State v. TRIPP (And Vice Versa)

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: December 20, 2024

S24A1032. THE STATE v. TRIPP. S24X1033. TRIPP v. THE STATE.

LAGRUA, Justice.

On May 23, 2017, Leon Lamar Tripp was arrested on charges

related to the disappearance of Latania Janell Carwell, the 16-year-

old daughter of Tripp’s wife, Tanya Faye Tripp. Following the

discovery of Janell’s remains on March 8, 2018, Tripp was indicted

by a Richmond County grand jury for murder, kidnapping, and other

crimes related to Janell’s death.1 After Tripp’s arrest, he was

interviewed by law enforcement officers on multiple occasions. Tripp

later moved to suppress those custodial statements. Following a

suppression hearing, the trial court granted in part and denied in

————————————————————— 1 Tanya was also indicted for murder and other crimes related to the

death of Janell. The State initially sought the death penalty in this case, but in November 2023, the State reindicted Tripp and Tanya and did not seek the imposition of the death penalty. part Tripp’s motions to suppress. The State timely appealed, and

Tripp filed a timely cross-appeal. For the reasons that follow, we

affirm in part and reverse in part the trial court’s rulings as to the

admissibility of Tripp’s custodial interviews.

1. Based on evidence presented at the suppression hearing and

the express findings in the trial court’s order on the motions to

suppress, the pertinent facts of this case are as follows. In mid-April

2017, Tanya contacted the Richmond County Sheriff’s Office

(“RCSO”) and reported that Janell was missing, having last been

seen leaving the family residence in Augusta with Tripp a few days

earlier. Because Janell was reportedly in the presence of Tripp and

Tanya before her disappearance, the RCSO focused their

investigation on the Tripps. Tanya told the RCSO that she did not

know Tripp’s current whereabouts, and she had not been in contact

with him since he left Augusta with Janell. The RCSO was unable

to locate Tripp for several weeks; however, with the assistance of

other law enforcement agencies, the RCSO tracked Tripp to the

Atlanta area. On May 23, 2017, Tripp and Tanya were located

2 together at a U-Haul store in DeKalb County, and Tripp was

arrested and taken into custody by the DeKalb County Sheriff’s

Office. At the time of Tripp’s arrest, he was charged with crimes

related to Janell’s disappearance. However, on March 8, 2018,

Janell’s remains were located in a shallow grave in Richmond

County, and additional charges were brought against Tripp,

including murder.

Following Tripp’s arrest and during the subsequent

investigation, Tripp was interviewed by law enforcement officers on

May 23, 2017, June 2, 2017, June 7, 2017, June 9, 2017, June 26,

2017, March 12, 2018, and March 14, 2018. In August 2022, Tripp

filed separate motions seeking to suppress each of these custodial

interviews. The trial court heard the motions on November 21,

2022. On March 21, 2024, the trial court issued an order denying

Tripp’s motions to suppress his custodial interviews between May

23, 2017 and June 7, 2017, but granting his motions with respect to

his custodial interviews that occurred after June 8, 2017. Following

the issuance of the trial court’s order, the State stipulated that it did

3 not intend to introduce or use any of the interviews conducted on

June 7, 2017, June 26, 2017, March 12, 2018, and March 14, 2018.

Accordingly, the May 23, 2017, June 2, 2017, and June 9, 2017

interviews are the only custodial interviews at issue in this appeal.

(a) May 23, 2017 custodial interview

After Tripp was arrested on May 23, RCSO Investigators

Ronald Sylvester and William Smith traveled to the DeKalb County

Jail to interview Tripp. The prosecutor tendered the audio recording

of the May 23 interview into evidence at the hearing on the motions

to suppress and played the audio recording for the trial court. As

demonstrated by the audio recording, the testimony, and the

documentary evidence presented at the hearing, at the outset of the

May 23 interview, the investigators advised Tripp of his Miranda 2

rights and presented Tripp with a “Miranda Warning and Waiver of

Counsel” form used by the RCSO, which they read verbatim to Tripp

while he followed along. As the officers read the Miranda waiver

————————————————————— 2 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)

(1966). 4 form to Tripp, he initialed the form beside each of the following

delineated Miranda rights:

(1) “I have the right to remain silent”; (2) “Anything I say can and will be used against me in a court of law”; (3) “I have the right to talk to an attorney and have him present with me while I am being questioned or before making any statements”; (4) “If I cannot afford an attorney, one will be appointed to me by the Court, free of charge, to represent me, and to have him present before making any statements or before any questioning”; (5) “[I]f I request an attorney, no questions will be asked until an attorney is present to represent me”; and (6) “I can decide at any time to exercise these rights and not answer any questions or make any statements.”

Tripp then signed the Miranda waiver form, affirming that he

“read this statement of [his] rights,” “underst[oo]d what [his] rights

[we]re,” and “made this decision freely and voluntarily” without any

“promises or threats hav[ing] been made to induce [him] to sign this

waiver of counsel.” After Tripp signed the Miranda waiver form,

Investigator Sylvester asked Tripp if he understood “everything that

was read to him as far as his rights [we]re concerned,” and Tripp

said, “Yes.” The officers then signed the Miranda waiver form and

5 assisted Tripp in completing a pre-interview worksheet, which

included Tripp’s personal information, such as name, date of birth,

motor vehicle information, and residential address.

At this point in the interview, Investigator Sylvester said to

Tripp, “You know why we’re here,” and Tripp responded, “Yes.”

Investigator Sylvester explained that they wanted to find Janell and

“make sure she’s OK.” Investigator Sylvester then advised Tripp

that he had “read [Tripp his] Miranda [rights]” and asked if Tripp

wanted to talk to them. Tripp responded that he would tell the

investigators “all that [he] kn[e]w.” Thereafter, Tripp stated that,

on the night of Sunday, March 16, Janell rode with Tripp from their

house in Augusta to a neighboring town to fix a friend’s car, and

then, Tripp and Janell traveled to Atlanta to stay at a house

belonging to Tripp’s cousin. Tripp said it was Janell’s 16th birthday,

and she wanted to go shopping in Atlanta. According to Tripp, after

he and Janell had been in Atlanta for about two or three days, he

gave her $400 to go shopping, and she told him that, afterwards, she

was going to “catch the bus” to go “back home.” Tripp said that,

6 when he got back to his cousin’s house from work that day,3 Janell

was gone, so he assumed she took the bus home. Tripp said he did

not see or speak to Janell again after that morning, and he worked

in Atlanta for the rest of the week. According to Tripp, when he got

back to his Augusta home that weekend, Tanya asked him where

Janell was, and Tripp said he “had no idea.” Tripp stated that he

did not realize Janell never came home, and Tanya advised him that

the police were looking for him and Janell.

After talking to the investigators for about an hour, Tripp said,

“I’m through with this interview. . . . I’ve told y’all what I knew. . . .

I don’t know where my daughter at. . . . I hope y’all find her.” The

investigators then terminated the interview. Following this

interview, Tripp was transported to the Richmond County Detention

Center.

(b) June 2, 2017 custodial interview

After Tripp was transferred to the Richmond County Detention

————————————————————— 3 Tripp told the investigators that he worked miscellaneous construction

or handyman jobs while he was in Atlanta. 7 Center, he was brought to the Richmond County Sheriff’s Office for

another interview on June 2. The prosecutor tendered the video

recording of the June 2 interview into evidence at the hearing on the

motions to suppress and played the video recording for the trial

court. As demonstrated by the video recording, the testimony, and

the documentary evidence presented at the hearing, Investigator

Sylvester and Investigator Mark Dobbins conducted the June 2

interview of Tripp. At the beginning of the interview, Investigator

Sylvester told Tripp there had been “some developments in the case”

since they last talked on May 23, and they wanted to speak to Tripp

to “get some clarification” on those issues. Tripp responded, “Okay.”

Investigator Sylvester informed Tripp that Tanya had also been

arrested and that the investigators needed to know “the full extent”

of her involvement in Janell’s disappearance.

Investigator Sylvester then advised Tripp that, because he was

in custody and they were talking to him again, they were required

to “go over his Miranda [rights]” again. Investigator Sylvester then

handed Tripp the same Miranda waiver form they reviewed with

8 him during the May 23 interview and asked him to put his name at

the top of the form. Tripp would not do so. Investigator Dobbins

explained that, in order for them to discuss additional information

with Tripp, “by law, [they] ha[d] to read [him] [his] Miranda

warning.” Tripp asked why he had to sign one of the Miranda

waiver forms twice, stating he already told them “what’s going on.”

The investigators advised Tripp it was a “procedural thing” they

were “required to do.” Investigator Sylvester then asked Tripp to

put his name at the top of the Miranda waiver form, and Tripp shook

his head and mumbled a negative response. The investigators said,

“Okay.”

At that point, Investigator Sylvester read the Miranda waiver

form to Tripp and asked if he understood his Miranda rights. Tripp

nodded affirmatively and again initialed the form beside each of his

Miranda rights as follows:

(1) “I have the right to remain silent;” (2) “Anything I say can and will be used against me in a court of law;” (3) “I have the right to talk to an attorney and have him present with me while I am being questioned or before

9  making any statements;” (4) “If I cannot afford an attorney, one will be appointed to me by the Court, free of charge, to represent me, and to have him present before making any statements or before any questioning;” (5) “[I]f I request an attorney, no questions will be asked until an attorney is present to represent me;” and (6) “I can decide at any time to exercise these rights and not answer any questions or make any statements.”

Investigator Sylvester asked Tripp to sign the bottom of the

Miranda waiver form. Tripp put the pen down and crossed his arms,

refusing to sign. Investigator Dobbins asked Tripp, “Do you

understand your rights?” Tripp said, “Yep.” Investigator Dobbins

asked, “As they were read?” and Tripp said, “Yes. I understand.”

Investigator Dobbins asked Tripp if he was under the influence of

any drugs or alcohol, had any mental disorders, or had been

promised anything or threatened in any way, and Tripp denied each

of these inquiries.

The investigators then proceeded with the interview, and Tripp

indicated that, while he wanted to hear any new information the

investigators had to share with him, he did not want to go over

matters they had already discussed during the May 23 interview.

10 After a few hours of questioning, Tripp told the investigators to “do

whatever they [were] going to do [him]” and “charge [him] with

whatever they were going to charge [him] with” because he was

“tired of being asked about this sh*t” and “[did]n’t know nothing

else.” The interview concluded at that point.

(c) June 9 custodial interview

On June 9, Tripp was transported from the jail to the

Richmond County Sheriff’s Office for another interview. Defense

counsel tendered the video recording of the June 9 interview into

evidence at the hearing on the motions to suppress and played the

video recording for the trial court. As demonstrated by the video

recording, the testimony, and the documentary evidence presented

at the hearing, the June 9 interview began at 1:46 p.m. when

Investigator Grant entered the interview room with Tripp and went

over Tripp’s Miranda rights, utilizing the same Miranda waiver

form Investigator Sylvester previously reviewed with Tripp during

the May 23 and June 2 interviews.

Investigator Grant went through each of Tripp’s Miranda

11 rights as follows:

INVESTIGATOR GRANT: All right. I’m going to read this to you. “I, Leon Tripp, have been informed by the undersigned law enforcement officers, prior to being questioned by them.” Number one. “That I have the right to remain silent.” You understand that right?

TRIPP: Um-hum (affirmative).

INVESTIGATOR GRANT: Number two. “Anything I say can and will be used against me in a court of law.” You understand that right?

TRIPP: Right.

INVESTIGATOR GRANT: Number three. “I have the right to talk to an attorney and have him present with me while I am being questioned or before making any statements.” You understand that?

TRIPP: Yeah.

INVESTIGATOR GRANT: Number four. “If I cannot afford an attorney, one will be appointed to me by the Court, free of charge, to represent me, and to have him present before making any statements or before any questioning.” You understand that?

TRIPP: Right.

INVESTIGATOR GRANT: Number [five]. “That if I request an attorney, no questions will be asked until an attorney is present to represent me.” Do you understand that?

12  TRIPP: Yeah.

INVESTIGATOR GRANT: Number six. “I can decide at any time to exercise these rights and not answer any questions or make any statements.” Do you understand that?

TRIPP: Right.

INVESTIGATOR GRANT: I’m going to read this last statement out loud for you. “I have read this statement of my rights, and I understand what my rights are. I have made this decision freely and voluntarily and no promises or threats have been made to induce me to sign this waiver of counsel.” If you’ll just initial these six and then sign right there for me. (Gesturing to the bottom of form.)

Tripp started initialing the Miranda waiver form, but then stopped,

stating:

TRIPP: I’m kind of skeptical about doing this because I talked to my lawyer, and he was like, you know what I’m saying. (Pause.) I may need him to be here, man, because he was like don’t say nothing else to nobody unless he’s here, unless he’s present.

Investigator Grant asked Tripp, “Who is your attorney?” Tripp

responded, “Peter something. He’s with the Public Defender’s

Office.” After describing what his attorney looked like, Tripp told

Investigator Grant, “He told me don’t talk to nobody else about

13 nothing unless he’s present.” Investigator Grant indicated that he

would call Tripp’s attorney, and Tripp said, “Yeah. He just talked to

me yesterday.” Investigator Grant said, “Okay,” and left the

interview room at 1:50 p.m.

At the suppression hearing, Investigator Grant testified that

he believed Tripp had invoked his right to counsel, so he left the

interview room to call Natalie Paine, the District Attorney at the

time to ask her to contact Tripp’s attorney about coming to the

Sheriff’s Office to meet with Tripp. Investigator Grant testified that

he called Paine because he did not have contact information for

Tripp’s attorney. Paine testified that she remembered calling

attorney Peter Johnson on June 9 and meeting him at the Sheriff’s

Office later that day, but she did not recall the content of their

conversation.

According to Johnson’s testimony at the suppression hearing,

he was appointed as counsel for Tripp on June 5, 2017, and he

confirmed that he received a call from Paine on June 9. Johnson

testified that Paine told him Tripp was “about to be interrogated,

14 interviewed,” and she asked if he would “like to come represent

him,” to which Johnson responded, “I probably should.” Johnson

testified that he arrived at the Sheriff’s Office “within an hour,” and

when he arrived at the Sheriff’s Office, he “encountered”

Investigator Grant and Paine, who told him that Tripp “was willing

to be interviewed.”

At 3:17 p.m., prior to the arrival of Tripp’s counsel, Investigator

Grant re-entered the interview room, placed a document in front of

Tripp, told Tripp he was “going to bring [Tripp’s] attorney in here

before this starts,” motioned to the document in front of Tripp, and

indicated that Tripp needed to sign the document. 4 Tripp told

Investigator Grant that he “was not going to talk, but [he] would

listen to what they had to say.” Investigator Grant said he knew

that, but Tripp “still ha[d] to sign these.” Tripp then appeared to

initial and sign the document, and Investigator Grant took the

————————————————————— 4 At the suppression hearing, Investigator Grant testified that the document he gave Tripp was the Miranda waiver form they started reviewing earlier in the interview and that he re-entered the interview room solely for the purpose of completing that form. Any Miranda waiver form completed on June 9, 2017 has not been made part of the record in this case. 15 document and stood up to leave the interview room. As Investigator

Grant walked towards the doorway, Tripp told Investigator Grant

that he was tired, and Investigator Grant offered Tripp “a dip or

something.” Tripp continued talking, and at that point, the

following exchange occurred:

TRIPP: I mean, I really just, you know what I’m saying, I really just rather get this sh*t over with, man, you know what I’m saying. I’m really just tired really, man.

INVESTIGATOR GRANT: Yeah.

TRIPP: I mean I want to try to resolve it as best I can. You know what I’m saying, like. But I need to talk to my wife first, man. You know what I’m saying.

INVESTIGATOR GRANT: Um-hum (affirmative).

TRIPP: Two things I want. I want to talk to my wife, and I want to see my little two kids and my mama. If y’all can do that for me, man, I’ll tell y’all, you know what I mean, I’m go ahead and so y’all can close this case, man, you know what I’m saying. You know ‘cause I’m tired, you know what I’m saying. But I want to see my two daughters and my mama, man. I want to see my wife, you hear what I’m saying. And I’ll tell y’all, you know what I mean, what’s going on, you know, where she at. All that, man. You know ‘cause I’m tired, you know what I’m saying. I don’t want to talk to them no more, you know. For now, at this point, as a matter of fact, I don’t want to talk to nobody but you. When I tell you all this, but like I

16  say, I want to see my two girls, my two daughters, man, my wife, and my mama.

INVESTIGATOR GRANT: Which two daughters? Which two daughters you talking about? You talking about the seven-year-old?

TRIPP: Aniya and my younger one. I want to see my two daughters because I ain’t seen them since I been home. And my mom. . . . And my wife man. I’ll go ahead and y’all can close this case, man, you know what I’m saying. I’m tired of all this talking. You know, my wife, she ain’t done no wrong ‘cept being around me, you know I’m saying. I’m tired, you know what I’m saying. See my family, man, we’ll close this case, you know what I’m saying.

INVESTIGATOR GRANT: Okay.

During this conversation, Sheriff Richard Roundtree entered

the interview room, and Investigator Grant introduced Tripp to

Sheriff Roundtree. While Investigator Grant went to get Tripp’s

attorney, Tripp and Sheriff Roundtree engaged in small talk, with

Tripp telling the Sheriff that he had heard people speak “highly” of

him and the two discussing what part of town the Sheriff lived in

and how long Tripp had lived in Augusta. At 3:21 p.m., attorney

Peter Johnson entered the interview room. Sheriff Roundtree asked

Johnson if he was representing Tripp, and Johnson confirmed that

17 he was Tripp’s attorney. Sheriff Roundtree told Johnson that he

“came in on the tail end of [Tripp’s] conversation with Investigator

Grant” and that Tripp had “indicated he wants to add some

resolution to this case.”

At 3:23 p.m., the following exchange occurred:

TRIPP: I just told him, man, if I can see my kids, my mama, and my wife, man, I’ll resolve it today. That’s what I want.

Johnson reminded Tripp that, because Tripp’s wife “[was]

represented,” she could not talk to Tripp.

TRIPP: If she can talk to me, we’ll resolve it.

JOHNSON: Really? It’s that simple? . . . You have an opportunity to have a conversation with Tanya, and the situation resolved, is that it? That’s what I mean when I say, “is it that simple?”

TRIPP: I am going to tell them what they need to know to close this case.

JOHNSON: Okay. Does that mean that you do have information that they need to know?

TRIPP: Yeah. I have information, and I want to see my family before I close the case. That’s what I just explained to him.

18  Sheriff Roundtree informed Tripp that the Sheriff would try

and arrange for Tripp to see his family and speak to his wife within

the “confines of the law,” but Sheriff Roundtree wanted to “close [the

case] out today.” Johnson then advised Tripp that he needed to know

whether, if Tripp “had information,” how “badly” the information

would “hurt” Tripp. At that point, Johnson indicated he wanted to

speak to Tripp privately, and Sheriff Roundtree left the interview

room. The video recording was redacted between 3:29 p.m. and 3:35

p.m.

At 3:37 p.m., Sheriff Roundtree and Johnson re-entered the

interview room, and Johnson advised Tripp that he told the Sheriff,

“[O]n advice of counsel, you have nothing more to say.” Sheriff

Roundtree informed Johnson and Tripp that he had contacted

Tripp’s family and could arrange to have them there that night,

emphasizing that he wanted to resolve the case. Johnson counseled

Tripp that he had already given Tripp his advice. Sheriff Roundtree

then asked Tripp, “So, you’re refusing to make a statement?” Tripp

responded, “Yes sir.” Sheriff Roundtree and Johnson then exited the

19 interview room, and Johnson left the Sheriff’s Office.

Over the next two hours, Investigator Grant and two other

investigators periodically entered the interview room for brief

intervals and engaged Tripp in conversation.

(d) Pretrial hearing on motions to suppress

As noted above, Tripp filed pretrial motions to suppress the

statements he made during each of his custodial interviews. The

trial court held a hearing on the motions on November 21, 2022, and

on March 21, 2024, the trial court issued a written order granting in

part and denying in part Tripp’s motions to suppress. 5

As to the May 23, 2017 and June 2, 2017 interviews, the trial

court concluded that, based upon the evidence presented, “the

statements made by [Tripp] were freely and voluntarily made,

without any threat or coercion, and without having been offered the

slightest hope of reward or benefit.” The trial court further

determined that “the statements on those dates were made after

————————————————————— 5 Again, the only custodial interviews at issue here are the May 23, 2017,

June 2, 2017, and June 9, 2017 interviews. 20 [Tripp] had been read his rights under the progeny of [Miranda] and

after [Tripp] had waived each of those rights.” On this basis, the

trial court ruled that the May 23 and June 2 interviews were

“admissible in evidence at the trial of this case.”

As to the June 9, 2017 interview, the trial court found that, at

the beginning of the interview, “[Tripp] was advised of his Miranda

rights,” and “[w]hen asked to acknowledge his rights and to waive

them for purposes of an interview, [Tripp] advised that his lawyer

had said, ‘Don’t talk to anybody without me present.’” The trial

court then found the following: (1) the “investigators summoned

[Tripp’s] attorney, who entered the investigation room with the

Sheriff of Richmond County at 3:20 p.m.”; (2) the Sheriff left the

interview room, and Tripp and his attorney “conferred” before the

Sheriff “was brought back to the interview room at 3:37 p.m.”; and

(3) “[d]efense counsel [then] stated to the Sheriff, in the presence of

[Tripp]” that, “on the advice of counsel, you have nothing else to say.”

Based on these facts, the trial court ruled that “any statements

made by [Tripp], after his counsel advised the Sheriff of Richmond

21 County that [Tripp] would not make any additional statements, are

not admissible in evidence in the State’s case in chief,” and “to that

extent, [Tripp’s] Motion to Suppress statements made by [Tripp]

after June 8, 2017 is GRANTED.”

On appeal, the State asserts that, after receiving and reviewing

the trial court’s order on Tripp’s motions to suppress on March 21,

2024, the State noted what “appeared to be a contradiction between

the trial court’s analysis concerning [Tripp’s] custodial statement

conducted on June 9, 2017 and the trial court’s ultimate ruling that

[Tripp’s] Motions to Suppress after June 8, 2017 were granted.”

According to the State’s appellate brief and as reflected in the record,

the prosecuting attorney sent an email to the trial court on March

21, copied to defense counsel, “requesting some clarification about

the dates” in the trial court’s order. Later that morning, the trial

court’s staff attorney responded by email to all counsel, advising that

“[t]he Court’s Order means what it says.” The State then moved the

trial court for an emergency hearing to address what the State

perceived as dates that were “in contradiction to one another” and

22 to seek “clarification of the [trial court’s] ultimate ruling” on Tripp’s

June 9, 2017 custodial interview. The trial court’s staff attorney

emailed counsel on the afternoon of March 21 and advised that

“[t]here is no need for a hearing,” and the trial court would “see

everyone for jury selection on Monday.”

Based upon the express language of the trial court’s March 21

order and its refusal to revisit that ruling when asked to do so by the

State, we conclude that the trial court suppressed Tripp’s June 9

custodial interview in its entirety. Compare Thomas v. State, 319

Ga. 123, 126 (2) (902 SE2d 566) (2024) (noting that a trial court

retains broad discretion to reconsider and modify “interlocutory

rulings before entry of final judgment”) (citation omitted).

2. The State appealed the trial court’s March 21 order to this

Court under OCGA § 5-7-1 (a) (4), arguing that, if the trial court

suppressed the entire June 9 custodial interview, the trial court

erred in doing so because the statements Tripp made prior to 3:37

p.m. were voluntary, “unprompted,” and “not in response to any

police questioning.” However, the State “concedes that any

23 statements made by [Tripp] after [3:37 p.m. when] Mr. Johnson

informs Sheriff Roundtree that his client will not be making

anymore statements to law enforcement are inadmissible in [the

State’s] Case-In-Chief” and “are not at issue before this Court.”

Tripp filed a cross-appeal of the trial court’s March 21 order

pursuant to OCGA §§ 5-7-1 (b) and 5-6-38, arguing that the trial

court erred in the following ways: (1) by ruling that Tripp waived his

Miranda rights during the May 23 and June 2 custodial interviews;

(2) by ruling that Tripp did not invoke his privilege against self-

incrimination during the June 2 custodial interview; and (3)

assuming the trial court did not suppress the entire June 9

interview, by allowing any portion of the June 9, 2017 custodial

interview to be admitted after Tripp invoked his right to counsel. We

conclude that the evidence supports the trial court’s conclusions that

the May 23 and June 2 interviews are admissible at trial; however,

because certain of the statements Tripp made during the June 9

interview should not have been suppressed based on Miranda, we

conclude the trial court erred in excluding the June 9 interview in

24 its entirety.

When ruling on a motion to suppress, a trial court decides whether a defendant’s statement is admissible based on the preponderance of the evidence considering the totality of the circumstances. The State bears the burden of proof. We have previously explained that when reviewing a trial court’s ruling on a suppression issue, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. In cases where some or all of the material facts are undisputed, we properly may take notice of the undisputed facts — even if the trial court did not — without interfering with the prerogative of the trial court to resolve disputes of material fact. Finally, we review de novo the application of the facts to the law — that is, the trial court’s ultimate conclusion whether, under all the circumstances, the defendant’s statement was voluntary.

State v. Franklin, 318 Ga. 39, 39 (1) (897 SE2d 432) (2024) (citations

and punctuation omitted).

(a) May 23 and June 2 custodial interviews

(i) As noted above, Tripp contends on appeal that the trial

court erred by concluding that he waived his Miranda rights during

the May 23 and June 2 custodial interviews, emphasizing that his

eighth-grade education level should have put the RCSO

investigators “on notice that they [were] not dealing with an

25 intellectually sophisticated individual.” We disagree that the trial

court erred in this respect.

As established by United States Supreme Court in Miranda,

when a defendant is in custody and is subject to interrogation, “he

must be warned prior to any questioning that he has the right to

remain silent, that anything he says can be used against him in a

court of law, that he has the right to the presence of an attorney, and

that if he cannot afford an attorney one will be appointed for him

prior to any questioning if he so desires.” Miranda, 384 U.S. at 479.

“To use a defendant’s custodial statements in its case-in-chief, the

State must prove by a preponderance of the evidence that the

defendant was advised of these rights and that he voluntarily,

knowingly, and intelligently waived them.” State v. Lopez-Cardona,

319 Ga. 222, 226 (2) (a) (903 SE2d 18) (2024) (citing Hinkson v. State,

310 Ga. 388, 400 (5) (b) (850 SE2d 41) (2020)). See also Colton v.

State, 296 Ga. 172, 178 (D) (1) (766 SE2d 38) (2014) (“Certainly, only

voluntary incriminating statements are admissible against an

accused at trial, and it is the State’s burden to prove the

26 voluntariness of a [custodial statement] by a preponderance of the

evidence.”).

“In assessing whether a defendant voluntarily, knowingly, and

intelligently waived his rights under Miranda, a trial court must

consider the totality of the circumstances surrounding the

interrogation.” Lopez-Cardona, 319 Ga. at 227 (2) (a). See also

Hinkson, 310 Ga. at 400 (5) (b) (“Only if the totality of the

circumstances surrounding the interrogation reveals both an

uncoerced choice and the requisite level of comprehension may a

court properly conclude that the Miranda rights have been

waived.”).

[T]he fact that a defendant is of below average intelligence or even has moderate [intellectual disability] does not, in and of itself, warrant the exclusion of the defendant’s inculpatory statement; there must be additional and sufficient evidence that the defendant did not have the capacity to understand and knowingly waive his Miranda rights. And, whether a defendant lacks the capacity to understand and waive such rights due to a mental deficiency or illiteracy is a question of fact for the trial court to determine.

Id. at 178-179 (D) (1) (citation and punctuation omitted).

27  Though Tripp argues that his eighth-grade education level

limited his capacity to voluntarily waive his Miranda rights in the

May 23 and June 2 custodial interviews, his argument is belied by

the record. The record demonstrates that, while RCSO investigators

were advising Tripp of his Miranda rights during the May 23 and

June 2 interviews, Tripp verbally affirmed and initialed the

corresponding Miranda waiver forms, indicating he understood his

rights as explained to him by law enforcement. Additionally, on May

23, Tripp signed the Miranda waiver form, which stated that he

“read this statement of [his] rights,” “underst[oo]d what [his] rights

[we]re,” and “made this decision freely and voluntarily” without any

“promises or threats hav[ing] been made to induce [him] to sign this

waiver of counsel.” And no other evidence appears in the record to

show that Tripp was incapable of knowingly and intelligently

waiving his Miranda rights based upon his education level. See

Donaldson v. State, 249 Ga. 186, 189 (5) (289 SE2d 242) (1982)

(holding that a showing that a defendant is “illiterate” or lacked a

certain level of education “does not, without more, show that he was

28 incapable of understanding his Miranda rights when they are read

to him”).

Thus, having considered the evidence regarding the

voluntariness of Tripp’s statements during the May 23 and June 2

interviews in its entirety, we conclude that the trial court did not err

in its determination that Tripp “voluntarily, knowingly, and

intelligently waived his rights under Miranda” during these

interviews. Lopez-Cardona, 319 Ga. at 227 (2) (a).

(ii) Tripp also contends on appeal that the trial court erred by

concluding that he did not invoke his privilege against self-

incrimination during the June 2 interview because, when the RSCO

investigators asked him to sign and date the Miranda waiver form,

Tripp shook his head, put the pen on the table, and stated, “No,”

purportedly “evinc[ing] his desire to invoke his right to remain

silent.” Tripp further argues that his statement to investigators

later in the interview to “do what they’re going to do” was a renewal

of “his assertion of rights.” We disagree that Tripp invoked his Fifth

Amendment right against self-incrimination during the June 2

29 interview.

The United States Supreme Court has held that “an accused

who wants to invoke his or her right to remain silent [must] do so

unambiguously.” Berghuis v. Thompkins, 560 U.S. 370, 381 (III) (A)

(130 SCt 2250, 176 LE2d 1098) (2010).

A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that avoids difficulties of proof and provides guidance to officers on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression if they guess wrong. Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation. But as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.

Id. at 381-382 (III) (A) (citations and punctuation omitted).

Although the record reflects that Tripp would not sign the

Miranda waiver form during the June 2 interview, he still initialed

30 the form as the investigators read it aloud to him, and when asked

whether he understood his Miranda rights—despite his ultimate

unwillingness to sign the form—Tripp verbally affirmed that he

understood his rights as they were read to him and then proceeded

to talk with the investigators. See Berghuis, 560 U.S. at 375 (I) (A)

(concluding that a defendant’s voluntary statement was admissible

despite his refusal to sign the waiver form delineating his Miranda

rights). Additionally, while Tripp argues that shaking his head,

putting his pen down, and saying “No” when asked to sign the

Miranda waiver form “evinced his desire to invoke his right to

remain silent,” those acts did not unambiguously and unequivocally

indicate that Tripp “wanted to remain silent or that he did not want

to talk with the police,” id. at 382 (III) (A), particularly since—as

noted above—he verbally acknowledged that he understood his

Miranda rights and then voluntarily discussed the case with law

enforcement officers.

In the same way, though Tripp argues that, when he told the

investigators later in the interview to “do whatever they [were]

31 going to do [him],” he renewed “his assertion of rights,” this remark

was not a clear and unambiguous invocation of Tripp’s right to

remain silent; nonetheless, the investigators stopped the interview

moments later. See Cheley v. State, 299 Ga. 88, 90-91 (786 SE2d

462) (2016) (holding that, “[i]n context, [the appellant]’s statement

that he was ‘completely finished’ was not an unequivocal assertion

of his right to remain silent,” but was “reasonably” understood “to

mean only that he had lost patience with the repeated and continued

questions about what he had done before”). Again, “a suspect must

articulate his desire to cut off questioning with sufficient clarity that

a reasonable police officer in the circumstances would understand

the statement to be an assertion of the right to remain silent.” Perez

v. State, 283 Ga. 196, 198 (657 SE2d 846) (2008) (citation omitted).

Accordingly, because Tripp’s actions and statements during

the June 2 interview were not an unequivocal invocation of his right

to remain silent, the trial court did not err in ruling that Tripp’s

June 2 custodial interview is admissible at trial.

(b) June 9 custodial interview

32  With respect to the June 9 interview, the parties agree that any

statements Tripp made after 3:37 p.m. are inadmissible at trial.

However, the parties disagree about the admissibility of Tripp’s

statements prior to 3:37 p.m. The State argues that Tripp’s prior

statements are admissible at trial, while Tripp argues the contrary,

asserting that he invoked his right to counsel at the beginning of the

interview when he told Investigator Grant that he “may need” his

attorney to be there, and any statements after that point should be

excluded.

“When a defendant requests a lawyer, police must immediately

cease interrogation, or its functional equivalent, including any

words or actions by law enforcement calculated to elicit an

incriminating response, until counsel is present.” Taylor v. State,

303 Ga. 225, 231 (5) (811 SE2d 286) (2018). We have held that,

“[a]fter counsel has been called for, custodial interrogation may not

be reinitiated, unless either the suspect’s counsel is present or the

suspect reinitiates discussion on [his] own and freely and voluntarily

waives [his] right to counsel.” Id. (citations omitted). However, “[a]

33 request for a lawyer must be clear and unambiguous; the mere

mention of the word attorney or lawyer without more, does not

automatically invoke the right to counsel.” Taylor v. State, 304 Ga.

41, 48 (4) (816 SE2d 17) (2018) (citation and punctuation omitted).

The suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. We have previously held that statements that “I might need a lawyer” and “I will still talk to my lawyer tomorrow” were not clear and unambiguous requests for counsel.

Lucas v. State, 273 Ga. 88, 90 (2) (538 SE2d 44) (2000) (citations and

punctuation omitted). See also Dozier v. State, 306 Ga. 29, 34 (4) (a)

(829 SE2d 131) (2019) (holding that the test is whether “a reasonable

police officer in the circumstances would understand the statement

to be a request for an attorney”).

We need not decide in this case whether Tripp unequivocally

invoked his right to counsel at the beginning of the June 9 interview

because, even if he did, he then made “spontaneous and unsolicited

statement[s]” to Investigator Grant that were not “elicited by

questioning” or “any form of custodial interrogation.” Doricien v.

34 State, 310 Ga. 652, 655 (853 SE2d 120) (2020) (holding that “a

spontaneous and unsolicited statement is admissible . . . if it was not

elicited by questioning or made in response to any form of custodial

interrogation”). See also Taylor, 303 Ga. at 231 (5) (“[a]fter counsel

has been called for, custodial interrogation may not be reinitiated,

unless . . . the suspect reinitiates discussion on [his] own”).

As detailed above, the record demonstrates that Investigator

Grant began the June 9 interview by reviewing Tripp’s Miranda

rights with him, and after Tripp acknowledged his understanding of

those rights and was initialing the Miranda waiver form, Tripp

stopped and told Investigator Grant he “may need [his attorney] to

be here” because Tripp’s attorney had said, “don’t say nothing else

to nobody unless he’s here, unless he’s present.” Investigator Grant

then left the interview room to contact Tripp’s attorney. About an

hour and a half later, Investigator Grant returned to the interview

room, placed the Miranda waiver form in front of Tripp, and asked

him to sign it, but did not ask Tripp any questions or discuss any of

the details of the case with him. See Jenkins v. State, 317 Ga. 585,

35 594 (2) (b) (894 SE2d 566) (2023) (“Miranda warnings must be

administered to an accused who is in custody and subject to

interrogation or its functional equivalent.”) (citation omitted);

Russell v. State, 309 Ga. 772, 777 (2) (b) (848 SE2d 404) (2020)

(holding that “[t]he law does not require . . . that all communications

between the suspect and law enforcement must cease after the

suspect invokes his right to counsel,” and “police statements and

actions normally attendant to . . . custody are not considered the

functional equivalent of interrogation, and thus, they are

permitted”) (citation and punctuation omitted). After Tripp signed

the waiver form and Investigator Grant stood up to leave the

interview room, Tripp started talking about how tired he was and

then expressed his desire to see his family and resolve the case,

telling Investigator Grant:

I want to talk to my wife, and I want to see my little two kids and my mama. If y’all can do that for me, man, I’ll tell y’all, you know what I mean, I’m go ahead and so y’all can close this case, man, you know what I’m saying. You know ‘cause I’m tired, you know what I’m saying. But I want to see my two daughters and my mama, man. I want to see my wife, you hear what I’m saying. And I’ll tell y’all,

36  you know what I mean, what’s going on, you know, where she at. All that, man. You know ‘cause I’m tired, you know what I’m saying.

We conclude that these statements were made by Tripp “on his

own volition and without any prompting” or questioning by

Investigator Grant. Smith v. State, 292 Ga. 620, 623 (4) (740 SE2d

158) (2013). And, given these circumstances, we further conclude

that Tripp’s statements to Investigator Grant during this timeframe

should not have been suppressed under Miranda. See id.

Additionally, the record reflects that, shortly after Tripp made

these statements to Investigator Grant, Sheriff Roundtree and

Tripp’s attorney, Johnson, joined Tripp in the interview room. Tripp

then spoke to Sheriff Roundtree and Johnson for approximately

eight minutes, reiterating that, “if I can see my kids, my mama, and

my wife, man, I’ll resolve it today.” Johnson then asked to speak to

Tripp privately, at which point Sheriff Roundtree left the interview

room. At 3:37 p.m., Johnson and Sheriff Roundtree returned to the

interview room, and Johnson advised Tripp that he had told the

Sheriff, “[O]n advice of counsel, you have nothing more to say.”

37  We conclude that, when Johnson entered the interview room,

Tripp’s statements to Johnson and Sheriff Roundtree from that

point forward—until Johnson expressed a desire to speak with Tripp

privately—should not have been suppressed under Miranda because

Tripp’s counsel was present, and Tripp has not claimed any other

violation of his rights with respect to these statements that would

warrant suppression. See Jenkins, 317 Ga. at 594 (2) (b) (holding

that, under Miranda, “[o]nce warnings have been given,” if the

defendant “states that he wants an attorney, the interrogation must

cease until an attorney is present”). We further conclude—and the

State concedes—that any statements Tripp made to law

enforcement officers after 3:37 p.m., when Johnson returned to the

interview room with the Sheriff and Johnson and Tripp confirmed

that he had “nothing more to say,” are inadmissible in this case. See

Perez, 283 Ga. at 197 (“A person being subjected to custodial

interrogation may at any time express his or her desire to remain

silent and, thereby, end the interrogation.”).

Accordingly, as to the June 9 interview, because Tripp chose to

38 make spontaneous statements to law enforcement, because those

statements were not elicited by interrogation, and because Tripp’s

counsel was present during the remainder of the interview until 3:37

p.m.—the point at which the State concedes Tripp’s future

statements are inadmissible—we conclude that Tripp’s statements

prior to 3:37 p.m. were not obtained in violation of Miranda and

should not have been suppressed on that ground. See Doricien, 310

Ga. at 655.

Judgment affirmed in part and reversed in part. All the Justices concur.

39 LAGRUA, Justice, concurring.

I concur fully in the majority opinion’s conclusion that three of

Tripp’s custodial statements are properly and legally admissible at

trial. I write separately to express my grave concern about the

actions of law enforcement after 3:37 p.m. during Tripp’s custodial

interview on June 9, 2017.

Irrespective of what one might think of the origins of Miranda, 6 it

has been binding precedent for over 60 years, and its tenets have

been taught to every law enforcement officer in basic, mandated

training ever since. Yet, in this case, after 3:37 p.m. on June 9,

2017—the point at which the State concedes that Tripp’s future

statements are inadmissible—an investigator inexplicably and

repeatedly re-entered the interview room and engaged Tripp in

conversations that were clearly designed to elicit conversation and

potentially incriminating information. Not only was this conduct

inappropriate, but it is also an example of why so many citizens have

————————————————————— 6 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)

(1966). 40 lost faith in the legal system.

It is the duty of the entire legal system, of which law enforcement is

an integral part, to uphold the rule of law. It is my sincere hope that

this was a momentary lapse of judgment and not routine practice.

41