Thank you for sharing!

Your article was successfully shared with the contacts you provided.

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 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 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 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 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 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 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 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 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. 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, 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. 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.

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

GlobeSt. APARTMENTS Fall 2021

October 26, 2021 - October 27, 2021
Los Angeles, CA

Join 1000+ of the industry's top owners, investors, developers, brokers & financiers at THE MULTIFAMILY EVENT OF THE YEAR!


GlobeSt. NET LEASE Fall 2021

October 28, 2021
Los Angeles, CA

This conference brings together the industry's most influential & knowledgeable real estate executives from the net lease sector.


China Law & Practice Awards 2021

November 04, 2021

The annual China Law & Practice Awards is the jurisdiction's most prestigious legal awards ceremony that applauds China's elite.


In House Attorney

New York, New York, United States

We are seeking a full time inhouse attorney with 5 to 10 years experience in business and real-estate contracts/ transactions.The pay is gre...

Apply Now ›

Attorney Career Opportunities

Silver Spring, Maryland, United States

ATTORNEY CAREER OPPORTUNITIES (Multiple Vacancies)  FDA’s Office of the Chief Counsel is seeking to fill several attorney positi...

Apply Now ›

Employee Benefits Associate

Multiple, Pennsylvania, United States

Duane Morris seeks an associate with 3-4 years of experience to join its Employee Benefits and Executive Compensation Group. Candidate shoul...

Apply Now ›



Shapiro Croland Reiser Apfel Di Iorio, LLP Take Pleasure in Announcing that Megan Hodes & Elizabeth Rackley Desalvo have Joined the Firm as Associates

View Announcement ›



Leahey & Johnson gives birthday tribute to Late founder, mentor and model Peter James Johnson

View Announcement ›



Blume Forte Fried Zerres & Molinari is pleased to welcome Richard T. Madurski to the firm as an associate

View Announcement ›