State v. Pauldo

844 S.E.2d 829, 309 Ga. 130

• Court: Supreme Court of Georgia
• Decided: June 16, 2020
• Docket: S20A0191
• Status: Published

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, with Edwards, 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 also id. 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.