Simpson v. State

357 Ga.App. 883

852 S.E.2d 590

SIMPSON

v.The STATE.

A20A1686

Court of Appeals of Georgia.

December 9, 2020

Margaret Elizabeth Bullard, for Appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C. Armstrong, Assistant District Attorneys, for appellee.

Hodges, Judge.

A jury convicted Jacob Simpson of rape, two counts of aggravated sodomy, kidnapping, theft by taking, and aggravated assault with intent to rape as a result of sexual assaults and other crimes he perpetrated against two women. Simpson appeals, contending that the trial court erred in refusing him his right of self-representation and that he received ineffective assistance of trial counsel. For the reasons that follow, we affirm Simpson's convictions.

"On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Citation omitted.) Walker v. State , 349 Ga. App. 188, 825 S.E.2d 578 (2019).

Here, the evidence shows that on August 18, 2007, C. S. encountered Simpson, whom she knew from church, at a bus station. She invited Simpson to stay the night at her apartment so they could attend church together the following morning, which they did. Following church, the two got food together and returned to C. S.’s apartment. At that point, Simpson began acting erratically, telling C. S. that she should be his wife, that they should have sex, and pulling down her shirt in a way that exposed her breasts. C. S. was scared and uncomfortable, so she told him she did not want sex, but offered him a massage as a way to try to get him to calm down. Simpson told C. S. that he still wanted to have sex with her, but she said no. He then hit her and shoved her into her closet. He forced her to her knees to perform oral sex on him, then got a condom and raped her. At one point she tried to escape, but he hit her again.

Following this rape, Simpson took C. S.’s purse, keys, and phone. They then drove around in a blue Dodge Magnum owned by C. S.’s father's friend. Although Simpson had opportunities to escape, she did not do so because she did not want to have to admit to anyone what had just happened to her. Eventually C. S. and Simpson returned to her apartment and spent the night there. At one point, C. S. called her brother and reported to him that she had been raped and that she needed him to wire her money so that her attacker would release her. C. S. retrieved the wired money at a grocery store. Ultimately, C. S. came to the conclusion that she would not be able to appease Simpson into releasing her, and that she needed to escape. When they stopped near a fast food restaurant, she ran inside and reported the rape.

C. S. received a sexual assault examination at the hospital, at which time a vaginal swab was obtained. The emergency room doctor noted that C. S. had an abrasion on her lip, and she was tearful in recounting her ordeal. Testing of C. S.’s vaginal swab detected seminal fluid from Simpson.

Not long after C. S.’s escape, in the early morning hours of August 22, 2007, N. H., who was 17 at the time, was walking home from the store when she felt like she was being followed. Simpson pulled up next to her in a blue Magnum and offered her a ride, which she accepted. Instead of taking her in the direction of her home, Simpson drove her to an abandoned building, where he dragged her inside and placed her breast in his mouth, sodomized her, and forced her to perform oral sex on him.¹ After the assault, N. H. was able to memorize Simpson's licence plate number as he drove away, and she called police.

A sexual assault examination was performed on N. H., and swabs were taken. N. H. had an anal tear which appeared fresh and was consistent with sodomy. N. H. was sad and tearful during her examination. Analysis of swabs taken from N. H.’s rectum and breast revealed the presence of Simpson's DNA on N. H.’s breast, but not her rectum.

Simpson was subsequently apprehended driving the blue Magnum he stole from C. S. Police investigation determined that C. S. and N. H. did not know each other.

As a result of the assaults against C. S. and N. H., Simpson was charged with multiple crimes and appointed counsel. He filed a bar complaint against his initial appointed counsel, so the trial court appointed new counsel for trial. That attorney represented Simpson at his jury trial, which resulted in Simpson being convicted of rape, two counts of aggravated sodomy, kidnapping, theft by taking, and aggravated assault with intent to rape. Following the denial of his motion for new trial, Simpson appeals.²

1. Simpson contends that he was denied his right to self-representation at trial. We disagree.

It is well-settled that

[b]oth the federal and state constitutions guarantee a criminal defendant the right to self-representation. See Faretta v. California , 422 U. S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; 1983 Ga. Const., Art. I, Sec. I, Par. XII. An unequivocal assertion of the right to represent oneself, made prior to trial , should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation.

(Emphasis supplied.) Thaxton v. State , 260 Ga. 141, 142 (2), 390 S.E.2d 841 (1990).

Here, the following exchange occurred after the clerk read the names of the jurors selected for service:

CLERK: Your honor, this is our jury

COURT: All right. State, look upon the jury. Is this the jury selected by the State?

PROSECUTOR: It is, your honor.

COURT: All right. And is the manner of selecting the jury acceptable to the State?

PROSECUTOR: It is, your honor.

COURT: All right. Defense, look upon the jury. Is this the jury selected by the defense?

DEFENSE COUNSEL: Yes, your honor.

...

COURT: [Defense Counsel], look upon the jury.

DEFENSE COUNSEL: Yes.

COURT: Is this the jury that's been selected on behalf of the defendant?

DEFENSE COUNSEL: Yes, sir.

COURT: All right. And at this stage is the manner of selecting the jury acceptable to the defendant?

DEFENSE COUNSEL: Yes.

SIMPSON: No, it's not.

At this point the jury was removed from the courtroom. Defense counsel stated to the trial court that he sought Simpson's input on juror selection, but that Simpson did not offer much feedback; however, Simpson was dissatisfied with the jury ultimately selected. The trial court then let Simpson explain his concerns about jury selection, and tried to disabuse Simpson of misunderstandings he had about the process. At that point, the following exchange occurred:

COURT: You know, you want to represent yourself? I don't think so.

SIMPSON: I would love that.

COURT: Yeah, right.

SIMPSON: Yes. I promise you, I would love that because I would have been smarter. I would have known what to do. I would have in this case–

COURT: But you don't know what to do, that's the problem, sir.

SIMPSON: I think I know what to do better than what he's doing by selecting this.

COURT: Okay. Be quiet. Let's bring the jury in.

As a result of this exchange, Simpson contends on appeal that he was denied his constitutional right to represent himself. Although we discourage glib comments concerning self-representation like the trial court made here, we are not persuaded that Simpson's constitutional rights were violated. As mentioned above, a defendant's invocation of his right of self-representation must be both unequivocal and timely. Pretermitting whether the above exchange was an unequivocal attempt to assert the right to self-representation, we find that it was untimely.

Our Supreme Court clearly provided that, to be timely, a request must be made prior to trial. Thaxton , 260 Ga. at 142 (2), 390 S.E.2d 841 (holding that the trial court did not err in denying defendant's request to represent himself, which was made after the testimony of the State's third witness, because "a defendant cannot frivolously change his mind in midstream by asserting his right to self-representation in the middle of his trial") (citation and punctuation omitted). More specifically, this Court has found that a request for self-representation made after the jury was impaneled was untimely. Mallory v. State , 225 Ga. App. 418, 422 (4), 483 S.E.2d 907 (1997) (finding defendant's request to represent himself was untimely when made following jury selection and just prior to the State's opening statement).

Simpson focuses on the fact that the jury had not yet been sworn, and thus the line in the sand drawn by Mallory does not apply. The jury, however, is impaneled prior to the time it is sworn. Georgia law acknowledges that the impaneling of a jury is separate from the jury being sworn. See, e.g., Horton v. State , 310 Ga. 310, 317-318 (2), 849 S.E.2d 382, 391 (2020) ("The time for making a motion for mistrial is not ripe until the case has begun, and the trial does not begin until the jury has been impaneled and sworn.") (citation omitted; emphasis supplied); Hubbard v. State , 225 Ga. App. 154, 155, 483 S.E.2d 115 (1997) ("A defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled and a jury has been impaneled and sworn.") (citation and punctuation omitted; emphasis supplied). Pursuant to Mallory , Simpson's purported request to represent himself was untimely, and this enumeration provides no basis for reversal.³

2. Simpson also contends that he received ineffective assistance of trial counsel. We disagree.

In Georgia,

[t]o prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. Strickland v. Washington , 466 U. S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to meet his or her burden of proving either prong

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