Hamilton v. State

• Decision Date: 01 July 1998
• Docket Number: No. A98A1133.,A98A1133.
• Citation: 233 Ga. App. 463,504 S.E.2d 236
• Parties: HAMILTON v. The STATE.
• Court: Georgia Court of Appeals

504 S.E.2d 236

233 Ga. App. 463

HAMILTON v. The STATE.

No. A98A1133.

Court of Appeals of Georgia.

July 1, 1998.

Reconsideration Denied July 16, 1998.

Certiorari Denied November 20, 1998.

Ronald B. Arenson, for appellant.

Ralph T. Bowden, Jr., Solicitor, Raymond J. Burby IV, W. Cliff Howard, Assistant Solicitors, for appellee.

ELDRIDGE, Judge.

On July 16, 1997, at approximately 3:35 p.m., defendant Linda Hamilton was stopped on Turner Hill Road in DeKalb County for driving 62 mph in a 45 mph speed zone. The weather was cloudy, the road was dry, and traffic was light. The DeKalb County Solicitor-General filed an accusation in DeKalb County State Court charging Hamilton with two counts of speeding. Hamilton pled not guilty and demanded a jury trial.

On January 15, 1998, Hamilton appeared for trial without counsel and represented herself. She apparently declined to have the proceedings taken down by the court reporter. Accordingly, there is no transcript of what the trial court said in advising Hamilton regarding her decision to act pro se or the risks of proceeding without the benefit of a trial transcript. However, Hamilton signed a waiver of counsel form,¹ and the trial court issued an order in which she concluded that Hamilton had validly waived her right to counsel.²

It is undisputed that, at trial, Hamilton testified in her own defense and was cross-examined by the State. The jury subsequently convicted Hamilton of both counts of speeding.³

The record contains a transcript of the sentencing phase,⁴ during which the trial court made numerous questionable statements regarding Hamilton's unwillingness to admit to the act for which she was convicted and the trial court's belief that Hamilton had lied during her testimony as to prior speeding, a belief that was based upon inferences made from outside the record. According to the trial court, the State asked Hamilton during cross-examination whether she had "ever" driven over the speed limit, an improper question which injected Hamilton's character into evidence. Hamilton testified that she never sped, then clarified her answer, saying that she sped only when necessary as a matter of safety, as when trying to pass a truck. The State presented no evidence that Hamilton had ever sped previously. It is undisputed that Hamilton had never been charged with speeding prior to this incident. Thus, any inference to the contrary was made from outside the record.

Even so, during sentencing, the trial court stated that "it is incredible for anyone to get up on the stand and say that you have never sped." The trial court then sentenced Hamilton to serve two days in jail because the court believed that Hamilton lied during her testimony as to prior speeding.⁵ The trial court also sentenced Hamilton to 12 months on probation, a $1,000 fine plus court costs, and 80 hours of community service. Hamilton persuaded the trial court to allow her to present herself for the jail sentence on the following Tuesday, January 20, 1998.⁶

On January 20, 1998, Hamilton appeared with counsel before the trial court. Counsel made an oral motion to the court to reconsider the jail sentence. According to the transcript of the hearing, the trial court repeatedly reiterated that Hamilton was sentenced to jail because she lied to the jury as to prior speeding. After the trial court denied the motion, counsel requested that the court set an appeal bond. Although Hamilton owned a home, was employed, had family in the area, and stood convicted of a misdemeanor, the trial court set a bond of $10,000. This appeal follows. Held:

1. (a) In her first enumeration of error, Hamilton claims ineffective assistance of counsel, based upon numerous substantial errors she committed during her pro se defense. However, "[w]hen a criminal defendant elects to represent [herself], ... [she] will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein [she] was counsel." (Citation and punctuation omitted.) Williams v. State, 192 Ga. App. 317, 319(3), 384 S.E.2d 877 (1989).

(b) Even so, in pursuing her ineffectiveness claim, Hamilton also raises the legitimate issue of whether or not she knowingly and intelligently waived her right to counsel. Because this Court finds that the record does not show that Hamilton had sufficient information upon which to effect a valid waiver, notwithstanding the trial court's conclusory order, we reverse.

"When an accused is placed on trial for any offense, whether felony or misdemeanor, for which [she] faces imprisonment, the constitutional guarantee of right to counsel attaches. As with all constitutional rights, the accused may forfeit this right by a knowing and intelligent waiver. Waiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment" of this right. (Citations and punctuation omitted; emphasis supplied.) Rutledge v. State, 224 Ga.App. 666, 669(3), 482 S.E.2d 403 (1997). See also Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Taylor v. Ricketts, 239 Ga. 501, 238 S.E.2d 52 (1977); Keith v. State, 218 Ga.App. 729(1), 463 S.E.2d 51 (1995); Kirkland v. State, 202 Ga.App. 356, 357-358(1), 414 S.E.2d 502 (1991). In other words, the record should establish that the defendant "knows what [she] is doing" in choosing self-representation and that her choice is made "with eyes open." (Citations and punctuation omitted.) Clarke v. Zant, 247 Ga. 194, 195, 275 S.E.2d 49 (1981).

"The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused." (Citations and punctuation omitted.) McCook v. State, 178 Ga.App. 276, 342 S.E.2d 757 (1986). See also Johnson v. Zerbst, supra at 465, 58 S.Ct. 1019; Clarke v. Zant, supra at 196, 275 S.E.2d 49. "In order to establish a valid waiver, a trial judge must investigate as long and as thoroughly as the circumstances of the case before him demand. To be valid[,] such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. When determining whether there has been an informed and intelligent waiver of such a right, each case must be determined upon its own peculiar facts and circumstance[s]. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record." (Citations and punctuation omitted; emphasis supplied.) Rutledge v. State, supra at 669-670(3), 482 S.E.2d 403. See also Clarke v. Zant, supra at 196, 275 S.E.2d 49; King v. State, 231 Ga.App. 775, 501 S.E.2d 19 (1998); Keith v. State, supra; Kirkland v. State, supra at 357-358(1), 414 S.E.2d 502; Harris v. State, 196 Ga.App. 796(1), 397 S.E.2d 68 (1990). In so noting, we recognize that there is "no magic language that must be used by a trial judge in determining that a defendant has made a valid waiver of his right to counsel." Reviere v. State, 231 Ga.App. 329, 330, 498 S.E.2d 332 (1998); see also King v. State, supra at 776, 501 S.E.2d 19. On appeal, the appellant generally carries the burden to show error affirmatively by the record. Keith v. State, supra at 729(1), 463 S.E.2d 51, citing Hudson v. State, 197 Ga.App. 428, 429(2), 398 S.E.2d 779 (1990). However, when a defendant challenges an alleged waiver on appeal, it is the State's burden to prove that the defendant received sufficient information and guidance from the trial court upon which to knowingly and intelligently relinquish this right. Wilson v. State, 230 Ga.App. 74, 495 S.E.2d 330 (1997); Keith v. State, supra at 730, 463 S.E.2d 51; Kirkland v. State, supra at 357, 414 S.E.2d 502. This evidence must overcome the presumption against waiver. See Cook v. State, 227 Ga.App. 674, 676, 490 S.E.2d 181 (1997); Keith v. State, supra at 730, 463 S.E.2d 51.

(c) Looking at the totality of facts and circumstances in this case, the only evidence in the record which supports a finding that Hamilton validly waived her right to counsel was a waiver form signed by Hamilton. However, there was a cursory order by the trial court and a more explicit order denying Hamilton's motion for reconsideration dated January 21, 1998, which simply reiterated the same conclusions of the trial court without stating the facts upon which the court relied regarding Hamilton's alleged waiver.⁷ In the January 21 order, the trial court noted that it instructed Hamilton in accordance with Cook v. State, supra, and concluded that Hamilton understood "the consequences of self[-]representation." The order also stated that Hamilton was advised of the "benefits of an official transcript."

In Cook v. State, supra at 675, 490 S.E.2d 181, the record included a transcript which showed, in detail, the court's warnings to the defendant which reflected that the defendant had been informed about the risks of proceeding pro se at trial. Numerous other cases have found that the case records sufficiently supported the State's assertion that the defendant knowingly waived the right to counsel. For example, in Rutledge v. State, supra, this Court found that the trial transcript "clearly" indicated that the defendant knowingly and voluntarily waived his right to counsel. However, the Rutledge Court also found that, even if the trial court erred in allowing the defendant to proceed pro se, such...