MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
granted this interlocutory appeal to determine whether the
trial court erred in denying Denzell Bowman's motion to
suppress his recorded custodial statement. He argues that
admission of the statement would violate his Sixth Amendment
right to counsel. He waived his right to counsel during the
interview that resulted in the statement, but he argues that
the waiver was ineffective because law enforcement officers
initiated the interview after Bowman's right to counsel
under the Sixth Amendment had attached. The authority he
cites for that proposition has been overruled or disapproved.
Bowman has offered no other argument that the waiver was
ineffective, and the evidence supported the trial court's
ruling that Bowman had freely and voluntarily given the
interview. So we affirm.
reviewing the trial court's grant or denial of a motion
to suppress, we will not disturb [his] findings if there is
any evidence to support them[.] The trial court's
application of the law is subject to de novo review."
Johnson v. State, 336 Ga.App. 888 (785 S.E.2d 424)
(2016) (citations and punctuation omitted). So viewed, the
record shows that Bowman was arrested pursuant to a warrant
on a charge of armed robbery. At his first appearance hearing
before the magistrate court, Bowman did not request a
court-appointed attorney but stated that he had hired an
attorney. (In fact, Bowman did not retain the attorney in
this case; the attorney had represented Bowman in other
matters.) Subsequently, law enforcement officers interviewed
Bowman at the jail. At the start of that interview, an
officer recited Miranda warnings to Bowman and had
him sign a waiver of rights form. Bowman appeared to
understand what the officer was saying to him regarding his
rights and was not reluctant to speak with the officer. He
did not ask to speak with an attorney at any point during the
interview, nor did he mention that he had hired an attorney.
moved to suppress his statement on Sixth Amendment grounds.
In denying the motion, the trial court found that Bowman
"was appropriately Mirandized by officers and thereafter
gave an interview which [was] freely and voluntarily
line of authority on which Bowman relies begins with the
proposition that, "absent a valid waiver, [a] defendant
has the right to the presence of an attorney during any
interrogation occurring after the first formal charging
proceeding, the point at which the Sixth Amendment right to
counsel initially attaches." Moran v. Burbine,
475 U.S. 412, 428 (III) (106 S.Ct. 1135, 89 L.Ed.2d 410)
(1986) (citations omitted). See Housel v. State, 257
Ga. 115, 121 (1) (d) (355 S.E.2d 651) (1987). In Michigan
v. Jackson, 475 U.S. 625 (106 S.Ct. 1404, 89 L.Ed.2d
631) (1986), the United States Supreme Court held that
"if police initiate interrogation after a
defendant's assertion, at an arraignment or similar
proceeding, of his [Sixth Amendment] right to counsel, any
waiver of the defendant's right to counsel for that
police-initiated interrogation is invalid." Id.
at 636 (III). Citing Jackson and applying this rule,
our Supreme Court held in O'Kelley v. State, 278
Ga. 564 (604 S.E.2d 509) (2004), that "the Sixth
Amendment right to counsel, once attached, cannot be waived
by the defendant during questioning that is initiated by
interrogators." Id. at 568 (citation omitted).
Bownman relies on this bright-line rule to argue that his
waiver was ineffective because it occurred during
police-initiated questioning after, he asserts, his Sixth
Amendment right to counsel had attached.
bright-line rule articulated in Jackson and
O'Kelley is no longer good law. The United
States Supreme Court overruled Jackson in
Montejo v. Louisiana, 556 U.S. 778, 797 (IV) (129
S.Ct. 2079, 173 L.Ed.2d 955) (2009). Following suit, our
Supreme Court disapproved O'Kelley in
Stinski v. State, 286 Ga. 839, 856 (61) n. 5 (691
S.E.2d 854) (2010). See also State v. Stone, 304
Ga.App. 695 & n. 9 (697 S.E.2d 852) (2010).
the law now stands under Montejo, even if we assume
that Bowman's Sixth Amendment right to counsel had
attached at the first appearance hearing, this alone did not
invalidate his waiver of that right during the
police-initiated interview. Had Bowman made a clear assertion
of the right to counsel at the start of the police-initiated
interview, then no interview should have taken place.
Montejo, supra, 556 U.S. at 797 (V). "Even if
[Bowman] subsequently agreed to waive his rights, that waiver
would have been invalid had it followed an unequivocal
election of the right." Id. (citation and
punctuation omitted). But it is undisputed that Bowman did
not assert his right to counsel at any point during the
interview. And Bowman has not argued that his Sixth Amendment
waiver was not knowing and voluntary on any other ground. See
id. at 798 (V) (discussing possibility that Sixth Amendment
waiver could be invalid for reasons other than attachment of
Sixth Amendment right to counsel at a hearing that preceded a
police-initiated interrogation). Moreover, the record
supports the trial court's finding that Bowman freely and
voluntarily gave his statement in an interview after being
informed of his right to an attorney See Bradshaw v State,
300 Ga 1, 3 (2) (792 S.E.2d 672) (2016)