Martin-Argaw v. State

• Decision Date: 17 October 2017
• Docket Number: A17A1107
• Citation: 343 Ga.App. 864,806 S.E.2d 247
• Parties: MARTIN–ARGAW v. The STATE.
• Court: Georgia Court of Appeals

343 Ga.App. 864

806 S.E.2d 247

MARTIN–ARGAW

v.The STATE.

A17A1107

Court of Appeals of Georgia.

October 17, 2017

Reconsideration Denied November 14, 2017

Jessica R. Towne, Lawrenceville, for Appellant.

Daniel J. Porter, District Attorney, Jon W. Setzer, Lee F. Tittsworth, Samantha Routh, Assistant District Attorneys, for Appellee.

McFadden, Presiding Judge.

Tamarat Martin–Argaw was accused of trying to hire a hit man to kill his then-wife, her adult son, and a family friend. After a jury trial at which he represented himself, Martin–Argaw was convicted of three counts of criminal attempt to commit murder. On appeal, he challenges the sufficiency of the evidence, arguing that there was no evidence showing that he took the required substantial step toward the commission of these crimes; we find, however, that the evidence authorized the jury's verdict. Alternatively, Martin–Argaw argues that he is entitled to a new trial because the trial court failed "to inform him of the specific dangers of proceeding without counsel." Because the record does not show that Martin–Argaw knowingly, intelligently, and voluntarily waived his right to counsel, we agree that he is entitled to a new trial, and we therefore reverse the judgment and remand the case for proceedings not inconsistent with this opinion.

1. Sufficiency of the evidence.

Martin–Argaw argues that the evidence was insufficient to show that he committed the offense of criminal attempt, which a person commits "when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime." OCGA § 16-4-1. This offense "consists of three elements: first, the intent to commit the crime; second, the performance of some overt act towards the commission of the crime; and third, a failure to consummate its commission."

Wittschen v. State , 259 Ga. 448 (1), 383 S.E.2d 885 (1989) (citations and punctuation omitted). Accord Brewster v. State , 261 Ga. App. 795, 798 (1) (d), 584 S.E.2d 66 (2003).

The evidence authorized the jury to find Martin–Argaw guilty of criminal attempt to commit murder. That evidence, viewed in the light most favorable to the jury's verdict, see Rana v. State , 304 Ga. App. 750, 750–751 (1), 697 S.E.2d 867 (2010), showed that in 2006 Martin–Argaw was subject to a temporary restraining order that prohibited him from contact with his estranged wife. On July 12, 2006, Martin–Argaw went to his wife's house and fired a gun at her and two of her friends as they were having a cookout. Martin–Argaw shot one of the friends, injuring her, then pursued the group into the house, where he fired the gun several more times. At one point he pointed the gun directly at his wife and pulled the trigger, but the gun did not fire. The other friend distracted Martin–Argaw while his wife hid, and Martin–Argaw then fled. (These facts are set forth in greater detail in Martin–Argaw v. State , 311 Ga. App. 609, 609–610, 716 S.E.2d 737 (2011).)

In connection with these actions, Martin–Argaw was arrested, jailed, and ultimately convicted of various offenses, including aggravated assault and aggravated stalking, and we affirmed his convictions in Martin–Argaw , supra, 311 Ga. App. 609, 716 S.E.2d 737. In 2006, while in jail, Martin–Argaw told his cellmate that he wanted three people killed and asked his cellmate if he knew "somebody who could carry out a hit." Martin–Argaw talked about the hit "repeatedly" and asked his cellmate about a hit man several times. The cellmate informed his attorney about these conversations, and the attorney relayed this information to the district attorney.

With the assistance of Martin–Argaw's cellmate, a police investigator arranged for Martin–Argaw to get in touch with an undercover officer posing as a hit man. Martin–Argaw had two conversations with the undercover officer—an initial telephone conversation and a subsequent face-to-face conversation at the jail. Recordings of both conversations were played for the jury. In the telephone conversation, Martin–Argaw gave the "hit man" the names and addresses of the three people he wanted killed. In the face-to-face conversation, Martin–Argaw and the "hit man" discussed specific details of the killings, negotiated a price, and discussed logistics of payment. The "hit man" told Martin–Argaw that he would complete the hit before receiving payment but demanded that Martin–Argaw agree not to change his mind about the hit, and Martin–Argaw responded by expressly stating that he wanted the "hit man" to kill all three people.

Martin–Argaw asserts that this evidence did not show he committed the necessary substantial step toward the commission of murder-for-hire because he did not pay the hit man. We disagree.

An act constituting a "substantial step" is one done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation. Yet it can not accurately be said that no preparations amount to an attempt. It is a question of degree, and depends upon the circumstances of each case. ... The "substantial step" requirement shifts the emphasis from what remains to be done to what the actor has already done. The fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial.

English v. State , 301 Ga. App. 842, 843, 689 S.E.2d 130 (2010) (citations, punctuation, and emphasis omitted). The purpose of the "substantial step" requirement is to impose criminal liability for attempt "only in those instances in which some firmness of criminal purpose is shown" and to "remove very remote preparatory acts from the ambit of attempt liability[.]" Howell v. State , 157 Ga. App. 451, 456 (4), 278 S.E.2d 43 (1981) (citation and punctuation omitted).

The evidence in this case showed that Martin–Argaw had expressly asked the undercover officer—whom he believed to be a hit man—to kill three people; that he had given the "hit man" specific information about the three people to help him accomplish this purpose; that he had agreed to pay a negotiated price for the hit; that he had discussed the logistics of making the payment; and that he had responded affirmatively when the "hit man" made it clear that Martin–Argaw did not need to do anything else before the hit occurred. Contrary to Martin–Argaw's argument, our decision in Howell, supra, 157 Ga. App. at 451, 278 S.E.2d 43, in which the defendant made a payment to a hit man, does not stand for the proposition that such a payment is required for a reasonable trier of fact to find that a defendant had taken a substantial step toward committing murder. See English , supra, 301 Ga. App. at 844, 689 S.E.2d 130. The jury was authorized to find that the evidence showed the firmness of purpose needed to satisfy the substantial step requirement. See Rana , supra, 304 Ga. App. at 751–752 (1), 697 S.E.2d 867.

2. Right of self-representation.

Martin–Argaw argues that he is entitled to a new trial because the trial court "failed to inform him of the specific dangers of proceeding without counsel." We agree. As detailed below, the record in this case does not show that the trial court made Martin–Argaw aware of the dangers of self-representation, as required for him to make a knowing, intelligent, and voluntary waiver of his right to counsel.

"Both the federal and state constitutions guarantee a criminal defendant both the right to counsel and the right to self-representation." Wiggins v. State , 298 Ga. 366, 368 (2), 782 S.E.2d 31 (2016). Accord Thomas v. State , 331 Ga. App. 641, 657 (7), 771 S.E.2d 255 (2015). "[W]hile a criminal defendant has an absolute right to counsel in any prosecution which could result in imprisonment, [he] also 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) (quoting Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ). In making this election, the defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open." Clarke , supra (citations and punctuation omitted).

Accordingly, if a defendant makes a pre-trial, unequivocal assertion of the right to self-representation, his request "must be followed by a hearing to ensure that the defendant knowingly and intelligently waives the traditional benefits associated with the right to counsel and understands the disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with eyes open." Wiggins , supra, 298 Ga. at 368 (2), 782 S.E.2d 31 (citations and punctuation omitted). See Owens v. State , 298 Ga. 813, 814 (2), 783 S.E.2d 611 (2016). This determination depends on the peculiar facts and circumstances of each case, Taylor v. Ricketts , 239 Ga. 501, 503, 238 S.E.2d 52 (1977), and in making this determination, "a trial judge must investigate as long and as thoroughly as the circumstances of the case before [her] demand." Tyner v. State , 334 Ga. App. 890, 893 (1) n. 3, 780 S.E.2d 494 (2015) (citation and punctuation omitted). The trial judge is not required to use any particular language in making the defendant aware of his right to counsel and the dangers of self-representation. See Simpson v. State , 238 Ga. App. 109, 112 (1), 517 S.E.2d 830 (1999) ; Hamilton v. State , 233 Ga. App. 463, 466 (1) (b), 504 S.E.2d 236 (1998). In fact, our Supreme Court has expressly disapproved the reading of decisions of this court, such as Raines v. State , 242 Ga. App. 727, 729 (1), 531 S.E.2d 158 (2000), and Prater v. State , 220 Ga. App. 506, 509, 469 S.E.2d 780 (1996), to require a trial court to make specific inquiries of a...