Deborah Saunders v. State

• Court: Court of Appeals of Georgia
• Decided: June 27, 2018
• Docket: A18A0512
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., RAY and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

June 27, 2018

In the Court of Appeals of Georgia A18A0512. SAUNDERS v. THE STATE.

MCFADDEN, Presiding Judge.

After a jury trial at which Deborah Saunders acted pro se, she was convicted

of criminal trespass. OCGA § 16-7-21 (a). Although the evidence was sufficient to

support the conviction, the record does not show that Saunders intentionally

relinquished her right to counsel, so we reverse. Given this disposition, we do not

reach Saunders’s other enumerations of error.

1. Facts.

“On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). So

viewed, the evidence at trial showed that for at least a month Saunders lived in a vacant rental house without the owner’s permission; that she had changed the locks

on the house; and that she refused to leave the house when asked to do so by the

police. Although Saunders does not challenge the sufficiency of the evidence against

her, we have reviewed the evidence and conclude that it was sufficient to sustain her

conviction for criminal trespass under OCGA § 16-7-21 (a), which pertinently

provides that “[a] person commits the offense of criminal trespass when he or she .

. . knowingly and maliciously interferes with the possession or use of the property of

another person without consent of that person.” See generally Jackson v. Virginia,

443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (evidence sufficient

to support conviction if, viewed in light most favorable to prosecution, “any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt”) (emphasis omitted).

2. Right to counsel.

“Both the federal and state constitutions guarantee a criminal defendant . . . the

right to counsel[.]” Wiggins v. State, 298 Ga. 366, 368 (2) (782 SE2d 31) (2016)

(citations omitted). “As with all constitutional rights, the accused may forfeit this

right by a knowing and intelligent waiver.” Granville v. State, 281 Ga. App. 465, 466

(2) (636 SE2d 173) (2006) (citation omitted). The state bears the burden of showing

2 waiver, Wilson v. State, 230 Ga. App. 74 (495 SE2d 330) (1997), and there is a

presumption against waiver. See Calloway v. State, 197 Ga. App. 606, 607 (398 SE2d

856) (1990) (“Waiver will not be lightly presumed, and a trial judge must indulge

every reasonable presumption against waiver.”) (citations and punctuation omitted).

As detailed below, the record shows that the trial court attempted to raise the

issue of counsel with Saunders on several occasions, but that Saunders neither

expressly elected to represent herself nor requested counsel until the day of trial,

when she objected to the proceedings because she did not have an attorney. At an

initial arraignment hearing, the trial court informed Saunders and the other persons

appearing for arraignment of their right to an attorney and the perils of proceeding

without an attorney. The trial court instructed those present that when he called their

names they should enter a plea and state whether they planned to hire a private

attorney or wanted to apply for representation by the public defender. But when the

trial court called Saunders’s name, she did not enter a plea or make any statement

regarding counsel; instead, she argued that the trial court lacked jurisdiction. After

failing to get a response from Saunders to his questions, the trial court entered a plea

of not guilty on her behalf but did not further address the issue of counsel.

3 At the start of another calendar call, the trial court mentioned that the public

defender, who had momentarily stepped out of the courtroom, would be present. Later

in the calendar call, the trial court gave Saunders what the trial court described as a

“Faretta warning,” see Faretta v. California, 422 U. S. 806, 835 (V) (95 SCt 2525,

45 LE2d 562) (1975) (requiring defendant seeking to represent himself to be made

aware of dangers and disadvantages of self-representation), reminding her that she

had a right to counsel and telling her that if she chose to disregard the warning she

did so “at [her] own peril[.]” Saunders refused to sign an acknowledgment that she

had received the warning, which she claimed not to understand. The trial court,

however, found that Saunders had heard and understood the warning. During the

calendar call, Saunders made no specific comment regarding counsel. Instead, she

reiterated her challenge to the trial court’s jurisdiction over her.

At a final plea calendar, the trial court made comments indicating that the

public defender was present in the courtroom. When the trial court asked Saunders

for her plea, she again refused to enter a plea and instead challenged the trial court’s

jurisdiction and asked that the case be dismissed. Over Saunders’s objection, the trial

court set the case for trial. Saunders made no comment regarding counsel at this

calendar.

4 Finally, on the day of Saunders’s trial, after more argument regarding the trial

court’s jurisdiction, Saunders argued that the trial should not go forward because she

had not been offered a pro bono attorney. The trial court responded that Saunders had

been given the opportunity to speak with a public defender at every calendar

appearance but had failed to do so. Saunders again objected, stating that she did not

waive any of her rights. Over this objection, the case proceeded to trial, with Saunders

acting pro se.

In his order denying Saunders’s motion for new trial, the trial court rejected

Saunders’s argument that her right to counsel had been violated, instead holding that

Saunders had made a knowing and intelligent waiver of her right to counsel. See

McDaniel v. State, 327 Ga. App. 673, 675 (1) (a) (761 SE2d 82) (2014) (trial court

may make determination of whether defendant knowingly and voluntarily waived

right to counsel in order on motion for new trial). In support of this holding, the trial

court set forth his findings that Saunders was told she had a right to counsel and was

made aware of the public defender, that she was warned of and understood the danger

of proceeding without counsel, that she nevertheless proceeded without counsel, and

that after the jury returned a guilty verdict she secured representation by the public

5 defender. The trial court did not find, and the record does not show, that Saunders

ever asked to represent herself or stated that she waived her right to counsel.

The facts found by the trial court do not show that Saunders elected to

represent herself. They merely show that she did not request or obtain counsel despite

being told of her right to counsel and the perils of not having counsel. This was not

enough to show waiver. As the United States Supreme Court explained in the seminal

case of Johnson v. Zerbst, 304 U. S. 458 (58 SCt 1019, 82 LEd 1461) (1938), “courts

indulge every reasonable presumption against waiver . . . and . . . we do not presume

acquiescence in the loss of fundamental rights. A waiver is ordinarily an intentional

relinquishment or abandonment of a known right or privilege.” Id. at 464 (citations

and punctuation omitted; emphasis supplied). The decision in Johnson v. Zerbst

governs the determination of “whether or not an accused has adequately waived his

right to counsel and elected to exercise his constitutional right to represent himself.”

Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981) (citation omitted). A showing

of the accused’s knowledge of the right to counsel is not enough; there must also be

evidence of relinquishment of that right. Granville, 281 Ga. App. at 466 (2); Hasty

v. State, 215 Ga. App. 155, 159 (2) (450 SE2d 278) (1994). “Merely finding that a

request for counsel was not made is insufficient to establish waiver. Where the

6 assistance of counsel is a constitutional requisite, the right to be furnished counsel

does not depend on a request.” Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749)

(1984) (citation and punctuation omitted); accord Granville, supra at 466 (2).

We are sympathetic to the plight of the trial court, who was faced with a pro

se defendant who would not engage on the issue of counsel. But given the

presumption against waiver, the facts cited by the trial court — which amount to no

more than Saunders’s failure to request or obtain counsel despite knowing of her right

to counsel and the perils of self-representation — do not show that Saunders

intentionally relinquished her constitutional right to counsel.1

Moreover, the state has not shown that it was harmless to require Saunders to

represent herself at trial when she had not waived her right to counsel. “We have

repeatedly found that the trial court’s failure to establish a valid waiver of counsel

was not harmless where the record showed that the defendant did not mount an able

1 Although the record in this case does not show that Saunders intentionally relinquished her right to counsel, we can foresee situations where a defendant could waive the right to counsel by her actions rather than words. For example, if the defendant was not indigent and was not entitled to have the state provide counsel to her, and the trial court had made it clear that if she proceeded forward without an attorney that she would waive her right to have an attorney represent her, then our decision in this case may have been different. But in that Saunders is represented on appeal by a public defender, she obviously is indigent and was entitled to an attorney at the state’s expense.

7 defense — even though the evidence of guilt was ample.” Martin-Argaw v. State, 343

Ga. App. 864, 871 (2) (806 SE2d 247) (2017) (citation and punctuation omitted).

Saunders did not mount an able defense. Among other things, the trial transcript

shows that the prosecutor made myriad successful objections throughout Saunders’s

direct and cross examinations of witnesses, and her inability to address the problems

with her examinations appeared to have impeded Saunders from presenting her theory

of defense.

For these reasons, on the record before us, we see no option other than to return

this case to the trial court, for the trial court to inquire as to whether Saunders wants

an attorney from that point forward, and whatever her election, for the case to be

retried. We therefore reverse.

3. Remaining claims of error.

Because we reverse for the reasons set forth in Division 2, we decline to

address Saunders’s remaining claims of error.

Judgment reversed. Ray and Rickman, JJ., concur.