                               FIRST DIVISION
                                 DOYLE, C. J.,
                         PHIPPS, P. J, and MERCIER, J.

                    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


                                                                      March 4, 2016




In the Court of Appeals of Georgia
 A15A2337. MAYS v. THE STATE.                                                 DO-088 C

      DOYLE, Chief Judge.

      Terry Jones Mays appeals the trial court’s order denying in part her motion to

suppress inculpatory statements she made to a Georgia Bureau of Investigation

(“GBI”) agent without receiving warnings pursuant to Miranda v. Arizona,1 as

applied by Howes v. Fields,2 during an allegedly custodial interrogation. The trial

court denied in part the motion to suppress on the ground that Mays was not in

custody at the time she made the inculpatory statements so the GBI agent was not




      1
          384 U.S. 436 (86 SCt 1602, 16 LEd2 694) (1966)
      2
          __ U. S. ___ (132 SCt 1181, 182 LEd2 17) (2012).
required to give a Miranda warning.3 On appeal, Mays contends that the trial court

erred by so finding. For the reasons that follow, we vacate in part the order denying

in part the motion to suppress and remand for further proceedings.

             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. This principle is a settled one, and [the Supreme]
      Court has identified three corollaries of the principle, which limit the
      scope of review in appeals from a grant or denial of a motion to suppress
      in which the trial court has made express findings of disputed facts.
      First, an appellate court generally must accept those findings unless they
      are clearly erroneous. Second, an appellate court must construe the
      evidentiary record in the light most favorable to the factual findings and
      judgment of the trial court. And third, an appellate court generally must
      limit its consideration of the disputed facts to those expressly found by
      the trial court.4




      3
        After granting in part and denying in part Mays’s motion to suppress, the trial
court issued a certificate of immediate review, and this Court granted Mays’s
application for interlocutory appeal.
      4
       (Footnotes and citations omitted.) Hughes v. State, 296 Ga. 744, 746 (1) (770
SE2d 636) (2015), citing Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148)
(2013). See also State v. Chulpayev, 296 Ga. 764, 772 n.5 (770 SE2d 808) (2015)
(applying the standard of review enunciated in Hughes, 296 Ga. at 746 (1), and
Brown, 293 Ga. at 803 (3) (b) (2) to a motion to suppress statements pursuant to
Miranda).

                                          2
             In some cases, some or all of the material facts may be
      undisputed, as where the defendant concedes a fact unhelpful to his
      cause in his motion to suppress, where the State admits a fact unhelpful
      to its case in connection with the motion, or where the State and
      defendant expressly stipulate to a fact. In such cases, an appellate court
      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.5


      So viewed, the record shows that Mays was on probation for reckless driving

and a moving violation, and her terms of probation included a requirement that she

complete 100 hours of community service by December 7, 2013. On December 4,

2013, however, Mays tested positive for alcohol during a screen and admitted to

consuming alcohol, which resulted in her confinement on December 6, 2013, for

violation of the terms of her probation. That same day, the State filed a petition to

revoke Mays’s probation on the grounds that, among other violations, (1) she failed

alcohol screens on three occasions and (2) she failed to complete 100 hours of

community service by the required date.




      5
       Hughes, 296 Ga. at 746 n.4. See also Mack v. State, 296 Ga. 239, 241-242
(765 SE2d 896) (2014).

                                            3
      Prior to being taken into custody, Mays had submitted a letter to probation

services from Marietta Chapel African Methodist Episcopal Church, signed by

Reverend Joseph Comeaux and dated November 30, 2013, stating that Mays had

completed 41 hours of community service at his organization. While Mays was in jail,

on December 10, 2013, Marietta City Councilman Anthony Coleman provided to the

municipal court for Mays’s revocation hearing a packet of documents containing a

second letter from Reverend Comeaux, post-dated December 15, 2013, claiming

therein that Mays had completed 59 hours of community service. Also on December

10, 2013, Reverend Comeaux delivered in person to probation services a third letter,

which was not on church letterhead and which purported to “document [his earlier]

telephone conversation” during which he claimed that Mays had completed 100 hours

of community service at his church.

      Probation services found suspicious the composition and timing of these letters,

which lead the Marietta Police Department to open an investigation into Coleman’s

involvement in any false report of Mays’s community service. Because the

councilman was involved, the police department contacted the GBI to conduct the

investigation. Thereafter, on December 13, 2013, while Mays was in jail awaiting her

revocation hearing, GBI agent Jan Roulain interviewed her.

                                          4
      Following the investigation, on August 14, 2014, Mays and Coleman were

indicted in the underlying case for one count of violating the Racketeer Influenced

and Corrupt Organizations Act6 and three counts of making false statements7 in

relation to the letters. Mays filed a motion to suppress the statements she made to

Roulain, arguing that Roulain’s interview constituted a custodial interrogation

requiring Miranda warnings prior to questioning.

      At the hearing on the motion to suppress, the State submitted into evidence an

audio recording of Roulain’s interview of Mays, and Mays submitted a transcript of

the interview. Both the audio and transcript show that Roulain began the interview

stating,

      Okay, today’s date is . . . Friday, December 13. The time is 3:23[, and]
      I’m interviewing Terry Mays at the [jail], . . . I’m talking to her about
      her th’ you you’ve been umm I don’t want to talk about your crime
      about what why you’re here now umm so just so you understand that
      [okay. W]e don’t want to talk about that[,] I just want to talk about
      community service. Did you have to do community service as part of
      your original . . . .”




      6
           OCGA § 16-14-4 (b).
      7
           OCGA § 16-10-20.

                                         5
      MAYS: probation.

Roulain provided no Miranda warnings, and she did not state to Roulain that she was

free to leave or to decline to answer the questions until over half-way through the

interview. The questions dealt largely with Mays’s community service probation

requirement, whether there was a required date by which she had to complete the

requirement, and when Mays had completed the requirement. Many of Mays’s

answers were non-responsive or dealt with ancillary personal matters, including her

divorce, bankruptcy, and home foreclosure, and she declined to discuss the individual

who had recommended that she complete her community service at the church.

      At the motion to suppress hearing, Roulain testified that while she could not

recall she believed Mays was not handcuffed or shackled during the interview, though

Mays was escorted to the room by officers; Roulain was unaware whether the door

behind Mays was locked, but she recalled that the room was not overly dark.

      The trial court found that Roulain interviewed Mays for about 23 minutes and

did not Mirandize Mays prior to the interview, which was conducted in a “fairly well-

lit” interview room about eight to ten feet square divided by a plexiglass window. The

room normally was reserved for attorney-client interactions. Officers escorted Mays

to and from the room and closed her into the room when they left her with Roulain.

                                          6
      In its order, the court found that the circumstances surrounding the questioning

did not rise to the level to constitute “in custody” for purposes of the Miranda

analysis because (1) the interrogation was brief; (2) “the room, while not luxurious

. . . , did not exert coercive pressure”; (3) the tone between the two was

conversational; (4) Roulain did not threaten or raise her voice at Mays; (5) Roulain

told Mays she was free to leave the interrogation; (6) Mays ended the questioning

herself; and (7) Mays refused to answer when questioned about the identity of the

person who recommended the church for performance of her community service,

demonstrating that she knew she could refuse to answer. Thus, the trial court denied

in part the motion to suppress with regard to the initial portion of the statement;

however, the court did find that Mays had invoked her right to an attorney midway

through the interview, and thus, granted the motion with regard to that portion of the

interview that took place after the invocation

      In a single enumeration of error, Mays argues the trial court erred by finding

that the statements she made to Roulain about the community service letters and her

purported completion of the hours while she was in jail on the probation revocation




                                          7
charge were made during a custodial interrogation subject to the Miranda-warning

requirement as applied in Howes v. Field.8

                A person is considered to be in custody and Miranda warnings are
       required when a person is (1) formally arrested or (2) restrained to the
       degree associated with a formal arrest. Unless a reasonable person in the
       suspect’s situation would perceive that [s]he was in custody, Miranda
       warnings are not necessary. Thus, the [relevant] inquiry is how a
       reasonable person in [Mays’s] position would perceive h[er] situation.9


       There is no bright-line rule, however, that after a defendant has been remanded

to jail or prison that she is always in custody for purposes of Miranda.10 The question



       8
            It is not clear from the record whether Mays had invoked her right to counsel
as to the petition for probation revocation, but it is unnecessary for our analysis in this
instance because we conclude that Mays was subjected to a custodial interrogation.
See, e.g., Mack, 296 Ga. at 245-246 (2) (b). Tellingly, near the end of the interview,
Roulain asks Mays, “[y]ou were just arrested for the drinking violation[,] is that
correct?” To which question Mays responds, apparently thinking that Roulain was
referring to her conviction and not the probation violation, “[i]t was reduced to
reckless driving.” Roulain then states, “okay, alright, okay so it didn’t have anything
. . . it is my understanding it didn’t have anything to do with your community service
otherwise I wouldn’t be asking you about it without reading you your rights because
I don’t want to violate any of your rights and you’re free to get up and walk out at any
given time . . . .”
       9
           (Citations omitted.) State v. Folsom, 285 Ga. 11, 12-13 (1) (673 SE2d 210)
(2009).
       10
            See Howes, __ U. S. at __ (II) (132 SCt at 1188-1189).

                                            8
is whether the “circumstances [of the interview] are thought generally to present a

serious danger of coercion.”11

      In determining whether a person is in custody in this sense, the initial
      step is to ascertain whether, in light of the objective circumstances of the
      interrogation, a reasonable person would have felt he or she was not at
      liberty to terminate the interrogation and leave. And in order to
      determine how a suspect would have gauged his freedom of movement,
      courts must examine all of the circumstances surrounding the
      interrogation. Relevant factors include the location of the questioning,
      statements made during the interview, the presence or absence of
      physical restraints during the questioning, . . . the release of the
      interviewee at the end of the questioning, and whether the relevant
      environment presents the same inherently coercive pressures as the type
      of station house questioning at issue in Miranda.12


      Here, the trial court found that the questioning was brief and non-threatening,

took place during the afternoon at approximately 3:00 p.m., in a room that was not

overly confining in which Roulain was separated from Mays by a glass partition. We

agree with the trial court that these factors militate in favor of finding that Mays was

not in custody. Nevertheless, taking the whole circumstances of the encounter into

      11
           Id. at __ (III) (A) (132 SCt at 1189).
      12
           (Citations and punctuation omitted.) Id. at __ (III) (A) (132 SCt at 1189-
1190).

                                             9
account, the subject of the questions and environment “present[ed] the same

inherently coercive pressures as the type of station house questioning at issue in

Miranda,” and thus, the trial court erred by concluding that Mays was not in custody

and by failing to suppress Mays’s entire statement.13

      Here, Mays had been in jail for one week after violating terms of her probation,

including her failure to complete community service, which was the main focus of

Roulain’s questions, and Mays was scheduled to appear before the court on the matter

less than one week after the questioning. As the U. S. Supreme Court explained in

Howes,

      [i]n the paradigmatic Miranda situation — a person is arrested in h[er]
      home or on the street and whisked to a police station for questioning —
      detention represents a sharp and ominous change, and the shock may
      give rise to coercive pressures. A person who is cut off from his normal
      life and companions, and abruptly transported from the street into a
      police-dominated atmosphere, may feel coerced into answering
      questions.14




      13
           Id. at __ (III) (A) (132 SCt at 1190).
      14
           (Citations and punctuation omitted.) Id.

                                            10
Mays was not serving a term in prison, and therefore, it was not her normal living

situation. Although the encounter with Roulain was brief, and it is not clear whether

Mays was shackled, handcuffed, or restrained, Roulain failed to tell Mays she was

free to leave until over 15 minutes of the 23-minute questioning. “Unambiguously

advising a defendant that [s]he is free to leave and is not in custody is a powerful

factor in the” determination of custody for Miranda purposes.15

      In Howes, the Supreme Court explained that compared to a prisoner sentenced

to a term of years, “a person [who] is arrested and taken to a station house [and]

questioned may be pressured to speak by the hope that, after doing so, he will be

allowed to leave and go home.”16 Mays’s situation is similar to that of an arrestee —

she had not been sentenced and was awaiting a hearing on the State’s petition to

revoke her probation, and therefore, the risk of coercive pressure was greater than that

of a prisoner. The State’s attempt to distinguish the questioning on the basis that

Roulain was investigating a falsified report of community service hours rather than

a failure to complete community service hours does not remove the coercion a

reasonable person in Mays’s situation would have felt being questioned about the

      15
           United State v. Brown, 441 F3d 1330, 1347 (II) (A) (11th Cir. 2006).
      16
           Howes, __ at (III) (A) (132 SCt at 1191).

                                          11
matter related to the State’s pending petition to revoke her probation so near her

hearing date.17

      Finally, the trial court’s findings (1) that Mays ended the questioning herself

and (2) that she declined to answer a question about another person’s identity do not

support its conclusion that she was not in custody because the standard is not a

subjective one. As the Georgia Supreme Court has explained, “the subjective views

of the interrogator and suspect are not dispositive of whether a person is in custody

for the purposes of Miranda warnings. . . . The relevant inquiry is how a reasonable

person in the suspect’s position would perceive his situation.”18 Based on the factors

outlined above, a reasonable person in Mays’s situation would not have perceived

that she was free to leave.




      17
         See id.; See also Folsom, 285 Ga. at 13 (1) (“whether the police had probable
cause to arrest and whether the defendant was the focus of the investigation are [also]
irrelevant considerations for Miranda purposes”).
      18
         (Citations and punctuation omitted.) Folsom, 285 Ga. at 12-13 (1) (“Unless
a reasonable person in the suspect’s situation would perceive that he was in custody,
Miranda warnings are not necessary. Thus, the relative inquiry is how a reasonable
person in [the defendant’s] position would perceive his situation.”) (citation omitted).

                                          12
      Accordingly, to the extent that the trial court denied Mays’s motion to suppress

her full statement to Roulain on the basis that she was not in custody, the order is

vacated and case remanded for entry of an order consistent with this opinion.

      Judgment vacated in part and case remanded. Phipps, P. J., and Mercier, J.,

concur.




                                         13
