MCFADDEN, P. J., BRANCH and BETHEL, JJ.
MCFADDEN, PRESIDING JUDGE.
Martin-Argaw was accused of trying to hire a hit man to kill
his then-wife, her adult son, and a family friend. After a
jury trial at which he represented himself, Martin-Argaw was
convicted of three counts of criminal attempt to commit
murder. On appeal, he challenges the sufficiency of the
evidence, arguing that there was no evidence showing that he
took the required substantial step toward the commission of
these crimes; we find, however, that the evidence authorized
the jury's verdict. Alternatively, Martin-Argaw argues
that he is entitled to a new trial because the trial court
failed "to inform him of the specific dangers of
proceeding without counsel." Because the record does not
show that Martin-Argaw knowingly, intelligently, and
voluntarily waived his right to counsel, we agree that he is
entitled to a new trial, and we therefore reverse the
judgment and remand the case for proceedings not inconsistent
with this opinion.
Sufficiency of the evidence.
argues that the evidence was insufficient to show that he
committed the offense of criminal attempt, which a person
commits "when, with intent to commit a specific crime,
he performs any act which constitutes a substantial step
toward the commission of that crime." OCGA §
16-4-1. This offense "consists of three elements: first,
the intent to commit the crime; second, the performance of
some overt act towards the commission of the crime; and
third, a failure to consummate its commission."
Wittschen v. State, 259 Ga. 448 (1) (383 S.E.2d 885)
(1989) (citations and punctuation omitted). Accord
Brewster v. State, 261 Ga.App. 795, 798 (1) (d) (584
S.E.2d 66) (2003).
evidence authorized the jury to find Martin-Argaw guilty of
criminal attempt to commit murder. That evidence, viewed in
the light most favorable to the jury's verdict, see
Rana v. State, 304 Ga.App. 750, 750-751 (1) (697
S.E.2d 867) (2010), showed that in 2006 Martin-Argaw was
subject to a temporary restraining order that prohibited him
from contact with his estranged wife. On July 12, 2006,
Martin-Argaw went to his wife's house and fired a gun at
her and two of her friends as they were having a cookout.
Martin-Argaw shot one of the friends, injuring her, then
pursued the group into the house, where he fired the gun
several more times. At one point he pointed the gun directly
at his wife and pulled the trigger, but the gun did not fire.
The other friend distracted Martin-Argaw while his wife hid,
and Martin-Argaw then fled. (These facts are set forth in
greater detail in Martin-Argaw v. State, 311 Ga.App.
609, 609-610 (716 S.E.2d 737) (2011).)
connection with these actions, Martin-Argaw was arrested,
jailed, and ultimately convicted of various offenses,
including aggravated assault and aggravated stalking, and we
affirmed his convictions in Martin-Argaw, supra, 311
Ga.App. 609. In 2006, while in jail, Martin-Argaw told his
cellmate that he wanted three people killed and asked his
cellmate if he knew "somebody who could carry out a
hit." Martin-Argaw talked about the hit
"repeatedly" and asked his cellmate about a hit man
several times. The cellmate informed his attorney about these
conversations, and the attorney relayed this information to
the district attorney.
the assistance of Martin-Argaw's cellmate, a police
investigator arranged for Martin-Argaw to get in touch with
an undercover officer posing as a hit man. Martin-Argaw had
two conversations with the undercover officer - an initial
telephone conversation and a subsequent face-to-face
conversation at the jail. Recordings of both conversations
were played for the jury. In the telephone conversation,
Martin-Argaw gave the "hit man" the names and
addresses of the three people he wanted killed. In the
face-to-face conversation, Martin-Argaw and the "hit
man" discussed specific details of the killings,
negotiated a price, and discussed logistics of payment. The
"hit man" told Martin-Argaw that he would complete
the hit before receiving payment but demanded that
Martin-Argaw agree not to change his mind about the hit, and
Martin-Argaw responded by expressly stating that he wanted
the "hit man" to kill all three people.
asserts that this evidence did not show he committed the
necessary substantial step toward the commission of
murder-for-hire because he did not pay the hit man. We
An act constituting a "substantial step" is one
done in pursuance of the intent, and more or less directly
tending to the commission of the crime. In general, the act
must be inexplicable as a lawful act, and must be more than
mere preparation. Yet it can not accurately be said that no
preparations amount to an attempt. It is a question of
degree, and depends upon the circumstances of each case. . .
. The "substantial step" requirement shifts the
emphasis from what remains to be done to what the actor has
already done. The fact that further steps must be taken
before the crime can be completed does not preclude such a
finding that the steps already undertaken are substantial.
English v. State, 301 Ga.App. 842, 843 (689 S.E.2d
130) (2010) (citations, punctuation, and emphasis omitted).
The purpose of the "substantial step" requirement
is to impose criminal liability for attempt "only in
those instances in which some firmness of criminal purpose is
shown" and to "remove very remote preparatory acts
from the ambit of attempt liability[.]" Howell v.
State, 157 Ga.App. 451, 456 (4) (278 S.E.2d 43) (1981)
(citation and punctuation omitted).
evidence in this case showed that Martin-Argaw had expressly
asked the undercover officer - whom he believed to be a hit
man - to kill three people; that he had given the "hit
man" specific information about the three people to help
him accomplish this purpose; that he had agreed to pay a
negotiated price for the hit; that he had discussed the
logistics of making the payment; and that he had responded
affirmatively when the "hit man" made it clear that
Martin-Argaw did not need to do anything else before the hit
occurred. Contrary to Martin-Argaw's argument, our
decision in Howell v. State, supra, 157 Ga.App. 451,
in which the defendant made a payment to a hit man, does not
stand for the proposition that such a payment is
required for a reasonable trier of fact to find that
a defendant had taken a substantial step toward committing
murder. See English, supra, 301 Ga.App. at 844. The
jury was authorized to find that the evidence showed the
firmness of purpose needed to satisfy the substantial step
requirement. See Rana, supra, 304 Ga.App. at 571-572
Right of self-representation.
argues that he is entitled to a new trial because the trial
court "failed to inform him of the specific dangers of
proceeding without counsel." We agree. As detailed
below, the record in this case does not show that the trial
court made Martin-Argaw aware of the dangers of
self-representation, as required for him to make a knowing,
intelligent, and voluntary waiver of his right to counsel.
the federal and state constitutions guarantee a criminal
defendant both the right to counsel and the right to
self-representation." Wiggins v. State, 298 Ga.
366, 368 (2) (782 S.E.2d 31) (2016) (citations omitted).
Accord Thomas v. State, 331 Ga.App. 641, 657 (7)
(771 S.E.2d 255) (2015). "[W]hile a criminal defendant
has an absolute right to counsel in any prosecution which
could result in imprisonment, [he] also has a fundamental
right to represent himself in a state criminal trial
'when he voluntarily and intelligently elects to do
so.'" Clark v. Zant, 247 Ga. 194, 195 (275
S.E.2d 49) (1981) (quoting Faretta v. California,
422 U.S. 806 (95 S.Ct. 2525, 45 L.Ed.2d 562) (1975)). In
making this election, the defendant "should be made
aware of the dangers and disadvantages of
self-representation, so that the record will establish that
he knows what he is doing and his choice is made with eyes
open." Clark, supra (citations and punctuation
if a defendant makes a pre-trial, unequivocal assertion of
the right to self-representation, his request "must be
followed by a hearing to ensure that the defendant knowingly
and intelligently waives the traditional benefits associated
with the right to counsel and understands the disadvantages
of self-representation so that the record will establish that
he knows what he is doing and his choice is made with eyes
open." Wiggins, supra, 298 Ga. at 368 (2)
(citations and punctuation omitted). See Owens v.
State, 398 Ga. 813, 814 (2) (783 S.E.2d 611) (2016).
This determination depends on the peculiar facts and
circumstances of each case, Taylor v. Ricketts, 239
Ga. 501, 503 (238 S.E.2d 52) (1977), and in making this
determination, "a trial judge must investigate as long
and as thoroughly as the circumstances of the case before
[her] demand." Tyner v. State, 334 Ga.App. 890,
893 (1) n. 3 (780 S.E.2d 494) (2015) (citation and
punctuation omitted). The trial judge is not required to use
any particular language in making the defendant aware of his
right to counsel and the dangers of self-representation. See
Simpson v. State, 238 Ga.App. 109, 112 (1) (517
S.E.2d 830) (1999); Hamilton v. State, 233 Ga.App.
463, 466 (1) (b) (504 S.E.2d 236) (1998). In fact, our
Supreme Court has expressly disapproved the reading of
decisions of this court, such as Raines v. State,
242 Ga.App. 727, 729 (1) (531 S.E.2d 158) (2000), and
Prater v. State, 220 Ga.App. 506, 509 (469 S.E.2d
780) (1996), to require a trial court to make specific
inquiries of a defendant. See Jones v. State, 272
Ga. 884, 886 (2) (536 S.E.2d 511) (2000); Wayne v.
State, 269 Ga. 36, 38 (2) (495 S.E.2d 34) (1998). The
record "need only ...