Combined Opinion
309 Ga. 130
FINAL COPY
S20A0191. THE STATE v. PAULDO.
MCMILLIAN, Justice.
A Laurens County grand jury indicted Raekwon Letavius
Pauldo on one count of malice murder, one count of felony murder,
and three counts of aggravated assault in connection with the death
of Jacquel Smith. The trial court granted Pauldo’s motion in limine
to exclude the portions of his custodial interview with police after he
invoked his rights to remain silent and to counsel on the ground that
police failed to honor Pauldo’s invocation of those rights by
continuing to interrogate him.1 The State appeals that ruling.2
Because we conclude that police did not continue the interrogation,
1 The motion also sought to suppress Pauldo’s statements on the ground
that they were the product of an illegal arrest in violation of the Fourth
Amendment, but Pauldo’s counsel did not argue this issue at the motion
hearing. The trial court deemed the issue abandoned, and Pauldo did not file
a cross-appeal contesting this determination.
2 See OCGA § 5-7-1 (a) (4) (granting State right to appeal “[f]rom an
order, decision, or judgment suppressing or excluding evidence illegally seized
. . . in the case of motions made and ruled upon prior to the impaneling of a
jury or the defendant being put in jeopardy, whichever occurs first”).
that Pauldo reinitiated a conversation with police about the case,
and that he knowingly, intelligently, and voluntarily waived his
rights before further interrogation began, we reverse.
1. We begin by setting out our standard of review. In general,
this Court must accept a trial court’s findings of fact on a motion in
limine unless they are clearly erroneous. Dozier v. State, 306 Ga. 29,
33(4) (829 SE2d 131
) (2019). However, because Pauldo’s interview was both audio- and video-recorded, “the recording is part of the record on appeal, and the parties point to no evidence beyond the recorded interview to support their arguments regarding the admissibility” of the statement, “we review de novo the trial court’s determinations of both fact and law.”Id.
(citations and punctuation omitted). See also Johnson v. State,295 Ga. 421, 424
(2) (761 SE2d 13
) (2014).
The record reflects that Pauldo’s interview was conducted by a
detective from the Dublin Police Department and attended by an
agent from the department. The video recording of the interview
shows that after making introductions, the detective told Pauldo
that he would have to read Pauldo “[his] rights.” Pauldo asked in
response whether he was being arrested, and the detective replied,
“Not at this time.” After asking Pauldo for biographical information,
the detective read to Pauldo from a waiver-of-rights form the rights
set out in Miranda.3 Pauldo then unequivocally asserted his right to
remain silent, explaining, “[M]y mom and my lawyer feel that I’m
being more treated as . . . not a victim and [as] a suspect . . . . So they
told me it would just be best if I did not speak with you guys.” The
detective clarified, “Okay, so you don’t want to talk to us?” Pauldo
replied, “No, sir.” The detective then wrote, “Ray does not wish to
talk to us” on the waiver-of-rights form.
It is at this point in the interview that the trial court found that
the officers failed to scrupulously honor Pauldo’s invocation of his
right to remain silent. While the detective was writing on the form,
the agent prompted him about a gunshot residue test. Immediately
thereafter, the detective asked Pauldo, “[D]o you mind giving us
some gun residue — [w]e’re going to do a gun residue test.” Pauldo
3 Miranda v. Arizona, 384 U. S. 436(86 SCt 1602
, 16 LE2d 694) (1966).
then asked something unintelligible about “gun residue.” The
detective replied, “To see if you shot a gun today[,]” and asked
Pauldo if he minded submitting to the test. When Pauldo asked if he
had to consent to the test, the detective told him he did not have to
consent but explained, “I’m going to get a search warrant and do it
anyway.” Pauldo responded, “Alright.”
The detective then added “and the clothes that you have on,
we’re gonna have to take those. So, once you get out to the jail, once
you take those off, we will take those as evidence.” In response,
Pauldo asked again whether he was being arrested, and the
detective confirmed that he was, despite having told Pauldo minutes
before that he was not being arrested. After Pauldo asked what he
was being arrested for, the detective responded, “Homicide.” Pauldo
asked why, and the detective explained that they had talked to “a
lot of people,” and they had identified him as the shooter. Pauldo
then started talking again, saying, “Sir,” but the detective
interrupted to say: “You’ve already told me that you wanted your
lawyer here. They told you not to talk to me. Now, if you want to talk
to me, that’s up to you.” Pauldo replied that he did not understand
why he was being arrested and that he “did not do this,” asking
again, “Why am I being arrested?” In response, the detective asked,
“Ray, do you want to talk to me?” Pauldo replied, “I mean, I will talk
to you. I’m sitting here; I’m talking to you now. I’m telling you, like,
why . . . .” The detective again interjected, “Do you want to talk to
me about this incident?” Pauldo replied, “I will talk to you about this
incident, sir[,]” first stating that he was not there, then correcting
himself to say that he was there, but asserting that he was not
responsible for the shooting. Pauldo then asked the detective, “What
[do] you want to know?”
At that point, the detective stated that if Pauldo wanted to talk
to the detective, he needed to sign the waiver-of-rights form. The
detective again asked Pauldo, “So you’re changing your mind, and
you want to talk to me?” Pauldo replied, “I will talk to you, yeah, to
benefit me, anything . . . . I don’t want to be arrested for homicide.”
In response, the detective instructed Pauldo to sign the form under
the detective’s handwritten statement that “Ray has changed his
mind and wishes to talk.” Pauldo signed the form, the agent
witnessed his signature, and the interrogation began. This entire
exchange unfolded over approximately seven minutes on the video
recording.
2. In reviewing the trial court’s grant of Pauldo’s motion in
limine, which sought to exclude from evidence any statements he
made after invoking his right to remain silent,4 we start with the
general principle that “[p]olice must scrupulously honor a suspect’s
right to remain silent if the person clearly and unambiguously states
that he wants to end a custodial interrogation.” Brown v. State, 304
Ga. 435, 440(2) (b) (819 SE2d 14
) (2018) (citations omitted). See also Mack v. State,296 Ga. 239, 243
(2) (765 SE2d 896
) (2014) (“[T]he
admissibility of statements obtained after the person in custody has
4 Although Pauldo’s motion in limine was based on the invocation of the
right to remain silent, the trial court, in granting the motion, found that Pauldo
had invoked both the right to remain silent and the right to counsel. The State
does not contest that finding on appeal. The right to remain silent and the right
to counsel in this context both arise from the Fifth Amendment guarantee that
“[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.” See McNeil v. Wisconsin, 501 U. S. 171, 176(II) (111 SCt 2204
, 115 LE2d 58) (1991) (The invocation of the right to counsel during a custodial interrogation involves a right “found not in the text of the Sixth Amendment, but in this Court’s jurisprudence relating to the Fifth Amendment.”). decided to remain silent depends under Miranda on whether ‘his right to cut off questioning’ was ‘scrupulously honored’ by law enforcement authorities.” (citing Michigan v. Mosley,423 U. S. 96, 104
(96 SCt 321
, 46 LE2d 313) (1975)) (citations and punctuation omitted)). In determining whether police have scrupulously honored a defendant’s right to remain silent, courts look to several factors, including the interrogating officers’ immediate response to the invocation of that right and the interval of time separating the invocation from “subsequent police-initiated questioning.” Mack,296 Ga. at 243
(2). Thus, “when a person in the custody of law enforcement officers unambiguously and unequivocally invokes his right to remain silent in connection with their investigation, the interrogation must cease immediately.” Davidson v. State,304 Ga. 460, 468-69
(4) (819 SE2d 452
) (2018) (citation omitted; emphasis
supplied).
Likewise, “a suspect who asks for a lawyer at any time during
a custodial interrogation may not be subjected to further
questioning by law enforcement until an attorney has been made
available or until the suspect reinitiates the conversation.” Dozier,
306 Ga. at 35(4) (b) (citation and punctuation omitted). See also Edwards v. Arizona,451 U. S. 477, 484-85
(II) (101 SCt 1880
, 68 LE2d 378) (1981). This requirement, first established in Edwards, creates “a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers.” Oregon v. Bradshaw,462 U. S. 1039, 1044
(103 SCt 2830
, 77 LE2d 405) (1983) (plurality opinion). However, where police cease interrogation and the suspect initiates the conversation regarding his case, no violation of the Edwards rule occurs.Id. at 1046
.
Therefore, whether a suspect invokes the right to silence or the
right to counsel, or both, the first step in determining whether police
honored the suspect’s invocation of his rights is to examine whether
interrogation ceased after the invocation. The analysis of what
constitutes “interrogation” is the same whether a suspect invokes
the right to remain silent or the right to counsel, because “[b]oth
[rights] protect the privilege against compulsory self-incrimination
by requiring an interrogation to cease when either right is invoked.”5
Berghuis v. Thompkins, 560 U. S. 370, 381(III) (A) (130 SCt 2250
,
176 LE2d 1098) (2010).
In this context, “interrogation” is defined as “express
questioning by law enforcement officers” or its functional
equivalent — 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.
State v. Brown, 287 Ga. 473, 476-77(2) (697 SE2d 192
) (2010) (citations and punctuation omitted). See also Menzies v. State,304 Ga. 156, 164
(IV) (816 SE2d 638
) (2018) (“Interrogation for the
5 Relying on Edwards, the dissent asserts that a defendant who invokes
his right to counsel in a custodial setting has more substantial protections
against further interrogation than a defendant who merely invokes his right
to remain silent. While it may be correct that a defendant who invokes the
right to counsel has a right to be free from further interrogation until an
attorney is made available, Edwards and its progeny have also made it clear
that if the defendant reinitiates the discussion with law enforcement, even in
the absence of counsel, the defendant may be subjected to further
interrogation. Bradshaw, 462 U. S. at 1045-46. Thus, the bright-line Edwards rule applies in both contexts, that is, police may not immediately subject a defendant who has invoked his right to counsel or his right to remain silent to further interrogation absent reinitiation by the defendant. See Berghuis,560 U. S. at 381
(III) (A); Arizona v. Roberson,486 U. S. 675, 680-82
(II) (108 SCt 2093
, 100 LE2d 704) (1988); Rhode Island v. Innis,446 U. S. 291, 302
(II) (B) (100 SCt 1682
, 64 LE2d 297) (1980); Everett v. Fla. Dept. of Corrections,779 F3d 1212, 1240-41
(VII) (A) (11th Cir. 2015). purposes of Miranda warnings encompasses express questioning and words and actions that officers should know are reasonably likely to elicit an incriminating response from the subject.” (citation and punctuation omitted)). “In determining whether the actions of law enforcement constitute an interrogation, courts look primarily to the perceptions of the suspect and not the intent of the officer.” Driver v. State,307 Ga. 644, 646
(2) (837 SE2d 802
) (2020) (citation and punctuation omitted). Thus, the test for determining whether the officer could have expected that his communications would be reasonably likely to elicit an incriminating response is an objective one. See Rhode Island v. Innis,446 U. S. 291, 301
(II) (A) (100 SCt 1682
, 64 LE2d 297) (1980) (determination of whether police officers’
communication constitutes interrogation made without regard to
proof of the officers’ underlying intent).
On the other hand, the law does not require that after a suspect
invokes his right to remain silent or his right to counsel, law
enforcement must leave the suspect’s presence and cease all
interaction with him immediately. See Brown, 287 Ga. at 479(2). “[P]olice statements and actions normally attendant to arrest and custody” are permitted and are not considered “the functional equivalent of interrogation.” Driver,307 Ga. at 648
(2) (b) (citation
and punctuation omitted). That is because
[a]fter a suspect invokes his rights, the police may be in a
situation where they choose to, and appropriately and
safely can, leave the suspect, but in other situations the
police may need to transport the suspect from the crime
or arrest scene to a detention center, or from an
interrogation room to a detention center, or arrange for
the suspect to contact his lawyer or family, or deal with
other logistical issues.
Brown, 287 Ga. at 479(2). Additionally, even after a defendant has invoked his rights, “[b]asic biographical questions asked in relation to an arrest are an exception to Miranda because such ‘booking’ questions are unrelated to the investigation and serve a legitimate administrative need and therefore do not qualify as ‘interrogation.’” Kirby v. State,304 Ga. 472, 476
(2) (b) (819 SE2d 468
) (2018).
Once a defendant invokes his rights, subsequent statements by
the defendant are admissible only if “the defendant himself initiates
the communications with law enforcement authorities.” Mack, 296
Ga. at 244(2) (following invocation of the right to remain silent). See also Dozier,306 Ga. at 35
(4) (b) (where defendant invokes the right to counsel, no further interrogation may occur in the absence of counsel unless defendant reinitiates the conversation); Stewart v. State,286 Ga. 669, 671-72
(4) (a) (690 SE2d 811
) (2010) (defendant’s custodial statement admissible where he reinitiated communications after initially invoking his right to remain silent); Morgan v. State,275 Ga. 222, 223-24
(4) (564 SE2d 192
) (2002) (same); Wilson v. State,275 Ga. 53, 58-59
(2) (562 SE2d 164
) (2002) (same). As this Court recently explained, “initiation” under these circumstances6 “requires not only that the defendant speak up first but also that his words reflect a desire to discuss the investigation at hand.” Driver,307 Ga. at 646
(2) (a) (citation and punctuation
omitted). Moreover, “a suspect has ‘initiated’ renewed contact with
law enforcement authorities, so as to permit further interrogation,
6 In the context of whether a defendant initiated renewed conversation
with police, “case law applying the definition of ‘initiation’ applies whether the
suspect invoked his right to counsel or his right to silence.” Driver, 307 Ga. at
646(2) (a) (citation omitted). only if the renewed contact by the suspect was not the product of past police interrogation conducted in violation of the suspect’s previously-invoked rights.”Id.
(citation and punctuation omitted).
If it is determined that a suspect reinitiated communication
with law enforcement, courts then must determine under the
totality of the circumstances whether the suspect voluntarily,
knowingly, and intelligently waived his rights under Miranda. See
Driver, 307 Ga. at 646(2) (a); Wells v. State,307 Ga. 773, 776
(2) (838 SE2d 242
) (2020); Mack,296 Ga. at 243-44
(2). See also Bradshaw,462 U. S. at 1046
. In making that determination with respect to an accused who has invoked his rights, “a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards,451 U. S. at 484
(II).
[W]aivers of counsel must not only be voluntary, but
must also constitute a knowing and intelligent
relinquishment or abandonment of a known right or
privilege, a matter which depends in each case upon the
particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the
accused.7
Id. at 482 (II) (citations and punctuation omitted).
3. With these principles in mind, we begin our analysis by
examining whether the detective failed to scrupulously honor
Pauldo’s invocation of his rights under Miranda. Specifically, we
must consider whether the requests8 and statements the detective
made after Pauldo invoked his rights constituted improper
interrogation or its functional equivalent or whether they were more
akin to permissible statements attendant to arrest, custody, and
7 The dissent asserts that Edwards raised the standard for determining
whether a defendant has voluntarily waived his right to counsel after initially
invoking his rights. See Maryland v. Shatzer, 559 U. S. 98(130 SCt 1213
, 175 LE2d 1045) (2010). However, Miranda concluded that if interrogation continues after the invocation of the right to remain silent, “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda,384 U. S. at 475
. Edwards reconfirmed these views in the context of the invocation of the right to counsel so long as the defendant initiates the further communication. See Shatzer,559 U. S. at 104
(II); Roberson,486 U. S. at 680
(II). Thus, we see no material
difference in the waiver analysis when a defendant invokes his right to counsel
or right to remain silent or both as was the case here.
8 The detective’s initial mention of the gunshot residue test began as a
request and turned into a statement that the test would be performed. He later
made a clear request for Pauldo’s consent. For purposes of analysis, we
consider that the detective made two requests for consent to the gunshot
residue test.
other logistical issues.
As an initial matter, we recognize that this case presents a
close question because the detective’s requests and comments about
a gun residue test and his statement that Pauldo’s clothing would
be taken at the jail addressed procedures related to the collection of
evidence for potential charges against Pauldo and immediately
followed Pauldo’s invocation of his rights. On the other hand, these
requests and statements informed Pauldo about what was next in
the process and were made in response to Pauldo’s questions, similar
to other statements that we have concluded were attendant to arrest
and custody. We first address the requests for the gunshot residue
test and then consider the detective’s other statements.
Requests for Consent. Although no Georgia appellate court has
directly addressed the circumstances under which police officers
may request consent to collect evidence from a defendant who has
invoked his rights, at least one other state court has determined that
a request for consent to collect evidence from a defendant’s person
was not equivalent to interrogation in violation of Miranda, even
where the request occurred not long after the defendant invoked his
rights. In Commonwealth v. Letkowski, 991 NE2d 1106(Mass. App. 2013), aff’d,15 NE3d 207
(Mass. 2014), the defendant was arrested
and taken to the police station, where he was advised of his rights
under Miranda. After the defendant indicated that he understood
his rights and did not wish to waive them, he was taken to another
part of the station for booking. When that process was completed, an
officer approached and asked him to provide a DNA sample. The
officer told him that he did not have to consent, but the defendant
agreed to do so and signed a consent form. Approximately ten
minutes after he submitted to the DNA test, the defendant waived
his rights and gave police a statement, which he later sought to
suppress on the ground that the officer’s request for the DNA sample
was the functional equivalent of reinitiating interrogation. The
Massachusetts Appeals Court disagreed, concluding that a request
for a DNA sample is similar to a request for a search and that asking
for such consent was not interrogation in violation of the defendant’s
Miranda rights. Id. at 1111 (3).
Other state courts also have held that a request for a DNA test
is not interrogation, although the requests in those cases occurred
after more time had elapsed following the defendant’s invocation of
rights. In State v. Everett, 893 S2d 1278, 1286 (III) (C) (Fla. 2004),
police requested a DNA test several days after the defendant
invoked his rights, and the defendant moved to suppress both the
results of that test and the incriminating statements he made after
the test. The Supreme Court of Florida held that the trial court did
not err in denying that motion because the request for consent was
not likely to elicit an incriminatory response. See also State v.
Heinonen, 909 NW2d 584, 590-92(I) (Minn. 2018) (where defendant invoked his rights at his house and was later approached at the jail for a DNA test, the request for the test and the officer’s response to defendant’s question as to why he was taking the test were not reasonably likely to elicit an incriminatory response). In a subsequent federal habeas proceeding in Everett, the Eleventh Circuit stated: “DNA collection by police is not interrogation of a suspect because it is not reasonably likely to elicit an incriminating verbal response.” Everett v. Secretary, Fla. Dept. of Corrections,779 F3d 1212, 1244
(VII) (B) (11th Cir. 2015). The Eleventh Circuit accordingly determined that “the Florida Supreme Court reasonably concluded that the request for DNA consent—even though it followed Everett’s invocation of his right to counsel under Miranda—did not violate his Fifth Amendment rights.”Id.
Additionally, courts have concluded that asking for consent to
search a defendant’s property immediately after the defendant
invokes his rights does not render a later statement by the
defendant inadmissible. For example, in United States v. Harmon,
2006 WL 42083 (D. Kan., decided Jan. 6, 2006), the defendant
invoked her rights and, shortly thereafter, law enforcement asked
whether the defendant would consent to a search of her desk at
work; told her that if she did not consent, law enforcement would
apply for a search warrant; and further added that in the officer’s
opinion, a court would issue a warrant because of the “enormous
amount of probable cause.” Id. at *4. After the defendant consented,
she spontaneously commented that her boyfriend had placed
something in her work desk but that she did not know what it was.
Id. In denying the motion to suppress this statement, the district
court reasoned that the request for consent was not an interrogation,
that the statement was not in response to questions by the officers,
and that the defendant voluntarily commented about the item in her
desk. Id. at *6.
Likewise, in State v. Cherry, 362 P3d 313(Wash. App. 2015), during a traffic stop and immediately after the defendant invoked his right to silence, a law enforcement officer asked for the defendant’s consent to search his car. The defendant declined to consent and said that there were no drugs in the car because he had used them earlier in the day. During the search, the defendant also said that he had smoked methamphetamine and that there might be a pipe in his car.Id. at 320-21
(C) (3). The Washington Court of
Appeals first held:
The request for consent to search was not designed to
elicit testimonial evidence and [defendant’s] consent was
not an incriminating statement. Therefore, law
enforcement did not violate [defendant’s] constitutional
right to remain silent by requesting consent to search his
car after [defendant] had invoked that right.
Id. at 320(C) (2). The court then held that the defendant’s statements regarding drugs were admissible because they “were not made in response to any questioning likely to elicit an incriminating response.”Id. at 321
(C) (3).
Moreover, in the related context when a defendant has invoked
his rights, was asked to consent to a search immediately or shortly
thereafter, and then sought to suppress physical evidence obtained
from the consented-to search, the majority of courts that have
considered the issue have concluded that a request for consent to
search does not constitute interrogation or its functional
equivalent.9
9 In those cases, the courts have generally reasoned that asking for
consent to search is not an interrogation in violation of Miranda, that a consent
to search is not a self-incriminating statement, and therefore, that the Fifth
Amendment provides no basis for suppressing the evidence found in the
search. See, e.g., United States v. Calvetti, 836 F3d 654, 663(II) (A) (6th Cir. 2016) (consent to search home after invocation of right to counsel); United States v. Smith,3 F3d 1088, 1098
(V) (B) (1) (7th Cir. 1993) (“We have held that a consent to search is not a self-incriminating statement and, therefore, a request to search does not amount to interrogation.” (citations omitted)); United States v. Rodriguez-Garcia, 983 F2d 1563, 1568 (I) (B) (10th Cir. 1993) (consent to search storage unit); State v. Morato,619 NW2d 655
(¶¶ 23-24).
We are persuaded by these cases, particularly in light of the
fact that the detective here made only brief statements and requests
in connection with the collection of gunshot residue and did not
otherwise comment on the strength of the evidence against Pauldo.
Also, the requests were phrased in a way that allowed Pauldo to
consent or not without giving an incriminating response. Cf.
Jackson v. State, 272 Ga. 191, 194(528 SE2d 232
) (2000) (defendant’s confession inadmissible where investigator commented that defendant’s statement that he was not the shooter would be contradicted by a positive gunpowder residue test because investigator should have known comment would elicit an incriminatory response and defendant responded to the comment by (S.D. 2000) (consent to search truck); State v. Crannell,750 A2d 1002, 1009
(Vt. 2000), overruled in part on other grounds by State v. Brillon,955 A2d 1108
(Vt. 2008) (same); State v. Hooten,2013 WL 5436712
, at *35-36 (II) (A) (Tenn. Crim. App., decided Sept. 27, 2013) (consent to search car); State v. Baumeister,723 P2d 1049, 1050-51
(Or. App. 1986) (same). But see State v. Britain,752 P2d 37, 39
(Ariz. Ct. App. 1988) (viewing “a request for a consent to search, after the right to counsel has been invoked, as interrogation” and as one ground for suppressing evidence); Kreijanovsky v. State,706 P2d 541, 546
(Okla. Crim.
App. 1985) (concluding under Miranda that “once an individual in custody
requests an attorney, interrogating officers must not seek further consensual
admissions, whether in the form of confession, consent to search, or waiver of
other privileges”).
confessing to the crime). Thus, we conclude that the trial court erred
in finding that the requests for consent to the gunshot residue test
constituted interrogation in violation of Pauldo’s invocation of
rights.
(b) Statements Regarding Search Warrant. Turning to the
detective’s statements that he could get a search warrant for the
gunshot residue test and that Pauldo’s clothes would be collected for
evidence at the jail, we note that these statements were short, were
not open-ended, and did not invite further discussion about the
details of the investigation. Cf. United States v. Johnson, 812 F2d
1329, 1331 (11th Cir. 1986) (inculpatory statement inadmissible
where made after defendant invoked his right to counsel and the
officer asked, “Do you want to know what will happen to you?”).
Neither the requests to consent to a gunshot residue test nor the
statement about the search warrant actually resulted in Pauldo
providing an incriminating response. He neither agreed nor refused
to submit to the test, and he simply acknowledged the detective’s
statement about the search warrant.
Moreover, the detective’s statement about the search warrant
was made only after Pauldo asked whether he was required to
consent to the gunshot residue test. See Driver, 307 Ga. at 650 (2)
(“[A] police officer’s response to a direct inquiry by the defendant
does not constitute ‘interrogation.’”) (citation and punctuation
omitted). The statement about taking Pauldo’s clothing at the jail
appears to be a part of his response to Pauldo’s question about
consenting to the gunshot residue test, explaining that police would
get a search warrant to obtain gunshot residue testing and that his
clothes also would be taken as evidence at the jail. On balance and
after a close review of these statements made by the detective, we
conclude that they were not the functional equivalent of
interrogation in violation of Pauldo’s rights and that the statements
were not reasonably likely to elicit an incriminating response, nor
should the detective have known that they were reasonably likely to
do so.10 Therefore, the trial court also erred in determining that this
10 We caution that our analysis could have reached the opposite
conclusion with the addition of just a few words by the detective, for example,
exchange between the detective and Pauldo demonstrated a failure
to honor Pauldo’s rights. See Driver, 307 Ga. at 646(2); Brown,287 Ga. at 477
(2).
The dissent appears to concede that the individual requests
and statements do not constitute interrogation, but argues that
under the totality of the circumstances from Pauldo’s perspective,
the quick succession of statements, particularly the description of
what would happen to Pauldo’s clothes at the jail, were not
immediately necessary to effectuate an arrest and constituted
improper police-initiated discussion of the case. However, because
the detective’s requests and statements did not constitute
interrogation or its functional equivalent, they were not in violation
if the detective had prefaced his requests and statements about evidence
collection to overtly state that he was asking for the evidence because Pauldo
had invoked his rights. However, as aptly explained in United States v.
Johnson, 812 F2d 1329, 1331 (11th Cir. 1986),
No interest would be served by attempting to list matters that may
or may not be discussed by law enforcement officers with an
accused in custody after the accused has indicated that a lawyer is
desired before further interrogation. It best serves all interests,
especially law enforcement, to remain close to the “bright line”;
interrogation must cease when an accused in custody requests the
presence of a lawyer before further interrogation.
of Miranda or Edwards.
Moreover, gunshot residue is easily washed away or dissipated,
and law enforcement must be afforded the opportunity to conduct
gunshot residue tests within a limited period of time after the gun
is fired. See In the Interest of B. S., 284 Ga. App. 680, 681(2) (b) (644 SE2d 527
) (2007) (expert testified that gunshot residue can be
removed by washing hands, wiping them on clothing, or if the test
is performed more than four hours after the gun has been fired). See
generally William E. Ringel, Searches and Seizures, Arrests and
Confessions § 12:9 (2d ed. March 2020 Update) (gunshot residue
evidence is viable for only a few hours and can be easily destroyed
intentionally or unintentionally by the defendant).11 Although
referencing Pauldo’s clothing is a closer question as it is unclear why
the detective sought the clothing, it appears that in response to
Pauldo’s question, the detective was explaining what would be
11 In fact, the police performed a gunshot residue test on Pauldo during
the interview they conducted after he signed the waiver-of-rights form,
approximately 40 minutes after the detective first asked Pauldo to consent to
the test.
obtained by a search warrant if Pauldo chose not to consent to the
gunshot residue test. Also, near the end of the interview, Pauldo was
asked to change out of his clothing in the interrogation room and
deposit his clothes in paper bags for evidence. This process shows
that there was an immediate investigative purpose for collecting the
clothing before Pauldo was put in jail and that the detective
referenced the clothing along with the gunshot residue test to
explain what would happen next in the process.
4. In any event, even if we were to assume that the detective’s
requests and statements were interrogation in violation of Miranda
and Edwards, they did not elicit an incriminating response from
Pauldo. After the detective’s statements about obtaining a warrant
and Pauldo’s clothing, Pauldo responded: “Okay, to jail. So, just, . . .
I’m being arrested?” and asked what he was being arrested for. In
Walton v. State, 267 Ga. 713(482 SE2d 330
) (1997), disapproved of on other grounds by Toomer v. State,292 Ga. 49
(734 SE2d 333
) (2012), we concluded that the defendant’s incriminating statements could be admitted even though the defendant, who had invoked his right to counsel to law enforcement in another state, was improperly asked by a Georgia detective as he was being transported back to the state whether he wanted to make a statement. Id. at 718 (4). The defendant said no, but asked whether anyone else had given a statement. When the detective replied in the affirmative and also, upon the defendant’s request, summarized the statement made by the other witness, the defendant said that was “‘basically correct.’” Id. Relying on Innis,446 U. S. at 291
, we reasoned that if
appellant had made an incriminating statement in
response to the detective’s query whether he wished to
make a statement, the prophylactic rule of Edwards
would have precluded the State’s use of the statement.
However, appellant’s observation that [the witness’s]
statement, as summarized, was “basically correct,” was
not given in response to a question posed by one of the
detectives, but was appellant’s unsolicited comment on
the detective’s answer to appellant's line of questioning.
Walton, 267 Ga. at 718(4) (citation and emphasis omitted). Based on this reasoning, the Walton Court held that the defendant’s statement was properly admitted because it was an unforeseeable result of the officer’s actions in responding to the appellant’s own questions.Id.
Therefore, a statement made under such
circumstances is not the product of custodial interrogation.
Similarly, Pauldo’s questions about his arrest and his
subsequent statements were not in response to the detective’s
requests to consent to the gunshot residue test or the statements
about the search warrant and collecting the clothing. If anything,
Pauldo was responding to the detective’s statement that Pauldo was
going to jail. Thus, because Pauldo’s incriminatory statements were
not a foreseeable result of the requests and statements made by the
detective about collecting evidence, they also cannot be considered
the product of custodial interrogation, even if we were to assume
that the statements constituted interrogation, and the trial court
erred in excluding them on that basis. See Walton, 267 Ga. at 718(4). See also Brown,287 Ga. at 477
(2) (no interrogation where the detective “answered, or deflected, a number of direct questions” from the suspect); Delay v. State,258 Ga. 229, 231
(3) (c) (367 SE2d 806
)
(1988) (no Miranda violation where incriminatory statement was in
response to officer’s answer to defendant’s own question).
5. Although we have concluded that the detective’s requests
for consent to a gunshot residue test and statements about getting
a search warrant and collecting his clothing at the jail did not violate
Pauldo’s invocation of his rights, our inquiry does not end there. We
must also examine whether Pauldo reinitiated contact with law
enforcement authorities and whether, under the totality of the
circumstances, Pauldo knowingly, intelligently, and voluntarily
waived his rights under Miranda, so as to permit further
interrogation. See Driver, 307 Ga. at 646 (2) (a).
The video recording shows that Pauldo began asking questions
about his arrest and the investigation after the detective told Pauldo
he was being arrested for homicide, and the detective answered
Pauldo’s questions. Because law enforcement is permitted to make
statements to the defendant about the next steps in the process,
such as arrest, and a defendant understandably may ask clarifying
questions about his arrest, we do not see this exchange as improper
interrogation by the detective or a reinitiation of communication by
Pauldo. See Driver, 307 Ga. at 650(2) (b); Gray v. State,304 Ga. 799, 805
(3) (822 SE2d 249
) (2018) (suspect’s response to an officer’s answer to the suspect’s own question is not the product of custodial interrogation); Brown,287 Ga. at 477
(2) (police responses to suspect’s questions regarding what he would be charged with and where he would go next are not interrogation); Bell v. State,305 Ga. 707
, 710 (3) (827 SE2d 665
) (2019) (informing defendant of charges pending against him after he had invoked his right to counsel did not constitute interrogation); Alvarez v. McNeil,346 Fed. Appx. 562, 564
(11th Cir. 2009) (“Informing a person in custody of the charges
that he faces is normally attendant to arrest and custody and does
not constitute interrogation.”).
At that point in the interview, the detective reminded Pauldo
that he had invoked his right to remain silent and that he had
indicated he wanted his attorney present. Thereafter, the detective
did not respond to Pauldo’s questions about the case or discuss the
case further. Instead, the detective asked Pauldo if he wanted to talk
about “the incident,” and Pauldo continued to engage with the
detective, stating at one point, “I will talk to you, yeah, to benefit
me, anything . . . . I don’t want to be arrested for homicide.”
We find it significant that, despite the reminder that he had
invoked his rights, Pauldo continued to ask questions and make
statements, explaining that he was willing to waive his rights
because he did not want to be arrested. Also, Pauldo’s continued
efforts to discuss the case made it unclear whether he wished to talk
to the detective or not. Therefore, although the detective asked on
several occasions whether Pauldo wanted to talk, these attempts to
clarify whether Pauldo was invoking his rights were reasonable in
light of this ambiguity and “[did] not run afoul of the Miranda right
to remain silent,” nor do they indicate that police failed to
scrupulously honor Pauldo’s rights. See United States v.
Muhammad, 196 Fed. Appx. 882, 886 (II) (11th Cir. 2006) (postal
inspector did not fail to scrupulously honor suspect’s invocation of
his right to remain silent by asking questions such as “Do you want
to talk to me or not?” after defendant persisted in talking about the
case). Moreover, it was only after the detective asked and Pauldo
confirmed that he wished to waive his rights and had Pauldo sign
the waiver of rights form under the statement that “[Pauldo] has
changed his mind and wishes to talk” that the detective asked
Pauldo any questions about the case.
We thus conclude that Pauldo reinitiated contact when he
asked questions about why he was being arrested and made
statements about the crimes being investigated even after being
reminded that he had invoked his rights and that these statements
and questions “evinced a willingness and a desire for a generalized
discussion about the investigation.” Driver, 307 Ga. at 650(2) (b) (citing Bradshaw,462 U. S. at 1045-46
) (punctuation omitted). See also Smith v. State,292 Ga. 620, 623
(4) (740 SE2d 158
) (2013) (defendant’s statement admissible where approximately five minutes after invoking his right to counsel, during which interval investigator completed booking sheet and asked defendant biographical questions, defendant on his own volition and without any prompting, told the investigator he had changed his mind and was willing to talk without an attorney); Cody v. State,324 Ga. App. 815, 823
(1) (752 SE2d 36
) (2013) (no violation of defendant’s rights
where after invoking rights and being informed it would take some
time to get a public defender, defendant said he preferred to “get this
over with,” and “the detective's statements and actions were
permissibly aimed at clarifying Cody’s apparent decision to waive
the right to counsel and the right to remain silent, and thus proceed
with the interrogation without counsel”).
Turning to the issue of whether Pauldo knowingly,
intelligently, and voluntarily waived his rights, Pauldo was 21 years
old at the time of his interview and a junior in college. He stated in
the interview that he had conferred with his mother and an attorney
and that they had advised him to invoke his rights and not speak to
law enforcement because they felt that he was being treated as a
suspect. Pauldo became voluble only after learning that he would be
arrested for homicide, and he said that he did not want to be
arrested and that he wanted to talk to benefit himself. Although only
a few minutes elapsed between Pauldo’s invocation of his rights and
his waiver, the conversation during that interval related to the
collection of evidence and answering Pauldo’s questions about his
arrest. Also, the detective read Pauldo his rights minutes before, at
the start of the interview, and then made sure that Pauldo
understood his rights again after Pauldo stated that he wanted to
talk. Considering the totality of the circumstances, including
Pauldo’s age, intelligence, education, his previous consultation with
counsel and his mother, his repeated statements that he wanted to
talk to avoid being arrested, and the detective’s several reminders
to Pauldo that he had invoked his rights, we further conclude that
Pauldo knowingly, intelligently, and voluntarily waived his rights.
Accordingly, we reverse the trial court’s grant of Pauldo’s motion in
limine.
Judgment reversed. All the Justices concur, except Melton, C.
J., and Bethel, J., who dissent.
MELTON, Chief Justice, dissenting.
After Pauldo was told that he was not being arrested, and after
he invoked both his right to remain silent and his right to counsel,
Detective Knight continued to talk about case-related matters for
three minutes, with no break in the conversation, no break in
custody, and no change in location, until Pauldo finally relented and
signed a form waiving his previously-invoked rights. Based upon
the facts before us in this case, and considering the totality of the
circumstances, I disagree with the majority’s conclusion that Pauldo
initiated further communication with Detective Knight after
invoking his right to counsel. And, I further disagree that Pauldo’s
subsequent waiver of his rights was voluntary. Accordingly, I
respectfully dissent.
1. The Proper Analysis for Right to Counsel.
The majority conducts an analysis that seems to combine the
test for admissibility of a suspect’s statements following invocation
of the right to remain silent, see Michigan v. Mosley, 423 U. S. 96(96 SCt 321
, 46 LE2d 313) (1975) (discussing admissibility of custodial statements obtained after a person invokes their right to remain silent), with the test for admissibility following invocation of the right to counsel, see Edwards v. Arizona,451 U. S. 477
(101 SCt 1880
, 68 LE2d 378) (1981) (noting that additional safeguards,
beyond those required when a suspect invokes his right to remain
silent, are necessary when a suspect requests counsel).12 In doing
so, the majority overlooks the higher burden for admissibility
imposed in right-to-counsel cases.13 Although I would reach the
12 The majority treats the law surrounding these rights as a distinction
without a difference. However, this Court has repeatedly recognized and
applied the different standards as laid out by the United States Supreme Court
in Mosley and Edwards. See Bright v. State, 251 Ga. 440, 445(2) (306 SE2d 293
) (1983) (“We find that the question defendant raises [regarding the violation of his right to remain silent] is controlled by Michigan v. Mosley, . . . rather than Edwards v. Arizona.”) (citations omitted). See also Morgan v. State,275 Ga. 222, 223-224
(564 SE2d 192
) (2002) (“Contrary to the argument on appeal, neither the transcript of the Jackson-Denno hearing nor the record shows that Morgan ever invoked his right to counsel. Thus, we are not guided by Edwards, . . . but by Michigan v. Mosley.”) (citation and punctuation omitted); Walton v. State,267 Ga. 713, 715
(2) (482 SE2d 330
) (1997) (citing Bright with approval); Fields v. State,266 Ga. 241, 242
(466 SE2d 202
) (1996)
(“Fields did not invoke his right to counsel — he simply exercised his right to
remain silent. Thus, we are not guided by Edwards, but by Michigan v.
Mosley.”)
13 Compare Mosley, supra,withEdwards, supra.
See also Arizona v. Roberson,486 U. S. 675, 680
(II) (108 SCt 2093
, 100 LE2d 704) (1988); Everett v. Fla. Dept. of Corrections,779 F3d 1212, 1240-1241
(11th Cir. 2015) (describing the Miranda-Mosley-Edwards progression of case law); Christopher v. Florida, 824 F2d 836, 839-840 (11th Cir. 1987) (outlining how Mosley refined Miranda’s safeguards in right-to-remain-silent cases). As explained by the United States Supreme Court, Edwards adds an additional layer of protection for a suspect who invokes his right to counsel by instituting a per se bar to further interrogation in the absence of counsel and raising the standard for a voluntary waiver of this right. Maryland v. Shatzer,559 U. S. 98, 104
(130 SCt 1213
, 175 LE2d 1045) (2010). No such “bright-line” rule applies to invoking the right to remain silent. Compare Edwards,451 U. S. at 484-485
, with Mosley,423 U. S. at 101
-104 & n.10. Under Mosley and its
progeny, where a suspect’s rights are scrupulously honored, law enforcement
can — under certain circumstances — re-approach the suspect, provide him a
new Miranda warning, and, upon a valid waiver, conduct a new interrogation.
same conclusion under either analysis, it is the Edwards analysis
that controls this case and, therefore, the analysis I employ.14
Applying the proper standard under Edwards, courts first look
at whether the right to counsel was invoked. Edwards, 451 U. S. at
484. Here, it is undisputed that Pauldo invoked his right to counsel. Consequently, we turn to the second prong of the Edwards test, which requires that we examine ( a) whether the suspect was responsible for initiating further discussions with the authorities and (b) if the suspect did initiate the discussion, whether the suspect knowingly and voluntarily waived his right to counsel.Id.
at 484- 485. See also Smith v. Illinois,469 U. S. 91, 95
(105 SCt 490
, 83 See Mosley,423 U. S. at 105-106
. Edwards, on the other hand, does not allow further police-initiated questioning without the suspect having had the benefit of counsel, unless the suspect re-initiates, see Edwards,451 U. S. at 484-485
,
creating a presumption of involuntariness for any subsequent waiver of rights
that does not arise in a right to remain silent case.
14 Edwards “established another prophylactic rule designed to prevent
police from badgering a defendant into waiving his previously asserted
Miranda rights” in right-to-counsel cases. Michigan v. Harvey, 494 U. S. 344,
350(110 SCt 1176
, 108 LE2d 293) (1990). Due to the added layer of protection established by Edwards and its progeny, if the two rights are invoked simultaneously — as they were in this case — the Edwards analysis must control, because the right to counsel (i.e., the right to remain silent until consulting with counsel) includes and subsumes the right to remain silent. See Edwards,451 U. S. at 482
. See also Roberson,486 U. S. at 680
.
LE2d 488) (1984).
2. Initiation.
“[B]efore a suspect in custody can be subjected to further
interrogation after he requests an attorney there must be a showing
that the suspect himself initiates dialogue with the authorities.”
(Citation and punctuation omitted.) Oregon v. Bradshaw, 462 U. S.
1039, 1044(103 SCt 2830
, 77 LE2d 405) (1983).
“Initiation” means to “begin’ or “set-going”; in the
interrogation context, it means that the suspect “started,”
not simply “continued,” the interrogation. . . . [A]ny
previous police-initiated interrogation [must] have ended
prior to the suspect’s alleged initiatory remark; for, just
as one cannot start an engine that is already running, a
suspect cannot “initiate” an on-going interrogation.
(Emphasis in original.) Christopher, 824 F2d at 845. See also United
States v. Johnson, 812 F2d 1329, 1331 (11th Cir. 1986) (no suspect-
initiation where law enforcement “engaged . . . in a discussion
relating directly and indirectly to the investigation”). Thus, “a
suspect has ‘initiated’ renewed contact with law enforcement
authorities, so as to permit further interrogation, only if the renewed
contact by the suspect was not the product of past police
interrogation conducted in violation of the suspect’s previously-
invoked rights.” (Citation and punctuation omitted.) Driver v. State,
307 Ga. 644, 646(837 SE2d 802
) (2020). “Interrogation” includes express questions, but also “practice[s] that the police should know [are] reasonably likely to evoke an incriminating response.” Rhode Island v. Innis,446 U. S. 291, 301
(100 SCt 1682
, 64 LE2d 297)
(1980).
Furthermore, a suspect’s statements or questions to
authorities must “evince[ ] a willingness and a desire for a
generalized discussion about the investigation.” Bradshaw, 462
U. S. at 1045-1046. A “bare inquiry” or those “relating to routine incidents of the custodial relationship” do not constitute initiation.Id. at 1045
. See also Driver,307 Ga. at 646
(“[I]nitiation requires
not only that the defendant speak up first but also that his words
reflect a desire to discuss the investigation at hand.”) (Citation and
punctuation omitted.).
The record shows that Pauldo was placed in an interrogation
room and, prior to reading Pauldo his Miranda rights, the detective
informed Pauldo that he was not being arrested. Thereafter, the
detective read Pauldo his rights, and Pauldo invoked both his right
to remain silent and his right to counsel. Without skipping a beat,
the detective continued to discuss case-related matters, first by
requesting consent to conduct a gun residue test, then quickly
informing Pauldo the test was to “see if you shot a gun today.”
Pauldo asked, “Do I have to consent to that?” to which the detective
stated, “I’m going to get a search warrant and do it anyway.” Pauldo
responded with a single word, “Alright.”
Next, the detective informed Pauldo that his clothes would be
collected for evidence when he arrived at the jail. This statement
was how Pauldo learned that he was under arrest, which is
evidenced by his statements of “Okay, to jail. So, just . . . I’m being
arrested?” and “What am I being arrested for?” The detective
replied, “Homicide.” Pauldo replied, “Why, I’m saying, why?” The
detective stated, “We’ve talked to a lot of people,” and “they put you
there; they put you making a threat that you were going to shoot him;
they put you there pulling the trigger.” At this point — after
outlining the evidence against Pauldo — the detective reminded
Pauldo of his right to counsel, saying “You’ve already told me that
you wanted your lawyer here. They told you not to talk to me. Now,
if you want to talk to me, that’s up to you.” Thereafter, Pauldo only
asked why he was being arrested, to which the detective continually
replied “do you want to talk to me?” until Pauldo agreed to sign a
waiver.
While the majority analyzes in isolation each of the detective’s
statements concerning the gunshot residue test and the collection of
Pauldo’s clothing to determine if either constituted interrogation,
this approach fails to review the totality of the circumstances from
the perspective of the suspect, as is required under the law. See
Driver, 307 Ga. at 646. See also Franks v. State,268 Ga. 238, 240
(486 SE2d 594
) (1997) (“The focus of whether ‘interrogation’ occurs
is primarily upon the perceptions of the suspect and not the intent
of the officer, although the officer’s intent is relevant. This focus
reflects the fact that the Miranda safeguards were designed to vest
a suspect in custody with an added measure of protection against
coercive police practices, without regard to objective proof of the
underlying intent of the police.”) (Citations and punctuation
omitted.).
For instance, while, by itself, a request for consent to a gun
residue test does not constitute interrogation, see Everett v. Fla.
Dept. of Corrections, 779 F3d 1212, 1244 (11th Cir. 2015), that single
statement made by the detective in this case cannot be looked at in
a vacuum. Instead, the record in the case before us shows that the
detective made many statements, some of which the majority does
not address, relating directly and indirectly to the investigation, in
the less than three minutes between Pauldo’s invocation of his right
to counsel and his sudden desire to waive that right. In other words,
it is not any one question that the detective asked, nor whether each
of those questions qualifies as interrogation, that answers the
question of initiation in the case before us. It is the sum total of the
entire interaction that drives the analysis.
The record before us shows that, immediately after Pauldo’s
invocation, the detective, not Pauldo, spoke about issues related both
directly and indirectly to the investigation, including: a request for
consent to conduct an evidentiary test, obtaining a search warrant
if Pauldo did not consent to the test, that Paludo’s clothing would be
collected as evidence when Pauldo arrived at the jail,15 and an
outline of what witnesses told the detective about Pauldo’s alleged
involvement in the crime.16 Pauldo responded to the detective by
asking “I’m being arrested?”; “What am I being arrested for?”; and
15 The majority reasons that this statement was acceptable because there
must have been some “immediate investigative purpose” in collecting Pauldo’s
clothes. However, as the detective was not actually collecting Pauldo’s clothing
at that time, this description of future events served no purpose other than to
place Pauldo under stress and induce him to talk. See Christopher, 824 F2d at
845 (“[A]ny discussion with the suspect other than that relating to routine
incidents of the custodial relationship must be considered a continuation of the
interrogation.”) (Punctuation omitted.); State v. Darby, 284 Ga. 271, 273(663 SE2d 160
) (2008) (police initiated discussion by giving description of suspect’s
upcoming preliminary hearing).
16 The record also shows that Pauldo did not volunteer any information
about the crime during this short exchange. See Taylor v. State, 303 Ga. 225,
231(811 SE2d 286
) (2018) (suspect initiated discussion when, while smoking a cigarette after her first court appearance, she “spontaneously” told the officer who was watching her details about the crime); Gray v. State,304 Ga. 799, 804
(822 SE2d 249
) (2018) (suspect initiated discussion where officer was discussing topics unrelated to the investigation and suspect interrupted that he was being framed for murder). Nor did he seek case-specific details by asking about the evidence against him, if there were witnesses, or what the detective’s theory of the case was. See Driver,307 Ga. at 647, 650
(suspect initiated discussion where officer prepared to leave after invocation of counsel but suspect called him back to ask if the officer had spoken with any witnesses and if the officer thought it could be self-defense). “Why, I’m saying, why?” None of these responses can credibly be interpreted as demonstrating a desire to engage in a generalized discussion about the investigation. See Ashley v. State,261 Ga. 488, 489
(1) (405 SE2d 657
) (1991) (suspect did not initiate further discussion by asking what he was being charged with). And, while the police can certainly answer questions such as “Why am I being arrested?” with generic responses, the detective’s responses were far from generic as he answered Pauldo’s questions by discussing case- related matters, including by outlining the evidence against him, statements that the majority does not address in its totality-of-the- circumstances analysis. Cf. State v. Brown,287 Ga. 473, 477
(697 SE2d 192
) (2010) (officer did not initiate discussion where suspect
repeatedly interrupted to ask about the case and officer deflected
suspect’s questions with generic responses that did not provide any
details of the investigation). Indeed, the record shows that Pauldo
did not agree to talk about the case, at all, until after Detective
Knight outlined statements from other witnesses implicating
Pauldo in the crime. Considering the totality of the circumstances
in the case before us, I cannot conclude that Pauldo was responsible
for initiating further conversation with the detective after invoking
his right to counsel.17
Notably, there are a number of factors which, taken together,
demonstrate that the detective, not Pauldo, was the initiator. There
was no break in the conversation between Pauldo’s invocation and
the detective’s subsequent discussion of case-related matters. See,
e.g., Driver, 307 Ga. at 647(suspect reinitiated conversation where he called detective back into interrogation room to talk about the investigation); Gray v. State,304 Ga. 799, 803
(822 SE2d 249
) (2018) (same); Stewart v. State,286 Ga. 669, 671
(690 SE2d 811
) (2010) (suspect initiated conversation where he requested to talk about the case four hours after invoking his right to silence). None of the detective’s statements were necessary to effectuate an arrest. See Christopher, 824 F2d at 845. See also Smith,469 U. S. at 97
& 98
17 To conclude otherwise would condone a post-invocation practice of
outlining incriminating evidence to the suspect in an effort to induce him to
waive his right to counsel. This is exactly the practice that Edwards and its
progeny protect against. See Smith, 469 U. S. at 98. n.7 (noting that even finishing the Miranda colloquy constitutes “continued police questioning”); Johnson, 812 F2d at 1330, 1331 (police initiated post-invocation discussion where agent explained the criminal process, including appearing before a magistrate, bond, and appointment of a public defender); State v. Darby,284 Ga. 271, 273
(663 SE2d 160
) (2008) (police initiated discussion of case by outlining what would happen at suspect’s upcoming preliminary hearing). Likewise, contrary to the majority’s assertion, none of the statements made by the detective fit into the narrow, so-called “booking exception” of Miranda. See Franks v. State,268 Ga. at 239
(noting that the Georgia courts have limited the “booking exception”
“to requests for basic biographical data, such as the suspect’s name,
age, address, educational background, marital status, and other
information required to complete an arrest form”). Nor did the
detective ask “clarifying” questions to determine if Pauldo had
invoked his right to counsel, as the record shows Detective Knight
acknowledged that Pauldo “already told me you wanted your lawyer
here.” See Christopher, 824 F2d at 841-842 (explaining that post-
invocation “clarifying” questions by officer may be appropriate
where an invocation of rights is ambiguous or equivocal).
Based on the foregoing, and after reviewing the entire exchange
from Pauldo’s perspective, I cannot say that the interrogation
ceased, let alone was reinitiated by Pauldo. See Johnson, 812 F2d
at 1331. Instead, the entire colloquy all served one purpose — to
badger Pauldo into waiving his right to counsel. See Michigan v.
Harvey, 494 U. S. 344, 350(110 SCt 1176
, 108 LE2d 293) (1990).
3. Waiver.
The facts presented to us in this case show why the distinction
between a right-to-silence analysis and a right-to-counsel analysis
matters. Although the majority conducts a waiver analysis under
the traditional standard, such analysis is not sufficient in a right-to-
counsel case. “[A] heavy burden rests on the government to
demonstrate that the defendant knowingly and intelligently waived
his privilege against self-incrimination and his right to retained or
appointed counsel.” Arizona v. Roberson, 486 U. S. 675, 680(108 SCt 2093
, 100 LE2d 704) (1988) (quoting Miranda,384 U. S. at 475
). The traditional standard for waiver outlined in Johnson v. Zerbst,304 U. S. 458
(58 SCt 1019
, 82 LE 1461) (1938), governs a waiver analysis in a right-to-silence case, but “[i]n Edwards, the Court determined that Zerbst’s traditional standard for waiver was not sufficient to protect a suspect’s right to have counsel present at a subsequent interrogation if he had previously requested counsel; ‘additional safeguards’ were necessary.” Shatzer,559 U. S. at 104
(citation omitted). Consequently, Edwards established a presumption that, after a suspect invokes his right to counsel, any subsequent waiver of that right is involuntary.Id.
at 111 n.7. In a
close case, such as this one, the State fails to meet its heavy burden
to show that Pauldo’s waiver was indeed voluntary.
As explained in Shatzer,
[t]he rationale of Edwards is that once a suspect indicates
that he is not capable of undergoing custodial questioning
without advice of counsel, any subsequent waiver that
has come at the authorities’ behest, and not at the
suspect’s own instigation, is itself the product of the
inherently compelling pressures [of custody] and not the
purely voluntary choice of the suspect. Under this rule, a
voluntary Miranda waiver is sufficient at the time of an
initial attempted interrogation to protect a suspect’s right
to have counsel present, but it is not sufficient at the time
of subsequent attempts if the suspect initially requested
the presence of counsel.
(Citation and punctuation omitted.) Shatzer, 559 U. S. at 104-105. See alsoid. at 108-109
(“The only logical endpoint of Edwards
disability is termination of Miranda custody and any of its lingering
effects.”).
The United States Supreme Court has held that this
presumption of involuntariness can be overcome. See Shatzer, 559
U. S. at 106. However, when a suspect is held in uninterrupted custody without an opportunity to “regain[ ] a sense of control or normalcy,” merely administering new Miranda warnings before engaging in another interrogation of the suspect is insufficient to establish voluntary waiver of the suspect’s right to counsel.Id. at 107, 116
. This rule keeps “authorities[,] through ‘badgering’ or ‘overreaching’ — explicit or subtle, deliberate or unintentional — [from] wear[ing] down the accused and persuad[ing] him to incriminate himself notwithstanding his earlier request for counsel’s assistance.” (Citation and punctuation omitted.) Smith,469 U. S. at 98
.
In conducting the waiver analysis, we “review whether any
actual renewal of contact by the suspect, in the context of the entire
interaction between law enforcement authorities and the accused,
constitutes a legally effective initiation.” (Punctuation omitted;
emphasis supplied.) Mack v. State, 296 Ga. 239, 248-249(765 SE2d 896
) (2014). In doing so, once again, we look at “the entire sequence of events leading up to the suspect’s renewal of contact,” including any lapse of time between a previous interrogation and the suspect’s renewed contact, “any change in location or in the identity of the officers involved from one interview to the next, and any break in custody between interviews.” (Citations omitted.)Id. at 248
. See also Everett,779 F3d at 1241
(“One, but not the only, measure of the voluntariness of a defendant-initiated confession is the measure of whether a sufficient period of time has elapsed since the termination of police questioning for the defendant to have rationally reflected on the choice before him.”) (Citation and punctuation omitted.). Likewise, “we have recognized that substance trumps form in determining whether the entire sequence of events indicates a defendant’s voluntary initiation of renewed contact.” Mack,296 Ga. at 247
.
Applying these waiver principles to the facts of this case, it
is clear that the State has failed to meet its heavy burden of
overcoming the presumptive involuntariness of Pauldo’s waiver.
The entire exchange between the detective and Pauldo — from
invocation to waiver — was conducted by the same officer, with no
break in custody, no change in location, and lasted less than three
minutes. Once again, the majority fails to address, let alone consider
any of these issues in its waiver analysis. Furthermore, Pauldo did
not waive his rights after “further deliberation in familiar
surroundings [that] caused him to believe (rightly or wrongly) that
cooperating with the investigation [was] in his interest.” Shatzer,
559 U. S. at 108. With no break in custody, Pauldo waived his rights in response to Detective Knight discussing the evidence implicating him in the crimes and the detective’s repeated and persistent question of “do you want to talk to me?” Thus, Pauldo’s waiver was not the product of deliberative choice. It came at the detective’s behest, and not at Pauldo’s own instigation. See Johnson, 812 F2d at 1331. Regardless of what the detective intended, the entire interaction served as just the type of subtle badgering that Edwards was designed to combat. See Roberson,486 U. S. at 681
. Based on
the foregoing, I respectfully dissent.
I am authorized to state that Justice Bethel joins in this
dissent.
DECIDED JUNE 16, 2020.
Murder. Laurens Superior Court. Before Judge Green.
L. Craig Fraser, District Attorney, Cheryl B. Hightower, Robert
B. Faircloth, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, for
appellant.
Nicole Fegan; Ryan C. Locke, for appellee.