Denzell Bowman v. State , 341 Ga. App. 784 ( 2017 )

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, 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 19, 2017
In the Court of Appeals of Georgia
A17A0379. BOWMAN v. THE STATE.
MCFADDEN, Presiding Judge.
We granted this interlocutory appeal to determine whether the trial court erred
in denying Denzell Bowman’s motion to suppress his recorded custodial statement.
He argues that admission of the statement would violate his Sixth Amendment right
to counsel. He waived his right to counsel during the interview that resulted in the
statement, but he argues that the waiver was ineffective because law enforcement
officers initiated the interview after Bowman’s right to counsel under the Sixth
Amendment had attached. The authority he cites for that proposition has been
overruled or disapproved. Bowman has offered no other argument that the waiver was
ineffective, and the evidence supported the trial court’s ruling that Bowman had
freely and voluntarily given the interview. So we affirm.
“In reviewing the trial court’s grant or denial of a motion to suppress, we will
not disturb [his] findings if there is any evidence to support them[.] The trial court’s
application of the law is subject to de novo review.” Johnson v. State, 336 Ga. App.
888 (785 SE2d 424) (2016) (citations and punctuation omitted). So viewed, the
record shows that Bowman was arrested pursuant to a warrant on a charge of armed
robbery. At his first appearance hearing before the magistrate court, Bowman did not
request a court-appointed attorney but stated that he had hired an attorney. (In fact,
Bowman did not retain the attorney in this case; the attorney had represented
Bowman in other matters.) Subsequently, law enforcement officers interviewed
Bowman at the jail. At the start of that interview, an officer recited Miranda warnings
to Bowman and had him sign a waiver of rights form. Bowman appeared to
understand what the officer was saying to him regarding his rights and was not
reluctant to speak with the officer. He did not ask to speak with an attorney at any
point during the interview, nor did he mention that he had hired an attorney.
Bowman moved to suppress his statement on Sixth Amendment grounds. In
denying the motion, the trial court found that Bowman “was appropriately Mirandized
by officers and thereafter gave an interview which [was] freely and voluntarily
given.”
2
The line of authority on which Bowman relies begins with the proposition that,
“absent a valid waiver, [a] defendant has the right to the presence of an attorney
during any interrogation occurring after the first formal charging proceeding, the
point at which the Sixth Amendment right to counsel initially attaches.” Moran v.
Burbine, 475 U. S. 412, 428 (III) (106 SCt 1135, 89 LE2d 410) (1986) (citations
omitted). See Housel v. State, 257 Ga. 115, 121 (1) (d) (355 SE2d 651) (1987). In
Michigan v. Jackson, 475 U. S. 625 (106 SCt 1404, 89 LE2d 631) (1986), the United
States Supreme Court held that “if police initiate interrogation after a defendant’s
assertion, at an arraignment or similar proceeding, of his [Sixth Amendment] right to
counsel, any waiver of the defendant’s right to counsel for that police-initiated
interrogation is invalid.” Id. at 636 (III). Citing Jackson and applying this rule, our
Supreme Court held in O’Kelley v. State, 278 Ga. 564 (604 SE2d 509) (2004), that
“the Sixth Amendment right to counsel, once attached, cannot be waived by the
defendant during questioning that is initiated by interrogators.” Id. at 568 (citation
omitted). Bownman relies on this bright-line rule to argue that his waiver was
ineffective because it occurred during police-initiated questioning after, he asserts,
his Sixth Amendment right to counsel had attached.
3
But the bright-line rule articulated in Jackson and O’Kelley is no longer good
law. The United States Supreme Court overruled Jackson in Montejo v. Louisiana,
556 U. S. 778, 797 (IV) (129 SCt 2079, 173 LE2d 955) (2009). Following suit, our
Supreme Court disapproved O’Kelley in Stinski v. State, 286 Ga. 839, 856 (61) n. 5
(691 SE2d 854) (2010). See also State v. Stone, 304 Ga. App. 695 & n. 9 (697 SE2d
852) (2010).
So as the law now stands under Montejo, even if we assume that Bowman’s
Sixth Amendment right to counsel had attached at the first appearance hearing, this
alone did not invalidate his waiver of that right during the police-initiated interview.
Had Bowman made a clear assertion of the right to counsel at the start of the police-
initiated interview, then no interview should have taken place. Montejo, supra, 556
U. S. at 797 (V). “Even if [Bowman] subsequently agreed to waive his rights, that
waiver would have been invalid had it followed an unequivocal election of the right.”
Id. (citation and punctuation omitted). But it is undisputed that Bowman did not assert
his right to counsel at any point during the interview. And Bowman has not argued
that his Sixth Amendment waiver was not knowing and voluntary on any other
ground. See id. at 798 (V) (discussing possibility that Sixth Amendment waiver could
be invalid for reasons other than attachment of Sixth Amendment right to counsel at
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a hearing that preceded a police-initiated interrogation). Moreover, the record
supports the trial court’s finding that Bowman freely and voluntarily gave his
statement in an interview after being informed of his right to an attorney. See
Bradshaw v. State, 300 Ga. 1, 3 (2) (792 SE2d 672) (2016).
Judgment affirmed. Branch and Bethel, JJ., concur.
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