FIRST DIVISION

DOYLE, C. J.,

PHIPPS, P. J, and BOGGS, 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

October 19, 2015

In the Court of Appeals of Georgia

A15A0907. THOMAS v. THE STATE. DO-036 C

DOYLE, Chief Judge.

Marcus Thomas was convicted of two counts of armed robbery1

and two counts

of possession of a firearm during the commission of a crime.2 Thomas appeals the

subsequent denial of his motion for new trial, challenging the sufficiency of the

evidence and arguing that the trial court erred by denying his Batson

3

 challenges to

the State’sstrikes of four prospective jurors and by admitting his custodialstatements

into evidence because the statements were obtained after he invoked his right to

remain silent. We affirm for the reasons that follow.

1

 OCGA § 16-8-41 (a).

2

 OCGA § 16-11-106 (b) (1).

3 Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986).
On appeal from a criminal conviction, we view the evidence in a

light favorable to the verdict, and the defendant no longer enjoys a

presumption of innocence. We do not weigh the evidence or resolve

issues of witness credibility, but merely determine whether the evidence

was sufficient to find the defendant guilty beyond a reasonable doubt.

4

So viewed, the record showsthat at approximately 9:00 a.m. on November 19,

2007, Thomas and an accomplice entered an Augusta gas station, produced a pistol,

and demanded the money in the cash register. A customer saw the two men exit the

store and run towards a large, blue vehicle in which a woman was waiting. 

Later that same day, Thomas and a woman entered an Augusta Subway

restaurant. Thomas brandished a black pistol, pointed it at the restaurant employees,

demanded money, took paper bills as well asrolled coinsfromthe cash drawer, exited

the restaurant, and fled in a light blue van. Thomas had a bandana tied around his

face, and the female accomplice wore a white, hockey or “Freddy Kru[e]ger” mask

and gloves. 

During the ensuing investigation, police discovered that Thomas’s wife was a

former employee of the Subway. Police went to the home where Thomas and his wife

4

(Footnotes omitted.) New v. State, 270 Ga. App. 341 (1) (606 SE2d 865)

(2004), citing Waller v. State, 267 Ga. App. 608 (600 SE2d 706) (2004). 

2
lived, and found both of them there, as well as multiple other people. A search of the

home revealed a hockey mask, a black replica pistol, a Subway ball cap, a bandana,

gloves, other clothing consistent with that worn by the assailants during the robberies,

and a roll of pennies; these items were found in the bedroom Thomas shared with his

wife. 

At trial, the gas station clerk identified Thomas as the man who robbed the

station Footage of video surveillance of the gas station robbery was played for the

jury, as was footage of the Subway robbery. After Thomas was arrested, he initially

denied any involvement in the robberies, but after being confronted with evidence,

he later admitted that he participated in the robberies and gave details of his actions;

a DVD of Thomas’s taped statement was played for the jury.

Thomas was convicted and sentenced to two life sentences plus ten years, to

be served consecutively. The trial court denied his subsequent motion for new trial,

and this appeal followed.

1. Thomas challenges the sufficiency of the evidence in a single paragraph,

which lacks any specificity regarding the evidence or the elements of the charges.

3
Having reviewed the evidence, we conclude that it wassufficient to establish his guilt

beyond a reasonable doubt.

5

2. Thomas contends that the trial court erred by denying his Batson challenge,

arguing that the State failed to give a race-neutral reason for four of its peremptory

strikes during jury selection. This enumeration presents no basis for reversal.

Batson provides a three-step processfor adjudicating a claim that

a peremptory challenge was based on race: (1) the opponent of a

peremptory challenge must make a prima facie showing of racial

discrimination; (2) the proponent of the strike must then provide a raceneutral explanation for the strike; and (3) the court must decide whether

the opponent of the strike has proven discriminatory intent. A trial

court’s finding as to whether the opponent of a strike has proven

discriminatory intent is entitled to great deference and will not be

disturbed unless clearly erroneous.

6

5 See Jones v. State, 266 Ga. App. 679, 681-682 (1) (598 SE2d 650) (2004).

See also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)

(1979); OCGA § 16-8-41 (a) (armed robbery); OCGA § 16-11-106 (b) (1)(possession

of a firearm during the commission of a felony).

6

(Citation omitted.) Woodall v. State, 294 Ga. 624, 627 (3) (754 SE2d 335)

(2014).

4
“The exercise of a peremptory challenge must not be based on either the race of the

juror or the racial stereotypes held by the party. And the proffer of a pretextual

explanation naturally gives rise to an inference of discriminatory intent.”7

Here, although voir dire was not transcribed, during the Batson hearing,

defense counsel averred that the State used all of its eight strikes for the regular jury

and both of its two strikes in the alternate pool to strike black jurors.

8 The trial court

found that the defense had met its prima facie showing of racial discrimination and

required the State to give race-neutral reasons for its strikes.

9 After hearing the

reasons, the trial court found that three of the State’s strikes for the regular jury were

not race-neutral, and it returned those jurors to the panel; the court found that the

7

(Citation and punctuation omitted.) Minor v. State, 328 Ga. App. 128, 135 (4)

(761 SE2d 538) (2014), quoting Toomer v. State, 292 Ga. 49, 55 (2) (b) (734 SE2d

333) (2012) and Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993).

8 Defense counsel advised that the jury and the two alternates were comprised

of seven white jurors and seven black jurors. The record is not clear on which were

the alternates.

9

“[R]equir[ing] the State to articulate its reasons for the peremptory strikes,

render[ed] moot the issue of whether [Thomas] had established a prima facie case.

Accordingly, we [need] not address whether [Thomas] established a prima facie case

under Batson.” Minor, 328 Ga. App. at 137 (4).

5
State offered a race-neutral explanation for the State’s five other peremptory strikes

for the regular jury.

10

On appeal, Thomas challenges the State’s explanations for four of the five

strikes that the trial court determined were race-neutral. The State explained that it

struck (1) Juror C. W. because she indicated that she had previously served on a jury

and could not sit fairly in this case; (2) Juror S. B. because she had previously served

on multiple juries, some of which resulted in a not guilty verdict11; (3) Juror K. W.

because she fell asleep during voir dire and had previously served as the foreperson

on a jury that rendered a not guilty verdict; and (4) Juror D. J. because he indicated

“that he could not judge a fellow human being.” 

[Thomas] does not argue that the reasons cited for striking Jurors

[C. W., S. B., K. W., and D. J.] were inherently racially discriminatory

or based on racial stereotypes, nor has he cited us to any authority

holding that similar reasons have been found to be based on racial

stereotypes. And without the transcript of the voir dire, we must assume

that the trial court’srecollection of voir dire, including [his]recollection

10 The trial court found that the State offered race-neutral reasons for its two

strikes for the alternate jurors. Thomas does not challenge these strikes on appeal.

11 The State also averred that it had independent information – not offered by

S. B. – that in one case she was “a hostile juror” and refused to sit with the other

jurors. 

6
of each juror’s responses and demeanor, was accurate and supported

[his] decision to find the prosecution’s explanations as to [those j]urors

. . . to be race[-] neutral. Therefore, without access to a complete

transcript of the voir dire of the jury, we cannot conclude that it was

clearly erroneous for the trial court to rule that [Thomas] failed to carry

his burden of proving that the race-neutral reasons given by the

proponent of the strike[s] were merely pretexts for purposeful racial

discrimination. The posture of the evidence in the partial transcript does

not support [Thomas’s] Batson challenge. Since the voir dire was not

transcribed, we must assume that the trial court did not err in its Batson

ruling.

12

3. Thomas also argues that the trial court erred by admitting his custodial

statement, which he contends violated his Miranda

13

 rights.

“When an appellate court reviews a trial court’s grant or denial of a motion to

suppress, the trial court’s findings as to disputed facts will be upheld unless clearly

erroneous[,] and the trial court’s application of the law to undisputed facts is subject

12

(Punctuation and footnote omitted.) Id. at 140 (6), quoting Russell v.

Parkford Management Co., Inc., 235 Ga. App. 81, 83 (2) (508 SE2d 454) (1998).

13 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16LE2d 694) (1966).

7
to de novo review.”14

In this case, because the facts are undisputed, our review is de

novo.

15

Thomas was taken into custody at his home and transported to the police

station, where he was placed in a six foot by six foot room, and hisfeet were shackled

to the floor. At 4:20 p.m., Sergeant Ken Rogers entered the room, told Thomas that

he was a suspect in their investigation of two robberies and that they needed to

interview him, and then elicited from Thomas basic information including his name

and date of birth.

16 Rogers then read Thomas his Miranda rights. Thomas responded

“that he did not want to make a statement.” Rogers “then spoke with him a couple –

a little bit further[,] and [Thomas] basically said he had no knowledge of any

robberies and that [the police] could just put him in jail.” Rogers then left the room.

Thomasremained alone in the small interview room for more than three hours,

during which time his feet were shackled to the floor, and he was not offered food,

water, or the opportunity to use the restroom. Around 8:00 p.m., Rogers and another

investigator approached Investigator James Kelly, advised him that Thomas was in

14

 State v. Nash, 279 Ga. 646, 648 (2) (619 SE2d 684) (2005).

15

 See Mack v. State, 296 Ga. 239, 241-242 (765 SE2d 896) (2014).

16

 This colloquy was not recorded.

8
the interview room and had refused to speak with them, and asked Kelly to go in and

attempt to speak with Thomas.

17

Kelly entered the interview room at 8:20 p.m. and began speaking with

Thomas, “[a]dvis[ing him]that he needed to cooperate with the[]investigators.” Kelly

then told Thomas that Thomas’s wife had made a statement to police incriminating

Thomas. When Thomas responded that he did not believe Kelly, Kelly left the room,

retrieved the audio recording of Thomas’s wife’s statement, and played a small

portion of it for Thomas. Thomas then agreed to speak with the other investigators

about the robbery, signed a Miranda waiver form, and gave a recorded statement

detailing his involvement in the two robberies. 

In examining the operation of the Fifth Amendment’s privilege

against self-incrimination, the United States Supreme Court has made

clear that when an individual in custody “indicatesin any manner, at any

time prior to or during questioning, that he wishes to remain silent, the

interrogation must cease.” At this point, that individual “has shown that

he intends to exercise his Fifth Amendment privilege; any statement

17 At the suppression hearing, when asked why he sent Kelly in to speak with

Thomas, Rogersreplied, “[b]asically, what occursis – my experience isif I interview

somebody I may get nothing. Another investigator may go in there and get them to

confess everything and anything. . . . So we customarily take turns at trying to get

them to talk and so forth. It’s not uncommon.” 

9
taken after the person invokes his privilege cannot be other than the

product of compulsion.”18

Here, Thomas unequivocally invoked his right to remain silent when he told

Rogers that he “was not making a statement and that [the police] could just put him

in jail.”19 The invocation itself, however, does not automatically require suppression

of Thomas’s statement because 

an accused’s assertion of his right to remain silent effects neither a

permanent immunity from further interrogation by the police nor a

blanket prohibition on later statements made voluntarily by the accused.

Rather, the admissibility of statements obtained after the person in

custody has decided to remain silent depends under Miranda on whether

his right to cut off questioning was scrupulously honored by law

enforcement authorities.

20

18

(Citation omitted.) Id. at 242 (1), quoting Miranda, 384 U. S. at 473-474

(III). 

19 See Mack, 296 Ga. at 242-243 (1) (defendant’s statement that “I’m done. I

have no more to say. I’m done. Let’s ride,” was an unequivocal assertion of the right

to remain silent); Green v. State, 275 Ga. 569, 572-573 (2) (570 SE2d 207) (2002)

(finding unequivocal assertion of right to remain silent when the defendant told

police, “I don’t want to talk.”).

20

(Citation and punctuation omitted.) Mack, 296 Ga. at 243 (2), quoting

Michigan v. Mosley, 423 U. S. 96, 102, 104 (96 SCt. 321, 46 LE2d 313) (1975). 

10
Factors in determining whether a defendant’s assertion of his right to remain

silent was scrupulously honored include whether police immediately ceased all

questioning upon assertion and the time interval between the assertion and the

subsequent police-initiated questioning.

21 After applying these factors, we conclude

that Thomas’s statement was improperly obtained.

First, Rogers admitted at the suppression hearing that after Thomas told him

that he would not make a statement, Rogers “spoke with him a couple – a little bit

further.”22

 And less than four hours transpired before Rogers sent Kelly in to speak

with Thomas. Thus, this short time interval weighs in favor of suppression.

23

Secondly, there is no evidence that Thomas initiated the conversation with Kelly.

Instead, Kelly went into the room, without any communication from Thomas during

the break after Rogers left the room, and Kelly immediately advised Thomas to

cooperate and then began advisingThomas of his wife’sstatement incriminating him.

21

 See Mack, 296 Ga. at 243 (2).

22 The record is silent as to the substance of the brief colloquy before Kelly left

the interview room.

23 See id. (“Although the Supreme Court of Georgia “[has] never established

a bright line for what constitutes the requisite time interval in this regard, [it has]

previously held . . . that a 17-hour overnight time lapse between assertion of the

privilege and further police communications was not sufficient.”).

11
Under these circumstances “the State has failed to satisfy its burden to establish an

effective initiation by [Thomas].”24 Accordingly, we hold that Thomas’s statements

made after he invoked his right to remain silent were improperly obtained.

Nevertheless, we find the error harmlessin light of the overwhelming evidence

of Thomas’s guilt, including the gas station attendant’s identification of him, the

video surveillance footage of the two robberies, the multitude of items found in his

bedroom linking him to the robberies, and the fact that his wife, who participated in

the robbery of the Subway, was a disgruntled former employee of the restaurant.

25

Judgment affirmed. Phipps, P. J., and Boggs, J., concur.

24

 (Punctuation omitted.) Id. at 249 (2).

25 See Arizona v. Fulminante, 499 U. S. 279, 295 (IV) (111 SCt 1246, 113

LE2d 302) (1991) (stating that the “harmless-error analysis applies to coerced

confessions”); Richardson v. State, 265 Ga. App. 711, 716 (1) (595 SE2d 565)

(2004), disapproved on other grounds by Brown v. State, 290 Ga. 865, 869, n. 2 (725

SE2d 320) (2012); Hadley v. State, 235 Ga. App. 737, 738 (510 SE2d 569) (1998).

12