dissenting.
“ ‘[C]ourts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and ... ‘do not presume acquiescence in the loss of fundamental rights.’ ” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937) and Ohio Bell Tel. Co. v. Public Utils. Comm’n, 301 U.S. 292, 307 (1937)). “The 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) (citation omitted). Upon this record, the trial judge only could presume a waiver.
At Bolden’s first appearance in circuit court on March 10, 1988, his counsel was relieved from the representation of Bolden. Shortly after that hearing, Bolden was taken into custody in connection with other charges and remained in custody throughout these proceedings. At the March 24, 1988 hearing, the trial judge apparently believed that Bolden was having difficulty obtaining counsel because he “offered to appoint an attorney to represent [Bolden].” The record does not disclose the specifics of the offer or the refusal. In particular, the record does not indicate that the trial judge informed Bolden that he would not have to pay for appointed counsel.
On March 31 when Bolden again was brought to court for trial, he was still in custody and had not obtained counsel. Although the trial judge refused to grant Bolden another continuance and proceeded to trial, the record does not reflect that an inquiry was made concerning Bolden’s failure to obtain counsel. Furthermore, this record contains no evidence that the trial judge made an indigency inquiry at that time or at any other time. See Code §§ 19.2-159, 19.2-159.1, 19.2-160. Following Bolden’s conviction on March 31, 1988, the trial judge appointed the Public Defender to represent Bolden on appeal. Presumably, at that time Bolden was believed to be indigent in order to qualify. See Code § 19.2-163.3.
*195This case is strikingly similar to Lemke v. Commonwealth, 218 Va. 870, 241 S.E.2d 789 (1978), where the Supreme Court observed:
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. Nevertheless, the fact that [the defendant] had other retained counsel representing her at trial in the General District Court did not necessarily prove that she was ineligible to receive the benefit of court-appointed counsel on appeal to the trial court. Indeed, in the present appeal she is being represented by the Public Defender.
Id. at 874, 241 S.E.2d at 791-92. As in Lemke, this “record does not show that the trial judge followed the procedures mandated by Code §§ 19.2-157, et seq., to determine whether the defendant wished to waive [the] right to counsel.” Id. at 873, 241 S.E.2d at 791 (footnote omitted).
The record leaves uncertain whether Bolden’s failure to obtain counsel was due to his indigency, incarceration, or dereliction. The record therefore fails to establish a “knowing and intelligent waiver” of counsel. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). Accordingly, I would reverse and remand for a new trial.