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Cooper v. State

Court of Appeals of Georgia, Fourth Division

June 10, 2019

COOPER
v.
THE STATE.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          COOMER, JUDGE.

         Following a jury trial, Frank Cooper was convicted of one count of aggravated battery (OCGA § 16-5-24), one count of felony obstruction of an officer (OCGA § 16-10-24 (b)), and two counts of misdemeanor obstruction of an officer (OCGA § 16-10-24 (a)). On appeal, he argues that the trial court erred by failing to conduct a Faretta hearing after he made a request to represent himself. He also argues that the trial court committed error by failing to sua sponte instruct the jury on his sole defense of justification as to felony obstruction of an officer. For the reasons that follow, we affirm Cooper's convictions, but vacate count 2 because the trial court should have merged it with count 1 for sentencing purposes.

         On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict. Whaley v. State, 337 Ga.App. 50, 50 (785 S.E.2d 685) (2016). So viewed, the record shows that in November 2014, Cooper and another inmate in the Hall County Jail, Timothy Thornton, tampered with their locks, enabling them to leave their cells at an unauthorized time. Officers approached, and a fight ensued with Thornton.

         After seeing Officer Young punch Thornton in the groin, Cooper jumped into the fight, tackling Officer Young. The tackle immediately broke Officer Young's ankle. At that point, the fight escalated and the scene became chaotic. However, police eventually restrained and handcuffed Thornton. They also deployed pepper spray against Cooper. As Thornton and Cooper were led away from the scene, Officer Young sought medical treatment for his injured ankle.

         Cooper was charged with aggravated battery, felony obstruction of an officer, and two counts of misdemeanor obstruction of an officer. He was convicted of all charges. After the jury's verdict, Cooper timely filed a motion for new trial. Following a hearing, the trial court denied that motion, resulting in this appeal.

         1. In his first enumeration, Cooper asserts that he made an unequivocal request to represent himself, and therefore, the trial court was obligated to hold a Faretta hearing prior to trial. See Faretta v. California, 422 U.S. 806 (95 S.Ct. 2525, 45 L.Ed.2d 562) (1975). We disagree.

Both the federal and state constitutions guarantee a criminal defendant both the right to counsel and the right to self-representation. See Faretta, 422 U.S. at 819-820 (III) (A); Ga. Const. of 1983, Art. I, Sec. I, Pars. XII, XIV; Taylor v. Ricketts, 239 Ga. 501, 502 (238 S.E.2d 52) (1977) ("A state may not force a lawyer upon an appellant when he insists that he wants to conduct his own defense. [Cit.]"). If a defendant makes a pre-trial, unequivocal assertion of the right to self-representation, the 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." Faretta, 422 U.S. at 835-836 (Citation and punctuation omitted). See Thaxton v. State, 260 Ga. 141, 142 (2) (390 S.E.2d 841) (1990). If the assertion of the right to proceed without the benefit of counsel is equivocal, there is no reversible error in requiring the defendant to proceed with counsel. See McClarity v. State, 234 Ga.App. 348 (1) (506 S.E.2d 392) (1998).

Wiggins v. State, 298 Ga. 366, 368 (2) (782 S.E.2d 31) (2016).

         Here, prior to trial, Cooper's counsel addressed the trial court and said, "Mr. Cooper has raised the possibility back in the holding cell that he may have wanted to ask the court if he could represent himself with me sitting at the table. I have no objection to either." Cooper indicated that he believed his counsel had not had sufficient time to prepare for trial. He said that if he did represent himself, he wanted a continuance to review his case. When the trial court told him that the trial would proceed that day, Cooper responded "All right. That's fine." Cooper never made any additional statements about his counsel or his desire to proceed pro se.

         This brief colloquy with the trial court did not amount to an unequivocal request for self-representation. See Bettis v. State, 328 Ga.App. 167, 169 (1) (761 S.E.2d 570) (2014) ("[T]o invoke the right of self representation, the defendant must make an unequivocal assertion of his right to represent himself prior to the commencement of his trial." (citation and punctuation omitted)). Throughout the discussion with the trial court, Cooper never clearly and definitively said that he wanted to relieve counsel and proceed to trial on his own. Whenever he mentioned representing himself, he always used qualifying language such as "say that I do represent myself. . . ." Even when counsel first raised the issue, he said that Cooper "may have wanted to ask the court if he could represent himself . . . ." (Emphasis supplied.) Cooper's ambivalence therefore did not put the trial court on notice that it should engage in a Faretta inquiry.

         Moreover, Cooper made these allusions to representing himself within the context of asking for a continuance. Cooper believed that his counsel was not fully prepared for trial, and if Cooper were to represent himself, he would have wanted additional time to prepare his defense. See Crutchfield v. State, 269 Ga.App. 69, 71 (2) (603 S.E.2d 462) (2004) ("[S]tatements that amount to nothing more than expressions of dissatisfaction with current counsel do not trigger any requirement that the court hold a hearing under Faretta or that the defendant be allowed to proceed pro se.") When the trial court denied his continuance, Cooper affirmatively accepted the ruling and never mentioned his desire to represent himself again. Because the record is devoid of any instance where Cooper made a clear and unequivocal request to represent himself, the trial court did not err in failing to conduct a Faretta hearing. Crutchfield 269 Ga.App. at 71 (2).

         2. Cooper next argues that the trial court erred in failing to instruct the jury on justification because that was his sole defense to felony obstruction of an officer. However, because Cooper's conviction for felony obstruction of an officer should have merged into his aggravated battery conviction, we do not reach the merits of his sole defense argument.

         "Where neither party properly raises and argues a merger issue, this Court has no duty to scour the record searching for merger issues. However, if we notice a merger issue in a direct appeal, as we have here, we regularly resolve that issue, even where it was not raised in the trial court and is not enumerated as error on appeal." Hulett v. ...


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