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Cade v. State

Court of Appeals of Georgia, Second Division

August 16, 2019


          MILLER, P. J., RICKMAN and REESE, JJ.

          REESE, JUDGE.

         Following a bench trial, the Superior Court of Lincoln County found Raekwon Cade ("the Appellant") guilty of aggravated battery, [1] aggravated assault, [2] possession of a firearm by a convicted felon, [3] and two counts of possession of a firearm during the commission of a felony.[4] The Appellant was sentenced to serve a total of 35 years, with the first 25 years to be served in confinement and the remainder on probation, and to pay a $2, 000 fine. He files this appeal, appearing pro se, arguing that he did not voluntarily waive his rights to a jury trial or representation by legal counsel. He also contends that the trial court erred by: allowing the State to give a trial witness a document to review; denying the Appellant his right to a timely waiver of counsel; and 4) ordering him to complete the incarceration portion of his sentence before allowing him to serve the remainder of his sentence on probation. For the reasons set forth infra, we affirm.

         Viewing the evidence in the light most favorable to the verdict, [5] the record shows that, on September 10, 2016, Dequavis Turner and a friend got into an argument via social media with the Appellant's sister, Markesia Curry ("Curry"). Curry traveled to Turner's home, yelled at the men, and shoved Turner's friend. Curry's mother, Portia Curry, [6] went to Turner's home, argued with the men, and threatened to beat Turner's friend with a metal pipe. Later that day, while Turner was sitting on his porch, he saw the Appellant walking down the road toward him, holding a gun. Turner testified that he tried to run away when he saw the Appellant. According to Turner, the Appellant caught him, hit him twice in the face with the gun, and kicked him in the mouth, resulting in injuries to Turner's eye and the loss of two front teeth.

         Following his conviction, the Appellant filed a motion for new trial. After a hearing, the trial court denied the Appellant's motion, and this appeal follows.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[7]

         With these guiding principles in mind, we turn to the Appellant's specific claims of error.

         1. Before reaching the merits of the Appellant's contentions, however, we note that his brief does not contain proper citations to the parts of the record or transcripts, which is essential to our consideration of his enumerated errors.[8] Pro se status does not relieve a party from the "obligation to comply with the substantive and procedural requirements of the law, including the rules of this Court."[9]

The rules of this [C]ourt are not intended to provide an obstacle for the unwary or the pro se appellant. Briefs that do not conform to the rules regarding enumerations of error, structure of briefs, argument, or citation of authorities, as [the Appellant's] fails to do, are not merely an inconvenience or grounds for refusing to consider a party's contentions. Such briefs hinder this [C]ourt in determining the substance and basis of an appellant's contentions both in fact and in law and may well prejudice an appellant's appeal regardless of the amount of leniency shown. Nevertheless, we will address [the Appellant's] arguments, insofar as we are able to discern them from his brief.[10]

         2. The Appellant argues that he did not knowingly, intelligently and voluntarily waive his right to a jury trial. We find no clear error.

A defendant's right to trial by a jury is a fundamental constitutional right that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. A defendant's consent to a trial without a jury need not be in any particular, ritualistic form; the trial court need only conduct an inquiry of the accused on the record so as to ensure that the waiver is knowing, voluntary and intelligent[.] The trial court should ask the defendant sufficient questions on the record to ensure that the defendant's waiver is knowing, voluntary, and intelligent.
When a defendant challenges his purported waiver of the right to a jury trial, the State bears the burden of showing that the waiver was made both knowingly and intelligently, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made. Such extrinsic evidence may include testimony by or an affidavit from trial counsel about his specific recollections; routine or standard practices; and evidence regarding the defendant's intelligence and cognitive ability.[11]

"[T]he question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this [C]ourt unless such determination is clearly erroneous."[12]

         The record shows that the Appellant and Portia Curry were indicted together on various charges arising from the September 2016 incident. On April 10, 2017, the trial court held a hearing at which Portia Curry and the Appellant were present. After Portia Curry waived her right to a jury trial, the trial court tentatively accepted her waiver. The following colloquy then occurred:

[COURT]: I'm going to ask [the Appellant] the same questions, if he wants a jury trial then both of you would have a jury trial because you have been indicted together and both of you at that point in time, unless you are both waiving jury trials, you will both be tried with a jury that would begin Monday or sometime next week.
Mr. Cade, I'm going to ask you some of the same questions that I asked Ms. Curry. Now, [your trial counsel] has indicated that you also wish to waive your constitutional right to [a] trial by jury; is that correct?
[A (by the Appellant)]: Yes, sir.
[Q]: Okay. You are charged with several felonies, you have the right to have twelve jurors determine your guilt or innocence. All twelve have to be unanimous in their decision that the State proves the case beyond a reasonable doubt before you can be convicted. If you waive that right, the Judge will act as both judge and jury. If the Judge is convinced beyond a reasonable doubt, then it will be the same Judge that will impose sentence. So, you're going from the State having to convince all twelve jurors to the State having to convince one person beyond a reasonable doubt and that would be the Judge. The standard is still the same, it's just that there's eleven less people to convince.
[A]: And Judge Dunaway would have to run this case if I want a bench trial?
[Q]: Judge Dunaway has retired. . . . I believe I'm the one holding court next week. Okay? So the jury trials will begin next week and the bench trials will be in June, beginning June 19th.
[A (by the Appellant)]: Yes, sir.
[Q]: All right. With that understanding, is it still your desire to waive your right to a jury trial?
[A]: Yes, sir.
[Q]: You understand you don't have to do it just because Ms. Curry does it? Do you understand that?
[A]: Yes, sir.
[Q]: But it will require both of you to do it for either one of you to have a bench trial.
[A]: Yes, sir.
[Q]: Okay. So you wish to waive jury trial; is that correct?
[A]: Yes, sir.
. . .
[Q]: All right. Let the waiver be signed.

         In denying the Appellant's motion for new trial, the trial court stated in its order that "[t]he record clearly demonstrate[d] that [the Appellant] personally and intelligently participated in the wavier of his right to a jury trial and that he did so in a knowing, voluntary, and intelligent manner."

         Here, the trial court did not err in finding that there was sufficient evidence of a waiver of the Appellant's right to a jury trial.[13] At the motion for new trial hearing, trial counsel testified that the Appellant was asked "about whether [he] understood that [he had] a valuable constitutional right to a jury trial, and whether [he] understood that the prosecution[ was] willing to and prepared to try [his] case . . . and [the Appellant] indicated [that he] want[ed] to waive [his] right to a jury trial[.]" When questioned whether it appeared that the Appellant understood the jury trial waiver proceedings, trial counsel testified that the Appellant "did not give any indication that he didn't understand, nor was there any vacillation on his part." Further, the record contains a consent order signed by the Appellant, his trial counsel, the prosecutor, and the trial court on the same day as the pre-trial waiver hearing.

         Based upon the totality of the circumstances presented here, the trial court's conclusion that the Appellant knowingly, voluntarily, and intelligently waived his right to a jury trial was not clearly erroneous.[14] Thus, this argument is without merit.

         3. The Appellant argues that he did not knowingly and intelligently waive his right to counsel either prior to trial or during trial. We disagree.

Although a criminal defendant has a Sixth Amendment right to assistance of counsel at trial, the defendant also has the constitutional right to represent himself, as long as he voluntarily, knowingly, and intelligently elects to waive the right to counsel. To establish a valid waiver, the trial court must apprise the defendant of the dangers and disadvantages inherent in representing himself so that the record will show that he knows what he is doing and his choice is made with eyes open.[15]

         It follows that "[a] defendant's waiver of his right to counsel is valid if the record reflects that the defendant was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver."[16]


[i]t is not required that the trial court probe the defendant's case and advise the defendant as to legal strategies to ensure that a waiver is intelligently made. Indeed, the defendant's technical legal knowledge is irrelevant to the question of whether he validly waives his right to be represented by counsel. The test is not whether the accused is capable of good lawyering, but whether he knowingly and intelligently waives his right to counsel. Although the State has the burden of showing that a defendant received sufficient information and guidance from the trial court to make a knowing and intelligent waiver of the right to trial counsel, a trial court's ruling on this issue is reviewed only for an abuse of discretion.[17]
(a) Prior to trial.

         The record demonstrates that, prior to trial, the Appellant abandoned his motion to represent himself. On the day of trial, prior to its commencement, the following colloquy occurred outside the presence of the prosecutor:

[COURT]: Mr. Cade, you mailed this Court a motion to represent yourself basically in this case, and I had responded to that[, ] telling you that I would hear you on that motion today. Your case is scheduled for a bench trial right now; okay? Do you wish to continue with your motion to be self-represented? You know you have been appointed [a public defender], to represent you in this case. What is your desire at this point?
[A (the Appellant):] Right now at this point, I would like to put my testimony on the record before we begin. I feel like this may better serve judicial economy right now. . . .
[Q]: Well, if you wish to testify during the course of the trial you can do that, but that testimony will be subject to examination by [trial counsel] if he [ ] represents you, and it will also be subject to cross-examination by the district attorney[.] And you understand that if [you] do that, anything you say could be used against you. You would basically be giving up your right not to incriminate yourself. Do you understand that?
[A]: Yes, sir. But I understand that today . . . it was scheduled for today for this motion for me with the release of [trial counsel]. My understanding was not a bench trial[, ] if I release him and become my own attorney, I'm going to need more time to go over my case.
[Q]: No, the trial is going to happen today. All of the information has been provided. The discovery has ...

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