SHEPARD v. the STATE. ( 2018 )


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  •                                THIRD DIVISION
    ELLINGTON, P. J.,
    BETHEL and GOBEIL, JJ.
    NOTICE: Motions for reconsideration must be
    physically received in our clerk’s office within ten
    days of the date of decision to be deemed timely filed.
    http://www.gaappeals.us/rules
    September 17, 2018
    In the Court of Appeals of Georgia
    A18A1074. SHEPARD v. THE STATE.
    BETHEL, Judge.
    Following a jury trial, Charles Shepard was found guilty of aggravated assault
    and aggravated battery. Shepard appeals the trial court’s denial of his motion for new
    trial, arguing that he was denied due process of law when the trial court allowed the
    State to make improper statements about Shepard during closing arguments. For
    reasons set forth below, we affirm.
    Viewed in the light most favorable to the verdict, Charles Shepard was indicted
    as a recidivist on charges of armed robbery, aggravated battery, and aggravated
    assault. At a motions hearing prior to trial, Shepard waived his right to counsel and
    elected to proceed to trial as a pro se defendant. Following a two-day trial, Shepard
    was convicted of one count each for aggravated assault and aggravated battery.
    Shepard filed a motion for new trial alleging, inter alia, that the trial court committed
    plain error by allowing the State to argue during its closing summation that the
    defendant had a propensity for violence. The trial court denied the motion, and this
    appeal followed.
    On appeal, Shepard argues primarily that the trial court committed plain error
    when it allegedly permitted the State to make improper remarks suggesting Shepard
    had a propensity for violence during closing arguments. More specifically, Shepard
    contends that the trial court’s failure to intervene and provide curative instructions
    to the jury on the State’s improper argument denied him of his right to a fair trial and
    due process of law. In light of our Supreme Court’s holding in Gates v. State, this
    argument lacks merit. 
    298 Ga. 324
    , 328-29 (4) (781 SE2d 772) (2016).
    In Gates, the defendant, who was on trial for malice murder and other crimes
    in connection with a shooting, alleged that the prosecutor engaged in prosecutorial
    misconduct by making statements about the defendant’s propensity to use guns during
    his closing, and that the trial court committed plain error by allowing the prosecutor
    to make such statements. 
    Id. at 328
     (4). In support of his argument, the defendant
    cited portions of the prosecutor’s closing argument where the prosecutor encouraged
    the jury to “connect the dots” between eyewitness testimony and other testimonial
    2
    evidence, such as the defendant’s past possession of guns and the fact that the
    defendant possessed a loaded gun at the time he was arrested. 
    Id.
     Our Supreme Court
    found that because the defendant did not object to the prosecutor’s statements during
    closing argument, he waived appellate review. 
    Id. at 328-29
     (4). Specifically, the
    Supreme Court held that notwithstanding Georgia’s new evidence code,1 errors based
    on improper remarks during closing argument are not subject to plain error review
    because what is said during closing arguments is not evidence. 
    Id. at 328-29
     (4).
    Here, it is undisputed that Shepard did not object to the State’s argument during
    its closing. Thus, under our Supreme Court’s analysis in Gates, Shepard “waived
    review of his arguments relating to the allegedly improper closing argument due to
    his failure to object below.” 
    Id. at 329
     (4) (citation omitted). Furthermore, we are
    unpersuaded by Shepard’s contention that Gates is distinguishable from the facts here
    simply because the defendant in Gates was represented by counsel, whereas in the
    present case, Shepard tried his case as a pro se defendant. This is a distinction without
    a difference.
    1
    Under Georgia’s new evidence code, specifically OCGA § 24-1-103 (d),
    courts are authorized to take notice of plain errors concerning the admission or
    exclusion of evidence absent an objection at trial. See Jones v. State, 
    299 Ga. 40
    , 42
    (2) (785 SE2d 886) (2016).
    3
    As our Court has previously concluded:
    Our laws governing criminal procedure are designed to ensure that
    defendants receive a fair trial. Defendants are free to waive the
    protections provided by such laws, assuming all the risks attendant
    thereto. A defendant is not free, however, to play one right against
    another with the hope of creating error. Neither may a defendant who
    has knowingly waived counsel then complain of a lack of counsel when
    he determines that the judge’s warnings were valid. Under such
    circumstances, the defendant’s problems are of his own making, and he
    is bound by his poor choices.
    Sims v. State, 
    265 Ga. App. 476
    , 477 (1) (594 SE2d 693) (2004) (citation omitted).
    The record before us demonstrates that Shepard was made aware of the dangers
    of self-representation by the trial court during a Faretta hearing two months prior to
    trial. See Wiggins v. State, 
    298 Ga. 366
    , 368 (782 SE2d 31) (2016) citing Faretta v.
    California, 
    422 U. S. 806
    , 835-36 (95 SCt 2525, 45 LE2d 562) (1975). Shepard was
    advised in open court of his rights with regard to counsel, and the trial court strongly
    urged him not to represent himself. Shepard was specifically told that he would not
    receive any special treatment as a pro se defendant, and despite his lack of experience
    and knowledge of the law and legal procedure, he would assume the full
    4
    responsibility of his defense. Nevertheless, Shepard knowingly and intelligently
    waived his right to counsel and memorialized his decision in writing.
    Shepard’s pro se status did not relieve him of his obligation to object to the
    State’s allegedly improper statements during closing argument. This Court will not
    hold Shepard to a different or more lenient standard merely because he elected to
    proceed pro se. “One who knowingly elects to represent himself assumes full
    responsibility for complying with the substantive and procedural requirements of the
    law.” Quinn v. State, 
    253 Ga. App. 570
    , 572 (2) (560 SE2d 58) (2002) (citation
    omitted).
    Judgment affirmed. Ellington, P. J., and Gobeil, J., concur.
    5
    

Document Info

Docket Number: A18A1074

Judges: Bethel

Filed Date: 9/17/2018

Precedential Status: Precedential

Modified Date: 10/19/2024