Thomas v. Commonwealth

Present: All the Justices

ANTOINE LAMONT THOMAS
OPINION BY
v. Record No. 000408 JUSTICE LAWRENCE L. KOONTZ, JR.
November 3, 2000
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

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

1
Thomas was represented by different appointed counsel for
the revocation hearing.
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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

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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

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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 (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

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elects to do so. 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. 3 Id.

2
Although the right to counsel, and consequently the right
to serve as one’s own counsel, is not explicitly set out in the
Constitution of Virginia, we have held that it is nonetheless a
fundamental right guaranteed to an accused by the Bill of Rights
of the Constitution of Virginia. See Fitzgerald v. Smyth, 194
Va. 681, 690, 74 S.E.2d 810, 815 (1953).
3
Because the issue is governed by the application of the
Sixth Amendment, made applicable to the states in this regard by
Faretta, federal precedent is pertinent. We recognize that the
United States Court of Appeals for the Ninth Circuit adds a
further requirement that the trial court must also determine
that the motion is “not for the purposes of delay.” See, e.g.,
United States v. Schaff, 948 F.2d 501, 503 (9th Cir. 1991). The
Fourth Circuit has not yet ruled on this point, and, because the
record here establishes that Thomas was not seeking a
continuance or to otherwise delay his trial, we need not
consider at this time whether this requirement should apply to
Faretta motions in the courts of Virginia.
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 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

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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 standard

adopted in Bassett in favor of a per se rule that any Faretta

motion made the day of trial would be untimely, whether or not

meaningful trial proceedings have commenced. See Russell v.

State, 383 N.E.2d 309, 314 (Ind. 1978). We decline to adopt

such a rule. The majority view among both state and federal

jurisdictions which have considered the issue, consonant with

that expressed in Bassett and reiterated here, is that the

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timeliness of a Faretta motion made on the verge of trial must

be determined by the facts of the individual case. See, e.g.,

People v. Mogul, 812 P.2d 705, 708-09 (Colo. Ct. App.

1991)(rejecting per se rule).

When a Faretta motion is timely made, “the trial judge has

the duty to determine whether such a waiver is voluntarily and

intelligently made, ‘and it would be fitting and appropriate for

that determination to appear on the record.’ ” Church v.

Commonwealth, 230 Va. 208, 215, 335 S.E.2d 823, 827

(1985)(quoting Johnson v. Zerbst, 304 U.S. 458, 465 (1938)).

Since the right to represent oneself is constitutional, on

appeal a defendant need not show prejudice resulting from the

denial of his demand, Bittaker v. Enomoto, 587 F.2d 400, 402-03

(9th Cir. 1978), and the trial court’s factual findings are

reviewed for clear error. United States v. McConney, 728 F.2d

1195, 1200 (9th Cir. 1984)(en banc); see also Faretta, 422 U.S.

at 835.

Although the Court of Appeals apparently interpreted the

trial court’s stated reasons for denying Thomas’ motion as

comporting with Faretta, the trial court made no express finding

that Thomas’ waiver of counsel was not knowingly and

intelligently made. Rather, the trial court’s stated reasons

for denying the request to proceed pro se was that Thomas was

facing “serious charges” that were “technical offenses” and for

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which he would need the assistance of counsel in presenting a

defense.

In light of these stated reasons, it would appear that the

trial court was not considering whether Thomas’ waiver was

intelligently made but, rather, was concerned with the dangers

and disadvantages of self-representation in the absence of

adequate legal knowledge. While this concern on the part of the

trial court is understandable, a defendant’s “technical legal

knowledge . . . [is] not relevant to an assessment of his

knowing exercise of the right to defend himself.” Faretta, 422

U.S. at 836. Indeed, “although [a defendant] may conduct his

own defense ultimately to his own detriment, his choice must be

honored” so long as it is knowingly and intelligently made. Id.

at 834.

The Commonwealth contends that despite the lack of an

express finding by the trial court that Thomas’ request to

represent himself was not knowingly and intelligently made, the

record nonetheless supports the Court of Appeal’s finding that

such a basis existed for denying the request. We disagree.

Although Thomas expressed only a rudimentary understanding

of criminal discovery and the rules of evidence, his basic grasp

of the nature of the offenses with which he was charged was

accurate. In his colloquy with the trial court, Thomas was

literate, competent, and thoughtful in responding to the trial

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court’s questions and showed respect for the trial court’s

authority. Moreover, Thomas appeared to have recognized that

there were limits to his abilities, since he expressly asserted

that he did not desire to represent himself in the probation

revocation hearing that would follow a conviction on the

criminal charges. Thomas was clearly cognizant of the potential

hazards of representing himself and of the limitations he faced

in presenting his case, but was nonetheless willing to proceed.

Whatever legitimate misgivings the trial court may have had

about the difficulty Thomas would face in representing himself,

his constitutional right to waive the assistance of counsel

takes precedence when the choice to exercise that right is

knowingly and intelligently made. The record in this case

supports the conclusion that Thomas exercised that choice within

that standard. Accordingly, we hold that the trial court erred

in not permitting Thomas to represent himself and the Court of

Appeals erred in denying an appeal of that judgment.

CONCLUSION

For these reasons, Thomas’ conviction will be reversed, and

the case remanded to the Court of Appeals with directions to

remand the same to the trial court for a new trial on the charge

of grand larceny if the Commonwealth be so advised.

Reversed and remanded.

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