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Stinson v. State

Court of Appeals of Georgia, Second Division

October 25, 2019

STINSON
v.
THE STATE.

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

          REESE, JUDGE.

         A jury found Vernon Stinson guilty of two counts of statutory rape and two counts of child molestation.[1] Stinson appeals from the denial of his motion for new trial, contending, inter alia, that the trial court "mishandled" his motion for acquittal and discharge, that the court improperly allowed him to represent himself prior to trial, and that he received ineffective assistance of counsel. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [2] the evidence shows the following facts. In February 2014, the 13-year-old victim lived in Gwinnett County with her father, her brother, the children's nanny and her husband, and Stinson, who was a close friend of the victim's father. According to the victim, she had known Stinson "[s]ince [she] was little[, ]" and Stinson "was like an uncle to [her]." In February 2014, however, Stinson started sexually abusing the victim.

         The first time it happened, Stinson and the victim were in the living room when he asked her to give him a "lap dance[.]" Although the victim did not know what a "lap dance" was, she sat on his lap and "gyrated" her hips. Stinson pushed the victim back onto the couch, removed her underwear, performed oral sex on her, and then had sexual intercourse with her. Stinson ignored the victim when she told him to stop and that he was hurting her.

         The next morning, Stinson went into the victim's bedroom and had oral sex and sexual intercourse with her on her bed. Stinson did the same thing to the victim on her bed the following morning, as well as the next evening. According to the victim, after Stinson had sex with her, he said that he loved her.

         The next day, the victim told her father that Stinson had been having sexual intercourse with her and performing oral sex on her during the past week. The victim told her father that Stinson had her go into her father's bedroom and get her father's condoms for him (Stinson) to use during sex, although the victim told her father that Stinson did not use a condom during one of the sexual assaults. When her father confronted Stinson about the victim's allegations, Stinson said that the victim was lying. The victim's father started to physically attack Stinson, but then released him, and Stinson ran to his car and drove away. A couple of days after he left the house, however, Stinson called the victim's father and said that he was sorry.

         Law enforcement officers were contacted the day after Stinson left the house, and the victim was taken to a sexual assault center, where a sexual assault examination was conducted. A police officer subsequently interviewed the victim, and a recording of the interview was played for the jury at trial.

         During their investigation, police officers seized the victim's bed sheets from her home. On February 28, 2014, an officer obtained an arrest warrant for Stinson. Stinson was placed under arrest about two weeks later and was appointed counsel shortly thereafter. The State charged him with two counts of rape, four counts of aggravated child molestation, two counts of child molestation, and two counts of statutory rape. On July 1, 2014, while Stinson was incarcerated on the charges, an officer obtained Stinson's DNA through a buccal swab, pursuant to a search warrant. At trial, a forensic biologist employed by the Georgia state crime lab testified that DNA extracted from semen found on the victim's bed sheets matched Stinson's DNA.

         Following a four-day trial, the jury found Stinson guilty of two counts of statutory rape and two counts of child molestation.[3] Stinson filed a motion for new trial and three amended new trial motions. The trial court denied the motions for new trial, and this appeal followed.

         "On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict[, ] and an appellant no longer enjoys the presumption of innocence."[4] Although the appellant generally carries the burden of showing any alleged errors affirmatively by the record, "when [an appellant] challenges an alleged waiver [of his right to counsel] on appeal, it is the State's burden to prove that the [appellant] received sufficient information and guidance from the trial court upon which to knowingly and intelligently relinquish [that] right. This evidence must overcome the presumption against waiver."[5] This Court reviews the trial court's ruling as to whether the appellant's waiver of the right to counsel was valid for an abuse of discretion.[6] With these guiding principles in mind, we turn now to Stinson's specific claims of error.

         1. Stinson contends that the trial court improperly allowed him to represent himself prior to trial, arguing that he never waived his right to counsel and that he was not qualified to represent himself. According to his appellate brief, Stinson never wanted to represent himself; instead, "he was simply dissatisfied with his lawyer and wanted to game the system." Stinson also argues that the trial court improperly appointed "standby" counsel to assist him while he was acting pro se. Stinson, through his appellate counsel, contends that, "[b]y capitulating to [Stinson's] nonsense and then imposing a standby lawyer on him, the court denied [Stinson] both the right to counsel and the right to self-representation."

         (a) It is axiomatic that, under the Sixth Amendment to the United States Constitution, a defendant facing imprisonment has the right to counsel during every critical stage of the criminal prosecution.[7] It is equally true that a criminal defendant

has an unequivocal right under both the state and federal constitutions to represent himself and waive his right to counsel.[8] However, a defendant's] unequivocal assertion of the right to represent [himself], when made prior to trial, . . . requires that the trial court hold a hearing to ensure that the right to counsel is knowingly and voluntarily waived and that the defendant understands the perils of self-representation.[9]

         During such a hearing (referred to herein as a "Faretta"[10] hearing), the trial court must question the defendant to the extent necessary to establish on the record that the defendant has made a valid waiver of counsel and an assertion of his right to self-representation.[11]

To be valid, such waiver [of the right to counsel] must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. Each case must be evaluated on its own unique facts and circumstances, and there is no magic language that the trial court must use to determine whether a waiver of counsel is valid. The [S]tate has the burden of proving that the defendant received sufficient information and guidance from the trial court to knowingly and intelligently waive the right to counsel. The record should reflect a finding by the trial court that the defendant has elected to proceed pro se and should show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.[12]

         In this case, the record shows that, during Stinson's arraignment on July 11, 2014, the court appointed attorney Dale Wren to represent Stinson. Wren filed discovery requests and consolidated motions on Stinson's behalf, and Stinson filed a pro se statutory speedy trial demand on August 21, 2014. Wren did not file a speedy trial demand, and he refused Stinson's request that he adopt the pro se demand. The trial court dismissed the pro se speedy trial demand the next day, ruling that, because Stinson was represented by counsel, he could not simultaneously represent himself by filing a pro se speedy trial demand.[13]

         During a hearing on September 17, 2014, Stinson informed the trial court that Wren had refused to file a motion "to fight against [Stinson's] rubber-stamped indictment[, ]" as well as other motions that Stinson wanted Wren to file, including a plea in abatement. Wren explained to the court that he had discussed the proposed motions with Stinson but did not believe the motions were "warranted [in] this case." The trial court asked Stinson if he wanted Wren to continue representing him, wanted someone else to represent him, or wanted to represent himself, and Stinson responded, "I'll go pro se for now so I can get the motions that I wanted filed. I'll go pro se for this point in time." The trial court allowed Wren to withdraw as counsel, and conducted a Faretta hearing, after which it found that Stinson had not waived his right to counsel. Although the trial court appointed attorney Wesley Person to serve as Stinson's new counsel, it ruled that Stinson would be allowed to file, pro se, any motion he wanted to file during the next five days. The court later extended the time period for Stinson to file pro se motions for an additional 30 days.

         About a month later, in an October 14, 2014 letter to the trial court, Stinson asked the court to cause Person to "[c]ease and desist" representing him. And, in an October 28, 2014 letter to the court, Stinson claimed that Person's representation was "ineffective" because Person had refused to file certain motions that, inter alia, challenged the indictment and asserted constitutional violations.

         Then, during a November 19, 2014 motion hearing, Stinson again informed the court that he (Stinson) "need[ed] to go pro se." As a result, the court conducted another Faretta hearing, during which Stinson, a high school graduate with some college education, demonstrated that he knew the elements and the maximum penalties of the offenses for which he had been charged, some of the lesser included offenses for those charges, and potential defenses that were available. The trial court advised Stinson of the potential consequences of proceeding pro se, including the constitutional rights he would be giving up, and the court informed Stinson that he (Stinson) would be responsible for preparing and making strategic decisions for trial and preserving a trial record. After being so notified, Stinson told the court that he still wanted to represent himself. Stinson told the court, however, that he "wouldn't mind having [ ] Person as my co-counsel[, ]" if that was possible. The court responded that Person could not serve as Stinson's co-counsel, but it would consider appointing Person as his standby counsel.

         At the end of the Faretta hearing, the court found that Stinson had freely, voluntarily, and knowingly waived the right to counsel and elected to represent himself. Thus, the trial court granted Stinson's request to represent himself, but the court appointed Person as standby counsel to assist Stinson. Stinson was also notified that, if he changed his mind about representing himself, he would be able to request that an attorney be appointed to take over his case.

         Under these circumstances, we hold that the record supports the trial court's finding that Stinson knowingly and voluntarily waived his right to counsel, and that the trial court did not abuse its discretion in allowing Stinson to proceed pro se prior to trial.[14]

         (b) As for Stinson's contention that the trial court violated his right to self-representation by appointing Person to serve as his standby counsel, this Court has held that

a trial court may appoint standby counsel for an accused wishing to represent himself at trial, even over the defendant's objection, provided that standby counsel's role is appropriately limited. Appropriate limitation is that which ensures that standby counsel is not excessively intrusive and preserves for the pro se defendant a fair chance to present his case in his own way.[15]

         Here, the record shows that Stinson represented himself from November 2014 until April 2016, and that, although Stinson was incarcerated during that period, [16] he filed numerous pro se motions[17] and was present at every motion hearing, calendar call, and status hearing. Person continued to assist Stinson, at Stinson's request, throughout that period by, inter alia, filing additional motions, arguing certain motions, hiring an investigator to assist them with Stinson's defense, searching for an expert witness that Stinson believed was necessary for his defense, subpoenaing witnesses and records, and reviewing confidential records from the Department of Family and Children Services ("DFCS"). Stinson never objected to Person's appointment as standby counsel, never complained about any actions taken by Person on Stinson's behalf, and never asserted that his right to self-representation was being violated due to Person's appointment.[18]

         Thus, Stinson waived any objection to the appointment of Person as standby counsel. "No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further."[19] "A party's duty to object . . . gives the trial court the opportunity to correct the alleged error, and avoids the possibility that a party may intentionally fail to object to a ruling and take a chance of a favorable outcome at trial based on the knowledge he or she stands a chance of obtaining a reversal on appeal."[20]

         Further, there is no evidence that Person's service as standby counsel prevented Stinson from planning and conducting his defense in the manner he believed was appropriate and necessary.[21] The record shows that Stinson asked or allowed Person to perform certain tasks that he (Stinson) was unable to do due to his incarceration, [22]and, with one exception, [23] Stinson was present every time Person filed a motion or addressed the court on his (Stinson's) behalf, but he never asserted that Person had performed any action that was inconsistent with or undermined his defense.[24] Thus, Stinson has failed to demonstrate any prejudice that resulted from Person's appointment or service as standby counsel prior to trial.[25]

         Consequently, this argument presents no reversible error.

         2. In a related matter, Stinson contends that, after he changed his mind about representing himself and asked the court to allow Person to represent him from that point forward, the trial court violated his right to self-representation by granting that request without first conducting a "reverse Faretta" hearing. Stinson also argues that the court erred in failing to issue written findings showing that he had knowingly and voluntarily waived the rights intrinsic to a defendant's self-representation during trial, such as participating in voir dire, questioning witnesses, and arguing to the jury. These arguments, however, are unsupported by applicable or binding precedent and are completely lacking in merit.

         In this case, the record shows that, at the end of a motion hearing on April 8, 2016, about one month before the May 2016 trial, Stinson spontaneously told the trial court, "What I want to do right now is let Mr. Person take over my case from now [on]." The court granted the request and informed Person that he was going to be "taking over[ ]" the case, and Person represented Stinson thereafter, through the May 2016 trial and until appellate counsel was appointed in June 2016 to pursue Stinson's motion for new trial. Stinson never objected to Person's appointment as his counsel, nor did Stinson ever revoke his request for counsel or assert his right to self-representation again in the trial court.

After a defendant properly waives his Sixth Amendment right to counsel, that right is no longer absolute. The right to counsel, however, does not evaporate following a valid waiver, and a defendant may make a post-waiver request for counsel if, for example, he discovers he is overwhelmed by the trial process. Whether to grant or deny a defendant's post-waiver request for counsel is within the broad discretion of the trial court. In considering a post-waiver request for counsel, a trial court may consider, among other things, the timing of the request. As the trial date draws nearer, the trial court can and should consider the practical concerns of managing its docket and the impact that a request may have on its general responsibilities for the prudent administration of justice. The possibility of a disruption of trial proceedings may be diminished, however, if a defendant has had standby counsel and requests that the standby counsel represent him.[26]

         Contrary to Stinson's argument that the trial court should have conducted a "reverse Faretta" inquiry when Stinson asked that Person be allowed to represent him, [27] the Supreme Court of Georgia has held that the determination of whether a defendant should be allowed to reverse his decision to represent himself (and thus require the court to appoint counsel to represent the defendant) "is not part of the required Faretta colloquy, which simply requires the court to warn a defendant of the dangers that can arise from self-representation."[28] To the extent Stinson argues that the court failed to notify him at that time that he would not be able to question witnesses or otherwise represent himself at trial, Stinson never asserted that he had a right to do so before or during trial, nor did he ever claim that he was unaware that he would be precluded from doing so if Person represented him.

         Moreover, Stinson has cited to no authority that requires the trial court to issue written findings to support its ruling that the defendant knowingly and voluntarily waived his right to self-representation, and we note that even Faretta does not require a court to make such written findings.[29] Instead, Faretta only requires that the record show that the defendant had knowingly and intelligently chosen to represent himself, i.e., that "he [knew] what he [was] doing and his choice [was] made with [his] eyes open."[30]

         Given these circumstances, we find no abuse of discretion in the court's grant of Stinson's request that Person represent him at trial.

         3. Stinson contends that the trial court "mishandled" his pro se motion for discharge and acquittal. He argues that the trial court erred in denying him an evidentiary hearing on the motion and in denying him counsel by allowing him to argue the motion even though Person was representing him. According to Stinson, if Person had argued the motion, Person "would have won it." These arguments misrepresent the facts and are without merit.

         (a) The record shows that, on April 8, 2016, while Stinson was still representing himself, [31] Stinson filed a motion for discharge and acquittal in open court. The motion asserted that Stinson had been denied counsel prior to his arraignment and that, after Wren was appointed to represent him at the July 2014 arraignment, Wren failed (or refused) to "fight for [Stinson's] constitutional rights" and file a speedy trial demand. According to the motion, Stinson's constitutional and statutory rights to a speedy trial had been violated, [32] so the court should issue an order discharging and acquitting him of the offenses charged in the indictment; the motion did not ask the court to conduct an evidentiary hearing. The court allowed Stinson to present argument on the motion, but, instead of addressing the issues raised in the motion, Stinson argued that he had announced "ready" for trial in April or May 2015, but his trial had been delayed due to the need for an in camera inspection of DFCS records he had subpoenaed, as well as his need to review the records once the court had conducted its in camera review. Stinson also argued that, even though he had again announced "ready" for trial in February 2016, the trial was postponed so he could subpoena out-of-state DFCS records and DFCS witnesses. After hearing Stinson's argument, the court stated that it was going to take the matter under advisement, specifically explaining that it needed to review all of the transcripts of the prior hearings in order to properly apply the four prongs of the Barker-Wingo[33]balancing test.

         Thus, contrary to Stinson's assertions on appeal, the motion for discharge and acquittal and the April 8, 2016 hearing transcript clearly show that, at the time Stinson argued the motion, Stinson was still representing himself, as he had not yet asked the court to appoint Person as his counsel. In addition, Stinson never requested an evidentiary hearing on the motion, and, while the court allowed Stinson to present argument on his pro se motion, Stinson never objected, indicated that he was unable or unprepared to argue the motion himself, or asked the court to allow Person to argue the motion on his (Stinson's) behalf. More importantly, Person was present to assist Stinson, if Stinson chose to consult with him, and the trial court never prohibited Person from arguing the motion if Stinson had decided to delegate that responsibility.

         Thus, Stinson's arguments regarding the trial court's alleged mishandling of his motion for discharge and acquittal are without merit.

         (b) Stinson also appears to assert that the trial court improperly allowed him to represent himself during a subsequent hearing on May 6, 2016, three days before the trial was set to begin, at which time he was represented by Person. This argument also lacks merit.

         The record shows that, on May 5, 2016, about a month after Stinson filed and argued his pro se motion for discharge and acquittal, the court issued an order denying the motion. In its order, the court ruled, inter alia, that the trial delays were largely attributable to Stinson, that Stinson had failed to timely assert his right to a speedy trial, and that Stinson had failed to demonstrate that he was prejudiced by the delay. Under these circumstances, the court found that no constitutional error had resulted from the delay in bringing the case to trial.[34]

         During a status hearing conducted the next day, Stinson filed a pro se, handwritten, and unsigned objection ("Objection") to the trial court's ruling, even though Person was representing Stinson at that time. According to the Objection, the court erred in finding that he (Stinson) was at fault for many of the trial delays, because he was acting pro se while incarcerated and, as a result, was unable to perform many of the tasks necessary to prepare for trial, such as reviewing records, questioning witnesses, and finding expert witnesses, in a more timely manner. The Objection also asserted that Stinson had received ineffective assistance of counsel, complaining that his first appointed counsel had not filed necessary motions or otherwise adequately represented him.

         After reading the Objection, the trial court told Stinson that the Objection did not change the court's ruling on the motion for discharge and acquittal.[35] Although Stinson repeatedly attempted to argue the merits of the Objection, the court emphasized to him that it had read the document, that it did not need Stinson to read the document aloud in court, and that further argument would not change its ruling. As a result, Stinson requested, pro se, a certificate of immediate review, which the trial court denied, ruling that the request was frivolous and asserted solely for the purpose of delaying the trial.[36]

         Then, because it had been Stinson, instead of Person, who had filed and attempted to present argument on the Objection and had asked for a certificate of immediate review, the prosecutor asked Stinson if he had fired Person as his attorney. Stinson responded that Person had "told [him that Person] could not represent [him] on [the motion for] acquittal and discharge. So I didn't fire [ ] Person." The trial court judge interjected, stating that "Stinson [had] filed [a pro se] constitutional demand [for speedy trial] before [Person took over as counsel]. It was the last official act [Stinson] did on his own. I think it's fair to allow [ ] Stinson to have all the follow-up in that ...


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