State v. Powell

315 Ga. 5 FINAL COPY

S22A0648. THE STATE v. POWELL.

COLVIN, Justice.

On February 28, 2019, police officers responded to a shooting

where they discovered 15-year-old Paris Powell (hereinafter

“Appellee”) standing beside the decedent, Larry “Tre” Bryant.

Appellee was interviewed by Detective John Gleason on March 1,

March 4, and March 25, 2019, in connection with Bryant’s death.

Powell’s mother, Tiffany (hereinafter “Ms. Powell”), was present at

all relevant times. After a hearing, the trial court found that

Appellee was not in custody for any of the interviews and

determined that Appellee’s March 1 and March 4 statements were

freely and voluntarily given. However, the trial court partially

suppressed Appellee’s March 25 statement, finding that, under a

totality of the circumstances, she did not knowingly and voluntarily

make a statement as a matter of constitutional due process. The State appeals the trial court’s partial suppression of Appellee’s

March 25 statements, contending that the trial court clearly erred

in determining that Appellee’s statements were involuntary under

Riley v. State, 237 Ga. 124 (226 SE2d 922) (1976). For the reasons

explained below, we disagree with the State and affirm the ruling of

the trial court.

1. Procedural History

The record shows that, during the investigation of Bryant’s

death, Appellee was interviewed by detectives on three separate

occasions — March 1, March 4, and March 25, 2019. Eventually,

Appellee was indicted for two counts of felony murder, one count of

armed robbery, and one count of robbery in connection with Bryant’s

murder. Appellee filed a pretrial “Motion to Suppress Custodial

Statement,” seeking to suppress all three of her March 2019

interviews and her subsequent written statements. Appellee alleged

that all of her statements were induced by an improper hope of

benefit in violation of OCGA § 24-8-824. She further alleged that

the statements were made while she was in custody, triggering the

2 requirement that she be read her rights pursuant to Miranda v.

Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), and that

Detective Gleason’s failure to read Appellee her rights rendered all

subsequent statements involuntary. At the Jackson-Denno1

hearing, defense counsel further clarified that the motion also

included a claim that Appellee’s “statements were [not] free and

voluntary” as a matter of constitutional due process. The prosecutor

and the court then agreed that the court needed to consider the

totality of the circumstances to determine whether Appellee’s

statements were made freely and voluntarily.

2. Evidence Presented at the Jackson-Denno Hearing

At the pretrial hearing, the State called Detective Gleason as a

witness and introduced into evidence the video recordings of

Appellee’s three interviews and her three written statements.

Detective Gleason testified that Appellee was not in custody for any

of her interviews and was free to leave, that she was not read her

Miranda rights at any time, and that she was never informed that

————————————————————— 1 Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

3 her interviews were being recorded.

(a) First Interview — March 1, 2019

Detective Gleason testified that, on March 1, 2019, Appellee

arrived at the Henry County Police Department with her mother to

speak with him about Bryant’s death. At that time, detectives

believed that Appellee was simply an eyewitness to the shooting.

The video recording of the interview is 1 hour and 48 minutes long.

The first 25 minutes of the video recording show Appellee sitting

alone in the interview room crying. Detective Gleason and Ms.

Powell can be heard speaking just outside of the room. At the motion

hearing, Detective Gleason confirmed that, during this

conversation, “[Ms.] Powell told [him] that she didn’t want to have

[Appellee] talk to anybody without a lawyer.” Detective Gleason

explained to Ms. Powell that Appellee was “[my] only witness. The

only person that saw this murder, I wish you’d let me talk to her. I

don’t have any way to get a lawyer up here and it’s not like we have

one sitting in the lobby. She is my witness.” After this exchange,

Ms. Powell agreed to let the detective speak with her daughter.

4  Detective Gleason testified that he never asked Appellee if she

wanted to speak with him. Further, when defense counsel inquired

into this issue on cross-examination, the following exchange

occurred:

COUNSEL: Mr. Gleason, during these interviews you always spoke to [Ms.] Powell first; is that right? DET. GLEASON: Yes, ma’am. I believe so. COUNSEL: Okay. Did you ever ask [Appellee] if she wanted to talk to you? DET. GLEASON: No, because I spoke to [Ms. Powell]. COUNSEL: You always spoke to [Ms. Powell]; is that correct? DET. GLEASON: That’s correct.

The video shows that, shortly after Detective Gleason and Ms.

Powell enter the interview room, the detective tells Appellee, “You’re

not in trouble. You’re a witness. You’re the most important witness

I’ve got right now.” At the suppression hearing, Detective Gleason

testified that he did not explain to either Appellee or her mother that

Appellee “could get in trouble” or that “they could have a lawyer”

present during the interview.

For the next 71 minutes of the recorded interview, both

Detective Gleason and Ms. Powell questioned Appellee regarding

5 what she had seen. Detective Gleason testified that Ms. Powell “was

helping with the interview.” During this time, Appellee described

Bryant’s death as a drive-by shooting. Then, in the last 12 minutes

of the video, Detective Gleason and Ms. Powell left Appellee alone in

the interview room and engaged in another discussion, the contents

of which are not in the record. At the end of the interview, Appellee

gave a written statement consistent with her description of events.

She then left the police station with her mother.

(b) Second Interview — March 4, 2019

On March 4, 2019, Appellee and her mother returned to the

police station for a second interview with Detective Gleason after

Ms. Powell reported to the detective that Appellee had additional

information about the shooting. This interview lasted

approximately 1 hour and 35 minutes. At the outset, Detective

Gleason stated:

I felt like at the time [we last spoke] there might be more that you had to tell me, and I’m not upset with you. I need you to understand that, okay? This is basically just to get to the whole story, okay? So what new information do you have to tell us?

6 Appellee admitted that she knew that the passenger in the car was

a man named “Chris,” that Bryant was selling drugs to the men in

the car, and that Bryant had tried to rob the men in the car during

the drug deal. Appellee apologized for not providing that

information during her first interview, to which Detective Gleason

responded:

Listen, this is not the first time that people hold back information, ya know? Um, I’m a little bit disappointed just to be finding out now, but it’s better now than not at all, ya know? So I’m not mad at you, I knew you had a little bit more to tell me.

Detective Gleason then confronted Appellee with information he had

obtained suggesting that Appellee had “set up” Bryant for the

robbery. Both Appellee and her mother adamantly denied this

allegation. The video shows that, during the remainder of the

interview, Appellee provided additional details about events leading

up to Bryant’s death, while downplaying her own role in the

shooting. She also provided a written statement detailing this new

information. After the interview, Appellee went home with her

7 mother.

(c) Third Interview — March 25, 2019

On March 25, at the request of Detective Gleason, Appellee and

her mother returned to the police station for a third interview.

Detective Gleason testified that he asked Appellee and her mother

to come back because he had discovered that Appellee “had prior

knowledge of what was going on and that she had left out more

details.” Detective Gleason confirmed at the suppression hearing

that he “knew that during this third interview [he was] going to ask

[Appellee] questions that could possibly incriminate her in a crime.”

But he testified that he did not advise Appellee of her Miranda

rights because she was not in custody and because he did not

consider the interview to be an interrogation.

The video recording shows that, at the beginning of the third

interview, the following exchange occurred:

MS. POWELL: Look, can I say this before we get started with the questions? DET. GLEASON: Um, hmm. MS. POWELL: At the point where we might need a lawyer, you’re going to do the right thing and say we

8  might need a lawyer? You’re not just going to have me come down here and bring her and deliver her up to you if and when something happens? DET. GLEASON: When I told you we hadn’t taken any warrants, I was serious. MS. POWELL: I know that, that’s why I believe you and that’s why I have been very — but I don’t want y’all kicking my door in at 3:00 in the morning or come for her and if anything happens — just verbalize with me so I . . . DET. GLEASON: I will. I’ll let you know. I’ll let you know. MS. POWELL: I’m scared to death about what’s about to happen.

Thereafter, Detective Gleason confronted Appellee regarding her

prior dishonesty. Approximately six minutes into the interview,

Detective Gleason told Appellee, “I understand why you lied,” to

which Ms. Powell responded, “I don’t.” Detective Gleason explained

that he knew Bryant was buying drugs from the men in the car, not

selling them. Appellee denied this, and Ms. Powell said, “[T]his just

gets worse and worse,” before turning away from her daughter.

While Detective Gleason continued to talk, Appellee looked over to

her emotional mother a couple times, but Ms. Powell remained

turned away.

At approximately seven minutes into the video, the detective

9 told Appellee that he had information that she called “Chris” to set

up the drug sale. At this point, Ms. Powell dropped her head into

her arms. Appellee admitted that Bryant asked her to help him

commit a robbery and that she “gave him Chris.” Appellee continued

to answer Detective Gleason’s questions, and then, at 9 minutes and

30 seconds into the interview, the following exchange occurred:

DET. GLEASON: [Ms. Powell] you asked me earlier why she wasn’t going to tell me — why she kept lying about this? MS. POWELL: Yeah, I see it. I see now. DET. GLEASON: Right, but here’s the other — there’s two reasons. One reason she lied is, if she admits that they were there buying marijuana, she’s worried about her probation. But being part of setting up a robbery, where [Bryant] ends up dead, it’s a whole different situation because now [Bryant’s] blood is on [Appellee’s] hands. MS. POWELL: Oh my god. Do we need a lawyer? Do I need a lawyer? DET. GLEASON: That’s entirely up to you [Ms. Powell][2] — but it’s so important that we get consistent truth here because, no matter what you think of [Bryant’s mom] right now, and no matter what you think of [Bryant’s] lifestyle, the young man is dead. And he didn’t have to be. It’s not your fault that he’s dead, let’s get that straight, it’s not your fault. But had [Appellee] said “no” [to setting ————————————————————— 2 At this point in the video, Detective Gleason is facing Ms. Powell when

he makes his initial statement. He then pauses and turns to face Appellee, addressing the remainder of the colloquy to her. 10  up the robbery], it might have changed everything. You understand?

The detective testified that, by saying it was “entirely up to you” in

response to Ms. Powell’s question about whether they needed a

lawyer, he meant to convey to Ms. Powell that “you’re her mother,

what do you want to do[?]”

Ms. Powell then asked Detective Gleason questions about the

evidence he had concerning the crime, including who shot first and

if all of the people involved were “underage.” Detective Gleason told

Ms. Powell that the other men involved were “not juveniles.” When

she asked if Appellee “was considered a juvenile on this,” Detective

Gleason responded, “[Y]es.”

Thereafter, the detective asked Appellee more questions about

her role in setting up the robbery, and she made many incriminating

statements throughout the remaining 30 minutes of the interview.

Appellee once again memorialized her statement in writing.

Detective Gleason testified that, after this third interview, Appellee

became a suspect. However, she was not taken into custody at that

11 time, and she was allowed to go home with her mother.

3. Trial Court Order

After the hearing, the trial court issued a written order denying

Appellee’s motion in part, finding that “the State has provided a

prima facie showing that the first interview, second interview, and

beginning of the third interview were freely and voluntarily given

by Defendant without hope of benefit or fear of injury [under OCGA

§ 24-8-824].” Regarding the rest of Appellee’s statements, from 9

minutes and 30 seconds into the video recording onward, the trial

court observed that “[a] critical factor in this case is whether

[Appellee] understood her constitutional right to consult with an

attorney.” Guided by this Court’s decision in Riley, the trial court

concluded that, at the time of her March 25 interview: (1) Appellee

was 15 years old; (2) Appellee understood English;3 (3) Appellee was

not advised of her Miranda rights because she was not in custody at

————————————————————— 3At the Jackson-Denno hearing, the State asked Detective Gleason whether he knew if Appellee was enrolled in school at the time of the interview. The detective testified that Appellee “mentioned school,” but there is no evidence establishing Appellee’s grade level when she spoke to the detective. 12 the time of the interview, although Detective Gleason knew he

would be asking Appellee questions “which could possibly

incriminate [her]”; (4) Appellee knew police wanted to speak with

her about the shooting and, although she was told that she was only

a witness and police had not obtained any warrants, she was never

informed that she “could go to jail or lose her freedom or that the

statements could be used against her at trial,” nor was she told “it

was optional . . . to speak with [Detective Gleason]”; (5) although

Appellee had a parent present for the duration of the interview, that

parent previously initiated one interview and “even participated in

questioning her daughter” in another; (6) Appellee was “incorrect[ly]

and erroneously advised . . . that her mother was the only person

who could exercise her constitutional right to counsel”; (7) Appellee

was allowed to leave and go home after the interview; (8) Appellee’s

two prior statements were made voluntarily; and (9) while Ms.

Powell “specifically asked [Detective] Gleason to instruct her

when/if [Appellee] needed legal counsel, and to verbalize if a warrant

was going to be issued,” she “did not unequivocally request a

13 lawyer.” The trial court then determined that, under the totality of

the circumstances, the State had failed to show that, after the first

9 minutes and 30 seconds of the March 25 interview, “[Appellee]

knowingly, intelligently, freely and voluntarily continued to speak

with the police and provide[ ] the written statement.”

The parties do not challenge the trial court’s conclusions that

Appellee’s noncustodial March 1 and March 4 verbal and written

statements were made freely and voluntarily, that Appellee was not

in custody during those interviews for the purposes of Miranda,4 and

that those statements were not induced by a hope of benefit or fear

of injury pursuant to OCGA § 24-8-824. Accordingly, our review is

limited to the trial court’s partial suppression of Appellee’s March

25 verbal statement and the complete suppression of her subsequent

written statement.

4. Analysis

————————————————————— 4 Although Appellee noted in a footnote of her brief that her custodial

status during the interviews was disputed in the trial court, Appellee did not cross-appeal the trial court’s determinations that she was not in custody for the purposes of Miranda. 14  As an initial matter, the State contends that the trial court

“mistakenly combine[d] the law regarding in-custody and out-of-

custody statements of juveniles,” arguing that Riley applies only to

custodial interviews. However, in addition to applying Riley in order

to determine whether a juvenile voluntarily waived his or her

Miranda rights during a custodial interview, “this Court has also

relied on its factors in evaluating more general due process

voluntariness cases for juveniles.” Lester v. State, 310 Ga. 81, 85 (2)

n.7 (849 SE2d 425) (2020) (citing Oubre v. Woldemichael, 301 Ga.

299, 305 (2) (a) (800 SE2d 518) (2017)). See also Daniels v. State,

313 Ga. 400, 406-407 (2) (b) (i) n.9 (870 SE2d 409) (2022); Murray v.

State, 276 Ga. 396, 397-398 (2) (578 SE2d 853) (2003); Jackson v.

State, 272 Ga. 191, 195 (3) (528 SE2d 232) (2000).

Turning to the trial court’s order concerning Appellee’s March

25 verbal and written statements, in analyzing the totality of the

circumstances, the trial court considered the many factors set forth

in Riley,5 which include:

————————————————————— 5 A number of us have recently expressed concerns about the prescriptive

15  (1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge and the nature of [her] rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogations; (7) length of interrogations; (8) whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.

Riley, 237 Ga. at 128 (citation and punctuation omitted). “In

reviewing a ruling on the admissibility of a defendant’s statements

where the facts are disputed, we accept the trial court’s factual

findings and credibility determinations unless they are clearly

erroneous, but we independently apply the law to the facts.” State

v. Abbott, 303 Ga. 297, 299 (1) (812 SE2d 225) (2018) (citation and

punctuation omitted). See Hughes v. State, 296 Ga. 744, 746 (1) (770

SE2d 636) (2015) (“When the facts material to a motion to suppress

————————————————————— and restrictive nature of Riley’s nine-factor analysis for juveniles. See Daniels, 313 Ga. at 418 (Nahmias, C.J., concurring specially in part); State v. Burton, 314 Ga. 637, 649 (878 SE2d 515) (2022) (Pinson, J., concurring) (“Riley appears to be out of step with U.S. Supreme Court precedent”). Nonetheless, Riley remains controlling authority on this issue, and no party in this case has asked us to reconsider it. 16 are disputed, it generally is for the trial judge to resolve those

disputes and determine the material facts.”). This Court affords

“less deference to the trial court . . . to the extent that material facts

definitively can be ascertained exclusively by reference to evidence

that is uncontradicted and presents no questions of credibility.”

Hughes, 296 Ga. at 746 (1) n.5.

The State argues that the trial court made a clearly erroneous

factual finding when it determined that Detective Gleason

improperly advised Appellee “that her mother was the only person

who could exercise her constitutional right to counsel.” In

considering a trial court’s suppression ruling, “‘an appellate court

must construe the evidentiary record in the light most favorable to

the factual findings and judgment of the trial court.’” Walker v.

State, 312 Ga. 332, 336 (2) (b) (862 SE2d 542) (2021) (quoting State

v. Clark, 301 Ga. 7, 8 (799 SE2d 192) (2017)). Viewing the evidence

in this light, and giving the trial court’s factual findings and

credibility determinations the proper deference, the State’s claim

fails. The record shows that Detective Gleason did not ask Appellee

17 directly whether she wanted to talk to him or whether she wanted

to do so without a lawyer, but rather directed all discussions of

Appellee’s constitutional rights to her mother. He further testified

that, when Ms. Powell asked if “we” needed a lawyer, his reply of

“[t]hat’s up to you” was meant to convey, “you’re her mother, what

do you want to do[?]” Under these circumstances, we cannot say

that the trial court clearly erred by implicitly crediting Detective

Gleason’s testimony and finding that he incorrectly advised

Appellee that only her mother could invoke Appellee’s right to

counsel.

The State also argues that the trial court erred because it found

that all of the Riley factors were “satisfied” except for one. We

disagree with the State’s characterization of the trial court’s order

as finding that all of the Riley factors favored admission. Moreover,

we cannot say that the trial court clearly erred with regard to any of

its factual findings, as each of them finds support in the record.

Finally, we cannot say that the trial court erred in suppressing

18 Appellee’s March 25 verbal statement in part and written statement

from that day in full.

Reviewing the nine Riley factors in order, first, the record

supports the trial court’s finding that Appellee was 15 year old when

she was interviewed by Detective Gleason. Second, the record is

silent as to Appellee’s education level; however, the trial court found,

and the record shows, that Appellee “understood English.” As to the

third factor, the trial court found, and the record shows, that

Appellee knew she was being interviewed about the shooting that

led to Bryant’s death. However, the record also supports the trial

court’s findings that: Appellee was consistently told that she was

merely a witness; no warrants had been issued in the case; Appellee

was never informed that her statements could be used against her

at trial or that she could “go to jail or lose her freedom” based upon

what she told detectives; and that, while Detective Gleason

consulted with Ms. Powell prior to each interview, he “[did not] state

it was optional for [Appellee] to speak with him.” Further, as

discussed above, the record supports the trial court’s finding that

19 Detective Gleason “incorrect[ly] and erroneously advised [Appellee]

. . . that her mother was the only person who could exercise

[Appellee’s] constitutional right to counsel during the third

interview.”

Regarding the fourth factor, the record supports the trial

court’s finding that Appellee’s mother was present, and Appellee

was allowed to consult with her during the interviews. However,

the record also supports the trial court’s findings that Ms. Powell

actively participated in the questioning of her daughter and brought

her daughter to the police station on a prior occasion in order to offer

more information to detectives. Further, the video recording shows

that Ms. Powell was extremely emotional throughout her daughter’s

interviews and, at one point, became so upset that she physically

turned away from Appellee while Appellee was implicating herself

in a crime.

The trial court made no findings as to the fifth factor; however,

it is undisputed that Appellee was interviewed prior to the filing of

any formal charges. As to the sixth factor, the record supports the

20 trial court’s findings that Appellee was given no hope of benefit in

exchange for her statements, that she was provided water prior to

all interviews, and that she was free to leave after her interviews.

However, the record also supports the trial court’s findings that

Detective Gleason knew, prior to the third interview, that Appellee

had not been truthful with him, and that he was going to ask the 15-

year-old Appellee questions that, if she answered, could possibly be

incriminating.

Though the trial court made no findings with respect to the

seventh factor, it is undisputed that all of Appellee’s interviews were

less than two hours long, with the March 25 interview being the

shortest in duration. As to the eighth factor, the record supports the

trial court’s findings that Appellee’s two prior statements were

voluntarily given. Finally, the trial court made no findings

regarding the ninth factor; however, due to the pre-trial status of

this case, there is nothing in the record currently before us to

suggest that Appellee has repudiated these statements.

21  While it is true that the trial court made some findings that

might have weighed in favor of admitting Appellee’s statements at

trial, we cannot say that the trial court erred in concluding that,

under Riley, the inculpatory verbal and written statements Appellee

made to detectives following the first 9 minutes and 30 seconds of

the recorded interview on March 25 were involuntary. See State v.

Rodriguez, 274 Ga. 728, 728-729 (559 SE2d 435) (2002) (holding that

a juvenile, who was incorrectly advised by police that his mother was

the only person who could exercise his constitutional rights, did not

knowingly, intelligently, and voluntarily waive his rights to remain

silent and to counsel). Compare Norris v. State, 282 Ga. 430, 431-

432 (2) (651 SE2d 40) (2007) (holding that the juvenile defendant

was properly advised of his right to counsel when, among other

things, the detective conducting the interview informed both the

defendant and his mother that “the decision of whether to speak to

an attorney belonged to both [the mother] and Appellant”).

Accordingly, we affirm the trial court’s suppression of those

statements.

22  Judgment affirmed. All the Justices concur, except LaGrua, J., who dissents.

LAGRUA, Justice, dissenting.

Because the trial court applied the wrong standard of law in

granting Appellee’s motion to suppress, and because I believe that,

by affirming the trial court’s ruling, the majority opinion will only

perpetuate the confusion surrounding the factors a trial court should

consider in determining the admissibility of a juvenile defendant’s

statement at trial, I respectfully dissent.6

As noted in the majority opinion, Appellee was interviewed by

Detective Gleason on three different dates in March 2019. Appellee

was arrested several days after the third and final interview. In her

motion to suppress, Appellee sought to suppress all of the

————————————————————— 6 Additionally, in deferring to the factual findings of the trial court, the

majority opinion has recounted evidence that is irrelevant to and beyond the scope of the evidence the trial court cited and relied upon in reaching its conclusion that a portion of Appellee’s third interview and third written statement were involuntary — i.e., the majority opinion goes into considerable detail about conversations between Ms. Powell and Detective Gleason during Appellee’s first and second interviews and the beginning of the third interview, but the trial court concluded that those statements were voluntary. As such, evidence of what transpired during those interviews is irrelevant to the voluntariness and admissibility of the last 30 minutes of Appellee’s third interview and her corresponding written statement. 23 statements she made during these interviews, contending that she

was in “police custody” when she was interviewed and that law

enforcement “failed to notify [her] of the right to remain silent, the

right to counsel, the right to the appointment of counsel, the right to

have counsel present during questioning, [and] the fact that

anything that she mentioned during questioning could be used

against her in [c]ourt” and failed “to get a free and voluntary waiver

of those rights before questioning her.”

Following the hearing on Appellee’s motion to suppress, the

trial court issued a written order concluding, among other things,

that during and after each interview, Appellee was “not in custody”

and “was allowed to leave and go home,” and that Detective Gleason

testified that “no threats, promises or hope of benefit” were made to

induce Appellee’s statements during the interviews. Nevertheless,

the trial court concluded that Detective Gleason’s response to Ms.

Powell’s questions — “Do we need a lawyer? Do I need a lawyer?” —

rendered the remainder of Appellee’s third interview involuntary,7

————————————————————— 7 The majority opinion states that the trial court “partially suppressed

24 and thus, the trial court granted the motion with respect to the rest

of Appellee’s third interview and her corresponding written

statement.

“In reviewing the trial court’s grant or denial of a motion to

suppress, we apply the well-established principles that the trial

court’s findings as to disputed facts will be upheld unless clearly

erroneous and the trial court’s application of the law to undisputed

facts is subject to de novo review[.]” Moon v. State, 312 Ga. 31, 57

(4) (860 SE2d 519) (2021) (citation and punctuation omitted). The

trial court’s order reflects that the trial court misapplied the law to

be considered in evaluating the voluntariness of a juvenile

defendant’s statement given in a non-custodial interview.

The trial court evaluated the admissibility and voluntariness

of Appellee’s statements through the lens of a custodial

————————————————————— Appellee’s March 25 statement” because the trial court found that, “under a totality of the circumstances, [Appellee] did not knowingly and voluntarily make a statement as a matter of constitutional due process.” Maj. Op. at 5-6 (emphasis supplied). Notably, this “constitutional due process” language is not present in the trial court’s written order nor was such language ever used or referenced by counsel or the trial court during the hearing on Appellee’s motion to suppress. 25 interrogation and applied the Riley factors. “By custodial

interrogation, we mean questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.” Oregon v.

Mathiason, 429 U. S. 492, 494 (97 SCt 711, 50 LE2d 714) (1977)

(explaining that the United States Supreme Court’s “decision in

Miranda set forth rules of police procedure applicable to “’custodial

interrogation’”). And Riley “was initially decided in the context of

whether a juvenile defendant had knowingly and intelligently

waived his rights under Miranda.” Lester v. State, 310 Ga. 81, 85

(2) n.7 (849 SE2d 425) (2020). “[T]he issue [in Riley] was whether

there was a knowing and intelligent waiver of constitutional rights

[as defined by Miranda and its progeny] by the defendant.” Byrum

v. State, 282 Ga. 608, 611 (5) n.2 (652 SE2d 557) (2007).

While this Court “has also relied on [the Riley] factors in

evaluating more general due process voluntariness cases for

juveniles,” Lester, 310 Ga. at 85 (2) n.7, I think this reliance has led

to confusion for trial courts in determining what standard and

26 factors apply in evaluating the voluntariness of a juvenile’s

statement in a non-custodial setting. See Oubre v. Woldemichael,

301 Ga. 299, 305 (2) (a) (800 SE2d 518) (2017) (holding that “[i]n

determining whether a juvenile has given a statement voluntarily,

a court considers nine factors set forth in Riley”). Certainly, a

statement can never be coerced, as it would violate an individual’s

due process rights, but our prior applications of Riley appear to have

caused the trial court in this case to conflate the Riley test “with a

more general totality-of-the-circumstances due process analysis.”

Lester, 310 Ga. at 85 (2) n.7.

As set forth in the trial court’s order, the trial court applied the

following legal analysis in evaluating the voluntariness of Appellee’s

statements:

The question of a voluntary, knowing and intelligent waiver of [a defendant’s] right to counsel depends on the totality of the circumstances, and the State has a heavy burden in showing that the juvenile did understand and waive her rights. . . . In determining whether a juvenile’s custodial statement was voluntarily and knowingly given, the [trial court] must consider the [factors set forth in Riley, 237 Ga. at 128]. . . . Parental presence or ability to consult with a family member alone does not conclusively

27  establish a waiver of a juvenile’s constitutional right to counsel. Only the individual, juvenile or adult, can exercise their constitutional rights.

(Emphasis supplied). The trial court, citing State v. Rodriguez, 274

Ga. 728, 729 (559 SE2d 435) (2002), determined that “[a] critical

factor in this case is whether [Appellee] understood her constitutional

right to consult with an attorney,” ultimately holding that Detective

Gleason’s response to Ms. Powell’s question about whether she

needed a lawyer “erroneously advised” Appellee that “her mother

was the only person who could exercise her constitutional right to

counsel during the third interview.” (Emphasis supplied).

The language of the trial court’s order recited above

demonstrates that, even though the trial court determined that

Appellee was not in custody and was free to leave, the court still

analyzed Appellee’s statements as though she was in custody.

However, in accordance with the finding that Appellee was not in

custody, law enforcement had no obligation to inform Appellee of her

constitutional rights under Miranda, and Appellee did not have a

Sixth Amendment right to be appointed counsel. See Petty v. State,

28 283 Ga. 268, 270 (2) (658 SE2d 599) (2008) (holding that the Fifth

Amendment right to counsel under Edwards v. Arizona, 451 U. S.

477 (101 SCt 1880, 68 LE2d 378) (1981), which requires “that all

questioning cease after an accused has requested counsel, applies

only to custodial interrogation”). Because Appellee’s “voluntary

inculpatory statements” were made “prior to the point at

which Miranda warnings were constitutionally required,” the

“question of whether [s]he knowingly and intelligently waived h[er]

rights [was] not implicated.” Byrum, 282 Ga. at 611 (5) n.2.

To determine the admissibility of Appellee’s non-custodial

statement, the trial court should have evaluated the voluntariness

of that statement under a more general totality-of-the-

circumstances due process analysis8 by inquiring “into all the

circumstances surrounding the interrogation,” including “the

juvenile’s age, experience, education, background, and intelligence.”

Fare v. Michael C., 442 U. S. 707, 725 (III) (99 SCt 2560, 61 LE2d

————————————————————— 8 Although the majority opinion suggests, as noted above, that the trial

court applied such an analysis, that conclusion is not supported by the trial court’s written order or the transcript of the motion-to-suppress hearing. 29 197) (1979).9 The trial court should have also determined whether,

pursuant to OCGA § 24-8-824, the statement was “made voluntarily,

without being induced by another by the slightest hope of benefit or

remotest fear of injury.” See Oubre, 301 Ga. at 306 (2) (a) (holding

that “offering a hope of benefit is a method of interrogation, a factor

to be considered in evaluating the totality of the circumstances”).

Here, the trial court found that the first interview, second

interview, and beginning of the third interview were “freely and

voluntarily given by [Appellee] without hope of benefit or fear of

injury.” However, the trial court’s written order is silent as to

whether Appellee was coerced by any promises, threats, or hope of

benefit during the remainder of the third interview, and accordingly,

there was no finding as to whether Appellee’s statement was

rendered involuntary on that basis. See OCGA § 24-8-824.

————————————————————— 9 Even if Appellee had been in custody at the time of the interview, the

totality-of-the-circumstances approach established in Fare would still be the appropriate test to determine whether Appellee’s statements were voluntary and whether she waived her constitutional rights under Miranda. See State v. Burton, 314 Ga. 637 (878 SE2d 515) (2022) (Pinson, J., concurring) (noting that in Fare, the United States Supreme Court held that “the test for whether a person has waived his rights under Miranda . . . is the same for juveniles as it is for adults, and it requires a ‘totality-of-the-circumstances approach’”). 30  Given the trial court’s misapplication of the law to its factual

findings and the lack of any explanation to illustrate why the trial

court decided that Detective Gleason’s response to Ms. Powell

rendered the remainder of Appellee’s third interview involuntary —

despite findings weighing in favor of the opposite conclusion — I

cannot affirm the trial court’s suppression of those statements. And

it is my position that, rather than affirm the trial court’s

misapplication of the law, we should clarify the standard for trial

courts to apply when evaluating a juvenile’s statement to law

enforcement in a non-custodial setting and reverse and remand this

case to the trial court for the application of that standard.

31  Decided October 25, 2022.

Motion to suppress. Henry Superior Court. Before Judge

Palmer.

Darius Pattillo, District Attorney, Sharon L. Hopkins, Assistant

District Attorney; Christopher M. Carr, Attorney General, Patricia B.

Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, for appellant.

Miller & Key, Suesan A. Miller, Zachary North, for appellee.

32