Tariq-Madyun v. State

• Decision Date: 23 September 2021
• Docket Number: A21A1037
• Citation: 863 S.E.2d 703,361 Ga.App. 219
• Parties: TARIQ-MADYUN v. The STATE.
• Court: Georgia Court of Appeals

361 Ga.App. 219

863 S.E.2d 703

TARIQ-MADYUN

v.The STATE.

A21A1037

Court of Appeals of Georgia.

September 23, 2021

David Edward Clark, for Appellant.

Penny Alane Penn, Heather Nicole Dunn, for Appellee.

McFadden, Presiding Judge.

After a jury trial, Kaleem Tariq-Madyun was convicted of armed robbery. He argues on appeal that the trial court erred in allowing him to waive his right to counsel and represent himself at trial, but his colloquy with the trial court on the issue of self-representation supported the ruling. He argues that the trial court erred in admitting evidence of his prior robbery convictions, but he has not shown that the trial court abused his discretion. Finally, he argues that the trial court erred in sentencing him as a recidivist, but none of his arguments in support of this claim of error have merit. So we affirm.

1. Facts and procedural history.

Tariq-Madyun has not challenged the sufficiency of the evidence supporting his convictions and our resolution of his claims of error relating to his waiver of the right to counsel and his recidivist sentence do not rest on a review of the trial evidence. His claim of error relating to the admission of the other acts evidence, however, requires a close assessment of that evidence within the context of all of the evidence presented at trial. For that reason, "we lay out the evidence in considerable detail and not only in the light most favorable to the jury's verdicts." Heard v. State , 309 Ga. 76, 77 (1) n. 2, 844 S.E.2d 791 (2020).

The trial evidence showed that between 5 a.m. and 6 a.m. on October 13, 2018, a man robbed a fast food restaurant shortly after it opened. He was tall and wore black clothing including a hoodie, gloves, and a mask that covered his entire face. He carried a gun.

The robber entered the restaurant and pointed a gun at the first person he encountered, speaking softly to her and telling her to be quiet and gather her belongings. He then forced all of the employees, at gunpoint, into the walk-in cooler at the back of the store. He demanded that the restaurant's manager take him to the restaurant office. Two managers accompanied him there. The robber appeared to know that the office safe would contain envelopes with money, which he demanded. At his direction, the managers removed the money from the safe and placed it into a bag that the man had taken from a nearby trash can and held out to them. The money taken by the robber was mainly in denominations of five- and one-dollar bills.

The robber took the two managers back to the cooler, again at gunpoint, then left the restaurant and ran into an adjacent wooded area. Meanwhile, the employees escaped through the cooler's exterior door and ran across a parking lot to another restaurant where law enforcement officers were eating. Those officers immediately called for backup and began investigating the robbery.

Investigating law enforcement officers learned that, about an hour before the robbery, another officer had spotted a car on an access road on the other side of the wooded area into which the robber had fled, approximately 100 yards from the restaurant. Believing the car was abandoned, the officer had taken down its tag number. When the investigators went to the access road to find that car, it was gone. From its tag number, they learned that the car had been rented several days before by Tariq-Madyun, a ride-share driver who had been working in the area the previous evening.

After obtaining a warrant, law enforcement officers searched Tariq-Madyun's home and the rental car. In his bedroom, they found black clothing and a cell phone in a case that also contained Tariq-Madyun's driver's license. In the car they found $74 in denominations of five- and one-dollar bills, a full-face mask, gloves, and shoes matching those worn by the robber, and a gun. Tariq-Madyun's DNA was found on the mask. Cellular phone records placed Tariq-Madyun's phone at the access road around 4 a.m. the morning of the robbery.

None of the victims affirmatively identified Tariq-Madyun as the robber. One of the victims, however, testified that she could discern the shape of the robber's facial features through his fabric face mask, which rested tightly against his face, and that the features matched those of Tariq-Madyun.

The state presented evidence that, in 2006, Tariq-Madyun had pleaded guilty to and been convicted of several armed robberies of fast-food restaurants or other, similar restaurants in Alabama. In each of those robberies, Tariq-Madyun had entered the restaurant at a time that was not very busy, either shortly after opening or shortly before closing; had worn black clothing including a hood or hat and a mask; had worn gloves; had possessed the same type of gun (a black, semiautomatic pistol); had spoken to the first person he approached with a calm demeanor; had forced the restaurant employees at gunpoint into the back of the restaurant and made them lie on the floor; had singled out a person to accompany him to the place where the restaurant kept its money, such as the office; had instructed that person to place the money into a bag that he held out to them; had then made that person return to the group of employees; and had left the premises on foot.

2. Waiver of the right to counsel.

Tariq-Madyun argues that the trial court erred in accepting his waiver of his right to counsel without first advising him that his "sovereign citizen" defense was meritless. 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). On appeal, the state bears the "burden of showing that [the] 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 abuse of discretion. Id.

The record shows that, after Tariq-Madyun stated his desire to represent himself, the trial court engaged in a waiver colloquy with him. See generally Wiggins v. State , 298 Ga. 366, 368 (2), 782 S.E.2d 31 (2016) (once a defendant makes a pretrial, unequivocal assertion of the right to self-representation, the trial court must engage in a hearing to ensure the defendant knowingly and intelligently waives his right to counsel). The trial court set out the offenses alleged in the indictment and informed Tariq-Madyun of the maximum penalty for each offense. The trial court informed Tariq-Madyun that he might have possible defenses to the charges or other arguments in favor of acquittal and told him that an attorney could give him "independent perspective ... in analyzing, reviewing, and presenting the case in the most effective way." The trial court stated that self-representation "may result in consequences to [Tariq-Madyun's] detriment" and warned him of disadvantages to self-representation: that Tariq-Madyun would not be entitled to any special treatment from either the trial court or the prosecutor; that he would be assuming full responsibility for his defense, including as to "the technical rules of substantive law, criminal procedure, and evidence for making motions, objections, presentation of the evidence, and all other matteres related to this trial"; and that he might "miss important defenses to the case because of [his] lack of knowledge of the law[.]" In response to questions from the trial court, Tariq-Madyun confirmed that he had a high school equivalency diploma, that he could read and write the English language, that he was not currently under the care of any mental health professional, and that he was not currently under the influence of any drugs, prescription medications, or alcohol.

Tariq-Madyun then made a statement to the trial court suggesting that he intended to pursue a "sovereign citizen"-type defense and asked the trial court if the court had "jurisdiction over the matter and person at this point in time[.]" The trial court responded that it did "exercise proper jurisdiction" in the case. Tariq-Madyun stated that he had no further questions, and the trial court found that he had "freely, knowingly, and voluntarily chosen to waive counsel and represent himself," held that he could proceed pro se, and appointed his former counsel as standby counsel for the trial.

The trial court's colloquy with Tariq-Madyun sufficiently apprised him of the dangers and disadvantages inherent in self-representation. See State v. Evans , 285 Ga. 67, 68, 673 S.E.2d 243 (2009) ; Haynes v. State , 356 Ga. App. 631, 634 (1), 848 S.E.2d 644 (2020). Compare Martin-Argaw v. State , 343 Ga. App. 864, 870 (2), 806 S.E.2d 247 (2017) (reversing conviction and remanding case for new trial where the "trial court did not articulate on the record an express finding that [the defendant] knowingly and voluntarily waived his right to counsel" and the record as a whole did not demonstrate that the defendant was made aware of the dangers of self-representation beyond the fact that "he would be required to abide by evidentiary and procedural rules without the court's assistance").

Nevertheless, Tariq-Madyun argues that the trial court was also required to tell him that his sovereign citizen defense would not succeed. "The so-called sovereign citizen defense is one in which an individual claims that he or she is not subject to the jurisdiction of cour...