1044 & Fare v. Michael C., 442 U.S. 707, 719 (1979))). In determining whether an officer’s conduct constitutes interrogation, courts “focus on the defendant’s perspective rather than police intent.” State v. Jones, 203 Ariz. 1, ¶ 15 (2002).

¶34 But it is equally well-established that, even when a suspect has invoked his right to remain silent or to counsel, “any ‘further communication, exchanges, or conversations with the police’ that the suspect himself initiates are perfectly valid.” Arizona v. Roberson, 486 U.S. 675, 687 (1988) (citation omitted) (quoting Edwards v. Arizona, 451 U.S. 477, 485 (1981)); see also Jones, 203 Ariz. 1, ¶ 9 (“[I]f the suspect reinitiates contact with the police, he waives his rights and questioning can continue.”).9 A suspect reinitiates contact with law enforcement by showing “a willingness and a desire for a generalized discussion about the investigation.” Bradshaw, 462 U.S. at 1045-46; see also State v. Yonkman, 231 Ariz. 496, ¶ 10

9If a court finds a suspect has reinitiated contact with police, it must

then consider whether the suspect knowingly and intelligently waived his rights in making his statements. State v. James, 141 Ariz. 141, 145 (1984). “In making the determination concerning waiver the trial court can look at the totality of the circumstances, including the conduct of the accused, his background and experience.” Id. Here, the trial court found that Diliz “knew his rights and was keenly aware of and familiar with the risks of talking with law enforcement,” that “he is intelligent and confident, and a skilled communicator,” that he was “not impaired, inhibited or coerced,” and that he spoke to the detective both to learn more about his circumstances and “to talk his way out of a very serious predicament.” The majority does not reach this part of the inquiry, however, because it finds Diliz did not reinitiate contact.

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(2013) (“A suspect may reinitiate questioning after terminating it by reopening a dialog with officers about the investigation.”). “The initiation inquiry focuses not on the suspect’s subjective intent but, rather, on the objective reasonableness of the officer’s interpretation of the suspect’s statements.” United States v. Carpentino, 948 F.3d 10, 22 (1st Cir. 2020); see also Bradshaw, 462 U.S. at 1045-46 (suspect’s statement, though ambiguous, “could reasonably have been interpreted by the officer as relating generally to the investigation”).

¶35 Under this broad standard, “most indications of willingness to continue to speak” will reinitiate a dialogue with law enforcement. Staatz, 159 Ariz. at 414; see also Bradshaw, 462 U.S. at 1045 (“[W]e doubt that it would be desirable to build a superstructure of legal refinements around the word ‘initiate’ in this context . . . .”). The exception is that “inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally ‘initiate’ a conversation.” Bradshaw, 462 U.S. at 1045.

¶36 The reinitiation inquiry is inherently fact-intensive and turns on the circumstances of each case, and courts have found a variety of case-related comments and inquiries sufficient to reinitiate police contact. For example, in Bradshaw itself, the suspect’s inquiry, “Well, what is going to happen to me now?,” showed a “willingness and a desire for a generalized discussion about the investigation.” Id. at 1045-46. In Jones, the suspect asked what was going to happen to him, why he was being questioned, what the penalties were for murder, and about another person’s name that appeared on a warrant with which he had been served. 203 Ariz. 1, ¶¶ 10-17. In State v. Burns, the suspect asked about his son’s welfare. 142 Ariz. 531, 533-35 (1984). And in State v. Inman, the suspect asked questions about the charges against her immediately after requesting counsel. 151 Ariz. 413, 416-17 (App. 1986). Other examples are plentiful. State v. (Todd) Smith, 193 Ariz. 452, ¶ 23 (1999) (suspect showed “a desire for a discussion about the investigation” by stating, “I don’t see why I shouldn’t just tell you”); Staatz, 159 Ariz. at 412-15 (suspect continued to speak after requesting counsel); State v. James, 141 Ariz. 141, 144-46 (1984) (after overhearing detectives’ conversation about body’s location, suspect volunteered to tell them where body was); State v. (Larry) Smith, 156 Ariz. 518, 522-23 (App. 1987) (suspect inquired about victim’s statements to police), disapproved on other grounds by State v. Jonas, 164 Ariz. 242, 249-50 (1990).

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¶37 Similarly, here, the record supports the trial court’s finding that Diliz had “demonstrated a willingness and a desire for a generalized discussion about the investigation” and had “reinitiated conversation with the [d]etective on his own accord” after initially terminating questioning. At the outset of the discussion, Diliz stated, “I don’t wanna be questioned about anything right now.” I agree with the majority that, through this statement, Diliz unequivocally invoked his right to remain silent. 10 See Miranda, 384 U.S. at 473-74. The detective likewise interpreted the comment as an invocation, assuring Diliz, “I won’t ask you any questions at all,” and remarking, “If you change your mind, you let me know.”

¶38 The majority cannot dispute that the detective fulfilled his obligation to stop questioning Diliz when he invoked his right to remain silent. See id. Nonetheless, it construes the detective’s “change-your-mind” comment as the first of many that operated to persuade Diliz to reconsider his invocation. But viewed in context and in the light most favorable to affirming the trial court’s ruling, see Alvarez-Soto, 261 Ariz. 21, ¶ 31, the “change-your-mind” comment was not persuasive in nature but merely a response to Diliz’s statement that he did not want to speak “right now,” which left open the possibility that he might be willing to speak later.

¶39 After Diliz invoked his right to remain silent, the detective advised him of the basis for his arrest, consistent with both the detective’s standard practice and state law. See A.R.S. § 13-3888 (“When making an arrest without a warrant, the officer shall inform the person to be arrested of . . . the cause of the arrest.”). Before giving Diliz that information, however, the detective again acknowledged his invocation: “I know you’re not gonna answer any questions. You don’t wanna answer any questions. I’m just gonna read this for ya, and then if you decide to ask questions after that you can.”

10I am not persuaded by the state’s argument that Diliz’s invocation

was equivocal under State v. Melendez, 259 Ariz. 282, ¶¶ 21-23 (2025), merely because he stated he did not want to speak “right now.” In Melendez, the suspect engaged in what our supreme court “characterized as tactical deferrals to responding to specific questions [rather] than unequivocal refusals to answer.” Id. ¶ 22. Diliz, in contrast, categorically refused to answer any questions at the discussion’s inception, even if he left open the possibility of answering questions later, and the detective treated his statements as an invocation and did not question him.

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¶40 The majority does not appear to disagree that an officer’s statement advising a suspect of the basis for his detention is incidental to arrest and custody and does not constitute interrogation. See Bradshaw, 462 U.S. at 1045; Innis, 446 U.S. at 301; Stanley, 167 Ariz. at 524. Instead, the majority faults the detective for remarking that Diliz could “ask questions” if he “decide[d]” to do so after the detective had completed his advisement. According to the majority, this comment “suggested that learning about the charges against him might cause [Diliz] to want to ask” about the case, which in turn advanced the detective’s campaign to persuade Diliz to reconsider his invocation. But even taking the comment at face value—let alone viewing it in the light most favorable to sustaining the trial court’s ruling, see Alvarez-Soto, 261 Ariz. 21, ¶ 31—the detective did not “suggest” anything. He merely told Diliz that Diliz could ask questions “if” he “decide[d]” to do so, leaving that choice to Diliz. I fail to understand how this comment can be read as even subtly persuasive, see Steven Smith, 469 U.S. at 98, or reasonably likely to elicit an incriminating response from Diliz, see Stanley, 167 Ariz. at 524.

¶41 Next, the detective formally advised Diliz that he was being detained for homicide and aggravated assault, after which Diliz interjected: “What the fuck? What do you mean?” The detective did not respond to these inquiries, instead reading the Miranda advisement and asking Diliz if he understood it. But rather than confirming his understanding, Diliz responded with a generalized question about the investigation and a proclamation of innocence: “Why am I getting charged with homicide and aggravated assault? I didn’t kill anybody.” (Emphasis added.) In my view, this statement alone showed Diliz’s “willingness and . . . desire for a generalized discussion about the investigation,” Bradshaw, 462 U.S. at 1045-46, which reopened the dialogue and would have permitted the detective to question him.11 See Yonkman, 231 Ariz. 496, ¶ 10; Jones, 203 Ariz. 1, ¶ 9.

¶42 The detective did not, however, question Diliz, instead responding to Diliz’s case-related inquiry by explaining that he could

11The trial court did not identify precisely when in his interaction

with the detective Diliz reinitiated the discussion. The state, however, appears to take the position that the reinitiation occurred later in the conversation when Diliz expressly asked the detective to tell him what happened. Even if this is correct, there was no constitutional violation for the reasons I explain above.

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answer if Diliz wanted to “talk about it.” But first, the detective sought to confirm that Diliz understood the charges and the Miranda advisement. Diliz responded affirmatively and again denied killing anyone. Only then did the detective follow up on Diliz’s case-related question: “[J]ust a couple of seconds ago, you said you didn’t wanna talk or answer any questions. Do—do you wanna talk now, and I’ll answer what I can? . . . [S]o . . . it’ll basically be like a conversation that we’re havin’. Is that what you wanna do?” After some hesitation, Diliz agreed and said, “[T]ell me what the fuck happened.” The detective then interrogated Diliz about the events giving rise to his arrest.

¶43 Based on this final exchange, the majority opines that Diliz “proceeded with the interview only after the detective conditioned providing information about the nature of the charges on Diliz’s agreement to answer questions about the case: a plain inducement.” But viewing the exchange in the light most favorable to affirming the trial court’s ruling, see Alvarez-Soto, 261 Ariz. 21, ¶ 31, the detective’s comments were not “plain inducement[s]” but instead gave rise to competing inferences. In particular, the detective’s remarks can reasonably be interpreted in a manner that supports the trial court’s ruling: they can be construed to reflect a cautionary refusal to discuss the specifics of the investigation in light of Diliz’s prior invocation and a simultaneous attempt to clarify whether Diliz’s case-related inquiry indicated he now wished to speak. See Todd Smith, 193 Ariz. 452, ¶¶ 23-25 (observing, in affirming trial court’s finding of reinitiation, that detective had “removed any doubt” that the suspect had reinitiated by “clarifying that [his] statement was an indication that he wanted to speak”); cf. Davis v. United States, 512 U.S. 452, 461 (1994) (“Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect’s statement regarding counsel.”).

¶44 To support its conclusion that the detective interrogated Diliz, the majority relies primarily on two opinions from this court, State v. Szpyrka, 220 Ariz. 59 (App. 2008), and State v. Strayhand, 184 Ariz. 571 (App. 1995). But this authority is readily distinguishable, both factually and legally. Szpyrka concerned whether a suspect had unambiguously invoked in the first place and whether the police had exceeded the permissible bounds of questioning to clarify that point, not whether, as here, the suspect had reinitiated discussion following an unambiguous invocation. 220 Ariz. 59, ¶¶ 2-9; see Steven Smith, 469 U.S. at 98 (“Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging

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them together.”). In fact, the state does not appear to have argued in Szpyrka that the suspect reinitiated the conversation. 220 Ariz. 59, n.3.

¶45 Moreover, the interrogation tactics used in Szpyrka contrast markedly with the detective’s conduct here. In Szpyrka, the suspect twice stated in response to questioning that he had “nothin’ to say.” 220 Ariz. 59,

¶ 3. The detective thereafter pressed the suspect for a “yes or no” answer on whether he wished to speak and “give [his] side of the story.” Id. This court concluded that the suspect had unambiguously invoked his right to remain silent and that the detective’s subsequent questioning was interrogation, not an effort to clarify ambiguity. Id. ¶¶ 6-9. We reasoned that the detective had effectively interrogated the suspect by “suggesting incorrectly that [he] had to specifically say ‘no’ [to speaking] to have his invocation honored,” and asking him if he wanted to tell his side of the story. Id. ¶¶ 7-8. “Because the detective did not . . . terminate the questioning” after the suspect’s invocation “but rather employed interrogation tactics designed to persuade [the suspect] to second-guess his initial decision to invoke,” the resulting statements should have been suppressed. Id. ¶ 9.

¶46 In Strayhand, the issue was voluntariness, although the detectives’ Miranda violation played a role in this court’s extensive totality-of-the-circumstances analysis. 184 Ariz. at 581-87; see State v. Rodriguez, 260 Ariz. 36, n.4 (App. 2025) (“[V]oluntariness and Miranda warning violations are two distinct inquiries.”). This court rejected the state’s argument that the suspect’s multiple invocations, one of which was, “Well I don’t want [to] answer anymore,” were ambiguous. Strayhand, 184 Ariz. at 584-87 (alteration in Strayhand). Following the invocations, the detectives had changed the discussion’s subject to other matters only to return to the crimes under investigation, leading this court to conclude that they had “simply ignored [the invocations] by creating a diversion.” Id. at 585. And even assuming the suspect’s invocation had been ambiguous, this court concluded that the detectives’ inquiries were not permissible clarification efforts because they did not actually seek clarification. Id. at 585-86.

¶47 In contrast, the detective here did not invite Diliz to tell his side of the story, demand a “yes-or-no” answer as to whether he was invoking, or employ other persuasive language as in Szpyrka. Nor did the detective ignore Diliz’s invocation as in Strayhand; in fact, he repeatedly reminded Diliz of it. And to the extent the majority opines that the detective’s efforts to clarify whether Diliz wished to speak exceeded the

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permissible bounds of such clarification, his inquiries on their face sought only to ascertain “whether [Diliz] intended to [continue to] invoke his right to silence” or to resume discussion. Finehout, 136 Ariz. at 229. The detective focused his questions on Diliz’s desire to speak rather than the facts of the offense, made no appeals to honesty or other virtues, see id. at 230, and made clear that the choice to resume discussion belonged to Diliz alone. See Todd Smith, 193 Ariz. 452, ¶ 20 (officer did not interrogate suspect where his “statements and questions were in response to [the suspect’s] questions and conversation,” and were not “designed to elicit incriminating responses”).

¶48 Our supreme court recently reminded us to defer to a trial court’s factual determinations and resolution of conflicting evidence when the record supports those findings. See Alvarez-Soto, 261 Ariz. 21, ¶ 33. This case does not involve legal error by the trial court, but the majority’s disagreement with its interpretation of a recorded discussion that, at best, gives rise to different inferences. The majority favors Diliz’s proposed interpretation, but the court’s interpretation is equally—if not more— reasonable and fully supported by the record. See Bradshaw, 462 U.S. at 1046-47 (court had “no reason to dispute” state trial court’s conclusions “based as they are upon the trial court’s first-hand observation of the witnesses to the events involved”). In my view, we must affirm under these circumstances. I therefore respectfully dissent.

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