IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2013 Term
FILED
October 2, 2013
released at 3:00 p.m.
No. 11-1496
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
DARRELL K. DAVIS,
Defendant Below, Petitioner
Appeal from the Circuit Court of Mingo County
Honorable Michael Thornsbury
Criminal Action No. 11-F-2
AFFIRMED
Submitted: September 10, 2013
Filed: October 2, 2013
Steve A. Baker, Esq. C. Michael Sparks, Esq.
E. Lavoyd Morgan, Jr., Esq. Mingo County Prosecuting
E. Lavoyd Morgan, Jr. & Associates Attorney’s Office
Lewisburg, West Virginia Williamson, West Virginia
Attorneys for Petitioner Attorney for Respondent
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “‘A judge’s decision to allow an accused to exercise his right to self-
representation is reviewed under an abuse of discretion standard.’ Syl. Pt. 1, State v. Sandor,
218 W.Va. 469, 624 S.E.2d 906 (2005).” Syl. Pt. 8, State v. Surber, 228 W.Va. 621, 723
S.E.2d 851 (2012).
2. “The right of self-representation is a correlative of the right to assistance of
counsel guaranteed by article III, section 14 of the West Virginia Constitution.” Syl. Pt. 7,
State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).
3. “‘A person accused of a crime may waive his constitutional right to assistance
of counsel and his constitutional right to trial by jury, if such waivers are made intelligently
and understandingly.’ Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138
S.E.2d 159 (1964).” Syl. Pt. 4, State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012).
4. “‘A defendant in a criminal proceeding who is mentally competent and sui
juris, has a constitutional right to appear and defend in person without the assistance of
counsel, provided that (1) he voices his desire to represent himself in a timely and
unequivocal manner; (2) he elects to do so with full knowledge and understanding of his
rights and of the risks involved in self-representation; and (3) he exercises the right in a
i
manner which does not disrupt or create undue delay at trial.’ Syllabus Point 8, State v.
Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).” Syl. Pt. 5, State v. Surber, 228 W.Va.
621, 723 S.E.2d 851 (2012).
5. “‘“The determination of whether an accused has knowingly and intelligently
elected to proceed without the assistance of counsel depends on the facts and circumstances
of the case. The test in such cases is not the wisdom of the accused’s decision to represent
himself or its effect upon the expeditious administration of justice, but, rather, whether the
defendant is aware of the dangers of self-representation and clearly intends to waive the
rights he relinquishes by electing to proceed pro se.” State v. Sheppard, [172] W.Va. [656,
671], 310 S.E.2d 173, 188 (1983) (citations omitted).’ Syllabus Point 2, State v. Sandler, 175
W.Va. 572, 336 S.E.2d 535 (1985).” Syl. Pt. 5, State v. Sandor, 218 W.Va. 469, 624 S.E.2d
906 (2005).
6. “‘When an accused chooses to proceed without the assistance of counsel, the
preferred procedure is for the trial court to warn the accused of the dangers and
disadvantages of self-representation and to make inquiries to assess whether the accused’s
choice is knowing, intelligent and voluntary. In the absence of such a colloquy, a conviction
may be sustained only if the totality of the record demonstrates that the accused actually
understood his right to counsel, understood the difficulties of self-representation, and still
ii
knowingly and intelligently chose to exercise the right to self-representation.’ Syllabus Point
7, State v. Sandor, 218 W.Va. 469, 624 S.E.2d 906 (2005).” Syl. Pt. 7, State v. Surber, 228
W.Va. 621, 723 S.E.2d 851 (2012).
iii
Per curiam:
The petitioner, Darrell Keith Davis, appeals his August 11, 2011, convictions
by a jury of multiple felonies in the Circuit Court of Mingo County, West Virginia. The
petitioner’s primary argument on appeal is that the trial court committed error in allowing
him to represent himself, thereby depriving him of his constitutional right to assistance of
counsel. Upon our consideration of the record in this matter, the briefs and arguments of the
parties, and the applicable legal authority, and for the reasons discussed below, we find no
error and, accordingly, affirm the petitioner’s convictions.
I. Facts and Procedural Background
On July 31, 2010, the petitioner broke into a cabin on Newsome Ridge, Mingo
County, where his wife, Lara Davis, and Gary Newsome were sleeping. After shooting Mr.
Newsome in the forehead, the petitioner shot Ms. Davis in the back and then struck her in
the head with the butt of his rifle. Before fleeing the scene with Ms. Davis, the petitioner set
fire to the cabin while Mr. Newsome was still inside. For approximately five hours, the
petitioner drove around while Ms. Davis begged him to take her to a hospital for her life-
threatening injuries. The petitioner eventually drove to Fleming County, Kentucky, where
his cousin persuaded him to take Ms. Davis to a hospital. The petitioner was later arrested
and extradited to West Virginia. He was charged with the first degree murder of Mr.
Newsome, the kidnapping and malicious assault of Ms. Davis, arson, and burglary.
1
At the initial arraignment hearing conducted on August 9, 2011, attorney
Robert B. Kuenzel was appointed to represent the petitioner. During this hearing, the
petitioner entered a plea of not guilty. Thereafter, attorney Diana Carter-Weidel was
appointed as counsel for the petitioner in place of Mr. Kuenzel.1
At the petitioner’s arraignment following his indictment, which was held on
January 20, 2011, he waived the reading of the indictment and again entered a plea of not
guilty.2 A scheduling order was entered and a trial date was set for March 29, 2011.
Ms. Weidel appeared on the petitioner’s behalf at subsequent hearings held on
February 22, March 14, and March 21, 2011. The March 21, 2011, hearing was conducted
on the issue of the petitioner’s competency to stand trial. During this hearing, a court-
ordered mental status evaluation report completed on March 14, 2011, by psychiatrist Ralph
S. Smith, Jr., M.D., and psychologist Rosemary Smith, was admitted into evidence.3 Among
1
The record does not reflect the reason Mr. Kuenzel was no longer the petitioner’s
appointed counsel.
2
Although Ms. Weidel had been appointed to represent the petitioner, another attorney,
Marsha Webb-Rumora, stood in for Ms. Weidel at the January 20, 2011, arraignment. As
discussed more fully below, the petitioner ultimately hired Ms. Rumora and her law firm as
standby counsel. See State v. Powers, 211 W.Va. 116, 563 S.E.2d 781 (2001) (generally
discussing nature and concept of standby counsel).
3
The March 14, 2011, mental status evaluation report was not made a part of the
appellate record; however, the trial court specifically referred to various portions of it during
the course of the March 21, 2011, hearing.
2
other things, the trial court made specific reference to that portion of the report opining that
the petitioner “‘was able to state the crimes with which he stands charged and the possible
penalties therefor[,]’” and that “‘[h]e was aware of the roles of various courtroom personnel
and knew the purpose of the trial.’”4 The trial court concluded that the petitioner was
competent to stand trial. Also during the March 21, 2011, competency hearing, Ms. Weidel
moved for a continuance of the trial date because, inter alia, discovery had not yet been
completed. The motion for a continuance was granted and the trial was scheduled for April
5, 2011.
At a subsequent hearing conducted on March 28, 2011, Ms. Weidel requested
the trial court’s permission to obtain a second expert opinion as to the petitioner’s
competency to stand trial. The trial court granted Ms. Weidel’s request. Thereafter, during
the course of an April 4, 2011, hearing, Ms. Weidel moved to continue the April 5, 2011, trial
date on the ground that the petitioner was not scheduled to undergo the second competency
evaluation until April 18, 2011. After fully advising the petitioner, on the record, of his right
to a speedy trial within the same term of court as his indictment, the trial court found that the
petitioner knowingly and intelligently waived his right to a speedy trial and, thereafter,
4
Additionally, the March 14, 2011, report indicated that the petitioner was dissatisfied
with Ms. Weidel; according to the report, “‘he does not like his attorney because, “she
doesn’t work for me,” and [he] complained that he had not seen [her] for four months and
he had not been provided discovery materials until sometime in January.’”
3
granted the motion for a continuance to allow further psychological testing. The trial was
continued to May 24, 2011.
On May 23, 2011, the day before trial was scheduled to begin, Ms. Weidel
moved to withdraw as the petitioner’s counsel. As grounds for her motion, Ms. Weidel
maintained that, during a recent meeting with the petitioner regarding the upcoming trial, the
petitioner advised her that “he no longer wanted [her] to represent him and that he no longer
had any faith in [her] representation.” Ms. Weidel further explained that the petitioner
indicated to her that he had “a long list of witnesses he wanted subpoenaed [to testify at trial]
but he would not give [her] their names or tell [her] what he wanted them to come testify
about.” As a result, Ms. Weidel believed “it would be impossible for him [sic] to assist him
or to represent him effectively at this point.” Upon inquiry of the petitioner by the trial court,
the petitioner indicated that he “recommend[ed]” that the trial court grant Ms. Weidel’s
motion to withdraw, and further affirmed that he and Ms. Weidel had “attorney/client issues”
resulting in irreconcilable differences as to the manner in which the petitioner wished to
defend his case. The trial court granted Ms. Weidel’s motion to withdraw.
Immediately after granting Ms. Weidel’s motion to withdraw, the trial court
appointed attorney Susan Van Zant as the petitioner’s new counsel. However, the petitioner
advised the trial court that he wished to represent himself. In response to the petitioner’s
4
request, and, indeed, throughout the course of the proceedings in this case, the record reveals
that the trial court warned the petitioner of the dangers and disadvantages of self-
representation while also recognizing his constitutional right to waive counsel and to
represent himself.5 Given the petitioner’s stated desire to proceed pro se, the trial court
appointed Ms. Van Zant as standby counsel.6 The trial was continued to August 9, 2011.
At subsequent hearings on May 31 and July 13, 2011, the petitioner reaffirmed
his desire to proceed pro se. At the July 13, 2011, hearing, forensic psychiatrist Dr. Bobby
Miller testified with regard to both the petitioner’s competency to stand trial and to represent
himself.7 Consistent with the previous psychological evaluation of March 14, 2011, Dr.
Miller opined that the petitioner was competent to stand trial. He further opined that the
petitioner has a “‘rational [and] factual understanding of the proceedings against him’” and
that his “‘competence extends to those capacities necessary to represent himself . . . .’” Dr.
5
More specific facts about the trial court’s repeated admonishments in this regard and
the petitioner’s knowing and intelligent decision to waive his right to counsel and to
represent himself will be more fully discussed below.
6
Ms. Van Zant was not present at the May 23, 2011, hearing when the trial court
appointed her as standby counsel. Her first appearance as the petitioner’s standby counsel
occurred on May 31, 2011.
7
Dr. Miller conducted the second mental competency evaluation previously requested
by the petitioner’s former counsel, Ms. Weidel. His report was admitted into evidence at the
July 13, 2011, hearing but was not made a part of the record in this appeal. However, during
the course of the July 13, 2011, hearing, the trial court read certain findings from the report
into the record.
5
Miller also explained during his testimony adduced at trial that, in his opinion, the petitioner
knowingly and intelligently waived his right to counsel. More specifically, he testified that
the petitioner has
the emotional and intellectual and academic capacities to do
what would be expect[ed] with him in a court of law and I
evaluated him specifically for this, and the answer was yes, he
does, so it is my opinion that with respect to [the petitioner] he
is competent to waive his right to counsel and that he has done
so knowingly and intelligently. . . .
Dr. Miller further testified that the petitioner explained to him that he decided
to represent himself because the attorneys appointed by the court had “not been successful
in prevailing in such procedures and that since their batting average was zero[,] [the
petitioner] couldn’t do any worse.” The petitioner also criticized the appointed attorneys’
“lack of quickness for which they did things you asked them.”8
During the course of the July 13, 2011, hearing, the petitioner moved to
discharge Ms. Van Zant as standby counsel and advised the trial court that he would soon be
hiring his own standby counsel with funds provided by members of his family. The trial
court granted the motion to discharge Ms. Van Zant and immediately appointed attorney
8
According to Dr. Miller, the petitioner had previously been diagnosed with antisocial
personality disorder and, as such, has difficulty with authority. According to Dr. Miller, the
petitioner feels “that the rules don’t apply to” him. Dr. Miller further opined that the
petitioner is a narcissist.
6
Kathryn Cisco-Sturgell to represent him as standby counsel until such time as new counsel
was privately retained.
Thereafter, on July 21, 2011, attorney Marsha Webb-Rumora appeared as the
petitioner’s standby counsel. The written representation agreement between the petitioner
and Ms. Rumora’s law firm specifically provided that the firm was retained to “assist” the
petitioner; that the petitioner “shall represent myself as my own attorney[;]” that “I shall
make all decisions in the defense of my case[;]” that “I shall prepare all pretrial motions and
post-trial motions[;]” that “I shall make all objections . . . and . . . all motions during my
trial[;]” that “I shall examine all witnesses[;]” that “I shall be responsible for all facets of my
trial[;]” and that the law firm “shall be available to assist me and give me direction on the
above and shall be available to answer my questions in all matters regarding pretrial, trial and
post-trial.”
When this matter proceeded to trial, the petitioner conducted the defense’s
opening argument, examined witnesses, made objections, and otherwise represented himself
while requesting assistance from standby counsel on an occasional basis.9 The record reveals
that, to a large degree, the trial court exercised exemplary patience with the petitioner
9
For example, the petitioner consulted standby counsel with regard to whether he
would testify during his case-in-chief (he elected not to) and, at the trial court’s suggestion,
also allowed standby counsel to argue the jury instructions.
7
throughout the trial and that, at various times, assisted him by advising him to put a statement
in question form while examining a witness; explained to him how to lay a foundation for
testimony about the deceased victim’s reputation for violence; and advised him that he could
recall a State’s witness in his case-in-chief.10 Meanwhile, the State’s evidence against the
petitioner overwhelmingly pointed to the petitioner’s guilt.
When it apparently became clear to the petitioner that a conviction was
imminent, he began his closing argument by stating,“[T]his was the first time I [have] seen
my wife in over a year because I’ve been locked up in jail because the court refused to give
me bail. . . . I did talk to my wife on the phone and we’ve been writing to each other . . . .”
The State immediately objected and the petitioner became increasingly argumentative with
the trial court. He then moved for a mistrial “[o]n the grounds of inadequate counsel, my
counsel, for my defense. . . . I can’t do it. I don’t know what I’m doing. I’m mentally
confused right now.”
The petitioner’s motion for mistrial was denied. Just as the trial court was
directing standby counsel to take over the petitioner’s closing argument, the petitioner fell
10
Furthermore, when, during his case-in-chief, the petitioner became confused about
whether a State’s witness was subject to recall and indecisive about whether he would recall
another witness, the trial court immediately advised the petitioner that standby counsel could
take over the case “anytime they want to. They can take over from this point forward and
finish you[r] case. I don’t have a problem with that.”
8
to the floor. Emergency medical personnel immediately evaluated the petitioner in the
presence of the trial court and on the record (but outside the presence of the jury). The trial
court found the petitioner to have no physical infirmity. However, out of an abundance of
caution, the trial court ordered that the petitioner be transported to a local hospital for further
evaluation and trial was recessed until he was returned to court later that day. Standby
counsel for the petitioner resumed closing argument and the petitioner was convicted of the
multiple felonies as described above.
The petitioner’s post-trial motions were denied by order entered September 7,
2011. By order entered September 29, 2011, he was sentenced to life in prison without the
possibility of parole for the murder and kidnapping convictions, which were ordered to run
consecutively. The petitioner’s sentences for the convictions of first degree arson (a definite
term of ten years), burglary (one to fifteen years), and malicious assault (two to ten years)
were ordered to run concurrently with the sentence for the kidnapping conviction. This
appeal followed.
II. Standard of Review
This appeal involves whether the trial court acted properly in allowing the
petitioner to represent himself at trial. This Court has previously held that “‘[a] judge’s
decision to allow an accused to exercise his right to self-representation is reviewed under an
9
abuse of discretion standard.’ Syl. Pt. 1, State v. Sandor, 218 W.Va. 469, 624 S.E.2d 906
(2005).” Syl. Pt. 8, State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012). With this
standard in mind, the petitioner’s argument will now be considered.
III. Discussion
The petitioner’s primary assignment of error is that the trial court committed
error in allowing him to represent himself, thereby depriving him of his constitutional right
to assistance of counsel. The petitioner argues that the trial court failed to make the petitioner
aware of the dangers and disadvantages of self-representation or to make inquiries sufficient
to assess whether his decision to proceed pro se was knowingly and intelligently made. The
State counters that, based upon the totality of the facts and circumstances, the petitioner was
mentally competent to represent himself and knowingly and intelligently chose to waive his
right to the assistance of counsel and to represent himself.
It is well settled that an accused has a constitutional right to defend himself
without the assistance of counsel: “The right of self-representation is a correlative of the right
to assistance of counsel guaranteed by article III, section 14 of the West Virginia
Constitution.” Syl. Pt. 7, State v. Sheppard, 172 W.Va. 656, 661, 310 S.E.2d 173, 178 (1983).
Indeed, “‘[a] person accused of a crime may waive his constitutional right to assistance of
counsel and his constitutional right to trial by jury, if such waivers are made intelligently and
10
understandingly.’ Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d
159 (1964).” Surber, 228 W.Va. at 623, 723 S.E.2d at 855, syl. pt. 4. This Court has
previously explained, however, that an accused’s right to self-representation is a qualified one.
In syllabus point five of Surber, this Court held as follows:
“A defendant in a criminal proceeding who is mentally
competent and sui juris, has a constitutional right to appear and
defend in person without the assistance of counsel, provided that
(1) he voices his desire to represent himself in a timely and
unequivocal manner; (2) he elects to do so with full knowledge
and understanding of his rights and of the risks involved in
self-representation; and (3) he exercises the right in a manner
which does not disrupt or create undue delay at trial.” Syllabus
Point 8, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173
(1983).
228 W.Va. at 623, 723 S.E.2d at 855; see Sheppard, 172 W.Va. at 670, 310 S.E.2d at 187
(“[T]he right of self-representation is a qualified right and its exercise is subject to reasonable
restrictions designed to further two important considerations: protection of other fundamental
rights guaranteed the accused by the Constitution, and protection of the orderly administration
of the judicial process.”).
Furthermore, in syllabus point five of State v. Sandor, 218 W.Va. 469, 472,
624 S.E.2d 906, 909 (2005), this Court held that
“The determination of whether an accused has knowingly
and intelligently elected to proceed without the assistance of
counsel depends on the facts and circumstances of the case. The
test in such cases is not the wisdom of the accused’s decision to
represent himself or its effect upon the expeditious
11
administration of justice, but, rather, whether the defendant is
aware of the dangers of self-representation and clearly intends to
waive the rights he relinquishes by electing to proceed pro se.”
State v. Sheppard, [172] W.Va. [656, 671], 310 S.E.2d 173, 188
(1983) (citations omitted). Syllabus Point 2, State v. Sandler,
175 W.Va. 572, 336 S.E.2d 535 (1985).
Likewise, we have cautioned that a trial court’s inquiry into whether an accused’s choice is
knowing, intelligent and voluntary should be a calculated one:
1. To ascertain if the defendant is cognizant of and willing to
relinquish his right to assistance of counsel.
2. To insure that the accused is aware of the nature, complexity
and seriousness of the charges against him and of the possible
penalties that might be imposed.
3. To warn the accused of the danger and disadvantages of self-
representation. (e.g., that self-representation is almost always
detrimental and that he will be subject to all the technical rules of
evidence and procedure, the same as if he had been represented
by counsel.)
4. To advise the defendant that he waives his right to refuse to
testify by going outside the scope of argument and testifying
directly to the jury.
5. To make some inquiry into the defendant’s intelligence and
capacity to appreciate the consequences of his decision.
Sandor, 218 W.Va. at 477, 624 S.E.2d at 914 (quoting Sandler, 175 W.Va. at 574, 336 S.E.2d
at 537); see also Sheppard, 172 W.Va. at 670-72, 310 S.E.2d at 187-89.
At the same time, however, we have made clear that a trial court is not required
to follow these guidelines as though they were “a sacrosanct litany, and the failure to make
12
inquiry as to any particular topic does not make a reversal of a conviction inevitable.”
Sandor, 218 W.Va. at 478, 624 S.E.2d at 915. Indeed, “‘[t]hese guidelines are not
mandatory.’” Id. (quoting Sandler, 175 W.Va. at 574, 336 S.E.2d at 537). Rather,
[t]he goal . . . is that the accused be aware of the right to counsel
and the disadvantages of proceeding pro se. That awareness can
be established, however, without regard to any admonitions or
colloquies by the court. “[B]ecause the test [for a valid waiver
of the right to counsel] concerns what the accused understood
rather than what the court said or understood, explanations are
not required.”
Sandor, 218 W.Va. at 478, 624 S.E.2d at 915 (quoting United States v. Kimmel, 672 F.2d 720,
722 (9th Cir. 1982)); see also Faretta v. California, 422 U.S. 806, 835 (1975) (“Although a
defendant need not himself have the skill and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that ‘he knows what he
is doing and his choice is made with eyes open.’” (quoting Adams v. United States ex rel.
McCann, 317 U.S. 269, 279 (1942)). Therefore, where the record does not contain “a
colloquy regarding the accused’s decision to proceed pro se . . . appellate courts may proceed
to examine the totality of the circumstances of the case and the background of the accused in
an attempt to assess whether the accused’s decision was constitutionally fair.” Sandor, 218
W.Va. at 478, 624 S.E.2d at 915.
Accordingly, we have held that
13
“[w]hen an accused chooses to proceed without the
assistance of counsel, the preferred procedure is for the trial court
to warn the accused of the dangers and disadvantages of
self-representation and to make inquiries to assess whether the
accused’s choice is knowing, intelligent and voluntary. In the
absence of such a colloquy, a conviction may be sustained only
if the totality of the record demonstrates that the accused actually
understood his right to counsel, understood the difficulties of
self-representation, and still knowingly and intelligently chose to
exercise the right to self-representation.” Syllabus Point 7, State
v. Sandor, 218 W.Va. 469, 624 S.E.2d 906 (2005).
Surber, 228 W.Va. at 624, 723 S.E.2d at 854, syl. pt. 7.11
11
In Sandor, this Court explained that its preference for a short and simple colloquy
is a practical one:
“Our holding, that a specific on the record warning of the
dangers and disadvantages of self-representation is not an
absolute necessity in every case for a valid waiver of counsel,
should in no way be interpreted as any indication that we
disfavor such a policy. Exactly the opposite is true. At best,
requiring appellate courts to search through voluminous records
for evidence of knowledge of this type is a time-consuming
effort and a waste of judicial resources. It is a waste of judicial
resources not because it is a frivolous inquiry, but because it
could be avoided with a relatively short and simple colloquy on
the record. Indeed, such a practice would be better for all
parties involved because it would both help prevent error, and
it would make frivolous appeals easier to dispose of. Thus, we
are hopeful that all courts will voluntarily pursue this practice
and that government prosecutors will see the benefit in
encouraging courts with other practices to change them.”
218 W.Va. at 478 and n.8, 624 S.E.2d at 916 and n.8 (quoting Meyer v. Sargent, 854 F.2d
1110, 1115 (5th Cir. 1988).
14
At issue in the case sub judice is whether the totality of the record demonstrates
that the petitioner understood his right to counsel, appreciated the dangers and disadvantages
of waiving that right and representing himself, and still knowingly and intelligently chose to
do so. See Surber, 228 W.Va. at 624, 723 S.E.2d at 851, syl. pt. 7. The petitioner argues that
he did not understand the perils of self representation given that he “proceeded without
coherently advancing any theory, despite the availability of several defense theories[;]” was
“unable to effectively prepare for his representation” because he was incarcerated; and “failed
to understand the significance of key witnesses . . . [which] led to disastrous results . . . .”
Thus, the petitioner contends, his waiver of the right to counsel was invalid.
Based upon our careful review of the totality of the record, we conclude that the
circuit court did not abuse its discretion in allowing the petitioner to exercise his constitutional
right to self representation. Beginning with the petitioner’s initial arraignment, the trial court
plainly and clearly advised him that he had a right to counsel and, in fact, counsel was
appointed to represent him. At a subsequent hearing, the petitioner affirmed that he had a fair
and adequate opportunity to read the indictment and that the nature of all charges, the
elements of the charged offenses and their penalties were explained to him by his then-
appointed counsel, Ms. Weidel. Upon expressing his desire to proceed pro se, the petitioner
was evaluated by a forensic psychiatrist. Dr. Miller concluded that the petitioner had “the
emotional and intellectual and academic capacities to do what would be expect[ed] [of] him
15
in a court of law” and was “competent to waive his right to counsel and that he has done so
knowingly and intelligently . . . .”12
Thereafter, during the course of proceedings held on May 31, July 13, and July
21, 2011, the petitioner reaffirmed his unequivocal desire to proceed while representing
himself. Notwithstanding the petitioner’s argument to the contrary, the record demonstrates
that on numerous occasions, the trial court warned the petitioner of the dangers and
disadvantages of doing so, calling self representation “an ill advised decision;” urging him to
“understand the importance of counsel” and to change his mind; and advising him that, in
most cases, an accused “certainly would be better served to be with counsel.” Furthermore,
the trial court repeatedly cautioned the petitioner that he would be required to comply with
all court rules and procedures. The petitioner clearly understood this admonition. On one
occasion, when the trial court urged the petitioner to consult with standby counsel to ensure
the rules were complied with regarding the admission of evidence in his case, the petitioner
12
Dr. Miller also testified that the petitioner stated that one of the reasons he chose to
represent himself was that “he believed that if he is convicted and he recognizes that [is] a
distinct possibility, that he would prevail in an appeal in something that he called a habeas.”
However, on the morning of trial, the trial court clearly advised the petitioner as follows: “In
most cases people are represented by lawyers and then they can come back later and allege[]
ineffective assistance of counsel. You’re not going to be able to come back later if you are
convicted later [sic] and allege ineffective assistance of counsel because you are your own
counsel.” The petitioner indicated, without equivocation, that he understood the trial court’s
warning in this regard.
16
replied, “Yes, sir. Everybody’s got to play by the Rules.”13 On the record, the trial court
found the petitioner to be intelligent and articulate and that he “demonstrated an ability to
cognitively approach this case.”14 Moreover, standby counsel was present at every
proceeding. On more than a few occasions, the trial court encouraged the petitioner to confer
with counsel and, in fact, the petitioner did confer with them several times throughout the
trial.
Based upon the foregoing, it is clear that the totality of the facts and
circumstances, as set forth above, reflect that the petitioner understood his constitutional right
to counsel, appreciated the dangers and disadvantages of self representation, and still
13
On another occasion, during the May 31, 2011, hearing, while explaining the concept
of reciprocal discovery to the petitioner, the trial court advised him that he “ha[s] a duty to
comply with the Rules. Again, that’s one of the pitfalls I told you about.” The petitioner
clearly responded, “I know that[,]” explaining that “I spent a lot of my teen years in
courtrooms . . . .” Likewise, on the morning of trial, the petitioner requested a pre-trial ruling
regarding the admissibility of certain photographs of the victims and others taken at the
deceased’s cabin hours before the crimes herein occurred. Among other things, the petitioner
intended to show that at least one of the people in the photograph had intended to lure him
to the cabin in order to rob him. The trial court warned the petitioner that “if you supply
motive to the state thru [sic] your own efforts[,] then that can be utilized in an adverse
fashion against you.” In response, the petitioner stated, “I understand it cuts both ways.”
14
Indeed, the record is replete with evidence that, prior to trial, the petitioner made
numerous motions for the production of certain evidence; for the admission of certain
evidence (such as evidence of the deceased victim’s reputation for aggressiveness or
violence); and inquired about how to serve subpoenas on out-of-state witnesses. When the
State indicated to the petitioner that it had previously disclosed DNA test results that the
petitioner requested, the petitioner replied, “I’ve been in a cell for 24 hours a day. I’ve got
nothing to do but to read this case over and over and over and over. I’ve got this thing
memorized. I’m not forgetting, I’m not stupid, so don’t treat me like that.”
17
knowingly and intelligently chose to represent himself. As we have previously cautioned,
“[t]he test . . . is not the wisdom of the [petitioner’s] decision to represent himself.” Sandor,
218 at 472, 624 S.E.2d at 909, syl. pt. 5. Indeed, this Court “need make no assessment of how
well or poorly” the petitioner presented his case, “[f]or his technical legal knowledge, as such,
was not relevant to an assessment of his knowing exercise of the right to defend himself.”
Faretta, 422 U.S. at 836. Accordingly, we conclude that the trial court did not abuse its
discretion in allowing the petitioner to represent himself.15
15
The petitioner also assigns as error the fact that the trial court allowed Ms. Weidel,
one of his court-appointed lawyers, to withdraw without good cause, and failed to appoint
“competent counsel” in her stead. We find the petitioner’s argument in this regard to be
without merit.
On the record, Ms. Weidel made clear her reasons for requesting to withdraw
as the petitioner’s counsel. The record reflects that, from the beginning, the petitioner was
dissatisfied with Ms. Weidel and uncooperative with her efforts to represent him. Although,
in Watson v. Black, 161 W.Va. 46, 239 S.E.2d 664 (1977), this Court indicated that a trial
court “should conduct a hearing . . . to determine whether good cause exists to discharge a
court-appointed counsel and appoint another[,]” such a hearing is not mandatory. 161 W.Va.
at 47, 239 S.E.2d at 665, syl. pt. 3. In the present case, it was abundantly clear that no
counsel appointed by the trial court would have met with the petitioner’s approval. As the
petitioner stated more than once, they “don’t work for me.” Indeed, only moments after Ms.
Weidel was permitted to withdraw and Ms. Van Zant was appointed, the petitioner
announced to the trial court that he intended to represent himself. Furthermore, the petitioner
then affirmatively set out to hire his own standby counsel with whom it was agreed that the
petitioner would “make all decisions” and be “responsible for all facets of [his] trial.” Based
upon these facts, we conclude that the trial court did not abuse its discretion in allowing Ms.
Weidel to withdraw as the petitioner’s counsel.
Finally, the petitioner argues that the trial court erred in failing to articulate the
scope of representation of appointed standby counsel, Ms. Van Zant, as required by State v.
Powers, 211 W.Va. 116, 563 S.E.2d 781 (2001). In Powers, this Court held that when
standby counsel is appointed “to assist a criminal defendant who has been permitted to
proceed pro se, the circuit court must, on the record at the time of the appointment, advise
both counsel and the defendant of the specific duties standby counsel should be prepared to
18
IV. Conclusion
In consideration of the foregoing, we find no error and, therefore, affirm the
September 7, 2011, and September 25, 2011, orders of the Circuit Court of Mingo County.
Affirmed.
perform.” Id., 211 W.Va. at 117, 563 S.E.2d at 782, syl. pt. 2, in relevant part. The record
before us is clear that during Ms. Van Zant’s first appearance as the petitioner’s standby
counsel, the trial court clarified her role as follows: “If he wants you to assist him he will ask
for it. You are to affirmatively do nothing unless he asks for it.” The trial court reiterated
the scope of Ms. Van Zant’s duties several times throughout the course of the proceedings.
Although Ms. Van Zant indicated that she preferred to be lead counsel and that she explained
to the petitioner the importance of counsel especially given that he is incarcerated, she
indicated that she understood her role and attempted to carry it out. In consideration of all
of the above, we conclude that the trial court properly advised both counsel and the petitioner
of Ms. Van Zant’s specific duties as standby counsel. Accordingly, we conclude that the
petitioner’s argument that the trial court committed error in this regard is without merit.
19