dissenting.
I respectfully dissent because (1) existing precedent dictates that the trial court erred when it failed to make any determination, on the record, that Brooks voluntarily and knowingly waived his right to counsel, (2) the majority fails to employ the proper analysis of constitutional error, i.e., was the error harmless beyond a reasonable doubt, and (3) the trial court’s error was not harmless beyond a reasonable doubt. Because the majority opinion also relies upon speculation and overstates the facts shown by the record, this dissent must also include a summary of.the facts.
I. The Facts
The State contends in its brief that “the Solicitor” inquired, prior to any plea, whether Brooks had read and understood a “Rights and Information Form.” The State further alleges that a notation that Brooks had read and understood the form was made on the face of the form. Although there is a handwritten notation “Read Understood No Questions 1/19/99” on the form, followed by illegible initials, there is no evidence in the record showing, as the majority states, that “Ben Kirbo, Solicitor General of Decatur County State Courts,” wrote this notation. Likewise, the record does not contain the alleged conversation between the solicitor and Brooks outlined in the State’s brief. Nor does it show that this notation was made by or in the presence of the trial court. Finally, this form was never signed by Brooks.
The majority points to another form titled “Record of Plea” that was also signed by Brooks on January 19, 1999. It omits the fact that because Brooks did not go through with the guilty plea, the trial court never signed the following portion of the preprinted form:
FINDINGS BY THE COURT
I have satisfied myself that this Defendant’s plea(s) of guilty and/or nolo contendere is/are free and voluntary and he/she *254is in possession of his/her faculties and is able to understand the nature and consequences of his/her plea(s). I have also determined that this Defendant understands he/she has the right to assistance of counsel at this plea proceeding, and if not represented, knowingly, voluntarily, and intelligently waived that right. I have further determined that any waiver of jury trial by this Defendant is made knowingly, voluntarily and intelligently. The Court is satisfied that there has been a sufficient factual basis shown for acceptance of this/these plea(s) and that the Defendant understands the consequences of the plea(s).
(Emphasis supplied.) Finally, the majority neglects to mention that both the record and the transcript of the trial show no discussion whatsoever between the trial court and Brooks about his decision to represent himself. Instead, the trial court simply asked him if he planned to present any witnesses and whether he intended to testify at the beginning of the trial. When Brooks replied that he did plan to testify, the trial court instructed that the oath be administered to him and started the trial.
II. The Trial Court’s Error
In 1981, our Supreme Court held that in all future cases where a criminal defendant represents himself, “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se.” Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981).
The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.
(Citations and punctuation omitted.) Hamilton v. State, 233 Ga. App. 463, 466 (1) (b) (504 SE2d 236) (1998).
In Braswell v. State, 240 Ga. App. 510 (523 SE2d 904) (1999), we addressed whether a trial court erred when it failed to abide by this mandate. In Braswell, as in this case, “[t]he transcript reflects that the trial court did not ask [the defendant] a single question about [his] need for counsel or [his] readiness for trial.” Id. The State in Braswell also argued that a lengthy preprinted document signed by the defendant demonstrated a valid waiver of the right to counsel. *255We rejected this argument, finding that although the documents were evidence that the defendant “was informed of her right to counsel by the solicitor, her adversary, it is hardly evidence that the trial judge fulfilled his duty to determine whether Braswell knowingly relinquished that right.” (Emphasis in original.) Id. at 511.
Likewise, in Strozier v. State, 187 Ga. App. 16, 17 (1) (369 SE2d 504) (1988), we held that a trial court erred when it failed to make a determination on the record that the defendant in a criminal trespass case had voluntarily and knowingly chosen to proceed pro se. In Strozier, we found the trial court erred by not making the required determination, even though the defendant signed a “waiver of counsel” form that stated:
I, the undersigned, defendant in the above stated matter, having been fully acquainted with my right to counsel, fully understand my rights involved, do desire not to be represented by counsel and do hereby waive my right to counsel fully and completely in these proceedings.
Id. at 16.
The evidence in this case shows only that Brooks may have understood that he had a right to counsel and wanted to represent himself in connection with a guilty plea. It also shows that the trial court did not follow the mandate of our Supreme Court to make a determination on the record that Brooks knowingly, voluntarily, and intelligently relinquished his right to counsel to assist him at trial. See Clarke, supra; Braswell, supra. This court has consistently found error as a result of a trial court’s failure to determine, on the record, that a defendant has validly chosen to proceed pro se. See id.; McCall v. State, 232 Ga. App. 684, 686 (1) (503 SE2d 578) (1998); Black v. State, 194 Ga. App. 660 (1) (391 SE2d 432) (1990); Strozier, supra. The majority’s failure to do so in this case creates an irreconcilable conflict in our law and ignores the requirement in Clarke, supra, that “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se.” Id. at 197.
The majority achieves this result by relying upon general language that the determination of whether there has been a valid waiver depends upon the particular facts and circumstances of each case to find that there was a valid waiver in this case. However, in each of the cases cited by the majority for this proposition, the trial court made some determination on the record that it would be appropriate, or inappropriate, for the defendant to proceed pro se. See Wayne v. State, 269 Ga. 36, 37 (2) (495 SE2d 34) (1998); McDowell v. State, 239 Ga. App. 667, 668-669 (1) (522 SE2d 44) (1999); Williams v. State, 183 Ga. App. 373, 374 (1) (358 SE2d 914) (1987); Davenport *256v. State, 216 Ga. App. 259 (454 SE2d 536) (1995). Thus, the issue before the reviewing courts in these cases was whether the trial courts adequately carried out their duty to determine that the defendants validly waived their right to counsel.
Not one of these cases holds, as the majority does now for the first time, that no error results from a trial court’s failure to determine, on the record, that the defendant has knowingly, voluntarily, and intelligently relinquished his right to counsel to assist him at trial. By doing so now, the majority nullifies our Supreme Court’s mandate in Clarke, supra.
The four factors used by the majority to find a valid waiver in this case are also flawed. First, the majority itself acknowledges, based upon Hamilton, supra, that the forms signed by Brooks were insufficient standing alone to demonstrate a valid waiver. However, based on the following three additional factors, the majority finds sufficient evidence of a valid waiver: Brooks was an experienced criminal defendant with three previous convictions, he allegedly had the assistance of an attorney during the trial, and Brooks, or someone aiding him, allegedly ordered a transcript of the trial that preserved his appellate rights. Since the last two factors are based on pure speculation8 and should be considered only when evaluating harmless error, the majority, in essence, finds a valid waiver of a defendant’s right to counsel simply because he has a criminal record.
III. The Proper Standard for Evaluating Harmless Error
The majority uses the wrong standard to evaluate whether the trial court’s error was harmless, finding any error by the trial court “harmless because it is highly unlikely defendant’s conviction was attributable to his decision to represent himself.” The proper analysis in a case involving constitutional error is whether the error was harmless beyond a reasonable doubt. See Eiland v. State, 246 Ga. 112, 116 (2) (268 SE2d 922) (1980). Moreover, the State bears the *257burden of proving the constitutional error harmless beyond a reasonable doubt. See State v. Hightower, 236 Ga. 58, 60 (222 SE2d 333) (1976).
The majority turns this analysis on its head, finding that the error is harmful only if Brooks, not the State who bears the burden of proof, can demonstrate through evidence in the record that a lawyer could have made a difference. In other words, Brooks must affirmatively assert and show harm in the record. This analysis is erroneous; the error is harmless only if the State shows, beyond a reasonable doubt, that it was in fact harmless.
TV. The Error Was Not Harmless Beyond a Reasonable Doubt
The record in this case does not show that the trial court’s error was harmless beyond a reasonable doubt. See Braswell, supra at 511; Hamilton, supra at 469 (1) (d); Black, supra; Strozier, supra.
Brooks’ cross-examination of the victim, the State’s chief witness, was ineffective and argumentative. After asking only three questions and drawing repeated rebukes from the trial court about the argumentative and improper nature of his questions,9 Brooks stated, “I don’t want to argue,” and asked no further questions. Unlike other cases in which we have found harmless error, the trial court did not appoint counsel to sit with Brooks at counsel table and provide advice and assistance throughout the trial. See, e.g., Rutledge v. State, 224 Ga. App. 666, 670-671 (3) (482 SE2d 403) (1997).
The fact that Brooks was charged with misdemeanor simple battery should not influence the majority’s analysis of whether the trial court’s error was harmless beyond a reasonable doubt.10 Persons charged with a misdemeanor offense for which they face imprison*258ment have the same constitutional right to counsel as those charged with a felony. See Keith v. State, 218 Ga. App. 729 (1) (463 SE2d 51) (1995). A person’s liberty is at stake with either offense, and, in this case, Brooks received the maximum sentence of one year in prison with no probation or suspension of his sentence.
Decided March 29, 2000. Gilbert J Murrah, for appellant. Ben Kirbo, Solicitor, for appellee.Likewise, characterizing this case as a “he said/she said” credibility contest does not warrant a finding of harmless error beyond a reasonable doubt, particularly when the trial judge repeatedly rebukes the defendant in the presence of the jury. A case that turns on the credibility of two opposing witnesses is precisely the kind of case where cross-examination by a lawyer can make a difference. A lawyer can also objectively evaluate and advise whether it would be in the best interest of a defendant, who is one of those witnesses, to testify. In this case, the defendant did not have these benefits, and we should not equate his prior criminal convictions with the education and training of a licensed lawyer.
For all of the above reasons, the State failed to demonstrate that the trial court’s error was harmless beyond a reasonable doubt. As the U. S. Supreme Court recognized in Gideon v. Wainwright, 372 U. S. 335, 344-345 (83 SC 792, 9 LE2d 799) (1963):
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. ... [A layperson] lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
(Citation and punctuation omitted.)
I am authorized to state that Judge Phipps joins in this dissent.
We cannot presume that Brooks received assistance from an attorney throughout the trial based on a cryptic note from a court reporter (“Pro se defendant Dennis Brooks was assisted injury selection by Wayne Lambert, attorney at law”) and statements made by the attorney during voir dire. Lambert did not enter an appearance on Brooks’ behalf, and the evidence in the record shows that his representation was limited to voir dire, which occurred the day before the trial started. There is no indication in the record that the trial court appointed Lambert to assist Brooks throughout the trial or that Lambert actually did so.
Likewise, there is no factual support for the assumption that “Brooks — or someone aiding him during the trial” requested that the entire proceeding be transcribed. The record shows only that it was transcribed. This could have occurred for numerous other reasons, such as habit of the trial court’s court reporter, the request of the trial court (OCGA § 5-6-41 (b)), or the request of the State, and we should not speculate about how it came to be transcribed.
These rebukes by the court, which occurred in the presence of the jury, follow:
Mr. Brooks, you’re starting to do exactly what I told you not to do. You can ask her questions. You cannot argue with her. You can elicit her answers. You cannot give answers. This is not your testimony time.
Mr. Brooks - just a minute. Just a minute Ms. Faison. I’m not going to warn you again. I’m going to let you ask questions, but I’m not going to let you stand up there and say, “I didn’t do this.” You’re arguing with the witness. That is not proper questioning. Now listen to what I’m telling you. You can ask her all the questions you want to ask her, but you can’t stand there and argue with her. That is not permissible.
If you don’t like her answer, ask her another question, but don’t stand up there and say, “I didn’t do that,” because you’re arguing then. We don’t do it that way.
Is that a question or a statement?
What’s the question? I heard a statement. I didn’t hear a question.
We have previously reversed on this ground misdemeanor speeding convictions in a case where the defendant was sentenced to only two days in jail. Hamilton, supra.