Gregory Rutledge, Jr. v. State

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, 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
June 14, 2019
In the Court of Appeals of Georgia
A19A0454. RUTLEDGE v. THE STATE.
COOMER, Judge.
Gregory Rutledge, Jr. was indicted on one count of aggravated stalking after
he was accused of sending harassing text messages to his ex-wife in violation of a
temporary restraining order. Following a jury trial at which he elected to represent
himself, Rutledge was convicted and sentenced the same day. Rutledge filed a motion
for new trial, as amended, alleging the trial court erred in allowing him to proceed pro
se without first establishing that he made a knowing, intelligent, and voluntary waiver
of his right to counsel. After conducting a hearing on the motion, the trial court
denied Rutledge’s request for a new trial.1 On appeal, Rutledge again argues that he
1
Rutledge also filed a motion to modify his sentence which was argued during
the hearing for his motion for new trial and later denied by the trial court. However,
Rutledge did not appeal the trial court’s denial of that motion.
is entitled to a new trial because the trial court failed to make a finding in the record
that Rutledge’s waiver of his right to counsel was knowingly and voluntarily made.
Because the totality of the record demonstrates that Rutledge’s decision to waive his
right to counsel was knowing, intelligent, and voluntary, we disagree and affirm.
It is well established that “both the federal and state constitutions guarantee a
criminal defendant the right to self-representation. To be valid, a defendant’s waiver
of his right to be represented by counsel must be knowingly and intelligently made.”
State v. Evans, 285 Ga. 67, 68 (673 SE2d 243) (2009) (citations and punctuation
omitted). To establish waiver, our Supreme Court has held that “[t]he record need
only reflect that the accused was made aware of the dangers of self-representation and
nevertheless made a knowing and intelligent waiver.” Jones v. State, 272 Ga. 884,
886 (2) (536 SE2d 511) (2000) (citations and punctuation omitted). “The trial judge
is not required to use any particular language in making the defendant aware of his
right to counsel and the dangers of self-representation.” Martin-Argaw v. State, 343
Ga. App. 864, 867 (2) (806 SE2d 247) (2017) (citations omitted). However, “when
a defendant challenges an alleged waiver on appeal, it is the State’s burden to prove
that the defendant received sufficient information and guidance from the trial court
upon which to knowingly and intelligently relinquish this right.” Hamilton v. State,
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233 Ga. App. 463, 467 (1) (b) (504 SE2d 236) (1998) (citations omitted). “This
evidence must overcome the presumption against waiver.” Id. (citations omitted).
“The trial court’s ruling as to whether the defendant’s waiver of the right to counsel
was valid is reviewed for abuse of discretion.” Cox v. State, 317 Ga. App. 654, 654
(732 SE2d 321) (2012) (footnote omitted).
With these guiding principles in mind, the record shows that Rutledge was
charged with one count of aggravated stalking after sending text messages to his
former wife in violation of a temporary restraining order that prohibited him from
having any direct or indirect contact with her. At his arraignment hearing, Rutledge
was appointed counsel, entered a plea of not guilty, and was presented with a copy
of the indictment, a list of the State’s witnesses, and a plea offer letter. Rutledge later
appeared with his appointed counsel, William Rhodes, for a status hearing where he
was advised of the nature of the charge against him and the range of allowable
punishment for the charge. On the morning of trial, Rutledge appeared with Rhodes
to argue pre-trial motions. After the trial court denied Rutledge’s pre-trial motions,
Rutledge, through counsel, announced that he wanted to proceed with a jury trial. The
court recessed and Rutledge was taken back to a holding area where he spoke with
Rhodes and indicated that he wanted to represent himself. Following a conference
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between the trial court and Rhodes, Rutledge told the trial court that he and Rhodes
were “on a different page” with respect to certain evidence and how it would be used
during the trial. The trial court then told Rutledge that Rhodes is “an experienced trial
attorney” and “has a comprehensive understanding of . . . the law.” Rutledge
responded that “there seems to be unsurety[sic] as far as, you know, us moving
forward, the case as far as a plea as opposed to a jury trial.” The trial court then
reminded Rutledge that there are times when attorneys tell their clients things that the
client does not want to hear, but that if Rutledge wanted a trial, Rhodes would
provide the best defense possible. The trial court asked Rutledge what he wanted the
court to do. Rhodes then stated on the record that he explained to Rutledge he had the
option to continue the trial, ask for new appointed counsel, or represent himself with
Rhodes as standby counsel. The following exchange occurred between Rutledge and
the trial court:
RUTLEDGE: I wish to proceed pro se and with standby counsel.
TRIAL COURT: You are seriously going to embark on a jury trial
representing yourself?
RUTLEDGE: It’s my case, Your Honor.
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TRIAL COURT: That wasn’t my question.
RUTLEDGE: Yes, sir.
TRIAL COURT: So the answer is yes.
RUTLEDGE: Yes, sir.
TRIAL COURT: Are you prepared to do that now?
RUTLEDGE: Yes, sir.
TRIAL COURT: You are entitled to do that if you want to do that, Mr.
Rutledge, but I just feel absolutely obligated to tell you at this time what
a horrible decision I think that is. You are wanting to go [sic] trial
representing yourself with Mr. Rhodes as standby counsel. Is that my
understanding?
RUTLEDGE: Yes, sir.
TRIAL COURT: Okay. Mr. Rhodes, you are going to be standby
counsel, and that will mean that you’ll sit in the row behind Mr.
Rutledge, and Mr. Rutledge will ask any questions he has of you during
the trial of this case.
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After this exchange, Rhodes left his trial preparation materials, such as witness
question outlines, voir dire questions, and requests to charge with Rutledge at the
defense table. The court returned from a short recess and the following exchange
occurred between Rutledge and Rhodes:
RHODES: This is another copy of the indictment. Please look here. This
has not changed. The 18th day of July they are still alleging, you know,
the crime of aggravated stalking here in Gwinnett County. Okay. That
is what you are charged with. Do you understand?
RUTLEDGE: Yes, sir.
From that point to the end of trial, Rutledge actively tried his case with the
assistance of standby counsel. Rutledge fully engaged in voir dire and questioned
jurors with specific follow up questions. Once the jury was selected and the jurors
were excused from the courtroom, the trial court explained the procedure the court
would use throughout the trial of the case and gave cautionary instructions regarding
Rutledge’s rights as a defendant and the State’s burden of proof. The trial court asked
Rutledge if he understood what had been explained to him and if he had any
questions, to which Rutledge responded that he understood and did not have any
questions. When the trial resumed the following day, Rutledge made pre-trial
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motions, objected during the State’s opening statement, and gave his opening
statement to the jury outlining his theory of the case. During the trial, Rutledge made
arguments against the use of certain prior acts evidence by the State, challenged the
sufficiency of the indictment, and successfully argued for the admission of other
evidence. Rutledge cross-examined all of the State’s witnesses including an extensive
cross-examination of the victim, his former wife.
At the close of the State’s case, Rutledge made a motion for acquittal arguing
the State’s evidence failed to show a pattern sufficient to support the charge of
aggravated stalking. At the end of the trial, Rutledge made his closing arguments in
which he reiterated his overarching theme of the case, while highlighting for the jury
certain deficiencies in the State’s case against him. Rhodes, as standby counsel, met
with Rutledge at the jail after the first day of trial to go over any questions Rutledge
may have had in preparation for the next day, and throughout the trial, Rhodes
routinely counseled Rutledge during breaks. A jury found Rutledge guilty of
aggravated stalking and he was sentenced to serve a total of ten years with nine years
in confinement.
In his sole enumeration, Rutledge argues that the trial court’s failure to conduct
a hearing to establish on the record that he made a knowing, intelligent, and voluntary
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waiver of his right to counsel is reversible error. While we agree that the trial court
could have inquired further to ensure Rutledge’s decision to represent himself was
knowing and voluntary, the record clearly demonstrates a valid waiver by Rutledge.
a. As an initial matter, we disagree with Rutledge’s contention that the trial
court failed to make a finding on the record that he made a knowing and voluntary
waiver of his right to counsel. In its order denying the motion for new trial, the trial
court expressly found that “the totality of the record demonstrates that [Rutledge]
made this decision freely, voluntarily, and intelligently.” This Court has held that “a
trial court’s determination of a knowing and voluntary waiver within an order
denying a motion for new trial qualifies as a finding on the record.” McDaniel v.
State, 327 Ga. App. 673, 675 (a) (761 SE2d 82) (2014) (citation omitted). Moreover,
the determination by the trial court as to whether a defendant has made an intelligent
waiver of his right to counsel “depends on the peculiar facts and circumstances of
each case . . . [and] our Supreme Court has expressly disapproved the reading of
decisions of this court . . . to require a trial court to make specific inquiries of a
defendant.” Martin-Argaw, 343 Ga. App. at 867 (2) (citations and punctuation
omitted).
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While articulated findings on the record by a trial court are preferable, “it is not
required when the record as a whole demonstrates a defendant’s knowing waiver.”
Martin-Argaw, 343 Ga. App. at 870 (2) (citation omitted). Thus, this Court must first
consider whether the State met its burden of demonstrating that the particular facts
and circumstances of this case show that Rutledge was made aware of the dangers of
representing himself and nonetheless knowingly and voluntarily waived his right to
counsel. See Cox, 317 Ga. App. at 655 (“The state has the burden of demonstrating
that the defendant received sufficient information and guidance from the trial court
to make a knowing and intelligent waiver of the right to counsel.” (footnote omitted)).
In the present case, the record reflects that Rutledge was advised of the nature
of the charge against him during his arraignment when the State presented him with
a copy of the indictment. At a separate status hearing, Rutledge was further advised
by the trial court of the nature of the charge against him as well as the maximum
sentence he could receive if found guilty of the charge. On the morning of trial, the
trial court counseled Rutledge that Rhodes had comprehensive knowledge about the
legal issues involved with the case and reminded him that while he may not always
agree with his attorney, Rhodes would provide him with the best defense possible.
The trial court engaged in a short colloquy with Rutledge and expressed its opinion
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that Rutledge was making a “horrible decision” to represent himself, but ultimately
granted Rutledge’s request. After voir dire, the trial court engaged in a second
colloquy with Rutledge where the trial court further explained the procedure of the
court and Rutledge’s constitutional rights with respect to testifying and the burden of
proof. Despite the trial court’s warnings, Rutledge chose to exercise his right to
represent himself.
We note that although the trial court expressed concern to Rutledge that he was
making a “horrible decision” by electing to represent himself, merely apprising a
defendant that self-representation is generally a bad decision is not sufficient to show
that a defendant was made aware of the dangers of self-representation. See Manning
v. State, 260 Ga. App. 171, 172 (581 SE2d 290) (2003) (waiver not knowing and
voluntary where defendant was aware he was facing considerable prison time but trial
court simply warned him that he lacked sufficient legal knowledge and that
representing himself was an “unwise decision” and “extremely ill-advised”). Even
with its explanation of trial procedure, the trial court should have queried further to
ensure that Rutledge was aware of the dangers and disadvantages of representing
himself beyond expressing in general terms its disapproval of Rutledge’s decision.
See Lamar v. State, 278 Ga. 150, 152 (1) (b) (598 SE2d 488) (2004) (reversible error
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where trial court did not try to make defendant aware of the dangers and
disadvantages he faced proceeding pro se at trial due to his ignorance of basic
criminal law concepts but instead queried the defendant on his technical legal
knowledge).
However, notwithstanding any perceived scantiness in the trial court’s warning
to Rutledge, based on a review of the record as a whole, Rutledge was made fully
aware of the dangers of self-representation. At the hearing on Rutledge’s motion for
new trial, Rhodes testified that he made Rutledge fully aware of the nature of the
charge, the possible sentences, potential defenses, plea offers, and the dangers of
self-representation. See Jones v. State, 272 Ga. 884, 886 (2) (536 SE2d 511) (2000)
(defendant knowingly and intelligently waived right to counsel where public defender
testified that she informed defendant of the charge, possible sentences, and dangers
of self-representation); Simpson v. State, 238 Ga. App. 109, 112 (1) (517 SE2d 830)
(1999) (knowing waiver where trial court advised defendant that it would be
“extraordinarily unwise” to represent himself and where appointed counsel informed
defendant of the dangers of self-representation). “Thus, the trial transcript clearly
indicates that defendant was not denied the right to counsel by the trial court, but
instead knowingly, understandingly and voluntarily elected to represent himself . . .
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. Under the circumstances of this particular case, we find no error requiring a reversal
of the conviction.” Rutledge v. State, 224 Ga. App. 666, 670 (3) (482 SE2d 403)
(1997) (citation omitted).
b. Assuming, arguendo, that the trial court erred in allowing Rutledge to
represent himself, any perceived error was harmless beyond a reasonable doubt. “To
establish harmless error, the State has the burden of showing beyond a reasonable
doubt that the error did not contribute to the verdict.” Middleton v. State, 254 Ga.
App. 648, 650 (2) (563 SE2d 543) (2002) (footnote omitted). And this Court has held
that “such error was not harmless where the record showed that the defendant did not
mount an able defense—even though the evidence of guilt was ample.” Id. at 650-651
(2) (citations and emphasis omitted). A review of the entire record demonstrates that
Rutledge was prepared to try his case and mounted an able defense of his case.2 The
trial court found that Rutledge performed the “yeoman’s work in representing himself
on trial” from voir dire to closing argument, and did so in a cogent and able manner
throughout. At the hearing on the motion for new trial, Rhodes testified that
2
We agree with Rutledge that having Rhodes as standby counsel is not
sufficient for the State to satisfy its burden of proving harmless error beyond a
reasonable doubt regardless of whether, as the trial court concluded, Rhodes “acted
as more than a standby counsel, routinely counseling with [Rutledge] during breaks.”
See McDaniel, 327 Ga. App. at 680.
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Rutledge’s questioning of witnesses was good, that Rutledge is “an intelligent
person,” and that overall Rutledge did a good job defending his case under the
circumstances. The record also shows that Rutledge’s examination of witnesses,
objections, and arguments for certain motions reflected not only his clear
understanding of the charges against him, but also demonstrated his defense strategies
and theories of the case.
However, despite his best efforts, the evidence against Rutledge was
uncomplicated and simply overwhelming. Rutledge was charged with sending
harassing and intimidating text messages to his former wife in violation of the
temporary restraining order. Documentary evidence such as the temporary restraining
order, divorce decree, parenting plan, and the subject text messages were admitted at
trial as well as testimony from Rutledge’s former wife describing her relationship
with Rutledge and the context of the messages she received from him. Possibly the
most damning of all the evidence presented to the jury was a video of Rutledge
confronting his former wife in the parking lot of their child’s daycare. Thus, “viewing
the evidence as a whole, and in light of the overwhelming evidence of [Rutledge’s]
guilt, it is unlikely that defendant’s convictions were attributable to his decision to
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represent himself.” Reviere v. State, 231 Ga. App. 329, 331 (1) (498 SE2d 332)
(1998) (citation omitted).
Judgment affirmed. Doyle, P. J., and Markle, J., concur.
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