Thomas v. Com.

• Decision Date: 03 November 2000
• Docket Number: Record No. 000408.
• Citation: 539 S.E.2d 79,260 Va. 553
• Court: Virginia Supreme Court
• Parties: Antoine Lamont THOMAS v. COMMONWEALTH of Virginia.

539 S.E.2d 79

260 Va. 553

Antoine Lamont THOMAS v. COMMONWEALTH of Virginia.

Record No. 000408.

Supreme Court of Virginia.

November 3, 2000.

Maureen L. White, Richmond, for appellant.

Robert H. Anderson III, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: All the Justices.

KOONTZ, Justice.

In this appeal, we consider whether the trial court erred in denying a criminal defendant's motion that he be permitted to waive his right to counsel and to represent himself at trial.

BACKGROUND

On March 1, 1999, the grand jury of the City of Richmond returned indictments against Antoine Lamont Thomas charging him with grand larceny, Code 18.2-95, and statutory burglary, Code § 18.2-91. The charges arose from the breaking of a window and taking of consumer goods valued at over $600 from a downtown Richmond store on August 25, 1998.

The Circuit Court of the City of Richmond (the trial court) appointed counsel to represent Thomas on April 26, 1999, and she undertook discovery on his behalf. For reasons not fully disclosed in the record, the trial date was continued four times over the course of three months, during which time Thomas continued to be represented by his court-appointed counsel.

On July 22, 1999, Thomas and his counsel appeared in the trial court. When the clerk called the case and asked counsel whether she was prepared, she responded, "I believe my client had a motion." The trial court asked Thomas whether he had a motion to make and Thomas replied:

Yes, Your Honor, sir. If the Court will allow I would like to represent myself on the charge[s] of grand larceny and burglary. I believe I am well educated with those two charges and elements which consist of them so if you don't mind just those two.

By "just those two," Thomas meant that he did not wish to represent himself in a probation revocation proceeding that would follow his trial if he were convicted.¹ The trial court asked Thomas whether he had ever previously represented himself. Thomas replied, "Yes I have. Not on these exact charges but I have represented myself." The trial court then asked whether Thomas understood the elements of the offenses with which he was charged. Thomas replied:

For ... statutory burglary the breaking and entering in the night time as well as the intent. As far as the grand larceny, the actual taking [of] the stuff. That pretty much sums it up.

The trial court asked Thomas whether he had an understanding of the rules of evidence. In response, Thomas said that he understood that grand larceny required proof that the value of the goods was at least $200. The trial court then asked specifically whether Thomas understood the rules of hearsay, and Thomas said that he did. When the trial court asked whether he had any formal legal training, Thomas stated that he had "studied these charges for the last seven months."

When asked whether he had made any request with which his counsel had not complied, Thomas indicated that he was not satisfied with counsel's response to his request for further discovery. In reply to the trial court's inquiry on this matter, Thomas' counsel indicated that she had shared with Thomas the forensic reports obtained through discovery. She had not complied, however, with Thomas' request that she ask the Commonwealth to disclose the identity of its witnesses. She explained to him that the Commonwealth was not required to make such disclosure. Thomas stated that he wanted the Commonwealth to disclose the criminal backgrounds of all its witnesses. The trial court explained, however, that the Commonwealth could not be compelled to reveal that information, unless it was exculpatory.

The trial court then asked Thomas' counsel whether she felt capable of representing Thomas at trial. Counsel responded, "I don't have a problem trying this case.... I have every confidence I could try this case to the utmost of my ability and zealously represent Mr. Thomas." The trial court asked whether Thomas had requested that any witnesses be called on his behalf. Counsel replied that he had, but that she had interviewed them and had concluded that "they are not viable witnesses." Thomas conceded that he had discussed the potential witnesses with his counsel and indicated that he would not be able to call any of his witnesses that day. Nonetheless, Thomas stated that he was "prepared to move on myself."

The trial court denied Thomas' motion to represent himself, stating that burglary and larceny "are serious charges. They have elements — which you have recited some of those but they're technical offenses. I think you need counsel to help with that."

Trial then commenced with Thomas represented by his appointed counsel. Thomas pled not guilty to both charges and, the Commonwealth and the trial court concurring, waived his right to a jury trial. The witnesses were excluded on motion of Thomas' counsel.

The Commonwealth presented evidence from the storeowner, a police detective, and a forensic expert. The evidence showed that Thomas' fingerprints were found on the store's window display. An eyewitness testified that he heard the window break and saw Thomas walking away from the store with a bag of merchandise late at night. Thomas testified on his own behalf and denied taking the merchandise from the display window. At the conclusion of the evidence, the trial court, finding there was no evidence that Thomas had entered the store, acquitted him of burglary but convicted him of grand larceny, sentencing him to three years' imprisonment with two years suspended.

Thomas filed a petition for appeal in the Court of Appeals asserting issues related to the denial of his motion to represent himself and sufficiency of the evidence to prove grand larceny. By unpublished order, the Court of Appeals refused Thomas' petition for appeal. With respect to the denial of his motion to represent himself, the Court of Appeals found that the record supported a finding that Thomas "had not knowingly, voluntarily, and intelligently waived his right to counsel." Thomas v. Commonwealth, Record No. 1880-99-2 (February 2, 2000).

Thomas filed a petition for appeal in this Court, assigning error to the Court of Appeals' failure to award him an appeal on both issues raised in his petition to that Court. By order dated June 12, 2000, we awarded Thomas an appeal limited to the issue whether the trial court erred in denying his motion to represent himself.

DISCUSSION

In Faretta v. California, 422 U.S. 806, 835-36, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that the Sixth Amendment guarantee of the right to assistance of counsel also provides a criminal defendant with a constitutional right to represent himself without counsel if he voluntarily and intelligently elects to do 50.² "Because an exercise of the right of self-representation necessarily entails a waiver of the right to counsel — a defendant obviously cannot enjoy both rights at trial — the exercise of the right of self-representation must be evaluated by using many of the same criteria that are applied to determine whether a defendant has waived the right to counsel." United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir.2000). In Frazier-El, the United States Court of Appeals for the Fourth Circuit detailed the requirements for a valid assertion of the right of self-representation: the defendant's motion must be timely, clear, and unequivocal, and the defendant's decision must be voluntarily, knowingly, and intelligently made.³Id.

The Commonwealth concedes that Thomas' request to represent himself was clear and unequivocal. Indeed, the record establishes that Thomas made his request in unambiguous and precise terms, being cautious to waive his right to counsel only for the present criminal proceeding and not for the probation revocation proceeding that might follow. Similarly, nothing in the record suggests that Thomas' motion was not voluntary. The Commonwealth asserts, however, that Thomas' motion was not timely. We agree that this is the dispositive issue in this case.

When the motion is timely, the trial court has no discretion to deny a defendant his right to represent himself, if the trial court is satisfied that the requirements of Faretta have been met. United States v. Lawrence, 605 F.2d 1321, 1324 (4th Cir.1979). Once meaningful trial proceedings have commenced, however, the decision to permit the exercise of the right of self-representation lies within the trial court's sound discretion. Bassett v. Commonwealth, 222 Va. 844, 857-58, 284 S.E.2d 844, 853 (1981); accord Lawrence, 605 F.2d at 1325

.

"When `meaningful trial proceedings have commenced' will, of course, vary from case to case." Lawrence, 605 F.2d at 1325. The federal courts which have examined the issue universally agree that an assertion of the right of self-representation, even as late as the morning of trial, is timely as a matter of law if it precedes the seating of the jury. Compare, e.g., Armant v. Marquez, 772 F.2d 552, 555-56 (9th Cir.1985)

; Chapman v. United States, 553 F.2d 886, 895 (5th Cir. 1977); United States v. Denno, 348 F.2d 12, 16 (2nd Cir.1965). But see Lawrence, 605 F.2d at 1325 (motion made after jury had been selected but not yet sworn was untimely where delay in seating jury was attributable to defendant). In the present case, Thomas had not been called upon to enter pleas to the two charges, he had not yet been required to elect between a jury trial and a bench trial, and the witnesses had not yet been separated. Accordingly, despite the Commonwealth assertion that "the trial had begun when Thomas finally requested to defend himself," the record does not establish that "meaningful trial proceedings" had occurred when Thomas made his motion. Accordingly, we hold that Thomas' request was timely.

On brief and during oral argument of this appeal, the Commonwealth urged this Court to depart from the...