dissenting.
I respectfully dissent. The record here establishes that Wilkerson waived his right to counsel and was precluded from withdrawing that waiver during trial because of misinformation provided by the trial court to the effect that, by waiving counsel, Wilkerson could never change his mind and obtain assistance of counsel. As the majority properly recognizes, the trial court “erred in stating flatly that Wilkerson could not, if he waived his right to counsel, make a request for counsel once the trial began.” Majority Opinion, p. 204. There is thus no question that “the trial court’s erroneous statement *209— whether or not a defendant can later reverse his decision to represent himself — is not part of the required Faretta colloquy,” id., given the misleading and incorrect information conveyed in that statement. As a result of the trial court’s misinformation, Wilkerson did not knowingly and voluntarily waive his right to counsel.
Although the majority acknowledges the trial court’s error, it then mistakenly concludes that Wilkerson is barred from asserting this error on appeal because of his “failure to object to the trial court’s statement or to make a post-waiver request for counsel.” Id. Turning first to Wilkerson’s “failure to object,” to the extent the majority’s holding is predicated upon Wilkerson’s own silence when the trial court made this misstatement,3 the transcript is clear that, at the time of the misstatement, Wilkerson was still technically represented by counsel because the trial court had not yet authorized him to proceed pro se. Thus, Wilkerson had no right to independently conduct his own defense. See Ware v. State, 267 Ga. 510 (2) (480 SE2d 599) (1997) (defendant who is represented by counsel does not have the right to independently conduct his own defense).
That leaves the majority’s reliance on the failure by defense counsel to object to the trial court’s misstatement. Although Faretta has been the law now for over thirty years, the majority cannot cite to one single case in which a Faretta error was deemed waived due to defense counsel’s failure to object. None of the cases on which the majority relies involved Faretta hearings. The only discussion of the issue my research has uncovered was a comment by the Court of Appeals for the Ninth Circuit, that
[ajlthough it is the ultimate responsibility of the district court to ensure that the defendant is advised of dangers and disadvantages of proceeding pro se, the United States Attorney has an obligation to call the court’s attention to any omissions in this regard. Similarly, where defense counsel is present at a hearing on a motion to proceed without counsel of record, it is not inappropriate for counsel to make suggestions relating to Faretta requirements.
(Emphasis supplied.) United States v. Hayes, 231 F3d 1132, 1139 (9th Cir. 2000).
The Ninth Circuit’s “not inappropriate for counsel to make suggestions” standard is a far cry from the majority’s holding that defense counsel “had a duty to object to the trial court’s erroneous statement” during Wilkerson’s Faretta hearing. Majority Opinion, p. *210206. The difference, however, is readily explained by the fact that the majority’s requirement effectively eviscerates Faretta. Under the majority’s rationale, any error in the colloquy required by Faretta would be procedurally barred whenever defense counsel fails to object on behalf of the defendant prior to the trial court’s determination that the defendant could proceed pro se. Thus, even in a situation where the trial court utterly fails to apprise the defendant of the “dangers and disadvantages” inherent in representing himself “so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open,’ [cit.]” Faretta, supra, 422 U. S. at 835 (V), the majority would hold that such an error could not be reviewed absent an objection by defense counsel. I disagree with the majority on this issue and would instead recognize that the lack of an objection by defense counsel does not procedurally bar review of those errors committed by the trial court during a Faretta hearing that result in a defendant losing the assistance of counsel in a manner that was not knowing and intelligent.
It is the State’s burden to prove that a defendant received sufficient and correct information and guidance from the trial court upon which to knowingly and intelligently relinquish his constitutional right to the assistance of counsel. See Carnley v. Cochran, 369 U. S. 506 (82 SC 884, 8 LE2d 70) (1962); Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1938); Jones v. Wharton, 253 Ga. 82 (316 SE2d 749) (1984). Although, in its footnote 2, the majority intimates that the incorrect information provided by the trial court here was harmless because it could have served only to dissuade Wilkerson initially from proceeding pro se (which it clearly did not), the majority fails to recognize that the harm caused by the misinformation was not merely the effect it had on Wilkerson at the beginning of trial but also its subsequent impact during trial at which time, after realizing he was woefully incapable of representing himself, he erroneously believed he was irrevocably bound by his decision to waive counsel. Hence, I disagree with the majority that Wilkerson is barred from asserting the trial court’s error on appeal because of his “failure ... to make a post-waiver request for counsel.” Majority Opinion, p. 205. The majority insists that Wilkerson, by “ignoring” the trial court’s information about hybrid representation when he later asked that counsel be allowed to help him at trial, is now procedurally barred from challenging the trial court’s misinformation about withdrawal of his waiver because Wilkerson could not have been “inhibited” from likewise “ignoring” that misinformation as well. The majority cites no authority to support its holding and, indeed, relies on the fact that standby counsel apparently compounded the trial court’s error by failing to correct the misinformation given Wilkerson when they discussed *211Wilkerson’s pro se performance at trial.4 See Majority Opinion, p. 207. I do not agree that Wilkerson’s action in disregarding one directive at trial can be used to justify penalizing him on appeal for not also challenging the misinformation at issue here. Rather, a more reasonable explanation for Wilkerson’s behavior at trial is that, having asked and been rebuffed on his request to obtain counsel’s partial assistance in his defense, the trial court’s misinformation led Wilkerson to conclude it would be utterly futile to ask for counsel to assume total control of his defense.
Decided November 23, 2009. Derek H. Jones, for appellant. Patrick H. Head, District Attorney, John R. Edwards, Dana J. Norman, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Amy E. Hawkins Morelli, Assistant Attorney General, for appellee.For these reasons I must reject the majority’s holding that Wilkerson’s objection to the trial court’s misinformation is procedurally barred. Instead, based on my agreement with the majority that the trial court erred by misinforming Wilkerson about the withdrawal of his waiver of his right to counsel, I would conclude that the trial court’s misinformation precluded a valid waiver, thereby mandating reversal of the judgment in this case.
I am authorized to state that Justice Benham joins in this dissent.
See, e.g., Majority Opinion, p. 206, “[nleither counsel nor Wilkerson objected at the time the statement was made.” (Emphasis supplied.)
Wilkerson, of course, is barred from raising any complaints about the effectiveness of standby counsel on appeal. Mullins v. Lavoie, 249 Ga. 411 (290 SE2d 472) (1982).