                               THIRD DIVISION
                              ELLINGTON, P. J.,
                         DILLARD and MCFADDEN, 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


                                                                  November 20, 2015




In the Court of Appeals of Georgia
 A15A1342. TYNER v. THE STATE.                                                JE-049C

      ELLINGTON, Presiding Judge.

      A Muscogee County jury found Paul Tyner guilty beyond a reasonable doubt

of two counts of rape, OCGA § 16-6-1 (a) (1); two counts of aggravated sodomy,

OCGA § 16-6-2 (a) (2); and two counts of burglary, OCGA § 16-7-1.1 Following the

denial of his motion for a new trial, Tyner appeals, contending, inter alia, that he was

deprived of his right to counsel at trial. For the reasons explained below, we reverse.

      Pertinently to Tyner’s claims of error, the record shows the following. Tyner’s

appointed counsel represented him during pretrial proceedings and appeared for him


      1
        The offenses occurred on July 25, 1981. Tyner was tried on September 22 and
23, 1981. Nearly thirty-five years later, the trial court determined that Tyner had been
deprived of the right to counsel on appeal and, on February 13, 2014, granted him
leave to file an out-of-time appeal.
at trial. After the State presented its case in chief, Tyner elected to testify in his

defense. Both sides rested, and the court then conducted a charge conference. After

the State presented its closing argument, Tyner’s counsel advised the court, outside

the presence of the jury, that Tyner had decided at that point to defend himself.

      The court advised Tyner that the remaining stages of the case were the

defense’s closing argument, which would be “the important stage that would entail

some active representation on [his] behalf”; the charge of the court to the jury as to

the law, when he would have a right to “note any technical objections that [he felt]

might exist in it”; and the jury’s deliberations. The court told Tyner that his attorney

was prepared to complete the trial, and that he had the right to have his attorney do

so, but that he also had the right to represent himself. The court then asked, “What is

your election?” Tyner replied, “I would like to do it.” The court asked Tyner’s

attorney to remain at the defense table to advise Tyner if requested. Before

proceeding, the trial court advised Tyner that he would be bound by the same rules

as would apply to counsel. The court emphasized specifically that, during closing

argument, Tyner would be limited to discussing the evidence adduced at trial and any

logical inferences supported by the evidence and that he could not go outside of the

evidence produced at trial.

                                           2
      Tyner immediately ran afoul of the court’s instructions. He started to discuss

a Supreme Court holding, and the judge interrupted and advised Tyner that he would

instruct the jury regarding the applicable law. The judge again instructed him to

confine his argument to “the evidence produced during this trial and the logical

deductions.” Tyner next argued to the jury that, at the outset of the investigation, he

had been willing “to do anything that [the State] would ask [of him. He] was

supposed to have taken a lie detector test.” The State objected, adding that Tyner had

applied to take a lie detector test but had withdrawn the application the week before

the trial. The court commented that there had been no evidence of a polygraph and

reiterated that Tyner was limited in his argument to the evidence produced during the

trial and the logical deductions from the evidence.

      Tyner continued his argument, complaining that his defense counsel failed to

call witnesses he wanted. The judge interrupted, saying

      Now, Mr. Tyner, I’m not going to allow you to sit up there and
      embarrass the lawyer over there, who the Court knows is a very fine
      lawyer and very conscientious. I caution you once again, confine your
      argument to the evidence produced during this trial – none of this [about
      any defense witnesses] was produced in evidence – and logical
      deductions from that evidence. . . . [T]here are certain boundaries that



                                          3
         you cannot go beyond. So, argue the evidence that was produced during
         this trial and the logical deductions.


Tyner resumed and quickly drew another objection, when he started talking about

what had happened at a pretrial hearing the previous week. The court did not

expressly rule on the objection but instructed Tyner again to confine his argument to

the evidence and logical deductions. The judge added, “I was present at that hearing

[the previous week]. . . . Regardless of what did or didn’t happen last Friday, you

must argue what happened during this trial this week. So, confine your argument to

that.”

         Frustrated, Tyner said to the court,

         I keep making these mistakes. I will just let him . . . Is it okay that the
         lawyer just go on and argue, because I don’t quite understand where you
         are coming from. It would be all right with me if the lawyer . . . would
         just take over from here, because . . . I keep making these mistakes.


The court denied Tyner’s request to allow his defense counsel to resume his

representation of him. The court said, “the defense is entitled to [only] one argument.

. . . I can’t let you toy with the court; you get up and say you want to make the

argument and then you say you want your lawyer to make the argument.” The court

stated

                                             4
      you can continue your argument. The court will correct the mistakes
      [you make], and I will be [more] tolerant with you than I would with
      your lawyer in [the case]. . . . Any mistake[s] you make, the court will
      correct them. I just must keep cautioning you that the argument must be
      confined to evidence introduced during the trial and logical deductions.
      You can’t go into other evidence and testimony and so forth that might
      or might not have been admissible, because the jury didn’t hear it.


As Tyner continued his argument, he repeatedly drew objections from the State and

admonitions from the court for improper argument.

      After the jury found Tyner guilty of all charges, the trial court immediately held

the sentencing hearing. Tyner offered no evidence or argument in regard to

sentencing. Expressing regret that the Supreme Court of the United States had “made

a mistake when [it] abolished the death penalty” for rape cases, which caused the

Georgia General Assembly to amend the Code, the trial court sentenced Tyner to the

maximum period of imprisonment for each offense, with the sentences as to charges

relating to one victim to run concurrently and the sentences as to the second victim

to run consecutively.

      1. Tyner contends that the trial court erred in requiring him, after he wished to

withdraw his waiver of counsel, to proceed pro se during the remainder of closing

argument and during reception of the verdict and sentencing.

                                          5
      It is well settled that

      [c]riminal defendants are guaranteed the rights to both counsel and self-
      representation under the federal and state constitutions. . . . If a
      defendant makes an unequivocal assertion of his right to represent
      himself prior to trial, the request should be followed by a Faretta[2]
      hearing to ensure that the defendant knowingly and intelligently waives
      the right to counsel and understands the disadvantages of self-
      representation.


(Citations and punctuation omitted.) Thomas v. State, 331 Ga. App. 641, 657-658 (7)

(771 SE2d 255) (2015).3 Although “a defendant cannot frivolously change his mind


      2
          See Faretta v. California, 422 U. S. 806, 835 (V) (95 SCt 2525, 45 LEd2d
562) (1975) (“Although a defendant need not himself have the skill and experience
of a lawyer in order competently and intelligently to choose self-representation, he
should be made aware of the dangers and 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.”) (citation and punctuation omitted); see also Danenberg v. State, 291 Ga.
439, 440 (2) (729 SE2d 315) (2012) (“The pre-trial unequivocal declaration of a
defendant that he wishes to represent himself must be followed by a hearing at which
it is determined that the defendant knowingly and intelligently waives the traditional
benefits associated with the right to counsel.”) (citation and punctuation omitted);
Clarke v. Zant, 247 Ga. 194, 195-196 (275 SE2d 49) (1981) (accord).
      3
        In order to determine whether a defendant’s decision to waive the right to
counsel is knowing and voluntary, “a trial judge must investigate as long and as
thoroughly as the circumstances of the case before him demand.” (Citation and
punctuation omitted.) Kirkland v. State, 202 Ga. App. 356, 357 (1) (414 SE2d 502)
(1991). “When determining whether there has been an informed and intelligent
waiver of such a right, each case must be determined upon its own peculiar facts and

                                          6
in midstream” by asserting his right to self-representation in the middle of his trial,

a trial court may allow a defendant to assume self-representation midstream if it finds

that the waiver of the right to counsel is knowing and voluntary. (Citation and

punctuation omitted.) Preston v. State, 257 Ga. 42, 44-45 (3) (354 SE2d 135) (1987).

See also Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990) (accord).

      Assuming a defendant’s waiver of his right to counsel is proper, that right, once

waived, is no longer absolute. Wilkerson v. State, 286 Ga. 201, 204 (2) (b) 686 SE2d

648) (2009).

      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


circumstance.” (Citations and punctuation omitted.) Rutledge v. State, 224 Ga. App.
666, 669 (3) (482 SE2d 403) (1997). To facilitate appellate review, the trial court
should make an express finding on the record that the defendant has validly chosen
to proceed pro se and should ensure that the record reflects that the defendant’s
choice was made after the defendant was made aware of his right to counsel and the
dangers of proceeding without counsel. Clarke v. Zant, 247 Ga. at 197.

                                           7
       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. If an examination of the record reveals that a trial court
       has abused its discretion in denying a post-waiver request for counsel
       during trial, it is a structural Sixth Amendment violation, and is not
       subject to a harmless error analysis on direct appeal.


(Citations and punctuation omitted.) Id.4

       Pretermitting whether the trial court properly acceded to Tyner’s desire to

waive his right to counsel just after the State’s closing argument, the record shows

that he very quickly discovered that he was overwhelmed by the demands of self-



       4
        See United States v. Gonzalez-Lopez, 548 U. S. 140, 148-150 (III) (126 SCt
2557, 165 L Ed 2d 409) (2006) (Some “constitutional error[s are deemed] ‘structural
defects.’ These defy analysis by harmless-error standards because they affect the
framework within which the trial proceeds, and are not simply an error in the trial
process itself. . . . [E]rroneous deprivation of the right to counsel of choice, with
consequences that are necessarily unquantifiable and indeterminate, unquestionably
qualifies as structural error[.] . . . In light of [the] myriad aspects of representation,
the erroneous denial of counsel bears directly on the framework within which the trial
proceeds . . . . It is impossible to know what different choices the rejected counsel
would have made, and then to quantify the impact of those different choices on the
outcome of the proceedings. . . . Harmless-error analysis in such a context would be
a speculative inquiry into what might have occurred in an alternate universe” and is
not permitted.) (citations and punctuation omitted); see also Thomas v. State, 331 Ga.
App. at 658 (7) (Deprivation of the right to self-representation is structural error, i.e.,
error that requires automatic reversal.).

                                            8
representation, and he asserted a post-waiver request for counsel within minutes of

being allowed to represent himself. The record does not show that the request had any

impact on the trial court’s ability to manage its docket or on its general

responsibilities for the prudent administration of justice. Nor does the record show

any significant disruption of the trial, given that only a few minutes had passed and

that counsel had an argument prepared and was standing by and ready to proceed. The

record does not show that the trial court weighed the negligible cost of granting

Tyner’s request to withdraw his waiver of his right to counsel against any identified

benefit of denying his request, other than preventing him from “toy[ing] with the

court.” We conclude that, under the circumstances, the trial court’s insistence that

Tyner continue pro se5 was unjustified, given that closing argument, receiving the




      5
          We disagree with the dissent that Tyner was seeking a hybrid form of
representation. See e.g. Horne v. State, 318 Ga. App. 484, 496 (7) (733 SE2d 487)
(2012) (“The Sixth Amendment right does not afford the defendant the hybrid right
to simultaneously represent himself and be represented by counsel. A pro se motion
filed by a convicted defendant while represented by counsel is unauthorized and
without effect.”) (citation and punctuation omitted). Tyner was represented by
counsel, waived his right to counsel and began acting pro se, and, after a few minutes
of self representation, asked to withdraw his waiver of his right to counsel and return
to being represented.

                                          9
verdict, and sentencing are critical stages of the trial.6 Because our examination of the

record reveals that the trial court abused its discretion in denying Tyner’s post-waiver

request for counsel during trial, it is a structural Sixth Amendment violation that

requires reversal. United States v. Gonzalez-Lopez, 548 U. S. at 148-150 (III);

Wilkerson v. State, 286 Ga. at 204; Thomas v. State, 331 Ga. App. at 658 (7).

      We must reject the State’s argument that, “[e]ven where a court’s decision to

allow a defendant to act pro-se is found to be in error, it can be harmless error when

it is unlikely that appellant’s convictions were attributable to his decision to represent

himself[,]” citing McCook v. State, 178 Ga. App. 276 (342 SE2d 757) (1986).7

      6
             [A defendant’s] right to counsel attaches once judicial
             proceedings have been initiated against him[,] and the
             accused is entitled to the representation of an attorney at all
             critical stages thereafter through an initial appeal. A critical
             stage in a criminal prosecution is one in which a
             defendant’s rights may be lost, defenses waived, privileges
             claimed or waived, or one in which the outcome of the case
             is substantially affected in some other way.
(Citations and punctuation omitted.) Adams v. State, 199 Ga. App. 541, 543 (2) (405
SE2d 537) (1991). See Gilreath v. State, 247 Ga. 814, 824 (3) (279 SE2d 650) (1981)
(argument of counsel and receiving the verdict are critical stages of a criminal trial);
Armstrong v. State, 298 Ga. App. 855, 861 (2) (681 SE2d 662) (2009) (imposing
sentence is a critical stage of a criminal trial).
      7
       We note that our opinion in McCook v. State has no precedential value as one
member of the three-judge panel concurred in the judgment only. 178 Ga. App. at
278. See Court of Appeals Rule 33 (a); Williams v. State, 329 Ga. App. 650, 653, n.

                                           10
Pretermitting whether Tyner’s convictions were attributable to his decision to

represent himself, we are precluded from engaging in a harmless-error analysis as

proposed by the State when, as in this case, we are presented with a structural error.

Thomas v. State, 331 Ga. App. at 641. Tyner’s convictions must be reversed.

      2. In light of our holding in Division 1, supra, Tyner’s remaining claim of error

is moot.




1 (766 SE2d 82) (2014). At any rate, McCook v. State would not be controlling in this
case, as it did not involve a defendant’s post-waiver request for counsel during trial.
178 Ga. App. at 277. Rather, in that case, after the defendant asserted his right to self-
representation and represented himself throughout the trial, he raised the issue
whether the trial court erred in failing to determine his waiver of the right to counsel
was intelligent and competent only on appeal. Accordingly, this case presents no
basis for overruling or disapproving McCook v. State. In our review, our decisions
that followed McCook v. State on this point likewise do not involve a denial of a
defendant’s post-waiver request for counsel during trial. See Rutledge v. State, 224
Ga. App. at 670-671 (3) (finding no error in allowing defendant to represent himself
and stating, in obiter dictum, that any such error would have been harmless; no post-
waiver request for counsel); Kitchens v. State, 198 Ga. App. 284, 285 (1) (401 SE2d
552) (1991) (same). See also Lazenby v. State, 181 Ga. App. 854, 854-855 (1) (354
SE2d 196) (1987) (the court allowed the defendant to consult with counsel during the
portion of the trial when he represented himself and then tacitly granted a postwaiver
request for counsel by allowing the defendant to have his attorney conduct the
defense, the cross-examination of rebuttal testimony, and the closing argument
portion of the case).

                                           11
      Judgment reversed. Barnes, P. J., Phipps, P. J., McFadden and McMillian, JJ.,

concur. Dillard and Ray, JJ., dissent.




 A15A1342. TYNER v. THE STATE.



      DILLARD, Judge, dissenting.

      Following his convictions on two counts each of rape, aggravated sodomy, and

burglary, Paul Tyner appeals, arguing that the trial court erred in allowing him to

waive his right to counsel and proceed pro se just prior to closing argument, denying

his subsequent request to withdraw his waiver of counsel, and in improperly

expressing its opinion on the evidence. Pretermitting his initial argument, the majority

agrees that the trial court should have allowed Tyner to withdraw his waiver of

counsel and, therefore, reverses his convictions. However, I disagree that the trial
court abused its discretion in denying Tyner’s request to withdraw his waiver of

counsel. Accordingly, I respectfully dissent.

      In this matter, after the State presented its closing argument, Tyner’s counsel

advised the trial court that Tyner now wanted to proceed pro se for the remainder of

the trial. The court then explained what the remainder of the trial would entail and

that Tyner, indeed, had the right to represent himself. Thereafter, the court asked

Tyner how he wanted to proceed, and Tyner chose to proceed pro se. The court then

instructed defense counsel to remain and advise Tyner if he so requested. And

subsequently, the court informed Tyner that during closing argument, he would be

bound by the same rules applicable to counsel and limited to discussing evidence

adduced at trial and any inferences supported by such evidence.

      But, as the majority notes, almost immediately, Tyner violated the court’s

instructions and began discussing a Supreme Court holding and evidence outside of

the trial record. The State objected, and the trial court reminded Tyner to confine his

argument to “the evidence produced during this trial and the logical deductions.”

Upon resuming his argument, Tyner began discussing his defense counsel’s alleged

deficiencies but was instructed by the court to cease from doing so. After attempting

to continue his argument and again drawing an objection from the State, and yet


                                          2
another admonishment from the court that he limit his argument to matters in

evidence, Tyner acknowledged his mistakes and asked the court if defense counsel

could resume his representation of him. But the court denied his request, stating “the

defense is entitled to one argument. . . . I can’t let you toy with court; you get up and

say you want to make the argument and then you say you want your lawyer to make

the argument.” Consequently, Tyner continued his closing argument, which drew

multiple objections from the State and rebukes from the trial court. And at the trial’s

conclusion, the jury found Tyner guilty of all charges.

      Tyner now argues, and the majority agrees, that the trial court erred in denying

his post-waiver request for counsel. However, I do not agree that the court’s ruling

in this regard constituted an abuse of discretion.

      Once a defendant properly waives his Sixth Amendment right to counsel, “that

right is no longer absolute.”1 But the right to counsel 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.”2 Importantly, whether

to grant or deny a defendant’s post-waiver request for counsel is “within the broad


      1
          Wilkerson v. State, 286 Ga. 201, 204 (2) (b) (686 SE2d 648) (2009).
      2
          Id.

                                           3
discretion of the trial court.”3 Furthermore, in considering a post-waiver request for

counsel, a trial court “may consider, among other things, the timing of the request.”4

And 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.”5

      Here, although Tyner’s post-waiver request for his counsel to resume

representing him was unlikely to cause significant disruption of the trial, this Court

has previously held that a trial court’s refusal to countenance this type of hybrid

representation does not constitute an abuse of discretion.6 Thus, because Tyner had

already begun his closing argument, regardless of its efficacy, the trial court did not




      3
          Id.
      4
          Id.
      5
          Id. (punctuation omitted).
      6
         See Davis v. State, 304 Ga. App. 355, 362 (3) (696 SE2d 381) (2010) (holding
that trial court’s refusal to allow defendant’s standby counsel to take over the cross-
examination of a witness already begun by defendant acting pro se did not constitute
an abuse of discretion); see generally Schwindler v. State, 254 Ga. App. 579, 588 (9)
(563 SE2d 154) (2002) (noting that a defendant has no right to hybrid representation
of acting pro se and having appointed counsel).

                                           4
abuse its discretion by refusing to allow Tyner to withdraw his prior waiver of

counsel.7

      For all of the foregoing reasons, I respectfully dissent.

      I am authorized to state that Judge Ray joins in this dissent.




      7
          See id.

                                          5
