Watkins v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, * Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia

MICHAEL TRACY WATKINS
OPINION BY
v. Record No. 0649-96-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 20, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge
Clark E. Broderson for appellant.

Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Ruth Ann Morken, Assistant Attorney
General, on brief), for appellee.

This criminal appeal presents questions concerning the

voluntariness of appellant's waiver of counsel, appellant's right

to speedy trial, and the sufficiency of the Commonwealth's

evidence. For the reasons that follow, we affirm.

Following a jury trial, Michael Tracy Watkins was convicted

of burglary, grand larceny, receiving stolen property and

possession of burglarious tools. He was sentenced to a total of

ten years incarceration and was fined $2,000. Appellant

represented himself at trial.

The primary issue before us is whether appellant knowingly,

voluntarily and intelligently waived his right to counsel. "If

the accused has not competently and intelligently waived that
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
constitutional right, the Sixth Amendment stands as a

jurisdictional bar to a valid conviction and sentence depriving

him of his life or liberty." Edwards v. Commonwealth, 21 Va.

App. 116, 123, 462 S.E.2d 566, 570 (1995) (citing Johnson v.

Zerbst, 304 U.S. 458, 468 (1938)).

I. WRIT OF CERTIORARI

After review of the record originally presented, we were

unable to determine whether appellant's waiver of counsel was

knowingly, voluntarily and intelligently made. The record

contained an order of the trial court reflecting the events of

November 22, 1995, which stated that, on that date, appellant's
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court-appointed counsel withdrew and appellant proceeded pro se.
While the order further stated that the motions taken up that

day were "more specifically set forth in the stenographic record

of this case," the record transmitted to this Court contained no

transcript of the November 22, 1995 hearing or any statement of

facts describing the events of that day.

Finding that resolution of the issue before us depended on

our review of the transcript from the November 22, 1995 hearing,

we issued a writ of certiorari, pursuant to Code § 8.01-675.4, to

compel the clerk of the trial court to forward the missing
2
transcript. The Commonwealth filed a motion to vacate the writ,
1
The order reflected that another attorney was appointed to
assist the defense in a procedural capacity.
2
Code § 8.01-675.4 provides that this Court may:

in any case, after reasonable notice to

2
alleging that Code § 8.01-675.4 is inapplicable because appellant

failed to make the missing transcript part of the record on

appeal, as defined by the Rules of Court.

The Commonwealth contends that Code § 8.01-675.4 allows the

Court to order only portions of the appellate record as defined

by the Rules of Court. See Rules 5A:7 and 5A:8. The

Commonwealth's contention finds no support in the recent cases

addressing Code § 8.01-675.4 or the parallel provision applicable

in the Supreme Court, Code § 8.01-673(A). See Crumble v.

Commonwealth, 2 Va. App. 231, 233, 343 S.E.2d 359, 360 (1986);

Buck v. Commonwealth, 247 Va. 449, 453 n.*, 443 S.E.2d 414, 416

n.* (1994). In Crumble, a panel of this Court exercised its

authority under Code § 8.01-675.4 and "directed the clerk of the

trial court to cause that portion of the trial court record

consisting of the court reporter's recordation of closing

arguments to be transcribed and forwarded to us for review." In

Buck, the Supreme Court noted that the jury list at issue in the

case was "not part of the record on appeal until . . . a writ of

certiorari to the trial court pursuant to Code § 8.01-675.4 to

add the list to the record on appeal . . . [was] granted." Both
Crumble and Buck exemplify the Supreme Court's recitation of the

general rule that certiorari will lie to "enlarge" the record on

counsel in the appellate court, award a writ
of certiorari to the clerk of the trial court
and have brought before it, when part of a
record is omitted, the whole or any part of
such record.

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appeal.
After the record has been transmitted to this
Court pursuant to [the Rules of Court] and an
appeal has been granted, the record on appeal
cannot be enlarged except by our award of a
writ of certiorari under Code § 8.01-673.

Godfrey v. Commonwealth, 227 Va. 460, 465, 317 S.E.2d 781, 784

(1984); see also Town of Narrows v. Clear-View Cable TV, Inc.,

227 Va. 272, 275 n.2, 315 S.E.2d 835, 837 n.2 (1984); Old

Dominion Iron & Steel Corp. v. Virginia Elec. & Power Co., 215

Va. 658, 660, 212 S.E.2d 715, 718 (1975). 3
Our decision to compel the production of the missing

transcript in this case is fully supported in the case law of

both this and the Supreme Court. Our ruling is also in accord

with the principle that the judgment of the trial court is

presumed correct and the burden is on the appellant to submit to

the appellate court a record that enables the court to determine

whether there has been an error. Smith v. Commonwealth, 16 Va.

App. 630, 635, 432 S.E.2d 2, 6 (1993).

The Commonwealth's position initially fails to acknowledge
3
Contrary to the Commonwealth's suggestion, Godfrey and Old
Dominion Iron were reversed because a writ of certiorari was not
employed to enlarge the record, not simply because the record
itself was enlarged. The rule of those cases precludes the
enlarging of the record by means other than the writ of
certiorari; it does not preclude the enlarging of the record per
se. To the extent Washington v. Commonwealth, 216 Va. 185,
188-89, 217 S.E.2d 815, 819-20 (1975), can be read to support a
contrary conclusion, as the Commonwealth suggests, the Supreme
Court's more recent recitation of the scope of the writ overrules
it, albeit implicitly. We further note that Washington is not
cited in any of the Supreme Court's more recent cases addressing
the writ.

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that the issue before us is anything but typical. "The right to

counsel . . . is so fundamental to the human rights of life and

liberty that its waiver is never presumed, and the `courts

indulge every reasonable presumption against waiver.'" Church v.

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

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

895, 898 (1987). Waiver of the right to counsel cannot be

assumed from a silent record. Church, 230 Va. at 215, 335 S.E.2d

at 828; Sargent, 5 Va. App. at 149, 360 S.E.2d at 899
("'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.'" (quoting Carnley v. Cochran, 369 U.S. 506,

516 (1962))). Moreover, when the issue of waiver of counsel is

presented, the Commonwealth bears the burden "to show by the

record that an accused who proceeds pro se has competently,

intelligently, and understandingly waived his right to counsel."
Edwards, 21 Va. App. at 123-24, 462 S.E.2d at 570.

Contrary to the Commonwealth's assertion, therefore, the

onus of producing the missing transcript in the present case lies

with the Commonwealth, not appellant. Church, 230 Va. at 216,

335 S.E.2d at 828 ("The right to assistance of counsel is so

fundamental to the integrity of the criminal justice process that

we must reverse because of the fortuitous omission of that part

of the record which might have demonstrated the competence of the

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defendant's waiver."). 4 In the absence of the November 22, 1995

transcript, the record fails to establish that appellant

knowingly, intelligently and understandingly waived his right to

counsel. We issued the writ to ensure that justice was served.

The Commonwealth's motion is denied. 5

II. Waiver of Counsel

In Harris v. Commonwealth, 20 Va. App. 194, 197, 455 S.E.2d

759, 760 (1995), we held that "[t]he law requires more than the

court's bare assumption that the defendant was aware of his right

to counsel and knew of the pitfalls of self-representation."

"[A] party relying on such a waiver must prove its essentials by

'clear, precise and unequivocal evidence. The evidence must not

leave the matter to mere inference or conjecture but must be

certain in every particular.'" Church, 230 Va. at 215, 335

S.E.2d at 827 (quoting White v. Commonwealth, 214 Va. 559, 560,

203 S.E.2d 443, 444 (1974)).

"Whether a waiver is voluntary and competent depends upon

the particular circumstances of each case, including the

4
The Commonwealth suggests that Church is distinguishable
because the proceeding in Church, unlike the relevant proceeding
here, was unrecorded, and, thus, a transcript "could not have
been prepared for inclusion in the record." We find that a
distinction without meaning. The Commonwealth's argument fails
to address the availability of a Statement of Facts to reflect an
unrecorded hearing. Moreover, as the Supreme Court's decision in
Church makes clear, the relevant consideration is not why the
record is silent, but that it is.
5
The Commonwealth's motion to strike appellant's reply
brief, as well as appellant's various motions, are also denied.

6
defendant's background, experience, and conduct, but no

particular cautionary instruction or form is required." Church,

230 Va. at 215, 335 S.E.2d at 828 (citations omitted); see also

United States v. Doe, 743 F.2d 1033, 1038 (4th Cir. 1984). While

a formal, specific inquiry on the record regarding the capability

of the accused to understand and decide the issue of waiver may

be the wiser practice, the absence of such a procedure is not

fatal. See United States v. Singleton, 107 F.3d 1091, 1097 (4th

Cir. 1997); Edwards, 21 Va. App. at 124-25, 462 S.E.2d at 570-71
(citing North Carolina v. Butler, 441 U.S. 369, 374-75 (1979),

which upheld an "implicit waiver" upon considering the whole

record); Kinard v. Commonwealth, 16 Va. App. 524, 527, 431 S.E.2d

84, 86 (1993) (quoting Doe, 743 F.2d at 1038). The required

determination can be made upon considering the record as a whole.

Here, the appellant contends the trial court erred by not

having him sign a form reflecting the waiver of his right to

counsel and further erred by not placing on the record the

"required inquiry as to defendant's need for counsel or determine

on the record the defendant's decision to waive counsel was

knowing and voluntary." He also contends the trial court failed

to make him aware of the dangers and disadvantages of

self-representation. We find appellant's argument to be without

merit.

"'[W]hile it is preferable practice for trial courts to warn

an accused of the risks of self-representation, we believe that a

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cautionary instruction is only one of the 'facts and

circumstances' relevant to a determination of the validity of a

waiver of counsel.'" Edwards, 21 Va. App. at 125, 462 S.E.2d at

571 (quoting Superintendent v. Barnes, 221 Va. 780, 784, 273

S.E.2d 558, 561 (1981)). Furthermore, the absence of a written

waiver is not determinative of the question. 6 See Edwards, 21

Va. App. at 124, 462 S.E.2d at 570. Rather, applying the

principles set forth in Barnes, Kinard, and Edwards, our review

of the record as a whole supports the conclusion that appellant's

waiver of his right to counsel was knowing, intelligent and

voluntary.
6
Code § 19.2-160 provides, in relevant part:

If the charge against the accused is a
crime the penalty for which may be
incarceration, and the accused is not
represented by counsel, the court shall
ascertain by oral examination of the accused
whether or not the accused desires to waive
his right to counsel.
In the event the accused desires to
waive his right to counsel, and the court
ascertains that such waiver is voluntary and
intelligently made, then the court shall
provide the accused with a statement to be
executed by the accused to document his
waiver. . . . Any executed statement herein
provided for shall be filed with and become a
part of the record of such proceeding.
Should the defendant refuse or otherwise
fail to sign . . . the statement[] . . . the
court shall note such refusal on the record.
Such refusal shall be deemed to be a waiver
of the right to counsel, and the court, after
so advising the accused and offering him the
opportunity to rescind his refusal shall, if
such refusal is not rescinded and the
accused's signature given, proceed to hear
and decide the case.

8
 Although the trial court did not make the searching, formal

inquiry that we would prefer, the record before the trial court

allowed the court to determine that appellant's waiver of counsel

was knowing, voluntary and intelligent. At the hearing on

November 22, 1995, at which appellant was present, appellant's

counsel told the court that appellant wished to represent

himself. The court reviewed the nature of the charges, and

appellant's counsel discussed his preparation for trial.

Appellant personally told the court that he was ready to argue

his motions but that he did not want the court to hear the

motions filed by his counsel.
Our confidence in appellant's understanding of the charges

brought against him emerges from the fact that he prepared

motions for the November 22 hearing in which he sought to have

the indictments quashed. While there is no direct evidence of

appellant's educational background or his understanding of the

judicial process, the record makes clear that he had the capacity

to and did, in fact, appreciate the judicial process and the

nature of the proceedings he was electing to conduct pro se.

Prior to his waiver of counsel, appellant personally drafted

pretrial motions without the aid of his attorney, extensively

citing and arguing case law and the attendant analysis of the

facts. Among the many motions appellant personally drafted and

filed with the court were a motion to suppress the evidence

seized from his vehicle and motions to dismiss the charges based

9
on claimed violations of his constitutional right to a speedy

trial, his right to a preliminary hearing, and his rights under

the agreement on detainers. Appellant also drafted several

discovery motions, including a motion to subpoena witnesses and a

motion for funds for an investigator. These motions make it

clear that he understood the importance of conducting discovery

in preparation for his trial. Appellant's extensive experience

with the motions he filed himself and those filed by his counsel

demonstrates that appellant understood the nature of the charges

brought against him, the responsibilities imposed on him while

representing himself, and the value of being represented by

counsel.
Finally, appellant requested the court to appoint another

attorney in an advisory capacity, reflecting his understanding of

the value to his defense of having specialized legal knowledge

and ability in the trial of the charges against him and his

understanding of the consequences of his waiver. Appellant

further stated that he was "ready for trial" and did not want a

continuance. The court granted appellant's request to represent

himself in the following colloquy:
THE COURT: If [appellant's counsel] Mr.
Stith wants out of the case and his client
wants him out of the case I am inclined to
grant Mr. Stith's motion.
[THE COMMONWEALTH]: I don't have a problem
with that.
THE COURT: I will grant counsel's motion.
THE DEFENDANT: That's appropriate.

Finally, the court granted appellant's request for advisory

10
counsel and stated to appellant's new counsel:
It may develop that you would be counsel in
the case, but at least at this point you
would be appointed to assist the defendant.
I think in every respect he needs a
lawyer. He is not a lawyer himself. I would
hope that he will be able to recognize your
skills and that they could be put to use to
his benefit.

While the better practice would have been for the trial

court to have conducted a systematic review of the defendant's

competent, knowing and voluntary waiver of this important right,

we find under the circumstances of this case that appellant's

waiver was knowing, voluntary and intelligent.
III. APPELLANT'S RIGHT TO SPEEDY TRIAL

There is no dispute that August 31, 1995 is the date of

appellant's "arrest" for purposes of Code § 19.2-243, and of his

"arrival" in Virginia, for purposes of the agreement on

detainers. Code § 53.1-210, Art. IV(c). Further, there is no

dispute that Code § 19.2-243 required the Commonwealth to try

appellant within five months of his arrest and that the agreement

on detainers required the Commonwealth to try appellant within

120 days of his arrival in Virginia. Appellant was tried on

February 5, 1996, 158 days, or five months and six days,

following his arrest and arrival in Virginia.

Both Code § 19.2-243 and the agreement on detainers provide

for tolling of the time limits they prescribe. Under Code

§ 19.2-243(4), the five-month prescription is tolled upon the
continuance granted on the motion of the
accused or his counsel, or by concurrence of

11
 the accused or his counsel in such a motion
by the attorney for the Commonwealth, or by
the failure of the accused or his counsel to
make a timely objection to such a motion by
the attorney for the Commonwealth . . . .

Under the agreement on detainers, the court, for good cause

shown, may grant any "necessary or reasonable continuance," and

extend the 120 day period. Code § 53.1-210(IV)(c).

In the present case, trial was originally set for October

25, 1995. At a motions hearing held one week before trial was

scheduled to begin, appellant requested additional time to

prepare pretrial motions. The defense was fully aware that a

continuance on the motions would require a continuance of the

trial. Upon appellant's motion for additional time, the trial

date was continued until December 5, 1995. On December 5, 1995,

the defense again requested and was granted a continuance, this

time until January 22, 1996, to prepare for trial. Trial was

again continued on motion of both parties from January 22, 1996

until February 5, 1996, the date on which it was finally held.

In sum, the entire delay in the Commonwealth's failure to try

appellant from October 25, 1995 until February 5, 1996 was

attributable to or acquiesced in by the defense. Accordingly,

none of that time is properly considered in computing whether

appellant was tried within the prescriptions of Code § 19.2-243

and the agreement on detainers. See Price v. Commonwealth, 24

Va. App. 785, 789-90, 485 S.E.2d 655, 656 (1997); Jefferson v.
Commonwealth, 23 Va. App. 652, 656, 479 S.E.2d 80, 81-82 (1996).

12
The relevant time period under both sections is the period from

August 31, 1995 to October 25, 1995. The trial took place well

within the time prescriptions of both statutes.

IV. SUFFICIENCY OF EVIDENCE

Code § 18.2-94 provides:
If any person have in his possession any
tools, implements or outfit, with intent to
commit burglary, robbery or larceny, upon
such conviction thereof he shall be guilty of
a Class 5 felony. The possession of such
burglarious tools, implements or outfit by
any person other than a licensed dealer,
shall be prima facie evidence of an intent to
commit burglary, robbery or larceny.

The tools at issue in the present case are those which were

contained in the "pouch" of tools found in the van. Appellant

does not dispute that the tools at issue are "burglarious tools"

within the meaning of the statute. He contends, rather, that the

evidence is insufficient to support the jury's finding that he

possessed the tools with intent to commit burglary. We disagree.
Where the sufficiency of the evidence is
challenged on appeal, that evidence must be
construed in the light most favorable to the
Commonwealth, giving it all reasonable
inferences fairly deducible therefrom. In so
doing, we must discard the evidence of the
accused in conflict with that of the
Commonwealth, and regard as true all the
credible evidence favorable to the
Commonwealth and all fair inferences that may
be drawn therefrom.

Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165

(1988) (citations omitted). The jury's verdict will not be set

aside unless it appears to be plainly wrong or without evidence

13
to support it. Code § 8.01-680; Traverso v. Commonwealth, 6 Va.

App. 172, 176, 366 S.E.2d 719, 721 (1988). "`[T]he credibility

of witnesses and the weight accorded their testimony are matters

solely for the fact finder who has the opportunity of seeing and

hearing the witnesses.'" Collins v. Commonwealth, 13 Va. App.

177, 179, 409 S.E.2d 175, 176 (1991) (quoting Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)).

Where the trier of fact finds a defendant's testimony to be

incredible, it is entitled to infer that the defendant lied to

conceal his guilt. See Speight v. Commonwealth, 4 Va. App. 83,

88, 354 S.E.2d 95, 98 (1987) (en banc).

Appellant contends the evidence fails to support a finding

that he possessed the burglarious tools. The tools were found

near the front and between the seats of the van that appellant

drove. Although the remaining items in the van were identified

as stolen, no one else claimed ownership of the pouch of

burglarious tools. Appellant further contends that there was no

evidence that the tools were actually used in either of the

break-ins. To the contrary, however, the evidence showed that

the lock on the door to the truck rental shop had been pried open

with a device similar to one of the tools found in the pouch.

Furthermore, the statute does not require that the tools actually

be used in the burglary, only that they be possessed with intent

to commit burglary.

The evidence of appellant's intent to commit burglary was

14
overwhelming. The police spotted appellant near the scene of a

reported burglary, driving a van matching the description of the

van used in the burglary. Appellant attempted to elude the

police in a high speed chase that eventually ended with

appellant's arrest. At the station house, appellant reported

that he was "doing his job" when the police caught him. In the

van, the police found items stolen from the residence that was

the subject of the burglary report, as well as items stolen from

a truck rental shop the day before. Finally, the jury was

entitled to disbelieve appellant's description of his role in the

police chase and to infer that appellant was lying to conceal his

guilt.
For the reasons stated here, we affirm the convictions.

Affirmed.

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