Mack v. State , 296 Ga. 239 ( 2014 )

In the Supreme Court of Georgia
Decided: November 17, 2014
S14A1168. MACK v. THE STATE.
HUNSTEIN, Justice.
Appellant Artenimus Rayshun Mack has been charged with murder and
related offenses in connection with an October 2012 shooting in Baldwin
County. In the course of his prosecution, Mack moved to suppress various
statements he made to police investigators following his arrest, contending, inter
alia, that they were obtained in violation of his constitutional privilege against
self-incrimination. Following a hearing, at which the State adduced video
recordings of Mack’s statements and the testimony of investigators to whom
these statements were made, the trial court denied the motion. The trial court
concluded, in pertinent part, that Mack had not unequivocally invoked his right
to remain silent and that he had “purposefully reinitiated” the communications
with investigators in which he ultimately confessed to shooting the victim. We
granted Mack’s application for interlocutory appeal, and we now conclude that
these findings were in error. Accordingly, we reverse.
On November 1, 2012, Mack was arrested and taken to the Baldwin
County Sheriff’s Office. At approximately 12:10 p.m., after an officer advised
him of his Miranda1 rights, Mack executed a written waiver form, and
investigators began questioning him. During the approximately two hours that
followed, Mack told investigators his version of the events leading up to and
culminating in the shooting. Mack admitted being present but maintained that
the shooter was an unidentified third party who, in the course of purchasing
marijuana from Mack and the victim, unexpectedly produced a gun and fired at
the victim.
After a one-and-a-half-hour break, the interview resumed, wherein the
investigators performed a gunshot residue test on Mack. The investigators then
told Mack he needed to start over with his story. Mack continued to deny that
he had shot the victim, insisting that his prior account was the truth.
When the investigators began confronting Mack with inconsistencies
between his account and the forensic evidence, the discussion became heated,
1
Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
2
and Mack began asking about what charges he was facing. When the lead
investigator, Lieutenant Bobby Langford, told Mack that he would likely be
charged with drug possession due to a large quantity of marijuana found in
Mack’s car, the following colloquy ensued:
Mack: OK, well, you’re going to charge me with that dope, then
charge me with the dope and go ahead send me to the jail.
Langford: I’m going to.
Mack: OK, well, let’s ride.
Langford: Well, let’s get –
Mack: I’m done. I have no more to say. I’m done. (Standing up)
Let’s ride.
At this point, the investigators told Mack to sit back down, to which he replied,
“I’m done. I ain’t got no more to say.” Mack sat back down, and this exchange
followed:
Langford: We still got some things we need to clear up. That’s
what I’m trying to –
Mack: I have no more to say. Y’all going to sit here and just tell me
my story is a lie –
Langford: That’s what you’re doing –
Mack: I have no more to say. You’re going to charge me, man,
3
charge me. Take me in. Let’s rock. I’m ready to go.
Langford: You ain’t got to talk back to me.
The interview continued for approximately 30 more minutes, with Mack
insisting on the truth of his account. Toward the end of the interview, Mack
expressed his desire to return to the jail. Before turning Mack over to other law
enforcement personnel, Langford tried several times, with different tactics, to
convince Mack to tell him the truth and admit his “mistake.” Langford also
informed Mack that he was leaving town the next morning and that as a result
this would likely be Mack’s last opportunity to tell Langford what really
happened. Mack still refused to change his story, and the interview ended at
approximately 5:10 p.m.
The following morning, Langford interviewed Mack at the Baldwin
County Sheriff’s Office again, beginning at approximately 10:10 a.m. As
reflected in the video recording, the interview began with Langford explaining
that he was preparing to leave town and wanted to find out whether Mack, after
having “a chance to sleep on everything last night,” desired to “get anything
4
straight this morning.”2 Langford then read Mack his Miranda rights, and Mack
signed another waiver form. Langford resumed his entreaties to Mack to tell
him the truth and again announced that he was preparing to leave town. Mack
continued to deny committing the murder. Several breaks were taken, during
which Mack was permitted to smoke, telephone his wife, and return to his room
to pray. After returning from his prayers, Mack altered his story slightly in a
way that made it more consistent with the forensic evidence as described to him
by Langford, but he still refused to admit to shooting the victim. Langford,
clearly frustrated, ended the interview and escorted Mack out of the
interrogation room at approximately 11:54 a.m.
The final interview began roughly ten minutes later, wherein Mack, after
being Mirandized one more time, admitted to Langford that he shot the victim
and gave a brief description of the events leading up to the murder. The video
recording contains no colloquy about, or other indication of, who initiated this
2
Early on in this interview, Mack told Langford that he had asked jail personnel
to contact Langford for the purpose of requesting to be moved out of isolation, but
that he had been rebuffed. It is clear from the video, as confirmed by Langford’s
testimony at the suppression hearing, that Langford was not informed of Mack’s
request until Mack himself brought the issue to Langford’s attention after the
interview began.
5
conversation. At the suppression hearing, however, Langford testified that
Mack initiated the conversation: “Somebody from the detention called me or
came up and said, ‘[Mack] wants to speak with you again,’ and I said, ‘bring
him up.’” There was no testimony or other evidence adduced at the suppression
hearing to dispute this account.
In reviewing a trial court’s ruling on a motion to suppress, this Court must
affirm the trial court’s findings on disputed facts unless clearly erroneous.
McDougal v. State, 277 Ga. 493 (1) (591 SE2d 788) (2004). Here, however,
there are no disputed facts, given that Mack’s interrogation sessions were
captured in video recordings that are part of the appellate record and that the one
material communication that was not recorded – the request prompting Mack’s
final interview – is not the subject of any factual dispute. See id.; Green v.
State, 275 Ga. 569, 573, n.11 (2) (570 SE2d 207) (2002). Accordingly, our
review of the trial court’s application of the law to the undisputed facts is de
novo. McDougal, 277 Ga. at 497.
1. In examining the operation of the Fifth Amendment’s privilege against
self-incrimination, the United States Supreme Court has made clear that when
an individual in custody “indicates in any manner, at any time prior to or during
6
questioning, that he wishes to remain silent, the interrogation must cease.”
Miranda v. Arizona, 384 U. S. 436, 473-474 (III) (86 SCt 1602, 16 LE2d 694)
(1966). At this point, that individual “has shown that he intends to exercise his
Fifth Amendment privilege; any statement taken after the person invokes his
privilege cannot be other than the product of compulsion.” Id. at 474. In this
regard, this Court has held that
an assertion of the right to remain silent during custodial
interrogation must be unambiguous and unequivocal before
interrogators are required to stop their questioning. . . . Resolution
of that question 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.
(Citations and punctuation omitted.) Rogers v. State, 290 Ga. 401, 404 (2) (721
SE2d 864) (2012). An accused will be found to have “unambiguously and
unequivocally” asserted his right to remain silent where he declares that he is
finished talking or otherwise expresses the clear desire for police questioning
to cease. See, e.g., State v. Moon, 285 Ga. 55, 57 (673 SE2d 255) (2009)
(finding unequivocal assertion of the right to remain silent where defendant,
after being questioned for some time, stated, “I ain’t got no more to say. I mean,
that is it.”); Green, 275 Ga. at 572-573 (finding unequivocal assertion of right
7
to silence when defendant said in response to detective’s suggestion that the
interview was about to end, “That’s cool. . . . I don’t want to talk.”); Hatcher v.
State, 259 Ga. 274, 277 (2) (379 SE2d 775) (1989) (finding unequivocal
assertion where defendant stated during police interview, “I don’t want to talk
about it no more please. No, no, no.”), overruled on other grounds by Perez v.
State, 283 Ga. 196, 200 (657 SE2d 846) (2008). Cf. Barnes v. State, 287 Ga.
423, 425 (2) (696 SE2d 629) (2010) (defendant’s statement that “if you’re not
going to talk real talk, then we shouldn’t talk” was not an unequivocal assertion
of the right to remain silent).
Here, Mack unambiguously and unequivocally invoked his right to remain
silent when he stated during the November 1 interview, “I’m done. I have no
more to say. I’m done. Let’s ride.”3 These statements, followed closely by
similar expressions of Mack’s desire to stop talking amidst the investigators’
entreaties to him to tell the truth, clearly articulated Mack’s desire that further
questioning cease. See Moon, 285 Ga. at 57. Accordingly, any statements
Mack made during the November 1 interview after invoking his right to remain
3
As reflected on the video recording of the November 1 interview, Mack made
this statement at approximately 4:34 p.m.
8
silent were improperly obtained and must be suppressed. See id. (affirming
suppression of statements made after defendant’s invocation of right to remain
silent); Green, 275 Ga. at 573 (trial court should have suppressed statements
made after invocation of defendant’s right to remain silent).
2. The admissibility of the statements made during the November 2
interviews is a more complicated issue, as it is clear that an accused’s assertion
of his right to remain silent effects neither a “permanent immunity from further
interrogation” by the police nor a “blanket prohibition” on later statements made
voluntarily by the accused. Michigan v. Mosley, 423 U. S. 96, 102 (96 SCt 321,
46 LE2d 313) (1975). Rather, “the admissibility of statements obtained after the
person in custody has decided to remain silent depends under Miranda on
whether ‘his right to cut off questioning’ was ‘scrupulously honored’” by law
enforcement authorities. Id. at 104; accord Griffin v. State, 280 Ga. 683 (2)
(631 SE2d 671) (2006); Fields v. State, 266 Ga. 241 (1) (466 SE2d 202) (1996).
The determination as to whether the police have scrupulously honored the
defendant’s right to remain silent rests in part upon their immediate response to
the defendant’s invocation of the right; a showing of respect for the defendant’s
right, by immediately ceasing questioning upon its invocation, is a significant
9
factor in this analysis. See Mosley, 423 U. S. at 105-106 (right to remain silent
was scrupulously honored where, inter alia, police “immediately ceased the
interrogation” upon defendant’s invocation of right); Griffin, 280 Ga. at 686(right was scrupulously honored where, upon invocation of the right, police
“immediately stopp[ed] [the] interview and physically exit[ed] the interview
room”); Fields, 266 Ga. at 243 (right was scrupulously honored where “police
immediately ceased all questioning when [defendant] exercised his right to
remain silent”).
Another factor in determining whether subsequent questioning is
permissible is the interval of time separating the accused’s invocation of his
right from the subsequent police-initiated questioning. Mosley, 423 U. S. at 106
(citing “the passage of a significant period of time” as a factor in finding
subsequent police interrogation permissible); accord Hatcher, 259 Ga. at 277.
Though we have never established a bright line for what constitutes the requisite
time interval in this regard, we have previously held in circumstances similar to
those presented here that a 17-hour overnight time lapse between assertion of
the privilege and further police communications was not sufficient. Wilson v.
State, 275 Ga. 53 (2) (562 SE2d 164) (2002). In Wilson, the defendant’s initial
10
statements had been suppressed because they were taken after he had invoked
his right to remain silent, and we held that, under those circumstances, the mere
lapse of overnight hours was not sufficient to justify further police-initiated
interrogation. 275 Ga. at 57-58. Cf. Griffin, 280 Ga. at 686 (police-initiated
interrogation permissible where conducted four days after accused cut off
questioning); Fields, 266 Ga. at 243 (police-initiated interrogation permissible
where conducted ten months after accused cut off questioning).
Where a defendant’s right to remain silent has not been scrupulously
honored, a statement by the defendant will be deemed properly obtained only if
the defendant himself initiates the communications with law enforcement
authorities. See Stewart v. State, 286 Ga. 669 (4) (a) (690 SE2d 811) (2010)
(defendant’s statement properly obtained where he initiated communications
after invoking his right to silence); Morgan v. State, 275 Ga. 222 (4) (564 SE2d
192) (2002) (same); Wilson, 275 Ga. at 58-59 (same); Larry v. State, 266 Ga.
284 (2) (a) (466 SE2d 850) (1996) (same). If, after invoking his Fifth
Amendment rights, a defendant is found to have initiated contact with
authorities and then knowingly and intelligently waived his rights, his ensuing
statements will be considered properly obtained. Oregon v. Bradshaw, 462 U.S.
111039, 1045 (103 SCt 2830, 77 LE2d 405) (1983) (plurality opinion); McDougal,
277 Ga. at 500-501.
Applying these principles to the two interviews of November 2, we
conclude that Mack’s statements in both interviews were improperly obtained.
(a) The initial interview of the day was clearly initiated by Langford, who
summoned Mack to find out whether he desired to “get anything straight this
morning.”4 This resumption of questioning took place just 17 hours after
Mack’s original invocation of the right to remain silent on the previous day,
which had been met with only continued questioning and pleas to tell the truth.
See Wilson, 275 Ga. at 58 (police-initiated interrogation would not be justified
17 hours after defendant’s initial invocation of right to silence was violated by
police). Cf. Griffin, 280 Ga. at 686 (subsequent interrogation initiated by police
permissible, where investigator had “scrupulously honored [the defendant’s]
original invocation of his right to remain silent by immediately stopping his
interview and physically exiting the interview room”); Fields, 266 Ga. at 243
4
The fact that Mack had apparently attempted to get jail personnel to summon
Langford during the night after the November 1 interview to discuss being held in
isolation does not change this conclusion, given that this request was not made known
to Langford until after he had initiated communications with Mack on the morning
of November 2.
12
(subsequent interrogation initiated by police permissible, where police had
“immediately ceased all questioning when [the defendant] exercised his right to
remain silent”). Given investigators’ disregard of Mack’s right when initially
invoked on November 1 and the relatively short interval between that time and
the resumption of questioning the next day, the interview initiated by Langford
on the morning of November 2 was improper, and all statements made by Mack
therein are inadmissible.
(b) The admissibility of the second interview on November 2, in which
Mack finally confessed to the murder, turns on whether this interview was
“initiated” by Mack. Though numerous cases in this Court have been resolved
on the basis that the defendant, after previously invoking his right to remain
silent, himself voluntarily initiated contact with authorities, see, e.g., Stewart,
286 Ga. at 671-672; Morgan, 275 Ga. at 224; Wilson, 275 Ga. at 58; Larry, 266
Ga. at 286, this case compels us to examine in depth what constitutes an
“initiation” of communications by a defendant following the violation by
authorities of the defendant’s previously invoked rights.
The “initiation” concept arose from the United States Supreme Court’s
decision in Edwards v. Arizona, 451 U. S. 477 (II) (101 SCt 1880, 68 LE2d 378)
13
(1981), which established that, once an accused has invoked his Fifth
Amendment right to counsel, he “is not subject to further interrogation by the
authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the
police.” (Emphasis added.) Id. at 484-485.5 The Court has since described the
initiation concept as “a prophylactic rule, designed to protect an accused in
police custody from being badgered by police officers.” Bradshaw, 462 U. S.
at 1044 (plurality). In examining the concept of “initiation” under Edwards, the
Bradshaw Court’s plurality distinguished between inquiries “relating to routine
5
Edwards was a right to counsel case, not a right to silence case. We have
previously made clear that right to silence cases are generally guided by Mosley, and
not Edwards, see, e.g., Morgan, 275 Ga. at 223-224; Bright v. State, 251 Ga. 440 (2)
(306 SE2d 293) (1983). Taken out of context, the language in these cases might be
construed to mean that the Edwards line of authority is inapplicable for all purposes
in right to silence cases. This is not so. Edwards does not apply in right to silence
cases insofar as it bars all police-initiated interrogation following a suspect’s
invocation of his right to counsel; in right to silence cases, Mosley provides the rule
that such police-initiated interrogation may be permissible where the suspect’s rights
have been scrupulously honored. See Wayne R. LaFave, 2 Crim. Proc. § 6.9 (f) (3d
ed. 2013) (distinguishing between per se proscription of Edwards and case-by-case
proscription of Mosley). However, where the issue is the effectiveness of a suspect’s
purported initiation of renewed contact, rather than the propriety of interrogation
clearly instigated by police, we see no reason why the definition of “initiation” should
be any different in right to silence cases than it is in right to counsel cases. We
therefore view the Edwards line of authority as fully applicable here in defining the
contours of a defendant’s post-invocation “initiation” of contact with police.
14
incidents of the custodial relationship,” such as a request for a drink of water,
and those “represent[ing] a desire on the part of an accused to open up a more
generalized discussion relating directly or indirectly to the investigation.” 462
U. S. at 1045.6 Thus, “initiation” requires not only that the defendant speak up
first but also that his words reflect a desire to discuss the investigation at hand.
Id. See also McDougal, 277 Ga. at 500 (holding defendant’s post-invocation
statement inadmissible despite fact that defendant had summoned detective to
his holding cell, because there was no evidence defendant’s intent was to discuss
the investigation rather than some other issue related to his confinement).
Even if a defendant does speak up first after having previously invoked
his Fifth Amendment rights, and even if his words do evince a desire to discuss
the investigation, these facts alone do not suffice to constitute an “initiation” of
contact for Edwards purposes. In at least one case, this Court has declined to
find an “initiation” despite the bare fact that the defendant spoke up first to
inquire about the charges against him. Ashley v. State, 261 Ga. 488 (1) (405
SE2d 657) (1991). In Ashley, the defendant invoked his right to counsel and
6
See also id. at 1055 (Marshall, J., dissenting) (“in order to constitute
‘initiation’ under Edwards, an accused’s inquiry must demonstrate a desire to discuss
the subject matter of the criminal investigation”).
15
the interrogating officers exited the interview room; a new officer, allegedly
unaware of the invocation of rights, subsequently entered the room with the
intent to interrogate; and, upon this officer’s entry, the defendant immediately
asked about the charges he was facing. Id. at 488-489. Concluding that no
“initiation” had occurred, we opined that
[t]o hold otherwise, would cause request[s] for counsel to be
meaningless. The police could cease the interrogation, leave the
room, re-enter with the intent of further interrogation, and hope that
the accused speaks first. Such a rule would do nothing to safeguard
the right of an accused to be free from uncounseled interrogation.
(Quotation marks omitted.) Id. at 489. Cf. Haynes v. State, 269 Ga. 181 (4)
(496 SE2d 721) (1998) (defendant did voluntarily initiate contact where, after
he invoked his right to counsel and officers left the room, another officer entered
room unaware of defendant’s presence and defendant volunteered that previous
statement was false). Thus, we have recognized that substance trumps form in
determining whether the entire sequence of events indicates a defendant’s
voluntary initiation of renewed contact. See Patterson v. State, 274 Ga. 713,
715 (1) (559 SE2d 472) (2002) (holding that final interview in which defendant
confessed was “no more than a pretense” to create impression that defendant had
16
initiated renewed contact after previous improper interrogation). Accordingly,
there is more to the analysis than merely an inquiry into “who said what when,”
and we must consider the context in which a purported “initiation” by the
defendant was made before declaring it effective to allow the resumption of
police interrogation.
This principle has been followed by courts from several other jurisdictions
that have examined the “initiation” issue in depth. The consensus among these
authorities is that, where law enforcement officers have disregarded a suspect’s
previously-invoked rights by continuing to interrogate him, a renewal of contact
by the defendant will be considered an “initiation” only if the decision to renew
contact was not a “response to” or “product of” the prior unlawful interrogation.
See, e.g., Collazo v. Estelle, 940 F2d 411, 423 (9th Cir. 1991) (a valid
“initiation” by defendant must stem from an “unbadgered desire” to engage with
authorities and cannot be the “delayed product” of authorities’ unlawful
conduct); State v. Yoh, 910 A2d 853, 861 (Vt. 2006) (defendant’s statement
admissible only if his “decision to initiate the third interview was voluntary, and
not the product of the coercion that took place in the tainted second interview”);
17
Blake v. State, 849 A2d 410, 422 (Md. 2004) (where accused’s inquiry “was in
direct response to . . . unlawful interrogation,” the accused did not “initiate”
renewed contacts with police and thus his statement was inadmissible); People
v. Kinnard, 470 NYS2d 828, 830 (N.Y. App. Div. 1983) (framing the question
as “whether the police’s earlier infringement of defendant’s right to remain
silent . . . , even though unavailing at the time, fatally tainted the spontaneity of
his subsequent statement, making it instead the product of inducement,
provocation or subtle coercion”); see also United States v. Gomez, 927 F2d
1530 (III) (11th Cir. 1991) (where only a few minutes had elapsed between
unlawful interrogation and the defendant’s renewed contact with a different
officer, such contact did not constitute “initiation” under Edwards); People v.
Boyer, 768 P2d 610, 625 (Cal. 1989) (despite fact that defendant summoned
detective back to interrogation room and confessed, refusing to find defendant
had “initiated” the communication because such initiation was preceded by a
series of violations of defendant’s previously invoked right to silence and right
to counsel), disapproved on other grounds by People v. Stansbury, 889 P2d 588,
591 n.1 (Cal. 1995); Perrine v. State, 919 So2d 520, 524 (Fla. Ct. App. 2005)
18
(analyzing validity of defendant’s initiation of renewed contact by examining
whether the “tainted post-Miranda interrogation had been dissipated”). See also
generally Maryland v. Shatzer, 559 U. S. 98, 107 (II) (130 SCt 1213, 175 LE2d
1045) (2010) (in analyzing admissibility of statement made by accused after his
invocation of rights, framing inquiry as whether accused’s “change of heart”
was brought on by his own “further deliberation” as opposed to police
coercion).
Accordingly, we now expressly adopt this rule: a suspect will be
considered to have “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. In determining the causal connection
between the prior unlawful interrogation and the suspect’s renewal of contact,
the entire sequence of events leading up to the suspect’s renewal of contact must
be considered, including but not limited to the lapse of time between the
unlawful interrogation and the renewed contact, any change in location or in the
identity of the officers involved from one interview to the next, and any break
19
in custody between interviews. See, e.g., Collazo, 940 F2d at 421; Yoh, 910
A2d at 862; Blake, 849 A2d at 422; Perrine, 919 So2d at 524-525. The State
bears the burden of proving an effective “initiation” under the circumstances.
See Blake, 849 A2d at 418; State v. Munson, 594 NW2d 128, 141 (Minn. 1999).
On appeal, the reviewing court must accept the trial court’s findings of
disputed fact regarding “initiation” unless clearly erroneous. See, e.g., Walton
v. State, 267 Ga. 713 (3) (482 SE2d 330) (1997) (determination that defendant
rather than officers actually initiated further conversation reviewed under clearly
erroneous standard); Guimond v. State, 259 Ga. 752 (2) (386 SE2d 158) (1989)
(same). However, the court must review de novo the determination of whether
the facts so found constitute an effective “initiation” in the legal sense. See
Smith v. State, 275 Ga. 715 (4) (571 SE2d 740) (2002) (on mixed questions of
fact and law, appellate court independently applies applicable legal principles
to facts). In other words, the appellate court must affirm the trial court’s
findings on “who said what when” unless they are clearly erroneous, but must
independently review whether any actual renewal of contact by the suspect, in
the context of the entire interaction between law enforcement authorities and the
20
accused, constitutes a legally effective “initiation” under the principles set forth
above.7
Applying the above principles, we hold that the State has failed to satisfy
its burden to establish an effective “initiation” by Mack. While the undisputed
evidence confirms the trial court’s finding, as a matter of historical fact, that
Mack initiated the final contact with Langford by summoning him through
sheriff’s office personnel, this conduct did not constitute an “initiation” of
contact in the legal sense. There was no break in custody, a very short lapse in
time, and no change in location or identity of the interrogating officer from the
first interview on November 2 to the second. See Collazo, 940 F2d at 421-422
7
Though most of our prior cases either explicitly or implicitly have utilized a
clearly erroneous standard regarding initiation, see e.g., Harvell v. State, 275 Ga. 129(2) (562 SE2d 180) (2002); Walton, 267 Ga. at 717, this is likely because these cases
focused primarily on the “historical fact” of initiation, i.e., the “who said what when.”
In the one case where we found that a defendant’s actual initiation did not operate
as an initiation in the legal sense, though we did not discuss the standard of review,
we utilized the de novo standard without expressly acknowledging it. Ashley, 261
Ga. at 489 (reversing finding that defendant initiated contact even though there was
no dispute that he had spoken first). Given the nature of the initiation inquiry, we
think the de novo standard of review is clearly the correct one. See Collazo, 940 F2d
at 421 (conducting “plenary review” of initiation and waiver issues). But see Blake,
849 A2d at 422 (noting split among courts as to proper standard of review); Gomez,
927 F2d at 1539, n.9 (purporting to utilize clearly erroneous standard but nonetheless
reversing, reasoning that under the circumstances “an Edwards type of initiation was
not possible”).
21
(“[t]he day, subject matter, place of the interrogation, and interrogation team
remained the same”). Mack’s request to speak with Langford was made just
minutes8 after the cessation of more than one-and-a-half hours of police
questioning, conducted in violation of Mack’s previously invoked right to
remain silent, during which Langford repeatedly implored, badgered, and
cajoled Mack to tell the truth. See Blake, 849 A2d at 422-423 (no “initiation”
in the legal sense where just 28 minutes elapsed between officer’s improper
interrogation and defendant’s expression of desire to talk); Gomez, 927 F2d at
1539, n.8 (opining that a few minutes was not sufficient time to “overcome the
coercion” of an unlawful interrogation and render possible a defendant’s
“initiation” of contact under Edwards). That unlawful interview followed the
8
Precisely how many minutes is unclear, but the time stamps on the video
recordings reflect between nine and ten minutes from Langford’s ushering Mack out
of the first interview to the beginning of the footage of the second interview. In
addition, Mack testified at the Jackson-Denno hearing that outside the interview room
while waiting for the jailers after the first interview, Langford continued his pitch to
Mack to tell the truth, which would further condense the time frame from improper
interrogation to “initiation.”
This close temporal proximity, along with the multiple improper interrogation
sessions, distinguishes this case from Wilson, supra, in which this Court held that the
defendant had effectively initiated renewed contact with police after a violation of his
previously-invoked right to silence. 275 Ga. at 58. We decline to speculate,
however, whether the result in Wilson would still obtain under the rule set forth
herein.
22
interrogation of the previous day, in which Langford had also blatantly ignored
Mack’s invocation of his Fifth Amendment privilege. We thus conclude that
Mack’s request to speak with Langford was the product of improper
interrogation rather than Mack’s own considered deliberation and, as such, it
was not an effective “initiation” under Edwards and its progeny.
“This is an appropriate case for application of the exclusionary rule, the
purpose of which is ‘to deter – to compel respect for the constitutional guaranty
in the only effectively available way – by removing the incentive to disregard
it.’” (Punctuation omitted.) Collazo, 940 F2d at 423. Accordingly, we hold
that all statements Mack made to police on November 1 and 2, 2012, after he
invoked his right to remain silent at approximately 4:34 p.m. on November 1,
were improperly obtained and must be suppressed.
Judgment reversed. All the Justices concur.
23