NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: November 2, 2023
S23A0534. JENKINS v. THE STATE.
PETERSON, Presiding Justice.
The question in this case is whether Larry Jenkins’s
unequivocal statement that he would not talk to law enforcement
without a lawyer was a valid invocation of his Miranda 1 rights.
Agreeing with the State, the trial court concluded that the statement
came at a time that Jenkins was not being interrogated and at which
no interrogation was imminent, and thus it was “anticipatory” and
invalid under a line of precedent from several federal courts of
appeals. We need not decide here whether that line of precedent is
correct, because the trial court erred by extending that precedent to
the circumstances in this case. At the time that Jenkins invoked his
Miranda rights, he (1) was in custody for the crimes at issue in this
1 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
case, (2) had been given Miranda warnings, (3) had already been
subjected to custodial interrogation by law enforcement on the way
to the jail, and (4) was going through the booking process. Whether
or not the booking process itself was custodial interrogation, the
facts of this case show that a reasonable person in Jenkins’s position
would have believed that interrogation was at least imminent.
Accordingly, his unequivocal invocation was valid, the State’s failure
to honor it rendered his custodial statements inadmissible, and the
State has failed to show that the use of that inadmissible evidence
was harmless. Accordingly, we reverse Jenkins’s convictions;
because the evidence against him was constitutionally sufficient, he
may be retried.
Before his 1995 trial, Jenkins moved to suppress his confession
and other evidence gathered therefrom; the trial court granted his
motion. Even without that evidence, Jenkins was convicted and
sentenced to death for a murder he committed when he was 17; we
affirmed in 1998. In 2005, a habeas court vacated his death sentence
under Roper v. Simmons, 543 U.S. 551 (125 SCt 1183, 161 LE2d 1)
2
(2005), and granted a new trial on the basis of ineffective assistance
of trial counsel; we affirmed in 2006. In 2014, the State, seeking to
retry Jenkins, filed a “Motion to Admit into Evidence at Trial
Defendant’s Post-Arrest Statements to Law Enforcement Officers
and Physical Evidence Discovered from Interrogation of the
Defendant,” which the trial court and parties treated as a motion to
reconsider the previously granted motion to suppress. 2
2 In late January 1993, a Wayne County grand jury indicted Jenkins on
several charges, including as pertinent here, two counts of malice murder,
armed robbery, kidnapping with bodily injury, two counts of theft by taking,
and theft by receiving stolen property, and he was convicted on all of those
counts and sentenced to death following a September 1995 trial. See Jenkins
v. State, 269 Ga. 282, 282 n.1 (498 SE2d 502) (1998). This Court affirmed
Jenkins’s convictions and sentences. See id. A habeas court later vacated his
death sentences (the Supreme Court had held in Roper that the United States
Constitution forbade imposing the death penalty on juvenile offenders, and
Jenkins was 17 at the time of the crimes) and convictions (for ineffective
assistance of counsel in failing to conduct a reasonable investigation). This
Court affirmed the grant of habeas relief on appeal. See Terry v. Jenkins, 280
Ga. 341 (627 SE2d 7) (2006).
In September 2014, a jury found Jenkins guilty of all counts: two counts
of malice murder, one count of armed robbery, two counts of kidnapping with
bodily injury, two counts of theft by taking, and one count of theft by receiving
stolen property. The trial court sentenced Jenkins to serve consecutive terms
of life in prison on the two malice murder counts, the armed robbery charge,
and one of the kidnapping counts; the court also imposed a consecutive 10-year
term on the theft by taking count. The remaining counts merged for sentencing
purposes. On November 13, 2014, Jenkins filed a timely motion for new trial,
which he amended through new counsel on August 22, 2020. Following an
evidentiary hearing, the trial court granted Jenkins’s motion for new trial on
3
The trial court determined that Jenkins’s custodial statements
(including a confession) were admissible because Jenkins had not
validly invoked his right to counsel under Miranda. The court
reasoned that 17-year-old Jenkins’s invocation was “anticipatory”
because, even though he was in custody, had been advised of his
Miranda rights, and during booking by law enforcement
unequivocally stated that he would not talk without the assistance
of an attorney, Jenkins was merely going through the booking
process, not being formally interrogated. After his confession was
introduced against him at his second trial, Jenkins was convicted
and this appeal ensued.
On appeal, Jenkins argues that the trial court lacked the
authority to revisit the prior suppression order, and that even if it
had such authority, the trial court erred in concluding that his
the theft by taking and theft by receiving stolen property counts, but otherwise
denied Jenkins’s motion for new trial. Jenkins filed a timely notice of appeal
to this Court, but the appeal was dismissed due to the pendency of his theft
counts in the trial court. See Seals v. State, 311 Ga. 739 (860 SE2d 419) (2021)
After the trial court dismissed the theft counts at the request of the State,
Jenkins filed a timely second notice of appeal to this Court on January 10,
2023. The case was docketed to this Court’s April 2023 Term and submitted for
a decision on the briefs.
4
invocation of his rights was ineffective because it was anticipatory.
Because the trial court erred in concluding that the statements were
admissible, we do not reach the issue of the trial court’s authority to
reconsider the previous ruling. 3 Even under the “no anticipatory
invocation” rule relied on by the State (a rule that we have never
adopted and express no view on today), a defendant can effectively
invoke his Miranda rights if an interrogation is “imminent,” and
under the facts of this case detailed below, the State has not met its
burden of showing that a suspect in Jenkins’s position would not
have reasonably believed an interrogation was imminent. We
therefore reverse.
1. The Trial Evidence
The evidence presented at Jenkins’s 2014 retrial showed that,
around 7:00 p.m. on January 8, 1993, Terry Ralston and her oldest
son, Michael, left their home in Terry’s 1991 white Chevy Lumina
van to close one of the laundromats that Terry’s parents owned in
3 We express no view about the merits of the dissent’s treatment of this
very difficult state-law question.
5
Jesup. In addition to cleaning the facility that evening, Terry was
also scheduled to collect quarters from the machines. Around 10:00
p.m., when Terry and Michael had not returned home from the
laundromat, Terry’s father went to the laundromat to check on
them, but they were not there. Later that night, Terry’s husband
contacted law enforcement to report that Terry and Michael were
missing. Law enforcement began looking for Terry and Michael and
the Chevy Lumina.
On the morning of January 9, two employees of a railroad
company discovered two bodies — later identified as Terry and
Michael — in a shallow ditch a short distance away from the railroad
tracks. The employees immediately called law enforcement, and law
enforcement officers from the Wayne County Sheriff’s Department,
the Jesup Police Department, the GBI, and the Department of
Natural Resources arrived on the scene shortly thereafter.
The night before the bodies were found, between 9:00 and 10:00
p.m., a police officer had noticed a white van near the train tracks
where the victims’ bodies were found. The officer testified that the
6
van he saw that night looked similar to Terry’s Chevy Lumina van.
During the late morning hours of January 9, police began looking for
Terry’s van. Officer Glenn Jackson and another police officer drove
to an overpass area by the railroad tracks in anticipation of the van
traveling in that direction. Shortly thereafter, Officer Jackson
“observed the white van come over the hump of the railroad tracks
and about halfway down around the curve” and come to a stop, at
which point four “male subjects jumped out and started running in
different directions.” Officer Jackson pursued the driver of the van,
who ran towards the adjacent railroad tracks, slid under a boxcar,
and then escaped into the woods on the other side, where Officer
Jackson lost sight of him.
Captain Doug Lewis with the Department of Natural
Resources — who had been working alongside other law
enforcement agencies to help secure the crime scene — testified that
he also heard a radio call reporting that a white van had been seen
in Jesup by the overpass and that law enforcement was requesting
assistance for “some people that were fleeing” from the van and
7
“running up the railroad tracks.” Captain Lewis drove to that area
and parked his vehicle. He did not see any of the suspects, but he
walked around the area adjacent to the overpass and noticed a green
backpack lying on the ground. Captain Lewis contacted a GBI agent
to come and secure the backpack. GBI Agent Weyland Yeomans
testified that he met Captain Lewis at the location of the backpack,
and he seized the bag and its contents. Agent Yeomans testified that
there was $142.50 in the bag, almost all of it in quarters. Agent
Yeomans also found quarter wrappers in the bag, some of which had
quarters inside of them, as well as a Kentucky Fried Chicken name
badge with the name “David” on it.
While Officer Jackson was still monitoring the overpass area,
Annie Ruth Mathis — a woman who lived nearby — approached him
and advised that she had brought him a gun that her children and
grandchildren had discovered near her house. Officer Jackson
retrieved the gun and contacted GBI agents to inform them that he
had received a gun that might be related to the crimes. Officer
Jackson later testified that the gun was a Grendel handgun, but he
8
was not certain of the caliber.
Mathis testified that she lived about one or two blocks away
from the overpass. She was at home on January 9, and around
lunchtime, she walked out onto her porch with her husband and her
son because they heard an airplane flying over their house. 4 Mathis
noted that the airplane was circling low over the area. Around the
same time, Mathis saw Jenkins — whom she had known since he
was a baby — walking down the street, and she saw him throw
something “out of his hand.” As Jenkins got closer to her house, a
person inside the airplane screamed down for Mathis and her family
to get back inside the house because “he” — referring to Jenkins —
was “dangerous.” Mathis said that Jenkins started “jogging” at that
point and jogged “right in front of [her] house and jogged right on
around the corner and on down the street.” Mathis went around to
her backyard, and a few minutes later, one of her grandchildren
came running into the backyard and handed her a gun inside a “little
4 Testimony at trial established that law enforcement officers were also
flying a plane through this area in search of the missing white van and the
suspects.
9
black pouch thing.” Mathis testified that her children and
grandchildren had been playing outside in the street in front of her
house when they found the gun. Mathis said she put the gun in her
car, “took it up the road” to the railroad tracks where she had “seen
the police[,]” and gave it to one of the officers.
Ken Mullis, a deputy with the Wayne County Sheriff’s
Department, testified that he had been part of the search for the
missing Chevy Lumina van and the suspects on January 9.
According to Deputy Mullis, he had been “listening to the radio
traffic from the airplane” when he heard that the van had been
located. He got into his patrol car and headed toward the overpass
area where the van had stopped. As he was driving, he looked in his
rearview mirror and saw someone running. Deputy Millis gave
chase on foot and saw the individual trying to crawl under a trailer.
Deputy Mullis apprehended the individual, later identified as
Jenkins. Deputy Mullis testified that he read Jenkins his Miranda
rights on the way to the patrol car, and he then transported Jenkins
to the Wayne County Jail. While Jenkins was being booked into the
10
jail, Jenkins said he wanted an attorney before answering any
questions. The booking officer — Angela Robinson — pulled a
learner’s permit out of Jenkins’s right pocket and gave it to Deputy
Mullis. The learner’s permit belonged to Michael Ralston.
During a subsequent search of the interior of the Chevy
Lumina van, GBI Agent Yeomans located a .22 Magnum clip on the
front driver’s side floorboard, some loose quarters and quarter sleeve
wrappers, and a green and gold tote bag containing a few quarters
and articles of clothing. Agent Yeomans also searched the area
around the van, and about five feet away from the passenger side
door of the van, he found a camouflage cooler bag containing “a .22
Magnum pistol, a .44[-] caliber pistol, and a 9mm pistol,” along with
“about four .44 Magnum shells.” Officers, who had been unable to
thoroughly search the crime scene because it had been under a few
inches of water, returned to the crime scene with a metal detector to
look for bullets or cartridge cases. Officers located six cartridge cases
and one metal projectile, all .22-caliber ammunition.
11
Dr. John Parker, a medical examiner and forensic pathologist
for the GBI, testified that he performed the autopsies on Terry and
Michael. According to Dr. Parker’s testimony, Terry was shot on the
“right side of the back of the head,” and Michael was shot six times
— four in his back, one in his arm, and one in his left temple — and
the cause of death for both victims was a gunshot wound to the head.
Dr. Parker removed several bullets from both victims during the
autopsies, which were then sent to the ballistics section of the
forensic laboratory at the GBI for testing.
Dr. Roger Parian, a firearms examiner for the GBI, testified
that he tested the bullets and cartridge cases recovered from the
crime scene and the victims. Dr. Parian determined that all of the
recovered bullets and cartridge cases had been fired from the gun
recovered by Mathis and turned into police — a Grendel .22
Magnum handgun. 5
5 Both Dr. Parker and Dr. Parian testified at the first trial but died prior
to the retrial in 2014. Using the transcripts from the first trial, the State read their testimony into evidence at the retrial.
12
At trial, Michael DeLoach testified that, on the morning of the
murders, someone broke into his house near Jesup Elementary
School and stole several handguns and other items of value, and he
reported it to the police the same day. A few days later, Agent
Yeomans contacted DeLoach and asked if he would look at evidence
the GBI had collected during a murder investigation to see if he
recognized any of the items. GBI agents brought the items to
DeLoach, and he was able to identify the items found near the Chevy
Lumina van as being stolen from his residence on January 8 —
namely, (1) a “.22 Magnum semiautomatic” handgun, (2) a .22-caliber clip, (3) a camouflage cooler bag, (4) a “.44 Magnum Ruger,”
(5) “a high-power 9mm[,]” and (6) .22 Magnum bullets.
During a custodial interview, conducted the day after he was
booked into the jail, Jenkins confessed to stealing the firearms and
ammunition that belonged to DeLoach and that he used the .22
handgun to kill Terry and Michael Ralston. Jenkins also stated that
he discarded a pocketbook he found in the van and agreed to take
the GBI agents to the location where he discarded it. The agents
13
found “a brown pocketbook and an associated clutch purse with the
name of — with an identification document in it, including a driver’s
license of Terry M. Ralston.” These custodial statements are at issue
in this case.
2. Jenkins’s Claims on Appeal.
Jenkins argues that the trial court erred in admitting his
custodial statements, as well as the evidence subsequently
recovered — the victim’s pocketbook and its contents — at the new
trial in 2014. Jenkins argues that (1) the trial court had already
suppressed this evidence before the first trial, and the trial court
presiding over the new trial lacked authority to revisit that prior
ruling; and (2) even if the trial court was authorized to revisit that
decision, the trial court erred in concluding that Jenkin’s invocation
of his right to counsel was invalid because it was anticipatory and
occurred before he was actually questioned by law enforcement.
We do not reach the issue of the trial court’s authority to revisit
its prior ruling because we conclude that the court erred in
determining that Jenkins did not validly invoke his Miranda rights.
14
Although we conclude that the trial court erred in admitting
Jenkins’s custodial statements, we do not reach the issue of whether
the physical evidence derived from Jenkins’s custodial interview
was due to be suppressed because that is a separate issue that was
not preserved below. 6
6 Although Jenkins argued at his 2014 trial that the physical evidence
was inadmissible as the “fruit of the poisonous tree,” without explaining why,
the trial court concluded that the evidence was admissible because Jenkins
voluntarily and freely participated in the custodial interviews which led to the
seizure of that physical evidence. See Patane v. United States, 542 U.S. 630,
642-644 (IV) (124 SCt 2620, 159 LE2d 667) (2004) (three-Justice plurality
concluding that the failure to provide Miranda warnings did not require
suppression of the physical fruits of the suspect’s unwarned but voluntary
statements, while noting that suppression would be required if statements
were coerced); id. at 644-645 (two Justices agreeing that nontestimonial
physical fruits were admissible); see also Clay v. State, 290 Ga. 822, 828 (1) (B) (725 SE2d 260) (2012) (“Patane held that the suppression of the physical fruits
of a defendant’s unwarned but voluntary statements is not constitutionally
required[.]”). When examining the admissibility of evidence that is contended
to be fruit of the poisonous tree, “the appropriate question” is whether the
challenged evidence has been obtained “by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint.” Teal v. State, 282 Ga. 319, 323 (2) (647 SE2d 15) (2007) (citing Wong
Sun v. United States, 371 U.S. 471, 488 (83 SCt 407, 9 LE2d 441) (1963);
punctuation omitted)); see also State v. Chulpayev, 296 Ga. 764, 773 (3) (a) (770
SE2d 808) (2015) (“[N]ot all evidence is deemed fruit of the poisonous tree
simply because it would not have come to light but for the illegal actions of the
police.” (citation and punctuation omitted)). This examination depends on the
“facts of the case” and the consideration of several factors, but the parties made no argument regarding these factors and the trial court made no ruling on
them since it concluded that Jenkin’s custodial statements were not illegally
obtained, and so there is nothing for us to review on this point. See Kessler v.
15
(a) Before the first trial of this case in 1995, the trial court
conducted a Jackson-Denno7 hearing on the admissibility of
Jenkins’s confession; the relevant part of the hearing took place
across two days, March 9, 1995 and March 16, 1995. 8 Testimony
from various law enforcement officers showed that when Jenkins
was arrested, Deputy Mullis advised Jenkins of his Miranda rights
State, 311 Ga. 607, 613 (3) n.8 (858 SE2d 1) (2021) (issue not raised or ruled
upon by the trial court is not preserved for review on appeal).
7 Jackson v. Denno, 378 U.S. 368 (84 SC 1774, 12 LE2d 908) (1964).
8 The transcripts of these hearings were not included in the record of this
appeal, but they are available in our archives in the record associated with
Jenkins’s first direct appeal in 1998. These transcripts were the only evidence
considered by the trial court in 2014, and thus are critical to review that court’s decision. Accordingly, we take judicial notice of these transcripts. See Baez v.
Miller, 266 Ga. 211, 211 (465 SE2d 671) (1996) (a court may take judicial notice
of records on file in its own court).
At the March 16, 1995, hearing, the State specifically cited McNeil and
argued that a defendant’s invocation of the Sixth Amendment right to counsel
is insufficient to invoke Miranda’s protections. At that hearing, the State’s
focus was on challenging the credibility of Officer Robinson’s testimony,
arguing that the trial court should find that Jenkins had not actually stated
that he wanted an attorney. The State conceded that, if the Court found that
Jenkins made the statement, “all of those items are suppressible.” But the
1995 trial court found that Jenkins did invoke Miranda in granting the motion
to suppress, and the State on retrial did not challenge this factual finding,
arguing only that the invocation was anticipatory.
The dissent nevertheless appears to challenge the veracity of Jenkins’s
statement by pointing out that two officers did not hear Jenkins invoke his
right to counsel. But credibility determinations are for the trial court, and the
State does not dispute that Jenkins made an unequivocal assertion that he
wanted an attorney.
16
and then took Jenkins to the Wayne County Jail. On the way to the
jail, Deputy Mullis and another detective questioned Jenkins,
including about the other passengers in the van. At the jail, Deputy
Mullis took Jenkins to the booking area and participated in helping
search him for weapons. As Officer Robinson patted him down for
contraband or weapons, Jenkins stated that he “wasn’t answering
any questions without his lawyer or without a lawyer.” Officer
Robinson testified that, despite her limited law enforcement
experience, she assumed Jenkins was going to be interviewed.
Two GBI agents went to the jail the next day to interview
Jenkins, and prior to the interview, they advised Jenkins of his
Miranda rights. Jenkins then signed a Miranda acknowledgment
and waiver form before the agents proceeded with the custodial
interview at issue here. Following the Jackson-Denno hearing, the
trial court entered an order suppressing Jenkins’s custodial
statements, as well as the recovery of the victim’s pocketbook based
on information provided to the agents during Jenkins’s custodial
interview, concluding that Jenkins “unequivocally invoked his right
17
to counsel [to Officer Robinson] when he arrived at the Wayne
County Detention Center.”
Prior to Jenkins’s new trial in 2014, the State filed a “Motion
to Admit Into Evidence at Trial Defendant’s Post-Arrest Statements
to Law Enforcement Officers and Physical Evidence Discovered from
Interrogation of the Defendant.” The State argued that it was
“appropriate” for the trial court to revisit the prior ruling based on
the “impact of more recent case law, as well as cases then decided
but perhaps not called to the attention of or not considered” by the
former trial court, citing McNeil v. Wisconsin, 501 U.S. 171 (111 SCt
2204, 115 LE2d 158) (1991), as an example. At a hearing on the
issue, the State claimed that it attached as an exhibit to its motion
the transcript of the first 1995 hearing. 9 That hearing did not show
any reference to McNeil. But the State clearly relied upon McNeil at
the second suppression hearing in 1995.
9 The State’s motion listed several documents that it stated were
attached as exhibits; as noted earlier, the record does not appear to contain
them and efforts by our clerk’s office to obtain them from the trial court were
unsuccessful.
18
Following a hearing in September 2014, the trial court ruled
that it had the authority to revisit the prior suppression ruling and
concluded that Jenkins’s custodial statements were admissible at
the new trial. In considering the admissibility of the custodial
statements, the trial court observed that, although Jenkins invoked
his right to counsel during the booking process on January 9, he did
not do so before being questioned by GBI agents on January 10. And
the trial court concluded that, because Miranda rights cannot be
invoked anticipatorily in contexts other than custodial interviews
and because the booking process is not considered to be a custodial
interview “unless there are special circumstances which convert it
into an inquiry intended to elicit incriminating statements,”
Jenkins’s statements were admissible at trial. On the facts of this
case, we disagree.
(b) As we have said before,
Miranda warnings must be administered to an accused
who is in custody and subject to interrogation or its
functional equivalent. This requirement arises when a
person is (1) formally arrested or (2) restrained to the
degree associated with a formal arrest.
19
State v. Walden, 311 Ga. 389, 389 (858 SE2d 42) (2021) (citations
and punctuation omitted); see also Tolliver v. State, 273 Ga. 785, 786
(546 SE2d 525) (2001) (“Miranda protections adhere when an
individual is (1) formally arrested or (2) restrained to the degree
associated with a formal arrest.” (citing Stansbury v. California, 511
U.S. 318 (114 SCt 1526, 128 LE2d 293) (1994)). 10 Miranda outlines
the procedures to be followed once warnings have been given,
making clear that once warnings are given and one of the rights
referenced therein is invoked, police must honor that invocation:
Once warnings have been given, the subsequent
procedure is clear. If the individual indicates in any
manner, at any time prior to or during questioning, that
he wishes to remain silent, the interrogation must cease.
. . . If the individual states that he wants an attorney, the
10 Although the protections of Miranda apply only to custodial
interrogations, Miranda warnings are often given upon a defendant’s arrest
because certain questions posed to a suspect in custody even before a formal
interrogation could nevertheless be considered a custodial interrogation or the
functional equivalent of one. See State v. Brown, 287 Ga. 473, 476 (2) (697 SE2d
192) (2010) (explaining that “interrogation” is “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” (citations and punctuation omitted)).
20
interrogation must cease until an attorney is present.
Miranda, 384 U.S. at 473-474 (emphasis supplied).
No one disputes that Jenkins was in custody for the crimes at
issue when he was advised of his Miranda rights. And there is no
question that some time after that advisement, Jenkins’s statement
— that he “wasn’t answering any questions without his lawyer or
without a lawyer” — was a clear and unequivocal assertion that he
wanted an attorney. 11 See, e.g., State v. Brown, 287 Ga. 473, 476 (2)
(697 SE2d 192) (2010) (“I want a lawyer” was an unequivocal
assertion of the right to counsel). The trial court ruled here that
Jenkins’s invocation was nevertheless invalid because it was
“invoked anticipatorily,” since he was not being interrogated at the
time he made the statement. In support, the trial court cited a
footnote in McNeil v. Wisconsin, where the United States Supreme
Court noted that “[w]e have in fact never held that a person can
11 In its 2014 order, the trial court noted that the State never challenged
Jenkins’s statements as being equivocal, and the court found that Jenkins
unambiguously invoked his right to counsel.
21
invoke his Miranda rights anticipatorily, in a context other than
‘custodial interrogation[.]’” 501 U.S. at 182 n.3.
Construing McNeil’s footnote, several federal circuits have
held that Miranda rights may be invoked only during a custodial
interrogation or when an interrogation is imminent. See, e.g.,
United States v. Grimes, 142 F3d 1342, 1348 (11th Cir. 1998); United
States v. LaGrone, 43 F3d 332, 335-340 (7th Cir. 1994); Alston v.
Redman, 34 F3d 1237, 1242-1251 (3d Cir. 1994); United States v.
Thompson, 35 F3d 100, 103-104 (2d Cir. 1994); United States v.
Wright, 962 F2d 953, 954-956 (9th Cir. 1992). Those cases have each
ruled a defendant’s invocation invalid due to the circumstances of
those invocations, but none of those cases involved circumstances
like this case, where a defendant was in custody for the charges at
issue, was read his Miranda rights, had already been subjected to
some custodial interrogation about the charges at issue, was being
booked when he invoked, and then unequivocally expressed an
intent to avoid answering questions without an attorney’s
assistance. In McNeil, the defendant appeared with counsel at a bail
22
hearing on an armed robbery charge, was questioned by officers
about a different crime, and made incriminating statements in
response. The defendant argued that counsel’s presence at the bail
hearing was sufficient to invoke the defendant’s Miranda rights
concerning the unrelated charge. The United States Supreme Court
rejected that argument, concluding that the Edwards rule required,
“at a minimum, some statement that can reasonably be construed to
be an expression of a desire for the assistance of an attorney in
dealing with custodial interrogation by the police,” and requesting
“the assistance of an attorney at a bail hearing does not bear that
construction.” McNeil, 501 U.S. at 175-181 (also rejecting argument
because the Sixth Amendment is charge-specific and the invocation
of that right as to the charge defendant faced at the time did not
extend to the future different charges on which he sought to use it).
In other cases, courts have rejected purported “invocation”
claims where the defendant invoked as to charges other than those
at issue or was seeking an attorney’s help for purposes other than
interrogation. See Grimes, 142 F3d at 1345, 1347-1350 (rejecting
23
argument that the execution of a “claim of rights” form on an
unrelated charge was an effective invocation of Miranda rights for
“all subsequent purposes”); Lagrone, 43 F3d at 337 (a defendant’s
request to consult his attorney was regarding whether to consent to
a search of his property, not about an interrogation, and therefore
was not considered an invocation of Miranda rights); Alston, 34 F3d
at 1240-1249 (defendant’s execution of a form letter outside the
presence of law enforcement that was given to a public defender,
after defendant had already been interviewed with no indication
that another interview was imminent, was an insufficient
invocation); Thompson, 35 F3d at 103-104 (1) (defendant’s
completion of an immigration form was not an invocation because
the form contained no request for the assistance of counsel for the
purpose of a custodial interrogation); Wright, 962 F2d at 954-956
(rejecting claim that defendant’s request to have an attorney present
for interviews after pleading guilty to state charges was insufficient
to invoke Miranda rights on unrelated federal offenses).
24
What can be distilled from these cases is that a defendant
cannot be considered to have invoked Miranda’s right to counsel
simply by bootstrapping from the invocation of some other right,
especially when not in custody. But that is not what occurred here.
Jenkins made a clear request for an attorney after having been
advised of his Miranda rights and having already been subjected to
some custodial interrogation about the charge at issue. The State
relies on the above cases to argue that Jenkins’s request was
“anticipatory,” but none of those cases involve circumstances even
remotely similar to the ones present here.
Moreover, the State has not pointed us to any decision in which
we have adopted the federal circuit precedent it cites (which, unlike
decisions from the United States Supreme Court, is not binding on
us), and we have not found any. The closest our decisions appear to
have come (largely based on citing McNeil) do not involve
circumstances resembling anything like the facts of this case. See
Davidson v. State, 304 Ga. 460, 467 (4) (819 SE2d 452) (2018)
(rejecting State’s argument that invocation of Miranda during
25
interrogation was invalid because invocation preceded Miranda
warnings); Green v. State, 291 Ga. 287, 291-292 (4) (728 SE2d 668)
(2012) (holding defendant was not in custody at time of alleged
invocation, and invocation of right to counsel was equivocal in any
event); Petty v. State, 283 Ga. 268, 270 (2) (658 SE2d 599) (2008)
(citing McNeil for proposition that progeny of Miranda does not
apply “in a non-custodial situation”). In any event, we need not
decide whether these circuit decisions are correct that Miranda
rights may be invoked only during a custodial interrogation or when
an interrogation is imminent, because the State has not carried its
burden even under that circuit precedent.
(c) We cannot say that the State proved that interrogation
was not at least imminent at the time of Jenkins’s invocation, as
viewed from a reasonable person in his position. 12 See Franks v.
12 The parties and the 2014 trial court presumed that the booking
process, which by its very nature involves law enforcement questioning the
defendant, did not itself constitute custodial interrogation. That’s not so clear. In the seminal United States Supreme Court decision holding that statements
during the booking process were admissible notwithstanding failure to give
Miranda warnings, five justices took the position that questioning posed
26
during booking was custodial interrogation. See Pennsylvania v. Muniz, 496
U.S. 582, 600-602 (110 SCt 2638, 110 LE2d 528) (1990) (four-justice plurality
expressly rejected government’s argument that “booking questions” did not
qualify as custodial interrogation, and instead concluded that the answers to
these questions were “nonetheless” admissible despite the failure to provide
Miranda warnings because the questions fell within the “‘routine booking
question’ exception” to Miranda); id. at 608-12 (Marshall, J., concurring in part
and dissenting in part) (agreeing booking questions were custodial
interrogation but disagreeing with exception allowing admission of their
answers). Whether one can properly aggregate those five votes under Marks v.
United States is unclear. See 430 U.S. 188, 193 (97 SCt 990, 51 LE2d 260)
(1977) (“[W]hen a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds.” (citation and punctuation omitted)).
One of the five Muniz justices to say that booking was custodial interrogation
did not concur in the judgment, and the two competing four-justice opinions
agreeing that statements during booking were admissible were evenly divided,
and it is difficult to say which opinion was narrower. But all five justices to say booking was custodial interrogation concurred in the judgment that one
improper question during booking was both custodial interrogation and
inadmissible, which may muddy the Marks waters a bit. As far as we can tell,
no court has ever performed Marks analysis on this aspect of Muniz. And the
most recent court to consider the question concluded that booking is custodial
interrogation. See Compos v. People, 484 P3d 159, 162-164 (II) (B) (Col. 2021)
(relying on the five Muniz justices to hold that booking questions constitute
custodial interrogation). Our disposition of this case makes it unnecessary to
resolve this difficult question.
Our previous cases have recognized that, although requests for basic
biographical data generally fall within the Muniz booking exception to
Miranda, not all questioning during booking falls within this exception and
determining whether a reasonable person in the defendant’s position believed
he was subjected to an interrogation must be done on a case-by-case basis. See
Franks v. State, 268 Ga. 238, 239-241 (486 SE2d 594) (1997); see also State v.
Nash, 279 Ga. 646, 649 (3) (619 SE2d 684) (2005) (noting that Franks requires
scrutiny of booking questions on a case-by-case basis to determine whether
those questions were exempt from Miranda’s coverage). That said, prior
opinions of this Court regarding application of the booking exception must be
read in the light of the specific facts of that case.
27
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[.]”); see also Hightower v.
State, 272 Ga. 42, 43 (in determining whether a custodial situation
exists, the “only relevant inquiry is how a reasonable [person] in the
suspect’s position would have understood his situation.”) (quoting
Berkemer v. McCarty, 468 U.S. 420, 442 (104 SCt 3138, 82 LE2d 317)
(1984)); State v. Hambly, 745 NW2d 48, 57 & n.27 (Wis. 2008)
(plurality) (“an interrogation is impending or imminent if a
reasonable person in the defendant’s position would have believed
that interrogation was imminent or impending” (citing cases)). 13
When a defendant objects to the admission of statements
he made during a police custodial interrogation, the
burden is on the State to prove by a preponderance of the
evidence that the statement was voluntary and was
preceded by the defendant’s knowing and voluntary
waiver of his Miranda rights.
13 The federal precedent does not discuss how courts are to assess the
imminency of an interrogation in determining whether an invocation is
“anticipatory.” But since we are assuming arguendo that this precedent
applies, we follow United States Supreme Court precedent governing how
courts are to evaluate interactions between police and suspects to determine
whether an interaction constituted a custodial interrogation. The dissent cites
nothing in support of its criticism of this objective standard.
28
State v. Nash, 279 Ga. 646, 649 (3) (619 SE2d 684) (2005); see also
Mack v. State, 296 Ga. 239, 248 (2) (b) (765 SE2d 896) (2014) (the
State has the burden of proving that the defendant initiated contact
with the police after invoking his Fifth Amendment right to counsel).
Jenkins, a 17-year-old, was arrested for the crimes at issue. He
was read his Miranda rights. He was taken to jail, and on the way
there, he was briefly questioned by two police officers, including
Deputy Mullis. The full nature of the questions he was asked is not
clear from the record, but we do know that Jenkins was asked about
the other people in the van, which would constitute custodial
interrogation. See Brown, 287 Ga. at 476 (2) (“interrogation”
includes “express questioning by law enforcement officers”). 14 He
14 In addition to the State’s erroneous suggestion in its 2014 motion to
reconsider that it never relied on McNeil in 1995, the State also represented at
the hearing on that motion that Jenkins “was not questioned by any lawenforcement officers at any time on January the 9th, 1993 . . . . There was no
questions asked whatsoever.” But Deputy Mullis testified unequivocally at
the March 16, 1995 hearing that Jenkins was questioned on January 9, 1993,
and the State never argued in 1995 that was incorrect. The most charitable
reading of the State’s argument in 2014 was that the State was unfamiliar
with the record, including the contents of the transcript of the March 16, 1995
hearing.
29
then arrived at the jail and was subjected to the booking process,
which itself involves questions by law enforcement, too.15 Deputy
Mullis, who had advised Jenkins of his Miranda rights and had
questioned Jenkins previously, was in the booking area. We can see
with the benefit of hindsight and expertise in the intricacies of the
legal system that those questions were merely routine booking
questions, which the United States Supreme Court has held are an
exception to Miranda’s prohibition on questioning an unwarned
suspect. We also know with the benefit of hindsight that the formal
interrogation did not occur until the next day. But we assess all
these events through the lens of a reasonable person in Jenkins’s
position, not through the lens of legal expertise and hindsight. And
15 Contrary to the dissent’s assertion, the record does not show that “no
routine booking questions were being asked at the time of invocation.” The
record is silent on this point. The witnesses at the relevant hearings were not
specifically asked about booking questions, likely because the focus of the
hearing was to determine whether Jenkins had invoked his right to counsel,
and there was no argument that any questions asked during booking were nonroutine. In any case, our case law recognizes that booking generally involves
the questioning of a defendant, and no one disputes otherwise. Moreover, the
fact that the booking was a multi-stage process is irrelevant to whether a
reasonable person would have believed an interrogation was imminent and
does not change the fact that Jenkins had already been subjected to custodial
interrogation.
30
on these specific facts, we cannot say that such a reasonable person
would know that an interrogation was not imminent. 16 Given that
Deputy Mullis arrested Jenkins, advised him of his rights,
questioned him in the patrol car, and was present in the booking
area where Jenkins unequivocally asked for an attorney, a
reasonable person in Jenkins’s position would have thought the
booking process was merely a break in questioning. 17 Accordingly,
because Jenkins invoked his Miranda rights at a time when a
reasonable person would believe interrogation was imminent, his
16 Our decision here should not be read as holding that a suspect’s
reasonable expectation of an interview always renders such an interrogation
imminent. Such a determination must be based on the facts of each case under
the totality of the circumstances. The facts of this case are enough to enable us
to reach that conclusion here without having to establish the precise limits of
when an interrogation is imminent.
17 The dissent criticizes this conclusion, suggesting that the interrogation
was terminated once Jenkins was taken to the jail and that the protections of
Miranda are location specific. Our case law clearly recognizes that police often
conduct follow-up interrogations, and the dissent cites no authority for the
novel idea that Miranda protections evaporate once a defendant is moved to a
different location. This suggestion runs counter to the well-accepted principle
that, once Miranda warnings are given (and thus Miranda protections
available), police officers are not required to readvise a defendant of his
Miranda rights during a follow-up interview, even when it occurs in a different
location. See Gaddy v. State, 311 Ga. 44, 47-48 (2) (855 SE2d 613) (2021).
Moreover, the dissent does not contend that the brief interrogation in the
vehicle on the way to jail consisted of all the questions the police were
interested in asking; the record plainly shows otherwise.
31
invocation was valid even under the standard that the State argues
we should adopt. His invocation was not respected, and his
subsequent custodial statements were due to be suppressed. The
trial court erred in concluding otherwise.
3. The State argues that any error by the trial court in
admitting this evidence was harmless. We disagree.
When the admission of evidence is an error of
constitutional magnitude, it can be harmless error if the
State can prove beyond a reasonable doubt that the error
did not contribute to the verdict, such as when the
evidence at issue is cumulative of other properly-admitted
evidence or when the evidence against the defendant is
overwhelming.
Hill v. State, 310 Ga. 180, 188-189 (5) (850 SE2d 110) (2020) (citation
and punctuation omitted).
The State makes no claim, and the evidence does not show, that
Jenkins’s custodial statements were cumulative of other properly
admitted evidence. And although the evidence of guilt was
substantial, it was not overwhelming. It is true that Jenkins fled
from the white van upon seeing a police car, that Jenkins tried to
discard the murder weapon as he was being chased, and that
32
Michael’s learner’s permit was found in one of Jenkins’s pockets. But
there were no eyewitnesses to the murders, there were three other
individuals who fled from the van, and the State points to no
physical evidence that Jenkins killed the victims. Although the
circumstantial evidence of guilt was strong, we cannot say beyond a
reasonable doubt, in a case with facts like these, that the admission
of challenged evidence did not contribute to the verdict, particularly
when a “defendant’s own confession is probably the most probative
and damaging evidence that can be admitted against him.” Arizona
v. Fulminante, 499 U.S. 279, 296 (111 SCt 1246, 113 LE2d 302)
(1991) (citation omitted).
Whatever one may think of Miranda, 18 the United States
Supreme Court has held that Miranda is a decision of federal
constitutional law. See Dickerson v. United States, 530 U.S. 428,
437-440 (120 SCt 2326, 147 LE2d 405) (2000). Our oath requires us
18 As we have previously observed, the United States Supreme Court’s
holding in Miranda has no basis in the text, history, or context of the United
States Constitution. See State v. Turnquest, 305 Ga. 758, 761 & n.4 (3) (a) (827
SE2d 865) (2019).
33
to apply faithfully the decisions of the United States Supreme Court
on points of federal law. Nothing in any case that the State cites to
us or on which the trial court relied empowers us, on the facts of this
case, to disregard the holding of Miranda that
[o]nce warnings have been given, the subsequent
procedure is clear. If the individual indicates in any
manner, at any time prior to or during questioning, that
he wishes to remain silent, the interrogation must cease.
. . . If the individual states that he wants an attorney, the
interrogation must cease until an attorney is present.
Miranda, 384 U.S. at 473-474 (emphasis supplied). Jenkins
unequivocally said that he would not talk until he had a lawyer.
Under the circumstances of this case, Miranda requires that
Jenkins’s custodial statements be suppressed. The trial court erred
by holding otherwise. That error was harmful, and Jenkins’s
conviction must be reversed. Because the evidence against him was
constitutionally sufficient, he may be retried.
4. Finally, a few words in response to the dissent. The dissent
believes that Jenkins’s unequivocal invocation of his right to counsel
under Miranda was invalid because it occurred between custodial
34
interrogations, rather than during custodial interrogation. No legal
authority the dissent relies upon supports this unprecedented
position.
The dissent does not dispute the fact that Jenkins was advised
of his Miranda rights upon his arrest for the crimes at issue here.
The dissent does not dispute the fact that he was subjected to
custodial interrogation on the way to jail. The dissent does not
dispute the fact that the law enforcement officer who questioned him
on the way to the jail was present for booking, around the time that
Jenkins invoked his right to counsel. And the dissent does not
grapple with the critical differences between these undisputed facts
and the facts of the cases on which it seeks to rely.
Instead, the dissent takes the position that the break in
questioning during booking relieved the police officers from
following the clear dictates of Miranda, as if Jenkins’s right to
counsel (which clearly existed during the custodial interrogation on
the way to the jail) had evaporated once the booking process began.
When a defendant invokes Miranda’s right to counsel, as Jenkins
35
did here, the Edwards rule applies: once the right to counsel is
invoked, a suspect in custody has the right “to be free of
interrogation until he had consulted with a lawyer” or until the
“accused himself initiates further communication, exchanges, or
conversations with the authorities.” Edwards, 451 U.S. at 485
(citation and punctuation omitted); see also Szorcsik v. State, 303
Ga. 737, 739 (814 SE2d 708) (2018) (“[A]n accused, such as Szorcsik,
having expressed his desire to deal with the law enforcement only
through counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him,” or if “the
accused himself initiates further communication, exchanges, or
conversations with the authorities.” (quoting Edwards)). Even the
trial court in its 2014 order on retrial recognized that Edwards
would apply if the invocation was valid.
The dissent also criticizes our decision as creating a wholly new
standard. But we do no such thing. We merely assume, without
deciding, that the “no anticipatory invocation” rule relied on by the
State and the trial court is applicable, and conclude that even under
36
that rule Jenkins would prevail. 19 It is that rule, not anything we
hold today, that includes the idea that Miranda’s right to counsel
can be invoked when custodial interrogation is imminent.
For that matter, it is the dissent’s proposed rule that is a wholly
new standard; the dissent would have us hold for the first time ever
that the only time at which Miranda’s right to counsel can ever be
invoked is during a custodial interrogation. But the only case the
dissent cites in support of a no-anticipatory-invocation rule without
an imminence component is Charette v. State, 930 NW2d 310 (Minn.
2022). The court in that case did not adopt any such rule. While the
court there rejected the imminence framework, it also rejected the
state’s argument that Miranda could be invoked only until a
question had been asked; the court noted that any such rule was
incompatible with Miranda itself, which contemplated permissible
19 The dissent gives significant weight to the fact that Jenkins did not
testify as to whether he believed an interrogation was imminent. But this is an
objective, not subjective test, focusing on whether a reasonable person in
Jenkins’s position would have believed that.
37
invocation before interrogation. See Charette, 930 NW2d at 318
(citing Miranda, 384 U.S. at 470).
In short, the dissent cherry-picks cases from other
jurisdictions, all of which apply a standard that neither we nor the
United States Supreme Court has ever adopted. The dissent then
extracts only the most anti-Miranda elements of those cases to
propose a novel standard that it does not argue any court in this
country has ever adopted or applied. And then it criticizes this
majority as doing something “new” when we decline to go along.
Let’s be clear: we have found no court in the country that has
held a defendant’s invocation of Miranda was impermissibly
anticipatory where the defendant had already been advised of his
rights and been subjected to custodial interrogation about the crime
at issue. And the dissent identifies no such case. We decline to be
the first.
Judgment reversed. All the Justices concur, except Ellington,
McMillian, LaGrua, and Colvin, JJ., who dissent.
38
LAGRUA, Justice, dissenting.
Because Jenkins did not invoke his right to counsel during a
custodial interrogation and because there is no legal authority to
support the majority opinion’s conclusion that a defendant can
invoke his Miranda rights when “a reasonable person in [the
defendant’s] position” believes “an interrogation is imminent,” I
conclude that the trial court did not err in admitting Jenkins’s
custodial statement at the new trial, and thus, I respectfully dissent.
The record shows that, in January 1993, Jenkins was arrested
on suspicion of kidnapping Terri Ralston and her 15-year-old son,
Michael, causing Terri’s death by shooting her in the back of the
head, and killing Michael by shooting him in his left temple. At the
time of Jenkins’s arrest on January 9, Deputy Mullis, the arresting
officer, advised Jenkins of his Miranda rights while escorting
Jenkins to the patrol car. Deputy Mullis then transported Jenkins
to the Wayne County Detention Center, accompanied by Deputy
Tony Brinkley and Detective Bill Mosley. On the way to the jail,
Detective Mosley asked Jenkins questions “regarding who was in
39
the van” with him, and Jenkins voluntarily told the officers that
information. Jenkins did not invoke any of his Miranda rights
during this questioning.
When Jenkins arrived at the jail at approximately 1:35 p.m.,
he was brought to Detention Officer Robinson, who “patted him
down for contraband or weapons.” While Officer Robinson was
conducting the pat-down, Jenkins “said that he wasn’t answering
any questions without his lawyer or without a lawyer.” The record
does not show that Jenkins made this statement while being
subjected to any questioning by Officer Robinson or another officer.
In fact, Officer Robinson testified that, after patting Jenkins down
and removing his personal property, she placed him in a holding cell
and did not bring Jenkins back out to complete “the arrest and
booking report with all the information about [Jenkins’s] name and
social security number and address” until about 20 minutes later at
1:55 p.m. And no evidence was presented to show that, during the
completion of the booking report, Officer Robinson asked Jenkins
40
anything other than routine booking questions. See Franks, 268 Ga.
at 239.
Jenkins was not interviewed or subjected to any further
questioning until 2:55 p.m. the next day, January 10. At that time,
GBI agents met with Jenkins to conduct a custodial interview.
Before interviewing Jenkins, the GBI agents gave Jenkins his full
and complete Miranda warnings, and Jenkins explicitly agreed to
waive those rights before speaking with the agents, signing the
requisite waiver form. Thereafter, Jenkins gave the custodial
statement at issue.
In Miranda v. Arizona, the [United State Supreme] Court
determined that the Fifth and Fourteenth Amendments’
prohibition against compelled self-incrimination required
that custodial interrogation be preceded by advice to the
putative defendant that he has the right to remain silent
and also the right to the presence of an attorney. The
[Supreme] Court also indicated the procedures to be
followed subsequent to the warnings. If the accused
indicates that he wishes to remain silent, “the
interrogation must cease.” If he requests counsel, “the
interrogation must cease until an attorney is present.”
Edwards, 451 U.S. at 481-482 (II) (citing Miranda, 384 U.S. at 474,
479). See also State v. Pauldo, 309 Ga. 130, 133 (2) (844 SE2d 829
41
(2020) (“[W]hen a suspect asks for a lawyer during a custodial
interrogation, the suspect may not be subjected to further
interrogation by law enforcement until an attorney has been made
available or until the suspect reinitiates the conversation.”).
However, “the special procedural safeguards outlined in
Miranda are required not where a suspect is simply taken into
custody, but rather where a suspect in custody is subjected to
interrogation.” Rhode Island v. Innis, 446 U.S. 291, 300 (II) (A) (100
SCt 1689, 64 LE2d 297) (1980) (citations omitted; emphasis
supplied). In other words, “in order for the Miranda safeguards to
take effect, there must first exist custodial interrogation.” Gupta v.
State, 156 A3d 785, 801 (B) (Md. 2017) (citation and punctuation
omitted).
The United States Supreme Court has defined “interrogation”
this way:
“Interrogation,” as conceptualized in the Miranda
opinion, must reflect a measure of compulsion above and
beyond that inherent in custody itself. We conclude that
the Miranda safeguards come into play whenever a
person in custody is subjected to either express
42
questioning or its functional equivalent. That is to say,
the term “interrogation” under Miranda refers not only to
express questioning, but also to 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. The latter portion of this
definition focuses primarily upon the perceptions of the
suspect, rather than the intent of the police. 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. A practice that the police should know is
reasonably likely to evoke an incriminating response from
a suspect thus amounts to interrogation. But, since the
police surely cannot be held accountable for the
unforeseeable results of their words or actions, the
definition of interrogation can extend only to words or
actions on the part of police officers that they should have
known were reasonably likely to elicit an incriminating
response.
Innis, 446 U.S. at, 300-302 (II) (A) (citations omitted; emphasis
supplied and in original). This Court has similarly held that
[t]he analysis of what constitutes interrogation is the
same whether a suspect invokes the right to remain silent
or the right to counsel, because both rights protect the
privilege against compulsory self-incrimination by
requiring an interrogation to cease when either right is
invoked. In this context, interrogation is defined as
express questioning by law enforcement officers or its
functional equivalent—any words or actions on the part
43
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.
Pauldo, 309 Ga. at 133-134 (2) (citation and punctuation omitted).
In short, “the inherent compulsion that is brought about by the
combination of custody and interrogation is crucial for the
attachment of Miranda rights.” Gupta, 156 A3d at 801 (B) (citation
and punctuation omitted). See also Alston, 34 F3d at 1244 (III) (A)
(“Because the presence of both a custodial setting and official
interrogation is required to trigger the Miranda right-to-counsel
prophylactic, absent one or the other, Miranda is not implicated.”).
See also Illinois v. Perkins, 496 U.S. 292, 297 (110 SCt 2394, 110
LE2d 243) (1990) (“It is the premise of Miranda that the danger of
coercion results from the interaction of custody and official
interrogation.”).
As noted by the majority opinion and demonstrated by the
record, it is uncontested that: (1) Jenkins was fully informed of his
Miranda rights when he was arrested by Deputy Mullis on January
44
9; (2) Jenkins was briefly questioned by law enforcement officers
while being transported to the jail; and (3) Jenkins was in custody
at that time. Accordingly, if this questioning by law enforcement
officers constituted an “interrogation,” then the record clearly
reflects that Jenkins was appropriately advised of his Miranda
rights. However, the record also reflects that Jenkins did not invoke
his Miranda rights before or during this questioning, and he
responded to the officer’s questions voluntarily.
Additionally, the record reflects that Jenkins invoked his
Miranda right to counsel—i.e., by telling Officer Robinson that he
was not answering any questions without an attorney—during a
routine pat-down search by Officer Robinson as she was admitting
Jenkins into the jail, not during a custodial interrogation.20 See, e.g.,
Charette v. State, 980 NW2d 310, 317 (Minn. 2022); Gupta, 156 A3d
20 The fact that other law enforcement officers, including the arresting
officer and another detention officer, were in the booking area during the patdown search does not convert this routine search into a custodial interrogation.
Additionally, both officers testified that they did not hear Jenkins invoke his
right to counsel, and no evidence was offered to refute the officers’ testimony.
I point this out to support that Jenkins was not undergoing an interrogation
at this time, not to question the veracity of Officer Robinson’s testimony, as the majority opinion suggests.
45
at 804 (B); Alston, 34 F3d at 1243-1244 (III) (A); United States v.
LaGrone, 43 F3d 332, 335-340 (7th Cir. 1994). In fact, Officer
Robinson testified that she was not questioning Jenkins at all when
he made this statement, and she did not complete the booking
process until about 20 minutes later. And, even if Jenkins had
invoked his right to counsel while Officer Robinson was completing
the booking process, those routine booking questions “do not qualify
as interrogation” and are not subject to Miranda. Pauldo, 309 Ga.
at 135 (2) (noting that “basic 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”) (citing Kirby v. State, 304 Ga. 472, 476 (2) (b) (819
SE2d 468) (2018). See also Franks, 268 Ga. at 239 (holding that “[a]
well-established line of federal and state case law has created an
exemption from the Miranda rule for questions attendant to arrest,
because such questions are not related to the investigation of the
case, and at the same time[,] serve a legitimate administrative
46
need”) (citing Muniz, 496 U.S. at 601).
Despite this binding precedent, the majority opinion seems to
question whether the booking process should in fact constitute
custodial interrogation since, “by its very nature[, it] involves law
enforcement questioning the defendant.” However, in noting that
Jenkins invoked his right to counsel while he was “subjected to the
booking process” the majority opinion concedes that “routine
booking questions” are “an exception to Miranda’s prohibition on
questioning an unwarned suspect.” 21 The majority opinion further
concedes that “formal interrogation did not occur until the next day.”
It is not clear why the majority opinion characterizes “booking”
here as a “break in questioning,” as opposed to characterizing it as
an event that occurred after the termination of any prior
interrogation—especially given that Jenkins was only questioned in
the car on the way to the jail and was not questioned again until the
next day. And, in stating that “the Edwards rule applie[s]” after
21 There is no evidence in the record suggesting that “routine booking
questions” were being asked at the time of the invocation.
47
Jenkins “invoke[d] Miranda’s right to counsel,” the majority opinion
assumes—without any supporting authority—that a defendant can
invoke his Miranda right to counsel after an interrogation has
occurred in one location, the interrogation has terminated, and the
defendant has been moved to a new location where he has not been
subjected to any questioning.
The majority opinion ultimately concludes that, “[w]hether or
not the booking process itself was custodial interrogation, the facts
of this case show that a reasonable person in Jenkins’s position
would have believed that interrogation was at least imminent,”22
and “because Jenkins invoked his Miranda rights at a time when a
reasonable person would believe interrogation was imminent, his
invocation was valid.” The majority opinion does not adequately
explain why a reasonable person in Jenkins’s position would believe
interrogation was imminent. And it is unclear to me why, as a
22 Jenkins did not testify at any of his motion to suppress hearings in
1995, so we cannot affirmatively say that Jenkins believed that a custodial
interview was “imminent” at the time of his invocation. See Grimes, 142 F3d
at 1348 (II) (C) (2).
48
general matter, a reasonable person who had already been
interrogated and was then moved to a new location and was booked
into jail by a different officer would believe that interrogation would
occur again imminently after booking. Even more concerning to me
is that, in reaching this conclusion, the majority opinion announces
a new legal standard—one which requires the State to prove that
“interrogation was not at least imminent at the time of [a
defendant’s] invocation, as viewed from a reasonable person in his
position,” and one which requires this Court “to assess” the facts of
the case “through the lens of a reasonable person in Jenkins’s
position” to determine whether “a reasonable person would know
that interrogation was [or was] not imminent.”
In this respect, what the majority opinion creates is not the
“no anticipatory invocation” rule, but rather a reasonable-person
standard for determining whether interrogation is imminent—a
standard for which the majority opinion cites no supporting legal
authority. “[T]he U.S. Supreme Court has never held that a suspect
can invoke their Fifth Amendment right to counsel when
49
interrogation is imminent.” Charette, 980 NW2d at 317. The legal
concept of whether a custodial interrogation is “imminent” appears
to arise primarily from the United State Supreme Court’s decision
in McNeil, where the Supreme Court noted that “[w]e have in fact
never held that a person can invoke his Miranda rights
anticipatorily, in a context other than ‘custodial interrogation[.]’”
McNeil, 501 U.S. at 182 n.3. “Some federal and state courts” have
since interpreted this decision to mean “that defendants can invoke
their Fifth Amendment rights when interrogation is ‘imminent,’”
without defining the term or providing direction as to when an
interrogation is considered “imminent.” Charette, 980 NW2d at 316
(citing Grimes, 142 F3d at 1348 (II) (C) (2); LaGrone, 43 F3d at 335-340; Ault v. State, 866 So2d 674 (Fla. 2003); State v. Appleby, 221
P3d 525, 548 (Kan. 2009); Gupta, 156 A3d at 791). To that end, the
Eleventh Circuit Court of Appeals has held that “Miranda rights
may be invoked only during custodial interrogation or when
interrogation is imminent,” but did not cite a standard for
50
determining when an interrogation is “imminent.” Grimes, 142 F3d
at 1348 (II) (C) (2).
Moreover, the majority opinion does not cite any case in which
another court has concluded that the interrogation was imminent
under the circumstances of this case. Instead, the majority opinion
exclusively relies on cases in which courts have held that the
interrogation was not imminent and reasons that, because the
circumstances of this case are different, the opposite must be true,
and the interrogation here must be considered imminent. See, e.g.,
Grimes, 142 F3d at 1348 (II) (C) (2); LaGrone, 43 F3d at 335-340;
Alston, 34 F3d at 1242-1251; Thompson, 35 F3d at 103-104; Wright,
962 F2d at 954-956. But none of those cases stand for that
proposition.
In addition, this Court has never expressly adopted an
“imminent interrogation” rule, nor do I think we should do so now.
Charette, 980 NW2d at 317.23 And, the conclusion I reach here falls
23 In Charette, the Supreme Court of Minnesota persuasively held that:
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squarely within the scope of the Miranda principles clearly set forth
by the United States Supreme Court, whereas the majority opinion
extrapolates from those principles in an unprecedented way. No
federal or state court has established the imminence standard
espoused by the majority opinion here—i.e. whether a “reasonable
person in the [defendant’s] position” believes “an interrogation is
imminent.” And, although the majority opinion claims that it is
merely assuming without deciding that the “imminent
interrogation” rule applies, id., it is difficult to discern how the
The “imminent interrogation” rule poses serious practical
difficulties that we must consider before adopting it as the law of
Minnesota. Without defining when an interrogation becomes
imminent, it will be difficult for a law enforcement officer to make
that determination, particularly in evolving situations where the
intent to interrogate may change based on the suspect’s behavior
(like here), the available evidence, or other circumstances, like the
availability of holding cells or interview rooms. We also question
whether “imminence” might dissipate based on signals from law
enforcement that they no longer intend to interrogate a person and
how this affects the ability to invoke the Fifth Amendment right to
counsel. This lack of clarity is contrary to the Supreme Court’s
preference for “bright-line rules” in the Miranda context. . . .
Accordingly, under the facts of this case, we are not inclined to
fashion such a rule when the Supreme Court has not yet done so.
Id.
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majority is not adopting that rule as the law in this State when the
majority is applying it to reverse these double murder convictions.
Accordingly, I conclude that, because Jenkins was not being
“interrogated within the meaning of Miranda” at the time he
invoked his right to counsel, his invocation of the right to counsel
under Miranda was not effective. Innis, 446 U.S. at 302 (II) (B).
And, because Miranda did not apply, the GBI agents’ questioning of
Jenkins on January 10—after fully advising him of his Miranda
rights and receiving a voluntary waiver thereof—was permissible,
and Jenkins’s custodial statement was admissible against him at
the new trial.
Additionally, I note that Jenkins also argues on appeal that the
trial court presiding over his new trial lacked authority to revisit the
exclusion of Jenkins’s custodial statement at the first trial because
the trial court’s “inherent power” to revoke that interlocutory ruling
“cease[d] with the end of the term” in which the suppression order
was entered. Moon v. State, 287 Ga. 304, 304 (696 SE2d 55) (2010).
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I believe that the trial court was authorized to admit this evidence
on a new motion by the State after a new trial was ordered.
The end-of-term rule “comes from pre-Revolution English
common law.” Moon, 287 Ga. at 305 (1) (Nahmias, J., concurring).
At common law, the rule for both final and interlocutory
orders, in both civil and criminal cases, and in both
Georgia and federal courts, was that the trial court’s
inherent authority to reconsider the order expired at the
end of the term of court in which the order was entered.
The rules in this area reflect a balance between the need
for finality of judicial decisions and the understanding
that trial courts should have the opportunity to reach the
correct decisions.
Id. at 305-306 (1) (Nahmias, J., concurring) (citations omitted;
emphasis in original). This common law rule has remained largely
unchanged with respect to final judgments in civil and criminal
cases. See id. at 306 (1). In both civil and criminal cases, where “the
entire case or relevant portion is deemed concluded by final
judgment, the trial court cannot reconsider the issues after a short
period (like the end of the term) unless the case is successfully
appealed,” or in the criminal context, challenged in a habeas
proceeding. Id.
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But “[i]nterlocutory rulings are different.” Moon, 287 Ga. at
306 (1) (Nahmias, J., concurring). “[T]he Civil Practice Act reformed
many common law rules for civil cases, including the end-of-term
rule with respect to interlocutory rulings[.]” Id. at 307 (Nahmias, J.,
concurring). And so, “[i]n civil cases, an interlocutory ruling does
not pass from the control of the court at the end of the term if the
cause remains pending.” Kelly v. State, 315 Ga. 444, 447 (2) (883
SE2d 363) (2023) (citation and punctuation omitted). “In criminal
cases, however, ‘a trial court’s inherent power to revoke
interlocutory rulings [still] ceases with the end of the term,’ unless
a motion for reconsideration is filed during the same term as the
ruling at issue.” Id. (quoting Moon, 287 Ga. at 304). In other words,
“in a criminal case, a trial court generally loses its inherent power
to revise, correct, revoke, modify, or vacate its judgment at the end
of the term of court in which it renders that judgment.” Id.
But the end-of-term rule does not apply in this case. After
Jenkins was convicted in the first trial, he successfully challenged
his convictions in a habeas proceeding, and the habeas court vacated
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Jenkins’s convictions and ordered a new trial. This Court then
affirmed the judgment of the habeas court ordering a new trial. See
Terry, 280 Ga. at 341.
“When [an] appellant [i]s granted a new trial, it wipe[s] the
slate clean as if no previous conviction and sentence had existed.”
Salisbury v. Grimes, 223 Ga. 776, 778 (2) (158 SE2d 412) (1967).
And, pursuant to OCGA § 5-5-48, “when a new trial has been
granted by the court, the case shall be placed on the docket for trial
as though no trial had been had[.]” State v. Hamilton, 308 Ga. 116,
119-20 (2) (839 SE2d 560) (2020) (emphasis in original) (citing
Bankhead v. State, 253 Ga. App. 214, 215 (558 SE2d 407) (2001)
(holding that “[w]here a new trial has been granted, the case stands
ready for trial as if there had been no trial[,]” and [t]he effect of the
grant of a new trial by an appellate court is to require the case to be
heard de novo unless specific direction be given in regard thereto”)).
In essence, “the grant of a new trial has the effect of setting aside all
proceedings in the old trial.” Trauth v. State, 295 Ga. 874, 876 (1)
(763 SE2d 854) (2014) (citation and punctuation omitted). “[A]
56
reversal by this Court sets aside the prior trial court proceedings
and requires the case to be heard again,” and in that situation, the
trial court is not “required to rehear all pretrial motions as though
they had never before been considered,” but it is not prohibited from
doing so. Smith v. State, 292 Ga. 620, 622 (3) (740 SE2d 158) (2013).
“The effect of [the] new trial grant is to leave the cause pending in
the lower court.” Pledger v. State, 193 Ga. App. 588, 589 (2) (a) (388
SE2d 425) (1989). “It follows from this principle that, upon the grant
of a new trial, the trial court has the authority to reconsider any of
its previous rulings that have not been adjudicated on appeal.”
Smith, 292 Ga. at 622 (3) (citing Ritter, 272 Ga. at 553 (2) and n.4
(noting that the admissibility of the defendant’s statement had not
been considered or ruled upon by this Court on appeal)).
Here, the State filed a new motion to admit post-arrest
evidence, which the trial court was authorized to consider, and the
end-of-term rule does not prohibit the trial court from ruling on new
motions filed upon the new trial of the case, even if the subject
matter was ruled upon previously. See Smith, 292 Ga. at 622 (3).
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See also Trauth, 295 Ga. at 876 (1). For these reasons, I believe that
the trial court did not err in considering the State’s new motion to
admit Jenkins’s January 10 custodial statement at the new trial, see
Smith, 292 Ga. at 622 (3), and I would affirm the judgment of the
trial court.
I am authorized to state that Justice Ellington, Justice
McMillian, and Justice Colvin join in this dissent.
58