Walker v. State ( 2021 )

In the Supreme Court of Georgia
Decided: August 24, 2021
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
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
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
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 decision on the briefs.
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to the Gwinnett County Police headquarters for a custodial
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
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interview, Detective David Brucz read Appellant his Miranda 2
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-Denno 3
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
2 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
3 See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
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recording of the interview was then admitted into evidence at
Appellant’s trial, with Appellant objecting only on grounds that he
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
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unequivocally invoke his right to silence.” As to the first, the court
found that it was unclear precisely what Appellant said, but he
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
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times and “never perceived anything that she understood as an
invocation of [Appellant’s] Miranda rights.” Appellant’s trial
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
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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
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
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was a clear error.
We have explained that
when a person in the custody of law enforcement officers
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.
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230, 231 (695 SE2d 721) (2010) (explaining that de novo appellate
review of a video recording applies only “‘[t]o the extent that the
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,
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so we will defer to the trial court’s finding that Appellant failed to
clearly and unequivocally invoke his right to remain silent – a
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.
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Commonwealth, No. 2017-SC-000206-MR, 2017 WL 6379636, at *3
(Ky. Dec. 14, 2017) (holding that a defendant’s “inaudible mumbling
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.
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