Edwards v. Com.

• Decision Date: 22 May 2007
• Docket Number: Record No. 1697-06-1.
• Citation: 644 S.E.2d 396,49 Va. App. 727
• Court: Virginia Court of Appeals
• Parties: Erwin Alexander EDWARDS v. COMMONWEALTH of Virginia.

644 S.E.2d 396

49 Va. App. 727

Erwin Alexander EDWARDS v. COMMONWEALTH of Virginia.

Record No. 1697-06-1.

Court of Appeals of Virginia, Chesapeake.

May 22, 2007.

Charles E. Haden, for appellant.

Josephine F. Whalen, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HUMPHREYS and KELSEY, JJ., and BUMGARDNER, Senior Judge.

D. ARTHUR KELSEY, Judge.

A jury convicted Erwin Alexander Edwards of distribution of cocaine, his second or subsequent offense, in violation of Code § 18.2-248 and possession of cocaine in violation of Code § 18.2-250. On the morning of trial, Edwards requested that he be allowed to defend himself pro se. The trial court denied the request, finding Edwards competent to stand trial but incompetent to represent himself. Because the court applied an incorrect legal standard and, consequently, failed to make factual determinations required by the correct standard, we vacate the convictions and remand for further proceedings consistent with this opinion.

I.

The evidence at trial showed that police videotaped Edwards selling crack cocaine to a confidential informant. Edwards ran when police moved in to arrest him. During his flight, Edwards threw away the money the confidential informant paid him as well as another bag of crack cocaine. Edwards pled not guilty to possession and distribution charges.

The trial court appointed counsel to defend Edwards. Lawyer after lawyer found it nearly impossible to represent Edwards. In succession, his first three lawyers moved to withdraw, claiming conflicts of various sorts. About his fourth lawyer, Edwards exclaimed in open court that the lawyer was "trying to railroad" him. When the court expressed skepticism, Edwards retorted: "You ain't the judge of me. The jury is. Get it right." "That motherfucker [speaking of his fourth lawyer]," Edwards snarled, "Man, you're fired." At that, the trial judge ordered Edwards out of the courtroom and granted the fourth attorney's request to withdraw. A fifth lawyer was appointed, whom Edwards likewise rejected. The court released this attorney as well and appointed a sixth lawyer to represent Edwards.

The day before trial, Edward "fired" his sixth lawyer, prompting counsel to file a motion to withdraw. Edwards's belligerence, counsel explained, had irretrievably damaged the attorney-client relationship. Edwards erupted with a verbal attack on his counsel, and the court again ordered Edwards removed from the courtroom. The court then denied counsel's motion to withdraw, saying Edwards had delayed the proceeding long enough. The trial would go forward the next day, the court ruled, with present counsel in attendance.

On the morning of trial, Edwards advised the court that he wanted to fire his counsel and "proceed without a lawyer today." The court questioned Edwards to ensure he understood the "advantages of continued legal representation" and that, with or without counsel, there would be no continuance of the trial. Edwards answered the court's questions, professing to appreciate the risks of pro se representation, his obligation to follow the rules, his inability to solicit assistance from the court, and his duty to behave in the courtroom. After an extensive dialogue, the court concluded with the question: "Now, you still want to represent yourself?" "Yes," Edwards replied. The court then held:

Okay. I'm not going to let you. You're not competent to represent yourself. Yes, I mean you're competent as an individual, but you're not competent to handle a case before a jury that you can potentially get life in the penitentiary. You need legal representation. Based on your responses, I'm not going to do that. . . . [H]e had no legal training to understand motions and all the other things that he needs to be able to do, again, to defend himself in a case where he could potentially get life in the penitentiary. My ruling is that he's not competent to represent himself. Competent to stand trial, but not to represent himself.

After Edwards unsuccessfully asked the court to reconsider, the case proceeded to trial with the jury finding him guilty on both charges. Edwards filed a petition for appeal on several grounds. We granted an appeal solely on the question whether the trial court erred in denying his request for self-representation.¹

II.

A. THE FARETTA RIGHT OF SELF-REPRESENTATION

The Sixth Amendment guarantees a criminal defendant "the Assistance of Counsel for his defence." U.S. Const. amend. VI. This textual right, it has been held, "implies" the concomitant right to be unassisted by counsel. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975). The unique right to appear pro se, known as the Faretta right, applies only when a defendant "truly wants to do so." Id. at 817, 95 S.Ct. at 2532. Because a pro se defense "usually increases the likelihood of a trial outcome unfavorable to the defendant," McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984), courts scrutinize the bona fides of the defendant's request as well as his manner of making it. Despite its constitutional rank, however, "the right to self-representation is not absolute." Martinez v. Court of Appeal, 528 U.S. 152, 161, 120 S.Ct. 684, 691, 145 L.Ed.2d 597 (2000).

To be successful, a Faretta request must be (i) timely, (ii) clear and unequivocal, and (iii) "voluntarily, knowingly, and intelligently made." Thomas v. Commonwealth, 260 Va. 553, 558, 539 S.E.2d 79, 82 (2000) (footnote omitted) (employing criteria outlined in United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir.2000), which "detailed the requirements for a valid assertion of the right of self-representation"); see also United States v. Bush, 404 F.3d 263, 271 (4th Cir.2005). Aware of the subterfuges that sometimes accompany Faretta requests, courts also insist that they not be used as a "tactic to secure delay," Stockton v. Commonwealth, 241 Va. 192, 203 & n. 3, 402 S.E.2d 196, 202 & n. 3 (1991), or "for disruption, for distortion of the system, or for the manipulation of the trial process," Frazier-El, 204 F.3d at 560 (citations omitted); see also United States v. Lawrence, 605 F.2d 1321, 1324-25 (4th Cir.1979).

Consequently, a trial court may "deny a request for self-representation when the request is made for purposes of manipulation because, in such cases, the request will not be clear and unequivocal." Bush, 404 F.3d at 271. "A trial court must be permitted to distinguish between a manipulative effort to present particular arguments and a sincere desire to dispense with the benefits of counsel." Id. (quoting Frazier-El, 204 F.3d at 560). For the same reason, a defendant shifting "back and forth in his position with respect to self-representation" may be found to have "forfeited his right to self-representation by his vacillating positions." Stockton, 241 Va. at 203, 402 S.E.2d at 202 (quoting United States v. Bennett, 539 F.2d 45, 51 (10th Cir.1976)); see also Bush, 404 F.3d at 272 (rejecting defendant's Faretta request as an "effort to manipulate and distort the trial process").

B. THE TRIAL COURT'S REASON FOR REJECTING EDWARDS'S REQUEST

In this case, the trial court did not address any of the traditional concerns governing the assertion of the Faretta right of self-representation. The court instead said, "My ruling is that he's not competent to represent himself. Competent to stand trial, but not to represent himself." In context, the court meant Edwards was not legally capable of handling "a case before a jury" in which he could "potentially get life in the penitentiary." Edwards "had no legal training," the court noted, to help him understand the many "things that he needs to be able to do" to defend himself. "You need legal representation," the court advised Edwards.

At the outset, we take no issue with either the accuracy or the wisdom of the court's observations. As experienced trial judges know all too well, "a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney." Martinez, 528 U.S. at 161, 120 S.Ct. at 691 (citing John F. Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years after Faretta, 6 Seton Hall Const. L.J. 483, 598 (1996)). The trial court's instinctual desire to protect Edwards from himself can hardly be criticized as irreflective. It was, nonetheless, legally irrelevant.

Under settled principles, a defendant's "technical legal knowledge" is not "relevant" to the Faretta judicial inquiry. Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993) (quoting Faretta, 422 U.S. at 836, 95 S.Ct. at 2541); see also Thomas, 260 Va. at 560, 539 S.E.2d at 83. Though the defendant's choice to appear pro se may be "ultimately to his own detriment," it still "must be honored" no matter its imprudence. Thomas, 260 Va. at 560, 539 S.E.2d at 83 (quoting Faretta, 422 U.S. at 834, 95 S.Ct. at 2540). His legal "ability to represent himself has no bearing upon his competence to choose self-representation." Godinez, 509 U.S. at 400, 113 S.Ct. at 2687 (footnote omitted); see also Thomas, 260 Va. at 560, 539 S.E.2d at 83. Instead, "the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." Godinez, 509 U.S. at 399, 113 S.Ct. at 2687 (footnote omitted). The trial court, therefore, erred by denying Edwards's Faretta request on the ground that he was not legally competent to represent himself.

C. RIGHT RESULT FOR THE WRONG REASON

That the trial court used erroneous reasoning does not mean, legally or logically, Edwards's Faretta request necessarily should have been granted. A trial court can reach the right result, albeit for the wrong reason. See, e.g., Whitley v....