William H. Sawyer was accused of two counts of burglary. After a jury trial in which he appeared pro se, Sawyer was convictеd of one count of burglary. He enumerates six errors on appeal. -
The charge at issue arose after over $20,000 in jеwelry was taken from the victim’s home. Law enforcement officials focused on Sawyer after receiving a tip that he wаs in possession of some of the missing jewelry and had discussed his plans to commit a burglary. They arrested Sawyer after recovеring some of the stolen goods at Sawyer’s home during the execution of a search warrant.
After his arrest, Sawyer, an indigent, obtаined appointed counsel. However, prior to trial Sawyer “decided to let him go” due to conflicts over the adequacy of counsel’s trial preparation.
Just before trial commenced, Sawyer expressed to the court his cоncern about proceeding pro se. The court responded, “Well, you’ve been through this before with another judge, havеn’t you? ... I understand they appointed you two different lawyers.” 1 After Sawyer stated that he had a constitutional right to have counsel appointed, the court replied, “Well, you did.” Sawyer then informed the court that since learning he was proceeding pro se the sheriff had denied him access to a law library, prohibited him from calling prospective witnesses, and denied him the right to subpoena witnesses. He subsequently told the court that he was forced into representing himself. Held:
1. The record does not refute Sawyer’s contention that he did not properly waive his right to counsel at trial.
The absolute and unconditional right to counsеl may be waived only by voluntary, knowing action.
Prater v. State,
The trial court’s fulfillment of this duty should appear on the record.
Prater,
The record before us is silent. It shows that the trial court was informed that another judge had resolved the issue of Sawyer’s waiver of counsel and believed the waiver was on the record. The State, however, failed to include a transcript of the waiver hearing in the rеcord on appeal. The record before us contains no assurances of proper waiver. Sawyer’s requеsts for counsel were met with summary rejection. Nor was Sawyer apprised “of the dangers to a layman in conducting his own defense.” Compare
Staples v. State,
2. The denial of Sawyer’s motion to suppress was apprоpriate. We reject Sawyer’s contention that the warrant lacked probable cause, was insufficient on its face, and was improperly executed.
An informant’s tip may provide probable cause only if, under the “totality of the circumstances,” including consideration of the informant’s “veracity” and “basis of knowledge,” there is a “fair probability” that contraband or evidence of a crime will be found in a particular place.
State v. Bryant,
Viewing the evidence in that light, we find that the affidavit supporting the search warrant was sufficient on its face to provide the requisite probable cause to search. The affidavit stated that a reliable informant who had previously provided truthful information told the sheriff that Sawyer had stated that he intended to commit a burglary. The affiant stated that the informant then reported to the sheriff that he had seen jewelry similar to that taken in the instant burglary while visiting at Sawyer’s residence and that Sawyer stated he hаd taken some of it to Florida to sell. See
Sams v. State,
The informant had provided reliable information to the sheriff previously. Compare
McRae v. State,
Nor was it illegally executed. The record shows that the authorities returned after they initially executed the wаrrant because Sawyer’s roommate called them. He subsequently gave his consent for an additional search. Under thesе facts, we cannot say the State failed to satisfy its burden of establishing that the search was lawful.
Bowman v. State,
3. Sawyer maintains that the trial cоurt erred by failing to charge on the lesser included offense of theft by taking. On retrial, if such a charge is properly requested and the evidence supports it, the jury should be instructed on the lesser included offense.
Strickland v. State,
4. Sawyer correctly argues that the trial court committed reversible error by charging the jury on flight. The binding authority of
Renner v. State,
Judgment reversed and case remanded.
Notes
Sawyer’s initial counsel had previously represented the victim and was permitted to withdraw. Sawyer then discharged his second counsel.
We decline to address Sawyer’s contention that the search was rendered illegal because the authorities may have seized items not listed in the warrant because it is raised for the first time on appeal.
Stafford v. Bryan County Bd. of Ed.,