McNair v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys,
Clements and Agee
Argued at Richmond, Virginia

ANTWOIN RENARD McNAIR
OPINION BY
v. Record No. 1106-00-1 JUDGE ROBERT J. HUMPHREYS
MARCH 19, 2002
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Frederick H. Creekmore, Judge

Randolph D. Stowe for appellant.

Donald E. Jeffrey, III, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.

Antwoin Renard McNair contends the trial court violated his

rights under the Sixth Amendment by requiring him to proceed to

trial without 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

convictions and remand for a new trial.
 I. Background

A grand jury indicted appellant on felony charges of

malicious wounding and abduction of his wife. A warrant charged

appellant with the misdemeanor of brandishing a firearm. On

October 29, 1999, prior to the commencement of trial,

appellant's court-appointed attorney informed the trial judge

that appellant wanted a continuance. After appellant explained

his reasons for the request, the trial judge denied the

continuance. During the arraignment, appellant's attorney

informed the judge that appellant wanted a jury trial. The

judge granted that request and set the trial to commence

December 6, 1999.

Several weeks prior to the December trial, appellant's

court-appointed attorney filed a motion to withdraw, alleging

"an irretrievable breakdown in communication." The trial judge

granted the motion and appointed another attorney to represent

appellant. She was appellant's fifth attorney during the course

of the proceedings. The trial judge admonished: "I will

appoint your last lawyer, Mr. McNair. Do you understand that

this is your last lawyer[?]"

The judge set a new trial date for January 25, 2000. After

conferring with appellant, his new attorney filed motions to

compel discovery, for a subpoena duces tecum, and to suppress

evidence. The trial was again continued and ultimately held on

March 6, 2000. When the trial court called appellant's case on

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that date and asked if the parties were ready to proceed,

appellant's court-appointed attorney said she was ready for

trial. She indicated, however, that appellant wanted to address

the court "prior to starting the trial." Appellant then spoke

extensively about the absence of information he believed was

necessary to be produced for his defense "so that [he] could get

a fair trial," and about his objection to the prosecutor using

his thirteen-year-old daughter as a witness.

Reiterating these issues during the ensuing re-arraignment,

appellant indicated that "information for [his] defense is not

here" and that he had not had sufficient time to discuss his

defenses with his attorney. Appellant's attorney disagreed and

said that she had advised appellant, that he did not want to

accept her advice, and that she had "jumped through all of the

hoops" appellant imposed upon her. She stated: "At this point,

I have to protect myself, . . . I'm going to make a motion to

withdraw as counsel." The prosecutor immediately asked "if

[appellant] could proceed pro se and leave [appellant's

attorney] as advice counsel."

When the judge asked for appellant's response to these

matters, appellant again indicated he needed other information

to prove his wife was "capable of lying under oath." The trial

judge then ascertained from appellant's appointed attorney that

she had discussed the case with appellant, that she had advised

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him of the elements of the offense the prosecutor had to prove,

and that she had consulted with appellant on numerous occasions.

The judge granted appellant's attorney's motion to withdraw, but

asked her "to standby because he has some questions that he

[will] need to ask your advice on and we'll go ahead and proceed

pro se based on the evidence that I have before me." The trial

court stated to McNair:

[s]he'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.

Proceeding with the arraignment, the judge asked the

following:

[JUDGE]: The Court has heard what you said.
That matter is on the record. At this
point, I'm not going to deny [your daughter]
an opportunity to testify if the
Commonwealth presents her as a witness.

Have you entered your plea of not guilty
freely and voluntarily?

[APPELLANT]: Yes.

[JUDGE]: And are you ready for trial today?

[APPELLANT]: Without an attorney?

[JUDGE]: Yes, sir.

[APPELLANT]: No, I'm not.

[JUDGE]: Have you determined whether or not
you wish to have a trial by jury or a trial
by a judge?

[APPELLANT]: Trial by judge.

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 [JUDGE]: And you waive your right to a
trial by jury?

[APPELLANT]: Yes.

[JUDGE]: Does the Commonwealth waive?

[PROSECUTOR]: The Commonwealth waives trial
by jury.

[JUDGE]: Do you understand the questions
that I've asked you?

[APPELLANT]: Yes, I do.

[JUDGE]: All right, sir. We'll go ahead,
and I'll hear the case, and we'll go ahead
and proceed.

During the trial, appellant represented himself while his

former court-appointed attorney sat in the back of the

courtroom. At the conclusion of the evidence, the trial judge

convicted appellant of malicious wounding in violation of Code

§ 18.2-51, abduction in violation of Code § 18.2-47, and

brandishing a firearm in violation of Code § 18.2-282. Although

appellant continued to represent himself at the sentencing

hearing, the trial judge appointed counsel to represent

appellant for purposes of this appeal.

II. Analysis

"In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his

defen[s]e." U.S. Const. amend. VI. As an essential means of

securing due process, this right to the assistance of counsel

"is a fundamental right of criminal defendants; it assures the

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fairness, and thus the legitimacy, of our adversary process."

Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). Accordingly,

the Sixth Amendment guarantees a defendant a fair opportunity to

secure counsel of his own choice to represent him at trial on

criminal charges, Powell v. Alabama, 287 U.S. 45, 53 (1932), or
if a defendant is indigent, representation is made available to

him by the court. See Gideon v. Wainwright, 372 U.S. 335 (1963);

see also Code § 19.2-157. 1 The Sixth Amendment right to counsel

also "implicitly embodies a 'correlative right to dispense with a

lawyer's help.'" Faretta v. California, 422 U.S. 806, 814 (1975)

(quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279

(1942)). To be valid, any such waiver must be the voluntary act

of the defendant and must constitute a knowing and intelligent

abandonment of a known constitutional right or privilege.

Edwards v. Arizona, 451 U.S. 477, 482 (1981).

Here, the record indisputably established that appellant

began the trial with a court-appointed attorney and that he did

1
Code § 19.2-157 provides as follows:

Except as may otherwise be provided in
§§ 16.1-266 through 16.1-268, whenever a
person charged with a criminal offense the
penalty for which may be death or
confinement in the state correctional
facility or jail, including charges for
revocation of suspension of imposition or
execution of sentence or probation, appears
before any court without being represented
by counsel, the court shall inform him of
his right to counsel. The accused shall be
allowed a reasonable opportunity to employ
counsel or, if appropriate, the statement of
indigence provided for in § 19.2-159 may be
executed.

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not ask the judge to discharge his attorney. Further, he

clearly did not ask to be allowed to represent himself. Indeed,

when the judge asked if he was ready for trial, appellant's

responses, "Without an attorney?" and then, "No, I'm not," were

clear assertions that he wanted an attorney to represent him.

He was therefore constitutionally entitled to the assistance of

an attorney at his trial. See United States v. Phifer, 511 F.2d

960 (4th Cir. 1975).

Alternatively, the Commonwealth implies that although

appellant may not have expressed a choice to proceed pro se, in

effect, he constructively waived his right to counsel. We

disagree. Indeed, we reject the suggestion that a waiver of the

right to counsel can be less than knowing and the product of an

intelligent decision. Nevertheless, we are mindful that the

Sixth Amendment right to counsel, while fundamental, is not a

right without limitation. Specifically, it is not a right

subject to endless abuse by a defendant. Instead, the right is
qualified in its exercise and merely affords a defendant an

absolute right to a "fair opportunity" to representation by

counsel. Sampley v. Attorney General of North Carolina, 786 F.2d

610, 613 (4th Cir. 1986). This limitation derives from the

important and valid state interest in proceeding with

prosecutions in an orderly and expeditious manner, taking into

account the practical difficulties of "'assembling the witnesses,

lawyers, and jurors at the same place at the same time,'" as well

as the concerns and interests of the victims, witnesses and

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general public, and the appropriate use of judicial resources.

Id. (quoting Morris v. Slappy, 461 U.S. 1, 11 (1983)); see also

Morris, 461 U.S. at 14-15; Green v. Commonwealth, 211 Va. 727,

728, 180 S.E.2d 531, 532 (1971).

Thus, although a valid waiver of a defendant's fundamental

right to counsel must be voluntary and constitute a knowing,

intelligent abandonment of the right, Edwards, 451 U.S. at 482,

it

"does not grant [a] defendant license to
play a cat and mouse game with the court, or
by ruse or stratagem fraudulently seek to
have the trial judge placed in a position
where, in moving along the business of the
court, the judge appears to be arbitrarily
depriving the defendant of counsel."

United States v. Hughes, 191 F.3d 1317, 1323 (10th Cir. 1999)

(quoting United States v. Allen, 895 F.2d 1577, 1578 (10th Cir.

1990)).

Accordingly, the question of whether a fair opportunity to

secure representation has been accorded to a defendant becomes a

case specific inquiry. For example, the Fourth Circuit has found
that, once provided with a fair opportunity to secure counsel,

the conduct of a defendant can constitute a "constructive

discharge" of counsel. See United States v. Attar, 38 F.3d 727,

735 (4th Cir. 1994) ("[A] court might properly find that the

belated creation by a defendant of an inextricable ethical

predicament for his counsel constitutes . . . a constructive

discharge of counsel."). Further, it is clear that certain

dilatory conduct on the part of a defendant may also be properly

viewed as an effective de facto waiver of Sixth Amendment

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protections. See Sampley, 786 F.2d at 613 ("[A] defendant has no

constitutional right to dictate the time, if ever, at which he is

willing to be tried by simply showing up without counsel, or with

allegedly unsatisfactory counsel, whenever his case is called for

trial, or by objecting that counsel then retained or assigned is

not presently 'counsel of his choice.'" (citing Ungar v.

Sarafite, 376 U.S. 575 (1964); Morris, 461 U.S. at 103)); see

also Lemke v. Commonwealth, 218 Va. 870, 874-75, 241 S.E.2d 789,

791-92 (1978); Watkins v. Commonwealth, 174 Va. 518, 523, 6

S.E.2d 670, 672 (1940); Bolden v. Commonwealth, 11 Va. App. 187,
190-91, 397 S.E.2d 534, 536-37 (1990).

It logically follows that such conduct may operate as a

constructive discharge of counsel whether retained or appointed,

or a de facto waiver of the right to be represented by such

counsel. In either case, a trial court is not bound by

constitutional mandate to appoint another attorney, or provide

the defendant with an additional opportunity to secure counsel.

Instead, courts are accorded wide discretion in deciding whether

to grant continuances to enable a defendant to secure new

counsel. See Sampley, 786 F.2d at 613 ("[t]he constitutional

right is probably best stated as a limit on trial court

discretion: that discretion only exceeds its constitutional

bounds when it is exercised to deny a continuance on the basis of

an 'unreasoning and arbitrary "insistence upon expeditiousness in

the face of a justifiable request for delay"'" (quoting Ungar,

376 U.S. at 589)).

Nevertheless, contrary to the argument of the Commonwealth,

the record here does not demonstrate that appellant's conduct

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constituted a constructive discharge of counsel or a de facto

waiver of counsel. Instead, the record reflects only relief of

counsel by the trial court following an unsupported request to

withdraw. We hold that in order to establish a constructive

discharge or a de facto waiver of counsel by conduct, the record

should demonstrate adequate procedural safeguards. Specifically,

the record should reflect adherence to the statutory guidelines

set forth in Code § 19.2-157 et seq., governing the right to

counsel.
In this case, the trial court did not set forth the reasons

for its determination that McNair waived his right to counsel.

While a failure to explicitly address the basis for its

conclusion that defendant constructively discharged counsel, or

de facto waived the right to counsel, would not per se constitute

reversible error, the better practice would be to produce a

record which reflects that (1) the defendant placed his counsel

in a position that precluded effective representation and thereby

constructively discharged his counsel or (2) through his

obstructionist behavior, dilatory conduct, or bad faith, the

defendant de facto waived counsel. Such a finding should be

prefaced by the trial court's admonition to the defendant

concerning his right to counsel, the perils of pro se

representation, as well as an appropriate explanation of the

charges and punishment at issue. Additionally, the trial court's

finding should include a specific recitation of how the

defendant's conduct shows an unequivocal intent to relinquish or

abandon his right to counsel, either as a constructive discharge

of counsel or a de facto waiver of counsel. See United States v.

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Gallop, 838 F.2d 105, 109 (4th Cir. 1988); see also People v.

Arguello, 772 P.2d 87, 92-93 (Colo. 1989). 2

As constitutional jurisprudence requires courts to indulge

every reasonable presumption against waiver of counsel, Brewer v.

Williams, 430 U.S. 387, 404 (1977), we do not find this record

sufficient to support the theory that appellant's conduct

constituted a constructive discharge of counsel or a de facto

waiver of representation by counsel. Indeed, the record here

demonstrates no more than that the defendant was "difficult" and

did not believe his attorney was providing him with an adequate
3
defense. Moreover, we do not find that the statements of the

trial court constitute a sufficient factual finding that the

defendant's difficulty with his various attorneys amounted to a

pattern of conduct calculated to prevent his trial from ever

occurring. Neither do we find the record sufficient to establish

appellant's voluntary, knowing and intelligent waiver of his

right to counsel, or a course of conduct evidencing the

constructive discharge of counsel or the de facto waiver of the

right to counsel.

2
We do not suggest, however, that a trial court's failure
to address every procedural guideline listed here would
necessarily have an effect on the efficacy of a defendant's
constructive discharge or de facto waiver in a given case.
However, compliance with these safeguards may be sufficient to
establish a prima facie case of constructive discharge, or a de
facto waiver of counsel. See Bolden, 11 Va. App. at 193, 397
S.E.2d at 537-38.
3
There is no evidence that anyone but the prosecutor wanted
the appellant to represent himself, nor was the trial court
obligated to remove appellant's fifth court-appointed counsel
simply because she was having difficulty with her client and
wanted to "protect" herself.

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 This record contains no explanation why the trial judge did

not deny appellant's attorney's motion to withdraw on the day of

trial and order her to continue with her representation of

appellant. Despite her disagreement with appellant about the

evidence he wanted to present, appellant's attorney indicated

she was prepared for trial. Although her interest in

"protect[ing] [her]self" had been served by her motion on the

record, appellant's right to the assistance of an attorney was a

separate matter.

Accordingly, on this record, we find that there was no de

facto waiver of appellant's right to a fair opportunity to be

represented by counsel, nor does the record support a finding

that the defendant's articulated dissatisfaction with the conduct

of his defense constituted a constructive discharge of his

attorney.

Finally, although the Commonwealth notes that appellant

"correctly asserts that he was required to proceed 'pro se,'"

the Commonwealth argues that appellant's counsel, nevertheless,

remained in the courtroom and, therefore, appellant had "standby

counsel." However, the record proves otherwise.

The trial judge, without qualification, granted appellant's

attorney's motion to withdraw. Even if she remained in the back

of the courtroom, she was not authorized or directed to assist

appellant. Her mere presence in the courtroom provided no

benefit to appellant. "Because the right to counsel is so

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fundamental to a fair trial, the Constitution cannot tolerate

trials in which counsel, though present in name, is unable to

assist the defendant to obtain a fair decision on the merits."

Evitts v. Lucy, 469 U.S. 387, 395 (1985). "The guarantee of

counsel 'cannot be satisfied by mere formal appointment.'" Id.

(citation omitted). Therefore, regardless of the presence of

appellant's former attorney in the courtroom, the record

establishes that the trial judge unconditionally granted her

motion to withdraw and required appellant to proceed pro se

without the assistance of his attorney.

"When a State obtains a criminal conviction through . . . a

trial [in which a defendant is denied the assistance of an

attorney], it is the State that unconstitutionally deprives the

defendant of his liberty." Cuyler v. Sullivan, 446 U.S. 335,

343 (1980). Although the Commonwealth has a valid interest in

an orderly and expeditious prosecution, in this case, we hold

that the trial judge exhibited "an unreasoning and arbitrary

'insistence upon expeditiousness . . .' [and, therefore,]

violate[d] [appellant's] right to the assistance of counsel."

Morris, 461 U.S. at 11-12 (citation omitted).

Reversed and remanded.

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Benton, J., with whom Elder, J., joins, concurring.

I concur in the judgment reversing the convictions and

remanding for a new trial. Although I agree that McNair did not

constructively discharge his attorney, I do not join in the

majority opinion because I do not believe that a defendant may

"de facto" or constructively waive his Sixth Amendment right to

counsel. Those concepts were not argued by either party, and

they detract from the usual Sixth Amendment analysis. For the

reasons I previously stated in McNair v. Commonwealth, 35 Va.
App. 587, 596-604, 546 S.E.2d 756, 760-64 (2001) (Benton, J.,

dissenting), I would reverse the convictions and remand for a new

trial.

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 Tuesday 31st

July, 2001.

Antwoin Renard McNair, Appellant,

against Record No. 1106-00-1
Circuit Court Nos. CR99-3136 through CR99-3138

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements and
Agee

On June 21, 2001 came Antwoin Renard McNair, by

court-appointed counsel, and filed a petition praying that the

Court set aside the judgment rendered herein on June 5, 2001,

and grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on June 5, 2001

is stayed pending the decision of the Court en banc, and the

appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellant shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. It is further ordered that

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the appellant shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia

ANTWOIN RENARD McNAIR
OPINION BY
v. Record No. 1106-00-1 JUDGE ROBERT P. FRANK
JUNE 5, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Frederick H. Creekmore, Judge

Randolph D. Stowe for appellant.

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

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.

I. BACKGROUND

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

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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 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

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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

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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.

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 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 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?

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 THE COURT: Yes, sir.

THE DEFENDANT: No, I'm not.

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.

II. ANALYSIS

"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

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effective assistance of counsel.'" Curo 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 (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
(quoting Ohio Bell Telephone Co. v. Public
Utilities Commission, 301 U.S. 292, 307
(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
(1962).

Sargent v. Commonwealth, 5 Va. App. 143, 149, 360 S.E.2d 895,

898-99 (1987).

- 23 -
 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 two continuances so he could obtain

counsel. Id. at 189-90, 397 S.E.2d at 535-36. The trial court

offered to provide court-appointed counsel, and Bolden refused.

Id. at 190, 397 S.E.2d at 536. The trial court told Bolden that

if he appeared on the trial date without counsel, he would be

tried without counsel. Id. at 189, 397 S.E.2d at 536. Bolden

appeared on the date of trial without counsel and requested

another continuance. Id. at 190, 397 S.E.2d at 536. The trial

court denied the motion, and Bolden was tried without counsel.

Id. We held, "[T]he trial court reasonably concluded that

Bolden's failure to have counsel on [the trial date] was the

result of dilatory conduct on his part and not due to any lack

of opportunity to obtain counsel." Id. at 191, 397 S.E.2d at

537.

We wrote:

Because a defendant's assertion of his
right to counsel may conflict with the
government's right to an orderly and
expeditious prosecution, trial courts are
often faced with the dilemma of choosing
between these competing interests. Under
certain circumstances, the trial court is
entitled to conclude that the defendant has
actually waived his right to counsel and
thus can require that the defendant stand
trial without the assistance of counsel.
However, in these situations, the burden is
on the Commonwealth to prove "by clear,
precise and unequivocal evidence" that the
defendant did actually waive his right to

- 24 -
 counsel. Lemke v. Commonwealth, 218 Va.
870, 873, 241 S.E.2d 789, 791 (1978). "'The
record must show that an accused was offered
counsel but intelligently and
understandingly rejected the offer.'"
Sargent v. Commonwealth, 5 Va. App. 143,
149, 360 S.E.2d 895, 899 (1987) (quoting
Carnley v. Cochran, 369 U.S. 506, 516
(1962)).

Id. at 190-91, 397 S.E.2d at 536.

In Lemke, 218 Va. 870, 241 S.E.2d 789, the Supreme Court of

Virginia held that the trial court erred in requiring Lemke to

proceed to trial without counsel. Lemke had appealed her

district court conviction to the circuit court. Id. at 871, 241

S.E.2d at 790. She signed an appeal form indicating that she

was obligated to hire an attorney promptly and that her

"'failure to employ an attorney until just before the trial is

not grounds for a continuance.'" Id. at 871, 241 S.E.2d at 790.

Lemke attempted to hire counsel several days prior to her trial

in the circuit court but was unsuccessful. Id. The trial court

denied her motion for a continuance and tried her without

counsel. Id. The record did not indicate whether the trial

court had determined that Lemke was ineligible for

court-appointed counsel. Id. at 873, 241 S.E.2d at 791. The

Supreme Court wrote, "[H]er actions in twice approaching the

attorney of her choice were not actions characteristic of a

person who did not wish to be represented at trial." Id. at

874, 241 S.E.2d at 791.

- 25 -
 In finding the trial court committed error, the Supreme

Court held:

Trial courts are fully justified in
taking stern measures to eliminate the
frustrations of unnecessary or intentional
delays caused by defendants in criminal
appeals from the General District Courts.
Such defendants must not be permitted to
trifle with the courts or impede the
administration of justice . . . .

Nor does the evidence establish that
Lemke acted in bad faith in appearing for
trial without an attorney and moving for a
continuance. Although the representations
made to the court by the attorney whom she
sought to employ were not entirely
consistent with Lemke's own statements, they
showed that she had made an effort during
the week before trial to obtain the services
of counsel. It thus appears that she wished
to be represented by an attorney.

Id. at 874, 241 S.E.2d at 791-92.

In Sampley v. Attorney Gen. of North Carolina, 786 F.2d 610

(4th Cir. 1986), the Fourth Circuit Court of Appeals wrote:

Obviously a defendant has no
constitutional right to dictate the time, if
ever, at which he is willing to be tried by
simply showing up without counsel, or with
allegedly unsatisfactory counsel, whenever
his case is called for trial, see Ungar v.
Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11
L.Ed.2d 921 (1964), or by objecting that
counsel then retained or assigned is not
presently "counsel of his choice," see
Morris v. Slappy, 461 U.S. 1, 103 S. Ct.
1610, 75 L.Ed.2d 610 (1983) . . . .

When a defendant does request a
continuance on the basis, as here, that he
does not have counsel to represent him, the
court requested to grant the continuance
must therefore make a judgment whether this

- 26 -
 results from the lack of a fair opportunity
to secure counsel or rather from the
defendant's unjustifiable failure to avail
himself of an opportunity fairly given. In
making this judgment, the court is
necessarily entitled to take into account
the countervailing state interest in
proceeding on schedule.

Id. at 613.

We reject appellant's contention that he was deprived of

his Sixth Amendment right to counsel. At the time of the trial

on March 6, 2000, appellant's case had been pending for eleven

months. The preliminary hearing was set for six different dates

before it was held on September 16, 1999. Appellant had four

attorneys through the preliminary hearing, one retained and

three appointed. The trial date of March 6, 2000 was the third

trial date set in the circuit court. Each of the two attorneys

who withdrew as counsel in the circuit court complained of

appellant's lack of cooperation and failure to heed their

advice. The trial court, upon allowing Lesa Henderson to

withdraw, said, "I'm not sure you will ever be ready for this

case." Upon allowing Sharon Mason to withdraw, the trial court

found that counsel made a "reasonable effort" to provide

appellant with a defense and stated, "If you have rejected that,

we have to get the case pro se."

Appellant's failure to cooperate with multiple attorneys

and his dilatory conduct are clear from the record. Because of

appellant's tactics, the trial court properly concluded that

- 27 -
appellant waived his right to counsel. Appellant was offered

and received counsel on at least five occasions and chose not to

cooperate or communicate with them. As stated in Bolden, the

trial court recognized the "government's right to an orderly and

expeditious prosecution." It was evident that appellant simply

did not want to be tried and failed to cooperate with counsel as

a tactic to avoid trial. The record indicates appellant's

circuit court counsel diligently attempted to represent him but

his uncooperative behavior prevented their efforts. The record

further indicates the trial court made every reasonable effort

to honor appellant's right to counsel.

We conclude that the Commonwealth proved by clear, precise

and unequivocal evidence that appellant waived his right to

counsel. Therefore, for these reasons, we affirm the judgment

of the trial court.

Affirmed.

- 28 -
Benton, J., dissenting.

"In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his

defen[s]e." U.S. Const. amend. VI. More than a half century

ago, the Supreme Court held that "[t]he Sixth Amendment stands

as a constant admonition that if the constitutional safeguards

it provides be lost, justice will not 'still be done.'" Johnson

v. Zerbst, 304 U.S. 458, 462 (1938). Later, in the seminal case

applying the Sixth Amendment, the Court held that the right to

the assistance of counsel "'is one of the safeguards of the

Sixth Amendment deemed necessary to insure fundamental human

rights of life and liberty.'" Gideon v. Wainwright, 372 U.S.

335, 343 (1963) (citation omitted).

Gideon rested on the "obvious truth" that
lawyers are "necessities, not luxuries" in
our adversarial system of criminal justice.
"The very premise of our adversary system of
criminal justice is that partisan advocacy
on both sides of a case will best promote
the ultimate objective that the guilty be
convicted and the innocent go free." The
defendant's liberty depends on his ability
to present his case in the face of "the
intricacies of the law and the advocacy of
the public prosecutor;" a criminal trial is
thus not conducted in accord with due
process of law unless the defendant has
counsel to represent him.

Evitts v. Lucey, 469 U.S. 387, 394 (1985) (citations omitted).

As an essential means of securing due process, the right to the

assistance of counsel "is a fundamental right of criminal

- 29 -
defendants; it assures the fairness, and thus the legitimacy, of

our adversary process." Kimmelman v. Morrison, 477 U.S. 365,

374 (1986). Apparently, for reasons of expediency, the trial

judge overlooked these principles in McNair's trial.

When the judge began McNair's trial and asked if the

parties were ready to proceed, McNair's court-appointed attorney

indicated she was ready for trial. Before the arraignment,

however, she said McNair wanted to address the judge "prior to

starting the trial." McNair made extensive comments to the

judge about the absence of information he believed was necessary

to be produced for his defense "so that [he] could get a fair

trial" and about his objection to the prosecutor using his

thirteen-year-old daughter as a witness. Reiterating these

issues during the ensuing arraignment, McNair indicated that

"information for [his] defense is not here" and that he had not

had sufficient time to discuss his defenses with his attorney.

Disagreeing, McNair's attorney informed the judge that she had

sought to give advice to McNair, that he did not want to accept

her advice, and that she had "jumped through all of the hoops"

McNair imposed on her. She then said: "At this point, I have

to protect myself, . . . I'm going to make a motion to withdraw

as counsel." The prosecutor immediately "ask[ed] if the Court

would [. . .] if [McNair] could proceed pro se and leave

[McNair's attorney] as advice counsel."

- 30 -
 When the judge asked for McNair's "response" to these

matters, McNair again indicated he needed other information to

prove his wife was "capable of lying under oath." The trial

judge then ascertained from McNair's appointed attorney that she

had discussed the case with McNair, that she had advised him of

the elements of the offense the prosecutor had to prove, and

that she had consulted with McNair on numerous occasions. The

judge granted McNair's attorney's motion to withdraw without

qualification. Proceeding with the arraignment, the judge asked

the following:

[JUDGE]: The Court has heard what you said.
That matter is on the record. At this
point, I'm not going to deny [your daughter]
an opportunity to testify if the
Commonwealth presents her as a witness.

Have you entered your plea of not guilty
freely and voluntarily?

[McNAIR]: Yes.

[JUDGE]: And are you ready for trial today?

[McNAIR]: Without an attorney?

[JUDGE]: Yes, sir.

[McNAIR]: No, I'm not.

[JUDGE]: Have you determined whether or not
you wish to have a trial by jury or a trial
by a judge?

[McNAIR]: Trial by judge.

[JUDGE]: And you waive your right to a
trial by jury?

[McNAIR]: Yes.

- 31 -
 [JUDGE]: Does the Commonwealth waive?

[PROSECUTOR]: The Commonwealth waives trial
by jury.

[JUDGE]: Do you understand the questions
that I've asked you?

[McNAIR]: Yes, I do.

[JUDGE]: All right, sir. We'll go ahead,
and I'll hear the case, and we'll go ahead
and proceed.

This record does not establish that McNair declined to be

represented by an attorney. At no time did he even intimate

that he wanted to proceed without an attorney. Indeed, when the

judge asked if he was ready for trial, McNair's responses,

"Without an attorney?" and then "No, I'm not," are clear

acknowledgments that he wanted an attorney to represent him.

Furthermore, as the Supreme Court held in Carnley v. Cochran,

369 U.S. 506, 513 (1962), "it is settled that where the

assistance of counsel is a constitutional requisite, the right

to be furnished counsel does not depend on a request." The

record indisputably established that McNair began the trial with

a court-appointed attorney and did not ask to be allowed to

represent himself. He was therefore constitutionally entitled

to the assistance of an attorney at his trial.

The trial judge eviscerated McNair's Sixth Amendment right

to counsel by releasing his attorney merely because McNair's

attorney stated on the record "to protect [her]self" that McNair

was a difficult client to represent and moved to "withdraw as

- 32 -
counsel." The right to the assistance of an attorney is not a

mere formalism that can be discarded merely because a defendant

proves difficult. Moreover, the trial judge compounded his

error by granting the prosecutor's request to require McNair "to

proceed pro se." In so doing, the trial judge completely

disregarded the Supreme Court's long standing ruling that the

Sixth Amendment "embodies a realistic recognition of the obvious

truth that the average defendant does not have the professional

legal skill to protect himself when brought before a tribunal

with power to take his life or liberty, wherein the prosecution

is presented by experienced and learned counsel." Johnson, 304

U.S. at 462-63. When the trial judge required McNair to defend

himself without the assistance of his attorney, the trial judge

gave no deference to these principles. Even if McNair disagreed

with his attorney concerning the evidence to be proved, he, like

every "person charged with a felony in a state court has an

unconditional and absolute constitutional right to a lawyer."

Boyd v. Dutton, 405 U.S. 1, 2 (1972) (citing Gideon).

I disagree with the majority opinion's holding that McNair

waived his right to the assistance of an attorney. Although an

accused may waive that right, the burden is on the Commonwealth

to prove a waiver. Brewer v. Williams, 430 U.S. 387, 404

(1977). To meet that burden, the record must establish that

such a waiver was voluntarily, knowingly, and intelligently

made. Faretta v. California, 422 U.S. 806, 835 (1975). In our

- 33 -
review of that issue, "the question of waiver [is to be

determined] as a matter of federal constitutional law." Brewer,

430 U.S. at 404. Under that standard, we are required to apply

the following rules:

[It is] incumbent upon the State to prove
"an intentional relinquishment or
abandonment of a known right or privilege."
. . . [T]he right to counsel does not depend
upon a request by the defendant, and . . .
courts [must] indulge in every reasonable
presumption against waiver. This strict
standard applies equally to an alleged
waiver of the right to counsel whether at
trial or at a critical stage of pretrial
proceedings.

Id. (citations omitted). Moreover, when the Commonwealth relies

upon such a waiver, it "must prove [the] essentials [of the

waiver] by 'clear, precise and unequivocal evidence . . . [,

which] must not leave the matter to mere inference or conjecture

but must be certain in every particular.'" Church v.

Commonwealth, 230 Va. 208, 215, 335 S.E.2d 823, 827-28 (1985)

(citation omitted).

McNair's "actions . . . were not actions characteristic of

a person who did not wish to be represented at trial." Lemke v.

Commonwealth, 218 Va. 870, 874, 241 S.E.2d 789, 791 (1978).

Although the majority opinion relies upon Bolden v.

Commonwealth, 11 Va. App. 187, 397 S.E.2d 534 (1990), and

Sampley v. Attorney Gen. of North Carolina, 786 F.2d 610 (4th

Cir. 1986), McNair, unlike those defendants, did not "appear

- 34 -
. . . [at trial] without counsel . . . [as a] result of dilatory

conduct on his part," Bolden, 11 Va. App. at 191, 397 S.E.2d at

537, and did not tell the trial judge "that he would represent

himself." Sampley, 786 F.2d at 612. Thus, as in Lemke, this is

not a case of "failure by one who is financially able to do so

to employ counsel within a reasonable time," 218 Va. at 873, 241

S.E.2d at 791, but, rather, is a case of one who "wished to be

represented by an attorney." Id. at 874, 241 S.E.2d at 792.

The record clearly proved McNair came to trial with an attorney

and expected to be represented by her at trial.

"A valid waiver of sixth amendment counsel must be the

voluntary act of the defendant free of coercion, physical or

psychological, subtle or overt, [which means] the defendant must

realize that his or her actions are a waiver of a constitutional

privilege." United States v. Clements, 713 F.2d 1030, 1035 (4th

Cir. 1983) (citation omitted). The trial judge did not discuss

with McNair the right to an attorney, made no inquiry of McNair,

gave no warnings, and made no findings on the record.

[The trial judge's actions were]
insufficient to ensure that [McNair]
understood that he was undertaking a complex
and sophisticated role, the performance of
which normally requires a high level of
professional training and competence. [The
judge] failed to warn [McNair] that if he
rejected professional assistance, he would
be responsible for the adequacy of his
defense and would suffer the consequences of
any inadequacy.

- 35 -
Kinard v. Commonwealth, 16 Va. App. 524, 527, 431 S.E.2d 84, 86

(1993).

By ignoring McNair's express statement that he did not want

to proceed without an attorney, the trial judge effectively

denied McNair's right to an attorney to the same extent as if he

had ruled explicitly that McNair was not entitled to be

represented by an attorney. Even in circumstances where "an

accused is informed of his right of counsel and expresses a

desire to waive such right [,that] is not by itself considered

to be an effective waiver [because it] is fundamental that the

record show that an accused was offered counsel and that he

intelligently and understandingly rejected the offer." Miller

v. Maryland, 577 F.2d 1158, 1161 (4th Cir. 1978).

This record contains no explanation why the trial judge did

not deny McNair's attorney's motion to withdraw and order her to

continue with the trial. Despite her disagreement with McNair

about the evidence he wanted proved, she indicated she was

prepared for trial. Although her interest had been served by

her motion on the record "to protect [her]self," McNair's right

to the assistance of an attorney was a separate matter. "A

finding of waiver of counsel cannot be made on the basis of a

simple inquiry into past events: 'the question of waiver [is]

not a question of historical facts, but one which . . . requires

"application of constitutional principles to the facts as

found."'" Clements, 713 F.2d at 1035 (citations omitted).

- 36 -
 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."

* * * * * * *

The constitutional right of an accused to
be represented by counsel invokes, of
itself, the protection of a trial court, in
which the accused -- whose life or liberty
is at stake -- is without counsel. This
protecting duty imposes the serious and
weighty responsibility upon the trial judge
of determining whether there is an
intelligent and competent waiver by the
accused.

Johnson, 304 U.S. at 464-65 (footnotes omitted). Waiver of

McNair's Sixth Amendment right to assistance of an attorney may

be found only if the evidence shows "that [he] was offered

counsel but intelligently and understandingly rejected the

offer." Carnley, 369 U.S. at 516. As the Supreme Court noted:

"Anything less is not waiver." Id.

Although the Commonwealth notes that McNair "correctly

asserts that he was required to proceed 'pro se,'" the

Commonwealth still argues that McNair's counsel remained in the

courtroom and, therefore, McNair had "standby counsel." The

simple, straightforward answer to this argument is that the

record proves otherwise. The trial judge, without

qualification, granted McNair's attorney's motion to withdraw.

Even if she remained in the back of the courtroom, she was not

authorized to assist McNair. It also bears repeating that "'the

- 37 -
constraint laid by the [Sixth] Amendment upon the . . . courts

expresses a rule . . . fundamental and essential to a fair

trial, and . . . to due process of law.'" Gideon, 372 U.S. at

340 (citation omitted). Her mere presence in the courtroom

provided no benefit to McNair. "Because the right to counsel is

so fundamental to a fair trial, the Constitution cannot tolerate

trials in which counsel, though present in name, is unable to

assist the defendant to obtain a fair decision on the merits."

Evitts, 469 U.S. at 395. The Supreme Court could not have been

clearer when it said "the guarantee of counsel 'cannot be

satisfied by mere formal appointment.'" Id. Regardless of the

presence of McNair's former attorney in the courtroom, the trial

judge unconditionally granted her motion to withdraw and

required McNair to proceed pro se.

The right to be heard would be, in many
cases, of little avail if it did not
comprehend the right to be heard by counsel.
Even the intelligent and educated layman has
small and sometimes no skill in the science
of law. If charged with crime, he is
incapable, generally, of determining for
himself whether the indictment is good or
bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel
he may be put on trial without a proper
charge, and convicted upon incompetent
evidence, or evidence irrelevant to the
issue or otherwise inadmissible. He lacks
both the skill and knowledge adequately to
prepare his defense, even though he have a
perfect one. He requires the guiding hand
of counsel at every step in the proceedings
against him. Without it, though he be not
guilty, he faces the danger of conviction

- 38 -
 because he does not know how to establish
his innocence.

Powell v. Alabama, 287 U.S. 45, 68-69 (1932).

"When a State obtains a criminal conviction through . . . a

trial [in which a defendant is denied the assistance of an

attorney], it is the State that unconstitutionally deprives the

defendant of his liberty." Cuyler v. Sullivan, 446 U.S. 335,

343 (1980). Although the Commonwealth has an interest in an

orderly and expeditious prosecution, in this case, I would hold

that the trial judge exhibited "an unreasoning and arbitrary

'insistence upon expeditiousness . . .' [and, therefore,]

violate[d] the right to the assistance of counsel." Morris v.

Slappy, 461 U.S. 1, 11-12 (1983) (citation omitted). This

record establishes a clear violation by the Commonwealth of

McNair's Sixth Amendment right to the assistance of an attorney

at the trial where he was convicted. Therefore, I would reverse

the convictions and remand for a new trial.

I dissent.

- 39 -