Aaron v. State, A22A0511

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtPinson, Judge.
Citation364 Ga.App. 170,874 S.E.2d 169
Parties AARON v. The STATE.
Docket NumberA22A0511
Decision Date07 June 2022

364 Ga.App. 170
874 S.E.2d 169



Court of Appeals of Georgia.

June 7, 2022

874 S.E.2d 170

Sarah M. Timmers, for Appellant.

Flynn Duncan Broady Jr., District Attorney, John Richard Edwards, Marietta, Linda Jeanne Dunikoski, Assistant District Attorneys, for Appellee.

Pinson, Judge.

364 Ga.App. 170

This appeal follows our remand of a previous appeal for further findings. Anthony Todd Aaron was found guilty by a jury of criminal attempt to commit malice murder and possession of a knife during the commission of a felony, as well as two counts of aggravated assault that were merged for sentencing purposes. In his initial appeal, Aaron contended that he had been deprived of his constitutional right to self-representation at trial, Faretta v. California , 422 U. S. 806, 835-36 (V), 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), but that the record did not reflect his unequivocal assertion of that right because a "pertinent albeit tiny portion of the trial transcript" from the morning of jury selection had been omitted. Because the transcript appeared to be incomplete, we remanded the case so the trial court could hold a hearing under OCGA § 5-6-41 (f) and (g) to "make the record conform to the truth." OCGA § 5-6-41 (f). See Aaron v. State , 358 Ga. App. XXVI (Case No. A20A2001) (January 29, 2021) (unpublished) ("Aaron I ").

On remand, the trial court held that hearing. Crediting the testimony of the court reporter and Aaron's trial counsel, which was consistent with its own recollection, the court found that the transcript was not, in fact, incomplete. Although the transcript contained an error, the court found that the court reporter had "appropriately addressed" the error, and that the transcript "now accurately reflects" what transpired. The court then concluded that Aaron never made an unequivocal assertion of his right to represent

874 S.E.2d 171

himself. Therefore, the court held that its failure to hold a Faretta hearing was not error and did not entitle Aaron to a new trial.

In this appeal, Aaron contends that the trial court erred on remand by (1) denying his post-hearing request for a second remand hearing to obtain additional testimony, and (2) failing to certify that

364 Ga.App. 171

the court was unable to recall what had transpired at the Jackson - Denno1 hearing on the day before jury selection, when Aaron now claims that he unequivocally asserted his right of self-representation. But Aaron was not entitled to a second hearing because he had the opportunity to obtain the additional testimony at the first hearing, but declined to do so. And Aaron has failed to show any omission from the Jackson - Denno transcript that would warrant the certification he claims the trial court should have made. Aaron has shown no error in the trial court's reconstruction of the transcript and has failed to point to any portion of the record that would establish an unequivocal assertion of his right to represent himself. We therefore affirm both the trial court's post-remand order and Aaron's judgment of conviction and sentence.


(a) The Crimes and Convictions

As we explained in Aaron's initial appeal, the evidence at trial showed that Aaron choked and repeatedly stabbed the victim, his "on-again, off-again" romantic partner, with a kitchen knife. At his August 2018 trial, Aaron testified in his own defense and admitted to stabbing the victim, but claimed he had done so only to prevent her from taking his car and not with the intent to kill her. The jury found Aaron guilty of attempted murder, aggravated assault, and possession of a knife during the commission of a felony.

(b) The Contested Trial Transcript and the First Appeal

In his initial appeal, Aaron contended that the trial court had improperly denied him the right to represent himself at trial. He pointed to a portion of the transcript that he claimed contained a gap, and he asserted that in that gap, he had unequivocally asserted his right to represent himself. That portion of the trial transcript is found at the beginning of a discussion on the first day of trial among the trial court, the prosecutor, Aaron's trial counsel, and Aaron. After initial questioning of the venire, a brief recess had been taken, and the transcription resumed with trial counsel in midsentence. The transcript reads as follows:

(Whereupon, the Court took a brief recess.)

(Whereupon, the proceedings resumed.)

(Whereupon, the defendant was present in the courtroom.)
364 Ga.App. 172
TRIAL COUNSEL: – be whether or not they would hold it against my client if he represented himself. And so if, [the prosecutor], doesn't know whether to ask that question. And I was hoping I could pick the jury, and then he could make that decision, you know, about whether or not to make an opening and just take over. But I think they feel like – the State feels like that decision needs to be made –

COURT: Well, so far he's indicated that you're representing him, and we've done everything to the effect that he'll make the decision as to whether he'll testify. So he hasn't raised it again with me yet.


COURT: So you cannot ask him. What do you care?

ASSISTANT DISTRICT ATTORNEY: The only issue I have, Your Honor – and I – I don't know how you've perceived, kind of, what he says. [ Wiggins v. State , 298 Ga. 366, 368 (2), 782 S.E.2d 31 (2016) ] which I've handed up, just says if he's made an unequivocal statement saying he wishes to represent himself, it's reversible error if we don't go ahead and ask him the questions and ask him if he wants to represent himself. If it's equivocal, then it's not –

COURT: I think it's been equivocal because we had the whole discussion during the Jackson-Denno about the technicalities and we discussed yesterday some other stuff. Come on in. Have a seat.

(Whereupon, the defendant entered the courtroom.)
874 S.E.2d 172

COURT: Okay. So, you know, you kind of beat around the bush a little bit about representing yourself. You saw the technicalities of Jackson versus Denno. [Trial counsel] isn't going anywhere, one way or the other. What do you want to actually do?

DEFENDANT: I'll sit here and, you know –

COURT: I mean, he's got to listen to what you tell him, right? He works for you; you understand that?

DEFENDANT: I hope so. I hope so. I hope so.

COURT: He does.

DEFENDANT: I hope so.

COURT: No, there's no hope so. He works for you. You don't have to like what he says, but he works for you.

DEFENDANT: He works for the State.

COURT: No. He doesn't work for the State. He's not a yes-man though....
364 Ga.App. 173

COURT: Okay. So I'm going to let him do voir dire. But you – if you have anything you want him to ask, you give it to him, okay?

DEFENDANT: Yes, sir.

COURT: Okay. Is that okay with you, [trial counsel]?


Following this exchange, the court brought the first panel of prospective jurors back into the courtroom and continued with voir dire.

In our opinion deciding the original appeal, we identified two issues that needed clarification on remand. The first issue was the content of any discussion that took place before the transcription picked up and in particular, whether Aaron had told the court at that time that he wanted to represent himself. The second issue, which relates to the first, was whether Aaron "was present in the courtroom" at the beginning of the exchange, as the transcript states, or whether he "entered the courtroom" in the middle of it, as the transcript also states. These two issues were relevant to the question of whether Aaron had asserted his right to represent himself and, in turn, whether the court's failure to hold a Faretta hearing entitled him to a new trial. So we remanded the case and directed the trial court to get to the bottom of these two issues. See OCGA § 5-6-41 (f) (providing that "[w]here any party contends...

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