State v. Abbott

FINAL COPY

                S20A0719. THE STATE v. ABBOTT.


      WARREN, Justice.

      This is the State’s second appeal in this case, which involves

Dijon Abbott’s indictment for the murder of Marques Eubanks and

the assaults of Latrice Nelson and Jeremy Whitehead. In State v.

Abbott, 

 (

) (2018) (“Abbott I”), this Court

affirmed the suppression of custodial statements Abbott made

before being given the Miranda warnings;1 clarified the legal

standard for evaluating post-Miranda statements made after law

enforcement has used a “two-step interrogation technique”; and

remanded the case for the trial court to apply that legal standard to

Abbott’s post-Miranda statements. 

. On remand,

the trial court again suppressed the entirety of Abbott’s statements,

concluding that Abbott had not knowingly and voluntarily waived



      1 See Miranda v. Arizona, 

 (

, 16 LE2d 694)

(1966).
his rights under Miranda, and the State again appeals. We vacate

the trial court’s second suppression order and again remand the

case, holding that the trial court failed to adhere to our Abbott I

remand instructions, which explicitly directed the trial court to

determine the admissibility of Abbott’s post-Miranda statements

under Justice Kennedy’s concurrence in Missouri v. Seibert, 

 (

, 159 LE2d 643) (2004), which was

adopted by this Court in Norwood v. State, 

 (

) (2018) (the “Seibert/Norwood standard”). Abbott I, 303 Ga. at

304.2     On remand, the trial court is re-directed to apply the

Seibert/Norwood legal standard for the limited purpose of

determining the admissibility of Abbott’s post-Miranda statements.

        1. Case history.

        On September 10, 2013, Abbott was indicted by a Richmond




        2 In recognizing that Norwood adopted as controlling precedent Justice

Kennedy’s concurrence in Seibert, we explained in Abbott I that Justice
Kennedy’s concurrence represented the “‘position taken by those Members who
concurred in the judgments on the narrowest grounds.’” Abbott I, 303 Ga. at
302 (quoting Marks v. United States, 

 (

, 51 LE2d
260) (1977)).
County grand jury for malice murder and other crimes in connection

with the shooting death of Eubanks and the aggravated assaults of

Nelson and Whitehead. The factual allegations of the case were

recounted in Abbott I, 303 Ga. at 297-299. As relevant here, those

allegations include that on July 18, 2013, Abbott was part of a

gunfight between rival gangs that resulted in the shooting death of

Eubanks and gunshot wounds to Abbott, Nelson, and Whitehead.

The next day, Abbott was identified as a “suspect or person of

interest” and sheriff’s deputies located and transported him to the

office of the sheriff’s criminal investigation division, where he was

questioned by Sergeant Chris Langford.

      After holding a two-part Jackson-Denno3 hearing, which

included testimony from Sergeant Langford, the trial court

determined that Abbott’s interrogation was a “blatant violation of

Miranda” and ordered the entirety of Abbott’s statements

suppressed. The State appealed, and we affirmed the suppression



      3 See Jackson v. Denno, 

 (

, 12 LE2d 908)

(1964).
of Abbott’s pre-Miranda statements to law enforcement officials.

Abbott I, 303 Ga. at 301.

     With respect to Abbott’s post-Miranda statements, we

recognized that generally “the existence of a pre-warning statement

does not require suppression of a post-warning statement that was

knowingly and voluntarily made, unless Seibert’s exception to that

rule is applicable.”    Abbott I, 303 Ga. at 301 (citation and

punctuation omitted); see also Norwood, 

 (“[Oregon v.

Elstad, 

 (

, 84 LE2d 222) (1985)] sets out

the general rule that the existence of a pre-warning statement does

not require suppression of a post-warning statement that was

knowingly and voluntarily made, while Seibert sets out an exception

for situations where police employ a deliberate ‘question first’

strategy.”) (citations and punctuation omitted). We reiterated that

under the exception of Seibert, 

, statements made after

a “‘two-step interrogation technique . . . used in a calculated way to

undermine the Miranda warning’” are inadmissible. Abbott I, 303

Ga. at 304 (quoting Seibert, 

 (Kennedy, J.,
concurring)); see also Norwood, 

. And we made clear

that the legal standard for determining whether law enforcement

deliberately engaged in an improper “two-step technique” is set forth

in Justice Kennedy’s concurrence in Seibert, which this Court

adopted in Norwood:

     [I]n deciding whether law enforcement officers used a
     deliberate “question first” strategy, the trial court must
     “consider the totality of the circumstances including the
     timing, setting and completeness of the prewarning
     interrogation, the continuity of police personnel and the
     overlapping content of the pre- and post-warning
     statements.” [Norwood,] 

 (2) (b). The
     trial court must also consider, however, evidence as to
     whether the sheriff or police department had “protocols,
     customs, or training that required officers to use a
     deliberate two-step interrogation technique,” as well as
     testimony by the interrogating officer that he either did
     or did not employ a strategy of deliberately questioning
     the defendant without Miranda warnings in order to
     solicit a confession, planning to later warn him and ask
     him to repeat the pre-Miranda admission. United States
     v. Douglas, 

 (11th Cir. 2017).

Abbott I, 303 Ga. at 304 (footnote omitted); see also Seibert, 

 (Kennedy, J., concurring).       Because, in suppressing

Abbott’s post-Miranda statements, the trial court “applied a legal

standard that this Court subsequently rejected in Norwood” and
therefore “did not address the existence, credibility, or weight of any

such evidence,” “make any findings or draw any conclusion as to

whether Langford’s two-step interrogation was a deliberate strategy

used in a calculated way to undermine the Miranda warning,” or

“consider the totality of circumstances as part of determining

Langford’s subjective intent pursuant to Justice Kennedy’s

concurrence in Seibert,” we remanded the case “so that the superior

court may make further findings of fact and apply the correct legal

standard, as clarified in our opinion today.” Abbott I, 303 Ga. at 304-

305.

       A different judge presided over the case on remand. After

holding an additional Jackson-Denno hearing that included

testimony from Sergeant Langford, the trial court made additional

findings of fact and again suppressed all of Abbott’s statements,

including Abbott’s pre-Miranda and post-Miranda statements. The

trial court’s order, however, failed to mention Seibert or Norwood or

otherwise indicate that its factual findings were made according to

the Seibert/Norwood legal standard this Court directed the trial
court to apply on remand. Indeed, the factual findings section of the

trial court’s order stated in its entirety:

     The defendant, a seventeen year old high school student,
     was interrogated in an interrogation room at the Sheriff’s
     Department. He was shackled to the floor of the
     interrogation room. He was not initially advised of his
     Miranda [r]ights when questioning began. Testimony
     from the detective was that he was going to read him his
     rights afterward and that he totally expected the
     defendant to try to lie to him. He further testified that it
     was not his policy to post [M]irandize and that this was
     not the policy of the Richmond County Sheriff’s
     Department.      During the interview the defendant
     repeatedly requested: a pain killer or something; a paper
     towel to wipe blood; a band aid; to talk to his mother; and
     to use the bathroom. The defendant was required to wipe
     up blood and was asked whether he had [AIDS] or
     hepatitis. The defendant was promised that he would be
     taken to the hospital. Buccal swabs were taken from him
     with permission. He was brought more and more paper
     towels for bleeding as the interview continued. The
     defendant was [M]irandized after he provided a
     statement.

     These findings of fact were immediately followed by a

conclusions of law section that stated in its entirety: “The defendant

did not, by a preponderance of the evidence, knowingly, intelligently

and voluntarily waive his Miranda [r]ights. The defendant was not

properly advised of his Miranda [r]ights. The defendant’s statement
is denied in its entirety and may not be considered by a jury.”

     2. The record does not show that the trial court applied the
Seibert/Norwood legal standard as directed by this Court in Abbott
I.

     In this second appeal, the State contends that the trial court

erred in its findings of fact and “in its conclusion that [Abbott’s] pre-

and post-Miranda statements were involuntary.” But we do not

reach those enumerations of error because the trial court committed

a threshold legal error when it failed to apply the Seibert/Norwood

standard that we directed the trial court to apply on remand in

Abbott I, 303 Ga. at 305.

     Abbott concedes that the trial court’s suppression order “is

somewhat problematic” because it did not “discuss[ ] to any extent

the . . . reasons for remanding this case back to the superior court,”

and “did not clearly say that the investigator had engaged in an

improper ‘question first — warn later’ strategy in obtaining the

disputed statements.” He nevertheless argues that this Court must

presume that the trial court followed Abbott I and applied the correct

legal standard because of the general “presumption in favor of the
regularity and legality” of trial court proceedings. See Hancock v.

Oates, 

 (

) (1979); see also 29 AmJur

2d Evidence § 222 (2020) (“When any judicial act is shown to have

been done in a manner substantially regular it is presumed that the

court complied with the formal requisites for its validity.”).

     But the presumption that a trial court followed the law is “just

that — [a] presumption[ ], which can be rebutted by what is shown

in the record.” Johnson v. State, 

 (

)

(2017) (reversing denial of defendant’s motion for new trial where

record showed that the trial court erred by finding that the State’s

re-creation of a trial transcript under OCGA § 5-6-41 was complete);

see also 29 AmJur 2d Evidence § 222 (“Trial judges too are presumed

to know the law and apply it in making their decisions, absent some

indication in the record suggesting otherwise.”) (emphasis supplied).

And here, the record, viewed as a whole, shows that the trial court

did not apply the Seibert/Norwood standard to determine the

admissibility of Abbott’s post-Miranda statements.

     First, by purporting, among other things, to suppress all of
Abbott’s statements, even though this Court already affirmed the

suppression of Abbott’s pre-Miranda statements in Abbott I, the face

of the trial court’s second suppression order suggests that the court

did not heed this Court’s opinion or instructions in Abbott I. That

inference is further supported by the transcript of the post-remand

hearing, where both parties reminded the trial court that this Court

had already affirmed the suppression of Abbott’s pre-Miranda

statements and remanded only for reconsideration of his post-

Miranda statements.

     Second, at the same hearing, both parties referenced the

Seibert/Norwood standard that this Court instructed the trial court

to apply on remand, but the trial court never acknowledged or

referenced that standard, either at the hearing or in its suppression

order.   For example, the State explicitly referenced Norwood

multiple times, provided a copy of Norwood to the trial court, recited

the Seibert/Norwood standard, and used it to argue why Abbott’s
post-Miranda statements should not be suppressed.4 See Abbott I,

303 Ga. at 304 (laying out relevant factors for consideration when

evaluating “whether law enforcement officers used a deliberate

‘question first’ strategy”); Norwood, 

 (same). Similarly,

although some of Abbott’s arguments focused on the more general

question of whether Abbott’s Miranda waiver and statements were

voluntary, others related to the Seibert/Norwood standard.5 But the

trial court never mentioned or cited Seibert or Norwood in the post-

remand hearing or in its written order.

      To be sure, the trial court made two new findings of fact post-

remand that can be viewed as aligning with the relevant



      4 Specifically, the State contended that “there was a lot more detail given

in [Abbott’s] statement post-Miranda”; that “Sergeant Langford testified that
he was not expecting to charge [Abbott]. He saw him as a victim but based on
what [Abbott] was saying he Mirandized him because he was worried that he
might incriminate himself”; and that “Sergeant Langford testified it’s not the
policy of the police department, it’s not the policy of Richmond County, it’s not
his own personal policy to attempt to elicit a statement from somebody and
then Mirandize them in hopes to get that statement back in. . . . [T]hat was
never his point here.”

      5 For example, Abbott’s counsel argued that Sergeant Langford engaged

in an improper interview strategy of questioning Abbott before providing
Miranda warnings and “that that’s a tactic and technique that they are using
to try and force [Abbott] to provide more information.”
Seibert/Norwood analysis: that Sergeant Langford testified he “was

going to read [Abbott] his rights afterward and that he totally

expected the defendant to lie to him,” and that “it was not

[Langford’s] policy to post [M]irandize and that this was not the

policy of the Richmond County Sheriff’s Department.” But the trial

court made no findings about other factors specific to the

Seibert/Norwood standard, such as the “‘completeness of the

prewarning interrogation, the continuity of police personnel and the

overlapping content of the pre- and post-warning statements.’”

Abbott I, 303 Ga. at 304 (quoting Norwood, 

). Indeed,

the trial court’s findings of fact end with the finding that Abbott

“was [M]irandized after he provided a statement,” without any

further findings about the post-Miranda interrogation.

     Moreover, the trial court’s conclusions of law — that Abbott

“did not, by a preponderance of the evidence, knowingly,

intelligently and voluntarily waive his Miranda [r]ights,” and “was

not properly advised of his Miranda [r]ights” — sound in a general

due-process   voluntariness    analysis,    rather   than    in   a
Seibert/Norwood analysis that focuses on whether Sergeant

Langford’s two-step interrogation “was a deliberate strategy, used

in a calculated way to undermine the Miranda warning,” as Siebert

and Norwood require. Abbott I, 303 Ga. at 304; see also Seibert, 

 (Kennedy, J., concurring); Norwood, 

.

     Given the trial court’s second suppression order, and in light of

the record, we cannot say that the trial court “dr[e]w any conclusion

as to whether Langford’s two-step interrogation was a deliberate

strategy, used in a calculated way to undermine the Miranda

warning” or “consider[ed] the totality of circumstances as part of

determining Langford’s subjective intent pursuant to Justice

Kennedy’s concurrence in Seibert,” as we directed. Abbott I, 303 Ga.

at 304; see also Brown v. Caldwell, 

 (

)

(1974) (presumption of regularity and legality in trial court

proceedings overcome and case remanded). Accordingly, we vacate

the trial court’s order, again remand this case, and re-direct the trial

court to apply the Seibert/Norwood legal standard to determine the

admissibility of Abbott’s post-Miranda statements. See Hughes v.
State, 

, 746 n.6 (

) (2015).

     Judgment vacated and case remanded with direction. All the
Justices concur, except Melton, C. J., who concurs in judgment only.




                    Decided September 8, 2020.

    Murder. Richmond Superior Court. Before Judge Roper.
    Natalie S. Paine, District Attorney, Joshua B. Smith, Tyler M.
Gray, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, for appellant.
    Ricardo Bravo, Charles R. Sheppard, for appellee.