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.