In the Supreme Court of Georgia


                                                  Decided: January 19, 2016


                      S15A1729. WIGGINS v. THE STATE.


       THOMPSON, Chief Justice.

       Following a bench trial, appellant Ulysses Wiggins was found guilty of

the malice murder and felony murder of Catherine Walker, the aggravated

assaults of Valorice Caples and Carolyn Senior, and other related crimes. He

was sentenced to life without the possibility of parole plus an additional 25

years in prison.1 Because we conclude the trial court erred by failing to hold a

hearing to determine whether appellant’s request to proceed pro se was

knowingly and intelligently made, we reverse his convictions.



       1
         Appellant was indicted on August 10, 2010, by a Muscogee County grand jury for
the malice murder and felony murder of Catherine Walker, the aggravated assaults of
Valorice Caples and Carolyn Senior, possession of a firearm during the commission of a
crime, and possession of a firearm by a convicted felon. Following a bench trial, the trial
court found appellant guilty on all counts and sentenced him to life without parole for malice
murder, 20 years concurrent for each aggravated assault count, five years consecutive for the
possession of a firearm during the commission of a crime count, and five years concurrent
for the possession of a firearm by a convicted felon count. Appellant filed a timely motion
for new trial on January 12, 2011, which he amended through new counsel on September 17,
2012. The trial court denied the motion for new trial on March 20, 2013, and appellant filed
his notice of appeal on March 29, 2013. The case was docketed in this Court for the
September 2015 term and submitted for decision on the briefs.
      1. The evidence presented at trial authorized the trial court to find that

appellant had been living with Caples and her nephew, Octavious Short, for

several years. The day before the crimes, Caples moved out of their shared

apartment because of appellant’s abusive behavior. On the day of the crimes,

as Caples was getting into a car with Senior, appellant grabbed Caples and

pulled her out of the car. Appellant, Caples, and Senior then argued on the

street until Short and others intervened. Several teens who helped break up the

altercation then chased appellant back to his apartment where he retrieved a gun

and started shooting. Soon thereafter, appellant confronted Caples again,

threatening to kill her, but this altercation, like the first, was broken up. As

Caples and Senior retreated to safety, appellant continued to run around the

apartment complex, eventually encountering Walker, whom he fatally shot as

she stood outside her apartment.

      Construed in the light most favorable to the verdicts, we find the evidence

was sufficient to enable a rational trier of fact to find appellant guilty beyond a

reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia,

443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

      2. Appellant contends the trial court’s implicit denial, without inquiry or


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hearing, of his pre-trial request to represent himself was error. See Faretta v.

California, 422 U.S. 806 (95 SCt 2525, 45 LE2d 562) (1975); Ga. Const. of

1983, Art. I, Sec. I, Par. XII. We agree.

      The record shows that appellant was represented at trial by Mr. Pete

Quezada who, three months before trial, suffered a heart attack. Believing that

Mr. Quezada blamed him for causing the heart attack, on September 2, 2010,

appellant sent a letter to the trial court explaining his situation and stating:

      What I am asking for is a chance to come before the court. I am
      more than ready to defend myself. . . . I cannot allow Mr. Quezada
      to represent me. Please let me know what steps I need to take to
      get this case to trial.

The trial court forwarded appellant’s correspondence to Mr. Quezada and

included with it a letter suggesting that “[g]iven the nature of [appellant’s] letter,

it may be prudent to set this matter down for a hearing in front of [the court] at

your earliest convenience.” A month later, with no hearing having been held,

appellant sent a letter to the Muscogee County Superior Court clerk asking

“what [he] needed to do to get this hearing before [the judge].” The judge’s law

clerk responded to this letter, informing appellant that if he desired “to obtain

any kind of legal relief,” he had to “go through the proper channels” and that a

copy of appellant’s “informal request to dismiss attorney Quezada from this
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case” had been forwarded to the prosecuting attorney and Mr. Quezada, “for

their review and consideration.” No further action was taken by the trial court

regarding appellant’s request to proceed pro se, leaving counsel in the case.

After a one day bench trial, appellant was found guilty of all charges.

      Both the federal and state constitutions guarantee a criminal defendant

both the right to counsel and the right to self-representation. See Faretta, 422

U.S. at 819-820 (III) (A); Ga. Const. of 1983, Art. I, Sec. I, Pars. XII, XIV;

Taylor v. Ricketts, 239 Ga. 501, 502 (238 SE2d 52) (1977) (“A state may not

force a lawyer upon an appellant when he insists that he wants to conduct his

own defense. [Cit.]”). If a defendant makes a pre-trial, unequivocal assertion of

the right to self-representation, the request must be followed by a hearing to

ensure that the defendant knowingly and intelligently waives the “traditional

benefits associated with the right to counsel” and understands the

“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.” Faretta, 422

U.S. at 835-836. See Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841)

(1990). If the assertion of the right to proceed without the benefit of counsel is

equivocal, there is no reversible error in requiring the defendant to proceed with


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counsel. See McClarity v. State, 234 Ga. App. 348 (1) (506 SE2d 392) (1998).

      The trial court found on motion for new trial that appellant clearly stated

his desire to dismiss counsel and proceed pro se when he informed the court in

his September 2, 2010 letter that he was ready to defend himself and that

because of recent events, he could not allow Mr. Quezada to represent him.

Although, as the State points out, this letter also contains statements reflecting

appellant’s dissatisfaction with counsel, nowhere in the letter does appellant

vacillate in his stated desire to dismiss counsel and proceed pro se.

Accordingly, we agree with the trial court’s conclusion that appellant

unequivocally asserted his constitutional right to self-representation. See

Thaxton, 260 Ga. at 142 (finding defendant’s statement that he did not want

counsel to represent him and he would represent himself was an unequivocal

assertion of the right to self-representation). Compare Danenberg v. State, 291

Ga. 439, 440-441 (2) (729 SE2d 315) (2012) (defendant’s note to court asking

for time to dismiss trial counsel and replace them with retained counsel, a public

defender, or himself was not an unequivocal assertion of right to self-

representation).

      The trial court nevertheless denied appellant’s motion for new trial,


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finding that because appellant did not renew his request at the time of trial, it

was reasonable for the court to “assume that [appellant] no longer entertained

notions of representing himself.” We cannot agree with this conclusion for two

reasons. First, by proceeding to trial without holding a Faretta hearing, the trial

court gave no consideration to its responsibilities following appellant’s assertion

of his constitutional right.      When a defendant asserts the right to self-

representation, it is the responsibility of the trial judge to ensure that the

decision to dismiss counsel and proceed pro se has been knowingly and

intelligently made and that the defendant has made the choice to proceed

without the benefit of counsel with “eyes open.” See Faretta, 422 U.S. at 835;

Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981) (“the record should

reflect a finding on the part of the trial court that the defendant has validly

chosen to proceed pro se” and “that this choice was made after the defendant

was made aware of his right to counsel and the dangers of proceeding without

counsel.”).

      Second, the trial court’s finding that appellant failed to re-assert his right

to self-representation at the start of trial was insufficient, by itself, to establish

a proper waiver. “A waiver is ordinarily an intentional relinquishment or


                                          6
abandonment of a known right or privilege,” Taylor v. Ricketts, 239 Ga. 501,

503 (238 SE2d 52) (1977), and the determination of whether there has been a

valid waiver depends on the circumstances of each case. See id. Here, although

appellant initially was appointed counsel, he later unequivocally expressed his

desire to proceed without the benefit of counsel’s experience and training.

Regardless of the soundness of this decision, see Faretta, 422 U.S. at 834 (“[i]t

is undeniable that in most criminal prosecutions defendants could better defend

with counsel’s guidance than by their own unskilled efforts”), appellant clearly

asserted his right to represent himself, and he was constitutionally entitled to do

so as long as his decision was made knowingly and intelligently. Appellant’s

request to proceed pro se was virtually ignored by both the trial court and

counsel prior to trial, and relying only on appellant’s silence at the start of trial,

the trial court “assumed” appellant had waived his previously asserted right.

Under these circumstances, and especially because there was no affirmative

evidence that appellant wavered or equivocated in his desire to proceed pro se,

we find that appellant’s mere silence was insufficient to establish a knowing and

intelligent waiver of his already invoked right to self-representation. See

Carnley v. Cochran, 369 U.S. 506, 513 (82 SCt 884, 8 LE2d 70) (1962)


                                          7
(“Presuming waiver [of right to counsel] from a silent record is

impermissible.”); Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984)

(“Merely finding that a request for counsel was not made is insufficient to

establish waiver [of right to counsel]”). See also Moore v. Haviland, 531 F3d

393, 403-404 (6th Cir. 2008) (defendant’s responsiveness to questions posed by

counsel after assertion of right to proceed pro se was neither a withdrawal of his

previous requests to proceed pro se nor a waiver of his right to self-

representation). Compare McDonald v. State, 296 Ga. 643, 648-649 (3) (770

SE2d 6) (2015) (holding that defendant abandoned request to represent himself

where counsel confirmed on record and in defendant’s presence that defendant

wished to proceed with counsel); Potts v. State, 259 Ga. 96, 105 (28) (376 SE2d

851) (1989) (no denial of right to self-representation where accused

unequivocally withdrew his request to proceed pro se after having been

informed of the dangers).

      In summary, the record in this case shows that appellant unequivocally

asserted his right to self-representation and that his request to proceed pro se

was implicitly denied by the trial court without a Faretta hearing. The trial

court’s failure to engage in the required Faretta colloquy and failure to rule on


                                        8
appellant’s unequivocal request amount to a violation of his constitutional right

to self-representation. See Smith v. State, 332 Ga. App. 849, 853-854 (2) (775

SE2d 211) (2015). See also United States v. Hernandez, 203 F3d 614, 625 (9th

Cir. 2000) (holding that if trial court “fails to fulfill its obligation to inform the

defendant [of the dangers and disadvantages of self-representation] and then

denies his request to represent himself, it violates the defendant’s Sixth

Amendment right of self-representation”). His convictions, therefore, must be

reversed. See McKaskle v. Wiggins, 465 U.S. 168, 177 (III), n. 8 (104 SCt 944,

79 LE2d 122) (1984) (“Since the right to self-representation is a right that when

exercised usually increases the likelihood of a trial outcome unfavorable to the

defendant, its denial is not amenable to ‘harmless error’ analysis. The right is

either respected or denied; its deprivation cannot be harmless.”); Lamar v. State,

278 Ga. 150, 152 (1) (b) (598 SE2d 488) (2004) (reversing defendant’s

convictions based on trial court’s failure to hold a proper Faretta hearing after

assertion of right to self-representation); Sawyer v. State, 227 Ga. App. 493,

493-494 (1) (489 SE2d 518) (1997) (reversing defendant’s convictions where

record failed to show proper waiver of right to counsel and that defendant was

apprised of the dangers attendant to self-representation).

      Judgment reversed. All the Justices concur.


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