Watkins v. Com., 0649-96-4

• Citation: 26 Va.App. 335, 494 S.E.2d 859
• Case Date: January 20, 1998
• Court: Court of Appeals of Virginia

Page 859

494 S.E.2d 859 26 Va.App. 335 Michael Tracy WATKINS
v.
COMMONWEALTH of Virginia. Record No. 0649-96-4. Court of Appeals of Virginia,
Alexandria. Jan. 20, 1998.

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Clark E. Broderson, for appellant.

Robert H. Anderson, III, Assistant Attorney General (James S. Gilmore, III, Attorney General; Ruth Ann Morken, Assistant Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., ^* ANNUNZIATA, J., and DUFF, Senior Judge.

ANNUNZIATA, Judge.

This criminal appeal presents questions concerning the voluntariness of appellant's waiver of counsel, appellant's right to speedy trial, and the sufficiency of the Commonwealth's evidence. For the reasons that follow, we affirm.

Following a jury trial, Michael Tracy Watkins was convicted of burglary, grand larceny, receiving stolen property and possession of burglarious tools. He was sentenced to a total of ten years incarceration and was fined $2,000. Appellant represented himself at trial.

The primary issue before us is whether appellant knowingly, voluntarily and intelligently waived his right to counsel. "If the accused has not competently and intelligently waived that constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty." Edwards v. Commonwealth, 21 Va.App. 116, 123, 462 S.E.2d 566, 570 (1995) (citing Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024-25, 82 L.Ed. 1461 (1938)).

26 Va.App. 340

I. WRIT OF CERTIORARI

After review of the record originally presented, we were unable to determine whether appellant's waiver of counsel was knowingly, voluntarily and intelligently made. The record contained an order of the trial court reflecting the events of November 22, 1995, which stated that, on that date, appellant's court-appointed counsel withdrew and appellant proceeded pro se. ¹ While the order further stated that the motions taken up that day were "more specifically set forth in the

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stenographic record of this case," the record transmitted to this Court contained no transcript of the November 22, 1995 hearing or any statement of facts describing the events of that day.

Finding that resolution of the issue before us depended on our review of the transcript from the November 22, 1995 hearing, we issued a writ of certiorari, pursuant to Code § 8.01-675.4, to compel the clerk of the trial court to forward the missing transcript. ² The Commonwealth filed a motion to vacate the writ, alleging that Code § 8.01-675.4 is inapplicable because appellant failed to make the missing transcript part of the record on appeal, as defined by the Rules of Court.

The Commonwealth contends that Code § 8.01-675.4 allows the Court to order only portions of the appellate record as defined by the Rules of Court. See Rules 5A:7 and 5A:8. The Commonwealth's contention finds no support in the recent cases addressing Code § 8.01-675.4 or the parallel provision applicable in the Supreme Court, Code § 8.01-673(A). See Crumble v. Commonwealth, 2 Va.App. 231, 233, 343 S.E.2d 359, 360 (1986); Buck v. Commonwealth, 247 Va. 449, 453 n. *, 443 S.E.2d 414, 416 n. * (1994). In Crumble, a panel of this Court exercised its authority under Code § 8.01-675.4 and [26 Va.App. 341] "directed the clerk of the trial court to cause that portion of the trial court record consisting of the court reporter's recordation of closing arguments to be transcribed and forwarded to us for review." In Buck, the Supreme Court noted that the jury list at issue in the case was "not part of the record on appeal until ... a writ of certiorari to the trial court pursuant to Code § 8.01-675.4 to add the list to the record on appeal ... [was] granted." Both Crumble and Buck exemplify the Supreme Court's recitation of the general rule that certiorari will lie to "enlarge" the record on appeal.

After the record has been transmitted to this Court pursuant to [the Rules of Court] and an appeal has been granted, the record on appeal cannot be enlarged except by our award of a writ of certiorari under Code § 8.01-673.

Godfrey v. Commonwealth, 227 Va. 460, 465, 317 S.E.2d 781, 784 (1984); see also Town of Narrows v. Clear-View Cable TV, Inc., 227 Va. 272, 275 n. 2, 315 S.E.2d 835, 837 n. 2 (1984); Old Dominion Iron & Steel Corp. v. Virginia Elec. & Power Co., 215 Va. 658, 660, 212 S.E.2d 715, 718 (1975). ³

Our decision to compel the production of the missing transcript in this case is fully supported in the case law of both this and the Supreme Court. Our ruling is also in accord with the principle that the judgment of the trial court is presumed correct and the burden is on the appellant to submit to the appellate court a record that enables the court to determine whether there has been an error. Smith v. Commonwealth, 16 Va.App. 630, 635, 432 S.E.2d 2, 6 (1993).

[26 Va.App. 342] The Commonwealth's position initially fails to acknowledge that the issue before us is anything but typical. "The right to counsel ... is so fundamental to the human rights of life and liberty that its waiver is never presumed, and the 'courts indulge every reasonable presumption against waiver.' " Church v. Commonwealth, 230 Va. 208, 215, 335 S.E.2d 823, 827 (1985); see also Sargent v. Commonwealth, 5 Va.App. 143, 149, 360 S.E.2d 895, 898 (1987). Waiver of the right to counsel cannot be assumed from a silent record. Church, 230 Va. at 215, 335

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S.E.2d at 828; Sargent, 5 Va.App. at 149, 360 S.E.2d at 899 (" '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.' " (quoting Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962))). Moreover, when the issue of waiver of counsel is presented, the Commonwealth bears the burden "to show by the record that an accused who proceeds pro se has competently, intelligently, and understandingly waived his right to counsel." Edwards, 21 Va.App. at 123-24, 462 S.E.2d at 570.

Contrary to the Commonwealth's assertion, therefore, the onus of producing the missing transcript in the present case lies with the Commonwealth, not appellant. Church, 230 Va. at 216, 335 S.E.2d at 828 ("The right to assistance of counsel is so fundamental to the integrity of the criminal justice process that we must reverse because of the fortuitous omission of that part of the record which might have demonstrated the competence of the defendant's waiver."). ⁴ In the absence of the November 22, 1995 transcript, the record fails [26 Va.App. 343] to establish that appellant knowingly, intelligently and understandingly waived his right to counsel. We issued the writ to ensure that justice was served. The Commonwealth's motion is denied. ⁵

II. WAIVER OF COUNSEL

In Harris v. Commonwealth, 20 Va.App. 194, 197, 455 S.E.2d 759, 760 (1995), we held that "[t]he law requires more than the court's bare assumption that the defendant was aware of his right to counsel and knew of the pitfalls of self-representation." "[A] party relying on such a waiver must prove its essentials by 'clear, precise and unequivocal evidence. The evidence must not leave the matter to mere inference or conjecture but must be certain in every particular.' " Church, 230 Va. at 215, 335 S.E.2d at 827 (quoting White v. Commonwealth, 214 Va. 559, 560, 203 S.E.2d 443, 444 (1974)).

"Whether a waiver is voluntary and competent depends upon the particular circumstances of each case, including the defendant's background, experience, and conduct, but no particular cautionary instruction or form is required." Church, 230 Va. at 215, 335 S.E.2d at 828 (citations omitted); see also United States v. Doe, 743 F.2d 1033, 1038 (4th Cir.1984). While a formal, specific inquiry on the record regarding the capability of the accused to understand and decide the issue of waiver may be the wiser practice, the absence of such a procedure is not fatal. See United States v. Singleton, 107 F.3d 1091, 1097 (4th Cir.1997); Edwards, 21 Va.App. at 124-25, 462 S.E.2d at 570-71 (citing North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-59, 60 L.Ed.2d 286 (1979), which upheld an "implicit waiver" upon considering the whole record); Kinard v. Commonwealth, 16 Va.App. 524, 527, 431 S.E.2d 84, 86 (1993) (quoting Doe, 743 [26 Va.App. 344] F.2d at 1038). The required determination can be made upon considering the record as a whole.

Here, the appellant contends the trial court erred by not having him sign a form reflecting the...