Harris v. State

• Decision Date: 14 September 1998
• Docket Number: No. S98A1004.,S98A1004.
• Citation: 505 S.E.2d 467,269 Ga. 731
• Parties: HARRIS v. The STATE.
• Court: Georgia Supreme Court

505 S.E.2d 467

269 Ga. 731

HARRIS v. The STATE.

No. S98A1004.

Supreme Court of Georgia.

September 14, 1998.

Ira B. Brownlow, Jr., Virginia Whitehead Tinkler, Decatur, for Charles Harris.

Paul L. Howard, Jr., Dist. Atty., Stephen Bart Murrin, Cari K. Johanson, Asst. Dist. Attys., Hon. Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.

HUNSTEIN, Justice.

Charles Harris was convicted of murder, felony murder, armed robbery, theft by receiving, and two counts of firearm violations in the shooting death and robbery of Benjamin Danyali. Harris appeals from the denial of his amended motion for new trial.¹

Evidence was adduced at trial that on the evening of April 18, 1995, Danyali was at a service station located at the intersection of Interstate 75 and West Paces Ferry Road. Appellant drove into the station in a black, four-door Cadillac and called out to Danyali. Danyali spoke to appellant through the window of the car and then entered the car. Appellant then drove the Cadillac out of the service station and turned onto West Paces Ferry Road. A witness who lived on West Paces Ferry Road observed a Cadillac stop in front of his home. The witness heard a "pop noise" about thirty seconds after the vehicle stopped, heard two car doors open, and then a thud as if something hit the ground. The Cadillac backed into the witness' driveway, turned around and headed towards the interstate. Investigators found Danyali lying on the ground with a contact gunshot wound to his head, his pockets turned inside out, a $20 bill sticking out of his rear pocket, and a beeper on his hip.

Later that evening, appellant contacted Turner, a friend who worked at the service station, and asked him for a ride home because the Cadillac had broken down. Earlier, Turner had observed appellant arrive at the service station in the Cadillac and then leave with Danyali. However, when he met appellant, Turner did not see a disabled Cadillac nor did he ever again observe that car. Two other witnesses testified that appellant informed them that he was the perpetrator of the crimes; he stated that he stole nine ounces of cocaine from Danyali and then shot him.

1. Appellant challenges the sufficiency of the evidence to support his convictions. When viewed in a light most favorable to the jury's determination of guilt, the evidence was sufficient to authorize a rational trier of fact to find appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends that the trial court erred by concluding that he had intelligently waived his right to counsel and by then allowing him to proceed pro se. We hold that this claim has no merit because the record clearly establishes that appellant "competently and intelligently" relinquished the benefits associated with the right to counsel. Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

On the morning of the trial, prior to its commencement, appellant's counsel, the public defender, informed the court that appellant wished to represent himself. Appellant then expressed to the court his dissatisfaction with the way his attorney was handling his case, that he did not feel he could communicate with his attorney and that he did not feel he could trust any court-appointed counsel. The court then questioned appellant regarding his understanding of the crimes with which he was charged, the defenses and mitigating circumstances involved in these charges, and the sufficiency of his legal knowledge to proceed competently. The court also explained to appellant that he was entitled to the effective assistance of counsel, but that his counsel was charged with making tactical decisions and such assistance did not require his counsel to comply with every request made by appellant. The public defender stated for the record that he, together with others in his office, had counseled appellant on "all aspects of this case" and that he had previously advised appellant against representing himself; he then repeated that advice to appellant during the hearing. After ascertaining that appellant had filed a demand for a speedy trial and that he remained insistent on that right, the court declared that appellant could represent himself; however, in a further effort to protect appellant's rights, the court appointed the public defender to act as appellant's standby counsel, with the caveat that he should not participate in appellant's representation except to respond to questions asked of him by appellant. See Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49 (1981) (trial court appointed attorney to assist pro se defendant in representing himself); Merritt v. State, 222 Ga.App. 623, 475 S.E.2d 684 (1996) (trial court may appoint standby counsel to aid a defendant in self-representation, even over the defendant's objection, provided that the court appropriately limits counsel's participation).

When a defendant asserts his right to self-representation, the trial court is charged with determining, from the facts and circumstances before it, whether the defendant has in fact made an intelligent waiver of the right to counsel. Clarke, supra at 196, 275 S.E.2d 49. In allowing a defendant to proceed pro se, the court must apprise the accused of the "dangers and disadvantages" inherent in such a strategy "so that the record will establish that `he knows what he is doing and his choice is made with eyes open.' [Cit.]" Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Confronted with a criminal defendant who refuses representation and insists on his right to represent himself, the trial court must make a showing in the record that a defendant chose to proceed pro se with full knowledge "of his right to counsel and the dangers of proceeding without counsel." Clarke, supra at 197, 275 S.E.2d 49. The record before us reflects that the trial court was fully aware of the duties required of it to determine appellant's competency to represent himself, and to advise him of the dangers of so doing. It engaged in lengthy colloquy with appellant and the public defender to that end and concluded, albeit with obvious reservations, that appellant had made a sufficiently knowing and intelligent waiver and that he was competent to represent himself. This finding need not be tantamount to a finding that an accused is "capable of good lawyering." Wayne v. State, 269 Ga. 36, 38, 495 S.E.2d 34 (1998). Contrary to appellant's contention, the trial court did engage in the inquiries set forth in Prater v. State, 220 Ga.App. 506, 469 S.E.2d 780 (1996); in any event, "the record need only reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. [Cits.]." Wayne, supra at 38, 495 S.E.2d 34. Based upon the record before us, we conclude that the trial court did not err in finding that appellant had knowingly relinquished his right to counsel or in permitting him to act pro se.

3. Appellant next contends that the trial court erred in sustaining the State's objection to his closing argument regarding the State's decision not to call a particular witness at trial. In his closing argument, regarding the robbery charge, appellant attempted to comment on the State's failure to call as a witness the victim's brother, who had stated to police that he had seen the victim leave their home with a wallet. The...