Tyner v. State

• Decision Date: 20 November 2015
• Docket Number: No. A15A1342.,A15A1342.
• Citation: 780 S.E.2d 494,334 Ga. App. 890
• Parties: TYNER v. The STATE.
• Court: Georgia Court of Appeals

334 Ga.App. 890

780 S.E.2d 494

TYNER

v.The STATE.

No. A15A1342.

Court of Appeals of Georgia.

Nov. 20, 2015.

James C. Bonner Jr., for Appellant.

Robert Bradford Bickerstaff II, Julia Anne Fessenden Slater, for Appellee.

ELLINGTON, Presiding Judge.

A Muscogee County jury found Paul Tyner guilty beyond a reasonable doubt of two counts of rape, OCGA § 16–6–1(a)(1) ; two counts of aggravated sodomy, OCGA § 16–6–2(a)(2) ; and two counts of burglary, OCGA § 16–7–1.¹ Following the denial of his motion for a new trial, Tyner appeals, contending, inter alia, that he was deprived of his right to counsel at trial. For the reasons explained below, we reverse.

Pertinently to Tyner's claims of error, the record shows the following. Tyner's appointed counsel represented him during pretrial proceedings and appeared for him at trial. After the State presented its case in chief, Tyner elected to testify in his defense. Both sides rested, and the court then conducted a charge conference. After the State presented its closing argument, Tyner's counsel advised the court, outside the presence of the jury, that Tyner had decided at that point to defend himself.

The court advised Tyner that the remaining stages of the case were the defense's closing argument, which would be "the important stage that would entail some active representation on [his] behalf"; the charge of the court to the jury as to the law, when he would have a right to "note any technical objections that [he felt] might exist in it"; and the jury's deliberations. The court told Tyner that his attorney was prepared to complete the trial, and that he had the right to have his attorney do so, but that he also had the right to represent himself. The court then asked, "What is your election?" Tyner replied, "I would like to do it." The court asked Tyner's attorney to remain at the defense table to advise Tyner if requested. Before proceeding, the trial court advised Tyner that he would be bound by the same rules as would apply to counsel. The court emphasized specifically that, during closing argument, Tyner would be limited to discussing the evidence adduced at trial and any logical inferences supported by the evidence and that he could not go outside of the evidence produced at trial.

Tyner immediately ran afoul of the court's instructions. He started to discuss a Supreme Court holding, and the judge interrupted and advised Tyner that he would instruct the jury regarding the applicable law. The judge again instructed him to confine his argument to "the evidence produced during this trial and the logical deductions." Tyner next argued to the jury that, at the outset of the investigation, he had been willing "to do anything that [the State] would ask [of him. He] was supposed to have taken a lie detector test." The State objected, adding that Tyner had applied to take a lie detector test but had withdrawn the application the week before the trial. The court commented that there had been no evidence of a polygraph and reiterated that Tyner was limited in his argument to the evidence produced during the trial and the logical deductions from the evidence.

Tyner continued his argument, complaining that his defense counsel failed to call witnesses he wanted. The judge interrupted, saying

Now, Mr. Tyner, I'm not going to allow you to sit up there and embarrass the lawyer over there, who the Court knows is a very fine lawyer and very conscientious. I caution you once again, confine your argument to the evidence produced during this trial—none of this [about any defense witnesses] was produced in evidence—and logical deductions from that evidence.... [T]here are certain boundaries that you cannot go beyond. So, argue the evidence that was produced during this trial and the logical deductions.

Tyner resumed and quickly drew another objection, when he started talking about what had happened at a pretrial hearing the previous week. The court did not expressly rule on the objection but instructed Tyner again to confine his argument to the evidence and logical deductions. The judge added, "I was present at that hearing [the previous week].... Regardless of what did or didn't happen last Friday, you must argue what happened during this trial this week. So, confine your argument to that."

Frustrated, Tyner said to the court,

I keep making these mistakes. I will just let him ... Is it okay that the lawyer just go on and argue, because I don't quite understand where you are coming from. It would be all right with me if the lawyer ... would just take over from here, because ... I keep making these mistakes.

The court denied Tyner's request to allow his defense counsel to resume his representation of him. The court said, "the defense is entitled to [only] one argument.... I can't let you toy with the court; you get up and say you want to make the argument and then you say you want your lawyer to make the argument." The court stated

you can continue your argument. The court will correct the mistakes [you make], and I will be [more] tolerant with you than I would with your lawyer in [the case].... Any mistake[s] you make, the court will correct them. I just must keep cautioning you that the argument must be confined to evidence introduced during the trial and logical deductions. You can't go into other evidence and testimony and so forth that might or might not have been admissible, because the jury didn't hear it.

As Tyner continued his argument, he repeatedly drew objections from the State and admonitions from the court for improper argument.

After the jury found Tyner guilty of all charges, the trial court immediately held the sentencing hearing. Tyner offered no evidence or argument in regard to sentencing. Expressing regret that the Supreme Court of the United States had "made a mistake when [it] abolished the death penalty" for rape cases, which caused the Georgia General Assembly to amend the Code, the trial court sentenced Tyner to the maximum period of imprisonment for each offense, with the sentences as to charges relating to one victim to run concurrently and the sentences as to the second victim to run consecutively.

1. Tyner contends that the trial court erred in requiring him, after he wished to withdraw his waiver of counsel, to proceed pro se during the remainder of closing argument and during reception of the verdict and sentencing.

It is well settled that

[c]riminal defendants are guaranteed the rights to both counsel and self-representation under the federal and state constitutions.... If a defendant makes an unequivocal assertion of his right to represent himself prior to trial, the request should be followed by a Faretta^{[2 ]} hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation.

(Citations and punctuation omitted.) Thomas v. State, 331 Ga.App. 641, 657 –658(7), 771 S.E.2d 255 (2015).³ Although "a defendant cannot frivolously change his mind in midstream" by asserting his right to self-representation in the middle of his trial, a trial court may allow a defendant to assume self-representation midstream if it finds that the waiver of the right to counsel is knowing and voluntary.

(Citation and punctuation omitted.) Preston v. State, 257 Ga. 42, 44–45(3), 354 S.E.2d 135 (1987). See also Thaxton v. State, 260 Ga. 141, 142(2), 390 S.E.2d 841 (1990) (accord).

Assuming a defendant's waiver of his right to counsel is proper, that right, once waived, is no longer absolute. Wilkerson v. State, 286 Ga. 201, 204(2)(b) 686 S.E.2d 648 (2009).

The right to counsel, however, does not evaporate following a valid waiver, and a defendant may make a post-waiver request for counsel if, for example, he discovers he is overwhelmed by the trial process. Whether to grant or deny a defendant's post-waiver request for counsel is within the broad discretion of the trial court. In considering a post-waiver request for counsel, a trial court may consider, among other things, the timing of the request. As the trial date draws nearer, the trial court can and should consider the practical concerns of managing its docket and the impact that a request may have on its general responsibilities for the prudent administration of justice. The possibility of a disruption of trial proceedings may be diminished, however, if a defendant has had standby counsel and requests that the standby counsel represent him. If an examination of the record reveals that a trial court has abused its discretion in denying a post-waiver request for counsel during trial, it is a structural Sixth Amendment violation, and is not subject to a harmless error analysis on direct appeal.

(Citations and punctuation omitted.) Id.⁴

Pretermitting whether the trial court properly acceded to Tyner's desire to waive his right to counsel just after the State's closing argument, the record shows that he very quickly discovered that he was overwhelmed by the demands of self-representation, and he asserted a post-waiver request for counsel within minutes of being allowed to represent himself. The record does not show that the request had any impact on the trial court's ability to manage its docket or on its general responsibilities for the prudent administration of justice. Nor does the record show any significant disruption of the trial, given that only a few minutes had passed and that counsel had an argument prepared and was standing by and ready to proceed. The record does not show that the trial court weighed the negligible cost of granting Tyner's request to withdraw his waiver of his right to counsel against any identified benefit of denying his request, other than preventing him from "toy[ing] with the court." We conclude that, under the circumstances, the trial court's insistence that Tyner continue pro se⁵ was unjustified, given that closing argument, receiving the verdict, and sentencing are critical stages of the trial.⁶ Because our examination of the record...