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