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                                http://www.gaappeals.us/rules


                                                                      June 30, 2017




In the Court of Appeals of Georgia
 A15A0092. THE STATE v. ANDRADE.

      ANDREWS, Judge.

      Following a hearing, the trial court granted, in part, Aram Andrade’s motion

to suppress statements he made to a police officer. The State appeals, and we reverse.

      “When the facts material to a motion to suppress are disputed, it generally is

for the trial judge to resolve those disputes and determine the material facts.” Hughes

v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015). An appellate court must (1)

accept a trial court’s findings unless they are clearly erroneous, (2) construe the

evidentiary record in the light most favorable to the factual findings and judgment of

the trial court, and (3) limit its consideration of the disputed facts to those expressly

found by the trial court. Id. However, an appellate court “may also consider facts that

‘definitively can be ascertained exclusively by reference to evidence that is
uncontradicted and presents no questions of credibility,’ such as facts indisputably

discernible from a videotape.” State v. Allen, 298 Ga. 1, 2 (1) (a) (779 SE2d 248)

(2015); see also Hughes, 296 Ga. at 746 (1) n.5 (noting that “to the extent that

material facts could be discerned by appellate court from video recording, no

deference to findings of trial court was required”). And we review de novo the trial

court’s application of law to the undisputed facts. Vansant v. State, 264 Ga. 319, 320

(1) (443 SE2d 474) (1994).

      So viewed, the record shows that on October 11, 2012, 17-year-old Andrade

agreed to speak to an officer from the City of Pearson Police Department, and he

accompanied the officer to the local sheriff’s office. Beginning that night and

continuing into the early morning hours of October 12, Andrade gave an initial

interview, which was recorded. At the beginning of the initial interview, the officer

told Andrade that he was not under arrest, not required to answer any questions, and

free to leave at any time. Andrade agreed to speak with the officer.

      After the initial interview concluded, the officer learned of evidence that had

been discovered during a consent search of Andrade’s house and sought to interview

Andrade again. The second interview was also recorded, although the recording is of

poor quality. At the beginning of his second interview, Andrade was advised of his

                                          2
Miranda rights, both orally and in writing, and signed a waiver of those rights,

including his right to remain silent. Immediately thereafter, the officer asked Andrade

whether he wanted to make a statement. Andrade’s response is unintelligible on the

recording, and the officer, who evidently could not understand the response, stated,

“I’m sorry?” Andrade looked down, shook his head slightly, and mumbled something

that could have been “no,” but also could have been, “I don’t know.” At that point,

the officer stated: “Alright. We - we need to talk about this, alright? I - I’ve got some

things I - I’ve got some questions I need to ask you. Are you - are you going to talk

to me?” Andrade replied, “yeah,” and proceeded to speak with the officer. The

interview continued, and Andrade made incriminating statements.

      Andrade was subsequently indicted for three counts of rape (OCGA § 16-6-1

(a)) and one count of first-degree burglary (OCGA § 16-7-1 (b)). He filed a motion

to suppress the statements he made during both interviews. Following a hearing, the

trial court denied his motion to suppress as to the initial interview, but granted




                                           3
Andrade’s motion to suppress the second interview. The State appeals,1 contending

that the trial court erred in finding that Andrade invoked his right to remain silent.

      Undoubtedly, “an accused may end a custodial interrogation at any time by

invoking his constitutional right to remain silent.” Barnes v. State, 287 Ga. 423, 425

(2) (696 SE2d 629) (2010). To do so, however, the defendant “must unambiguously

and unequivocally express his desire to invoke that right.” Id. As explained by our

Supreme Court:

      There is good reason to require an accused who wants to invoke his or
      her right to remain silent to do so unambiguously. 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


      1
        This Court initially dismissed the State’s appeal as untimely under OCGA
§ 5-7-1 (a) (5). On review, the Supreme Court of Georgia reversed, holding that the
appeal was timely filed under OCGA § 5-7-1 (a) (4), and remanded the case to this
Court to consider the merits. State v. Andrade, 298 Ga. 464 (782 SE2d 665) (2016).

                                          4
      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 425-426.

      The trial court suppressed Andrade’s incriminating statements after finding that

Andrade “indicat[ed] on the video that he did not wish to speak with” the officer.

According to the trial court, the officer “stated to [Andrade] in negative question

form, words to the effect of - you don’t want to talk?,” to which Andrade “appeared

to respond with voice and head gestures in the negative.” The video recording,

however, belies these findings, which are thus clearly erroneous. The officer did not

say anything resembling, “you don’t want to talk?” Instead, he affirmatively asked

Andrade whether he would give a statement, and Andrade offered unintelligible

responses, until, on further clarification, he explicitly stated that he would speak with

the officer.

      The officer testified at the suppression hearing that Andrade never invoked his

right to remain silent or indicated that he did not wish to talk with police. And

Andrade admitted at the hearing that he agreed to speak with the officer. Although

he vaguely asserted that at some point during his two interviews, he told the officer

                                           5
that he “wasn’t going to tell him, talk to him,” he offered no testimony establishing

when he made this statement, the circumstances surrounding it, or whether it

constituted an unambiguous invocation of his right to remain silent.

      Simply put, the record reveals nothing that would “lead a reasonable police

officer to understand that [Andrade] was exercising his right to remain silent.”

Barnes, 287 Ga. at 425. Neither the video nor Andrade’s testimony shows that he

unambiguously and unequivocally invoked the right before making his incriminating

statements. Instead, he signed a waiver of rights and, when asked whether he would

make a statement, gave several unintelligible responses before stating, “yeah.” Thus,

Andrade did not unambiguously and unequivocally invoke his right to remain silent.

See id. at 426 (“defendant’s statement that he should not talk in the absence of ‘real

talk’ was insufficient to trigger the interrogating agent’s duty to cease questioning”);

Perez v. State, 283 Ga. 196, 200-201 (657 SE2d 846) (2008) (“If Perez had truly

intended to withdraw his waiver and invoke his right to remain silent, he would not

have acquiesced in responding to the officer’s further questioning.”). But see State

v. Nash, 279 Ga. 646, 648 (2) (619 SE2d 684) (2005) (trial court properly found that

defendant invoked his right to remain silent where defendant “shook his head in the



                                           6
negative when asked if he wanted to talk about the victim’s death and the questioning

agent took [defendant’s] response to be a refusal to talk about the incident”).

      Because there is no evidence that Andrade unambiguously and unequivocally

invoked his right to remain silent, the trial court erred in suppressing his statements

to police.

      Judgment reversed. Barnes, P. J., Ellington, P. J., Dillard, P. J., McFadden,

P. J., Ray, Branch, and McMillian, JJ., concur. Miller, P. J., dissents.




                                          7
 A15A0092. THE STATE v. ANDRADE.



      MILLER, Presiding Judge, dissenting.

      This case presents to us with an ambiguous video of Andrade’s interrogation

and, thus, this Court is bound to defer to the trial court’s factual determinations if

there is any evidence to support them. The question before us is not whether Andrade

unequivocally invoked his right to silence, but is instead whether the trial court could

have found that he had. In reversing the trial court, the majority opinion misapplies

our deferential standard of review and exceeds its authority by usurping the role of

the fact-finder. I therefore respectfully dissent.

             We are “a court of review” and lack jurisdiction to decide
      disputed issues of fact. Likewise, we cannot draw a different inference
      from the evidence or make a credibility determination contrary to the
      one made by the trial court. This is true even if we would have made a
      different conclusion had the members of this Court been the trial judge.


(Footnotes omitted.) State v. Ellison, 271 Ga. App. 898, 902 (3) (c) (611 SE2d 129)

(2005); see also Ga. Const. of 1983, Art. VI, Sec. V, Par. III. Thus, “[u]nless clearly

erroneous, a trial court’s findings as to factual determinations and credibility relating

to the admissibility of the defendant’s statement . . . will be upheld on appeal.”

(Citation and punctuation omitted.) Butler v. State, 292 Ga. 400, 403 (2) (738 SE2d

74) (2013).

      While the majority highlights the need for an “unambiguous” invocation of

one’s right to remain silent, that is not question before us. Faced with an ambiguous

record, this Court “cannot second-guess the trial court” but rather must “draw all

reasonably permissible inferences from the evidence to support the trial court’s

ruling.”1 See Ellison, supra, 271 Ga. App. at 902-903 (5) (emphasis supplied); see

also State v. Mohammed, 304 Ga. App. 230, 231-232 (695 SE2d 721) (2010) (where

a video recording is consistent with more than one factual finding, this Court defers

      1
        The two decisions primarily relied on by the majority add little to the analysis
here, as neither case involved the deference this Court must give to the trial court’s
factual findings on a motion to suppress. See Barnes v. State, 287 Ga. 423, 425 (2)
(696 SE2d 629) (2010); Perez v. State, 283 Ga. 196, 200-201 (657 SE2d 846) (2008).

                                           2
to the trial court’s interpretation of the recording). By basing its ruling on its

disagreement with the trial court about the content of the video, the majority fails to

follow precedent and oversteps its role by replacing the trial court as fact-finder.

       As conceded by the majority, the poor quality of the audiovisual recording in

this case leaves us with an ambiguous record to review.2 Andrade’s muted responses

to the officer’s questions admittedly are difficult to understand in the recording.

Although the trial court could have reached a different conclusion about the content

of the video, it did not do so, and our review of its interpretation of the video is

limited. Nevertheless, the majority essentially makes its own de novo factual finding

that “Andrade did not unambiguously and unequivocally invoke his right to remain

silent.” Supra, at 6.

       That is not the proper role of this Court. This Court rather is tasked with

answering a narrow question: viewing the totality of the circumstances in the light

most favorable to the challenged ruling, was there any evidence to support the trial

court’s finding? See State v. Colvard, 296 Ga. 381, 382 (1) (768 SE2d 473) (2015);

Butler, supra, 292 Ga. at 403 (2).


       2
        Notwithstanding the majority’s passing suggestion to the contrary, the critical
facts in this case are not “indisputably discernible” from the audiovisual recording.
See supra, at 2.

                                          3
      With the proper inquiry identified, the case is simple and the answer is clear:

there is some evidence to support the trial court’s finding. Notably, both Andrade and

the officer testified during the suppression hearing, and the trial court was able to

assess their credibility in reaching its factual findings. See Butler, supra, 292 Ga. at

403 (2). As an appellate court, we do not have the benefit of seeing and hearing these

witnesses and, thus, we are bound to accept the trial court’s credibility findings. See

id.

      Although my esteemed colleagues are no doubt aware of the different roles of

the trial and appellate courts, they have conflated those roles in this case. Instead of

deferring to the trial court’s factual findings on an ambiguous record, they have

impermissibly substituted their own interpretation of the video for that of the trial

court. Giving proper deference to the trial court, I would affirm the judgment.




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