                             SECOND DIVISION
                               MILLER, P. J.,
                          ANDREWS and BROWN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                     June 11, 2018




In the Court of Appeals of Georgia
 A18A0069. IN THE INTEREST OF R. P., A CHILD

      ANDREWS, Judge.

      A delinquent petition filed in the Juvenile Court alleged that R. P. (the child)

committed delinquent acts of theft by receiving stolen property and obstruction of a

law enforcement officer. Prior to adjudication, the Juvenile Court considered pursuant

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

statements made by the child during custodial interrogation were voluntary and

admissible in evidence. The Court ruled that statements made by the child, which

supported allegations in the petition, were inadmissible as evidence because they

were not voluntary and were made in violation of the child’s right to remain silent

under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
Pursuant to OCGA § 5-7-1 (a) (4), the State appeals from the order excluding the

evidence. For the reasons that follow, we reverse.

      The video recording of the police detective’s custodial interrogation of the

thirteen-year-old child provided uncontradicted proof of the relevant facts. After

viewing the video, the Juvenile Court found the following facts: The police detective

read the child his rights under Miranda (including the right to remain silent), and then

asked the child, “Understanding what I just told you, do you want to speak to me?”

The child responded, “No.” The detective then said, “No? You said no, right?” And

the child immediately responded, “Yeah, I’ll speak to you.” The video shows that,

after the child said, “Yeah, I’ll speak to you,” the detective continued the interview

by questioning the child, and the child made the statements at issue. On these facts,

the Juvenile Court ruled that the child asserted his Miranda right to remain silent by

saying “No,” and that the detective’s duty to “scrupulously honor” the assertion of

this right required that the interview be immediately terminated at that point.

Accordingly, the Juvenile Court found that any statements made by the child after

saying “No” were involuntary and inadmissible.

             Whether a defendant waives his rights under Miranda v. Arizona,
      [supra], and makes a voluntary and knowing statement depends on the
      totality of the circumstances. In ruling on the admissibility of an

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      in-custody statement [pursuant to Jackson v. Denno, supra,] a trial court
      must determine whether a preponderance of the evidence demonstrates
      that the statement was made freely and voluntarily. Unless clearly
      erroneous, we accept the trial court’s factual findings and credibility
      determinations relating to the admissibility of the defendant’s statement.
      When controlling facts discernible from a videotape are not disputed,
      our standard of review is de novo.

Bunnell v. State, 292 Ga. 253, 255 (735 SE2d 281) (2013) (citations and punctuation

omitted); Humphreys v. State, 287 Ga. 63, 72-73 (694 SE2d 316) (2010).1

      “Once [Miranda] warnings have been given, the subsequent procedure is clear.

If the individual indicates in any manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at

473-474. As the Supreme Court has noted, the passage “the interrogation must cease”


      1
         When the statements at issue are made by a juvenile, to determine
admissibility pursuant to Jackson v. Denno, supra, the same basic test applies –
whether, under the totality of the circumstances, the statements were voluntarily made
after a knowing and voluntary waiver of constitutional rights. McKoon v. State, 266
Ga. 149, 150 (465 SE2d 272) (1996). But in applying the test to an accused juvenile,
the court considers the following additional factors: “the age of the accused; the
education of the accused; the knowledge of the accused as to the substance of the
charge and nature of his rights to consult with an attorney; whether the accused was
held incommunicado or allowed to consult with relatives or an attorney; whether the
accused was interrogated before or after formal charges had been filed; methods used
in interrogation; length of interrogation; whether the accused refused to voluntarily
give statements on prior occasions; and whether the accused repudiated an
extrajudicial statement at a later date.” Id. at 150 (citation and punctuation omitted).
The consideration of these additional factors is not at issue in this appeal.

                                           3
could be literally interpreted to mean that “any statement taken after the person

invokes his privilege [to remain silent] would mandate exclusion of the statement

from evidence “even if it were volunteered by the person in custody without any

further interrogation whatever.” Michigan v. Mosley, 423 U.S. 96, 101-102 (96 SCt

321, 46 LE2d 313) (1975). To avoid “absurd and unintended results” from a literal

interpretation of the language used in Miranda, the Supreme Court explained that

      a blanket prohibition against the taking of voluntary statements or a
      permanent immunity from further interrogation, regardless of the
      circumstances, would transform the Miranda safeguards into wholly
      irrational obstacles to legitimate police investigative activity, and
      deprive suspects of an opportunity to make informed and intelligent
      assessments of their interests. Clearly, therefore, neither this passage nor
      any other passage in the Miranda opinion can sensibly be read to create
      a per se proscription of indefinite duration upon any further questioning
      by any police officer on any subject, once the person in custody has
      indicated a desire to remain silent.

Mosley, 423 U.S. at 102-103. Rather, “the admissibility of statements obtained after

the person in custody has decided to remain silent depends under Miranda on whether

his ‘right to cut off questioning’ was ‘scrupulously honored’[by law enforcement

authorities.]” Mosley, 423 U.S. at 104; Miranda, 384 U.S. at 474, 479; Mack v. State,

296 Ga. 239, 243 (765 SE2d 896) (2014).




                                           4
      The child clearly invoked the Miranda right to remain silent by responding

“No” when the detective asked him if he wished to speak. The detective then

immediately stated, “No? You said no, right?” to which the child immediately

responded, “Yeah, I’ll speak to you.” When the child responded, “Yeah, I’ll speak to

you,” this was an equally clear statement that he changed his mind, waived the right

to remain silent, and was willing to answer the detective’s questions. The detective’s

statement, “No? You said no, right?” cannot be reasonably construed as a failure to

“scrupulously honor” the child’s initial assertion of the right to remain silent and to

“cut off questioning.” Rather, “No? You said no, right?” was a leading question by

the detective designed to elicit a confirmation from the child that he had asserted the

right to remain silent and cut off questioning. The detective’s statement was not

questioning or interrogation in this context because it was not “express questioning

or its functional equivalent” by “any words or actions on the part of police (other than

those normally attendant to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response from the suspect.” Rhode Island

v. Innis, 446 U.S. 291, 300-301 (100 SCt 1682, 64 LE2d 297) (1980). Moreover, the

detective was not attempting, subtly or otherwise, to coerce or badger the child into

changing his mind about his initial assertion of the right to remain silent. State v.

                                           5
Brown, 287 Ga. 473, 477-480 (697 SE2d 192) (2010). There was no constitutional

rule requiring the detective to immediately leave the child’s presence after he initially

asserted the right to remain silent. Id. at 478-480. Accordingly, “this is not a case . .

. where the police failed to honor a decision of a person in custody to cut off

questioning, either by refusing to discontinue the interrogation upon request or by

persisting in repeated efforts to wear down his resistance and make him change his

mind.” Mosley, 423 U.S. at 105-106.

      The facts show that, after the child was advised of his Miranda rights, he

expressed an initial intention to remain silent and cut off any questioning, then, prior

to any questioning or interrogation by the detective, immediately changed his mind

and initiated communications by “clearly evincing his intent not to remain silent.”

Larry v. State, 266 Ga. 284, 286 (466 SE2d 850) (1996). The totality of the

circumstances show that the State established by a preponderance of the evidence that

the child’s statements were made voluntarily after a knowing and voluntary waiver

of Miranda rights. The Juvenile Court erred by excluding the statements from

evidence.

      Judgment reversed. Miller, P. J., and Brown, J., concur.



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