State v. Lee - Murder Case Statements Admitted

In th e Supr eme C ourt o f Georg ia Decided: Ma rch 3, 2026 S25A108 7. THE STATE v. LEE. C O LVIN, Jus tice. Mich ael Don nell Lee h as been charg ed w ith m urder and rela ted offense s in connectio n with the shoot ing death of Aa ron James G rant. 1 The re cord i ndi cate s that L ee was arres ted sh ortl y afte r the shoot ing, which oc curred ar ound 2:15 in t he morning on June 15, 202 2. Sev eral hours late r, he m ad e incri min atin g statem ents to Detecti ve Ch arl es Sen dli ng du rin g a cu stodi al interr ogati on at the A tlan ta Poli ce D epartm ent. The Stat e fil ed a pret rial mo tion in lim ine, se eking t o ad mit Lee’ s incriminat ing statem ents in its case - in - chief. But t he trial cour t denied tha t 1 On September 12, 202 2, a Fulton County grand jury returned an indictment against Lee, c hargin g him with malice murder (Count 1), felony murder (Counts 2 a nd 3), aggrav ated assault wi th a deadly weapon (Count 4), possession of a firearm d uring the co mmission of a felony (Co unt 5), and possession of a firea rm by a convict ed felon (Count 6). NOTICE: T his opini on is subje ct to mo dificat ion res ultin g from motion s for re consi derat ion unde r Supre me C ourt Rule 27, the Cour t’s reco nsiderati on, and ed itorial r evisions by the Report er of Decis ions. Th e version of the opinion publis hed in the Advance Sheets fo r the Geor gia Report s, desi gnated as the “Final Copy,” wi ll repla ce any prior version on the Court’s websi te and docket. A bound volu me of the Georgi a Reports will con tain the final a nd officia l text of t he opinio n.

2 motio n. As rel eva nt here, the t rial cour t ruled th at L ee’s statements were ina dmissib le under Miranda v. Ari zona, 384 US 436 (1966), and Edwards v. Ariz ona, 451 U S 47 7 (1981), b ecaus e Le e had invoke d his co nstitutio nal right s to counsel an d to re main sile nt and did no t reinitia te communic atio n with Detec tive Se ndling befor e the detecti ve i nter rogated hi m. And the trial cour t ruled t hat Lee’s statem ents w ere also i nadm issi ble as a m att er of du e pro cess becaus e they w ere involuntary. The St ate filed this int e rlocut ory appeal chall engi ng th e trial cou rt’ s sup pressi on of L ee’s st atem ents. 2 As expl ain ed bel ow, w e affi rm the trial court ’s supp ression of Lee’s statem ents und er Miranda and E dwards, but we revers e the tri al court’s supp ress ion of Lee ’s s tatemen ts un der du e proc ess princ iples. 1. During a he aring on t he State’ s motio n in limine, t he State admitte d in to ev idence a v ide o rec ordi ng of Lee’s custo dial 2 See OCGA § 5 -7- 1(a)(4) (granting the State a right to appeal “[f]rom an order, decision, or judgment suppressing or excluding ev idence illeg ally seized... in the case of motions made a nd ruled upon prior to t he impaneling of a jury or the defendant bei ng put in jeopar dy, whichever occurs first”).

3 inter view. As relevan t he re, the rec ording sho wed the fo llowing. Detec tive Se ndling ask ed Lee sever al qu estion s a bout Lee ’s educ ation le vel and flue ncy wit h the English langu age, in response to whic h Lee indic ated tha t he had a t hird - grade educat ion, th at he could understa nd and spea k the English langua ge but could not write in English, and that he would unde rsta nd something if the detecti ve read it t o him. Detect ive Sendling procee ded t o read Lee his Mi randa righ ts, and L ee con fi rmed that h e u n derstoo d th o se rights. Detective Send ling the n as ked if L ee “w ish [ed] t o speak with [him] a t this t ime wit hout a la wyer,” and Lee respon ded in the negat ive. Seeki ng clari ficati on, t he dete ctiv e ask ed, “ So y ou d on’t want to tal k?” And Lee a nswered aga in in the nega tive. The detecti ve th en ackn owled ged Le e’s an swer, sayi ng, “OK. ” Lee then asked Detect ive Sendling what he w as cha rged w ith. After res pondi ng that L ee was “goi ng to be charg ed with murd er a nd aggrav ated as sau lt,” the dete ctiv e go t up from hi s chai r, s aid h e woul d com e back af ter doing som e pap erw ork, an d asked Lee if h e wante d anything t o drink. Lee resp onded that he wa nted s ome chi ps

4 and a Gatorad e, and the det ectiv e th en lef t the roo m. A few minutes lat er, Detec tive Se ndling re turned to the interv iew ro om a nd gav e Lee a ba g of ch ips an d a G atorad e. At th at point, L ee said, “H ey,” D etecti ve S endl in g resp onde d, “Y es, si r,” an d Lee as ked, “Why am I charg ed w it h mu rder, m an?” In r esponse, Detec tive Se ndling as ked, “Why ar e you charg ed w it h mu rder? Why do yo u think?” Befo re givi ng Lee a ch an ce to res pond, D ete ctive Sendl ing said, “R em ember you d on ’t w ant t o talk to me, s o.” Lee and Detecti ve Sen dli ng then stared a t each oth er fo r sever al sec on ds befo re Detect ive Sendling a sked again, “So why d o you think yo u were charg ed? ” L ee re mained silent for s everal more s econ ds, and Detec tive S endling then turne d and moved to ward the d oor while saying, “If y ou tell me yo u want to t alk to me, I’ll talk to yo u.” B ut b efore th e det ect ive ex ited th rou gh th e open do or, L ee respond ed, “Let’s talk, man.” Detect ive Sendling then asked, “Y ou w ant to t alk?” And L ee resp onded, “Yeah.” Detective Send ling then br iefly le ft the room befo re retu rnin g with a notep ad and askin g Lee, “What do y ou want to talk ab out?” Whe n Lee, who wa s eating c hips, did not

5 promp tly res pond, Det ective S endling asked, “How did you r lip get busted?” Le e res ponded that he f ell. The d etectiv e then ask ed Lee a series of ques tions abou t the crim e, which elicited seve ral incri minatin g statements over the course of an inte rview th at lasted less t han 20 minut es. 2. On app eal, t he State does not di spute th e trial court ’s dete rminat ion that Lee invoke d his constit utiona l rights to counse l and t o si lence, and that Detecti ve Sendli ng was t her efore requ ired to scru pulousl y hon or Lee’s inv ocation by ceasing th e interroga t io n. The St ate argues o nly that t he trial court erre d in conc luding tha t Lee did not reinitia te co mmunicatio n with the detective by asking why he was ch arged wit h mu rder. We revi ew that ruli ng de novo becaus e the control ling fac ts here, which w ere as cert ain able from the re cording of t he in terview al one, are undis puted, and we revie w de novo the tri al court ’ s applica tion of the l aw to th ose fac ts. 3 Se e, 3 Although Detective Sendling t estified about how th e interview unfolded, his testimony was consiste nt with th e recording, and there is no dispute about the sequence of events or what wor ds wer e said during the interview. Furth er, the trial court did not make any credibility findin gs about

6 e.g., State v. Le verette, 320 Ga. 8 06, 809 – 10 (2025); Quintana r v. State, 322 G a. 61, 65 – 66 (202 5). As explained below, we conclu de that th e trial c ourt’s dete rminatio n was not erroneous. Pursua nt to the Unite d State s Supreme Co urt’s dec ision in Mira nda, a def endant who is in cust ody “ must be warned pri or t o any que stioning ” th at he has c ertain rig hts, inc luding “ the right to rema in silent ” a nd “ the ri ght to th e presen ce of an attorney.” St ate v. Tripp, 32 0 Ga. 536, 5 48 (2024) (quot ing Miranda, 384 US at 479). “To us e a defen dan t’s cus todial statem ents in its case - in - chief, the State m ust p rove by a p reponderan ce of th e eviden ce,” base d on “the total ity of the circum stances s urroundi ng the i n terrogation,” that “the defenda nt was advis ed of these rights a nd that he volunt arily, knowingl y, and intellige ntly waiv ed t hem.” Id. (quotat ion marks omitted). In Edwards, the Un ited State s Suprem e Court est ablish ed “ a Detective Sendling’s testimony or app ear to rely in any way on his testimony when describing ho w the interview unfolded or when rulin g on the Mirand a issue. Ins tead, the court relied o n and described what “th e video recording of the interview” show ed.

7 prophyl actic rul e, desig ned to protec t an accu sed in police cu stody from bei ng badge red by poli ce off ice rs” after in voking his Miranda rights. Sta te v. Pauldo, 309 Ga. 130, 13 3 (20 20) (quotation m arks omitted). As we h ave explai ned, purs uant t o Edwa rds, if “a s uspect invoke s the right t o silence or the right t o counsel, or both,” “po lice must scr upulous ly honor t he suspect’ s right[s],” meaning at a minimum tha t the po lice “ may n ot … subj ect [] [the suspe ct] to furt her quest ioning ” t hat “ the police should kn o w [is ] reasona bly likely t o elicit an incr iminating r espo nse. ” Id. at 133 – 34 (clean ed up). But if “ the s uspect initiate s the c onversat ion rega rding his case, no viola tion of the Edwar ds rule o ccurs.” I d. “In e xamining the concep t of ‘initia tion’ unde r Edwards,” the Unite d States Supreme C ourt has “dis tinguished betwe en inquir ies ‘relati ng to rout ine i ncidents of the custodi al relati onship, ’ such as a reques t fo r a d rink of water, and thos e ‘rep resen tin g a desire on the part of an accuse d to open up a more gen e ra lized d iscussio n relating dire ctly or indir ectly to the inves tigatio n. ’” Mack v. State, 296 Ga. 239, 2 46 (20 14) (p unctuation omitted) (quoting O regon v. Bradshaw,

8 462 US 1039, 1045 (1 983) (plurality opinio n)). Thus, “init iation” requir es “not on ly that the defend ant sp eak up firs t” af ter havin g pre viously invo ked his rights, “but also tha t his words ref lect” a “wil lingness and a desi re for a general ized dis cus sion a bout the invest igatio n.” Pauldo, 309 Ga. at 135, 144 (quotation mark s omitted). See Mack, 296 G a. at 246 (“‘ [I] nitiation ’ requires not on ly that th e def enda nt speak up firs t but als o that his words r eflect a desir e to disc uss the inves tigat ion at ha nd.”). (a) On a ppeal, t he Stat e argu es that D etective Sendlin g’s interr ogation of Lee was permissi ble unde r Edwards beca use, a fter invoking his Mir anda rights, Lee reinit iate d communica tion wit h the det ective. Sp ecificall y, the State contends th at Lee rei niti ated commu nicati on becaus e, after ask ing th e detective “what” h e was being c harge d with and be ing informe d that he was c harged with murder, Lee ask ed th e detecti ve “ why” he w as bein g charge d with that crim e. To su pport its arg umen t, the State rel ies on ou r decision in Pauldo. But the S tate’s relianc e on that case is misp laced. The

9 State’ s confusi on about Pauldo appears t o stem fro m the fact th at, in th at case, we consider ed two se parate parts of an inter action t hat each i ncluded a questi on from the defen dant abo ut “why” h e was being arrest ed. See Pauldo, 30 9 Ga. at 132, 143 – 44. The S tate focus es on the l atter pa rt of the exchange, which we held did reinit iate communica tion. See id. a t 1 43 – 44. But, as expla ined below, th e inter action at is sue h ere is similar to the first part of th e intera ction we a ddress ed in Pauldo, which we he ld di d not r einitia te comm unicat ion. See i d. at 14 3. In Paul do, we expla ined tha t “initia tion,” under Edwa rds, requir es that a defen dant “spea k up f irst ” w ith “ wor ds [that] refle ct a desir e to disc uss the inve stigat ion at hand.” Pauldo, 309 Ga. at 135 (quot ation m arks omi tted). And w e contr asted “ clarifyi ng questi ons about [one’s ] arr est,” wh ich m erely seek inform ation from o fficers, with wor ds sho wing that t he defend ant in f act has “a willingne ss and a d esire” to e ngage in “a ge neralize d disc ussion abo ut the invest igatio n.” Id. a t 143 – 44 (quot ation ma rks omi tt ed). Turn ing to the facts of the case, Pauldo e xplained that, after

10 the de fendant invo ked his rig ht to remain s ilent and the d etective had a bri ef excha nge w ith th e defendant ab out doing a “gun residue” test an d takin g the de fendant’s clothes, two par ts of an int eractio n occurr ed in sequ ence. Pauldo, 309 Ga. at 131 – 32, 143 – 44. A nd w e separa tely anal yzed wheth er the def endant had rein itiated commu nicati on duri ng each par t of the int eract ion. See id. at 143 – 44. Pauldo descri bed the fi rst part of the in teraction as fol lows: [The d efend ant] ask ed again wh ether he w as being arrest ed, and the detective confirmed th at he was, de spite having t old [t he defenda nt] minut es befor e that he wa s not bei ng arres ted. Af ter [the defendan t] asked w hat he was bein g arreste d for, the detectiv e resp onded, “Hom icide.” [The defenda nt] as ked why, and t he detect ive explai ned that th ey had talk ed to “a lot of pe ople,” and they ha d identif ied him as the shoot er. Pauldo, 309 G a. at 132. We concl uded th at t his part of the inter actio n did not constit ute “a reinitia tion of comm unicatio n by [the d efendant]” because, in asking “w hat” he w as bein g arrested f or and “wh y” he was being arrested f or that cri me, the de fend ant wa s mere ly “ask[ing] clarif ying ques tions abo ut his arres t ” to obtai n

11 infor matio n from the offic er, not “evinc [ing] a willing ness a nd a desire ” to engag e in “a gen eralized di scussi on about the inv estigation. ” Id. at 132, 143 – 44 (quota tion m arks omi tted). We then t urned to a second p art of the interaction, which imm ediately followed the fi rst, des cribing i t as foll ows: [The d efenda nt] the n star ted talking again, saying, “Sir,” but the de tecti ve in terrupt ed to say: “You’v e alre ady told me that y ou wanted you r lawyer here. Th ey told you not to tal k to m e. No w, if you w ant to tal k to m e, that’s up to you.” [The defe ndant] re plied that he did not under stand why he was bei ng arrest ed and th at he “did n ot do thi s,” askin g again, “Wh y am I being arrested?” I n resp onse, the detecti ve asked, “Ray, do you w ant to talk to me? ” [The defe ndant] replied, “I me an, I will t alk to you. I’m sitting here; I’m talk ing to yo u now. I’m telling you, like, wh y .... ” The det ectiv e again interjecte d, “Do you want t o talk to me abo ut this incid ent?” [The defenda nt] rep lied, “I will talk to you about this incide nt, sir[,] ” first s tating that he was n ot the re, then c orrectin g hi mself to say th at he was ther e, but assert ing that he wa s not respo nsible for the shooti ng. [The def endant] th en asked the d etectiv e, “What [d o] you want t o know?” At that poin t, the detectiv e stated that if [the def endant] wanted to talk to the d etective, he nee ded to si gn the waiv er - of - ri ghts form. Th e detective ag ain asked [the defen dant], “So you’r e chang ing your mind, and you want to talk to me?” [The defend ant] re plied, “I will t alk to yo u, yeah, t o benefit me, anythi ng .... I don ’t want to b e arrest ed for homici de.”

12 Pauldo, 309 G a. at 132. We concl uded th at t his part of the intera ction, by con trast with the fi rst, “rein itiated con tact.” Id. a t 144. As we explai ned, this w as because, by “ma[kin g] statement s abo ut the crime s being inve stigate d” (includ ing that “he did not under stand why he wa s being arrest ed” and t hat “he did n ot do this”) and ask ing again “why he was being arreste d” — “ even afte r being remind ed tha t he had invo ked his r ights ” — the d efenda nt had “evin ced a will ingness an d a des ire for a g eneral ized di sc ussion about t he i nvesti gation.” Id. a t 13 2, 14 4 (quo tation m arks omi tted). We further noted t hat t he dete ctive ha d “scr upulously hono r[ed]” the defen dant’ s righ ts becaus e, in response to the de fendant’ s “contin ued effor ts to di scuss t he c ase [that] made it u nclear wh ether he wishe d to ta lk to the det ective or n ot,” the d etectiv e did not interr ogate the defend ant about the crim e but only made “reason able” “ attempt s to clarify” the “ambig uity” by asking the defen dant “i f he wanted t o talk.” Id. at 143 – 44. An d we “ f[o und] it signific ant ” that, after being aske d for clari ficati on about whe ther

13 he want ed to talk abo ut “the incid ent,” the defenda nt expl ained th at he was w illin g to do so “be cause he did not wan t to be arr ested.” Id. at 143. Here, Lee’s int erac tion wit h Detect ive Send ling was s imilar to the firs t pa rt of the inter actio n in Pauldo di scussed ab ove, whi ch we held d id not re initiat e communica tion. See Pauldo, 309 Ga. at 143. Just as the defe ndant in Paul do aske d “what ” he was b eing ar reste d for an d “why,” L ee asked “w hat” h e was being charged w ith and “why.” Id. at 13 2, 143. As w e explai ned in Pauldo, inq uiries like these are merel y “clari fying question s abou t [one’s] arrest ” that s eek inform ation fr om an officer. Id. at 143. S uch question s, standi ng alone, d o not “evi nce[]” a defe ndant’s “ willingnes s” and “ desire” to part icipate in “a gen eralized d iscu ssion ab out the i nvesti gation.” I d. at 143 – 44 (quo tation mar ks omitted). And here, nothing ab out the cont ext in which Le e aske d “what” he wa s charged with a nd “why” creat ed any ambigu ity abou t wheth er he wa s signaling a new desire

14 to per sonally “discuss the inve stiga tion at hand.” 4 Id. at 1 35. Lee did n ot expre ss any d esire to discuss “the incid ent” for his own benefit or claim t hat he did n ot “do this [crime] ” — s tatements that, in t he second part of the inte raction a t issue in Pauldo, ind icated a willing ness t o have “ a gener alized discussion a bout the invest igatio n.” Id. at 13 2, 14 3– 44 (quotation mark s omitted). Indee d, Lee did not say anything at a ll after aski ng “what” he was cha rged with and “why.” Thus, as Pauldo m akes cle ar, L ee’s “clar ifying questi ons ab out [his ] arres t, ” which sho wed o nly that he wished for the d etecti ve t o provid e him inf ormat ion, did not constitut e “ a reinit iatio n of co mmunicat ion ” or cre ate any “ ambi guity” about wheth er he want ed to pa rticipa te in a more gen eral ized discu ssion of t he inve stigat ion. Id. at 143 – 44. Acc ordingl y, the Stat e ’ s argum ent on appeal as to wh y the trial court er red in concl uding 4 Although the dissenting opin ion emph asizes that Lee caug ht Detective Sendling’s attention by saying, “Hey,” before Lee asked “why ” he was charged, the dissenting opinion does not expl ain why the word “ Hey” or the act of catching the detec tive’s at tention showe d that Lee ha d a de sire to engage i n a generalized discussi on of the investigation, as opposed to a desire to ask a clarifying question about his arres t.

15 that Lee did not reinitiate communic atio n fails. 5 (b) A dvancing an argu ment on behalf o f the St ate that the State d oes not i tself raise, t he d issent ing op inion appears to argu e 5 The dissenting opinion doe s not argue that we should o verrule our decision in Pauldo, which, as d escribed above, he ld on analogous fact s that a defendant did not r einitiate communic ation simply b y asking “what” he was arrested for and “why.” Co mpare Pauldo, 309 Ga. at 132, 14 3 (holdin g that t he defendant’s questio ns about “what” he was being arrested for and “why” he w as being arrested for t hat crime did not reinitiate commu nication, where, at th at point in the interaction, there was no o ther evidence that t he defendant was exp ressing a desi re to engage in a generalized discu ssion about the investigation), with id. at 144 (holding that, in a later interaction, t he defendant “reiniti ated con tact when he asked question s about why he was being arrested and made statements about the cr imes being investigated even after being remind ed that he ha d invoked his righ ts ” (emphasis ad ded)). Instead, the dissenting opinion att empts to distinguish P auldo. Specifically, the dissenting o pinion ap pears to argue that, in cont ext, Lee’s qu estion ab out “why” he was ch arged coul d reasonably have been inter preted as signaling a desire to engage in a generaliz ed discussion of the inve stigation because Lee asked the question more than two m inutes (approxi mately two minutes a nd 30 seconds) after recei ving an answ er to his quest ion about “ what” he wa s being charged with. The di ssenting opinion ap pears to contend t hat, because Lee ha d already asked one clarifying que stion, and because ther e was a delay between Lee’s two questi ons, Lee’s follow-up que stion about “why ” he was charged was not a necessary inq uiry or clarifyin g question about his arrest. It is uncle ar, however, why the dissenting o pinion thi nks receiving an answer to a que stion about “what” one is being charged w ith makes a questi on about “why” one is being charged unnecessary. Tho se questions obviously seek different types of information about one’s arrest. Nor is it clear why the dissenting opinio n thinks that Lee’s de lay in asking “why ” he was charged changed the na ture of the question or otherwise sign aled a desire to hav e a generalized discussio n about the investigat ion — parti cularly when the majority of the delay (all but approximately 12 seconds) was a ttributable to the detective initiatin g a discussion with L ee about what Lee w anted to drink and then b eing absent from room.

16 that the enti re sequ ence of even ts c ulminating in Le e saying, “ Let’ s talk, man,” showed that Lee reinitiat ed co mmunicatio n with Detec tive Se ndling. In p articula r, the disse nting opinio n foc uses o n the por tion o f the excha nge beginning w ith Lee saying, “ He y …. W hy am I ch arged w ith murder, man? ” A s we h ave expl ained, how ever, “a susp ect wil l be cons idered to h ave ‘initi ated’ renew ed conta ct with law en forcement authoriti es, so as to permi t furthe r interroga tion, only if the ren ewed con tact by the sus pect was not th e produc t of past police int errog ation cond ucted in v iolat ion of the suspect ’ s pre viously - inv oked r ights.” Scott v. State, 317 G a. 799, 8 04 (2023) (quot ation m arks omi tted). Determi ning w hether a suspe ct’s renewe d contact i s the produ ct of unlawful past poli ce interrog ation requir es conside ration of the enti re sequen ce of events leading up to the susp ect ’ s renewal of con tact, incl uding bu t not li mited to the l apse of time betwee n any unlawful int erro gation a nd the rene wed cont act, any cha nge in loca tion or in the ident ity of the office rs invol ved from one interv iew to th e next, an d any br eak in cus tody bet ween interview s. Russe ll v. Sta te, 309 Ga. 7 72, 778 (20 20) (cleaned up). And here, as

17 explai ned below, Det ective Se ndling’s unla wful interroga tion — which the d issent ing opinio n do wnplays and disreg ards — preci pitat ed L ee’s ultimat e agre ement to talk. F or that reas on, the disse nting op inion errs to the exte nt that it conclude s that Lee reinit iate d co ntact betwee n the time he sa id, “He y,” and the tim e he said, “L et’s tal k, man.” As set ou t above, and as pa rticula rly r eleva nt to the dissent ing opinio n, th e following exchange oc curred over an approx imately 20 - secon d peri od: Lee: Hey. Detec tive Se ndling: Ye s, sir. Lee: Wh y am I charg ed with murd er, man? Detec tive Se ndling: Why are you charged w ith murder? Why do you thin k? Remem ber you don ’t want to t alk to me, s o. [Lee and Detective S endling stare at each oth er in s ilence for sev eral secon ds.] Detec tive Se ndling: So why do y ou think you were charge d? [Lee remains silent fo r seve ral secon ds. Detective

18 Send ling then turns and m oves toward the door as he say s the fo llowing. ] Detec tive Se ndling: If you tell m e you want to talk to me, I’ll t alk to yo u. Lee: Let’s t alk, man. As the dissenting opinion ac knowledge s, becaus e Lee h ad invoke d his Mir anda r ights, Det ective S endling wa s not pe rmitted to in terro gate Lee unles s Lee f irst re initiat ed c ommunicat ion. And as expl ained abo ve, Lee d id not r einitiat e co mmunica tion simp ly by saying “Hey” a nd “ Why am I ch arged wit h mu rder, man? ” As a res ult, Dete ctive Send ling was no t permitt ed to inte rrogat e Lee at that point. Never theless, the abov e exchan ge sh ows tha t Det ecti ve Send ling’s imm ediate respon se to Lee’ s question abou t “why” he w as charge d was to un lawfull y int errogate L ee. Cf. Pauldo, 309 Ga. at 143 – 44 (hold ing that the detec tive had scr upulously hono red the defen dant’ s righ ts becaus e the det ectiv e had on ly ask ed “if [the defen dant] w anted to talk” and did not “ ask [ ] [the d efenda nt] an y questi ons ab out the cas e ” unt il afte r he had fully r esolve d the ambig uity abo ut whet her the defend ant wante d to talk).

19 Spe cifically, Detect ive Sendling twice asked Lee why Lee tho ught he had be en cha rged, a question th at clearl y cons tituted “ interro gation” becaus e any reasonabl e offi cer w ould know the question wa s “rea sonably likely to elicit an incrimina ting re spons e. ” Russell, 30 9 Ga. at 777 (quo tation marks omi tted). These q uestions were not respon sive to Lee’s ques tion about “w hy” h e was ch arged. An d t he fact that D etective S endling stared at Lee i n silence f or s everal seconds before he posed the ques tion a se cond tim e showed that th e detecti ve’s attem pt to el icit i ncrim inating sta tements from Lee wa s both cons id ered and deliber ate. Then, Detec tive Se ndling f urther goaded L ee into respo nding: the detective not on ly encouraged L ee to res pond to t he detect ive’s question b y saying, “If yo u tell me you want t o talk t o me, I ’ll talk to you,” but als o made th at s tatement while m oving t owar d the exit, which created time press ure for Le e to respon d quickl y before the det ective coul d leave the roo m. S ee Taylor v. Stat e, 303 G a. 225, 23 1 (2018) (ackno wledging that “ any words or action s by l aw enfor cement cal culated to elicit an incrimina ting r espo nse,” including wo rds or actions t hat “ a sk,

20 encour age, or e ngag e [a defen dant] to talk about [th e crime ], ” consti tut e “inter rogation, or its func tiona l equivalent ”). The detecti ve’s interr ogation an d mov e towa rd the ex it while ver bally encour aging L ee to respon d had an effect on Lee, wh o promp tly agreed to talk a nd the n made incrim inating st ate ments in res ponse to f urther ques tioning. 6 Consi dering the ent ire se quence of events, w e conclu de that Lee’s agreem ent t o speak to Dete ctive Sen dlin g “ was the pro duct o f imprope r interr ogation rath er than ” Lee’s “ ow n consi dered deliber ation. ” Mack, 29 6 Ga. at 2 50. A to tal of three minutes elapsed between Le e invoking his Mira nda right s and s aying, “Le t’s ta lk, man.” And the recordin g of th e interview does not reveal an ything that coul d hav e prompted Lee to change his mind ab out talking t o the dete ctive befor e the 20 - second ex change in wh ich Detectiv e Send ling in terrogated Lee. Furthe r, in the 20 sec onds th at 6 The d issenting opi nion suggests that Detectiv e Sendling’s move ment toward the door w as a mere a ttempt t o scrupulously hon or Lee’s rights by leaving him alone. Under the circumstances, how ever, the detective ’s conduct could just as easily be interpreted as an interr ogation t actic designed to elicit an incriminating re sponse from Le e.

21 imm ediately preceded Le e’s agree ment to talk, Detec tive Se ndling twice a sked Lee a question that cle arly qua lified as “ interr ogation.” As the dis senting opinion no tes, afte r asking Lee the first time why Lee thou ght he had b een char ged, Detec tive Sendling r eminde d Lee t hat he had said he did not want to talk. But t here i s no evid ence that the remind er had any im pact on L ee’s later deci sion to tal k, as Lee did not react to th at remi nder and main tained h is sil ence. It wa s only after the d etective as ked th e questi on a secon d time and ma de a mov e to w ard t he doo r, encoura ging Lee to re spond to the interr ogation b efore the detectiv e had ti me t o exit th e room, th at Lee relent ed and ag reed to tal k. Given that “[t] here w as no bre ak i n custody ” or “ change in locati on or iden tity of the i nterrogat ing offi cer ” betw een Lee invoking his Mir anda rights an d agreeing to speak to the dete ctive, and g iven that “ a v ery sho rt lapse i n time ” of mer e seconds sep arated the unla wful int erro gation from Lee’s agreemen t to speak, t he record shows that the detect ive’s unla wful int erroga tion preci pitat ed Le e’s choice to discuss the inve stiga tion with t he

22 detecti ve. M ack, 296 Ga. at 2 49 – 50. Acc ordingly, Lee ’s agreem ent to talk “ was not an effectiv e ‘ initiat ion ’ under Edwards,” and t he statem ents he made i n respon se to furth er in terrog ation mu st be suppres sed. I d. (holding t hat t he defenda nt’s “ reques t to speak with [a det ective],” which “was made just min utes af ter” he h ad b een imprope rly inter rogated, “ was the p roduct o f impro per interr ogation ” beca use “[t] h ere wa s no break i n cust ody, a very sh ort lapse in time, and no c hange in loc atio n or ident ity of the interr ogating of ficer fr om the firs t inte rview … to the secon d ” (footno te omitte d)); McDoug al v. State, 277 Ga. 493, 500 (2 004) (hold ing that the defendan t did not reiniti ate commun ication becaus e, al thou gh the d efend ant h ad “summ oned th e detecti ves, ” he did no t make any stateme nts indica ting a n intent t o disc uss the inv estigation bef ore the detec tive i nterrog ated him, and “ his only statem ents w ere m ade in respon se to [th e detectiv e’s] recomm encem ent of th e inte rrogati on ”). The diss enting opinio n sugges ts tha t Dete ctive Se ndling’s interr ogation of Lee by askin g L ee why h e thoug ht he was charged

23 is i rrelev ant here for f our reason s, none of w hich are persuas ive. First, the d issenting opinio n asser ts that Detec tive Send ling wa s asking a “ rheto rical ” questi on that did n ot seek t o elicit a response the firs t time he asked Lee w hy h e thoug ht he was c harged. But the record belies thi s char acteriz ation. The fact tha t Detect ive Sendling gave L ee sever al seconds to resp ond to the qu estion, then repeat ed the ques tion, and gav e Lee s everal more secon ds to respon d s how s that the qu estion was not rhetoric al: th e det ective was seeking to elici t a respon se. Second, despit e acknow ledging that Detectiv e Sendling’ s secon d questi on about w hy Lee though t he was charged “might be consi dered interrog ation unde r other cir cumstances,” the d issent ing opinio n sta tes t hat it did not con stitute i nterrogati on here b ecause, afte r asking t he questio n, Detec tive Se ndling told Lee tha t he would talk t o Lee only if Lee wa nted to ta lk. But the d issenting o pinion ign ores the fa ct that the d etective waited sev eral se conds for Lee to respon d to the question before saying tha t he would t alk to Lee if Lee wan ted to tal k. This de lay illust rat es that the questi on was

24 intend ed to elicit an inc rimina ting re spo nse. And under the circum stances — where no stat ements w ere m ade betw een the detecti ve’s in terrogati on of Lee an d the dete ctive’s m ove tow ard the exit while saying he would ta lk to Lee if Le e wanted to talk — t he detecti ve’s st atement s erved to en courage Lee to promptly re spo nd to th e dete ctive ’s interr ogation. Third, c it ing Walton v. Stat e, 267 Ga. 71 3 (19 97), 7 Wilson v. State, 275 Ga. 5 3 (2 002), State v. Brow n, 287 Ga. 473 (2010), Gray v. State, 304 Ga. 799 (2018), and Driver v. S tate, 307 Ga. 644 (20 20), the dis senting opinion sugge sts t hat De tective Sendling’s quest ions did no t qualif y as “ inte rrogation ” becaus e they w ere asked in respon se to Lee’s question about “w hy” h e was charged, an d, as a general rule, a detectiv e’s resp ons e to a question posed by a defen dant do es not co nstitute “inte rrogat ion.” 8 B ut, a s explained 7 Walton was disapp roved of on other gr ounds by Too mer v. State, 292 Ga. 49 (2012). 8 The dissenting o pinion characterize s both questions as “responses” to Lee’s question, even though they w ere not responsive to Lee’s question. This characterization is inapt, at least wit h respect to th e second question: the context shows tha t the detecti ve’s sec ond question, whic h followed several

25 below, none o f these cas es held that respon ses to a defendan t ’s questi ons ca tegor ically cann ot q ualify as “interro gation. ” In Wal ton, the def endant asked a d etective wh at his co - indictee had sa id, the dete ctive responded by “sum mariz[i ng] [the co - indi ctee’s] st atement,” and t he defend ant made an incrimina ting statem ent in respons e. Walto n, 267 Ga. at 714, 71 7 – 18. Alt hough w e acknow ledge d a prior case in wh ich the defendant h ad responded to an off icer ’s answe r to the defendan t’s own questi on a nd we had held that the d efendant’s r esponse w as not the pro duct of cu stodial interr ogation, see id. at 718 (citing Delay v. State, 258 Ga. 229, 2 31 (198 8)), t he dissenting op inion misr eprese nts Wal ton as holding as a general rule t hat an officer ’s answer to a defe ndant’s ques tion cannot qualify as inter rogation. 9 Wa lto n did not rely on any s uc h general rule b ut ins tead pr oceeded to analyz e whether th e seconds of silence, was a resp onse to Lee temporarily m aintaining his silenc e, not to Lee’s que stion. Neverthel ess, as expla ined below, nothing turns on whether the detecti ve’s questions c an be characterized as “responses.” 9 Delay does not stand for that gener al rule either. See Delay, 25 8 Ga. at 2 30 – 31 (holding th at the officer did n ot initiate interrogation b y telling the defendant what the officer “assumed [th e defendant] was being charged with ” in response to the d efendant’s que stion, “Why am I bei ng arrested?”).

26 detecti ve’s ans wer to th e defendan t’s ques tion constitute d interr ogation. See id. And we c onclude d that, bec ause ther e was no eviden ce in the c ase that the “officer’s summary o f evidenc e implica ting ” t he defenda nt was intend ed “to ge t the [def enda nt] to make an incrimina ting stat ement,” the detec tive’s ans wer did not quali fy as inter rogati on, and t he def endant ’s respon se to the detecti ve’s answer t heref ore “ was n ot the product of cu stodial interr ogation.” Id. It is unc lear why t he dis senting o pinion cit es Wilson in supp ort of its position. In that ca se, the d efend ant “ indi cated to th e poli ce that he w anted to see the aut opsy photog raphs,” and aft er o btaining a Miranda waive r and aski ng a cl arifying questi on to confirm t hat the d efenda nt “ sti ll w anted to see [t he aut opsy photo g raphs ],” th e offic er “ showed him t he pict ures.” Wi lson, 275 Ga. at 58. As we note d, “[i] t was only a fter [th e defendan t] turned to the officer and said he ‘ wanted t o know what h ad happened t o the victim ’ s head, ’ that th e offi cer ‘ r eversed the qu estion ’ by replying ‘ I would like for you to tel l me th at. ’” Id. (punctuat ion omit ted). And we c onclud ed

27 that th e defen dan t had ex hibited a “ willingness t o talk wit h polic e … when he initiated further d ialogue wit h them over t he autopsy photog raphs.” Id. at 58 – 59. Wils on d id no t hold, as the dis senting opini on represen ts, th at revers ing a questi on p osed by a def endant does no t constitu te interrog ation as a g eneral matter. In deed, it is clear fro m our op inion in Wilson that w e conside red the offi cer’s reversal of the defen dant’s question to be interrogatio n. That is why we emph asized t hat the of ficer d id n ot “revers e [ ] the q uestio n” until “afte r” the defen dant had al ready rei nitiated c ommunicati on. Id. at 58. Nor did Bro wn, Gra y, or Dri ver ho ld that, as gen eral matt er, a detecti ve’s res ponse to a defendan t’s questi on cann ot cons titute “inte rrogat ion.” Bro wn inst ead he ld t hat the specif ic com ments made by detectiv es in res ponse to a defendant ’s question s were per missible becaus e the respon ses did n ot seek to elici t incrimina ting st ateme nts and theref ore did not constit ute “interr ogation. ” S ee Brown, 287 Ga. at 47 7 – 78 (holding t hat t he detecti ves ’ “ responses [to the d efendant’s quest ions] d [id] no t

28 cons titute int erroga tion or its f unctional eq uivalent ” becau se t he detecti ves nev er “ questi on [e d] [the de fenda nt] about the crimes ” and “ were not seeking s ubtly to elicit incrim inating in for mation from [the def endant]” bu t were inste ad “an swer [ing] ” or “deflect [ing] ” th e defen dants ’ “ direct question s ” and making comm ents “ aimed at effe ctuating [the defen dant’s] invocatio n of his rig ht to have co unsel presen t before qu estion ing ” (emp hasis o mitted)). In Gray, we assum ed witho ut deciding that the detect ive’s r espons e to the defen dant’ s comm ent “could be characte rized as an int errog ation” becaus e whe ther the respons e qu alified as “interr ogation” w as irrelev ant under the cir cumstance s. Gray, 304 Ga. at 804 – 05. As we expla ined, it did no t matte r whether t he response co nstitut ed “interr ogation ” becau se the dete ctive “res ponded … only after [the defen dant] brough t up the case first, ” “init iat[ing] the rene wed contact.” Id. And Driver held that a detec tive ’s “ resp onses did not viol ate [a defend ant’s] previo usly invok ed rig ht to couns el under Edwards … beca use [the defen dant’s] questions initia ted a rene wed conve rsation an d evinced a willi ngness and a desire for a

29 general ized dis cussi on about the i nvestigat ion.” Driv er, 307 Ga. at 650 (qu otati on marks omitted). 10 Moreo ver, the d issenting o pinion’s suggestio n that a d etect ive is permitted to inter rogat e a def endant who has previously invok ed his M iranda r ights if the defenda nt poses a ny question s t o the detecti ve conflict s with ou r precedent. As w e have made clear, scr upulously ho noring a defe ndant’s rig hts requi res a detecti ve to refrain from “ask [ing] [a def endan t who has invoked his Mir anda rights ] any qu estions abou t the case ” until after the de fendant has reinit iate d communica tion b y signaling “a willin gnes s and a de sire for a gene ralized dis cussio n about the inves tigat ion.” Pauldo, 309 Ga. at 133, 144 (qu otation m arks omi tted) (noti ng that a defendan t “ may not b e subject ed to furth er question ing by law enforcem ent ” afte r invoking his Mi randa rights, unless “the s uspect init iate s the 10 Driver quoted Br own for the propo sition that “a police office r’s response to a di rect inquiry by t he defendant doe s not constitute ‘interrogation.’” Driver, 307 Ga. at 650 (clean ed up). But Driver cannot be construed as holdi ng that a detectiv e’s response to a defendan t’s direct question cannot co nstitute “interrogation” even if the respo nse is intended to elicit incriminating statements because the c ase did not involve any such responses. See id. at 647 – 48.

30 conve rsation reg arding his case”). And a detecti ve’s respon se to a defen dant’ s qu esti on that the detectiv e shoul d kn ow is re asonably likely t o elicit an incr iminating r espo nse falls sq uarely within t he scope of “i nterrog ation.” S ee Russ ell, 309 Ga. at 7 77 (“In this c ontext, ‘inter rogation’ i s defined as ‘ express qu estionin g by law enforcemen t offic ers’ or its function al equival ent — any words or acti ons on the part o f the poli ce th at the pol ice sh ould know are reason ably l ikely to elic it an inc riminating r e spons e from the sus pec t.” (cl eaned up)). Finally, the d issenting o pinion suggests that, even i f Dete ctive Sendl ing ’s question s about w hy L ee though t he had been charged cons tituted “interro gatio n in viol atio n of Mir anda and Edwar ds, ” the q uestions “ did not elic it an inc riminat ing respo nse ” from Lee, and t hus the incrim inating st ateme nts that Lee ult imate ly ma de were no t “ the pro duct of ” that in terrogation. Pauldo, 309 Ga. at 14 1– 42. This argume nt, howev er, is mis guided. It is und ispute d here th at Lee invo ked his Mi randa r ights and t hat the incrim inating statem ents that th e Stat e sought to introdu ce were p rodu ced by interr ogation occ urring immediat ely after Lee s aid, “L et’s tal k,

31 man.” Accord ingly, the rele vant quest ion is whether Lee h ad reini tiated comm unicati on by the time he sa id, “Let’s t alk, man, ” such t hat furthe r interro gation w as permiss ible. See id. at 133. And to determi ne whether a vali d reini tiation occurre d, the rel evant ques tion is whethe r Detec tive Sendling’ s que stions about why Lee thoug ht he had been charged pr oduced Le e’s agre ement t o speak, no t whe ther those questio ns produce d incrimina ting stat ements. See Mack, 296 Ga. at 248. As expl ain ed above, becaus e the unlawful interr ogation pro duced Lee ’s agre ement t o talk, Lee did no t initiat e comm unicat ion, and the incrim inating st ateme nts he made in respon se to la ter int errog ation are therefor e inadmissib le in the State’ s case - in - chi ef. 3. The State also ar gues that the tria l court er red in conclud ing that Le e’s statem ents were in v oluntary as a ma tter of consti tutional due pr ocess. W e agre e. Statem ents obtai ned in v iolati on of Mira nda a nd Ed wa rds “are inadmis sible in t he St ate’s ca se - in - chie f,” Sta te v. Phil pot, 299 Ga. 206, 2 07 (20 16) (quotati on marks o mitted), bu t they may be used “for

32 impeach ment pu rposes,” Dyer v. Sta te, 278 Ga. 656, 65 8 (2004), s o long as they are “volunt ary un der due p rocess st andard s,” S ta te v. Troutm an, 30 0 Ga. 616, 618 (2017) (quot ation m arks omitted). Statem ents are vol untary un der due process standards if they are “the product of a rat ional inte llect and a free will under t he totality of the circum stances. ” State v. F ranklin, 318 Ga. 39, 42 (2024) (quot ation m arks omi tted). An d the Uni ted Stat es Su preme Cou rt has h eld t hat “ [c]oerci ve polic e activi ty — such as ex cessi vely lengthy interr ogatio n, phys ical dep rivatio n, and br utalit y — is a necess ary predi cat e to t he fi nding t hat a con fession i s not ‘v oluntary ’ within the meaning of the Due Proc ess Cla use of the Fourte enth Amendm ent.” Dozier v. State, 306 Ga. 29, 36 (20 19) (cleaned up). See also Franklin, 318 Ga. at 42. Here, th e trial cou rt de termined th at Detecti ve Sendlin g engag ed in coerci ve police conduct when h e restarte d a conver sation with Lee after Lee had invok ed his Mira nda rights. Sp ecif ically, the tria l court found that De tective Se ndling knew t hat Lee was “illite rate,” had only a “t hird - grade edu cation,” and may have an

33 “ intelle ctua l disability. ” And th e court found th at the det ective capit aliz ed on th e situ ation when h e restarte d the c onversati on without re readi ng Lee his Miranda right s or attempti ng t o determi ne Lee’s l evel of u nderstan ding. However, “[e]ven a ccepting the trial c ourt’ s findings of fac t, the circum stances” s urroundi ng Lee’s i nterroga tion “ reveal non e of th e extrem e tacti cs id entified as th e ha llmarks o f coerci ve police activit y offe nsive to funda menta l notions of due pro cess, such a s lengthy i nterr ogation, p hysical depriva tion, bru tality, or dec epti on.” Troutm an, 300 G a. at 618 (cl eaned up). As noted a bove, the inter rogat ion was brief. Lee wa s not physic ally de prived of anything except h is liberty. Indee d, Detec tive S endling p rovid ed Lee with f o od and dri nk b efore L ee discu ssed t he c rime. The record als o does n ot reveal any evi dence of bru tality or decep tion, only in terrogati on and encour agement t o spe ak. And e ven assuming tha t Lee had so me “inte llect ual disabilit ies,” the detec tive’s fa ilure to rea d Lee his Mira nda r ights aga in — after Lee d emonst rated his understand ing of t hose rights by invoking t hem minut es e arlier — is not the kind

34 of “ deli berat e tact ic[] calcul ated to bre ak the wi ll of th e susp ect” that qualifie s as “coer cive po lice act ivity” und er due pro cess princ iples. Id. at 618 – 19 (quo tation marks omitte d) (holding that th e defen dant’ s stat ement was volun tary, wh ere the defen dant was no t warned ab out his Mir anda right s at a ll). Accor dingly, t he tr ial cour t erred in c oncluding tha t Lee’s statem ent s were involuntar y as a matte r of consti tutional d ue proces s. And as a resu lt, the Sta te may use Lee ’s statemen ts for impeach ment pur poses if L ee choos es to take the s tand at tri al. * * * As expl ained abo ve, the t rial co urt did not err in conclud ing that Le e did not reinitia te communic atio n after invo king his Mira nda rights. But the tria l court ’s conclu sion th at Lee ’s statem ents were in vol untary as a matte r of du e proc ess wa s errone ous. Acc ordingly, we affir m the tri al cou rt’s su ppres sion of Lee’s s tatement s under Miranda and Edwa rds an d revers e the trial court’s e xclusion of Lee’s s tat ements based o n due p roces s princ iples. As a res ult, Lee’s stat ements may not be admi tted in th e

35 State’ s case - in - chief bu t may be us ed to impea ch Lee if h e testifi es at tri al. Judgment affirmed in part a nd reversed in part. All the Just ices concu r, except Warren, P. J., and Be thel, Mc Milli an, and LaGrua, JJ., who disse nt as to D ivi sion 2.

36 S25A108 7. THE STATE v. LEE. M C M I LLIAN, Justice, d issenting. Because I beli eve based on the undi sputed vi deo reco rding of the int erview t hat Lee reinitia ted com municat ion with De tectiv e Send ling, I res pectfully d issent from Divis ion 2 of the major ity opinio n. As corr ectly expla ined in the majority op inion, if a suspect invoke s the right t o r emain sile n t or the righ t to c ouns el, or both, then “ [p] olice must scrup ulously h onor ” the suspe ct’s right s, which requir es that “th e interrogat ion [ ] cease i mmedi ately.” State v. Pauldo, 309 Ga. 1 30, 133 (2020) (citati ons and quotation marks omitted). “How ever, wher e police cease interrog ation and the suspe ct initia tes the conver sation re garding his case” – which, under these circumstan ces “requi res not on ly that the d ef endant speak up first but also that his words reflect a desi re t o dis cuss th e invest igatio n at hand, ” the n “no viola tion of the Edwards [v. Arizona, 451 US 477 (19 81)] rule occu rs.” Id. at 133, 135, 143.

37 Stated m ore suc cinctl y, “polic e may not i mmedi ately su bject a defe ndant who has invoked his right to co unsel or his right to re main silent to furt her interro gation ab sent r einitiat ion by the d efendant.” Id. at 134 n.5 (emphasi s omitted). And “ a susp ect will b e consid ered to hav e ‘ initia ted ’ renewe d contac t with la w enforcem ent authori ties, so as to pe rmit furthe r interrogati on, onl y if the ren ewed contact by the suspect w as not th e produ ct of pas t pol ice inter rogat ion conduct ed in vio lation o f the sus pect ’ s pr eviously - invoke d r ights.” Mac k v. State, 29 6 Ga. 239, 248 (2014). In this ca se, becaus e the trial court den ied the S tate’ s moti on in lim ine bas ed on the vi deo recordi ng of the in terview al one and the con trolli ng facts are asc ertainabl e from the record in g, we review de nov o the trial court’s applica tion of the law to th ose facts. Se e, e.g., St ate v. Lever ette, 320 Ga. 806, 809 – 1 0 (2025). Here, after Lee sat al one in the in terview room for about an hour, Detect ive Sendling entered t he intervi ew room and began by intro ducing hims elf and as king a few bio graphica l questions to Le e, which inc luded conf irming tha t Lee would b e able to under stand

38 some thing rea d to him. Dete ctive Se ndling the n read Lee his right s under Miranda v. Arizona, 384 US 436 (1966). Lee said th at he under stood t hose rights and t hat he did not wish to speak with Detec tive Se ndling at that t ime without a lawy er. Fro m that momen t, thei r conv ersation con tinu ed as foll ows: DET: “So you don ’t want to talk?” Lee: “Nuh - uh.” DET: “Okay. ” DET: “Alr ight, I guess —” Lee: “ What am I charged wi th?” DET: “You’re goi ng to be ch arged with murder and aggrav ated assau lt.” DET: “Alr ight. ” Here, D etective S endlin g gets up f rom th e chair an d walks tow ards the d oor. DET: “I ’ll be back w ith you in a little bit – I’ve g ot some paperw ork t o do.” DET: “Yo u need anything to drink? ” Lee: “Y eah, I wan t some, l et me get some chip s”

39 DET: “U hh, I do n’t kno w that I have chip s, but I have soda, Gat orade, wate r. ” Lee: “G atorade.” DET: “Blue, yello w, red?” Lee: “Blue.” DET: “Blue?” Detec tive Se ndling lea ves a nd shuts the door, b ut then o pens t he door ag ain. DET: “I’ve also g ot Pepsi and Mou ntain Dew, okay, but you w ant Gat orade?” Lee: “Y eah.” DET: “Alr ight. ” Detecti ve Sendl ing leaves and shut s the d oor. Detectiv e Sendling comes b ack into the ro om almost tw o minutes later. DET: “I was able to fi nd some ch ips but th ese are th e only ones I ca n find. ” Detec tive Se ndling put s the Gatora de and c hips on t he tab le and then tu rns towa rds the d oor. Lee: “H ey.” DET: “Ye s, sir? ” Lee: “ Why am I c harged with murder, m an?”

40 DET: “W hy are you char ged with murd er? Why do you thin k? Remember y ou don’t w ant to tal k to me, so.” Detec tive Se ndling sto ps speak ing, and there is si lence fo r a few seconds. DET: “So why do you think you were charg ed?” Detecti ve Sendl ing turn s tow ards t he door. DET: “If you de cide you w ant to tal k to me, I’ll tal k to you, but — ” Lee: “L et’s tal k, m an.” DET: “Yo u wanna talk?” Lee: “Y eah.” From th e time th at Lee says “Hey” un til Lee says “Yeah” in response to Dete ctive’ s Sendling quest ion is about 21 sec onds. The int erview proce eds fr om there. “[W]e h ave recog niz ed that subst ance t rumps form in determi ning w hether the enti re sequenc e of events indicates a defen dant ’ s volu ntary in itiation of ren ewed cont act. Acc ordingly, ther e is more to the analys is than mer ely an inquir y into ‘ who said what whe n, ’ and we must co nsider the cont ext in which a purport ed

41 ‘ initia tion ’ by th e defendan t was m ade before d eclaring it effecti ve to allow the resu mption of pol ice interrogati on.” Mack, 296 G a. at 247 (citati on omitt ed). Looki ng at the con text of the ent ire sequen ce of event s here theref ore, I wou ld beg in by recog nizing – as the majo rity opinion agrees – that when Lee invoke d his rig hts, Det ective Se ndling scrupu lously h onored Le e’s i nvoca tion by ce asing hi s interrog ation imm ediately. Id. at 243 (“Th e dete rmin ation as to wheth er the police h ave scru pulousl y hon ored th e defen dant ’ s righ t to remai n sil ent res ts in par t upon thei r immediat e respons e t o the d efend ant ’ s invoca tion of t he right; a sho wing of respe ct for the def endant ’ s right, by imme diat ely cea sing que stioning upo n its inv oca tion, is a signific ant f actor in this ana lysis. ”). L ee then asked “what” he was being c harge d with, and De tective Se ndling answ ered that Lee wa s being charged wi th murder and ag gravat ed assau lt. Th is exchang e does n ot consti tute an in terroga tion because as the m ajority opi nion correct ly re cognizes, su s pect s may ask cl arifyin g questions abou t their arrest wit hout evincing a willingne ss and desire to enga ge in

42 a gene ralized di scussi on about th e inves tigati on, an d offi cers are per mitted to re spond to suc h inquirie s without it constit uting a polic e - initia ted inte rrogat ion. See Paul do, 309 Ga. at 143. But it is at this po int in the recording t hat I depart from the majo rity op inion’s ana lysis and conc lude, ba sed on the tota lity of t he circum stances, t hat Lee rein itiated con tact by say ing “Hey” and catc hing Detec tive Sendling ’s attentio n as the det ective wa s turning to leav e the roo m, and a sking “ [w] hy am I c harged wit h murder, man?” S ee Oregon v. Bradshaw, 462 US 10 39, 1045 (198 3) (dist inguishing b e tween inquir ies “ relat ing to r outine incid ents o f the cus todi al rel ationshi p,” such as a requ est for a d rink of w ater, that “will not genera lly ‘initia te’ a conversat ion in the sense in whic h that word w as used in Edwa rds,” and those “re pres ent[ing] a d esir e on the part of an accu sed to open up a m ore gen erali zed discus sion rela ting dire ctly or indire ctly to the inve stigation” (empha sis supplie d)); Pauldo, 309 Ga. at 136 (“[I ]nitiati on un der thes e circum stances r equires n ot only that the defen dan t speak up firs t but als o that his words ref lect a desire t o dis cuss the i nvestigati on

43 at hand.” (cleaned u p)). It was Lee who renewed conta ct with out any pol ice - initia ted interr ogation o r prompti ng, an d Lee’s ques tion s were n ot in respon se to any ques tions att endan t to his a rrest an d custody. See Mack, 296 Ga. at 248 (“[A] suspect w ill be considere d to have ini tiated renew ed con tact with law enforc ement auth orities, s o as to permit further interroga tion, on ly i f the renew ed con tact by t he suspect was not the produ ct of p ast pol ice i nterrogati on condu cted in violat ion of the suspect’ s previously - invoked right s.” (cle an ed up)). L ee’s ques tioning of Detecti ve Sen dling h appened as pa rt of a larger custodial interact ion between t hem, wherein Lee had alread y said h e did not w ant to t alk, Lee had al ready asked and h ad answer ed a cla rifying question about what h e wa s being a rrested for, and Detec tive Se ndling ha d scrup ulously hono red Le e’s inv ocation befor e Lee renew ed cont act by catching Detective Send ling’s att ention a s he was leaving t he intervie w room and furthe r askin g why Lee w as bein g arrest ed for mu rder. Se e Brads haw, 462 US at 1045 – 46 (holding t hat suspe ct’s que stion,

44 “We ll, what is going to hap pen to me now?” “[a]though a mbiguous … evin ced a will ingn ess and des ire for a gen eraliz ed discussi on about t he in vestigati on; it was n ot merely a n ecessary inquiry aris ing out of t he incide nts o f the custo dial rela tionship, ” and “[i] t could r easonably have been interpre ted by th e officer as relatin g general ly to the i nvestigati on. That th e pol ice offi cer so unde rstood it is appa rent from t he fact that he immed iately re minded the accus ed th at ‘you do not h ave t o talk to me ….”). In Pauldo, we conclu ded that the suspect “r einiti ated conta ct when h e asked questi ons ab out why he was bei ng arrested an d made sta tements about t he cri mes being investig ated even a fter being remin ded that he had i nvoked h is right s and [] these stat ement s and questi ons ‘evin ced a willi ngness and a desi re for a gen erali zed discuss ion abou t the invest igatio n.’” Pauldo, 309 Ga. at 144 (qu oting Driver v. State, 307 Ga. 644, 650 (2 020)). Pauldo, theref ore, supp orts the d issen t and need not be overru led i n order to h old here that Lee rei nitiate d commu nicati ons under thes e circums tances. The m ajority opinion argues that Pa uldo compels us to hold

45 that Le e’s questi on, “[w]hy am I ch arged w ith murder?”, has no bear ing on reinitia tion her e because in Pauldo, we conc luded that some of the s usp ect’s ini tial qu estions, askin g what he w as being arre sted for and why, did not a lone cons titute re initiat ion. But in Pauldo, the d etectiv e initia lly told t he susp ect, bef ore t he suspect invoke d his rights, that he was not being arre sted and the n later infor med the suspe ct, after he had invoke d his rights, that he wa s being arrest ed for homi cide. Under t h e total i ty of th o se circum stances, we conclud ed that when the suspe ct asked why he was bein g arrest ed for hom icide a fter the detec tive fir st told him he would b e after pre viously say ing he would not be arrest ed, the suspect was aski ng a cla rifying ques tion a bout hi s arre st. Pauldo, 309 Ga. at 131 – 3 2, 14 3. He re, as n oted abov e, Lee h ad al ready asked a clari fying qu estion abou t wh at he was being arr ested for earlier, and De tective Sendling told Lee that he would be charg ed with murder and aggr avated ass ault, s uch th at when L ee asked over two minutes lat er and aft er a n interve ning discus sion abo ut snack s, “[w]hy am I bei ng ar rested?”, it w as not me rely a necessa ry inqui ry

46 or cla rifying q uestio n arising out of t he custod ial rela tionship, but could re asonably have been interpr eted by th e detect ive as a gene ral inquiry int o the invest igatio n tha t reinitia ted discussio n with Detec tive S endling. See Mack, 296 Ga. a t 247 ([T]h ere is more to the ana lysis tha n merely an inquiry int o ‘who sa id what when,’ a nd we must consider t he contex t in which a purp orted ‘initia tion’ b y the defen dant wa s made ….” (citation omitted)). I also disagre e with th e majori ty o pinion ’s cha racteri zations of Detecti ve Sendl ing’s resp onse to L ee’s “w hy” qu estion as u nlawful inter rogat ion. In ana lyzing Det ective Sendling ’s res ponse, w hich include d asking Lee, twice, “why do you think you wer e char g ed?” and r eminding L ee t hat he d id not want to ta lk, we mus t reco gnize that those resp onses were not pose d in a v acuum. Whe n Detect ive Send ling respo nded to Lee’ s question b y asking “ why do you think you w ere ch arged?”, we cannot ignore, when conside ring the tota lity of the circum sta nces of thi s particu lar interrog ation, as evid enced by the und isputed video, tha t Detective Sendling d id not initia te the discu ssion and on ly spoke a t all be cause he was res ponding di rectly

47 to Lee’s unprompted ques tion, “[w]hy am I bein g charged wi th murder?” Cf. Delay v. S tate, 2 58 Ga. 229, 231 (1988) (“By c ustodial inter rogat ion, we mea n questioning initiated by law enforcem ent officer s ….” (quo ting Miranda v. Ariz ona, 384 U S 436, 444 – 45 (1966) (emp hasis s upplied by De lay Court)); see also Smit h v. Illinois, 469 US 91, 98 (1984) (“With r espect t o the w aiver in quiry, w e accord ing ly have emphas ized that a vali d waiver ‘c annot be establ ished by s howing on ly that [the ac cused] respo nded to fu rt her police - init iated cust odial int erro gation. ’” (quot ing Edwards, 451 US at 484 (emp hasis supplied by Smi th Court)). We hav e previou sly hel d that “ an accus ed’s r esponse t o an offic er’s answe r to a question posed by the ac cused is not th e produ ct of cust odial int erroga tion.” Walton v. State, 267 G a. 713, 718 (1997), disappr oved on o ther grou nds by Toome r v. Stat e, 292 Ga. 49 (2012); see also Gray v. State, 304 Ga. 799, 8 05 (2018). Moreov er, we h ave also c onclu ded in past cases w here detecti ve s have “ deflected” d irec t questi ons f rom suspect s or “revers ed the quest ion” that su ch res ponses did not const itute inter rogat ion or its f unctio nal

48 equiv alent. See, e.g., Stat e v. Brown, 287 Ga. 47 3, 477 (2 010); Wil so n v. State, 275 Ga. 53, 58 – 59 (2 002) 11; se e also Gr ay, 304 Ga. at 804 – 05 (su spect’s rig ht to remai n silen t not viola ted where d etective immedia tely stopp ed his inte rview and physically exit ed t he inter view roo m, and while discus sing non - case - relat ed topics afterwa rd, “with out any p rompti ng from [an other det ective], [the suspect ] stated t hat he was bei ng ‘framed’ fo r murder ” and the n rep lied whe n his unsolic ited co mment s promp ted the d etective to ask if t hat’s why he was t here). Here, it is clear in context and unde r 11 The majority opini on distinguishes Wilson, arguing th at it did not h old that reversing a question pose d by a defendant does not constitu te interrogation as a general matter an d that the sus pect in t hat case had otherwise initiated further dialogue w ith police over autop sy photographs. I do not disagree that the Cour t in Wilson held that the suspec t “initiated further dialogue with [the police] over [ ] autops y photographs.” Wilson, 275 Ga. at 58. But that holding appears to be b ased on the entire se quence of events of the suspect’s initiation of further dialogue ov er the autopsy ph otographs, including the interaction in which t he officer “reversed the questio n” the suspect ha d ask ed back to him, as the Court explained that en tire interactio n before holding that “the evi dence establishe d that Wilson indicate d his willingness to talk with police o n January 8 when he initiated further d ialogue with them over the autopsy photograph s.” Id. As such, I disagree with the majority’s reading of Wilson as considering the officer’s rever sal of the defend ant’s question to be “interrogati on.” Rather, the Wilso n Court viewed it as persuasive that the officer “ reversed t he question,” “only aft er Wilson turned to the officer a nd sai d he ‘wanted to know wha t had happen ed to [the victi m’s] head,” and “[t]he int errogation conti nued from that poi nt.” Id.

49 the to tality of the circum stances t hat Det ective S endli ng’s two questi ons to Le e about w hy Lee thought h e was bei ng charg ed with murder were in respons e to Lee’s unsoli cited quest ion about wh y he was b eing charge d with mu rder. The maj ority opinion charact erizes Detect ive Sendling ’s questi ons as “n ot respon sive t o Lee’s questi on ab out ‘why’ he was charge d” and th erefore “interrog ation b ecaus e any reasona ble of ficer woul d know the qu estion w as ‘r eason ably l ikely to eli cit an incrimina ting r espo nse.’” But in c onte xt, Detec tive Se ndling’s f irst questi on was clearly rh etorical. The majority opi nion argues that the qu estion w as not rh etorical because D etective Sendlin g paused briefly after ask ing i t, but i t woul d be hard to interpr et that bri ef silenc e as indic ating an int entio n to elicit a respo nse becaus e right befor e it, Detecti ve Sendl ing reminded L ee, “Rem ember, you don’t want t o talk t o me.” As for Detect ive Sendli ng’s sec ond questi on, I recogn ize that i t migh t be consi dered i nterroga tion und er othe r circum stances. B ut her e, it is hard to see how this questio n was intend ed to elic it a respo nse when af ter ask ing the quest ion – which,

50 in fac t, did not elic it any r esponse – Det ective Sendling t old Lee that the de tective would o nly talk if Lee dec ided he wante d to talk. In contex t and und er a tota lity of t he circumst ances, Detective Send ling’s que stion s cannot be co nsidered as “reasonabl y li kely t o elicit an incr iminating re sponse,” Pauldo, 309 G a. at 135, wh en Detec tive Se ndling c ontinue d rem inding Lee that he d id not want to talk. See Brad shaw, 462 US at 104 5 – 46 (concluding that officer ’s imm ediate remin der th at th e accu sed did not hav e to tal k in dicat ed off icer unders tood acc used’s ambiguo us question a s indicat ing accus ed ’s desire to discus s investiga tion ge nerally); Bro wn, 287 Ga. at 477 (no in terrogation where, i n respons e to suspec t’s con tinued questi ons, d etectiv e answer ed or defle cted some an d “[t]h e detecti ve’s othe r statemen ts and a ctions we re aimed at effectuating the s uspect’s invocat ion”). What ’s more, De tect ive Sendling ’s ques tion, “why d o you think you w ere ch arged?” elicited no res ponse or agre ement to t alk at al l – only silenc e. See Pauldo, 309 Ga. at 141 – 42 (“ [E]ven if w e were t o assum e that th e detectiv e’s requ ests and s tatements w ere

51 inter rogat ion in violat ion of Mir anda and Edwar ds, they did not elicit an incr iminating r espo nse from Pa uldo.”). It w as only af ter Detecti ve Sendl ing turned ag ain to leave whi le saying, “If you de cide you w ant to t alk to m e, I’l l talk to y ou, but — ” Lee i nterject ed, “L et’s talk, man.” 12 And be fore proc eeding further, Det ective Sen dlin g sough t clarity, aski ng, “You w ant to talk?” T o which L ee respond ed, “Yeah, ” co nfirming that he wa s reinitia ting co mmunicat ions. To concl ude that Lee’s ren ewal of contact h ere was merely t he pro duct of Dete ctive Se ndling’s question, “why do you t hink you were ch arged?” i s to ign ore the total ity of the ci rcums tances that act ually led to Lee reinit iating c ommunicat ions. I would ho ld tha t 12 Citing Taylor v. State, 303 G a. 225, 231 (2018), the majority opinion characterizes the detective’ s moving to ward the exit at the sam e time a s he was saying, “If you decide you want to talk to me, I’ll talk to you,” as an interrogation tactic to create “time p ressure for Lee to respond quic kly” because it was an action calcul ated to elicit an incrim inating response. However, leaving a suspect alone see ms to be a reasonable way for a law enforcement officer to scrupulous ly honor a suspect’s invoc ation of the right to silence, and under t he circumstances, I cannot conclude tha t it was obviously an interrogation tac tic rather than an ef fort to honor Lee’s rights. Cf. Paul do, 309 Ga. at 134 (“O n the other hand, the law do es not require that after a suspect invokes hi s right to re main silent or his right to counsel, l aw enforcement must l eave the suspect’s p resence and cease a ll interaction wit h him immediately.”).

52 under t he total ity of th e circum stances in this cas e, Lee rein itiated comm unicat ions with Det ective Sendling whe n Lee a sked, “ Why am I cha rged w ith mu rder, man?”, and the entire sequenc e of even ts befor e and af ter t hat ques tion, i n context, supp orts that c onclusio n; Lee’s “contin ued effor ts to discu ss the case” and co nfirmation of his desir e to talk “even afte r being reminde d that he had invoked his rights … ‘ev inced a willingne ss and desire for a g enera lized discus sion a bout the inve stiga tion.’” Id. at 1 4 4 (quot ing Driver, 30 7 Ga. at 650); see al so Driv er, 307 G a. at 65 0 (holding that under a total ity of the ci rcumst ances, “ [the in vestigat or’s ] re spons e to ques tions [t he suspect] initiat ed and posed to [the inv estiga tor] when [the inv estigator ] was pr eparing t o walk ou t of th e room,” includin g asking the s uspect where he had sho t the vict im aft er the suspe ct volunt eered that he had, “ did n ot render [the sus pect ’s] unsolic ited a nd incrimina ting a dmiss ion the pro duct of interr ogation t hat m ust be supp ressed at t rial”). Having determi ned that Lee reinit iated co mmunica tion with law en forcement, and agre eing wi th the maj ority that th e trial cou rt

53 erred in c oncludi ng th at Lee’s statemen ts w ere i nvolun tary as a matter of consti tutional due p rocess, I woul d revers e the t ri a l court’s denia l of the St ate’ s motion in limine t o admit Lee ’s stat ements in its case - in - chi ef at tri al. I am au thorized to s tate that Presidi ng Justice Warren and Just ices Bet hel and LaGr ua join in this d issent.