Court of Appeals of Arizona, First Division, Department C
July 11, 2013
STATE OF ARIZONA, Appellee,
ANURAG PATHAK, Appellant.
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR 2008-165670-001 DT The Honorable Christopher T. Whitten, Judge
Terry Goddard, Arizona Attorney General Kent E. Cattani, Chief Counsel William S. Simon, Assistant Attorney General Criminal Appeals/Capital Litigation Section Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Paul J. Prato, Deputy Public Defender Attorneys for Appellant.
MARGARET H. DOWNIE, Presiding Judge.
¶1 Anurag Pathak ("defendant") appeals his criminal conviction. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY 
¶2 On October 20, 2008, Detective G.M., a member of the Crimes Against Children Unit, learned of a Child Protective Services (CPS) referral alleging that a young girl had been sexually abused by defendant. The girl and her mother were brought to the Child Help children's center,  where Detective G.M. conducted forensic interviews.
¶3 Defendant was indicted for sexual abuse, a class 3 felony and dangerous crime against children, pursuant to Arizona Revised Statute ("A.R.S.") section 13-1404 (2010). The indictment alleged that defendant intentionally or knowingly engaged in direct or indirect touching, fondling or manipulating of any part of the female breast of a minor under fifteen years of age.
¶4 A four-day jury trial was held. During the State's case-in-chief, Detective G.M. testified about his interviews, and his videotaped interview of the victim was played. During that interview, the detective told the victim several times that he planned to talk to defendant about what happened. The State ended its direct examination of Detective G.M. with the following colloquy:
Q. Now, after you interviewed [the victim] and had spoken to [her mother], what did you do after that?
A. We coordinated a little bit with CPS as far as their safety plan goes, and then I made contact or had Mr. Pathak brought down for an interview with me.
Q. And did he talk to you?
Defense counsel did not object to this testimony.
¶5 Additionally, the victim, her mother, a CPS caseworker, and a forensic interviewer testified for the State. The defense called defendant and two character witnesses to testify. The jury found defendant guilty, and the court sentenced him to lifetime probation, with terms including sex offender registration and jail time.
¶6 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033 (2010).
¶7 Defendant raises one argument on appeal: that the State violated his due process rights by asking Detective G.M. whether defendant had talked to him. Because defendant did not object to this evidence at trial, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (failure to object at trial waives issue absent fundamental error) (citations omitted). "Fundamental error" is error that goes to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Ruggiero, 211 Ariz. 262, 268, ¶ 25, 120 P.3d 690, 696 (App. 2005) (citations omitted). To obtain relief, defendant must demonstrate both that fundamental error occurred and that it caused him prejudice. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607 (citations omitted).
¶8 Using a defendant's post-Miranda silence for impeachment purposes at trial violates the due process clause of the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 619 (1976); State v. Keeley, 178 Ariz. 233, 235, 871 P.2d 1169, 1171 (App. 1994). This prohibition "rests on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him [via Miranda warnings] and then using his silence to impeach an explanation subsequently offered at trial." Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (internal quotations and citations omitted). Comment on a defendant's post-Miranda silence constitutes fundamental error. State v. Sorrell, 132 Ariz. 328, 329, 645 P.2d 1242, 1243 (1982).
¶9 There is, however, no constitutional impediment to using a defendant's silence prior to arrest, or after arrest if no Miranda warnings are given, for impeachment purposes. Brecht, 507 U.S. at 628. As defendant acknowledges, the record here does not establish when or if he was given Miranda warnings. According to defendant, Detective G.M.'s testimony that he was "brought [down] for an interview" implies he received Miranda warnings. We disagree that such an inference is implicit from that statement. Contrary to defendant's claim, Detective G.M. did not testify that defendant was brought down to the "station" for an interview. The detective testified the interviews were conducted in Child Help's "neutral" interview rooms located just outside a large play room. Detective G.M. had previously described the process to the jury as one requiring "independent interview[s] of all parties separately."
¶10 Because the record does not establish any improper comment about post-Miranda silence, we find no error, let alone fundamental error. Defendant's conviction and sentence are affirmed.
CONCURRING: DONN KESSLER, Judge, PETER B. SWANN, Judge.