McNair v. Commonwealth

546 S.E.2d 756, 35 Va. App. 587, 2001 Va. App. LEXIS 301

• Court: Court of Appeals of Virginia
• Decided: June 5, 2001
• Docket: Record No. 1106-00-1
• Status: Published

Opinions

FRANK, Judge.

Antwoin Renard McNair (appellant) was convicted in a bench trial of malicious wounding in violation of Code § 18.2-51, abduction in violation of Code § 18.2-47.1, and brandishing a firearm in violation of Code § 18.2-282. On appeal, he contends the trial court violated his right to counsel by requiring him to proceed to trial without counsel. Finding no error, we affirm the convictions.

I. BACKGROUND

On October 29, 1999, appellant’s case was called for trial. Appellant, through his court-appointed counsel, Lesa J. Henderson, moved for a continuance, citing insufficient time to prepare for trial. Appellant also personally explained to the court his need for a continuance, representing that his attorney had not met with him an adequate number of times to prepare his defense. Appellant indicated he needed documents from the Norfolk school system and the Internal Revenue Service to impeach the victim’s credibility.

The Commonwealth objected to a continuance, advising the trial court that it took six preliminary hearing dates, with three other lawyers, to conclude the preliminary hearing in the case.

Appellant’s motion for a continuance was denied, and appellant was arraigned. During the trial court’s colloquy, appellant said he did not have enough time to discuss his case with counsel. He said he had additional witnesses whose names he did not know and that he was not ready for trial. The trial court stated, “The Court, however, having looked at the history in this case and your previous involvement with other lawyers, I’m not sure you will ever be ready for this case.”

Appellant then requested a jury trial. The trial court admonished appellant that he would be tried by a jury even if he later waived his right to a jury trial. The trial court stated, “I’m not going to allow you to use the request for a jury trial as a means of stalling.” The trial court then continued the case to December 6,1999. The trial court advised appellant to cooperate with his attorney and stated that it would not grant further continuances.

On November 23, 1999, a hearing was conducted on Ms. Henderson’s motion to withdraw as appellant’s counsel. After representing that she had met with appellant at least four times, Ms. Henderson stated:

I feel that the communications are irretrievable, and he does not take my advice, and I feel I should withdraw.... The problem is he feels that he knows best, and he will not listen to me. I cannot — I cannot even talk to him at this point. It is totally shut down.... [Tjhere is a barrier that we have reached.

The trial court granted Ms. Henderson’s motion to withdraw and appointed Sharon Mason to represent appellant. The cases were continued to January 25, 2000 with a jury.

A suppression hearing was set for January 14, 2000. After the trial court began to hear the evidence, the court and counsel agreed to continue the motion and reserve appellant’s right to move for suppression during the course of the trial, if the need arose.

The trial began on March 3, 2000. Prior to arraignment, appellant claimed that necessary evidence had not been produced. The purported evidence included documents which he alleged would have established that appellant’s wife, the alleged victim, had made false statements on previous occasions in matters not related to the charges against appellant. Appellant also expressed his desire to offer proof as to the “manipulation” of his daughter, who was a witness for the prosecution. Appellant contended that this evidence, and other information, would prove that his wife was a liar. He wanted to use this evidence to show “what type of person we are dealing with.”

The Commonwealth objected to the use of individual acts of dishonesty to impeach the victim. Appellant’s counsel indicated the school records appellant requested had been subpoenaed and were in the court’s file. Counsel further represented that appellant’s sister was bringing alleged forged tax returns to court. These documents were the same documents appellant referred to in his motion to continue on October 29, 1999.

The trial court indicated it would reserve ruling on the admissibility of the victim’s “bad conduct” until the evidence was offered by appellant.

Appellant was arraigned and pled not guilty. During the trial court’s colloquy, appellant said he had not had enough time to discuss all possible defenses with his attorney. Appellant again spoke of the school records and the tax forms.

At that time, Ms. Mason moved to withdraw as counsel. She explained:

I have done everything from A to Z to work with Mr. McNair. Quite frankly, I have advised him up and down and all around. He doesn’t hear the advice. He doesn’t want to hear the advice. I have jumped through all of the hoops that I don’t think should be jumped through at this point based on the information that he’s telling the court. I’m walking into it. At this point, I have to protect myself. At this point, I’m going to make a motion to withdraw as counsel.

Again, appellant spoke of his need for the same documents. The trial court replied, “It’s been objected to. It’s a written document. I can’t accept it if it’s objected to, but you tell me what you want to tell me in response to my question.” Again, appellant stated, “I’m trying to show you by showing you the information that I have here that she’s capable of lying under oath.... ”

The trial court reiterated that if appellant had evidence that his daughter’s testimony was being “manipulated,” the court would hear the evidence and then rule on its admissibility.

At that point, the trial court allowed Ms. Mason to withdraw as appellant’s counsel, stating:

I’m going to do this, Ms. Mason, I’m going to grant your motion to be released as counsel. I would ask you to standby because he has some questions that he would need to seek your advice on, and we’ll go ahead and proceed pro se based on the evidence that I have before me. She’s your fifth attorney, and we have to get the matter heard, and we can’t keep going through different attorneys, and it sounds like to me that she’s made a reasonable effort to provide you with a defense. If you have rejected that, then we have to get the case pro se.

After Ms. Mason was allowed to withdraw, the following exchange took place.

THE COURT: And are you ready for trial today?

THE DEFENDANT: Without an attorney?

THE COURT: Yes, sir.

THE DEFENDANT: No, I’m not.

The trial court then proceeded to try appellant without counsel. The record does not indicate whether Ms. Mason had a further.role in the case. In fact, according to appellant’s trial representation, not contradicted by the prosecution or the court, Ms. Mason’s “standby” role was limited to sitting in the back of the courtroom, “without advising [appellant] of anything.”

The facts of the actual offenses are not relevant to our analysis and will not be included in this opinion. Appellant was convicted of the offenses charged.

II. ANALYSIS

“The right to have the assistance of counsel is a ‘fundamental’ right, although such right is not explicitly set out in the Constitution of Virginia.” Commonwealth v. Edwards, 235 Va. 499, 505, 370 S.E.2d 296, 298-99 (1988); see also Browning v. Commonwealth, 19 Va.App. 295, 298, 452 S.E.2d 360, 362 (1994) (finding that the Sixth Amendment right to counsel is a fundamental right guaranteed to an accused by the Bill of Rights of the Virginia Constitution).

Webb v. Commonwealth, 32 Va.App. 337, 348, 528 S.E.2d 138, 143 (2000).

“ ‘The right to counsel which is guaranteed by the Sixth Amendment to the Federal Constitution and made applicable to the States through the Fourteenth Amendment includes the right to effective assistance of counsel.’ ” Curo v. Becker, 254 Va. 486, 491, 493 S.E.2d 368, 370 (1997) (quoting Virginia Dep’t. of Corrections v. Clark, 227 Va. 525, 533, 318 S.E.2d 399, 403 (1984)). “However, this right is a qualified right which is limited by a ‘countervailing state interest ... in proceeding with prosecutions on an orderly and expeditious basis.’ ” Bolden v. Commonwealth, 11 Va.App. 187, 190, 397 S.E.2d 534, 536 (1990) (quoting Paris v. Commonwealth, 9 Va.App. 454, 460, 389 S.E.2d 718, 721-22 (1990)).

In discussing the denial of an accused’s sixth amendment right to counsel, the Supreme Court has held that “[t]he burden is on the Commonwealth to prove waiver of the right to counsel by clear, precise and unequivocal evidence.” Van Sant v. Commonwealth, 224 Va. 269, 273, 295 S.E.2d 883, 885 (1982) (citing Lemke v. Commonwealth, 218 Va. 870, 873, 241 S.E.2d 789, 791 (1978)). The Supreme Court of the United States said in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938): “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ ” Id. at 464-65, 58 S.Ct. 1019 (quoting Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093 (1937)). “Presuming waiver from a silent record is impermissible. The record must show that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962).

Sargent v. Commonwealth, 5 Va.App. 143, 149, 360 S.E.2d 895, 898-99 (1987).

In Bolden, 11 Va.App. 187, 397 S.E.2d 534, the trial court gave Bolden in excess of one month to retain counsel. During that time, he was granted two continuances so he could obtain counsel. Id. at 189-90, 397 S.E.2d at 535-36. The trial court offered to provide court-appointed counsel, and Bolden refused. Id. at 190, 397 S.E.2d at 536. The trial court told Bolden that if he appeared on the trial date without counsel, he would be tried without counsel. Id. at 189, 397 S.E.2d at 536. Bolden appeared on the date of trial without counsel and requested another continuance. Id. at 190, 397 S.E.2d at 536. The trial court denied the motion, and Bolden was tried without counsel. Id. We held, “[T]he trial court reasonably concluded that Bolden’s failure to have counsel on [the trial date] was the result of dilatory conduct on his part and not due to any lack of opportunity to obtain counsel.” Id. at 191, 397 S.E.2d at 537.

We wrote:

Because a defendant’s assertion of his right to counsel may conflict with the government’s right to an orderly and expeditious prosecution, trial courts are often faced with the dilemma of choosing between these competing interests. Under certain circumstances, the trial court is entitled to conclude that the defendant has actually waived his right to counsel and thus can require that the defendant stand trial without the assistance of counsel. However, in these situations, the burden is on the Commonwealth to prove “by clear, precise and unequivocal evidence” that the defendant did actually waive his right to counsel. Lemke v. Commonwealth, 218 Va. 870, 873, 241 S.E.2d 789, 791 (1978). “ The record must show that an accused was offered counsel but intelligently and understandingly rejected the offer.’ ” Sargent v. Commonwealth, 5 Va.App. 143, 149, 360 S.E.2d 895, 899 (1987) (quoting Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962)).

Id. at 190-91, 397 S.E.2d at 536.

In Lemke, 218 Va. 870, 241 S.E.2d 789, the Supreme Court of Virginia held that the trial court erred in requiring Lemke to proceed to trial without counsel. Lemke had appealed her district court conviction to the circuit court. Id. at 871, 241 S.E.2d at 790. She signed an appeal form indicating that she was obligated to hire an attorney promptly and that her “ ‘failure to employ an attorney until just before the trial is not grounds for a continuance.’ ” Id. at 871, 241 S.E.2d at 790. Lemke attempted to hire counsel several days prior to her trial in the circuit court but was unsuccessful. Id. The trial court denied her motion for a continuance and tried her without counsel. Id. The record did not indicate whether the trial court had determined that Lemke was ineligible for court-appointed counsel. Id. at 873, 241 S.E.2d at 791. The Supreme Court wrote, “[H]er actions in twice approaching the attorney of her choice were not actions characteristic of a person who did not wish to be represented at trial.” Id. at 874, 241 S.E.2d at 791.

In finding the trial court committed error, the Supreme Court held:

Trial courts are fully justified in taking stern measures to eliminate the frustrations of unnecessary or intentional delays caused by defendants in criminal appeals from the General District Courts. Such defendants must not be permitted to trifle with the courts or impede the administration of justice....

Nor does the evidence establish that Lemke acted in bad faith in appearing for trial without an attorney and moving for a continuance. Although the representations made to the court by the attorney whom she sought to employ were not entirely consistent with Lemke’s own statements, they showed that she had made an effort during the week before trial to obtain the services of counsel. It thus appears that she wished to be represented by an attorney.

Id. at 874, 241 S.E.2d at 791-92.

In Sampley v. Attorney Gen. of North Carolina, 786 F.2d 610 (4th Cir.1986), the Fourth Circuit Court of Appeals wrote:

Obviously a defendant has no constitutional right to dictate the time, if ever, at which he is willing to be tried by simply showing up without counsel, or with allegedly unsatisfactory counsel, whenever his case is called for trial, see Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), or by objecting that counsel then retained or assigned is not presently “counsel of his choice,” see Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983)....

When a defendant does request a continuance on the basis, as here, that he does not have counsel to represent him, the court requested to grant the continuance must therefore make a judgment whether this results from the lack of a fair opportunity to secure counsel or rather from the defendant’s unjustifiable failure to avail himself of an opportunity fairly given. In making this judgment, the court is necessarily entitled to take into account the countervailing state interest in proceeding on schedule.

Id. at 613.

We reject appellant’s contention that he was deprived of his Sixth Amendment right to counsel. At the time of the trial on March 6, 2000, appellant’s case had been pending for eleven months. The preliminary hearing was set for six different dates before it was held on September 16, 1999. Appellant had four attorneys through the preliminary hearing, one retained and three appointed. The trial date of March 6, 2000 was the third trial date set in the circuit court. Each of the two attorneys who withdrew as counsel in the circuit court complained of appellant’s lack of cooperation and failure to heed their advice. The trial court, upon allowing Lesa Henderson to withdraw, said, “I’m not sure you will ever be ready for this case.” Upon allowing Sharon Mason to withdraw, the trial court found that counsel made a “reasonable effort” to provide appellant with a defense and stated, “If you have rejected that, we have to get the case pro se.”

Appellant’s failure to cooperate with multiple attorneys and his dilatory conduct are clear from the record. Because of appellant’s tactics, the trial court properly concluded that appellant waived his right to counsel. Appellant was offered and received counsel on at least five occasions and chose not to cooperate or communicate with them. As stated in Bolden, the trial court recognized the “government’s right to an orderly and expeditious prosecution.” It was evident that appellant simply did not want to be tried and failed to cooperate with counsel as a tactic to avoid trial. The record indicates appellant’s circuit court counsel diligently attempted to represent him but his uncooperative behavior prevented their efforts. The record further indicates the trial court made every reasonable effort to honor appellant’s right to counsel.

We conclude that the Commonwealth proved by clear, precise and unequivocal evidence that appellant waived his right to counsel. Therefore, for these reasons, we affirm the judgment of the trial court.

Affirmed.