Vivian v. State

312 Ga. 268

862 S.E.2d 138

VIVIAN

v.The STATE.

S21A0877

Supreme Court of Georgia.

Decided: August 10, 2021

Benjamin A. Davis, Jr., 3455 Peachtree Road, Suite 500, Atlanta, Georgia 30326, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, Marc A. Mallon, Senior A.D.A., Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30303, for Appellee.

McMillian, Justice.

Nathaniel Vivian appeals his convictions for felony murder and related crimes in connection with the shooting death of Daniel Zeitz.¹ Vivian contends on appeal that the trial court erred in failing to advise him of his right to represent himself at trial and asserts that he received ineffective assistance of counsel based on his trial counsel's failure to (1) object to the introduction of his and his co-defendant's cell phones as exhibits at trial; (2) object to an alleged non-unanimous verdict on the charge of possession of a firearm during the commission of a felony; (3) challenge the grand and petit jury composition; and (4) request a jury instruction on mere association. We conclude that there is no merit to these arguments, but because the trial court erred in sentencing Vivian on two separate counts of felony murder, we vacate those convictions and remand the case to the trial court for resentencing.

The evidence at trial showed that on the afternoon of September 12, 2014, Vivian texted Zeitz to inquire about a PlayStation 4 gaming console that Zeitz had listed for sale on Craigslist. The two men arranged to meet that night at Zeitz's apartment in Sandy Springs. At around the same time, Kayla Dixon, who was Vivian's girlfriend, texted Vivian, "U wanna rob him," and Vivian replied, "Yea." Over the next two hours, Vivian and Dixon texted each other to discuss how they would rob Zeitz, including who would hold the gun they planned to bring with them, with Vivian suggesting that Dixon hold the gun and Dixon suggesting that Vivian point the gun at Zeitz.

Around 9:12 p.m. that night, Vivian texted Zeitz to say he was outside Zeitz's apartment, and Zeitz replied by text to say that he was "[c]oming out now." Vivian later told the police that when Zeitz came to the car, Vivian took the gaming console from him. Zeitz then grabbed Vivian's steering wheel, and Dixon shot the gun, injuring Vivian's hand. Vivian and Dixon left the scene and drove to Northside Hospital to get medical treatment for Vivian.

Around 9:30 p.m., Sandy Springs Police officers responded to a "person-down" call and discovered Zeitz lying dead in the parking lot of his apartment complex. Meanwhile, a Brookhaven Police officer responded to a report of a patient with a gunshot wound to the hand at Northside Hospital. The Brookhaven officer identified the patient as Vivian and asked him what had happened. Vivian said that he had been shot at an apartment complex in Brookhaven (the "Brookhaven apartment"). Vivian told the officer that he was not sure who had shot him, that Dixon had driven him to the hospital, and that she was outside in the hospital parking lot.

The officer arranged to meet Dixon in the parking lot. Dixon arrived for the meeting in Vivian's car and appeared to be very distressed as she exited the car with her child. The officer observed a large amount of blood inside the car and asked Dixon what happened. Dixon replied that Vivian had been shot in the hand in the Brookhaven apartment's parking lot. Dixon said that she had taken a gun out of the glovebox, dropped it, and then put it back, and that she might have shot the gun but was not sure. She told the Brookhaven officer that the gun was in the car's glovebox. The officer then returned to the hospital and obtained Vivian's written permission to search the car. During that search, the police recovered a gun from the glovebox and a PlayStation gaming console from the trunk.

When a Brookhaven Police detective spoke with Vivian inside the hospital about his injuries, Vivian first told the detective that he and Dixon had gone to the Brookhaven apartment to pick up some of Dixon's friends, and that while speaking with some men there, Vivian heard a gunshot, jumped back in his car, and only later realized he had been shot. However, Vivian eventually admitted to taking a gaming console and said that Dixon had shot him accidentally as they were trying to leave the scene. After Vivian revealed that the shooting occurred at Zeitz's apartment in Sandy Springs, the detective contacted the Sandy Springs police and transferred the case to them.

Vivian and Dixon were subsequently taken into custody and transported to the Sandy Springs Police Headquarters. During an interview there with a Sandy Springs Police detective, Vivian admitted that he and Dixon planned to steal the PlayStation. It was during this interview that Vivian said that when he took the PlayStation console, Zeitz grabbed the steering wheel of Vivian's car, and Dixon fired the gun. Police recovered Vivian's cell phone from his pocket and discovered messages between Vivian and Zeitz relating to the sale of the PlayStation on Craigslist. In addition to the text messages, an analysis of Vivian's phone revealed a "fake number texting app"² and a September 5, 2014 internet search for "how to rob someone."

The medical examiner testified that Zeitz suffered a gunshot wound to the right side of his neck, resulting in his death, and the gun found in Vivian's car was later matched to a shell casing found at the scene of Zeitz's shooting.

1. Vivian first asserts that the trial court erred by failing to conduct a hearing on his request for new counsel and advise him that he had the right to represent himself at trial if he was dissatisfied with his appointed counsel.

Prior to jury selection on the scheduled trial date, Vivian requested a hearing for new counsel. When the trial judge asked Vivian to state his complaint with his appointed trial counsel, Vivian replied, "Well, for one I just found out about this trial on Wednesday [the day before]. That's not enough time to prepare for a trial." The judge responded it was trial counsel, not Vivian, who had to prepare for trial. Vivian then said that he would have liked for his family to have been here "and stuff like that." After the trial judge explained that the first day would primarily involve selecting a jury and that Vivian's family was welcome to come for the rest of the trial, Vivian replied, "All right." And when the trial judge asked Vivian if he had any other complaints, Vivian stated, "That's it for right now."

The trial judge then told Vivian that he was always welcome to hire a lawyer, but the trial had been specially set, the jury was waiting, and they were prepared to go forward. In response, Vivian asked, "What are my options?" The trial judge replied that Vivian had the option to proceed to trial, where he was facing an overall life sentence plus five years, or to seek to negotiate a guilty plea before the trial began. However, the trial court indicated that the trial would begin shortly because it had been specially set, jurors were present, and the proceedings were already running late. Vivian responded: "Okay. We can go ahead."

Vivian argues, citing Nelson v. State , 274 So.2d 256 (Fla. Dist. Ct. App. 1973), that the trial court erred in failing to inform him that he also had the option of representing himself at trial. According to Vivian, following the reasoning set forth in Nelson , the State of Florida now mandates that a defendant receive a hearing upon request to determine whether he is being adequately represented. He asserts that defendants in Georgia likewise are entitled to a hearing to determine whether they can discharge appointed counsel, even if that means a defendant must represent himself. Therefore, he contends that after determining that Vivian was being adequately represented, the trial judge should have informed Vivian that he had a right to represent himself. We disagree.

The right of a criminal defendant to self-representation is guaranteed by the Sixth Amendment to the United States Constitution.³ See Faretta v. California , 422 U.S. 806, 819 (III) (A), 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; Burney v. State , 309 Ga. 273, 279 (2), 845 S.E.2d 625 (2020) ; Wiggins v. State , 298 Ga. 366, 368 (2), 782 S.E.2d 31 (2016).

To avail himself of this right, a defendant must clearly and unequivocally assert his desire to represent himself. If an unequivocal invocation is made, it 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.

Burney , 309 Ga. at 279-80 (2), 845 S.E.2d 625 (citation omitted). But in the absence of a clear and unequivocal expression of a desire for self-representation, the trial court is not required to hold a hearing. See id. ; Oliver v. State , 305 Ga. 678, 680 (2), 827 S.E.2d 639 (2019).

Here, Vivian made no assertion of a desire to represent himself at trial. To the contrary, Vivian asked for a hearing for "new counsel." Therefore, the trial court was not required to hold a hearing to address the issue of self-representation in this case. Vivian has not identified, nor could we locate, any binding authority requiring trial courts in this State to inform a defendant sua sponte of the option to represent himself when he or she merely asks for new counsel, and we see no reason to adopt Nelson . Accordingly, we discern no error.

2. Vivian further argues that the trial court erred in failing to grant his motion for new trial based...