McNair v. Com., Record No. 1106-00-1.

Docket NºRecord No. 1106-00-1.
Citation35 Va. App. 587, 546 S.E.2d 756
Case DateJune 05, 2001
CourtCourt of Appeals of Virginia

546 S.E.2d 756
35 Va.
App. 587

Antwoin Renard McNAIR

Record No. 1106-00-1.

Court of Appeals of Virginia, Chesapeake.

June 5, 2001.

Randolph D. Stowe, Norfolk, for appellant.

(Mark L. Earley, Attorney General; Donald E. Jeffrey, III, Assistant Attorney General, on brief), for appellee.

Present: BENTON, BRAY and FRANK, JJ.

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.


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

546 S.E.2d 757
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 .... [T]here 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

546 S.E.2d 758
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 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.


"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.'" Cum 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
546 S.E.2d 759
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 understandingly 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...

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3 cases
  • McNair v. Com., Record No. 1106-00-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • March 19, 2002
    ...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 co......
  • Bailey v. Com., Record No. 0462-00-2.
    • United States
    • Virginia Court of Appeals of Virginia
    • August 27, 2002
    ...37 Va.App. 687, 700, 561 S.E.2d 26, 32 (2002) (Benton, J., with whom Elder, J., joins, concurring), and McNair v. Commonwealth, 35 Va.App. 587, 596-604, 546 S.En2d w56, 760-64 (2001) (Benton, J., dissenting), I would hold that the record failed to prove Bailey waived his Sixth Amendment rig......
  • McNair v. Com.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 31, 2001
    ...C.J., and BENTON, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS and AGEE, JJ. 549 S.E.2d 656 Prior report: 35 Va.App. 587, 546 S.E.2d UPON A PETITION FOR REHEARING EN BANC On June 21, 2001 came Antwoin Renard McNair, by court-appointed counsel, and filed a petition......

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