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Thomas v. State

Court of Appeals of Georgia

March 27, 2015

THOMAS
v.
THE STATE (four cases)

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Armed robbery, etc. Fulton Superior Court. Before Judge Schwall.

Shelton R. Thomas, pro se.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.

OPINION

Page 261

Branch, Judge.

Following a trial by jury during which he represented himself, Shelton R. Thomas was convicted of multiple crimes arising out of two incidents in which he accosted female victims at gunpoint. He was sentenced to life. On these pro se appeals, Thomas does not challenge the sufficiency of the evidence. Rather, he raises 13 enumerations of error regarding the trial court's rulings on motions concerning, among other things, the legality of his arrest, his right to represent himself, his right to a speedy trial and appeal, the legality of the grand jury proceedings, and his right to effective assistance of counsel during those periods when he had appointed counsel.[1] For the reasons that follow, we affirm in part, vacate in part, and remand with direction.

[331 Ga.App. 642] On appeal, we view the evidence in the light most favorable to the prosecution and determine whether " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (citation omitted).

The evidence at trial shows that on the afternoon of September 1, 2007, Thomas entered the model home in the Westchase subdivision in Atlanta and approached Doreena Thomas (" Doreena" ; no relation), the on-site real estate agent, who was alone. Thomas pointed a revolver at Doreena's face, said " this is a robbery," screamed " where is the money," and threatened to shoot Doreena. Doreena gave him the cash from her wallet. Thomas then forced Doreena upstairs and from room to room looking for more money. He eventually took her to a back bedroom and forced her to disrobe. Thomas also forced her to call her bank to check her account balances and became angry when he learned no funds were available. Eventually, however, Thomas left in Doreena's silver Pontiac Grand Am, and Doreena fled and obtained help. Doreena testified that she got a good look at Thomas, that she was very close to him at times, that he had " horrible" body odor, and that she very clearly remembered what he looked like. She identified Thomas in a police photo lineup and at trial as the man who robbed her at gunpoint.

On September 26, just over three weeks later, Thomas accosted Jamonica Deramus with a revolver just as she was leaving her home in the same subdivision where the first crime occurred. Thomas forced Deramus back into her house, made her get on the floor in the living room, and asked her for money. Deramus said that her purse was in the car but that she did not have any money, and she gave Thomas the name of her bank in response to his demand. Deramus's home alarm, which had been set with a time delay, then sounded. Thomas forced Deramus to deactivate the alarm and to tell the alarm monitoring company that there was not a problem, but the monitoring company called the police anyway. Thomas then left, and Deramus got up, locked the door, and called the police. Deramus testified that she was able to see Thomas during the incident and that he had a " really bad" body odor. She identified Thomas at trial as the man who accosted her that day.

Later that day, Officer James Jackson, Jr., of the Fulton County Police Department responded

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to a dispatch call regarding a suspicious vehicle -- a silver/gray Grand Am or Grand Prix -- at a second subdivision, Ashford at Spring Lake. When Jackson arrived, he circled part of the complex and eventually saw brake lights activate on a car meeting the description given in the dispatch call and saw the car begin to back out of its parking space. As the car started to drive [331 Ga.App. 643] away, Jackson activated his emergency equipment and performed a traffic stop. Before exiting his patrol car, Jackson ran the license tag information through radio dispatch and learned that the car was owned by Doreena Thomas and that it had been reported as stolen. Jackson therefore approached the car and asked for the driver's license, which indicated that the driver was appellant Thomas. Jackson then arrested Thomas for theft by receiving a stolen vehicle, and the car was impounded. The ensuing search of the car revealed clothing, a wallet, and a loaded gun, all in the trunk. The clothing had a foul odor.

In Case No. 07SC61165, Thomas was indicted in connection with the September 26, 2007 attack on Jamonica Deramus for attempted armed robbery, aggravated assault with intent to rob, and possession of a firearm during the commission of a felony. In Case No. 08SC65866, Thomas was indicted, then later re-indicted in Case No. 08SC73242, in connection with the September 1, 2007 attack on Doreena Thomas for armed robbery, aggravated assault with a deadly weapon, kidnapping, false imprisonment, theft by taking, and three counts of possession of a firearm during the commission of a felony. On June 19, 2009, during his pretrial detention, Thomas was indicted for aggravated battery, obstruction of a law enforcement officer, and battery arising out of a struggle with a deputy at the Fulton County jail.

Most of Thomas's enumerations of error concern the lengthy procedural history of the case. The record shows that Thomas has been incarcerated since his arrest on September 26, 2007. Although Thomas's first appointed counsel -- Jennifer Lubinsky of the Fulton County Public Defenders Office (FCPD) -- appeared and filed discovery requests and other motions on Thomas's behalf in October 2007, Thomas moved to remove the FCPD on November 14 in part because Lubinsky would not honor his request that she file a demand for speedy trial, which she admitted he made; for relief, Thomas asked for new counsel, or in the alternative that he be allowed to represent himself. He also filed a pro se notice of intent to demand a speedy trial based on his counsel's failure to do so, even though he was still represented by counsel. On November 30, Thomas filed a second motion to remove FCPD, seeking the same relief. On February 6, 2008, Thomas, still represented, filed a pro se demand for speedy trial.

In March 2008, Thomas moved pro se to recuse the first assigned judge based on a past encounter Thomas had with the judge. On March 12, without further explanation in the record, David Serwitz of the Metro Conflict Defender's Office (MCDO) entered an appearance on Thomas's behalf. On April 17, Serwitz represented Thomas at a hearing, at which Thomas told the court that he was dissatisfied [331 Ga.App. 644] with Serwitz and that he again either wanted new counsel or the option to represent himself. The court orally granted the request for new counsel and, after warning Thomas that while represented by counsel his pro se filings have no effect, granted Thomas's pro se motion to recuse the judge.

One month later, on May 21, 2008, Thomas waived his right to counsel and moved for permission to represent himself in both cases; this was his first unequivocal expression that he did not desire any counsel. On June 18, he filed a pro se motion for an expedited hearing on the matter " in order to expeditiously provide him standing to begin to file the necessary Pre-Trial Pleas, Demurrers, Notices, Demands and Motions in his defense and also to preserve his rights to an arraignment, speedy trial and bond hearing." He noted in the motion that he was acting pro se because he had " no counsel of record[ ]." Indeed, attorney Bradley McMillan only made an appearance on Thomas's behalf on July 15, three months after the court orally granted Thomas's motion for new counsel; there is no order appointing McMillan in the record, and there is no indication that he was

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a member of the FCPD. McMillan appeared on the day of the first status conference held by the " second assigned judge," who replaced the recused judge.

On September 4, 2008, the court held a hearing at which neither McMillan nor Thomas appeared.[2] Following the hearing, the court dismissed Thomas's motion to suppress identification evidence on the ground that no one appeared on his behalf; the court also granted the State's motion to allow introduction of each crime as a similar transaction in the other case. On September 19, Thomas filed his second request to waive counsel and represent himself in both cases. He simultaneously filed a pro se demand for speedy trial. He was, however, still represented by McMillan at the time.

The trial court held a hearing on October 2, 2008, at which McMillan appeared on behalf of Thomas, who was present. At the hearing, the court agreed to reconsider Thomas's motion to suppress identification evidence because McMillan stated that he was not aware of the September 4 hearing; the court did not revisit the similar transaction evidence ruling. Thomas then reiterated that he did not want an attorney because his previous attorneys had not taken sufficient action and that he was " trying to get this case moving." The court stated that Thomas's previous demands for speedy trial, which were filed pro se while Thomas was represented by counsel, were of no effect. But after some colloquy, the court announced that it was [331 Ga.App. 645] going to allow Thomas to represent himself with McMillan as backup counsel. The court, however, did not conduct a Faretta hearing before making this decision.[3] And the court never entered a written order allowing Thomas to represent himself, rendering the ruling of no effect.[4] Almost five months had passed since Thomas made his first unequivocal request to represent himself.

In the next five weeks, Thomas, attempting to represent himself in accordance with the court's oral ruling, filed 30 defense motions and notices with the court, including motions to reconsider the ex parte decision regarding similar transactions, to record all proceedings, to provide him with access to the law library, to suppress evidence obtained as a result of his seizure, to quash his arrest, to suppress identification evidence, to sever the offenses and bifurcate the trial, to hold a bond hearing, to hold a preliminary hearing, to hire an investigator, and to hire an expert in the area of eyewitness identification; Thomas, however, did not include a demand for speedy trial among these motions. Thomas also filed a notice that he had not been arraigned in either of the two cases. On October 31, 2008, in the only apparent action of record taken by the court between October 2 and December 2008, the court held a hearing to inform Thomas, who appeared in open court without counsel, that he had been re-indicted in connection with the September 1, 2007 armed robbery incident in order for the State to add additional charges. The court did not address any of Thomas's pending motions. On November 17, 2008, the court set a trial date for December 15 and stated that " [n]o continuances would be granted."

In the next weeks, Thomas filed additional pro se motions including a notice of his alibi

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defense and for an expedited hearing on his motion seeking funds for investigative and expert assistance. The court never addressed any of Thomas's discovery and trial preparation motions. In one motion, Thomas reiterated that he had demanded [331 Ga.App. 646] a speedy trial or a discharge and acquittal, but it appears that he was referring to a demand he made pro se while represented by counsel. McMillan never filed any motions on Thomas's behalf. In the meantime, the State turned over several large batches of discovery on November 21, 2008 and filed a notice of aggravation and recidivist punishment.

On December 15, 2008, the State filed proposed jury charges, but the record does not reveal why the trial did not occur on that day. Thomas asserts on appeal that he appeared pro se and ready for trial, but there is no transcript in the record for any such hearing. On that same day, however, the State moved for a pretrial hearing " to make inquiry into the defendant's competency to waive counsel and upon a showing of competency to further direct the defendant to adhere and conform to courtroom decorum and procedure." (Emphasis supplied.) As grounds therefor, the State asserted, among other things, that the " record is silent on the defendant's competency to waive counsel," i.e., no Faretta hearing had been held. The State further asserted that Thomas's prior courtroom conduct showed that his courtroom behavior could be " unpredictable," that he has a history of violence, and that witnesses had expressed fear of intimidation regarding Thomas questioning them at trial.

On that same day, the court entered an " Ex Parte Order For Mental Evaluation," stating that because Thomas's mental competency had been called into question, Thomas should be evaluated at public expense; the court therefore directed the Department of Human Services (DHS) to evaluate Thomas's competency to stand trial and criminal responsibility at the time of the crime. The order stated that a copy of the evaluation should be sent to " the defendant's attorney: Martha Yancey," apparently of the FCPD; [5] yet there is no indication in the record of Yancey making an appearance on behalf of Thomas[6] nor of what became of McMillan. Thomas continued to file pro se motions in December 2008 and January 2009, including an objection [331 Ga.App. 647] to the court's order that required him to submit to a competency exam. These motions were never addressed.

On April 3, 2009, yet another attorney -- Tasha Rodney of the FCPD, without making a formal appearance on Thomas's behalf, filed, purportedly on behalf of Thomas, a special plea of incompetency to stand trial in which she asserted that Thomas had been seen by Dr. Glenn Egan, Ph.D., and that Egan had concluded that Thomas was incompetent to stand trial. Yet there is no evidence in the record of an evaluation by Egan.[7] One week later, the court entered an order, drafted by Rodney, which states that Rodney had

presented to the Court sufficient psychiatric evidence to show that [Thomas] is incapable of understanding the nature of the charges against [him], nor of understanding the object of the proceedings against [him], and is incapable of rendering the Defendant's attorney the proper assistance in [his] defense.

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The court therefore ordered that Thomas be transferred to DHS to be evaluated and a diagnosis made as to whether Thomas was competent to stand trial and whether there was a substantial probability that he would attain competency in the future as provided for in OCGA § 17-7-130.[8]

In the meantime, on April 7, 2009, Thomas, pro se, filed a motion to dismiss the indictments for lack of a speedy trial.[9] The motion does not indicate that Thomas was then aware of the special plea of incompetency filed by Rodney. In the motion, Thomas alleges prejudice [331 Ga.App. 648] from the delay in several ways, all related to his attempt to prepare for trial.

On April 28 and May 12, 2009, Thomas requested that the court send him a list of all pleadings and orders, especially those filed after October 2, 2008, the day the second assigned judge orally granted Thomas pro se status, asserting that the court had failed to copy him on all filings. Thomas also filed an objection and motion for reconsideration of the trial court's order transferring him to DHS for evaluation in which he asserted that the order was entered without his consent or knowledge and in violation of his right to represent himself and his right to a speedy trial. In the motion, Thomas admitted that he had not been evaluated in connection with the December 15, 2009 ex parte order because he did not cooperate; he argued that he was not required under the law to cooperate with a court expert. Thomas also moved pro se to disqualify or recuse the second assigned judge and the assistant district attorney, asserting that after Thomas attained pro se status, the court refused to act on his motions other than to have ex parte hearings designed to send him to Georgia Regional Hospital and to deprive him of his rights and his ability to represent and defend himself. This motion was never addressed.

Thomas filed a few additional motions that summer, but the case was mostly inactive except that on June 19, 2009, Thomas was indicted after a struggle with a deputy at the Fulton County jail.[10] From October 8 through November 3, however, Thomas was admitted to the forensic unit of Georgia Regional Hospital pursuant to the court's April order. Also, Thomas's cases were temporarily transferred to the court's backlog judge to expedite them. Finally, on November 19, 2009, Dr. Jennifer Boswell of Georgia Regional issued a report concluding that Thomas was competent to stand trial; on December 8, the court announced in court with Thomas present that Thomas had been found competent to stand trial.[11] In her evaluation, Dr. Boswell noted that " the initial referral for evaluation was made for precautionary reasons and was not based on any observations of abnormal behavior by Mr. Thomas." But the report also states that while at the hospital, Thomas refused to meet with the evaluator or other members of the treatment team and that on one occasion, Thomas became physically combative when asked to comply with a [331 Ga.App. 649] hospital policy and that as a result, he complained of back pain, sat on the floor, and began " exhibiting odd movements and ...

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perspiring profusely." [12]

On January 21, 2010, the backlog judge held a hearing where another attorney -- Marilyn Primovic, apparently of the FCPD -- appeared on Thomas's behalf without formal notice to that effect.[13] At the hearing, Thomas again stated that he wanted to represent himself and to move the case forward, and the court agreed that the case needed to move. The court scheduled a case management conference for February 3 in order to conduct a Faretta hearing on Thomas's 20-month-old request to represent himself. At that conference, after questioning Thomas in accordance with Faretta, the Court found that " Thomas has made a knowing, intelligent, and voluntary waiver of counsel and will be granted the right to represent himself as long as he is compliant with the rules of court and can proceed with trial in an orderly fashion." The court ...


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