COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Norfolk, Virginia
BOBBY RAY EDWARDS
v. Record No. 0104-94-1 OPINION
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA OCTOBER 3, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
David B. Olson for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Bobby Ray Edwards (appellant) appeals from his convictions
by the Circuit Court of the City of Newport News (trial court)
for malicious wounding, use of a firearm, and possession of a
firearm or concealed weapon by a felon. This appeal is limited
to the question whether the trial court committed reversible
error in allowing appellant to waive counsel and proceed pro se
without properly advising him of the potential consequences of
his actions. Finding no error, we affirm the judgments of the
trial court.
Appellant was arrested on October 31, 1992 and charged with
malicious wounding, use of a firearm in the commission of the
felony, and possessing a firearm after having been convicted of a
felony. On November 3, 1992, he appeared in the General District
Court of Newport News where a preliminary hearing on the charges
was held. Code § 19.2-160, in pertinent part, provides:
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. The statement shall be in a form
designed and provided by the Supreme Court.
Any executed statement herein provided for
shall be filed with and become a part of the
record of such proceeding.
(Emphasis added.) The general district court, in compliance
therewith, conducted an oral examination at the preliminary
hearing, after which appellant signed the following waiver form:
WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER
(CRIMINAL CASE)
I have been advised by a judge of this
court of the nature of the charges in the
cases pending against me and the potential
punishment for the offenses, which includes
imprisonment in the penitentiary or
confinement in jail. I understand the nature
of these charges and the potential punishment
for them if I am found to be guilty.
I have been further advised by a judge of
this court that I have the following rights
to be represented by a lawyer in these cases:
a. I have a right to be represented by a
lawyer.
b. If I choose to hire my own lawyer, I
will be given a reasonable
opportunity to hire, at my expense,
a lawyer selected by me. The judge
will decide what is a reasonable
opportunity to hire a lawyer. If
I have not hired a lawyer after
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such reasonable opportunity, the
judge may try the case even though I
do not have a lawyer to
represent me.
c. If I ask the judge for a lawyer to
represent me and the judge decides,
after reviewing my sworn financial
statement that I am indigent, the
judge will select and appoint a
lawyer to represent me.
However, if I am found to be guilty
of an offense, the lawyer's
fee as set by the judge within
statutory limits will be
assessed against me as court costs
and I will be required to pay it.
I understand these rights to be represented
by a lawyer. I also understand that I may
waive (give up) my rights to be represented
by a lawyer.
Understanding my rights to be represented
by a lawyer as described above and further
understanding the nature of the case and the
potential punishment if I am found to be
guilty, I waive all of my rights to be
represented by a lawyer in these cases, with
the further understanding that the cases will
be tried without a lawyer either being hired
by me or being appointed by the judge for me.
I waive these rights of my own choice,
voluntarily, of my own free will, without any
threats, promises, force or coercion.
s/ Bobby R. Edwards
The district court judge found that appellant knowingly,
voluntarily, and intelligently waived his right to be represented
by counsel, and the judge signed the following statement:
Upon oral examination, the undersigned
judge of this Court finds that the Adult,
having been advised of the rights and matters
stated above and having understood these
rights and matters, thereafter has knowingly,
voluntarily and intelligently waived his
rights to be represented by a lawyer.
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NOV 3 1992 s/ Joan T. Morris
DATE JUDGE
After a hearing, probable cause was found and the cases were
presented to a grand jury. True bills were returned on December
14, 1992.
Trial on the charges was scheduled for February 17, 1993.
The record discloses that appellant was certain of both the
identification and the nature of all three charges. The
Commonwealth advised the trial court that appellant had waived
his right to an attorney. Finding in the court's file only the
waiver executed in the general district court, the trial court
asked appellant if he still wanted to waive his right to counsel.
When appellant responded affirmatively, the record reflects that
"upon oral examination" the trial court made the same findings as
1
made by the general district court judge. In response to
further inquiries by the court, appellant advised the court that
he was not ready for trial and informed the court of the names
and addresses of two witnesses. Appellant further stated that he
was a college graduate and had completed one year toward a
Master's degree at Howard University.
The following exchange between the trial court and appellant
then occurred:
THE COURT: Have you thought about the
advisability of a trial by jury?
1
The trial court signed the waiver in identical form as the
district court judge.
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THE DEFENDANT: In this particular case it's a
question of law and I think I prefer the
court.
The trial court granted a continuance to enable appellant to
have subpoenas issued for the witnesses. The Commonwealth
suggested a new trial date of May 13. Appellant called to the
trial court's attention that he had been incarcerated since
October 31 and hoped trial could be held earlier. The trial
court acceded to appellant's desire and set the matter for April
1. Appellant requested that the cases be heard by the same judge
who was presiding at that time. The trial court agreed to this
request.
On April 1, the trial court again inquired as to appellant's
education and was again told by appellant that he was a college
graduate with one year's credit toward a Master's degree.
Appellant further denied having any inability to understand the
proceedings and affirmed his understanding of the charges. He
had previously complained that he had too little time allowed in
the jail's law library and was assured by the trial court that
the court would do what it could to increase that time. On April
1, appellant advised the court that he had had adequate time to
prepare his defense.
At trial, one defense witness did not appear. Appellant
told the trial court that the witness was not needed but that a
third witness, a police officer who appellant had not subpoenaed,
was needed for his defense. The trial court arranged to have the
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officer present to testify. Before the trial began, appellant
moved to have the witnesses excluded. His motion was granted.
At the conclusion of the Commonwealth's case, appellant
presented two witnesses to testify in his defense but did not
testify himself. The trial court's orders, which documented that
appellant had been found guilty on each charge, declared that:
[T]he Court having made inquiry and being of
the opinion that the defendant fully
understood the nature and effect of his plea
and of the penalties that may be imposed upon
his conviction, and after having been first
advised by the Court of his right to trial by
jury, the defendant knowingly and voluntarily
waived trial by jury and with the concurrence
of the attorney for the Commonwealth . . .
the Court proceeded to hear and determine the
case.
The trial court ordered a presentence report, which revealed
that appellant had a substantial number of felony and misdemeanor
convictions. 2
Prior to the sentencing hearing, an attorney was appointed
to represent appellant. A motion for a new trial was filed,
alleging that the trial court failed to warn appellant that (1)
he would be responsible for the adequacy of his defense, and (2)
he would suffer the consequences of any inadequacy if he rejected
professional assistance. After hearing argument thereon and
reviewing the record and transcript, the trial court found as
follows:
And it is this Court's position, in viewing
2
E.g., burglary, assault with a dangerous weapon, abduction,
and robbery.
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everything as a whole, that this particular
Defendant, because of his education, because
he had signed a waiver in the General
District Court which sets out certain
statements and which was referred to by this
Court on the February 17th hearing, and in
addition, the opening statement from this
particular Defendant indicated that he was
very knowledgeable and was not ready to
accept counsel and that he wished to proceed
pro se. So I believe that this particular
Defendant, under the facts and circumstances
of this case, intelligently waived his right
to counsel, and I deny the motion.
At oral argument, appellant conceded that if the matters
contained in the executed waiver forms were contained in the
transcript of the trial proceedings the convictions should be
affirmed. However, citing Faretta v. California, 422 U.S. 806
(1975), and Kinard v. Commonwealth,
16 Va. App. 524,
431 S.E.2d
84 (1993), appellant contends that without those specific
warnings he could not make a knowledgeable and intelligent waiver
of his right to be represented by an attorney. Thus, we must
decide in this case whether, standing alone, the absence of those
specific warnings requires reversal of the judgments of the trial
court.
The issue in the case before us and before the courts in the
cases relied upon by appellant in his quest for reversal arises
out of an accused's right to counsel guaranteed by the Sixth
Amendment of the Constitution of the United States, which
provides that the accused shall enjoy the right to have
assistance of counsel. If the accused has not competently and
intelligently waived that constitutional right, the Sixth
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Amendment stands as a jurisdictional bar to a valid conviction
and sentence depriving him of his life or liberty. Johnson v.
Zerbst, 304 U.S. 458, 468 (1938). When the issue is presented,
the burden is on the Commonwealth to show by the record that an
accused who proceeds pro se has competently, intelligently, and
understandingly waived his right to counsel. Bolden v.
Commonwealth,
11 Va. App. 187, 191,
397 S.E.2d 534, 536 (1990),
cert. denied,
502 U.S. 943 (1991).
Signing a waiver form does not alone guarantee affirmance of
a conviction, and failure to give the specific warnings suggested
by appellant does not alone assure reversal of the conviction.
All of the circumstances as shown by the record must be
considered and an ultimate determination made whether the accused
knowingly, competently, and intelligently waived his right to be
represented by an attorney.
In Superintendent v. Barnes, 221 Va. 780,
273 S.E.2d 558
(1981), the Supreme Court of Virginia said:
While the Supreme Court has said in dictum
that an accused who has chosen to represent
himself "should be made aware of the dangers
and disadvantages of self-representation,"
Faretta v. California, 422 U.S. 806, 835
(1975), it has never held that the absence of
such cautionary instruction, standing alone,
defeats a waiver.
Id. at 784, 273 S.E.2d at 561. Whether there has been an
intelligent waiver of right of counsel depends upon the
particular facts and circumstances on each case, including the
background, experience, and conduct of the accused.
Id.
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In Faretta, the sole issue decided was that the trial court
erred when it denied Faretta the right to represent himself and
proceed to trial pro se. Obviously, the specific warning
statement from Faretta relied upon by appellant was dictum.
Kinard quoted the dictum from Faretta but specifically
acknowledged that "[t]o test the sufficiency of Kinard's waiver
of counsel and election to proceed pro se, we must review the
particular facts and circumstances surrounding this case."
Kinard, 16 Va. App. at 527,
431 S.E.2d at 86. Citing United
States v. Doe,
743 F.2d 1033, 1038 (4th Cir. 1984), the Kinard
opinion declares:
[T]he primary inquiry . . . is not whether
any particular ritual has been followed in
advising the defendant of his rights and
accepting his waiver, but simply whether the
procedures followed were adequate to
establish "an intentional relinquishment of
the right to counsel, known and understood by
the accused. . . ."
Kinard, 16 Va. App. at 527,
431 S.E.2d at 86.
Kinard is not based upon the dictum from Faretta. Rather,
it is based upon the finding that Kinard's waiver was not
intelligently made because the record failed to show that he had
been advised of the nature of the charges against him and of the
punishment that could be imposed. Kinard, 16 Va. App. at 527,
431 S.E.2d at 86.
Kinard is consistent with the prevailing constitutional
standard expressed in North Carolina v. Butler, 441 U.S. 369,
374-75 (1979). There, the Supreme Court upheld an "implicit
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waiver" upon considering the whole record. Citing Butler, the
Virginia Supreme Court in Barnes agreed that "[w]hile it is
preferable practice for trial courts to warn an accused of the
risks of self-representation, we believe that a cautionary
instruction is only one of the 'facts and circumstances' relevant
to a determination of the validity of a waiver of counsel."
Barnes, 221 Va. at 784,
273 S.E.2d at 561.
The waiver form signed by appellant met the requirements of
Code § 19.1-160. Appellant is a college graduate with one year's
credit toward a Master's degree. His criminal record discloses
numerous experiences with the judicial system and the criminal
process. His attention was called to the advisability of
considering a jury trial, and he specifically indicated a
preference for a bench trial. He had access to a law library.
He apparently used it because when asked on April 1 whether he
was prepared for trial he answered in the affirmative. By
executing the waiver forms, appellant acknowledged (1) that he
had been advised of the nature of the charges and of the
potential punishment for the offenses, and (2) that he understood
he had the right to be represented by a lawyer, that he would be
given the time to employ one and if he could not afford one the
court would appoint one to represent him. He acknowledged
further that he understood the nature of the charges, that the
potential punishment if he were found guilty exposed him to
penitentiary incarceration, and that he was waiving his rights of
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his own choice, voluntarily, of his own free will, without
threats, promises, force, or coercion.
The courts' orders and certifications to the waivers
disclose findings that appellant knowingly and intelligently
waived his right to be represented by an attorney. Two judicial
officers, the general district court and the circuit court
judges, declared that they had made an "oral examination," that
appellant had been informed of his rights, that he understood the
contents of the waiver, and that he had "knowingly, voluntarily
and intelligently" waived his rights. In addition, post-trial,
an attorney was appointed to represent appellant in this appeal.
Prior to perfecting the appeal, the newly appointed counsel
moved the trial court to set aside the verdicts on the basis of
the dictum contained in Faretta and quoted in Kinard. The trial
court reviewed the record and made a further specific finding
that the waiver complied with the constitutional requirements.
Nothing in this record contradicts the factual statements
contained in the waivers. In fact, at oral argument, counsel for
appellant conceded that if the contents of the waivers had been
contained in the transcript of the trial procedure, appellant
would have no basis for reversal of his convictions.
Upon review of the facts and circumstances shown, for the
reasons stated, we hold that the record supports the trial
court's finding that appellant competently, voluntarily, and
intelligently waived his right to counsel, and that the
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requirements of the Sixth Amendment have been met.
Accordingly, the judgments of the trial court are affirmed.
Affirmed.
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Benton, J., dissenting.
In applying the admonition in Faretta v. California, 422
U.S. 806 (1975), that the record must establish that an accused
who represents himself has "'knowingly and intelligently'
forego[ne] those relinquished benefits" that are traditionally
associated with the right to counsel,
id. at 835, this Court
stated:
A defendant "should be made aware of the
dangers and disadvantages of self-representation, so that the record will
establish that 'he knows what he is doing and
his choice is made with eyes open.'" . . .
"[T]he primary inquiry . . . is not whether
any particular ritual has been followed in
advising the defendant of his rights and
accepting his waiver, but simply whether the
procedures followed were adequate to
establish 'an intentional relinquishment of
the right to counsel, known and understood by
the accused. . . .'"
Kinard v. Commonwealth, 16 Va. App. 524, 527,
431 S.E.2d 84, 86
(1993) (citations omitted).
In pertinent part, the transcript reflects that the
following occurred in the circuit court:
(The Court Reporter was duly sworn.)
(The Defendant was present in the courtroom.)
[PROSECUTOR]: Bobby Edwards.
[JUDGE]: He waived his right to an attorney.
[PROSECUTOR]: That's what I understand,
Judge. The Commonwealth is ready, Judge.
[JUDGE]: All right, in this particular case
Mr. Edwards, in the General District Court
you waived your right to an attorney. Do you
still wish to waive your right to an attorney
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in these cases, sir?
[THE DEFENDANT]: Your Honor, because of the
political and sociological ramifications of
ride by shootings. And the falsification of
information by the witnesses. And the
withholding of information by the
prosecutor's office to paint the scenario
that I'm some person from out of town, some
infamous or notorious person named Tank from
out of town that is some kind of enforcer or
some kind of a hit man or something, when, in
fact, I have twelve children in Newport News
and sixteen grandchildren.
I'm not someone coming here to be on some
misadventure. And because of the turns and
twist in the judicial system wherein a man is
more or less guilty until he is proven
innocent and the doubt goes towards the
prosecutor, I have no alternative but to
proceed as a pro se litigant. However, I
make a motion to quash the information
because in the -- there was no corpus delicti
evidence of probable cause --
[JUDGE]: The first thing I want to do is get
the paperwork straight, because all I have in
front of me is a waiver from the General
District Court. And I want to get straight
that you want to represent yourself. So he
needs to sign -- what do we have, we have
three charges?
… …
[JUDGE]: Let me get -- Mr. Davenport if you
will prepare three waivers and have the
sheriff take them over to this gentleman and
let him sign them and Mr. Duncan you can look
through your file while we're doing that.
All right, Mr. Edwards, you had some
motions.
THE DEFENDANT: Yes, sir.
… …
[JUDGE]: I'm going to deny those motions
because I don't believe this Court has
anything to do with the probable cause
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hearing.
THE DEFENDANT: I can reserve those rights on
those motions?
[JUDGE]: Yes, sir, you can note your
exception to my ruling on those issues, yes,
sir. All right, now, with that in mind I'm
going to ask that the Clerk read to you the
indictments for you to plead to the
indictments.
This Court's observations in Kinard are applicable to the
record in this case.
The record . . . does not show that the
waiver was made intelligently. . . . [The
record] was insufficient to ensure that [the
defendant] understood that he was undertaking
a complex and sophisticated role, the
performance of which normally requires a high
level of professional training and
competence. It failed to warn him that if he
rejected professional assistance, he would be
responsible for the adequacy of his defense
and would suffer the consequences of any
inadequacy. At the time the waiver was
accepted, [the defendant] had not been
arraigned. The record does not show that he
had been advised of the nature of the charges
against him or of the punishment that could
be imposed. Therefore, the record does not
support . . . [a] finding that [the
defendant's] waiver of counsel was
intelligently made.
16 Va. App. at 527,
431 S.E.2d at 86. Because the record in this
case does not reflect that the defendant was made aware of the
"dangers and disadvantages of self-representation," Faretta,
422
U.S. at 835, I would hold that the record does not establish that
the defendant made a knowing and intelligent waiver of his right
to counsel. Accordingly, I would reverse the convictions and
remand for a new trial.
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