Leaphart v. State

905 S.E.2d 4

LEAPHART

v.The STATE.

A24A1123

Court of Appeals of Georgia.

July 29, 2024

Brandon A. Bullard, Audra Marie Murphey, for Appellant.

Lee Darragh, Gainesville, Anna Victoria Fowler, for Appellee.

Mercier, Chief Judge.

Following his conviction for aggravated child molestation and the denial of his motion for new trial, Patrick Leaphart appeals, contending that the trial court erred by: (1) failing to conduct a Faretta hearing following his invocation of the right to represent himself, see Faretta v. California, 422 U. S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and (2) admitting certain testimony from the victim’s trauma therapist in contravention of OCGA § 24-4-403. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the evidence produced at trial shows that, in 2018, Leaphart was living with the eight-year-old victim and her mother, who was Leaphart’s fiancée at the time.¹ The victim testified at trial that, at a certain point during this cohabitation, Leaphart started "[doing] sex to me" and "put his dick into my private part." The victim recounted that, on one occasion in her bedroom, Leaphart pushed her onto the bed and sexually assaulted her. The victim further testified that she told Leaphart to stop because he was hurting her, but he refused. The victim also described similar abuse that occurred at her grandmother’s house and in Leaphart’s truck. She also recalled an instance of abuse during which Leaphart "[stuck] his dick into my butt."

While at summer camp, the victim made an outcry to a friend, telling her that she had been molested by Leaphart on multiple occasions. Though the victim asked her friend not to tell anyone, her friend disclosed the information to camp counselors.

Following the sexual encounters with Leaphart, the victim underwent both a forensic interview and therapy for post-traumatic stress.² The forensic interviewer testified that the victim recounted the acts of abuse with specific details and concluded that the victim’s disclosures and behaviors were "consistent with other children who have been traumatized and molested[.]" In addition, the trauma counselor testified that the victim had suffered trauma and that her "trauma symptoms were consistent with trauma symptoms that are commonly expressed."

1. Leaphart contends that he is entitled to a new trial because the trial court failed to properly conduct a Faretta hearing after he indicated that he wished to represent himself at trial. Because Leaphart did not unequivocally state his desire to represent himself, however, we disagree.

In relevant part, the record shows that, after his arrest, Leaphart was assigned a public defender, Chris van Rossem, to represent him. Leaphart thereafter hired his own lawyer, that lawyer withdrew, and the same public defender was reappointed. Shortly after that, Leaphart retained a second lawyer on his own, that lawyer also subsequently withdrew, and the same public defender was appointed a third time. At that point, Leaphart began filing a number of pro se motions, including a "petition for bail," and a demand for a speedy trial. In addition, Leaphart filed a motion to dismiss the public defender as his counsel, stating his belief that the public defender’s allegedly deficient representation "sends red flags & [does] not put me in a comfortable position to trust for trial." (Punctuation omitted.) Importantly, Leaphart’s motion made no assertion that he wished to represent himself, only that he wished for the dismissal of the public defender currently assigned to his ease.

The trial court considered Leaphart’s pro se filings at a status conference held on January 7, 2020,³ and, with regard to Leaphart’s request to represent himself, the following colloquy occurred:

THE COURT: Okay. So, Mr. Leaphart, it sounds like you’ve caused a lot of the delay by hiring different lawyers, so what’s your plan now?

LEAPHART: My plan is - the lawyer was hired because I figured that - it wasn’t moving, Your Honor. I was sitting. Wasn’t anything moving to get me to stick with [the public defender,] Mr. Chris van Rossem, so I said there’s got to be something that can be done because I’m just sitting and there’s not nothing happening. Here I am almost at 16 months and nothing have happened. The first trial was supposed to have been August the 19th. Yeah, August the 19th, but I have sat from September the 9th, 2018, up until then just nothing, Your Honor. Just absolutely nothing. I’m like - I’m just sitting there.

THE COURT: So what’s your plan?

LEAPHART: My plan is to get this dismissed.

THE COURT: Well, how are you supposed to do that without a lawyer? If Mr. van Rossem isn’t your lawyer, who is going to be your lawyer?

LEAPHART: Well, at this point if I can't -- as of now, I would like to go with myself.

THE COURT: Well, your charges are such -- I mean, we can go through all the rigamarole that needs to be done legally, but I’m not going to let you go without a lawyer. You have an aggravated child molestation which carries a mandatory minimum of?

PROSECUTOR: I would argue in this case life because the State had filed a 404, Judge, and I’d have to review to see if he’s actually a recidivist such that we would be asking you to sentence to life. The mandatory minimum even without that is 25 days [sic].

THE COURT: Very serious charges. I’m not letting you represent yourself, Mr. Leaphart. Somebody is going to be sitting there with you. So if you’re not going to hire somebody, you’re going to get the Public Defender’s Office.

(Emphasis supplied.) In other words, the trial court stated its intention to, at the least, assign backup counsel to sit with Leaphart at trial.

Later in the hearing, Leaphart’s counsel entered into the following discussion with the trial court:

MR. VAN ROSSEM: I do think either if we want to do it later this afternoon or at our January 28th PMR date - because he does have a right to represent himself that we -

THE COURT: Go through the -

MR. VAN ROSSEM: Go through -

THE COURT: -- factors? I’ll be glad to do that next time.

There is no indication, however, that the trial court ever went "through the factors" of self-representation (presumably, a Faretta hearing) with Leaphart. Instead, without further objection to representation by the public defender, Leaphart proceeded to trial. While it would have been a better practice for the trial court to hold a Faretta hearing after indicating that it would, the failure to do so was not reversible error under the specific facts of this case.

[1–5] It is settled that, under both the federal and Georgia constitutions, a criminal defendant has both the right to counsel and the right to self-representation. See Faretta, 422 U. S. at 819–820 (III) (A), 95 S.Ct. 2525; Ga. Const. of 1983, Art. I, Sec. I, Pars. XII, XIV; Taylor v. Ricketts, 239 Ga. 501, 502, 238 S.E.2d 52 (1977) ("A state may not force a lawyer upon an appellant when he insists that he wants to conduct his own defense. [Cit.]"). In order to protect the right to self-representation, a defendant’s unequivocal assertion of that right made prior to trial 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 (V), 95 S.Ct. 2525 (citation and punctuation omitted); Wiggins v. State, 298 Ga. 366, 368 (2), 782 S.E.2d 31 (2016). The improper denial of the right to self-representation is a structural error and requires automatic reversal. See McKaskle v. Wiggins, 465 U. S. 168, 177 (III) n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Oliver v. State, 305 Ga. 678, 680 (2), 827 S.E.2d 639 (2019) (same). If a defendant makes an equivocal request to represent himself or herself, however, a trial court does not commit reversible error by requiring the defendant to proceed with counsel without conducting a Faretta hearing. See, e.g., Danenberg v. State, 291 Ga. 439, 440-441 (2), 729 S.E.2d 315 (2012) (defendant's note to court asking 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). In summation, "[t]he 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." Id. at 440 (2), 729 S.E.2d 315 (citation and punctuation omitted).

[6] Here, Leaphart’s statement that "if I can’t - as of now, I would like to go with myself’ was an equivocal assertion of the right to self-representation. In Burney v. State, 309 Ga. 273, 279 (2), 845 S.E.2d 625 (2020), our Supreme Court found a similar request to be equivocal. There, the trial court encouraged the pro se defendant to retain counsel, but the defendant indicated that he knew what he was facing and that "as of right now" he wanted to "keep going" pro se. Id. at 280 (2), 845 S.E.2d 625. The defendant later met with attorneys from the office of the Georgia Capital Defender and agreed to be represented by them at trial. Id. Based on these facts, our Supreme Court concluded:

[The defendant’s] statement to the trial court that "as of right now" he was comfortable proceeding pro se was not an unequivocal invocation of his right to selfrepresentation, as the statement suggested that [the defendant] might reconsider that decision as his case progressed. Although [the defendant] now argues that he would have proceeded pro se throughout his case had the trial court determined at some point that he had made an intelligent, knowing, and voluntary waiver of his right to counsel, the record reflects that [the defendant] accepted the representation of

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