                               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

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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).

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      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


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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.




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