Colwell v. State

• Decision Date: 02 March 2001
• Docket Number: No. S00P1959.,S00P1959.
• Citation: 273 Ga. 634,544 S.E.2d 120
• Court: Georgia Supreme Court
• Parties: COLWELL v. The STATE.

544 S.E.2d 120

273 Ga. 634

COLWELL v. The STATE.

No. S00P1959.

Supreme Court of Georgia.

March 2, 2001.

Reconsideration Denied April 5, 2001.

Kenneth D. Driggs, Michael Mears, Atlanta, for appellant.

John R. Parks, District Attorney, Daniel P. Bibler, Assistant District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Patricia A. Burton, Assistant Attorney General, for appellee.

Ronald S. Honberg, Rex W. Cowdry, Arlington, amici curiae. BENHAM, Chief Justice.

In 1996, Daniel Morris Colwell was charged with numerous offenses arising out of the fatal shootings of Judith and Mitchell Bell in a Sumter County store parking lot. Immediately after a jury found Colwell competent to stand trial, he pled guilty to two counts of malice murder, six counts of felony murder, two counts of aggravated assault, possession of a firearm by a convicted felon, possession of a firearm at a public gathering, and carrying a pistol without a license.¹ In the sentencing trial that was convened five months after the guilty pleas were entered, a second jury found the existence of statutory aggravating circumstances beyond a reasonable doubt and fixed the penalty for both of the malice murder charges and for each of the six felony murder charges at death. The trial court imposed eight death sentences in accordance with the jury's determination. We affirm as to two of the death sentences, vacate the six convictions and death sentences for felony murder, vacate the convictions and sentences for aggravated assault, and affirm as to the remaining convictions and sentences.

1. The evidence presented at Colwell's sentencing trial showed that Colwell, wishing to die but unable to commit suicide, formulated a plan to kill more than one person in order to secure his own execution. He put his plan in motion on July 20, 1996, when he drove to a store parking lot in Sumter County and approached Mitchell and Judith Bell as they conversed with a friend. Colwell shot Mr. Bell in the back, stood over him as he begged for his life, and shot him in the head. Colwell then shot Mrs. Bell in the head as she lay on the pavement wailing. Colwell left the Bells, got into his car, and drove to the Americus Police Department where he gave a tape-recorded confession. In the tape-recorded statement, which was played for the sentencing jury, Colwell explained that he had purchased a handgun to commit suicide but "didn't have the nerve to pull the trigger to [his] head." He went on to say that he wanted to commit suicide and saw "going to the electric chair" as "a way of dying." After Colwell's counsel presented extensive evidence in mitigation, Colwell testified and told the jury he had committed the murders for the purpose of obtaining a death sentence and that he would kill again if he did not receive the death penalty.

After reviewing the record and transcript of this case, we conclude, with the exceptions set forth below, that the trial court correctly entered judgment on Colwell's guilty pleas and that the evidence presented at the sentencing trial was sufficient to authorize the jury to find the existence of at least one statutory aggravating circumstance for each murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); OCGA § 17-10-30(b)(2), (7).

2. Colwell's counsel contends that Colwell was improperly found competent to stand trial. Where a defendant's competence is challenged by the defense or appears to be in question at the time of trial, the Constitution of the United States requires that his or her competence be determined. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The standard to be applied in making that determination is whether the defendant "is capable of understanding the nature and object of the proceedings and is capable of assisting his [or her] attorney with his [or her] defense." Stripling v. State, 261 Ga. 1, 2, 401 S.E.2d 500 (1991). See OCGA § 17-7-130. The extensive evidence presented at Colwell's competency trial supports the jury's finding that he was competent under this standard. Furthermore, our review of the trial record confirms the soundness of the jury's finding of competence, as it appears that Colwell participated intelligently in his trial proceedings. In fact, Colwell's intellectual grasp of his proceedings led to his ultimate decision to allow his counsel to present a vigorous mitigation case in order to increase the likelihood of having possible death sentences affirmed on appeal.

We are mindful of the fact that Colwell likely suffered from a mental disease and was plagued by a desire to die, however, we must acknowledge, as the competency jury and the trial court also did, that Colwell clearly understood the nature and object of his proceedings and that he possessed the intellectual and communication skills necessary to participate in his own case in the manner that seemed best to him.

3. Colwell's counsel contends that the trial court erred by denying Colwell his right to represent himself, by failing to conduct a hearing on Colwell's competence to waive his right to counsel, and by forcing a mixed form of representation upon Colwell. We find no error.

(a) Throughout the competency and sentencing trials, Colwell and his counsel were in fundamental disagreement on the question of whether Colwell should receive the death penalty for his crimes. Fifty-five days before the competency trial, counsel filed a motion to withdraw from representation, asserting an unwillingness to serve as Colwell's "unquestioning mouthpiece...." Counsel withdrew the motion to withdraw ten days later. Immediately after Colwell was found competent to stand trial, the trial court informed Colwell that from that point forward he would control his own defense and permitted him to plead guilty.

A month before the sentencing trial commenced, defense counsel filed a motion to withdraw Colwell's guilty plea. After hearing counsel's arguments about alternative pleas that could have been entered and after the trial court again explained to Colwell that he was in control of his defense, Colwell informed the trial court that he did not wish to withdraw his guilty pleas. Counsel urged the trial court to conduct a hearing on Colwell's competency to control his defense, but the trial court declined to do so.²

In a letter written shortly after his counsel filed the motion to withdraw the guilty pleas, Colwell explained to the trial court that he did not believe he needed an attorney and emphatically stated he would not have representing him an attorney who was not in agreement with himself and the district attorney. Shortly after Colwell's letter was written to the trial court, counsel once again filed a motion to withdraw. In a hearing held on September 17, 1998, the trial court explained again to Colwell and Colwell's counsel that Colwell would have ultimate authority over most matters in his case. It was decided that counsel should remain on the case, but counsel disagreed strongly with the trial court's beliefs concerning the role of counsel and the extent to which the client could control the case. Counsel also urged the trial court to conduct a hearing on Colwell's competence to control his defense, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Colwell informed the trial court that, because he was in control of his case, he was satisfied with his representation.

As voir dire of the prospective sentencing jurors began, the trial court again discussed the matter of representation with Colwell, explaining that Colwell would be in control of his case but adding, at one point, "I don't want to tell you I won't let you represent yourself." When asked by the trial court what he wanted, Colwell responded, "I just wanted to have control [of the case]." In the ensuing discussion, it became clear that Colwell had decided to personally present his view of the case to the jury and to allow counsel to present mitigation evidence. Colwell summed up his decision as follows: "I understand you [the trial court] have given me full control and I understand that I've decided to let my lawyers take control." Another long discussion concerning Colwell's representation took place at the end of voir dire. Counsel explained that Colwell had agreed to let counsel present mitigation evidence, and Colwell confirmed the agreement, explaining that he believed the introduction of mitigation evidence would prevent a reversal of any death sentence he might receive. The sentencing trial proceeded, with counsel presenting a mitigation case and Colwell telling the jury, through his testimony and in writing, that he should receive the death penalty.

(b) Counsel argues on appeal that the trial court violated Colwell's rights under the constitutions of Georgia and the United States by refusing Colwell's request to conduct his case pro se. Having been found competent to stand trial, Colwell was entitled to represent himself at trial upon a request to do so and upon a finding that his decision was knowing and intelligent. Id.; Ga. Const. 1983, Art. I, Sec. I, Par. XII; see Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (holding that the standards governing competence to stand trial, to plead guilty, and to waive the right to counsel are the same, although the issues of competence and the knowing and voluntary nature of a decision are not the same). However, after the trial court explained to Colwell that he would be in control of his case and after he learned that any death sentence was more likely to be affirmed on appeal if a mitigation case were presented, Colwell gave his approval to counsel's representation. Colwell, it appears from the record, did not wish to represent himself but, rather, wished to have counsel...