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Kelly v. State

Court of Appeals of Georgia, Third Division

February 1, 2018

KELLY
v.
THE STATE.

          ELLINGTON, P. J., ANDREWS and REESE, JJ.

          Reese, Judge.

         A Clayton County jury found Timothy Kelly guilty beyond a reasonable doubt of one count each of rape, kidnapping, kidnapping with bodily injury, and battery, and two counts of aggravated assault.[1] He appeals from the denial of his amended motion for new trial, arguing that the trial court erred in accepting his waiver of counsel. For the reasons set forth, infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [2] the record reveals the following pertinent facts. On October 14, 2004, at around 3:00 a. m., N. G., a 19-year old woman, was punched in the face and raped at knife point next to a vacant building near her apartment. After the assault and rape, the assailant fled, and N. G. ran home. Someone at N. G.'s home contacted the police, and an officer with the Clayton County Police Department responded. N. G. was transported to a hospital. At the hospital, a registered nurse used a rape kit to perform a sexual assault examination on N. G. The examination results were entered into the Combined DNA Indexing System (CODIS) database in 2006. In 2013, the Clayton County Police Department received notice that a CODIS match had been made indicating that the DNA evidence matched a known sample from the Appellant.

         In 2015, a jury found the Appellant guilty on all charges, and the trial court initially sentenced him to life with a possibility of parole, plus 20 years to be served concurrently. The Appellant filed an amended motion for new trial. After a hearing, the trial court vacated the Appellant's convictions on the kidnapping, kidnapping with bodily injury, battery and aggravated assault charges and re-sentenced him on the rape conviction to serve life with the possibility of parole.[3] This appeal followed.

Generally, on appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. [The] Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [4] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, [the Court] must uphold the jury's verdict.[5]

         The standard of Jackson v. Virginia, supra, is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes charged.[6] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         The Appellant argues that, the after he waived his right to counsel, the trial court erred by informing him that he could not make a post-waiver request for counsel. Specifically, he argues that the trial court's misstatement created harmful error and, thus, warrants a new trial. We disagree.

          A person criminally accused has the guaranteed right to self-representation under the Sixth Amendment to the United States Constitution[7] and the Georgia Constitution, [8] but the right cannot be exercised "unless it is shown that he has adequately waived his right to counsel."[9] "Under Faretta[, ] 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."[10]

         "After a defendant properly waives his Sixth Amendment right to counsel, that right is no longer absolute."[11] However, the right to counsel does not evaporate entirely after a valid waiver, and a defendant may make a "post-waiver request for counsel."[12] It is within the trial court's discretion to decide whether to grant a post-waiver request for counsel.[13]

         The record reflects that the trial court conducted a detailed colloquy with the Appellant, to ensure that the Appellant knowingly and voluntarily waived his right to counsel.[14] At the beginning of his trial, the Appellant notified the trial court of his desire to represent himself. After the trial court established that the then 30-year old defendant had three years of college and no history of mental illness, the court cautioned him about the risks of self-representation, as well as the advantages of having an attorney represent him, as follows:

COURT: Okay. Have you previously represented yourself in any civilor criminal case?
THE APPELLANT: No, ma'am.
COURT: Do you think you could do a better job than a lawyer representing you in this case?
THE APPELLANT: Yes, ma'am.
COURT: And that's any lawyer, not just Mr. Davis. Is that right?
THE APPELLANT: Um, um, yes, ma'am.
COURT: Mr. Kelly, have you considered the disadvantages of not being represented by a lawyer?
THE APPELLANT: Yes, ma'am.
COURT: All right. Have you considered that most often it's unwise to represent yourself, even a lawyer?
THE APPELLANT: Yes, ma'am.
COURT: Even if you were a lawyer? Have you ...

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