SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, 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
March 6, 2020
In the Court of Appeals of Georgia
A19A2220. FAULKNER v. THE STATE.
RICKMAN, Judge.
Following a traffic stop and subsequent vehicle search, Cameron Allen
Faulkner was charged by accusation with theft by receiving a stolen firearm, criminal
use of an article with an altered identification mark (the firearm), possession of less
than one ounce of marijuana, and possession of a firearm by a convicted felon.
Faulkner represented himself prior to and during trial, and the jury found him guilty
on all counts of the accusation. On appeal, through counsel, Faulkner contends that
the trial court abused its discretion by instructing Faulkner at a pretrial hearing that
it was too late to challenge the legality of the traffic stop and that the trial court erred
by approving Faulkner’s request to represent himself. For reasons that follow, we
reverse.1
On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d
560) (1979). So viewed, the evidence presented at trial showed that on May 3, 2016,
an officer with the Douglasville police department observed a vehicle driven by
Faulkner exceeding the posted speed limit of 70 miles per hour and making several
lane changes to overtake other vehicles that were traveling in the fast lane; these
actions prompted the officer to initiate a traffic stop for speeding. When the officer
approached the vehicle, he informed Faulkner of the reason for the stop and asked for
identification. The officer testified that Faulkner acknowledged that he was driving
80 to 82 miles per hour. Faulkner gave the officer his Mississippi driver’s license and
explained that he was driving a rental vehicle because his vehicle was being repaired
and that he was in Atlanta visiting his girlfriend. Faulkner told the officer that he had
been using the rental vehicle for several days. The officer testified that Faulkner was
unable to focus on the questions being asked, that he looked uncomfortable, and that
his breathing was inconsistent with a person who was sitting down. The officer asked
1
The State’s motion to dismiss Faulkner’s appeal as untimely is denied.
2
Faulkner to step to the rear of the vehicle while he filled out paperwork and to assist
him with any questions he might have.
While Faulkner was out of the car, the officer asked him a series of questions.
First, he inquired whether Faulkner had any weapons, and after initially hesitating,
Faulkner said “no.” The officer next asked if there was anything illegal in the vehicle,
and Faulkner responded that he was not involved in anything like that. The officer
then asked if Faulkner had any marijuana. Faulkner’s initial response was, “do I look
high?” He later said no, repeatedly. Faulkner then refused to allow the officer to
search the vehicle without a warrant. At that point, the officer was waiting for another
officer to arrive. During this time, he was checking Faulkner’s license through the
State’s database.
Two more officers arrived, and one had a canine trained in detection who
walked around the vehicle and ultimately alerted on the driver’s side front door. The
first officer then began searching the vehicle. During the search, the officer found,
among other items, a firearm with an altered serial number that had been reported
stolen from a pawnshop in Mississippi and a plastic bag containing marijuana.
Faulkner testified and challenged the first officer’s testimony about whether the
rental car was rented in his name and the officer’s testimony that Faulkner was
3
speeding. Faulkner also testified that the firearm could not belong to him because his
fingerprints were not on it.2
The jury found Faulkner guilty of theft by receiving a stolen firearm,3 criminal
use of an article with an altered identification mark (the firearm),4 and possession of
less than one ounce of marijuana.5 The State then presented evidence of Faulkner’s
prior conviction for possession of more than an ounce of marijuana and the jury found
Faulkner guilty of the remaining count, possession of a firearm by a convicted felon.
2
An investigator from the Douglas County sheriff’s office sought to obtain
fingerprints from the firearm, but was unsuccessful.
3
“A person commits the offense of theft by receiving stolen property when he
receives, disposes of, or retains stolen property which he knows or should know was
stolen unless the property is received, disposed of, or retained with intent to restore
it to the owner. ‘Receiving’ means acquiring possession or control or lending on the
security of the property.” OCGA § 16-8-7 (a).
4
“A person commits the offense of criminal use of an article with an altered
identification mark when he or she buys, sells, receives, disposes of, conceals, or has
in his or her possession a . . . firearm . . . from which he or she knows the
manufacturer’s name plate, serial number, or any other distinguishing number or
identification mark has been removed for the purpose of concealing or destroying the
identity of such article.” OCGA § 16-9-70 (b).
5
“It shall be unlawful for any person to possess, have under his or her control,
manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with
intent to distribute marijuana.” OCGA § 16-13-30 (j) (1).
4
Faulkner obtained court-appointed counsel to handle his appeal, and his
counsel filed a motion for new trial in which he challenged the sufficiency of the
evidence and asserted an unnamed error by the trial court. He later waived his right
to a hearing on the motion for new trial. The trial court denied the motion for new
trial, concluding that the evidence of Faulkner’s guilt was overwhelming and that
Faulkner’s defense that he is a Moorish National who is not subject to the laws of the
United States is not valid.6
1. Faulkner contends that the trial court erred by approving his request to
represent himself because the waiver colloquy was insufficient. He argues that his
answers to the waiver form employed by the court show that his waiver was not
knowing and intelligent.
“[T]he federal and state constitutions guarantee a criminal defendant both the
right to counsel and the right to self-representation.” Wiggins v. State, 298 Ga. 366,
368 (2) (782 SE2d 31) (2016). When a defendant unequivocally asserts his right to
self-representation prior to trial, that assertion “must be followed by a hearing to
6
Faulkner objected during the State’s opening argument that the charge against
him was null and void because the trial court had not responded to a document on
“Moorish National Republic” letterhead challenging the court’s jurisdiction and
seeking production of a certified “delegation of authority order.”
5
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.” (Citations and punctuation omitted.)
Martin-Argaw v. State, 343 Ga. App. 864, 867 (2) (806 SE2d 247) (2017); see also
Faretta v. California, 422 U.S. 806, 835 (V) (95 SCt 2525, 45 LEd2d 562) (1975).
The trial judge is not required to use any particular language to inform the defendant
of his right to counsel and the dangers of self-representation; “[t]he record need only
reflect that the accused was made aware of the dangers of self-representation and
nevertheless made a knowing and intelligent waiver.” Wayne v. State, 269 Ga. 36, 38
(2) (495 SE2d 34) (1998). The State bears the burden of proving that a defendant’s
waiver of counsel is valid, and there is a presumption against waiver. See Saunders
v. State, 347 Ga. App. 84, 85 (2) (815 SE2d 622) (2018). We review the trial court’s
ruling on the waiver issue for abuse of discretion. See Pugh v. State, 347 Ga. App.
710, 712 (1) (820 SE2d 766) (2018).
Prior to Faulkner’s trial, the trial court held a representation status hearing.
When asked if he was going to represent himself, Faulkner responded, “Yes, I will
be representing myself in propria persona sui juris. . . .” The trial court then went
6
through the offenses alleged in each count of the accusation and had counsel for the
State inform Faulkner of the maximum penalty for each offense. After confirming that
Faulkner could read the English language, the trial court provided Faulkner with a
document intended to explain the risks of self-representation. The trial court inquired
further and learned that Faulkner had no legal training and no knowledge of the Rules
of Evidence. Next, the trial court stated,
I’m just going over your rights, want to make sure you know what
you’re up against. And when you undertake to represent yourself, you
don’t get any special treatment. You’re governed by these same rules
that he’s under, and I’m pointing to . . . the prosecutor. You don’t get
any special treatment. You have to conduct yourself just like a lawyer
would in the case. And the Court would apply those rules, the Rules of
Evidence, the Rules of Criminal Procedure in the trial. . . . I don’t know
if you just don’t want to hire a lawyer. If you can’t afford a lawyer, of
course, the Court would appoint a lawyer for you if you wanted me to
do that, and if you qualified, so I just encourage you to think about that.
As I say, there are a lot of disadvantages to self-representation. Those
are all explained in this – it’s called a Faretta waiver. . . . I just want you
to read over this and then mark on it, answer the questions, sign it and
return it to me, and then I’ll sign it and that will let you proceed to
represent yourself.
7
The waiver form that Faulkner filled out asked for background information,
and included a series of yes or no questions that addressed the disadvantages of self-
representation, the advantages of having a lawyer, his understanding of the charges
against him, and the waiver of his right to have a lawyer represent him. Both
Faulkner7 and the trial judge signed the form, and above the judge’s signature is a pre-
printed statement that provides in part, “[t]he Court finds that the defendant made a
knowing, intelligent and voluntary waiver of the right to counsel and is granted the
opportunity to represent himself.” Faulkner contends that certain of his answers show
that his waiver was not knowing and voluntary, such as his responses that he had not
received a copy of the accusation and that he did not understand the charges against
him. In addition, in response to the question, “Why do you think you could do a better
job than a lawyer in representing you in this case?,” Faulkner responded, “Not better
than lawyer but aware of status of jurisdiction.” And when asked, “Do you
specifically waive your right to have a lawyer represent you in this case?,” Faulkner
wrote, “No, but I agree to address the court on behalf of the entity Cameron Faulkner
7
After his signature, Faulkner added “All rights reserved, Flesh and Blood
being, In propia-persona sui juris; U.C.C. 1-207/1-308; U.C.C. 1-103.”
8
to hear his case in propia sui juris.” The record does not indicate that the trial court
asked Faulkner about any of these responses.
At a subsequent hearing on Faulkner’s representation status, the trial court
announced that Faulkner’s case had been placed on a jury trial calendar and asked
Faulkner if he was going to represent himself. Faulkner responded, “At the moment,
I’m still consulting with my counsel members on how we [are] going to proceed with
the process and I asked him could we put it off until like September.” The trial court
then asked, “Well, I had understood you were going to represent yourself on this trial.
Aren’t you going to represent yourself? Didn’t you tell me that?” Faulkner responded,
“Yes, sir.” Approximately three months later, on the first day of trial, the trial court
issued an order which stated that Faulkner had freely and voluntarily chosen to
represent himself in this case and outlined certain rules of conduct for the trial.
The State may carry its burden of proving a valid waiver “through either a trial
transcript or other extrinsic evidence, including an appropriate pretrial waiver form.”
(Citation and punctuation omitted.) Banks v. State, 332 Ga. App. 259, 260 (1) (772
SE2d 57) (2015). We consider the full record on appeal to determine whether the
State has met its burden. See Rutledge v. State, 351 Ga. App. 355, 360 (a) (829 SE2d
176) (2019); Holt v. State, 244 Ga. App. 341, 344 (1) (535 SE2d 514) (2000). Waiver
9
will not be “lightly presumed,” and a trial judge must “indulge every reasonable
presumption against waiver.” (Citations and punctuation omitted.) Callaway v. State,
197 Ga. App. 606, 607 (398 SE2d 856) (1990) . The determination of whether the
defendant’s waiver was knowing and voluntary depends upon the unique facts and
circumstances in each case, and “a trial judge must investigate as long and as
thoroughly as the circumstances of the case before him demand” to make that
determination. (Citation and punctuation omitted.) Davis v. State, 279 Ga. App. 628,
630 (1) (631 SE2d 815) (2006).
Here, Faulkner was provided information through the pretrial waiver form and
via communication with the trial court and the State. He contends that the three
previously mentioned responses on the waiver form demonstrate that his waiver was
not knowing and voluntary. Those responses indicate that Faulkner did not
understand the charges against him and did not waive his right to have a lawyer
represent him in this case. Although the trial court did inform Faulkner of the charges
against him, the court did not provide any detail and Faulkner stated that he had not
read or been given a copy of the accusation outlining those charges. In addition,
Faulkner responded “No” when asked if he waived his right to counsel, but qualified
his answer to provide that he would address the court on his own behalf.
10
To prove a knowing and intelligent waiver of the right to counsel, “[t]he record
should reflect a finding by the trial court that the defendant has elected to proceed pro
se and should show that this choice was made after the defendant was made aware of
his right to counsel and the dangers of proceeding without counsel.” Davis, 279 Ga.
App. at 630-631 (1). The challenged responses on the pretrial waiver form do not
show that Faulkner clearly made the choice to proceed pro se after he was informed
of his right to counsel and the dangers of proceeding without counsel. Also unclear
is Faulkner’s response to the trial court’s questions about self-representation during
the second representation status hearing. Initially, when asked if he was going to
represent himself at trial, Faulkner said that he was still considering how to proceed
and that he had asked for a continuance. When the trial court told Faulkner that its
understanding was that Faulkner was going to represent himself, followed by “Aren’t
you going to represent yourself? Didn’t you tell me that?,” Faulkner’s response was
yes, which could have been responsive to either or both questions. If only responsive
to the second question, Faulkner’s response could indicate that although he had
previously told the trial court that he wanted to represent himself, he was currently
unsure how to proceed.
11
We are sympathetic to the frustration experienced by the trial court in dealing
with a pro se defendant who refused to provide straightforward responses on several
pretrial issues under the guise of asserting “sovereign citizen” type arguments. And
we recognize that when presented with similar theories of individual sovereignty and
immunity from prosecution based on an individual’s claimed status of descent, be it
as a “sovereign citizen” or a “flesh-and-blood human being,” federal courts and this
court have determined that such theories should be rejected summarily, however they
are presented. See United States v. Benabe, 654 F3d 753, 767 (II) (B) (1) (7th Cir.
2011); Brown v. State, 346 Ga. App. 245, 247 (4) (816 SE2d 111) (2018)
(“Defendants claiming to be ‘sovereign citizens’ assert that the government is
illegitimate and insist that they are not subject to its jurisdiction. The defense has no
conceivable validity in American law.”) (citation and punctuation omitted); see also
United States v. James, 328 F3d 953, 954 (7th Cir. 2003) (rejecting argument that
Moorish national not required to respect the laws of this nation); Trevino v. Fla., 687
FApp’x 861, 862 (I) (11th Cir. 2017) (legal arguments, including that a person is
beyond a court’s jurisdiction because he is a “flesh and blood human being,” are
frivolous); Perkinson v. Georgia, No. 5:19-CV-00113-MTT-CHW, 2019 WL
2583513, at *2 (M.D. Ga., June 24, 2019) (“A so-called ‘sovereign citizen’ generally
12
relies on the Uniform Commercial Code (‘UCC’), admiralty laws, and other
commercial statutes to argue that, because he has made no contract with the court or
government, neither entity can foist any agreement upon him”; this frivolous legal
theory has been consistently rejected by federal courts) (citation and punctuation
omitted); United States v. Smalls, No. 2:16-CR-950, 2018 WL 6065383, at *3
(D.S.C., Nov. 20, 2018) (joining majority of courts that have found no validity to
claims that the court lacks jurisdiction over a defendant due to his status as a Moorish
National). The rejection of these types of arguments does not, however, alter the
required analysis of the waiver of counsel issue.
Here, the trial court did not investigate as long and as thoroughly as the
circumstances of the case before him demanded to determine whether Faulkner’s
waiver was knowing and voluntary. A cursory review of Faulkner’s answers on the
waiver form would have revealed the potential problems with the responses at issue
that could have been addressed by asking Faulkner about them during one of the
hearings on his representation status. Given the presumption against waiver, the
record before us does not show that Faulkner intentionally relinquished his
constitutional right to counsel. See Saunders, 347 Ga. App. at 87 (2).
13
We now consider whether the State has shown that it was harmless to allow
Faulkner to represent himself under these circumstances. See McDaniel v. State, 327
Ga. App. 673, 680 (1) (c) (761 SE2d 82) (2014) (State bears burden of showing that
error did not contribute to the verdict). “We have repeatedly found that the trial
court’s failure to establish a valid waiver of counsel was not harmless where the
record showed that the defendant did not mount an able defense—even though the
evidence of guilt was ample.” (Citation and punctuation omitted.) Saunders, 347 Ga.
App. at 88 (2). Faulkner did not mount an able or even coherent defense in this case,
as evidenced by his ineffective cross-examinations and rambling testimony. For
example, during his cross-examination of the State’s main witness, the first officer,
Faulkner insisted that the court replay a portion of a video recording of the traffic stop
where Faulkner confirmed that he was exceeding the speed limit, suggested that the
officer might have stopped him because of his skin color and hairstyle, asked
numerous questions about whether the car rental agreement was in his name (which
was not an issue in the case), and suggested that the officer was lying under oath and
might have planted the gun in the trunk. And during his own brief testimony,
Faulkner switched topics several times but continued to focus on whether the first
officer was dishonest when he testified that Faulkner told him that he had rented the
14
car he was driving, despite the trial court’s repeated instruction that the rental car
issue was not relevant. Under the circumstances, we find that the State failed to meet
its burden of demonstrating harmless error. See McDaniel, 327 Ga. App. at 682 (1).
We therefore reverse and remand this case “for the trial court to inquire as to whether
[Faulkner] wants an attorney from that point forward, and whatever h[is] election, for
the case to be retried.”8 Saunders, 347 Ga. App. at 87 (2).
2. Faulkner contends that the trial court abused its discretion by instructing him
at a pretrial Jackson-Denno9 hearing that it was too late to raise a suppression issue.
He argues that the time for motions had not expired because Faulkner had not been
formally arraigned when he challenged the legal basis for the vehicle search. Given
our holding in Division 1, we need not address this issue.
Judgment reversed. Miller, P. J., and Reese, J., concur.
8
The evidence was sufficient under the standard of Jackson v. Virginia, 443
U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and the case may be retried upon
remand. See Garduno v. State, 299 Ga. App. 32, 33 (2), n.4 (682 SE2d 145) (2009).
9
Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LEd2d 908) (1964).
15