Smith v. State
| Decision Date | 08 July 2015 |
| Docket Number | No. A15A0329.,A15A0329. |
| Citation | 775 S.E.2d 211,332 Ga.App. 849 |
| Parties | SMITH v. The STATE. |
| Court | Georgia Court of Appeals |
Velbert Smith, pro se.
James Alan Dooley, Asst. Dist. Atty., Brian Keith Fortner, Dist. Atty., for Appellee.
A jury found Velbert Denorris Smith guilty of forgery in the first degree, tampering with evidence, misdemeanor obstruction of a law enforcement officer, and possession of cocaine. Smith filed a motion for new trial, which the trial court denied. On appeal, Smith contends, among other things, that the trial court deprived him of his constitutional right to self-representation by not allowing him to represent himself at trial. We agree with Smith and therefore must reverse his convictions and remand the case to the trial court for a new trial.
Following a criminal conviction, we view the evidence in the light most favorable to the verdict. Sidner v. State, 304 Ga.App. 373, 374, 696 S.E.2d 398 (2010). So viewed, the evidence showed that on December 4, 2009, Smith walked into a branch of Bank of America in Douglas County. Smith approached one of the bank tellers and handed her a check made payable to him for $965. The check was drawn on a restaurant's business account and was signed in the name of the individual who owned the restaurant. Smith told the teller that he did not have an account at the bank but wanted to cash the check.
When the teller entered information about the check into her computer, she received a prompt to verify the signature on the check. After comparing the restaurant owner's signature card that was on file at the bank to the signature on the check, the teller determined that the signatures did not match. The teller then notified her supervisor of the issue and called the restaurant owner to verify if he knew Smith. The restaurant owner denied that he knew Smith and asked the bank to call the police.
While another bank employee called the police, the teller informed Smith that the bank was attempting to verify the signature of the account holder. Smith became agitated and demanded that the teller return the check to him. He then snatched the check away from the teller and went to leave the bank.
To delay Smith from leaving the bank until the police arrived, an assistant branch manager who had been informed of the potential forgery approached Smith, asked if she could help him, and requested to see the check and his identification. Smith handed the check and his identification to the assistant manager and told her that he had performed some work for the restaurant's owner and that this was his payroll check. The assistant manager noted from the check that the restaurant had a Suwanee address and from Smith's identification that he lived in Atlanta. When the assistant manager asked Smith why he had traveled to such a distant bank branch to cash a check from a Suwanee business when he lived in Atlanta, Smith asked for the check and his identification back from the assistant manager and then grabbed the check from her. The assistant manager handed Smith back his identification, and he left the bank.
A police officer who was working off-duty as a security guard for the bank was parked nearby in his marked patrol car. After receiving information about the forgery in progress at the bank, including a description of the suspect, the officer, who was in his police uniform, approached Smith outside the bank and inquired about the check. Smith responded that he had been trying to cash the check, and the officer saw that Smith was holding the check in his left hand. The officer advised Smith that he was under arrest for forgery and attempted to handcuff him, but Smith began struggling with the officer. The officer ultimately was able to subdue Smith and handcuff him, but the officer noticed that the check was missing. The officer searched through Smith's clothing in an effort to find the check, and, in the process of doing so, discovered a glass pipe with cocaine residue inside of it. The officer, however, was unable to find the check in Smith's clothing, and he asked Smith to open his mouth. When Smith complied, the officer saw the check dangling from the roof of his mouth. Smith started to chew it. The officer applied pressure to Smith's cheek to keep him from swallowing the check, and Smith eventually spit it out.
Smith was indicted for forgery in the first degree, tampering with evidence, felony obstruction of a law enforcement officer, and possession of cocaine.1 At the ensuing jury trial, the forged check and glass pipe with cocaine residue inside of it were introduced into evidence. The bank teller, assistant branch manager, and police officer testified to the events as set out above. The restaurant owner also testified that he did not know Smith, had not written a check to him, and had not authorized anyone in his business to write a check to him. The owner was shown the check at issue and confirmed that the signature on it was not his own. Additionally, a forensic chemist, who worked at the State crime lab and was qualified as an expert in drug identification, opined that the residue inside the glass pipe found in Smith's clothing was cocaine.
After the close of the evidence and charge of the court, the jury found Smith guilty of forgery in the first degree, tampering with evidence, the lesser included offense of misdemeanor obstruction of a law enforcement officer, and possession of cocaine. Smith then filed a motion for new trial. Following a hearing, the trial court denied Smith's motion, resulting in this appeal.
1. The evidence introduced at trial and summarized above was sufficient to authorize a rational jury to find Smith guilty beyond a reasonable doubt of forgery in the first degree, tampering with evidence, misdemeanor obstruction of a law enforcement officer, and possession of cocaine. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Smith contends that the trial court deprived him of his constitutional right to self-representation by summarily ruling that he could not represent himself at trial without following the procedures as set forth in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and its progeny. We agree.
The record reflects that in December 2009, an attorney with the Douglas County Public Defender's Office was appointed to represent Smith. In February 2010, Smith sent a letter to the clerk of the trial court indicating that he wished for his appointed counsel to be dismissed from the case so that he could represent himself. A few months later, Smith filed a “Motion to Have Attorney Removed as Ineffective Counselor.”
In April 2010, based on Smith's conduct and demeanor during pretrial proceedings, and with the agreement of Smith's appointed counsel, the trial court ordered a mental health evaluation to determine, among other things, whether Smith was competent to stand trial. Because Smith refused to cooperate with the evaluation, the forensic psychologist who attempted to interview him was unable to offer an opinion as to his competency.
The trial court subsequently entered an order confining Smith in an inpatient mental health facility so that his mental competency could be better evaluated. Smith participated in his inpatient evaluation with a forensic psychologist, who concluded that Smith was competent to stand trial. The psychologist noted in his report that Smith had expressed a desire to have his appointed counsel removed from the case; that Smith understood the role of defense counsel; that Smith could participate in his legal defense; that Smith understood “the nature and object of the proceedings and his situation in reference to the proceedings”; and that his request to represent himself was the result of “willful personal choice rather than mental incompetence.”
After receiving the inpatient mental health evaluation and conducting a hearing, the trial court allowed Smith's appointed counsel to withdraw from the case so that Smith could represent himself. Thereafter, at a calendar call on April 28, 2011, Smith appeared pro se and announced that he was ready for trial. However, on May 2, 2011, the day before his trial was set to commence, Smith filed a “Motion For Requested Private Effective Attorney And/Or Counselor Of Law.” The trial court granted the motion, continued the trial date, and appointed a new attorney to represent Smith. The new counsel filed his notice of appearance in the case on May 9, 2011.
The case was called for trial a second time on November 14, 2011. Before a jury was selected, Smith's counsel announced that he was ready to proceed, but Smith immediately asserted to the trial court, Smith then asked for a continuance so that he could “prepare [himself] for this jury trial and have this attorney removed from [the] case.” Smith further stated in part, Smith then reiterated several times to the trial court that he wished to represent himself and did not want his appointed counsel to try the case on his behalf.
The trial court denied Smith's request to represent himself and ordered that the trial would proceed forward that day with Smith's appointed counsel continuing to represent him. The court denied Smith's request to proceed pro se in light of the fact that Smith had previously requested and been permitted to represent himself but then had changed his mind on the eve of trial. As the trial court later explained in its order denying Smith's motion for new trial, the court had been “fully prepared to allow [Smith] to represent himself” at trial after he made his first request for self-representation, but the court believed that Smith's request to represent himself...
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