☢ test - Í

granting Tyner’s request to withdraw his waiver of his right to counsel against any identified benefit of denying his request, other than preventing him from ‘toy[ing] with the court.’ We conclude that, under the circumstances, the trial court’s insistence that Tyner continue pro se was unjustified, given that closing argument, receiving the verdict, and sentencing are critical stages of the trial. Because our examination of the record reveals that the trial court abused its discretion in denying Tyner’s post-waiver request for counsel during trial, it is a structural Sixth Amendment violation that requires reversal. United States v. Gonzalez–Lopez, [548 U.S. 140, 148–150(III) (126 S.Ct. 2557, 165 L.Ed.2d 409) (2006)]; Wilkerson v. State, [286 Ga. 201, 204, 686 S.E.2d 648) (2009)]; Thomas v. State, [331 Ga.App. 641, 658(7) (771 S.E.2d 255) (2015)].” Dillard, joined by Ray, dissents: “a trial court’s refusal to countenance this type of hybrid representation does not constitute an abuse of discretion.” Banks v. State, 332 Ga.App. 259, 772 S.E.2d 57 (April 21, 2015). Conviction for marijuana possession reversed; record failed to show knowing and intelligent waiver of right to counsel. “[T]he form Banks executed contained only conclusory statements concerning her rights rather than an explanation of the dangers of proceeding to trial pro se. See Barnes [ v. State, 261 Ga.App. 112, 114 (581 S.E.2d 727) (2003)]; Tucci [ v. State, 255 Ga.App. 474, 476-477 (565 S.E.2d 831) (2002)]. Likewise, the State elicited no testimony during Banks' hearing on her appeal from probate court to demonstrate a knowing and intelligent waiver, relying instead upon Banks' waiver form.” Accord, Williams (March 28, 2016), above. Nguyen v. State, 330 Ga.App. 812, 769 S.E.2d 558 (March 2, 2015). DUI conviction affirmed; trial court properly found that defendant made a knowing and voluntary waiver of counsel. “Nguyen contends that the trial court erred by failing to discuss potential defenses, the possibility of lesser-included offenses, mitigating circumstances or the range of allowable punishments with him. By failing to mention these issues, Nguyen argues, the trial court failed to properly ascertain that he knowingly and voluntarily waived his right to counsel. “This argument ignores the repeated emphasis that ‘no magic language must be used by the trial judge in making the defendant aware of his right to counsel and of the dangers of proceeding without counsel.’ (Citation and punctuation omitted.) Bush [ v. State, 268 Ga.App. 200, 204, 601 S.E.2d 511 (2004)] (waiver of counsel was knowingly and voluntarily made despite trial court's failure to inform defendant of lesser-included offenses and the need to preserve issues for appeal). … [T]he trial court does not have to ask any particular questions, but rather the record need only to reflect that, ‘aware of the dangers of self-representation, the accused nevertheless made a knowing and intelligent waiver.’ (Citation omitted.) Bush, supra.” McDaniel v. State, 327 Ga.App. 673, 761 S.E.2d 82 (June 20, 2014). Convictions for mortgage fraud and theft by taking reversed; trial court failed to obtain knowing waiver of right to counsel on record. Defendant indicated his desire to self- represent. 1. Warnings not given. “The trial court informed McDaniel that ‘[t]hese are serious charges obviously’ with ‘serious consequences associated with being found guilty of those offenses,’ identified the particular charges against him, asked the State to outline the maximum possible sentences, inquired about McDaniel's legal training and learned that he had represented himself in a couple of jury trials involving felony offenses in Clayton County Superior Court, and informed him that he would be required to abide by the procedural rules, introduce evidence according to the rules of evidence, and make his own objections. Finally, the trial court advised McDaniel that it would consider appointing counsel to ‘sit as elbow counsel in order to assist the Court and help you. That's the term. You would still represent yourself but they can assist you.’” The prosecutor went to the jail and reviewed the State’s evidence with defendant. The defendant was given access to the county law library. The trial court denied defendant’s special demurrer and motion for funds to hire an investigator. Upon the call of the case for trial, defendant then moved for a continuance to hire counsel. Trial court denied the continuance and appointed a public defender to sit with defendant at trial. “Based on our review of this evidence, we conclude that the State has failed to meet its burden of demonstrating on the record that McDaniel was made aware of the dangers of representing himself. While it is clear from the record that the trial court intended at some point in the future to fulfill its obligation to ensure that McDaniel made a knowing waiver of his right to counsel, it did not follow through in subsequent hearings.” 2. Appointment of standby counsel didn’t cure deficiency. “[T]he availability and actual participation of assisting counsel for a pro se defendant during the trial does not automatically satisfy the State's burden to prove harmless error beyond a reasonable doubt. See Humphries v. State, 255 Ga.App. 349, 351–352(1), 565 S.E.2d 558 (2002) (finding State failed to meet burden of showing harmless error despite participation of counsel at trial).” 3. Not harmless beyond a reasonable doubt. “Based upon the record before us, we find that the State failed to meet its burden of demonstrating harmless error beyond a reasonable doubt. McDaniel failed to make objections, including a facially valid foundation objection, presented a defense through cross-examination that the State's witness described as ‘crazy,’ submitted evidence showing that he failed to repay an unrelated loan and created another fraudulent document, and made an incriminating admission to the State after deciding to represent himself pro se without the benefit of a warning from the trial court about the dangers of representing himself. While the public defender— despite having been called immediately before the trial began without any knowledge of the case—made an untranscribed