MELTON, Justice.
Following a jury trial, Aaron Brandon Willis appeals his convictions for the robbery and burglary of Joseph Briglevich as well as the kidnapping, armed robbery, and murder
1. In the light most favorable to the verdict, the record shows that, on June 6, 2003, two masked and armed men broke into Briglevich's home, tied him up, and stole money and a .45 caliber handgun from him. Approximately two weeks later, a call was made from a payphone near Willis' apartment requesting a cab. Agramontes was dispatched to pick up this caller. The next night, July 1, 2003, Agramontes' body was found on the ground in a wooded area. Her taxicab was nearby with its engine still running. Agramontes had been murdered with a .45 caliber handgun, and ballistics testing showed that it was the same handgun that had been stolen from Briglevich. In a recorded statement made to police on April 15, 2004, Willis admitted to the crimes against both Agramontes and Briglevich. Three days later, while being held in jail, Willis made a written confession to murdering Agramontes, as well as robbing and murdering another victim, John Evans, in February of 2004. The circumstances of Evans' murder were admitted at trial as a similar transaction.
This evidence was ample to support the jury's finding that Willis was guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Willis erroneously contends that his custodial statement confessing to the crimes in issue was improperly admitted into evidence because police failed to end the interrogation after Willis unambiguously invoked his right to counsel.
(Citations and punctuation omitted.) McDougal v. State, 277 Ga. 493, 498-499(1)(B), 591 S.E.2d 788 (2004).
Jordan v. State, 267 Ga. 442, 444(1), 480 S.E.2d 18 (1997).
The relevant portion of Willis' audio-recorded interview is as follows:
(Emphasis supplied.) It is clear from this exchange that, in this case, Willis' initial reference to an attorney was ambiguous as to whether he presently wanted an attorney or simply wanted one in the future. Under these circumstances, the interrogating officer reasonably attempted to clarify Willis' request, and Willis indicated that he was requesting the future assistance of an attorney, not immediate assistance.
2. Willis also erroneously argues that his written confession to the murders of Evans and Agramontes is inadmissible pursuant to the clergy-parishioner privilege of OCGA § 24-9-22.
The record shows that Willis, while in jail, initially told the prison chaplain that he wished to confess. The chaplain testified that he instructed Willis that "[i]f you want to do a confession, you don't do it to the chaplains. You do it to the proper authorities.... And I asked [Willis], I go, is this what you want to do? And he said, yes." The chaplain further testified that he never told Willis that he had to give any confession to police against his wishes. To the contrary, the chaplain testified that a law enforcement officer was brought to the room to take a confession at Willis' request. After the police officer entered the room, he asked Willis if he wanted to confess, and Willis confirmed that he did. The law enforcement officer then informed Willis that, if he did confess, the confession would be forwarded to the detective who was handling his case. With all of this information, Willis made his confession, knowing that it would be handed over to law enforcement in the case against him.
To reach the contrary result, the dissent makes a number of factual findings which have no support in the record. For example, the dissent states: "[Willis] never sought to waive the privilege; rather, the chaplain conditioned further spiritual guidance upon [W]illis making a confession to the `proper authorities.'" Nothing in the record supports this finding that the chaplain coerced Willis into giving a confession by withholding spiritual services. In fact, the opposite is true. Although the chaplain instructed Willis that he could not take a confession, he remained available for spiritual guidance, and he specifically testified that he never told Willis that a confession to law enforcement was required. The spiritual embargo cited by the dissent simply did not exist, and the only evidence of record indicates that Willis informed both the chaplain and law enforcement that he wanted to confess. Moreover, it is not the function of this Court to impose its own concepts of proper spiritual guidance on the parties before us, especially in a case like this one in which the chaplain expressly testified that he was only there to provide religious help and that he believed that providing Willis the opportunity to confess to law enforcement was the right thing to do as chaplain.
3. Willis contends that the trial court erred by admitting evidence of the February 2004 murder of Evans as a similar transaction. The decision of a trial court to admit evidence of similar transactions will be upheld unless there has been an abuse of the trial court's discretion. Colbert v. State, 275 Ga. 525, 526(2), 570 S.E.2d 321 (2002).
Bryant v. State, 282 Ga. 631, 634(3), 651 S.E.2d 718 (2007). Willis does not challenge either the trial court's finding that he perpetrated Evans' murder (to which Willis confessed in any event) or the finding that the Evans' murder was sufficiently similar to the murder of Agramontes,
4. Willis argues that the trial court erred by denying his motion to prohibit the District Attorney from addressing the traverse jury pool. Specifically, Willis argues that, as a result, his right to a trial by a fair and impartial jury was violated.
The record shows that the traverse jury pool for the Superior Court of Cobb County is given a brief orientation when they report for duty. As part of this orientation, the District Attorney identifies himself to the jurors and tells them that he would be willing to answer any questions they might have after their jury service is over. Although the District Attorney does not address any cases or defendants with the traverse jury pool at this time, this Court is strained to conceive of
5. Finally, Willis contends that the trial court erred by denying his challenge based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in which he argued that the State improperly used peremptory strikes against the only two African-Americans who were potential members of the jury. To establish a Batson violation,
(Citations and footnote omitted.) Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). See also Rakestrau v. State, 278 Ga. 872, 874, 608 S.E.2d 216 (2005).
In this case, after the trial court found a prima facie case of discrimination had been shown by Willis, the State explained that: (1) it struck one potential African-American juror because he had been charged with leaving the scene of an accident and that fleeing the scene could be indicative of a mistrust of law enforcement and (2) it struck the other potential African-American juror because she indicated that she had a nephew who had been jailed after being falsely accused. The trial court did not err by accepting these reasons for the State's strikes. The State's tendered reasons were "based on something other than the race of the juror" and, thus, were facially race-neutral. Hernandez v. New York, 500 U.S. 352, 360(II)(B), 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). See also Daniels v. State, 276 Ga. 632(3), 580 S.E.2d 221 (2003) (African-American jury who had a close friend or family member falsely accused of a crime was properly struck from jury). Furthermore, Willis has not proven that the State's proffered reasons for striking the jurors in question did not apply. Considering the totality of the circumstances, the trial court's Batson ruling in this case was not clearly erroneous.
Judgment affirmed.
All the Justices concur, except HUNSTEIN, C.J., BENHAM and HINES, JJ., who dissent.
BENHAM, Justice, dissenting.
I respectfully dissent from the majority's opinion because I believe the trial court's admission of appellant's custodial statements was erroneous.
1. This case is no different than Robinson v. State, 286 Ga. 42, 684 S.E.2d 863 (2009). In that case, after being read his Miranda rights, the defendant responded to questioning as follows:
This Court determined that, despite the words "uhm yeah," a seemingly affirmative response to the leading question asked, the defendant had invoked his right to counsel. Accordingly, the State was barred from using the defendant's custodial statement during its case-in-chief.
The facts of this case are nearly identical to Robinson. At the start of appellant's audio-recorded custodial interview, the following exchange took place between appellant and the police detective:
Although appellant uttered the word "no," in a seemingly negative response to the leading question asked, he stated in the very next breath that he wanted an attorney. Since the word "no" was immediately followed by appellant's unequivocal statement that "I still do want an attorney," the word "no" was a filler word that does not obfuscate the clear request for counsel. In fact the word "no" can reasonably be understood as negating the assumptions made by the officer in her question and clearing the way for appellant to clearly communicate his request for representation. He states that he wants to cooperate, but otherwise uses no qualifiers or equivocal words regarding his request. See Robinson, supra, 286 Ga. at 44, 684 S.E.2d 863 (the defendant did not use any equivocal words such as "might" or "maybe"). The fact that appellant stated a willingness to cooperate in any police questioning did not negate his request for a lawyer. See Manley v. State, 287 Ga. 338, ___(7), 698 S.E.2d 301 (2010). Nor did his statement indicate that he wished for a lawyer in the future. Id. At the moment appellant uttered "I still do want an attorney," the detective should have ceased all questioning until an attorney could be hired or appointed for appellant. Robinson, 286 Ga. at 44-45, 684 S.E.2d 863.
The majority mentions in a footnote that Robinson and Manley are distinguishable from the instant case, but fails to provide an explanation for that conclusion. In fact, the cases are not distinguishable. In this case and in Robinson, the facts at issue are nearly identical: both defendants were asked leading questions by police asking them whether they wanted an attorney before speaking to authorities; both defendants said they wanted a lawyer; and neither defendant mentioned any qualifiers as to when the lawyer should be appointed. Like the defendant in Manley, appellant stated a willingness to cooperate with police and also his desire for counsel. In both Robinson and Manley, this Court determined that the defendants had invoked their rights to counsel. There is no basis for this Court to depart from precedent
2. Three days after his custodial interview, appellant asked to speak with the jailhouse chaplain
There was no other stated purpose for the confession.
OCGA § 24-9-22 provides:
Under this statute, any communication to a member of the clergy that is for the express purpose of seeking and receiving spiritual comfort, guidance or counseling is privileged. Alternative Health Care Systems v. McCown, 237 Ga.App. 355(5), 514 S.E.2d 691 (1999) (trial court properly excluded a hospice chaplain from testifying at trial in a dispute concerning whether the decedent's wife consented to organ donation). It is undisputed that appellant sought out the chaplain to receive spiritual guidance. When appellant confided to the chaplain that he wanted to confess, the chaplain was barred by OCGA § 24-9-22 from disclosing to anyone, including the "proper authorities," any communication between himself and appellant. While the chaplain was not required to "do confessions," the statute expressly prohibited him from disclosing to anyone that appellant said he wanted to confess. Id. See also State v. Jackson, 77 N.C. App. 832, 336 S.E.2d 437 (1985) (trial court erred when it allowed a pastor to testify as to comments made by defendant while receiving spiritual counseling). Therefore, the majority opinion misses the mark when it states that the "chaplain did not disclose the confession to police." By bringing the police sergeant into the discussion concerning appellant's desire to confess, the chaplain abandoned his role as a neutral spiritual counselor and became a conduit of the police. Had the chaplain simply informed appellant that he did not "do confessions" and left the conversation as it was or continued with providing spiritual counseling to defendant, no violation of the privilege would have occurred. Thus, the trial court erred when it determined the privilege had not been violated.
Appellant never sought to waive the privilege; rather, the chaplain conditioned further spiritual guidance upon appellant making a confession to the "proper authorities." Since appellant had confessed to the authorities only three days earlier, it strains credulity that appellant intended to confess once again to police. Appellant's confession at this stage was simply to comply with the chaplain's instruction that he had to confess to the "proper authorities" in order to clear appellant's conscience for prayer. Indeed, with its references to a "savior" and "church," appellant's written confession indicates that appellant was in fact still seeking spiritual guidance and not further communication with authorities. The clergy privilege was violated in this case and the taint from that violation rendered the written statement inadmissible at trial. Accordingly, I would reverse.
I am authorized to state that Chief Justice HUNSTEIN and Justice HINES join in this dissent.