Aaron v. State
| Decision Date | 07 June 2022 |
| Docket Number | A22A0511 |
| Citation | 364 Ga.App. 170,874 S.E.2d 169 |
| Parties | AARON v. The STATE. |
| Court | Georgia Court of Appeals |
Sarah M. Timmers, for Appellant.
Flynn Duncan Broady Jr., District Attorney, John Richard Edwards, Marietta, Linda Jeanne Dunikoski, Assistant District Attorneys, for Appellee.
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 XXVI (Case No. A20A2001) (January 29, 2021) (unpublished) ("Aaron I ").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 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 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.
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.
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:
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) ().
At the hearing on remand, the court heard testimony from the court reporter who took down Aaron's trial, Aaron's trial counsel, and Aaron himself. The hearing was conducted by the same trial judge who had presided over the trial.
The court reporter, Domenica Turchiarelli, first addressed the issue of Aaron's presence in the courtroom. Turchiarelli testified that the parenthetical in the middle of the excerpt in question should have noted that the judge's staff attorney—not "the defendant"—entered the courtroom in the middle of the discussion about Aaron's representation. In other words, she explained that the transcript should reflect that Aaron was present at the time Turchiarelli began transcribing and at all other times during the exchange in question, and that it was the staff attorney who walked into the courtroom while that exchange was in progress.
As to the purported missing portion of the transcript, Turchiarelli testified that neither she nor the trial judge had been in the courtroom during that part of the conversation and that she and the trial judge had entered the courtroom at the "exact same time," at which time she immediately began recording:
We had taken a brief recess. We then entered the courtroom at the exact same time. [The trial judge] took the bench, and I went through the side door of the courtroom. And, at that moment, [trial counsel] Rice was speaking to [Assistant District Attorney] Peterson. I went immediately to my desk and began taking down. The Court addressed Mr. Rice and Ms. Peterson, and I did not know if what was about to be said would be something that needed to be on the record, so I immediately started taking down.
She also testified that the transcript—which she verified against an audio recording before certifying it, and which she compared with her notes before testifying at the remand hearing—is complete and accurate and fully captures every instance in which Aaron...
To continue reading
Request your trial