McNair v. Com.

• Decision Date: 19 March 2002
• Docket Number: Record No. 1106-00-1.
• Parties: Antwoin Renard McNAIR, Appellant, v. COMMONWEALTH of Virginia, Appellee.
• Court: Virginia Court of Appeals

561 S.E.2d 26

37 Va. App. 687

Antwoin Renard McNAIR, Appellant, v. COMMONWEALTH of Virginia, Appellee.

Record No. 1106-00-1.

Court of Appeals of Virginia, Richmond.

March 19, 2002.

Randolph D. Stowe, Norfolk, for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS and AGEE, JJ.

HUMPHREYS, Judge.

Antwoin Renard McNair contends the trial court violated his rights under the Sixth Amendment by requiring him to proceed to trial without counsel. A panel of this Court, with one judge dissenting, held that appellant waived his right to counsel. See McNair v. Commonwealth, 35 Va.App. 587, 546 S.E.2d 756 (2001)

. We stayed the mandate of that decision and granted rehearing en banc. For the reasons that follow, we reverse the convictions and remand for a new trial.

I. Background

A grand jury indicted appellant on felony charges of malicious wounding and abduction of his wife. A warrant charged appellant with the misdemeanor of brandishing a firearm. On October 29, 1999, prior to the commencement of trial, appellant's court-appointed attorney informed the trial judge that appellant wanted a continuance. After appellant explained his reasons for the request, the trial judge denied the continuance. During the arraignment, appellant's attorney informed the judge that appellant wanted a jury trial. The judge granted that request and set the trial to commence December 6, 1999.

Several weeks prior to the December trial, appellant's court-appointed attorney filed a motion to withdraw, alleging "an irretrievable breakdown in communication." The trial judge granted the motion and appointed another attorney to represent appellant. She was appellant's fifth attorney during the course of the proceedings. The trial judge admonished: "I will appoint your last lawyer, Mr. McNair. Do you understand that this is your last lawyer[?]"

The judge set a new trial date for January 25, 2000. After conferring with appellant, his new attorney filed motions to compel discovery, for a subpoena duces tecum, and to suppress evidence. The trial was again continued and ultimately held on March 6, 2000. When the trial court called appellant's case on that date and asked if the parties were ready to proceed, appellant's court-appointed attorney said she was ready for trial. She indicated, however, that appellant wanted to address the court "prior to starting the trial." Appellant then spoke extensively about the absence of information he believed was necessary to be produced for his defense "so that [he] could get a fair trial," and about his objection to the prosecutor using his thirteen-year-old daughter as a witness.

Reiterating these issues during the ensuing re-arraignment, appellant indicated that "information for [his] defense is not here" and that he had not had sufficient time to discuss his defenses with his attorney. Appellant's attorney disagreed and said that she had advised appellant, that he did not want to accept her advice, and that she had "jumped through all of the hoops" appellant imposed upon her. She stated: "At this point, I have to protect myself, ... I'm going to make a motion to withdraw as counsel." The prosecutor immediately asked "if [appellant] could proceed pro se and leave [appellant's attorney] as advice counsel."

When the judge asked for appellant's response to these matters, appellant again indicated he needed other information to prove his wife was "capable of lying under oath." The trial judge then ascertained from appellant's appointed attorney that she had discussed the case with appellant, that she had advised him of the elements of the offense the prosecutor had to prove, and that she had consulted with appellant on numerous occasions. The judge granted appellant's attorney's motion to withdraw, but asked her "to standby because he has some questions that he [will] need to ask your advice on and we'll go ahead and proceed pro se based on the evidence that I have before me." The trial court stated to McNair:

[s]he'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.

Proceeding with the arraignment, the judge asked the following:

[JUDGE]: The Court has heard what you said. That matter is on the record. At this point, I'm not going to deny [your daughter] an opportunity to testify if the Commonwealth presents her as a witness.

Have you entered your plea of not guilty freely and voluntarily?

[APPELLANT]: Yes.

[JUDGE]: And are you ready for trial today?

[APPELLANT]: Without an attorney?

[JUDGE]: Yes, sir.

[APPELLANT]: No, I'm not.

[JUDGE]: Have you determined whether or not you wish to have a trial by jury or a trial by a judge?

[APPELLANT]: Trial by judge.

[JUDGE]: And you waive your right to a trial by jury?

[APPELLANT]: Yes.

[JUDGE]: Does the Commonwealth waive?

[PROSECUTOR]: The Commonwealth waives trial by jury.

[JUDGE]: Do you understand the questions that I've asked you?

[APPELLANT]: Yes, I do.

[JUDGE]: All right, sir. We'll go ahead, and I'll hear the case, and we'll go ahead and proceed.

During the trial, appellant represented himself while his former court-appointed attorney sat in the back of the courtroom. At the conclusion of the evidence, the trial judge convicted appellant of malicious wounding in violation of Code § 18.2-51, abduction in violation of Code § 18.2-47, and brandishing a firearm in violation of Code § 18.2-282. Although appellant continued to represent himself at the sentencing hearing, the trial judge appointed counsel to represent appellant for purposes of this appeal.

II. Analysis

"In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defen[s]e." U.S. Const. amend. VI. As an essential means of securing due process, this right to the assistance of counsel "is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process." Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Accordingly, the Sixth Amendment guarantees a defendant a fair opportunity to secure counsel of his own choice to represent him at trial on criminal charges, Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932), or if a defendant is indigent, representation is made available to him by the court. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)

; see also Code § 19.2-157.¹ The Sixth Amendment right to counsel also "implicitly embodies a `correlative right to dispense with a lawyer's help.'" Faretta v. California, 422 U.S. 806, 814, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). To be valid, any such waiver must be the voluntary act of the defendant and must constitute a knowing and intelligent abandonment of a known constitutional right or privilege. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Here, the record indisputably established that appellant began the trial with a court-appointed attorney and that he did not ask the judge to discharge his attorney. Further, he clearly did not ask to be allowed to represent himself. Indeed, when the judge asked if he was ready for trial, appellant's responses, "Without an attorney?" and then, "No, I'm not," were clear assertions that he wanted an attorney to represent him. He was therefore constitutionally entitled to the assistance of an attorney at his trial. See United States v. Phifer, 511 F.2d 960 (4th Cir.1975)

.

Alternatively, the Commonwealth implies that although appellant may not have expressed a choice to proceed pro se, in effect, he constructively waived his right to counsel. We disagree. Indeed, we reject the suggestion that a waiver of the right to counsel can be less than knowing and the product of an intelligent decision. Nevertheless, we are mindful that the Sixth Amendment right to counsel, while fundamental, is not a right without limitation. Specifically, it is not a right subject to endless abuse by a defendant. Instead, the right is qualified in its exercise and merely affords a defendant an absolute right to a "fair opportunity" to representation by counsel. Sampley v. Attorney General of North Carolina, 786 F.2d 610, 613 (4th Cir.1986). This limitation derives from the important and valid state interest in proceeding with prosecutions in an orderly and expeditious manner, taking into account the practical difficulties of "`assembling the witnesses, lawyers, and jurors at the same place at the same time,'" as well as the concerns and interests of the victims, witnesses and general public, and the appropriate use of judicial resources. Id. (quoting Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983)); see also Morris, 461 U.S. at 14-15,

103 S.Ct. 1610; Green v. Commonwealth, 211 Va. 727, 728, 180 S.E.2d 531, 532 (1971).

Thus, although a valid waiver of a defendant's fundamental right to counsel must be voluntary and constitute a knowing, intelligent abandonment of the right, Edwards, 451 U.S. at 482, 101 S.Ct. 1880, it

"does not grant [a] defendant license to play a cat and mouse game with the court, or by ruse or stratagem fraudulently seek to have the trial judge placed in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of counsel."

United States v. Hughes, 191 F.3d 1317, 1323 (10th Cir.1999) (quoting United States v. Allen, 895 F.2d 1577, 1578 (10th Cir.1990)). Accordingly, the question of whether a fair opportunity to secure representation...