In the Supreme Court of Georgia

Decided: November 2, 2023

S23A0534. JENKINS v. THE STATE.

 PETERSON, Presiding Justice.

The question in this case is whether Larry Jenkins’s 

unequivocal statement that he would not talk to law enforcement 

without a lawyer was a valid invocation of his Miranda1 rights. 

Agreeing with the State, the trial court concluded that the statement 

came at a time that Jenkins was not being interrogated and at which 

no interrogation was imminent, and thus it was “anticipatory” and 

invalid under a line of precedent from several federal courts of 

appeals. We need not decide here whether that line of precedent is 

correct, because the trial court erred by extending that precedent to 

the circumstances in this case. At the time that Jenkins invoked his 

Miranda rights, he (1) was in custody for the crimes at issue in this 

1 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
2

case, (2) had been given Miranda warnings, (3) had already been 

subjected to custodial interrogation by law enforcement on the way 

to the jail, and (4) was going through the booking process. Whether 

or not the booking process itself was custodial interrogation, the 

facts of this case show that a reasonable person in Jenkins’s position

would have believed that interrogation was at least imminent. 

Accordingly, his unequivocal invocation was valid, the State’s failure 

to honor it rendered his custodial statements inadmissible, and the 

State has failed to show that the use of that inadmissible evidence 

was harmless. Accordingly, we reverse Jenkins’s convictions; 

because the evidence against him was constitutionally sufficient, he 

may be retried.

Before his 1995 trial, Jenkins moved to suppress his confession 

and other evidence gathered therefrom; the trial court granted his 

motion. Even without that evidence, Jenkins was convicted and 

sentenced to death for a murder he committed when he was 17; we 

affirmed in 1998. In 2005, a habeas court vacated his death sentence 

under Roper v. Simmons, 543 U.S. 551 (125 SCt 1183, 161 LE2d 1) 
3

(2005), and granted a new trial on the basis of ineffective assistance 

of trial counsel; we affirmed in 2006. In 2014, the State, seeking to 

retry Jenkins, filed a “Motion to Admit into Evidence at Trial 

Defendant’s Post-Arrest Statements to Law Enforcement Officers 

and Physical Evidence Discovered from Interrogation of the 

Defendant,” which the trial court and parties treated as a motion to 

reconsider the previously granted motion to suppress.2

2 In late January 1993, a Wayne County grand jury indicted Jenkins on 

several charges, including as pertinent here, two counts of malice murder,

armed robbery, kidnapping with bodily injury, two counts of theft by taking, 

and theft by receiving stolen property, and he was convicted on all of those 

counts and sentenced to death following a September 1995 trial. See Jenkins 

v. State, 269 Ga. 282, 282 n.1 (498 SE2d 502) (1998). This Court affirmed 

Jenkins’s convictions and sentences. See id. A habeas court later vacated his 

death sentences (the Supreme Court had held in Roper that the United States 

Constitution forbade imposing the death penalty on juvenile offenders, and 

Jenkins was 17 at the time of the crimes) and convictions (for ineffective 

assistance of counsel in failing to conduct a reasonable investigation). This 

Court affirmed the grant of habeas relief on appeal. See Terry v. Jenkins, 280 

Ga. 341 (627 SE2d 7) (2006).

In September 2014, a jury found Jenkins guilty of all counts: two counts 

of malice murder, one count of armed robbery, two counts of kidnapping with 

bodily injury, two counts of theft by taking, and one count of theft by receiving 

stolen property. The trial court sentenced Jenkins to serve consecutive terms 

of life in prison on the two malice murder counts, the armed robbery charge, 

and one of the kidnapping counts; the court also imposed a consecutive 10-year 

term on the theft by taking count. The remaining counts merged for sentencing 

purposes. On November 13, 2014, Jenkins filed a timely motion for new trial, 

which he amended through new counsel on August 22, 2020. Following an 

evidentiary hearing, the trial court granted Jenkins’s motion for new trial on 
4

The trial court determined that Jenkins’s custodial statements 

(including a confession) were admissible because Jenkins had not 

validly invoked his right to counsel under Miranda. The court 

reasoned that 17-year-old Jenkins’s invocation was “anticipatory” 

because, even though he was in custody, had been advised of his 

Miranda rights, and during booking by law enforcement 

unequivocally stated that he would not talk without the assistance 

of an attorney, Jenkins was merely going through the booking 

process, not being formally interrogated. After his confession was 

introduced against him at his second trial, Jenkins was convicted 

and this appeal ensued. 

On appeal, Jenkins argues that the trial court lacked the 

authority to revisit the prior suppression order, and that even if it 

had such authority, the trial court erred in concluding that his 

the theft by taking and theft by receiving stolen property counts, but otherwise 

denied Jenkins’s motion for new trial. Jenkins filed a timely notice of appeal 

to this Court, but the appeal was dismissed due to the pendency of his theft 

counts in the trial court. See Seals v. State, 311 Ga. 739 (860 SE2d 419) (2021) 

After the trial court dismissed the theft counts at the request of the State, 

Jenkins filed a timely second notice of appeal to this Court on January 10, 

2023. The case was docketed to this Court’s April 2023 Term and submitted for 

a decision on the briefs.
5

invocation of his rights was ineffective because it was anticipatory. 

Because the trial court erred in concluding that the statements were 

admissible, we do not reach the issue of the trial court’s authority to 

reconsider the previous ruling.3 Even under the “no anticipatory

invocation” rule relied on by the State (a rule that we have never 

adopted and express no view on today), a defendant can effectively

invoke his Miranda rights if an interrogation is “imminent,” and 

under the facts of this case detailed below, the State has not met its 

burden of showing that a suspect in Jenkins’s position would not 

have reasonably believed an interrogation was imminent. We 

therefore reverse.

1. The Trial Evidence

The evidence presented at Jenkins’s 2014 retrial showed that, 

around 7:00 p.m. on January 8, 1993, Terry Ralston and her oldest 

son, Michael, left their home in Terry’s 1991 white Chevy Lumina 

van to close one of the laundromats that Terry’s parents owned in 

3 We express no view about the merits of the dissent’s treatment of this 

very difficult state-law question.
6

Jesup. In addition to cleaning the facility that evening, Terry was 

also scheduled to collect quarters from the machines. Around 10:00 

p.m., when Terry and Michael had not returned home from the 

laundromat, Terry’s father went to the laundromat to check on 

them, but they were not there. Later that night, Terry’s husband 

contacted law enforcement to report that Terry and Michael were 

missing. Law enforcement began looking for Terry and Michael and 

the Chevy Lumina.

On the morning of January 9, two employees of a railroad

company discovered two bodies — later identified as Terry and 

Michael — in a shallow ditch a short distance away from the railroad 

tracks. The employees immediately called law enforcement, and law 

enforcement officers from the Wayne County Sheriff’s Department, 

the Jesup Police Department, the GBI, and the Department of 

Natural Resources arrived on the scene shortly thereafter. 

The night before the bodies were found, between 9:00 and 10:00 

p.m., a police officer had noticed a white van near the train tracks 

where the victims’ bodies were found. The officer testified that the 
7

van he saw that night looked similar to Terry’s Chevy Lumina van.

During the late morning hours of January 9, police began looking for 

Terry’s van. Officer Glenn Jackson and another police officer drove 

to an overpass area by the railroad tracks in anticipation of the van 

traveling in that direction. Shortly thereafter, Officer Jackson 

“observed the white van come over the hump of the railroad tracks 

and about halfway down around the curve” and come to a stop, at 

which point four “male subjects jumped out and started running in 

different directions.” Officer Jackson pursued the driver of the van, 

who ran towards the adjacent railroad tracks, slid under a boxcar, 

and then escaped into the woods on the other side, where Officer 

Jackson lost sight of him. 

Captain Doug Lewis with the Department of Natural 

Resources — who had been working alongside other law 

enforcement agencies to help secure the crime scene — testified that 

he also heard a radio call reporting that a white van had been seen 

in Jesup by the overpass and that law enforcement was requesting 

assistance for “some people that were fleeing” from the van and 
8

“running up the railroad tracks.” Captain Lewis drove to that area 

and parked his vehicle. He did not see any of the suspects, but he 

walked around the area adjacent to the overpass and noticed a green 

backpack lying on the ground. Captain Lewis contacted a GBI agent 

to come and secure the backpack. GBI Agent Weyland Yeomans 

testified that he met Captain Lewis at the location of the backpack, 

and he seized the bag and its contents. Agent Yeomans testified that 

there was $142.50 in the bag, almost all of it in quarters. Agent 

Yeomans also found quarter wrappers in the bag, some of which had 

quarters inside of them, as well as a Kentucky Fried Chicken name 

badge with the name “David” on it. 

While Officer Jackson was still monitoring the overpass area, 

Annie Ruth Mathis — a woman who lived nearby — approached him 

and advised that she had brought him a gun that her children and 

grandchildren had discovered near her house. Officer Jackson 

retrieved the gun and contacted GBI agents to inform them that he 

had received a gun that might be related to the crimes. Officer 

Jackson later testified that the gun was a Grendel handgun, but he 
9

was not certain of the caliber. 

Mathis testified that she lived about one or two blocks away 

from the overpass. She was at home on January 9, and around 

lunchtime, she walked out onto her porch with her husband and her 

son because they heard an airplane flying over their house.4 Mathis 

noted that the airplane was circling low over the area. Around the 

same time, Mathis saw Jenkins — whom she had known since he 

was a baby — walking down the street, and she saw him throw 

something “out of his hand.” As Jenkins got closer to her house, a 

person inside the airplane screamed down for Mathis and her family 

to get back inside the house because “he” — referring to Jenkins —

was “dangerous.” Mathis said that Jenkins started “jogging” at that 

point and jogged “right in front of [her] house and jogged right on 

around the corner and on down the street.” Mathis went around to 

her backyard, and a few minutes later, one of her grandchildren 

came running into the backyard and handed her a gun inside a “little 

4 Testimony at trial established that law enforcement officers were also 

flying a plane through this area in search of the missing white van and the 

suspects. 
10

black pouch thing.” Mathis testified that her children and 

grandchildren had been playing outside in the street in front of her 

house when they found the gun. Mathis said she put the gun in her 

car, “took it up the road” to the railroad tracks where she had “seen 

the police[,]” and gave it to one of the officers. 

Ken Mullis, a deputy with the Wayne County Sheriff’s 

Department, testified that he had been part of the search for the 

missing Chevy Lumina van and the suspects on January 9. 

According to Deputy Mullis, he had been “listening to the radio 

traffic from the airplane” when he heard that the van had been 

located. He got into his patrol car and headed toward the overpass 

area where the van had stopped. As he was driving, he looked in his 

rearview mirror and saw someone running. Deputy Millis gave 

chase on foot and saw the individual trying to crawl under a trailer. 

Deputy Mullis apprehended the individual, later identified as 

Jenkins. Deputy Mullis testified that he read Jenkins his Miranda

rights on the way to the patrol car, and he then transported Jenkins 

to the Wayne County Jail. While Jenkins was being booked into the 
11

jail, Jenkins said he wanted an attorney before answering any 

questions. The booking officer — Angela Robinson — pulled a 

learner’s permit out of Jenkins’s right pocket and gave it to Deputy 

Mullis. The learner’s permit belonged to Michael Ralston. 

During a subsequent search of the interior of the Chevy 

Lumina van, GBI Agent Yeomans located a .22 Magnum clip on the 

front driver’s side floorboard, some loose quarters and quarter sleeve 

wrappers, and a green and gold tote bag containing a few quarters 

and articles of clothing. Agent Yeomans also searched the area 

around the van, and about five feet away from the passenger side 

door of the van, he found a camouflage cooler bag containing “a .22 

Magnum pistol, a .44[-] caliber pistol, and a 9mm pistol,” along with 

“about four .44 Magnum shells.” Officers, who had been unable to 

thoroughly search the crime scene because it had been under a few 

inches of water, returned to the crime scene with a metal detector to 

look for bullets or cartridge cases. Officers located six cartridge cases 

and one metal projectile, all .22-caliber ammunition. 
12

Dr. John Parker, a medical examiner and forensic pathologist 

for the GBI, testified that he performed the autopsies on Terry and 

Michael. According to Dr. Parker’s testimony, Terry was shot on the 

“right side of the back of the head,” and Michael was shot six times

— four in his back, one in his arm, and one in his left temple — and 

the cause of death for both victims was a gunshot wound to the head. 

Dr. Parker removed several bullets from both victims during the 

autopsies, which were then sent to the ballistics section of the 

forensic laboratory at the GBI for testing. 

Dr. Roger Parian, a firearms examiner for the GBI, testified 

that he tested the bullets and cartridge cases recovered from the 

crime scene and the victims. Dr. Parian determined that all of the 

recovered bullets and cartridge cases had been fired from the gun 

recovered by Mathis and turned into police — a Grendel .22 

Magnum handgun.5

5 Both Dr. Parker and Dr. Parian testified at the first trial but died prior 

to the retrial in 2014. Using the transcripts from the first trial, the State read 

their testimony into evidence at the retrial. 
13

At trial, Michael DeLoach testified that, on the morning of the 

murders, someone broke into his house near Jesup Elementary 

School and stole several handguns and other items of value, and he 

reported it to the police the same day. A few days later, Agent 

Yeomans contacted DeLoach and asked if he would look at evidence 

the GBI had collected during a murder investigation to see if he 

recognized any of the items. GBI agents brought the items to 

DeLoach, and he was able to identify the items found near the Chevy 

Lumina van as being stolen from his residence on January 8 —

namely, (1) a “.22 Magnum semiautomatic” handgun, (2) a .22-

caliber clip, (3) a camouflage cooler bag, (4) a “.44 Magnum Ruger,” 

(5) “a high-power 9mm[,]” and (6) .22 Magnum bullets. 

During a custodial interview, conducted the day after he was 

booked into the jail, Jenkins confessed to stealing the firearms and 

ammunition that belonged to DeLoach and that he used the .22 

handgun to kill Terry and Michael Ralston. Jenkins also stated that 

he discarded a pocketbook he found in the van and agreed to take 

the GBI agents to the location where he discarded it. The agents 
14

found “a brown pocketbook and an associated clutch purse with the 

name of — with an identification document in it, including a driver’s 

license of Terry M. Ralston.” These custodial statements are at issue 

in this case.

2. Jenkins’s Claims on Appeal.

Jenkins argues that the trial court erred in admitting his 

custodial statements, as well as the evidence subsequently 

recovered — the victim’s pocketbook and its contents — at the new 

trial in 2014. Jenkins argues that (1) the trial court had already 

suppressed this evidence before the first trial, and the trial court 

presiding over the new trial lacked authority to revisit that prior 

ruling; and (2) even if the trial court was authorized to revisit that 

decision, the trial court erred in concluding that Jenkin’s invocation 

of his right to counsel was invalid because it was anticipatory and 

occurred before he was actually questioned by law enforcement. 

We do not reach the issue of the trial court’s authority to revisit 

its prior ruling because we conclude that the court erred in 

determining that Jenkins did not validly invoke his Miranda rights.
15

Although we conclude that the trial court erred in admitting 

Jenkins’s custodial statements, we do not reach the issue of whether 

the physical evidence derived from Jenkins’s custodial interview 

was due to be suppressed because that is a separate issue that was 

not preserved below.6

6 Although Jenkins argued at his 2014 trial that the physical evidence 

was inadmissible as the “fruit of the poisonous tree,” without explaining why,

the trial court concluded that the evidence was admissible because Jenkins 

voluntarily and freely participated in the custodial interviews which led to the 

seizure of that physical evidence. See Patane v. United States, 542 U.S. 630, 

642-644 (IV) (124 SCt 2620, 159 LE2d 667) (2004) (three-Justice plurality 

concluding that the failure to provide Miranda warnings did not require 

suppression of the physical fruits of the suspect’s unwarned but voluntary 

statements, while noting that suppression would be required if statements 

were coerced); id. at 644-645 (two Justices agreeing that nontestimonial 

physical fruits were admissible); see also Clay v. State, 290 Ga. 822, 828 (1) (B) 

(725 SE2d 260) (2012) (“Patane held that the suppression of the physical fruits 

of a defendant’s unwarned but voluntary statements is not constitutionally 

required[.]”). When examining the admissibility of evidence that is contended 

to be fruit of the poisonous tree, “the appropriate question” is whether the 

challenged evidence has been obtained “by exploitation of that illegality or 

instead by means sufficiently distinguishable to be purged of the primary 

taint.” Teal v. State, 282 Ga. 319, 323 (2) (647 SE2d 15) (2007) (citing Wong 

Sun v. United States, 371 U.S. 471, 488 (83 SCt 407, 9 LE2d 441) (1963); 

punctuation omitted)); see also State v. Chulpayev, 296 Ga. 764, 773 (3) (a) (770 

SE2d 808) (2015) (“[N]ot all evidence is deemed fruit of the poisonous tree 

simply because it would not have come to light but for the illegal actions of the 

police.” (citation and punctuation omitted)). This examination depends on the 

“facts of the case” and the consideration of several factors, but the parties made 

no argument regarding these factors and the trial court made no ruling on 

them since it concluded that Jenkin’s custodial statements were not illegally 

obtained, and so there is nothing for us to review on this point. See Kessler v. 
16

(a) Before the first trial of this case in 1995, the trial court 

conducted a Jackson-Denno7 hearing on the admissibility of 

Jenkins’s confession; the relevant part of the hearing took place 

across two days, March 9, 1995 and March 16, 1995.8 Testimony 

from various law enforcement officers showed that when Jenkins 

was arrested, Deputy Mullis advised Jenkins of his Miranda rights 

State, 311 Ga. 607, 613 (3) n.8 (858 SE2d 1) (2021) (issue not raised or ruled 

upon by the trial court is not preserved for review on appeal). 

7 Jackson v. Denno, 378 U.S. 368 (84 SC 1774, 12 LE2d 908) (1964). 8 The transcripts of these hearings were not included in the record of this 

appeal, but they are available in our archives in the record associated with 

Jenkins’s first direct appeal in 1998. These transcripts were the only evidence 

considered by the trial court in 2014, and thus are critical to review that court’s 

decision. Accordingly, we take judicial notice of these transcripts. See Baez v. 

Miller, 266 Ga. 211, 211 (465 SE2d 671) (1996) (a court may take judicial notice 

of records on file in its own court).

At the March 16, 1995, hearing, the State specifically cited McNeil and 

argued that a defendant’s invocation of the Sixth Amendment right to counsel 

is insufficient to invoke Miranda’s protections. At that hearing, the State’s 

focus was on challenging the credibility of Officer Robinson’s testimony, 

arguing that the trial court should find that Jenkins had not actually stated 

that he wanted an attorney. The State conceded that, if the Court found that

Jenkins made the statement, “all of those items are suppressible.” But the 

1995 trial court found that Jenkins did invoke Miranda in granting the motion 

to suppress, and the State on retrial did not challenge this factual finding, 

arguing only that the invocation was anticipatory. 

The dissent nevertheless appears to challenge the veracity of Jenkins’s 

statement by pointing out that two officers did not hear Jenkins invoke his 

right to counsel. But credibility determinations are for the trial court, and the 

State does not dispute that Jenkins made an unequivocal assertion that he 

wanted an attorney. 
17

and then took Jenkins to the Wayne County Jail. On the way to the 

jail, Deputy Mullis and another detective questioned Jenkins, 

including about the other passengers in the van. At the jail, Deputy 

Mullis took Jenkins to the booking area and participated in helping 

search him for weapons. As Officer Robinson patted him down for 

contraband or weapons, Jenkins stated that he “wasn’t answering 

any questions without his lawyer or without a lawyer.” Officer 

Robinson testified that, despite her limited law enforcement 

experience, she assumed Jenkins was going to be interviewed. 

Two GBI agents went to the jail the next day to interview 

Jenkins, and prior to the interview, they advised Jenkins of his 

Miranda rights. Jenkins then signed a Miranda acknowledgment 

and waiver form before the agents proceeded with the custodial 

interview at issue here. Following the Jackson-Denno hearing, the 

trial court entered an order suppressing Jenkins’s custodial 

statements, as well as the recovery of the victim’s pocketbook based 

on information provided to the agents during Jenkins’s custodial 

interview, concluding that Jenkins “unequivocally invoked his right 
18

to counsel [to Officer Robinson] when he arrived at the Wayne 

County Detention Center.” 

Prior to Jenkins’s new trial in 2014, the State filed a “Motion 

to Admit Into Evidence at Trial Defendant’s Post-Arrest Statements 

to Law Enforcement Officers and Physical Evidence Discovered from 

Interrogation of the Defendant.” The State argued that it was 

“appropriate” for the trial court to revisit the prior ruling based on 

the “impact of more recent case law, as well as cases then decided 

but perhaps not called to the attention of or not considered” by the 

former trial court, citing McNeil v. Wisconsin, 501 U.S. 171 (111 SCt

2204, 115 LE2d 158) (1991), as an example. At a hearing on the 

issue, the State claimed that it attached as an exhibit to its motion 

the transcript of the first 1995 hearing.9 That hearing did not show 

any reference to McNeil. But the State clearly relied upon McNeil at 

the second suppression hearing in 1995.

9 The State’s motion listed several documents that it stated were 

attached as exhibits; as noted earlier, the record does not appear to contain 

them and efforts by our clerk’s office to obtain them from the trial court were 

unsuccessful.
19

Following a hearing in September 2014, the trial court ruled 

that it had the authority to revisit the prior suppression ruling and 

concluded that Jenkins’s custodial statements were admissible at 

the new trial. In considering the admissibility of the custodial 

statements, the trial court observed that, although Jenkins invoked 

his right to counsel during the booking process on January 9, he did 

not do so before being questioned by GBI agents on January 10. And 

the trial court concluded that, because Miranda rights cannot be 

invoked anticipatorily in contexts other than custodial interviews

and because the booking process is not considered to be a custodial 

interview “unless there are special circumstances which convert it 

into an inquiry intended to elicit incriminating statements,” 

Jenkins’s statements were admissible at trial. On the facts of this 

case, we disagree.

(b) As we have said before, 

Miranda warnings must be administered to an accused 

who is in custody and subject to interrogation or its 

functional equivalent. This requirement arises when a 

person is (1) formally arrested or (2) restrained to the 

degree associated with a formal arrest.
20

State v. Walden, 311 Ga. 389, 389 (858 SE2d 42) (2021) (citations 

and punctuation omitted); see also Tolliver v. State, 273 Ga. 785, 786 

(546 SE2d 525) (2001) (“Miranda protections adhere when an 

individual is (1) formally arrested or (2) restrained to the degree 

associated with a formal arrest.” (citing Stansbury v. California, 511 

U.S. 318 (114 SCt 1526, 128 LE2d 293) (1994)).10 Miranda outlines 

the procedures to be followed once warnings have been given, 

making clear that once warnings are given and one of the rights

referenced therein is invoked, police must honor that invocation:

Once warnings have been given, the subsequent 

procedure is clear. If the individual indicates in any 

manner, at any time prior to or during questioning, that 

he wishes to remain silent, the interrogation must cease.

. . . If the individual states that he wants an attorney, the 

10 Although the protections of Miranda apply only to custodial 

interrogations, Miranda warnings are often given upon a defendant’s arrest 

because certain questions posed to a suspect in custody even before a formal

interrogation could nevertheless be considered a custodial interrogation or the 

functional equivalent of one. See State v. Brown, 287 Ga. 473, 476 (2) (697 SE2d 

192) (2010) (explaining that “interrogation” is “express questioning by law 

enforcement officers or its functional equivalent — any words or actions on the 

part of the police (other than those normally attendant to arrest and custody) 

that the police should know are reasonably likely to elicit an incriminating 

response from the suspect” (citations and punctuation omitted)).
21

interrogation must cease until an attorney is present.

Miranda, 384 U.S. at 473-474 (emphasis supplied). 

No one disputes that Jenkins was in custody for the crimes at 

issue when he was advised of his Miranda rights. And there is no 

question that some time after that advisement, Jenkins’s statement 

— that he “wasn’t answering any questions without his lawyer or 

without a lawyer” — was a clear and unequivocal assertion that he 

wanted an attorney.11 See, e.g., State v. Brown, 287 Ga. 473, 476 (2) 

(697 SE2d 192) (2010) (“I want a lawyer” was an unequivocal 

assertion of the right to counsel). The trial court ruled here that 

Jenkins’s invocation was nevertheless invalid because it was 

“invoked anticipatorily,” since he was not being interrogated at the 

time he made the statement. In support, the trial court cited a 

footnote in McNeil v. Wisconsin, where the United States Supreme 

Court noted that “[w]e have in fact never held that a person can 

11 In its 2014 order, the trial court noted that the State never challenged 

Jenkins’s statements as being equivocal, and the court found that Jenkins 

unambiguously invoked his right to counsel. 
22

invoke his Miranda rights anticipatorily, in a context other than 

‘custodial interrogation[.]’” 501 U.S. at 182 n.3.

Construing McNeil’s footnote, several federal circuits have 

held that Miranda rights may be invoked only during a custodial 

interrogation or when an interrogation is imminent. See, e.g., 

United States v. Grimes, 142 F3d 1342, 1348 (11th Cir. 1998); United 

States v. LaGrone, 43 F3d 332, 335-340 (7th Cir. 1994); Alston v. 

Redman, 34 F3d 1237, 1242-1251 (3d Cir. 1994); United States v. 

Thompson, 35 F3d 100, 103-104 (2d Cir. 1994); United States v. 

Wright, 962 F2d 953, 954-956 (9th Cir. 1992). Those cases have each 

ruled a defendant’s invocation invalid due to the circumstances of 

those invocations, but none of those cases involved circumstances 

like this case, where a defendant was in custody for the charges at 

issue, was read his Miranda rights, had already been subjected to 

some custodial interrogation about the charges at issue, was being 

booked when he invoked, and then unequivocally expressed an 

intent to avoid answering questions without an attorney’s 

assistance. In McNeil, the defendant appeared with counsel at a bail 
23

hearing on an armed robbery charge, was questioned by officers 

about a different crime, and made incriminating statements in 

response. The defendant argued that counsel’s presence at the bail 

hearing was sufficient to invoke the defendant’s Miranda rights 

concerning the unrelated charge. The United States Supreme Court 

rejected that argument, concluding that the Edwards rule required, 

“at a minimum, some statement that can reasonably be construed to 

be an expression of a desire for the assistance of an attorney in 

dealing with custodial interrogation by the police,” and requesting 

“the assistance of an attorney at a bail hearing does not bear that 

construction.” McNeil, 501 U.S. at 175-181 (also rejecting argument 

because the Sixth Amendment is charge-specific and the invocation 

of that right as to the charge defendant faced at the time did not 

extend to the future different charges on which he sought to use it). 

In other cases, courts have rejected purported “invocation” 

claims where the defendant invoked as to charges other than those

at issue or was seeking an attorney’s help for purposes other than

interrogation. See Grimes, 142 F3d at 1345, 1347-1350 (rejecting 
24

argument that the execution of a “claim of rights” form on an 

unrelated charge was an effective invocation of Miranda rights for 

“all subsequent purposes”); Lagrone, 43 F3d at 337 (a defendant’s 

request to consult his attorney was regarding whether to consent to 

a search of his property, not about an interrogation, and therefore 

was not considered an invocation of Miranda rights); Alston, 34 F3d 

at 1240-1249 (defendant’s execution of a form letter outside the 

presence of law enforcement that was given to a public defender, 

after defendant had already been interviewed with no indication 

that another interview was imminent, was an insufficient 

invocation); Thompson, 35 F3d at 103-104 (1) (defendant’s 

completion of an immigration form was not an invocation because 

the form contained no request for the assistance of counsel for the 

purpose of a custodial interrogation); Wright, 962 F2d at 954-956 

(rejecting claim that defendant’s request to have an attorney present 

for interviews after pleading guilty to state charges was insufficient 

to invoke Miranda rights on unrelated federal offenses). 
25

What can be distilled from these cases is that a defendant 

cannot be considered to have invoked Miranda’s right to counsel 

simply by bootstrapping from the invocation of some other right, 

especially when not in custody. But that is not what occurred here. 

Jenkins made a clear request for an attorney after having been 

advised of his Miranda rights and having already been subjected to 

some custodial interrogation about the charge at issue. The State 

relies on the above cases to argue that Jenkins’s request was 

“anticipatory,” but none of those cases involve circumstances even 

remotely similar to the ones present here.

Moreover, the State has not pointed us to any decision in which 

we have adopted the federal circuit precedent it cites (which, unlike 

decisions from the United States Supreme Court, is not binding on 

us), and we have not found any. The closest our decisions appear to 

have come (largely based on citing McNeil) do not involve 

circumstances resembling anything like the facts of this case. See 

Davidson v. State, 304 Ga. 460, 467 (4) (819 SE2d 452) (2018) 

(rejecting State’s argument that invocation of Miranda during 
26

interrogation was invalid because invocation preceded Miranda

warnings); Green v. State, 291 Ga. 287, 291-292 (4) (728 SE2d 668) 

(2012) (holding defendant was not in custody at time of alleged 

invocation, and invocation of right to counsel was equivocal in any 

event); Petty v. State, 283 Ga. 268, 270 (2) (658 SE2d 599) (2008) 

(citing McNeil for proposition that progeny of Miranda does not 

apply “in a non-custodial situation”). In any event, we need not 

decide whether these circuit decisions are correct that Miranda

rights may be invoked only during a custodial interrogation or when 

an interrogation is imminent, because the State has not carried its 

burden even under that circuit precedent. 

(c) We cannot say that the State proved that interrogation 

was not at least imminent at the time of Jenkins’s invocation, as 

viewed from a reasonable person in his position.12 See Franks v. 

12 The parties and the 2014 trial court presumed that the booking 

process, which by its very nature involves law enforcement questioning the 

defendant, did not itself constitute custodial interrogation. That’s not so clear. 

In the seminal United States Supreme Court decision holding that statements 

during the booking process were admissible notwithstanding failure to give 

Miranda warnings, five justices took the position that questioning posed 
27

during booking was custodial interrogation. See Pennsylvania v. Muniz, 496 

U.S. 582, 600-602 (110 SCt 2638, 110 LE2d 528) (1990) (four-justice plurality 

expressly rejected government’s argument that “booking questions” did not 

qualify as custodial interrogation, and instead concluded that the answers to 

these questions were “nonetheless” admissible despite the failure to provide 

Miranda warnings because the questions fell within the “‘routine booking 

question’ exception” to Miranda); id. at 608-12 (Marshall, J., concurring in part 

and dissenting in part) (agreeing booking questions were custodial 

interrogation but disagreeing with exception allowing admission of their 

answers). Whether one can properly aggregate those five votes under Marks v. 

United States is unclear. See 430 U.S. 188, 193 (97 SCt 990, 51 LE2d 260) 

(1977) (“[W]hen a fragmented Court decides a case and no single rationale 

explaining the result enjoys the assent of five Justices, the holding of the Court 

may be viewed as that position taken by those Members who concurred in the 

judgments on the narrowest grounds.” (citation and punctuation omitted)). 

One of the five Muniz justices to say that booking was custodial interrogation 

did not concur in the judgment, and the two competing four-justice opinions 

agreeing that statements during booking were admissible were evenly divided,

and it is difficult to say which opinion was narrower. But all five justices to say 

booking was custodial interrogation concurred in the judgment that one 

improper question during booking was both custodial interrogation and 

inadmissible, which may muddy the Marks waters a bit. As far as we can tell, 

no court has ever performed Marks analysis on this aspect of Muniz. And the 

most recent court to consider the question concluded that booking is custodial 

interrogation. See Compos v. People, 484 P3d 159, 162-164 (II) (B) (Col. 2021) 

(relying on the five Muniz justices to hold that booking questions constitute 

custodial interrogation). Our disposition of this case makes it unnecessary to 

resolve this difficult question.

Our previous cases have recognized that, although requests for basic 

biographical data generally fall within the Muniz booking exception to 

Miranda, not all questioning during booking falls within this exception and 

determining whether a reasonable person in the defendant’s position believed 

he was subjected to an interrogation must be done on a case-by-case basis. See 

Franks v. State, 268 Ga. 238, 239-241 (486 SE2d 594) (1997); see also State v. 

Nash, 279 Ga. 646, 649 (3) (619 SE2d 684) (2005) (noting that Franks requires 

scrutiny of booking questions on a case-by-case basis to determine whether 

those questions were exempt from Miranda’s coverage). That said, prior 

opinions of this Court regarding application of the booking exception must be 

read in the light of the specific facts of that case. 
28

State, 268 Ga. 238, 240 (486 SE2d 594) (1997) (“The focus of whether 

‘interrogation’ occurs is primarily upon the perceptions of the 

suspect and not the intent of the officer[.]”); see also Hightower v. 

State, 272 Ga. 42, 43 (in determining whether a custodial situation 

exists, the “only relevant inquiry is how a reasonable [person] in the 

suspect’s position would have understood his situation.”) (quoting 

Berkemer v. McCarty, 468 U.S. 420, 442 (104 SCt 3138, 82 LE2d 317)

(1984)); State v. Hambly, 745 NW2d 48, 57 & n.27 (Wis. 2008) 

(plurality) (“an interrogation is impending or imminent if a 

reasonable person in the defendant’s position would have believed 

that interrogation was imminent or impending” (citing cases)).13

When a defendant objects to the admission of statements 

he made during a police custodial interrogation, the 

burden is on the State to prove by a preponderance of the 

evidence that the statement was voluntary and was 

preceded by the defendant’s knowing and voluntary 

waiver of his Miranda rights.

13 The federal precedent does not discuss how courts are to assess the 

imminency of an interrogation in determining whether an invocation is 

“anticipatory.” But since we are assuming arguendo that this precedent 

applies, we follow United States Supreme Court precedent governing how 

courts are to evaluate interactions between police and suspects to determine 

whether an interaction constituted a custodial interrogation. The dissent cites 

nothing in support of its criticism of this objective standard.
29

State v. Nash, 279 Ga. 646, 649 (3) (619 SE2d 684) (2005); see also 

Mack v. State, 296 Ga. 239, 248 (2) (b) (765 SE2d 896) (2014) (the 

State has the burden of proving that the defendant initiated contact 

with the police after invoking his Fifth Amendment right to counsel).

Jenkins, a 17-year-old, was arrested for the crimes at issue. He 

was read his Miranda rights. He was taken to jail, and on the way 

there, he was briefly questioned by two police officers, including 

Deputy Mullis. The full nature of the questions he was asked is not 

clear from the record, but we do know that Jenkins was asked about 

the other people in the van, which would constitute custodial

interrogation. See Brown, 287 Ga. at 476 (2) (“interrogation” 

includes “express questioning by law enforcement officers”).14 He 

14 In addition to the State’s erroneous suggestion in its 2014 motion to 

reconsider that it never relied on McNeil in 1995, the State also represented at

the hearing on that motion that Jenkins “was not questioned by any lawenforcement officers at any time on January the 9th, 1993 . . . . There was no 

questions asked whatsoever.” But Deputy Mullis testified unequivocally at 

the March 16, 1995 hearing that Jenkins was questioned on January 9, 1993, 

and the State never argued in 1995 that was incorrect. The most charitable 

reading of the State’s argument in 2014 was that the State was unfamiliar 

with the record, including the contents of the transcript of the March 16, 1995 

hearing.
30

then arrived at the jail and was subjected to the booking process, 

which itself involves questions by law enforcement, too.15 Deputy 

Mullis, who had advised Jenkins of his Miranda rights and had 

questioned Jenkins previously, was in the booking area. We can see 

with the benefit of hindsight and expertise in the intricacies of the 

legal system that those questions were merely routine booking 

questions, which the United States Supreme Court has held are an 

exception to Miranda’s prohibition on questioning an unwarned 

suspect. We also know with the benefit of hindsight that the formal 

interrogation did not occur until the next day. But we assess all 

these events through the lens of a reasonable person in Jenkins’s 

position, not through the lens of legal expertise and hindsight. And 

15 Contrary to the dissent’s assertion, the record does not show that “no 

routine booking questions were being asked at the time of invocation.” The 

record is silent on this point. The witnesses at the relevant hearings were not 

specifically asked about booking questions, likely because the focus of the 

hearing was to determine whether Jenkins had invoked his right to counsel, 

and there was no argument that any questions asked during booking were nonroutine. In any case, our case law recognizes that booking generally involves 

the questioning of a defendant, and no one disputes otherwise. Moreover, the 

fact that the booking was a multi-stage process is irrelevant to whether a 

reasonable person would have believed an interrogation was imminent and 

does not change the fact that Jenkins had already been subjected to custodial

interrogation.
31

on these specific facts, we cannot say that such a reasonable person 

would know that an interrogation was not imminent.16 Given that 

Deputy Mullis arrested Jenkins, advised him of his rights, 

questioned him in the patrol car, and was present in the booking 

area where Jenkins unequivocally asked for an attorney, a 

reasonable person in Jenkins’s position would have thought the 

booking process was merely a break in questioning.17 Accordingly, 

because Jenkins invoked his Miranda rights at a time when a 

reasonable person would believe interrogation was imminent, his 

16 Our decision here should not be read as holding that a suspect’s 

reasonable expectation of an interview always renders such an interrogation 

imminent. Such a determination must be based on the facts of each case under 

the totality of the circumstances. The facts of this case are enough to enable us 

to reach that conclusion here without having to establish the precise limits of 

when an interrogation is imminent. 

17 The dissent criticizes this conclusion, suggesting that the interrogation 

was terminated once Jenkins was taken to the jail and that the protections of 

Miranda are location specific. Our case law clearly recognizes that police often 

conduct follow-up interrogations, and the dissent cites no authority for the 

novel idea that Miranda protections evaporate once a defendant is moved to a 

different location. This suggestion runs counter to the well-accepted principle 

that, once Miranda warnings are given (and thus Miranda protections 

available), police officers are not required to readvise a defendant of his 

Miranda rights during a follow-up interview, even when it occurs in a different 

location. See Gaddy v. State, 311 Ga. 44, 47-48 (2) (855 SE2d 613) (2021). 

Moreover, the dissent does not contend that the brief interrogation in the 

vehicle on the way to jail consisted of all the questions the police were 

interested in asking; the record plainly shows otherwise.
32

invocation was valid even under the standard that the State argues 

we should adopt. His invocation was not respected, and his 

subsequent custodial statements were due to be suppressed. The 

trial court erred in concluding otherwise.

3. The State argues that any error by the trial court in 

admitting this evidence was harmless. We disagree.

When the admission of evidence is an error of 

constitutional magnitude, it can be harmless error if the 

State can prove beyond a reasonable doubt that the error 

did not contribute to the verdict, such as when the 

evidence at issue is cumulative of other properly-admitted 

evidence or when the evidence against the defendant is 

overwhelming.

Hill v. State, 310 Ga. 180, 188-189 (5) (850 SE2d 110) (2020) (citation 

and punctuation omitted). 

The State makes no claim, and the evidence does not show, that 

Jenkins’s custodial statements were cumulative of other properly

admitted evidence. And although the evidence of guilt was 

substantial, it was not overwhelming. It is true that Jenkins fled 

from the white van upon seeing a police car, that Jenkins tried to 

discard the murder weapon as he was being chased, and that 
33

Michael’s learner’s permit was found in one of Jenkins’s pockets. But 

there were no eyewitnesses to the murders, there were three other 

individuals who fled from the van, and the State points to no 

physical evidence that Jenkins killed the victims. Although the 

circumstantial evidence of guilt was strong, we cannot say beyond a 

reasonable doubt, in a case with facts like these, that the admission 

of challenged evidence did not contribute to the verdict, particularly 

when a “defendant’s own confession is probably the most probative 

and damaging evidence that can be admitted against him.” Arizona 

v. Fulminante, 499 U.S. 279, 296 (111 SCt 1246, 113 LE2d 302)

(1991) (citation omitted). 

Whatever one may think of Miranda,18 the United States 

Supreme Court has held that Miranda is a decision of federal 

constitutional law. See Dickerson v. United States, 530 U.S. 428, 

437-440 (120 SCt 2326, 147 LE2d 405) (2000). Our oath requires us 

18 As we have previously observed, the United States Supreme Court’s 

holding in Miranda has no basis in the text, history, or context of the United 

States Constitution. See State v. Turnquest, 305 Ga. 758, 761 & n.4 (3) (a) (827 

SE2d 865) (2019).
34

to apply faithfully the decisions of the United States Supreme Court 

on points of federal law. Nothing in any case that the State cites to 

us or on which the trial court relied empowers us, on the facts of this 

case, to disregard the holding of Miranda that

[o]nce warnings have been given, the subsequent 

procedure is clear. If the individual indicates in any 

manner, at any time prior to or during questioning, that 

he wishes to remain silent, the interrogation must cease. 

. . . If the individual states that he wants an attorney, the 

interrogation must cease until an attorney is present.

Miranda, 384 U.S. at 473-474 (emphasis supplied). Jenkins 

unequivocally said that he would not talk until he had a lawyer. 

Under the circumstances of this case, Miranda requires that 

Jenkins’s custodial statements be suppressed. The trial court erred 

by holding otherwise. That error was harmful, and Jenkins’s 

conviction must be reversed. Because the evidence against him was 

constitutionally sufficient, he may be retried.

4. Finally, a few words in response to the dissent. The dissent

believes that Jenkins’s unequivocal invocation of his right to counsel 

under Miranda was invalid because it occurred between custodial 
35

interrogations, rather than during custodial interrogation. No legal 

authority the dissent relies upon supports this unprecedented 

position. 

The dissent does not dispute the fact that Jenkins was advised 

of his Miranda rights upon his arrest for the crimes at issue here. 

The dissent does not dispute the fact that he was subjected to 

custodial interrogation on the way to jail. The dissent does not 

dispute the fact that the law enforcement officer who questioned him 

on the way to the jail was present for booking, around the time that 

Jenkins invoked his right to counsel. And the dissent does not 

grapple with the critical differences between these undisputed facts 

and the facts of the cases on which it seeks to rely. 

Instead, the dissent takes the position that the break in 

questioning during booking relieved the police officers from 

following the clear dictates of Miranda, as if Jenkins’s right to 

counsel (which clearly existed during the custodial interrogation on 

the way to the jail) had evaporated once the booking process began. 

When a defendant invokes Miranda’s right to counsel, as Jenkins 
36

did here, the Edwards rule applies: once the right to counsel is 

invoked, a suspect in custody has the right “to be free of 

interrogation until he had consulted with a lawyer” or until the 

“accused himself initiates further communication, exchanges, or 

conversations with the authorities.” Edwards, 451 U.S. at 485 

(citation and punctuation omitted); see also Szorcsik v. State, 303 

Ga. 737, 739 (814 SE2d 708) (2018) (“[A]n accused, such as Szorcsik, 

having expressed his desire to deal with the law enforcement only 

through counsel, is not subject to further interrogation by the 

authorities until counsel has been made available to him,” or if “the 

accused himself initiates further communication, exchanges, or 

conversations with the authorities.” (quoting Edwards)). Even the 

trial court in its 2014 order on retrial recognized that Edwards

would apply if the invocation was valid. 

The dissent also criticizes our decision as creating a wholly new 

standard. But we do no such thing. We merely assume, without 

deciding, that the “no anticipatory invocation” rule relied on by the 

State and the trial court is applicable, and conclude that even under 
37

that rule Jenkins would prevail.19 It is that rule, not anything we 

hold today, that includes the idea that Miranda’s right to counsel 

can be invoked when custodial interrogation is imminent.

For that matter, it is the dissent’s proposed rule that is a wholly 

new standard; the dissent would have us hold for the first time ever 

that the only time at which Miranda’s right to counsel can ever be 

invoked is during a custodial interrogation. But the only case the 

dissent cites in support of a no-anticipatory-invocation rule without 

an imminence component is Charette v. State, 930 NW2d 310 (Minn. 

2022). The court in that case did not adopt any such rule. While the 

court there rejected the imminence framework, it also rejected the 

state’s argument that Miranda could be invoked only until a 

question had been asked; the court noted that any such rule was 

incompatible with Miranda itself, which contemplated permissible 

19 The dissent gives significant weight to the fact that Jenkins did not 

testify as to whether he believed an interrogation was imminent. But this is an 

objective, not subjective test, focusing on whether a reasonable person in 

Jenkins’s position would have believed that.
38

invocation before interrogation. See Charette, 930 NW2d at 318

(citing Miranda, 384 U.S. at 470).

In short, the dissent cherry-picks cases from other 

jurisdictions, all of which apply a standard that neither we nor the 

United States Supreme Court has ever adopted. The dissent then 

extracts only the most anti-Miranda elements of those cases to 

propose a novel standard that it does not argue any court in this 

country has ever adopted or applied. And then it criticizes this 

majority as doing something “new” when we decline to go along. 

Let’s be clear: we have found no court in the country that has 

held a defendant’s invocation of Miranda was impermissibly 

anticipatory where the defendant had already been advised of his 

rights and been subjected to custodial interrogation about the crime 

at issue. And the dissent identifies no such case. We decline to be 

the first.

Judgment reversed. All the Justices concur, except Ellington, 

McMillian, LaGrua, and Colvin, JJ., who dissent.
39

 LAGRUA, Justice, dissenting. 

Because Jenkins did not invoke his right to counsel during a 

custodial interrogation and because there is no legal authority to 

support the majority opinion’s conclusion that a defendant can 

invoke his Miranda rights when “a reasonable person in [the 

defendant’s] position” believes “an interrogation is imminent,” I 

conclude that the trial court did not err in admitting Jenkins’s 

custodial statement at the new trial, and thus, I respectfully dissent. 

The record shows that, in January 1993, Jenkins was arrested 

on suspicion of kidnapping Terri Ralston and her 15-year-old son, 

Michael, causing Terri’s death by shooting her in the back of the 

head, and killing Michael by shooting him in his left temple. At the 

time of Jenkins’s arrest on January 9, Deputy Mullis, the arresting 

officer, advised Jenkins of his Miranda rights while escorting 

Jenkins to the patrol car. Deputy Mullis then transported Jenkins 

to the Wayne County Detention Center, accompanied by Deputy 

Tony Brinkley and Detective Bill Mosley. On the way to the jail, 

Detective Mosley asked Jenkins questions “regarding who was in 
40

the van” with him, and Jenkins voluntarily told the officers that 

information. Jenkins did not invoke any of his Miranda rights 

during this questioning. 

When Jenkins arrived at the jail at approximately 1:35 p.m., 

he was brought to Detention Officer Robinson, who “patted him 

down for contraband or weapons.” While Officer Robinson was 

conducting the pat-down, Jenkins “said that he wasn’t answering 

any questions without his lawyer or without a lawyer.” The record 

does not show that Jenkins made this statement while being 

subjected to any questioning by Officer Robinson or another officer.

In fact, Officer Robinson testified that, after patting Jenkins down 

and removing his personal property, she placed him in a holding cell 

and did not bring Jenkins back out to complete “the arrest and 

booking report with all the information about [Jenkins’s] name and 

social security number and address” until about 20 minutes later at 

1:55 p.m. And no evidence was presented to show that, during the 

completion of the booking report, Officer Robinson asked Jenkins 
41

anything other than routine booking questions. See Franks, 268 Ga. 

at 239.

Jenkins was not interviewed or subjected to any further 

questioning until 2:55 p.m. the next day, January 10. At that time, 

GBI agents met with Jenkins to conduct a custodial interview. 

Before interviewing Jenkins, the GBI agents gave Jenkins his full 

and complete Miranda warnings, and Jenkins explicitly agreed to 

waive those rights before speaking with the agents, signing the 

requisite waiver form. Thereafter, Jenkins gave the custodial 

statement at issue.

In Miranda v. Arizona, the [United State Supreme] Court 

determined that the Fifth and Fourteenth Amendments’

prohibition against compelled self-incrimination required 

that custodial interrogation be preceded by advice to the 

putative defendant that he has the right to remain silent 

and also the right to the presence of an attorney. The 

[Supreme] Court also indicated the procedures to be 

followed subsequent to the warnings. If the accused 

indicates that he wishes to remain silent, “the 

interrogation must cease.” If he requests counsel, “the 

interrogation must cease until an attorney is present.” 

Edwards, 451 U.S. at 481-482 (II) (citing Miranda, 384 U.S. at 474, 

479). See also State v. Pauldo, 309 Ga. 130, 133 (2) (844 SE2d 829
42

(2020) (“[W]hen a suspect asks for a lawyer during a custodial 

interrogation, the suspect may not be subjected to further 

interrogation by law enforcement until an attorney has been made 

available or until the suspect reinitiates the conversation.”).

However, “the special procedural safeguards outlined in 

Miranda are required not where a suspect is simply taken into 

custody, but rather where a suspect in custody is subjected to 

interrogation.” Rhode Island v. Innis, 446 U.S. 291, 300 (II) (A) (100 

SCt 1689, 64 LE2d 297) (1980) (citations omitted; emphasis 

supplied). In other words, “in order for the Miranda safeguards to 

take effect, there must first exist custodial interrogation.” Gupta v. 

State, 156 A3d 785, 801 (B) (Md. 2017) (citation and punctuation 

omitted).

The United States Supreme Court has defined “interrogation” 

this way:

“Interrogation,” as conceptualized in the Miranda

opinion, must reflect a measure of compulsion above and 

beyond that inherent in custody itself. We conclude that 

the Miranda safeguards come into play whenever a 

person in custody is subjected to either express 
43

questioning or its functional equivalent. That is to say, 

the term “interrogation” under Miranda refers not only to 

express questioning, but also to any words or actions on 

the part of the police (other than those normally 

attendant to arrest and custody) that the police should 

know are reasonably likely to elicit an incriminating 

response from the suspect. The latter portion of this 

definition focuses primarily upon the perceptions of the 

suspect, rather than the intent of the police. This focus 

reflects the fact that the Miranda safeguards were 

designed to vest a suspect in custody with an added 

measure of protection against coercive police practices, 

without regard to objective proof of the underlying intent 

of the police. A practice that the police should know is 

reasonably likely to evoke an incriminating response from 

a suspect thus amounts to interrogation. But, since the 

police surely cannot be held accountable for the 

unforeseeable results of their words or actions, the 

definition of interrogation can extend only to words or 

actions on the part of police officers that they should have

known were reasonably likely to elicit an incriminating 

response.

Innis, 446 U.S. at, 300-302 (II) (A) (citations omitted; emphasis 

supplied and in original). This Court has similarly held that

[t]he analysis of what constitutes interrogation is the 

same whether a suspect invokes the right to remain silent 

or the right to counsel, because both rights protect the 

privilege against compulsory self-incrimination by 

requiring an interrogation to cease when either right is 

invoked. In this context, interrogation is defined as

express questioning by law enforcement officers or its 

functional equivalent—any words or actions on the part 
44

of the police (other than those normally attendant to 

arrest and custody) that the police should know are 

reasonably likely to elicit an incriminating response from 

the suspect.

Pauldo, 309 Ga. at 133-134 (2) (citation and punctuation omitted). 

In short, “the inherent compulsion that is brought about by the 

combination of custody and interrogation is crucial for the 

attachment of Miranda rights.” Gupta, 156 A3d at 801 (B) (citation 

and punctuation omitted). See also Alston, 34 F3d at 1244 (III) (A) 

(“Because the presence of both a custodial setting and official 

interrogation is required to trigger the Miranda right-to-counsel 

prophylactic, absent one or the other, Miranda is not implicated.”). 

See also Illinois v. Perkins, 496 U.S. 292, 297 (110 SCt 2394, 110

LE2d 243) (1990) (“It is the premise of Miranda that the danger of 

coercion results from the interaction of custody and official 

interrogation.”).

As noted by the majority opinion and demonstrated by the 

record, it is uncontested that: (1) Jenkins was fully informed of his 

Miranda rights when he was arrested by Deputy Mullis on January 
45

9; (2) Jenkins was briefly questioned by law enforcement officers 

while being transported to the jail; and (3) Jenkins was in custody 

at that time. Accordingly, if this questioning by law enforcement 

officers constituted an “interrogation,” then the record clearly 

reflects that Jenkins was appropriately advised of his Miranda

rights. However, the record also reflects that Jenkins did not invoke 

his Miranda rights before or during this questioning, and he 

responded to the officer’s questions voluntarily. 

Additionally, the record reflects that Jenkins invoked his 

Miranda right to counsel—i.e., by telling Officer Robinson that he 

was not answering any questions without an attorney—during a 

routine pat-down search by Officer Robinson as she was admitting 

Jenkins into the jail, not during a custodial interrogation.20 See, e.g., 

Charette v. State, 980 NW2d 310, 317 (Minn. 2022); Gupta, 156 A3d 

20 The fact that other law enforcement officers, including the arresting 

officer and another detention officer, were in the booking area during the patdown search does not convert this routine search into a custodial interrogation. 

Additionally, both officers testified that they did not hear Jenkins invoke his 

right to counsel, and no evidence was offered to refute the officers’ testimony. 

I point this out to support that Jenkins was not undergoing an interrogation 

at this time, not to question the veracity of Officer Robinson’s testimony, as the 

majority opinion suggests.
46

at 804 (B); Alston, 34 F3d at 1243-1244 (III) (A); United States v. 

LaGrone, 43 F3d 332, 335-340 (7th Cir. 1994). In fact, Officer 

Robinson testified that she was not questioning Jenkins at all when 

he made this statement, and she did not complete the booking 

process until about 20 minutes later. And, even if Jenkins had 

invoked his right to counsel while Officer Robinson was completing 

the booking process, those routine booking questions “do not qualify 

as interrogation” and are not subject to Miranda. Pauldo, 309 Ga. 

at 135 (2) (noting that “basic biographical questions asked in 

relation to an arrest are an exception to Miranda because such 

‘booking’ questions are unrelated to the investigation and serve a 

legitimate administrative need and therefore do not qualify as 

interrogation”) (citing Kirby v. State, 304 Ga. 472, 476 (2) (b) (819 

SE2d 468) (2018). See also Franks, 268 Ga. at 239 (holding that “[a] 

well-established line of federal and state case law has created an 

exemption from the Miranda rule for questions attendant to arrest, 

because such questions are not related to the investigation of the 

case, and at the same time[,] serve a legitimate administrative 
47

need”) (citing Muniz, 496 U.S. at 601). 

Despite this binding precedent, the majority opinion seems to 

question whether the booking process should in fact constitute 

custodial interrogation since, “by its very nature[, it] involves law 

enforcement questioning the defendant.” However, in noting that 

Jenkins invoked his right to counsel while he was “subjected to the 

booking process” the majority opinion concedes that “routine 

booking questions” are “an exception to Miranda’s prohibition on 

questioning an unwarned suspect.”21 The majority opinion further 

concedes that “formal interrogation did not occur until the next day.” 

It is not clear why the majority opinion characterizes “booking” 

here as a “break in questioning,” as opposed to characterizing it as 

an event that occurred after the termination of any prior 

interrogation—especially given that Jenkins was only questioned in 

the car on the way to the jail and was not questioned again until the 

next day. And, in stating that “the Edwards rule applie[s]” after 

21 There is no evidence in the record suggesting that “routine booking 

questions” were being asked at the time of the invocation.
48

Jenkins “invoke[d] Miranda’s right to counsel,” the majority opinion 

assumes—without any supporting authority—that a defendant can 

invoke his Miranda right to counsel after an interrogation has 

occurred in one location, the interrogation has terminated, and the 

defendant has been moved to a new location where he has not been 

subjected to any questioning.

The majority opinion ultimately concludes that, “[w]hether or 

not the booking process itself was custodial interrogation, the facts 

of this case show that a reasonable person in Jenkins’s position 

would have believed that interrogation was at least imminent,”22

and “because Jenkins invoked his Miranda rights at a time when a 

reasonable person would believe interrogation was imminent, his 

invocation was valid.” The majority opinion does not adequately 

explain why a reasonable person in Jenkins’s position would believe 

interrogation was imminent. And it is unclear to me why, as a 

22 Jenkins did not testify at any of his motion to suppress hearings in 

1995, so we cannot affirmatively say that Jenkins believed that a custodial 

interview was “imminent” at the time of his invocation. See Grimes, 142 F3d 

at 1348 (II) (C) (2).
49

general matter, a reasonable person who had already been 

interrogated and was then moved to a new location and was booked 

into jail by a different officer would believe that interrogation would 

occur again imminently after booking. Even more concerning to me 

is that, in reaching this conclusion, the majority opinion announces 

a new legal standard—one which requires the State to prove that 

“interrogation was not at least imminent at the time of [a 

defendant’s] invocation, as viewed from a reasonable person in his 

position,” and one which requires this Court “to assess” the facts of 

the case “through the lens of a reasonable person in Jenkins’s 

position” to determine whether “a reasonable person would know 

that interrogation was [or was] not imminent.” 

In this respect, what the majority opinion creates is not the 

“no anticipatory invocation” rule, but rather a reasonable-person 

standard for determining whether interrogation is imminent—a 

standard for which the majority opinion cites no supporting legal 

authority. “[T]he U.S. Supreme Court has never held that a suspect 

can invoke their Fifth Amendment right to counsel when 
50

interrogation is imminent.” Charette, 980 NW2d at 317. The legal 

concept of whether a custodial interrogation is “imminent” appears 

to arise primarily from the United State Supreme Court’s decision 

in McNeil, where the Supreme Court noted that “[w]e have in fact 

never held that a person can invoke his Miranda rights 

anticipatorily, in a context other than ‘custodial interrogation[.]’” 

McNeil, 501 U.S. at 182 n.3. “Some federal and state courts” have 

since interpreted this decision to mean “that defendants can invoke 

their Fifth Amendment rights when interrogation is ‘imminent,’” 

without defining the term or providing direction as to when an 

interrogation is considered “imminent.” Charette, 980 NW2d at 316 

(citing Grimes, 142 F3d at 1348 (II) (C) (2); LaGrone, 43 F3d at 335-

340; Ault v. State, 866 So2d 674 (Fla. 2003); State v. Appleby, 221 

P3d 525, 548 (Kan. 2009); Gupta, 156 A3d at 791). To that end, the 

Eleventh Circuit Court of Appeals has held that “Miranda rights 

may be invoked only during custodial interrogation or when 

interrogation is imminent,” but did not cite a standard for 
51

determining when an interrogation is “imminent.” Grimes, 142 F3d 

at 1348 (II) (C) (2).

Moreover, the majority opinion does not cite any case in which 

another court has concluded that the interrogation was imminent 

under the circumstances of this case. Instead, the majority opinion 

exclusively relies on cases in which courts have held that the 

interrogation was not imminent and reasons that, because the 

circumstances of this case are different, the opposite must be true, 

and the interrogation here must be considered imminent. See, e.g., 

Grimes, 142 F3d at 1348 (II) (C) (2); LaGrone, 43 F3d at 335-340; 

Alston, 34 F3d at 1242-1251; Thompson, 35 F3d at 103-104; Wright, 

962 F2d at 954-956. But none of those cases stand for that 

proposition.

In addition, this Court has never expressly adopted an 

“imminent interrogation” rule, nor do I think we should do so now. 

Charette, 980 NW2d at 317.23 And, the conclusion I reach here falls 

23 In Charette, the Supreme Court of Minnesota persuasively held that:
52

squarely within the scope of the Miranda principles clearly set forth 

by the United States Supreme Court, whereas the majority opinion 

extrapolates from those principles in an unprecedented way. No 

federal or state court has established the imminence standard 

espoused by the majority opinion here—i.e. whether a “reasonable 

person in the [defendant’s] position” believes “an interrogation is 

imminent.” And, although the majority opinion claims that it is 

merely assuming without deciding that the “imminent 

interrogation” rule applies, id., it is difficult to discern how the 

The “imminent interrogation” rule poses serious practical 

difficulties that we must consider before adopting it as the law of 

Minnesota. Without defining when an interrogation becomes 

imminent, it will be difficult for a law enforcement officer to make 

that determination, particularly in evolving situations where the 

intent to interrogate may change based on the suspect’s behavior 

(like here), the available evidence, or other circumstances, like the 

availability of holding cells or interview rooms. We also question 

whether “imminence” might dissipate based on signals from law 

enforcement that they no longer intend to interrogate a person and 

how this affects the ability to invoke the Fifth Amendment right to 

counsel. This lack of clarity is contrary to the Supreme Court’s 

preference for “bright-line rules” in the Miranda context. . . . 

Accordingly, under the facts of this case, we are not inclined to 

fashion such a rule when the Supreme Court has not yet done so.

Id.
53

majority is not adopting that rule as the law in this State when the 

majority is applying it to reverse these double murder convictions. 

Accordingly, I conclude that, because Jenkins was not being 

“interrogated within the meaning of Miranda” at the time he 

invoked his right to counsel, his invocation of the right to counsel 

under Miranda was not effective. Innis, 446 U.S. at 302 (II) (B). 

And, because Miranda did not apply, the GBI agents’ questioning of 

Jenkins on January 10—after fully advising him of his Miranda

rights and receiving a voluntary waiver thereof—was permissible, 

and Jenkins’s custodial statement was admissible against him at 

the new trial. 

Additionally, I note that Jenkins also argues on appeal that the 

trial court presiding over his new trial lacked authority to revisit the 

exclusion of Jenkins’s custodial statement at the first trial because 

the trial court’s “inherent power” to revoke that interlocutory ruling 

“cease[d] with the end of the term” in which the suppression order 

was entered. Moon v. State, 287 Ga. 304, 304 (696 SE2d 55) (2010). 
54

I believe that the trial court was authorized to admit this evidence 

on a new motion by the State after a new trial was ordered. 

The end-of-term rule “comes from pre-Revolution English 

common law.” Moon, 287 Ga. at 305 (1) (Nahmias, J., concurring). 

At common law, the rule for both final and interlocutory 

orders, in both civil and criminal cases, and in both 

Georgia and federal courts, was that the trial court’s 

inherent authority to reconsider the order expired at the 

end of the term of court in which the order was entered. 

The rules in this area reflect a balance between the need 

for finality of judicial decisions and the understanding 

that trial courts should have the opportunity to reach the 

correct decisions.

Id. at 305-306 (1) (Nahmias, J., concurring) (citations omitted; 

emphasis in original). This common law rule has remained largely 

unchanged with respect to final judgments in civil and criminal 

cases. See id. at 306 (1). In both civil and criminal cases, where “the 

entire case or relevant portion is deemed concluded by final 

judgment, the trial court cannot reconsider the issues after a short 

period (like the end of the term) unless the case is successfully 

appealed,” or in the criminal context, challenged in a habeas 

proceeding. Id. 
55

But “[i]nterlocutory rulings are different.” Moon, 287 Ga. at 

306 (1) (Nahmias, J., concurring). “[T]he Civil Practice Act reformed 

many common law rules for civil cases, including the end-of-term 

rule with respect to interlocutory rulings[.]” Id. at 307 (Nahmias, J., 

concurring). And so, “[i]n civil cases, an interlocutory ruling does 

not pass from the control of the court at the end of the term if the 

cause remains pending.” Kelly v. State, 315 Ga. 444, 447 (2) (883 

SE2d 363) (2023) (citation and punctuation omitted). “In criminal 

cases, however, ‘a trial court’s inherent power to revoke 

interlocutory rulings [still] ceases with the end of the term,’ unless 

a motion for reconsideration is filed during the same term as the 

ruling at issue.” Id. (quoting Moon, 287 Ga. at 304). In other words, 

“in a criminal case, a trial court generally loses its inherent power 

to revise, correct, revoke, modify, or vacate its judgment at the end 

of the term of court in which it renders that judgment.” Id. 

But the end-of-term rule does not apply in this case. After 

Jenkins was convicted in the first trial, he successfully challenged 

his convictions in a habeas proceeding, and the habeas court vacated 
56

Jenkins’s convictions and ordered a new trial. This Court then 

affirmed the judgment of the habeas court ordering a new trial. See 

Terry, 280 Ga. at 341. 

“When [an] appellant [i]s granted a new trial, it wipe[s] the 

slate clean as if no previous conviction and sentence had existed.” 

Salisbury v. Grimes, 223 Ga. 776, 778 (2) (158 SE2d 412) (1967). 

And, pursuant to OCGA § 5-5-48, “when a new trial has been 

granted by the court, the case shall be placed on the docket for trial 

as though no trial had been had[.]” State v. Hamilton, 308 Ga. 116, 

119-20 (2) (839 SE2d 560) (2020) (emphasis in original) (citing 

Bankhead v. State, 253 Ga. App. 214, 215 (558 SE2d 407) (2001) 

(holding that “[w]here a new trial has been granted, the case stands 

ready for trial as if there had been no trial[,]” and [t]he effect of the 

grant of a new trial by an appellate court is to require the case to be 

heard de novo unless specific direction be given in regard thereto”)). 

In essence, “the grant of a new trial has the effect of setting aside all 

proceedings in the old trial.” Trauth v. State, 295 Ga. 874, 876 (1) 

(763 SE2d 854) (2014) (citation and punctuation omitted). “[A] 
57

reversal by this Court sets aside the prior trial court proceedings 

and requires the case to be heard again,” and in that situation, the 

trial court is not “required to rehear all pretrial motions as though 

they had never before been considered,” but it is not prohibited from 

doing so. Smith v. State, 292 Ga. 620, 622 (3) (740 SE2d 158) (2013).

“The effect of [the] new trial grant is to leave the cause pending in 

the lower court.” Pledger v. State, 193 Ga. App. 588, 589 (2) (a) (388 

SE2d 425) (1989). “It follows from this principle that, upon the grant 

of a new trial, the trial court has the authority to reconsider any of 

its previous rulings that have not been adjudicated on appeal.” 

Smith, 292 Ga. at 622 (3) (citing Ritter, 272 Ga. at 553 (2) and n.4

(noting that the admissibility of the defendant’s statement had not 

been considered or ruled upon by this Court on appeal)). 

Here, the State filed a new motion to admit post-arrest 

evidence, which the trial court was authorized to consider, and the 

end-of-term rule does not prohibit the trial court from ruling on new 

motions filed upon the new trial of the case, even if the subject 

matter was ruled upon previously. See Smith, 292 Ga. at 622 (3). 
58

See also Trauth, 295 Ga. at 876 (1). For these reasons, I believe that 

the trial court did not err in considering the State’s new motion to 

admit Jenkins’s January 10 custodial statement at the new trial, see 

Smith, 292 Ga. at 622 (3), and I would affirm the judgment of the 

trial court. 

I am authorized to state that Justice Ellington, Justice 

McMillian, and Justice Colvin join in this dissent.