IN THE INTEREST OF R. P., A CHILD
MILLER, P. J., ANDREWS and BROWN, JJ.
delinquent petition filed in the Juvenile Court alleged that
R. P. (the child) committed delinquent acts of theft by
receiving stolen property and obstruction of a law
enforcement officer. Prior to adjudication, the Juvenile
Court considered pursuant to Jackson v. Denno, 378
U.S. 368 (84 S.Ct. 1774, 12 L.Ed.2d 908) (1964) whether
statements made by the child during custodial interrogation
were voluntary and admissible in evidence. The Court ruled
that statements made by the child, which supported
allegations in the petition, were inadmissible as evidence
because they were not voluntary and were made in violation of
the child's right to remain silent under Miranda v.
Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16 L.Ed.2d 694)
(1966). Pursuant to OCGA § 5-7-1 (a) (4), the State
appeals from the order excluding the evidence. For the
reasons that follow, we reverse.
video recording of the police detective's custodial
interrogation of the thirteen-year-old child provided
uncontradicted proof of the relevant facts. After viewing the
video, the Juvenile Court found the following facts: The
police detective read the child his rights under
Miranda (including the right to remain silent), and
then asked the child, "Understanding what I just told
you, do you want to speak to me?" The child responded,
"No." The detective then said, "No? You said
no, right?" And the child immediately responded,
"Yeah, I'll speak to you." The video shows
that, after the child said, "Yeah, I'll speak to
you, " the detective continued the interview by
questioning the child, and the child made the statements at
issue. On these facts, the Juvenile Court ruled that the
child asserted his Miranda right to remain silent by
saying "No, " and that the detective's duty to
"scrupulously honor" the assertion of this right
required that the interview be immediately terminated at that
point. Accordingly, the Juvenile Court found that any
statements made by the child after saying "No" were
involuntary and inadmissible.
Whether a defendant waives his rights under Miranda v.
Arizona, [supra], and makes a voluntary and knowing
statement depends on the totality of the circumstances. In
ruling on the admissibility of an in-custody statement
[pursuant to Jackson v. Denno, supra, ] a trial
court must determine whether a preponderance of the evidence
demonstrates that the statement was made freely and
voluntarily. Unless clearly erroneous, we accept the trial
court's factual findings and credibility determinations
relating to the admissibility of the defendant's
statement. When controlling facts discernible from a
videotape are not disputed, our standard of review is de
Bunnell v. State, 292 Ga. 253, 255 (735 S.E.2d 281)
(2013) (citations and punctuation omitted); Humphreys v.
State, 287 Ga. 63, 72-73 (694 S.E.2d 316)
[Miranda] 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."
Miranda, 384 U.S. at 473-474. As the Supreme Court
has noted, the passage "the interrogation must
be literally interpreted to mean that "any statement
taken after the person invokes his privilege [to remain
silent] would mandate exclusion of the statement from
evidence "even if it were volunteered by the person in
custody without any further interrogation whatever."
Michigan v. Mosley, 423 U.S. 96, 101-102 (96 S.Ct.
321, 46 L.Ed.2d 313) (1975). To avoid "absurd and
unintended results" from a literal interpretation of the
language used in Miranda, the Supreme Court
a blanket prohibition against the taking of voluntary
statements or a permanent immunity from further
interrogation, regardless of the circumstances, would
transform the Miranda safeguards into wholly
irrational obstacles to legitimate police investigative
activity, and deprive suspects of an opportunity to make
informed and intelligent assessments of their interests.
Clearly, therefore, neither this passage nor any other
passage in the Miranda opinion can sensibly be read
to create a per se proscription of indefinite duration upon
any further questioning by any police officer on any subject,
once the person in custody has indicated a desire to remain
Mosley, 423 U.S. at 102-103. Rather, "the
admissibility of statements obtained after the person in
custody has decided to remain silent depends under
Miranda on whether his 'right to cut off
questioning' was 'scrupulously honored'[by law
enforcement authorities.]" Mosley, 423 U.S. at
104; Miranda, 384 U.S. at 474, 479; Mack v.
State, 296 Ga. 239, 243 (765 S.E.2d 896) (2014).
child clearly invoked the Miranda right to remain
silent by responding "No" when the detective asked
him if he wished to speak. The detective then immediately
stated, "No? You said no, right?" to which the
child immediately responded, "Yeah, I'll speak to
you." When the child responded, "Yeah, I'll
speak to you, " this was an equally clear statement that
he changed his mind, waived the right to remain silent, and
was willing to answer the detective's questions. The
detective's statement, "No? You said no,
right?" cannot be reasonably construed as a failure to
"scrupulously honor" the child's initial
assertion of the right to remain silent and to "cut off
questioning." Rather, "No? You said no,
right?" was a leading question by the detective designed
to elicit a confirmation from the child that he had asserted
the right to remain silent and cut off questioning. The
detective's statement was not questioning or
interrogation in this context because it was not
"express questioning or its functional equivalent"
by "any words or actions on the part of 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." Rhode
Island v. Innis, 446 U.S. 291, 300-301 (100 S.Ct. 1682,
64 L.Ed.2d 297) (1980). Moreover, the detective was not
attempting, subtly or otherwise, to coerce or badger the
child into changing his mind about his initial assertion of
the right to remain silent. State v. Brown, 287 Ga.
473, 477-480 (697 S.E.2d 192) (2010). There was no
constitutional rule requiring the detective to immediately
leave the child's presence after he initially asserted
the right to remain silent. Id. at 478-480.
Accordingly, "this is not a case . . . where the police
failed to honor a decision of a person in custody to cut off
questioning, either by refusing to discontinue the
interrogation upon request or by persisting in repeated
efforts to wear down his resistance and make him change his
mind." Mosley, 423 U.S. at 105-106.
facts show that, after the child was advised of his
Miranda rights, he expressed an initial intention to
remain silent and cut off any questioning, then, prior to any
questioning or interrogation by the detective, immediately
changed his mind and initiated communications by
"clearly evincing his intent not to remain silent."
Larry v. State, 266 Ga. 284, 286 (466 S.E.2d 850)
(1996). The totality of the circumstances show that the State
established by a preponderance of the evidence that the
child's statements were made voluntarily after a knowing
and voluntary waiver of Miranda rights. The Juvenile
Court erred by excluding the statements from evidence.
Miller, P J, and ...