Kelly v. State
| Decision Date | 10 June 2022 |
| Docket Number | A22A0120 |
| Citation | 364 Ga.App. 556,874 S.E.2d 442 |
| Parties | KELLY v. The STATE. |
| Court | Georgia Court of Appeals |
Rodney Alan Williams, Decatur, for Appellant.
Randal Matthew McGinley, Jillian Rachael Hall, for Appellee.
Phipps, Senior Appellate Judge.
A jury found Giacobi Trevell Kelly guilty of burglary, possession of tools for the commission of a crime, and obstruction of an officer. He appeals from his judgment of conviction and sentence, arguing that the trial court erred by (1) failing to thoroughly engage in an appropriate colloquy prior to allowing Kelly to represent himself; (2) depriving Kelly of his right to communicate with stand-by counsel; (3) improperly commenting on Kelly's failure to appear on the second day of trial; (4) depriving Kelly of his right to present evidence; (5) interfering with Kelly's cross-examination of law enforcement officers; and (6) allowing the State to present evidence of a prior burglary committed by Kelly. Kelly also contends that he received ineffective assistance of counsel during trial,1 that the evidence was insufficient for the jury to find him guilty of burglary or possession of tools for the commission of a crime, and that the cumulative effect of the errors committed during his trial denied him the right to a fair trial. For the reasons that follow, we affirm.
Viewed in the light most favorable to the jury's verdict,2 the evidence shows that around 3:30 a.m. on January 2, 2014, a 911 dispatcher received a call about an alarm going off at a gas station in Covington. A detective who responded to that location observed that the back wall of the building, which was made of cinder block, had a large hole in it. There was also a dolly with a safe on it outside of the building. When the detective entered the store, he observed that it was in disarray, with many wires hanging down, and it appeared that someone had rummaged through the office. Wires to the alarm system had been cut. Scrape marks on the floor left a trail where the safe had been dragged on the dolly from its location near the cash register. The open cash register contained change but no bills. One of the owners of the store estimated that $3,000-$4,000 was missing. He also testified that a CPU containing surveillance video had been taken.
A police officer dispatched to the scene went to a wooded lot behind the gas station less than a minute after receiving the dispatch, turned off his headlights, and monitored the area for any unusual activity. The officer testified that a path led from the gas station to Old Brown Bridge Road. According to the officer, the businesses in the area were closed, and there was no traffic. The officer soon saw an older model tan Suburban exit Old Brown Bridge Road onto Washington Street. The officer followed the vehicle and called in the tag information. The vehicle was registered to Fredrick White, whose address was in Atlanta. The officer could see that there were at least four or five people in the car. As the officer followed the vehicle, he saw an object being thrown from the driver's side window, and he logged his observation with dispatch. The officer requested assistance, and, after he saw a sheriff's deputy following him, activated his emergency equipment to conduct a traffic stop on the vehicle.
The uniformed officer, who was in a marked patrol vehicle when he conducted the traffic stop, gave loud verbal commands for the driver to turn the car off and throw the keys out of the window. Instead, the driver fled with the vehicle. The officer returned to his car, and, after a brief pursuit, the vehicle hit a fence and came to a stop. Six people jumped out of the vehicle and started running. Law enforcement officers surrounded the area and began searching for the individuals who ran from the vehicle. Police located three men, who were all wearing dark clothing: (1) Kelly, who was found lying face down trying to hide in bamboo in the back yard of a house near the vehicle; (2) Kenny Wells; and (3) Derrick Stephens. Kelly was carrying three $100 bills, thirty-eight $20 bills, nine $5 bills, and twenty-seven $1 bills, as well as a cell phone and wire cutters. A "large amount of US currency" also was found on Stephens.
Stephens, who pled guilty to burglary of the gas station, testified at Kelly's trial. According to Stephens, Wells called Stephens and asked if he wanted to make some money. Wells picked Stephens up in a Suburban, with another man driving. They traveled to the gas station, and the vehicle stopped in the back of the building. When they arrived, Stephens saw seven or eight people wearing masks, and there was a hole in the back wall of the building. Stephens entered the store through the hole, located a money pouch, and ran back to the Suburban. Other people who were inside the building with Stephens ran to the Suburban with him, and they all got in the vehicle. They drove away from the gas station, but were soon followed by a police officer. The officer tried to pull them over, but the driver led police on a high-speed chase. Stephens and the others in the vehicle eventually jumped out to try to escape.
A warrant was obtained to search the Suburban, and officers located crowbars, a power cut-off saw and spare blade, a sledgehammer, a drill, pry bars, bolt cutters, screwdrivers and other hand tools, three hats or masks that could be pulled down over a face, three pairs of gloves, and two single gloves. A glove matching one of the single gloves was found on the same road that the officer who followed the Suburban had been on when he saw an object thrown from the vehicle. Fredrick White, the owner of the Suburban, could not be located, and the vehicle was never picked up or reported stolen.
Kelly was charged with burglary in the second degree ( OCGA § 16-7-1 (c) ), possession of tools for the commission of a crime ( OCGA § 16-7-20 (a) ), and obstruction of an officer ( OCGA § 16-10-24 (a) ).
At Kelly's trial, in addition to presenting the evidence summarized above, the State introduced evidence of a 2011 burglary committed by Kelly. A deputy sheriff testified that in September 2011, he responded to a report of a burglary at Milano's Fine Jewelry. A construction crew working on a suite next to that establishment discovered a hole in the wall of the jewelry store. When the deputy entered the building, he observed several holes in the walls of the jewelry store. After additional officers arrived, they found pry marks on the rear door of the jewelry store. There were smashed display cases in the jewelry store, and it "was obvious it had been ransacked." In a field behind the building, officers recovered several pieces of jewelry. Officers identified Kelly as a suspect based on phone records and interviews with other suspects, including Fred White, who ran a pawn shop, and Eric Stephens, who is the brother of Derrick Stephens. Kelly eventually pled guilty to burglarizing the jewelry store, and a certified copy of his conviction was admitted into evidence.
The jury found Kelly guilty on all charges relating to the 2014 gas station burglary on February 23, 2018. However, because Kelly failed to appear for the last day of trial, a sentencing hearing was not held until May 25, 2021, after Kelly had been re-arrested. Kelly was sentenced to a total of eleven years in confinement as a recidivist under OCGA § 17-10-7 (a) and (c). This appeal followed.
1. Kelly contends that the trial court erred by failing to conduct an appropriate colloquy prior to allowing Kelly to represent himself and failing to make a finding as to whether he knowingly and voluntarily waived his right to counsel. We disagree.
A criminal defendant has "a fundamental right to represent himself in a state criminal trial when he voluntarily and intelligently elects to do so." Clarke v. Zant , 247 Ga. 194, 195, 275 S.E.2d 49 (1981) (citation and punctuation omitted). "Under Faretta [v. California , 422 U. S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975),] the trial court must apprise the defendant of the dangers and disadvantages inherent in representing himself so that the record will establish that he knows what he is doing and his choice is made with eyes open." State v. Evans , 285 Ga. 67, 68, 673 S.E.2d 243 (2009) (citation and punctuation omitted). "The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case including the background, experience, and conduct of the accused." McDaniel v. State , 327 Ga. App. 673, 674 (1), 761 S.E.2d 82 (2014) (citation and punctuation omitted). On appeal, the State bears the burden of showing that a defendant "received sufficient information and guidance from the trial court to make a knowing and intelligent waiver of the right to trial counsel[.]" Renfro v. State , 348 Ga. App. 615, 617 (2), 824 S.E.2d 75 (2019) (citation and punctuation omitted). We review the trial court's ruling on this issue for an abuse of discretion. Id.
The record shows that on the morning of the first day of trial, Kelly informed the trial court that he wanted to represent himself. On the record, in Kelly's presence, the trial court elicited from defense counsel the amount of time Kelly was facing if found guilty. In response to questions from the trial court, Kelly stated that he graduated from college and understood his rights. The court gave Kelly extensive warnings about the danger of waiving representation by counsel. The court compared waiving representation to foregoing anesthesia in order to direct one's own surgery. Kelly was warned that he would have to cross-examine witnesses although he did not "know techniques of cross-examination that [trial counsel]’s been trained in." He was also warned that he would not know what points "might resonate with a jury" as his trial counsel would. Kelly told the trial court that he had been adequately warned by the...
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