Walker v. State

862 S.E.2d 542, 312 Ga. 332

Opinion

312 Ga. 332 FINAL COPY

S21A0965. WALKER v. THE STATE.

NAHMIAS, Chief Justice.

Appellant Quintavious Kerry Walker was convicted of the

murder of Jaquille Thomas and Angelique Bowman. In this appeal,

his only contention is that the trial court erred by admitting into

evidence at his trial incriminating statements that he made after he

allegedly invoked his Fifth Amendment right to remain silent

during a custodial interview with the police. But the trial court’s

finding that Appellant’s purported invocations were not

unambiguous and unequivocal is not clearly erroneous, and the

court therefore did not commit plain error by admitting the

statements. We affirm.1

1 The crimes occurred on January 24, 2016. In May 2016, a Gwinnett

County grand jury indicted Appellant for felony murder of Thomas, malice and felony murder of Bowman, and two counts of aggravated assault. At a trial from October 8 to 11, 2018, the jury found Appellant guilty of all charges. The trial court sentenced him to serve life in prison for the felony murder of Thomas 1. The evidence presented at Appellant’s trial showed that

Thomas and Bowman were a young couple who, on the night of

January 24, 2016, went with Appellant to a residential

neighborhood in Norcross to sell a gun to an unidentified third party.

Before that person arrived, Appellant shot Thomas twice, killing

him, and then shot Bowman twice, killing her too.

A month after the shootings, Appellant was arrested and taken

to the Gwinnett County Police headquarters for a custodial

and a consecutive life sentence for the malice murder of Bowman. The court purported to merge the remaining counts, although the felony murder count relating to Bowman was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 373 (434 SE2d 479) (1993). Appellant filed a timely motion for new trial, which he amended through new counsel in March 2019. After a hearing, the trial court entered an order denying the amended motion in April 2019. Through his current counsel, Appellant filed a second amended motion for new trial in December 2019. After a hearing, the trial court entered an order denying the second amended motion in September 2020. In the same order, the trial court corrected its sentencing error by vacating the felony murder count relating to Bowman. Appellant then filed a notice of appeal, and the case was initially docketed to this Court’s April 2021 term. However, we dismissed the appeal, explaining that the trial court had never formally vacated its initial April 2019 order denying the motion for new trial, so that order remained operative and the appeal was untimely. See Case No. S21A0509 (Jan. 11, 2021). The trial court then filed an order vacating the April 2019 order and reopening the evidence, nunc pro tunc to June 13, 2019, and Appellant filed a motion for an out-of-time appeal, which the trial court granted. Appellant then filed a timely notice of appeal, which he amended in March 2021, and the case was docketed to this Court’s August 2021 term and submitted for a decision on the briefs. 2 interview, which was video-recorded and played for the jury at trial

in redacted form. During the interview, Appellant admitted that he

shot Thomas and Bowman, claiming that he shot Thomas because

Thomas tried to rob him before the gun sale and then shot Bowman

to eliminate her as a witness. Appellant’s admissions were

corroborated by surveillance video recordings of the crime scene and

incriminating information found on his cell phone. He did not testify

at trial.

2. In this Court, Appellant’s only contention is that the trial

court erred by admitting his statements confessing to the shootings

because those statements were elicited after he invoked his right to

remain silent under the Fifth Amendment to the United States

Constitution. This contention cannot be sustained, especially under

the plain-error standard by which we review it.

(a) About 20 minutes into the video-recorded custodial

interview, Detective David Brucz read Appellant his Miranda2

2 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)

(1966). 3 rights. The detective then asked Appellant, “you said you

understand all that?” Appellant responded, “I know what’s going

on.” The detective asked, “so you’re willing to talk?” Appellant

answered, “yeah.” Detective Brucz proceeded to ask questions about

Appellant’s relationship with Thomas. Appellant’s statements

admitting that he killed the victims began about an hour and nine

minutes into the interview. The interview ended about 17 minutes

later.

In a motion to suppress and at a pretrial Jackson-Denno3

hearing, Appellant challenged the admission of his incriminating

statements on multiple grounds, but he never asserted a Fifth

Amendment claim regarding the alleged invocation of his right to

remain silent; Appellant also testified at the hearing but said

nothing about invoking his right to silence. The trial court denied

the suppression motion, and a redacted version of the video

recording of the interview was then admitted into evidence at

Appellant’s trial, with Appellant objecting only on grounds that he

3 See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

4 had raised at the pretrial hearing. No transcript of the recording was

admitted or used at trial or in the pretrial or post-trial proceedings.

In Appellant’s second amended motion for new trial, he

asserted for the first time that he had invoked his right to remain

silent during the interview when he supposedly said, about 40

minutes after waiving his Miranda rights: “I just want to go to jail.

I don’t wanna talk no more.” Appellant also asserted that he invoked

his right to remain silent again when he supposedly said, about six

minutes later: “I don’t even wanna talk.” Appellant claimed that

because his incriminating statements occurred after these

invocations, the trial court plainly erred by admitting those

statements into evidence at the trial.

In its September 2020 order denying Appellant’s second

amended motion, the trial court ruled that, based on hearing the

recording played during the trial and reviewing it again with a focus

on the two purported invocations, Appellant “did not clearly and

unequivocally invoke his right to silence.” As to the first, the court

found that it was unclear precisely what Appellant said, but he

5 appeared to say that he “doesn’t want to go to jail.” However, his

voice trailed off, and the second half of his statement was difficult to

understand even after repeated listening. As to the second

purported invocation, the court found that after Detective Brucz and

another officer confronted Appellant with more evidence that they

had uncovered, Appellant appeared to say, “Bro, I don’t even want

to talk about it.” The court noted that Appellant then willingly

continued to engage in conversation with the officers. The court

concluded that the surrounding context made it seem that this

statement was made in response to a specific topic rather than the

interrogation as a whole and that the statement was “neither an

unequivocal nor a clear request to terminate the interrogation.”

The trial court also expressly credited the testimony given at

the hearing on the motion by the prosecutor who tried the case,

Appellant’s trial counsel, and Detective Brucz. The prosecutor

testified that she had reviewed the interview recording multiple

times and “never perceived anything that she understood as an

invocation of [Appellant’s] Miranda rights.” Appellant’s trial

6 counsel, who viewed the recording at least three times, testified that

based on his memory of the recording, “he either did not hear, did

not understand, or did not perceive an issue with [Appellant’s]

statements.” Detective Brucz testified that, although Appellant had

muttered something under his breath, the detective did not hear or

understand it as an invocation of the right to remain silent or a

request to terminate the interview and that even after reviewing the

recording, he still did not perceive any clear or unequivocal

invocations. The court noted that it saw no reason why a “reasonable

officer” would have reached a different conclusion than Detective

Brucz.

The trial court explained that Appellant’s purported

invocations were

difficult to understand even upon repeated listening. Even assuming that [Appellant] did say he no longer wanted to talk, such a statement was made while he was mumbling and almost whispering. He made no effort to clarify or reinforce that statement when officers continued to engage with him.

The court concluded, after listening to the recorded statements in

the pretrial Jackson-Denno hearing, at trial, and again at the second 7 amended motion for new trial hearing with particular focus on the

statements, that Appellant’s purported invocations were not

entirely clear, and the “context render[ed] them equivocal.”

(b) Because Appellant did not raise this particular suppression

claim before or during his trial, we review the claim only for plain

error. See McKinney v. State, 307 Ga. 129, 133 (834 SE2d 741)

(2019); OCGA § 24-1-103 (d).

To establish plain error, Appellant “must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.”

McKinney, 307 Ga. at 134 (citation omitted). “We need not analyze

all of the elements of this test when, as in this case, [Appellant] has

failed to establish one of them.” State v. Herrera-Bustamante, 304

Ga. 259, 264 (818 SE2d 552) (2018). Appellant has not established

that the trial court’s ruling admitting his statements into evidence

was a clear error.

We have explained that

when a person in the custody of law enforcement officers 8 unambiguously and unequivocally invokes his right to remain silent in connection with their interrogation, the interrogation must cease immediately. Whether an invocation is unambiguous and unequivocal “depends on whether the accused articulated a desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.”

Davidson v. State, 304 Ga. 460, 469-470 (819 SE2d 452) (2018)

(citations omitted).

When reviewing a trial court’s ruling on a suppression issue,

an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. This means that the reviewing court generally must accept the trial court’s findings as to disputed facts unless they are clearly erroneous, although the reviewing court may also consider facts that definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility such as facts indisputably discernible from a videotape.

State v. Clark, 301 Ga. 7, 8 (799 SE2d 192) (2017) (citation and

punctuation omitted). See also State v. Mohammed, 304 Ga. App.

230, 231 (695 SE2d 721) (2010) (explaining that de novo appellate

review of a video recording applies only “‘[t]o the extent that the

9 controlling facts . . . are undisputed because they are plainly

discernible from the . . . video recording’” (citation omitted)).

Appellant argues that de novo review of the trial court’s

findings is appropriate here, because this Court can review the video

recording of his interview. But the words that Appellant said during

the pertinent portions of the recording are by no means

“indisputably discernible.” At best, Appellant’s version of his

mumbled statements may be discernible – if one knows exactly what

to listen for and listens to the recording repeatedly at high volume.

It is not plainly discernible that the purported invocations would

have been unambiguous and unequivocal – or even audible – when

heard once in real time by a reasonable officer interviewing

Appellant.

Thus, what exactly Appellant said during the pertinent

portions of the video recording and how clear whatever he said

would have been to the officers interviewing him are disputed facts,

so we will defer to the trial court’s finding that Appellant failed to

clearly and unequivocally invoke his right to remain silent – a

10 finding that is not clearly erroneous as it was supported by the trial

court’s own repeated review of the recording as well as the testimony

of three witnesses who heard the recording repeatedly, one of whom

also heard Appellant’s statements directly. The trial court therefore

did not commit a clear error by admitting Appellant’s incriminating

statements into evidence, and Appellant has accordingly failed to

establish plain error. See Raheem v. State, 275 Ga. 87, 93-94 (560

SE2d 680) (2002) (“[T]he relevant portion of Raheem’s videotaped

statement was difficult, if not impossible to understand . . . . Under

these circumstances and given the testimony heard by the trial

court, this Court concludes that the trial court’s finding that

Raheem had not made any reference to whether his statement could

be used in a courtroom was not clearly erroneous. Accordingly,

Raheem’s legal argument premised on a factual assertion to the

contrary must fail.”), disapproved on other grounds, Patel v. State,

282 Ga. 412, 413 n.2 (651 SE2d 55) (2007). See also Sparks v.

Commonwealth, No. 2017-SC-000206-MR, 2017 WL 6379636, at *3

(Ky. Dec. 14, 2017) (holding that a defendant’s “inaudible mumbling

11 was not an invocation of his right to remain silent”); State v. Newell,

132 P3d 833, 842 (Ariz. 2006) (holding that a defendant’s “barely

audible, mumbled statement made while [the defendant] and the

detective were both talking” was not a “sufficiently clear invocation

of the right to counsel under Miranda”); People v. Kuns, No.

F035946, 2002 WL 220626, at *6 (Cal. Ct. App. Feb. 13, 2002)

(declining to presume that a defendant’s “silence and mumbled

answers” constituted invocations of the right to remain silent).

Judgment affirmed. All the Justices concur.

12 Decided August 24, 2021.

Murder. Gwinnett Superior Court. Before Judge Conner.

The Geary Law Firm, Kelsey L. Geary, Donald P. Geary,

for appellant.

Patsy A. Austin-Gatson, District Attorney, Lee F.

Tittsworth, Christopher M. DeNeve, Tristan W. Gillespie, Assistant

District Attorneys; Christopher M. Carr, Attorney General, Patricia

B. Attaway Burton, Deputy Attorney General, Paula K. Smith,

Senior Assistant Attorney General, Kathleen L. McCanless,

Assistant Attorney General, for appellee.