*1 (Citations omitted.) Woelper discretion is shown.” v.Piedmont Cotton Mills, Defendants have failing not shown that the trial court abused its discretion in to strike closing attorney’s testimony. deposition Judgment part part. J., Andrews, and reversed in P. affirmed fully (a), Branch, J., concurs. concurs as to Divisions 1 and 3 and only judgment (b). concurs as Division July Decided Watson, Caldwell, Jr., Carlson;
Caldwell & Harmon W. Robert S. appellants. Owen, Cauthorn Nohr & Cauthorn, Thomas E. Gregory, Marmins, Arnall Golden David J. I. Rebecca Lunceford, appellee. A15A0329. SMITH THE STATE. Presiding Judge. BARNES, guilty found Velbert Denorris Smith in the first
degree, tampering evidence, misdemeanor obstruction law of a officer, enforcement of cocaine. Smith filed a motion appeal, for new tends, which the trial court denied. On Smith con- among things, deprived other that the trial court him his self-representation by allowing not him agree himself at trial. We with Smith and therefore must reverse his convictions and remand case to court for a trial.
Following conviction, a criminal we view the evidence in the most favorable to the verdict. Sidner v. viewed, So the evidence showed that on 4, 2009,
December Smith walked into a branch of Bank America Douglas County. approached one bank tellers payable handed her a check made to him for The check was $965. signed on drawn a restaurant’s business account in the name ofthe he did not have individual owned restaurant. Smith told teller account bank but wanted to cash the check.
When the teller entered her information the check into computer, prompt verify signature she received a on the check. comparing signature restaurant card that owner’s signature check, to the file at bank on the determined teller signatures did not match. The teller then notified her verify supervisor if he the restaurant owner the issue and called knew Smith and denied that he Smith. The restaurant owner knew police. bank to call the asked the police, employee teller called informed
While another bank verify signature attempting Smith that the bank was agitated and demanded the teller Smith became account holder. *2 away him. then snatched the check from the return the check to He to leave the bank. teller and went police leaving arrived, from the bank until the
To Smith potential manager had been informed of assistant branch requested help forgery approached him, Smith, if she could and asked Smith handed the check and to see the check and identification. manager that and told her he had his identification to performed assistant for the restaurant’s owner and that was his some work payroll manager noted the check check. The assistant from had a Suwanee address and from Smith’s identification restaurant manager he asked lived in Atlanta. When the assistant Smith why distant bank branch to cash check had traveled such a Atlanta, in from a business he lived Smith asked for Suwanee manager back from the and check and his identification assistant grabbed manager the check from her. The assistant handed identification, he left Smith back his and the bank. security guard police working off-duty officer who was as a patrol parked receiving nearby
the bank was in his marked car. progress including forgery bank, about the in at the information description approached suspect, police officer, uniform, who was in his inquired and
Smith outside the bank check. trying responded check, Smith that he had been to cash the holding left officer saw that Smith was officer attempted check in his hand. The forgery under advised Smith that he was arrest and began struggling him, to handcuff but Smith with the ultimately and officer.The officer was able subdue Smith handcuff missing. him, The but the officer noticed that the check was officer through clothing and, check, in an effort find the searched Smith’s process doing glass pipe so, discovered with cocaine residue officer, however, inside The find the of it. was unable to check open clothing, and he When Smith’s asked Smith his mouth. Smith complied, dangling the roof the officer saw the check of his pressure applied mouth. started to it. The Smith chew officer keep swallowing check, cheek to him from Smith’s eventually spit it out. forgery degree, tampering indicted for in the first with
Smith was posses- felony officer, and evidence, of a law enforcement obstruction ensuing jury forged glass sion of cocaine.1At check pipe with cocaine residue inside of it introduced into evidence. were manager, police teller, The bank assistant branch officer testified out to the events as set above. The restaurant owner also testified Smith, him, that he did not know had not a check to written anyone not authorized a check him. his business write signature owner was shown the check issue and confirmed Additionally, chemist, on it was not his own. a forensic who worked at qualified expert drug the State crime lab as an identifi- opined glass pipe cation, residue inside the found Smith’s clothing was cocaine. charge jury
After the close
evidence
guilty
forgery
degree, tampering
found Smith
with
evidence, the lesser included offense of misdemeanor obstruction of a
officer,
law enforcement
of cocaine. Smith then filed a
Following
hearing,
motion for new trial.
the trial court denied
resulting
appeal.
motion,
Smith’s
1. The evidence introduced at trial and summarized above was
beyond
guilty
sufficient to authorize a
to find
rational
degree, tampering
reasonable doubt of
in the first
evidence,
officer,
misdemeanor obstruction of a law enforcement
*3
Virginia,
2781,
ofcocaine.
Jackson
2. Smith
the
contends that
trial court
him of his
self-representation by summarily ruling
that
represent
proce-
following
he could not
himself at trial without
2525,
dures as set forth in
California,
Faretta v.
pretrial appointed proceedings, agreement of Smith’s counsel, the trial a court ordered mental health evaluation to deter- among things, competent
mine, other whether Smith was to stand cooperate evaluation, trial. Because Smith refused to with the degree, Smith was a second hut indicted on count later granted acquittal Smith’s motion for directed verdict of on that count. attempted psychologist him unable to interview who forensic opinion competency. as to his offer an confining subsequently an order Smith entered
The trial court competency facility inpatient mental so mental health participated inpatient evalu- in his be better evaluated. Smith could psychologist, concluded that Smith was a forensic ation with psychologist report in his noted to stand trial. appointed expressed removed a desire to have his Smith counsel; that the role defense case; that Smith understood from legal participate defense; in his that Smith understood could Smith object proceedings refer- and his situation in “the nature and proceedings”; that his ence to personal than incom- the result “willful choice rather
was petence.” receiving inpatient mental health evaluation conducting hearing, appointed the trial court allowed Smith’s could counsel to case so Smith withdraw April Thereafter, 28, 2011, a calendar call on Smith ready appeared However, and announced that he was for trial. May day commence, 2011, the before his trial was set to Attorney Requested For Effective And/Or filed “Motion Private granted motion, Law.”The trial court continued Counselor Of appointed attorney date, a new Smith. The May appearance counsel filed his notice of case on 14,2011. trial a The case was called for second on November jury selected, that he was Before Smith’s counsel announced ready proceed, immediately but Smith asserted to bring you, going I “I would like to notice to he’s not me. represent myself.” Smith then asked for continuance so that will could
“prepare attorney [himself] and have this part, further stated in need [the] removed from case.” Smith “He don’t well____There’s during nothing. very I me can do that to way possible during anything. I that this can me attorney, acknowledge period.” him as refuse to reiterated several times to trial court he wished to appointed try himself and did not on his want counsel to case behalf. *4 request represent
The to trial court denied Smith’s himself proceed day the trial forward with Smith’s ordered that appointed would continuing to him. The court denied counsel request proceed pro had Smith’s to se in of the fact permitted previously requested been to but himself changed had his mind on the trial. later eve of As court explained denying trial, order Smith’s motion the court its for “fully prepared had allow to to himself” at request self-representation, trial after he made his but for request to believed that Smith’s himself second dilatory designed tactic, awas to the administration of justice, request denied his second on that basis. deny request permission to court’s decision Smith’s
to
himself was in error.2 Both the federal and state Con
guarantee
right
stitutions
a criminal defendant
to
I,
See
VI;
Const.,
I,
U. S. Const. Amend.
1983 Ga.
Art. Sec.
(A);
(III)
XII; Faretta,
Par.
State,
If a defendant makes assertion of his right prior request to himself to should hearing be followed a Faretta ensure the defen- knowingly intelligently right dant waives the to counsel self-representation. disadvantages and understands the given pro status, Once must allowed organization defense, control the own content argue points participate motions, law, make in voir question dire, witnesses, to at to address the appropriate points Deprivation in the trial. self-representation error, i.e., is structural errors require automatic reversal. There are limits right, competent however. Even for those are to stand representation trial, a State insist point those who suffer from severe mental illness they proceedings by not where are to conduct trial themselves.
(Citations, punctuation emphasis omitted.) Thomas v. (7) Faretta, See 422 U. S. at (III) (A), (V); Edwards, 819-820 835-836 Indiana v. 554 U. S. (III) (128 345) (2008); 171 LE2d Lamar (1) (b) (2004); Bettis v. 167, 168-169 although unequivocal
Here, Smith made several assertions ofhis commenced, before the trial the trial court hearing apprise dangers did not conduct a Faretta Smith of the does not enumerate as error the trial court’s denial ofhis for a continuance. *5 854 disadvantages self-representation. Instead, the court summar- concluding request
ily himself after to denied Smith’s dilatory request defendant tactic. But the motives of a are the was a pretrial, determining honor a defendant’s whether to irrelevant proper request unequivocal himself; rather, the test is to “knowingly intelligently his or her waives whether right punctuation omitted.) (Citation Lamar, 278 Ga. counsel.” to App. (1). (1) (b). And Bettis, 328 at 171 while a at See Ga. 153 right self-representation may if he suffers his to defendant denied point where he is not to mental illness to severe by proceedings himself, Edwards, U. S. at 178 trial see conduct inpatient (III); App. (7), Thomas, 331 at mental health Ga. performed by ordered the trial court and on Smith reflected evaluation mentally competent. reviewing Indeed, after that was conducting hearing issue, on trial health evaluation and pretrial matters and had court allowed Smith to himself “fully prepared trial; allow to himself” at it [Smith] to request only later concluded that Smith’s second court dilatory represent himself done with that the motive and refused to Smith to himself reversed course allow “Accordingly, solely that basis. because record shows that on mentally competent to both wished to make and was make a knowing intelligent right counsel, and the waiver his making employed wrong determination, standard this (Punctuation omitted.) App. Bettis, court erred.” improper self-representation 171 Because denial ofthe App. (7), error, Thomas, at 658 constitutes structural see Ga. must be Smith’s convictions reversed case remanded for a new trial. reaching conclusion, v. this we note Williams (1987), relied is present
distinguishable Wiliams, true from the case. It is that in deny request Court stated that a trial court a defendant’s request “dilatory himself if the court finds that is a disrupt proceedings against Id. [ ] tactic calculated to him.” at 374 (1). Significantly, however, his defendant Wiliams made request unequivocal commenced, trial had after (1), self-representation see and the denial of id. at beginning “made after the of trial is not reversible error because a frivolously change defendant cannot his mind in midstream asserting self-representation middle of trial.” (Citations punctuation omitted.) Mason v. (2) (a) (754 397) (2014). Hence, context, read in dilatory bearing
reference in Wiliams to tactics has cases with procedural posture present one, like where the defendant .3 unequivocally requests begins himself before the trial failing grant Smith also contends that the trial court erred discharge acquittal statutory speedy grounds. him a disagree under facts of this case. proper 17-7-170, §
Under “[a] OCGA defendant has made a speedy discharge demand for a is entitled to an automatic without further motion if court, try ishe not tried within the second term of
provided present qualified is at each term and is (Citation omitted.) him.” Gifford requirement underlying “But the remains that a *6 valid demand, demand for trial must exist. Absent such a Doehling State, exists to be tried Ga. a certain within time frame.” v. App. (518 137) (1999). 293, SE2d speedy pursuant Smith failed to file a valid demand for pro statutory Rather, § OCGA 17-7-170. Smith filed a se demand for a speedy represented by trial while he was his first counsel. consequence representation by counsel,
As a of [Smith’s] his Georgia, se motion In [was]void. a criminal defendant no longer repre- has the himself and also be by attorney. represented by sented As was coun- pro motion, sel when he filed the this of no motion was legal effect whatsoever.
(Citation punctuation omitted.) App. State, Voilsv. 266 (3) 33) (598 SE2d Smith did Because not file a valid speedy failing grant trial, demand for the trial court did not in err discharge acquittal pursuant Smith a § to OCGA 17-7-170. See (1) (461 (1995); 320, 655, Maddox v. Goodwin v. remaining
4. Smith’s of enumerations error are moot and need not be addressed our decision in Division 2 that his convictions must be reversed the case for remanded a new trial. Judgment reversed and case remanded a new trial. McMil- for Ray, fully specially. lian, J., J., concurs. concurs Coppolla (1999), quoted v. we Williams, “dilatory language objected but tactics” in the context a defendant where to his appointed respond counsel but then refused to when the trial asked him whether he any Coppolla wished to himself without assistance counsel. thus addresses the complains appointed narrow context where a defendant but then thwarts the efforts court’s to determine whether defendant desires to himself. That is clearly present case, repeatedly unequivocally not the situation where Smith asserted wanted to himself at trial. fully specially. Judge, concurring
RAY, majority’s opinion Although fully case, I I concur good faith and that I that the court acted write to stress believe understandably with defendant. frustrated provided legal Originally, defendant to the counsel was February By Douglas County sent in Public Office. letter Defender’s With aid of a health he asked competent to that the defendant was evaluation which concluded generally understood the ramifications make such a decision go Yet, it decision, the trial court allowed defendant alone. changed just the case was called for the defendant before mind, attorney the trial asked he receive both another court and contacted get up speed.
and a continuance to allow
obliged
the case was called for
The trial court so
trial
the
the defendant. When
sought
thereafter, however,
the second
discharge
court-appointed attorney
of his
and another continu-
being skeptical
request,
find no fault
the trial court
ance. I
just
believing
it
tactic
defendant.
Understanding
“hindsight
retrospect
20/20,”
is
engaged
dialogue
might
have
in a little more
defendant
again.
procedures
requested to
If the
set
when he
California,
forth
Decided Smith, D. se. Velbert Attorney, Dooley, Fortner, A. Assistant
Brian K. District James Attorney, appellee. District