Edwards v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: BAKER; BENTON
• Citation: Edwards v. Com., 462 S.E.2d 566, 21 Va.App. 116 (Va. App. 1995)
• Decision Date: 03 October 1995
• Docket Number: No. 0104-94-1,0104-94-1
• Parties: Bobby Ray EDWARDS v. COMMONWEALTH of Virginia. Record

Page 566

462 S.E.2d 566

21 Va.App. 116

Bobby Ray EDWARDS v. COMMONWEALTH of Virginia.

Record No. 0104-94-1.

Court of Appeals of Virginia Norfolk.

Oct. 3, 1995.

David B. Olson, Newport News, for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BAKER, BENTON and BRAY, JJ.

BAKER, Judge.

Bobby Ray Edwards (appellant) appeals from his convictions by the Circuit Court of the City of Newport News (trial court) for malicious wounding, use of a firearm, and possession of a firearm or concealed weapon by a felon. This appeal is limited to the question whether the trial court committed reversible error in allowing appellant to waive counsel and proceed pro se without properly advising him of the potential consequences of his actions. Finding no error, we affirm the judgments of the trial court.

Appellant was arrested on October 31, 1992 and charged with malicious wounding, use of a firearm in the commission of the felony, and possessing a firearm after having been convicted of a felony. On November 3, 1992, he appeared in the General District Court of Newport News where a preliminary hearing on the charges was held. Code § 19.2-160, in pertinent part, provides:

If the charge against the accused is a crime the penalty for which may be incarceration, and the accused is not represented by counsel, the court shall ascertain by oral examination of the accused whether or not the accused desires to waive his right to counsel.

In the event the accused desires to waive his right to counsel, and the court ascertains that such waiver is voluntary and intelligently made, then the court shall provide the accused with a statement to be executed by the accused to document his waiver. The statement shall be in a form designed and provided by the Supreme Court. Any executed statement herein provided for shall be filed with and become a part of the record of such proceeding.

(Emphasis added). The general district court, in compliance therewith, conducted an oral examination at the preliminary hearing, after which appellant signed the following waiver form:

WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER (CRIMINAL CASE)

I have been advised by a judge of this court of the nature of the charges in the cases pending against me and the potential punishment for the offenses, which includes imprisonment in the penitentiary or confinement in jail. I understand the nature of these charges and the potential punishment for them if I am found to be guilty.

I have been further advised by a judge of this court that I have the following rights to be represented by a lawyer in these cases:

a. I have a right to be represented by a lawyer.

b. If I choose to hire my own lawyer, I will be given a reasonable opportunity to hire, at my expense, a lawyer selected by me. The judge will decide what is a reasonable opportunity to hire a lawyer. If I have not hired a lawyer after such reasonable opportunity, the judge may try the case even though I do not have a lawyer to represent me.

c. If I ask the judge for a lawyer to represent me and the judge decides, after reviewing my sworn financial statement that I am indigent, the judge will select and appoint a lawyer to represent me. However, if I am found to be guilty of an offense, the lawyer's fee as set by the judge within statutory limits will be assessed against me as court costs and I will be required to pay it.

I understand these rights to be represented by a lawyer. I also understand that I may waive (give up) my rights to be represented by a lawyer.

Understanding my rights to be represented by a lawyer as described above and further understanding the nature of the case and the potential punishment if I am found to be guilty, I waive all of my rights to be represented by a lawyer in these cases, with the further understanding that the cases will be tried without a lawyer either being hired by me or being appointed by the judge for me. I waive these rights of my own choice, voluntarily, of my own free will, without any threats, promises, force or coercion.

s/ Bobby R. Edwards

The district court judge found that appellant knowingly, voluntarily, and intelligently waived his right to be represented by counsel, and the judge signed the following statement:

Upon oral examination, the undersigned judge of this Court finds that the Adult, having been advised of the rights and matters stated above and having understood these rights and matters, thereafter has knowingly, voluntarily and intelligently waived his rights to be represented by a lawyer.

NOV 3 1992 s/ Joan T. Morris

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DATE JUDGE

After a hearing, probable cause was found and the cases were presented to a grand jury. True bills were returned on December 14, 1992.

Trial on the charges was scheduled for February 17, 1993. The record discloses that appellant was certain of both the identification and the nature of all three charges. The Commonwealth advised the trial court that appellant had waived his right to an attorney. Finding in the court's file only the waiver executed in the general district court, the trial court asked appellant if he still wanted to waive his right to counsel. When appellant responded affirmatively, the record reflects that "upon oral examination" the trial court made the same findings as made by the general district court judge. ¹ In response to further inquiries by the court, appellant advised the court that he was not ready for trial and informed the court of the names and addresses of two witnesses. Appellant further stated that he was a college graduate and had completed one year toward a Master's degree at Howard University.

The following exchange between the trial court and appellant then occurred:

THE COURT: Have you thought about the advisability of a trial by jury?

THE DEFENDANT: In this particular case it's a question of law and I think I prefer the court.

The trial court granted a continuance to enable appellant to have subpoenas issued for the witnesses. The Commonwealth suggested a new trial date of May 13. Appellant called to the trial court's attention that he had been incarcerated since October 31 and hoped trial could be held earlier. The trial court acceded to appellant's desire and set the matter for April 1. Appellant requested that the cases be heard by the same judge who was presiding at that time. The trial court agreed to this request.

On April 1, the trial court again inquired as to appellant's education and was again told by appellant that he was a college graduate with one year's credit toward a Master's degree. Appellant further denied having any inability to understand the proceedings and affirmed his understanding of the charges. He had previously complained that he had too little time allowed in the jail's law library and was assured by the trial court that the court would do what it could to increase that time. On April 1, appellant advised the court that he had had adequate time to prepare his defense.

At trial, one defense witness did not appear. Appellant told the trial court that the witness was not needed but that a third witness, a police officer who appellant had not subpoenaed, was needed for his defense. The trial court arranged to have the officer present to testify. Before the trial began, appellant moved to have the witnesses excluded. His motion was granted.

At the conclusion of the Commonwealth's case, appellant presented two witnesses to testify in his defense but did not testify himself. The trial court's orders, which documented that appellant had been found guilty on each charge, declared that:

[T]he Court having made inquiry and being of the opinion that the defendant fully understood the nature and effect of his plea and of the penalties that may be imposed upon his conviction, and after having been first advised by the Court of his right to trial by jury, the defendant knowingly and voluntarily waived trial by jury and with the concurrence of the attorney for the Commonwealth ... the Court proceeded to hear and determine the case.

The trial court ordered a presentence report, which revealed that appellant had a substantial number of felony and misdemeanor convictions. ²

Prior to the sentencing hearing, an attorney was appointed to represent appellant. A motion for a new trial was filed, alleging that the trial court failed to warn appellant that (1) he would be responsible for the adequacy of his defense, and (2) he would suffer the consequences of any inadequacy if he rejected professional assistance. After hearing argument thereon and reviewing the record and transcript, the trial court found as follows:

And it is this Court's position, in viewing everything as a whole, that this particular Defendant, because of his education, because he had signed a waiver in the General District Court which sets out certain statements and which was referred to by this Court on the February 17th hearing, and in addition, the opening statement from this particular Defendant indicated that he was very knowledgeable and was not ready to accept counsel and that he wished to proceed pro se. So I believe that this particular Defendant, under the facts and circumstances of this case, intelligently waived his right to counsel, and I deny the motion.

At oral argument, appellant conceded that if the matters contained in the executed waiver forms were contained in the transcript of the trial proceedings the convictions should be affirmed. However, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Kinard v. Commonwealth, 16 Va.App. 524, 431 S.E.2d 84 (1993), appellant contends that without those specific warnings he could not make a knowledgeable and intelligent waiver of his right to be represented by an attorney. Thus, we must decide in this case whether, standing alone, the absence of those specific warnings requires...