Lead Opinion
A Muscogee County jury found Paul Tyner guilty beyond a reasonable doubt of two counts of rape, OCGA § 16-6-1 (a) (1); two counts of aggravated sodomy, OCGA § 16-6-2 (a) (2); and two counts of burglary, OCGA § 16-7-1.
Pertinently to Tyner’s claims of error, the record shows the following. Tyner’s appointed counsel represented him during pretrial proceedings and appeared for him at trial. After the State presented its case-in-chief, Tyner elected to testify in his defense. Both sides
The court advised Tyner that the remaining stages of the case were the defense’s closing argument, which would be “the important stage that would entail some active representation on [his] behalf”; the charge of the court to the jury as to the law, when he would have a right to “note any technical objections that [he felt] might exist in it”; and the jury’s deliberations. The court told Tyner that his attorney was prepared to complete the trial, and that he had the right to have his attorney do so, but that he also had the right to represent himself. The court then asked, “What is your election?” Tyner replied, “I would like to do it.” The court asked Tyner’s attorney to remain at the defense table to advise Tyner if requested. Before proceeding, the trial court advised Tyner that he would be bound by the same rules as would apply to counsel. The court emphasized specifically that, during closing argument, Tyner would be limited to discussing the evidence adduced at trial and any logical inferences supported by the evidence and that he could not go outside of the evidence produced at trial.
Tyner immediately ran afoul of the court’s instructions. He started to discuss a Supreme Court holding, and the judge interrupted and advised Tyner that he would instruct the jury regarding the applicable law. The judge again instructed him to confine his argument to “the evidence produced during this trial and the logical deductions.” Tyner next argued to the jury that, at the outset of the investigation, he had been willing “to do anything that [the State] would ask [of him. He] was supposed to have taken a lie detector test.” The State objected, adding that Tyner had applied to take a lie detector test but had withdrawn the application the week before the trial. The court commented that there had been no evidence of a polygraph and reiterated that Tyner was limited in his argument to the evidence produced during the trial and the logical deductions from the evidence.
Tyner continued his argument, complaining that his defense counsel failed to call witnesses he wanted. The judge interrupted, saying:
Now, Mr. Tyner, I’m not going to allow you to sit up there and embarrass the lawyer over there, who the Court knows is a very fine lawyer and very conscientious. I caution you once again, confine your argument to the evidence produced*892 during this trial — none of this [about аny defense witnesses] was produced in evidence — and logical deductions from that evidence. . . . [T]here are certain boundaries that you cannot go beyond. So, argue the evidence that was produced during this trial and the logical deductions.
Tyner resumed and quickly drew another objection, when he started talking about what had happened at a pretrial hearing the previous week. The court did not expressly rule on the objection but instructed Tyner again to confine his argument to the evidence and logical deductions. The judge added, “I was present at that hearing [the previous week], . . . Regardless of what did or didn’t happen last Friday, you must argue what happened during this trial this week. So, confine your argument to that.”
Frustrated, Tyner said to the court,
I keep making these mistakes. I will just let him ... Is it okay that the lawyer just go on and аrgue, because I don’t quite understand where you are coming from. It would be all right with me if the lawyer... would just take over from here, because ... I keep making these mistakes.
The court denied Tyner’s request to allow his defense counsel to resume his representation of him. The court said, “the defense is entitled to [only] one argument.... I can’t let you toy with the court; you get up and say you want to make the argumеnt and then you say you want your lawyer to make the argument.” The court stated:
[Y]ou can continue your argument. The court will correct the mistakes [you make], and I will be [more] tolerant with you than I would with your lawyer in [the case].... Any mistake[s] you make, the court will correct them. I just must keep cautioning you that the argument must be confined to evidence introduced during the trial and logical deductions. You can’t gо into other evidence and testimony and so forth that might or might not have been admissible, because the jury didn’t hear it.
As Tyner continued his argument, he repeatedly drew objections from the State and admonitions from the court for improper argument.
After the jury found Tyner guilty of all charges, the trial court immediately held the sentencing hearing. Tyner offered no evidence or argument in regard to sentencing. Expressing regret that the Supreme Court of the United States had “made a mistake when [it]
1. Tyner contends that the trial court erred in requiring him, after he wished to withdraw his waiver of counsel, to proceed pro se during the remainder of closing argument and during reception of the verdict and sentencing.
It is well settled that
[c]riminal defendants are guaranteed the rights to both counsel and self-representation under the federal and state Constitutions. ... If a defendant mаkes an unequivocal assertion of his right to represent himself prior to trial, the request should be followed by a Faretta\2 ] hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation.
(Citations and punctuation omitted.) Thomas v. State,
Assuming a defendant’s waiver of his right to counsel is proper, that right, once waived, is no longer absolute. Wilkerson v. State,
The right to counsel, however, does not evaporate following a valid waiver, and a defendant may make a post-waiver request for counsel if, for example, he discovers he is overwhelmed by the trial process. Whether to grant or deny a defendant’s post-waiver request for counsel is within the broad discretion of the trial court. In considering a post-waiver request for counsel, a trial court may consider, among other things, the timing of the request. As the trial date draws nearer, the trial court can and should consider the practical concerns of managing its docket and the imрact that a request may have on its general responsibilities for the prudent administration of justice. The possibility of a disruption of trial proceedings may be diminished, however, if a defendant has had standby counsel and requests that the standby counsel represent him. If an examination of the record reveals that a trial court has abused its discretion in denying a post-waiver request for counsel during trial, it is а structural Sixth Amendment violation, and is not subject to a harmless error analysis on direct appeal.
(Citations and punctuation omitted.) Id.
Pretermitting whether the trial court properly acceded to Tyner’s desire to waive his right to counsel just after the State’s closing argument, the record shows that he very quickly discovered that he
We must reject the State’s argument that, “[e]ven where a court’s decision to allow a defendant to act pro-se is found to be in error, it can be hаrmless error when it is unlikely that appellant’s convictions were attributable to his decision to represent himself [,]” citing McCook v. State,
2. In light of our holding in Division 1, supra, Tyner’s remaining claim of error is moot.
Judgment reversed.
Notes
The offenses occurred on July 25, 1981. Tyner was tried on September 22 and 23, 1981. Nearly 35 years later, the trial court determined that Tyner had been deprived of the right to counsel on appeal and, on February 13, 2014, granted him leave to file an out-of-time appeal.
See Faretta v. California,
In order to determine whether a defendant’s decision to waive the right to counsel is knowing and voluntary, “a trial judge must investigate as long and as thoroughly as the circumstances of the case before him demand.” (Citation and punctuation omitted.) Kirkland v. State,
See United States v. Gonzalez-Lopez,
We disagree with the dissent that Tyner was seeking a hybrid form of representation. See, e.g., Horne v. State,
[A defendant’s] right to counsel attaches once judicial proceedings have been initiated against him[,] and the accused is entitled to the representation of an attorney at all critical stages thereafter through an initial appeal. A critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other wаy.
(Citations and punctuation omitted.) Adams v. State,
We note that our opinion in McCook v. State has no precedential value as one member of the three-judge panel concurred in the judgment only.
Dissenting Opinion
dissenting.
Following his convictions on two counts each of rape, aggravated sodomy, and burglary, Paul Tyner appeals, arguing that the trial court erred in allowing him to waive his right to counsel and proceed pro se just prior to closing argument, denying his subsequent request to withdraw his waiver of counsel, and in improperly expressing its opinion on the evidence. Pretermitting his initial argument, the majority agrees that the trial court should have allowed Tyner to withdraw his waiver of counsel and, therefore, reverses his convictions. However, I disagree that the trial court abused its discretion in denying Tyner’s request to withdraw his waiver of counsel. Accordingly, I respectfully dissent.
In this matter, after the Stаte presented its closing argument, Tyner’s counsel advised the trial court that Tyner now wanted to proceed pro se for the remainder of the trial. The court then explained what the remainder of the trial would entail and that Tyner, indeed, had the right to represent himself. Thereafter, the court asked Tyner how he wanted to proceed, and Tyner chose to proceed pro se. Thе court then instructed defense counsel to remain and advise Tyner if he so requested. And subsequently, the court informed Tyner that
But, as the majority notes, almost immediately, Tyner violated the court’s instructions and began discussing a Supreme Court holding and evidence outside of the trial record. The State objected, and the trial court reminded Tyner to confine his argument to “the evidence produced during this trial and the logical deductions.” Upon resuming his argument, Tyner began discussing his defense counsel’s alleged deficiencies but was instructed by the court to cease from doing so. After attempting to continue his argument and again drаwing an objection from the State, and yet another admonishment from the court that he limit his argument to matters in evidence, Tyner acknowledged his mistakes and asked the court if defense counsel could resume his representation of him. But the court denied his request, stating “the defense is entitled to one argument____I can’t let you toy with the court; you get up and say you want to make the argument and then you say you want your lawyer to make the argument.” Consequently, Tyner continued his closing argument, which drew multiple objections from the State and rebukes from the trial court. And at the trial’s conclusion, the jury found Tyner guilty of all charges.
Tyner now argues, and the majority agrees, that the trial court erred in denying his post-waiver request for counsel. However, I do not agree that the court’s ruling in this regard constituted an abuse of discrеtion.
Once a defendant properly waives his Sixth Amendment right to counsel, “that right is no longer absolute.”
Here, although Tyner’s post-waiver request for his counsel to resume representing him was unlikely to cause significant disruption of the trial, this Court has previously held that a trial court’s refusal to countenance this type of hybrid representation does not constitute an abuse of discretion.
For all of the foregoing reasons, I respectfully dissent.
Wilkerson v. State,
Id.
Id.
Id.
Id. (punctuation omitted).
See Davis v. State,
See id.