Vivian v. State

Nathaniel Vivian and his girlfriend Kayla Dixon arranged by text to rob a man named Daniel Zeitz, who was selling a PlayStation on Craigslist. During the meetup, Zeitz grabbed the car's steering wheel and Dixon fired a gun, wounding Vivian and killing Zeitz. A Fulton County jury convicted Vivian of felony murder, armed robbery, cruelty to children, and a firearm charge. On appeal, Vivian argued the trial judge should have told him he could represent himself when he asked for a hearing about getting new counsel, and that his trial lawyer was ineffective for several reasons, including not objecting to how cell phones were admitted into evidence and not challenging the jury pool. The Supreme Court of Georgia found no merit in any of these arguments because Vivian never clearly asked to represent himself and his lawyer's choices were reasonable or not prejudicial. However, the court agreed with the State that Vivian could not be sentenced on two separate felony murder convictions for the death of a single victim, so it vacated one of those convictions and sent the case back to the trial court to redo the sentencing.

A trial court need not advise a defendant of his right to self-representation unless he clearly and unequivocally invokes that right, which Vivian did not do here; his ineffective-assistance claims failed under Strickland; but a defendant cannot be sentenced on two felony murder counts arising from one victim's death, so one conviction must be vacated and the case resentenced.

The ruling reinforces that Georgia defendants must clearly ask to represent themselves before judges must address that option, and it confirms limits on how many felony murder sentences can be imposed for a single victim, guiding future sentencing in similar multi-count murder cases.

Affirmed in part, vacated in part, and remanded for resentencing

1. The court applied the rule that a defendant's right to represent himself, guaranteed by the Sixth Amendment, only triggers a required hearing if he clearly and unequivocally tells the court he wants to represent himself; because Vivian only asked for new counsel, no such hearing was required.
2. Under Strickland v. Washington, a defendant claiming ineffective assistance must show both that his lawyer's performance was unreasonable and that the outcome would likely have been different without the errors; if either part fails, the claim fails.
3. On the cell phone evidence, the court found no proof that the lawyer's decision not to object was unreasonable, and noted that even if the phones lacked proper authentication, the State could likely have fixed that problem if challenged, so there was no real harm.
4. The claims about the firearm-possession jury instruction and demurrer were never raised at the first opportunity in the trial court, so they were not preserved for the Supreme Court of Georgia to review.
5. On the jury composition claim, the court held a lawyer cannot be faulted for failing to predict a change in the law, since the ruling finding Fulton County's jury list defective came out well after Vivian's trial.
6. On the missing 'mere association' instruction, which would have told jurors that mere presence near a crime is not enough to convict, the court found the jury instructions actually given adequately covered the same principles, so there was no reasonable chance the outcome would have differed.

• felony murder
• ineffective assistance of counsel
• self-representation
• jury composition
• sentencing error