Mark Todd Showalter v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Salem, Virginia
MARK TODD SHOWALTER
MEMORANDUM OPINION * BY
v. Record No. 2224-00-3 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
(Tracy Neyhart; Long, Long & Kellerman, P.C.,
on brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Randolph A. Beales,
Attorney General, on brief), for appellee.
Mark Todd Showalter appeals his convictions, after a bench
trial, for breaking and entering and attempted rape. Showalter
contends that the trial court erred in ordering him to appear
without counsel during a pretrial hearing.
Showalter was arrested for the charges at issue on July 21,
1998. 1 On July 22, 1998, Showalter signed a form requesting the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Showalter was also arrested on separate charges of
sodomy, attempted sodomy, two counts of rape, statutory
burglary, abduction with intent to defile, and attempted object
sexual penetration, involving a different victim. Many of the
pretrial proceedings addressed issues concerning both the
charges at issue, as well as these separate charges. However,
Showalter was arraigned and tried on the separate charges in a
appointment of counsel. As a result, the court appointed
Christopher A. Tuck to represent him. On September 28, 1998, Tuck
moved to withdraw as defense counsel, stating that Showalter had
refused to cooperate in his defense. Consequently, William H.
Yongue, IV, was appointed as Showalter's new counsel. On December
2, 1998, Eric P. Frith was appointed as co-counsel for Showalter.
On February 4, 1999, Yongue filed a motion for substitute
counsel stating that Showalter had expressed dissatisfaction with
his services. Then, in February of 1999, Showalter filed several
motions on his own behalf, informing the trial court of his
dissatisfaction with his attorneys' services and requesting the
appointment of new counsel.
On March 12, 1999, the court conducted the preliminary
hearing on these charges. At the beginning of the hearing, the
court denied Showalter's motion for new counsel on the basis that
it had granted Showalter's earlier request. On September 22,
1999, Showalter filed a motion with the court requesting
permission to represent himself in both the current proceedings,
as well as the companion proceedings against him. Showalter also
filed a number of documents pro se during the months of September
and October of 1999.
different proceeding. Showalter has filed a separate appeal
concerning his convictions in the companion proceeding. See
Showalter v. Commonwealth, Record No. 1718-00-3 (Memorandum
Opinion, this day decided).
- 2 -
On October 14, 1999, Showalter wrote a letter to Yongue and
Frith informing them that he no longer wished for them to serve as
counsel in his case, and that they were "fired." Showalter noted
in the letter "I will proceed, pro se defense, and you are
relieved completely from representing I [sic]." On October 22,
1999, the court conducted a hearing on Showalter's motion to
proceed pro se. Showalter and each of his attorneys were present
at the hearing. During the hearing, Showalter again insisted that
he be allowed to proceed pro se. However, after some discussion
with Showalter concerning the seriousness and complexity of the
charges, the trial court denied his motion to proceed pro se.
Subsequently, on October 28, 1999, the trial judge had
Showalter brought before the court without notice to counsel,
who were not present. The trial judge began by stating,
Mr. Showalter, I had the Sheriff's
Department bring you over just for a moment
because I wanted to be absolutely sure that
you understand how serious the charges are
against you, and I understand that you do
not want any attorney to represent you, I
understand that. We went through that the
other day.
* * * * * * *
But due to the complexity of the charges
against you and the complications and
expertise that is needed to adequately
defend you, as I told you the other day, I
feel like you need the help of an attorney.
They're [sic] highly complex technical
matters. I'm not going to force you to seek
their advice. I am going to have them on
stand-by and I will have them present in the
Courtroom and I will have them available to
- 3 -
you at all times between now and your trial
date, should you so wish to, to use them and
I can't suggest strongly enough that you
should, but I can't make you do it and I'm
not going to make you do it.
In response, Showalter replied, "yes," but indicated that he
could not properly represent himself if he remained handcuffed.
The trial judge agreed to take Showalter's request to remove the
handcuffs under advisement. Thereafter, Showalter acted pro se,
with stand-by counsel.
On March 14, 2000, Showalter was tried on these charges.
At the beginning of the trial, Showalter informed the trial
judge that he had changed his mind and wished to have Frith
represent him and that he wished to proceed with a bench trial,
instead of a jury trial. The matter proceeded as Showalter
requested, and he was ultimately convicted of the charges.
On appeal, Showalter contends that the trial judge denied
him his Sixth Amendment right to counsel when he had Showalter
brought before the court, without counsel, on October 28, 1999.
Specifically, Showalter asserts that the trial court denied his
motion to represent himself during the October 22, 1999 pretrial
hearing. Thus, he contends that the trial court violated his
right to counsel during the October 28, 1999 hearing by failing
to notify his counsel of record of the proceeding.
We note that regardless of whether Showalter was properly
representing himself during the October 28, 1999 hearing, or
whether he was represented by counsel, he has failed to
- 4 -
demonstrate on appeal that either he, or his counsel, raised an
objection of this nature below. Rule 5A:18 provides that "[n]o
ruling of the trial court . . . will be considered as a basis
for reversal unless the objection was stated together with the
grounds therefor at the time of the ruling . . . ." See also
McQuinn v. Commonwealth, 20 Va. App. 753, 755, 460 S.E.2d 624,
626 (1995) (en banc).
"The main purpose of requiring timely
specific objections is to afford the trial
court an opportunity to rule intelligently
on the issues presented, thus avoiding
unnecessary appeals and reversals. In
addition, a specific, contemporaneous
objection gives the opposing party the
opportunity to meet the objection at that
stage of the proceeding."
Ohree v. Commonwealth, 26 Va. App. 299, 307, 494 S.E.2d 484, 488
(1998) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d
164, 167 (1991)). We have repeatedly stated that we will not
consider the merits of an argument made for the first time on
appeal. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405
S.E.2d 630, 631 (1991). Further, "we will not search the record
for errors in order to interpret the appellant's contention [on
appeal] and correct deficiencies in a brief." Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Thus,
this issue is not properly before this Court and is barred from
our consideration pursuant to Rule 5A:18. See Rule 5A:18; see
also Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d
- 5 -
438, 441 (1991) (noting this procedural bar applies even to
defendant's constitutional claims).
However, Rule 5A:18 provides for consideration of a ruling
by the trial court that was not properly objected to at trial
"for good cause shown or to enable the Court of Appeals to
attain the ends of justice." "'The ends of justice exception is
narrow and is to be used sparingly'" when an error at trial is
"'clear, substantial and material.'" Redman v. Commonwealth, 25
Va. App. 215, 220-21, 487 S.E.2d 269, 272 (1997) (quoting Brown
v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10-11
(1989)). "In order to avail oneself of the exception, a
defendant must affirmatively show that a miscarriage of justice
has occurred, not that a miscarriage might have occurred."
Michaels v. Commonwealth, 32 Va. App. 601, 608, 529 S.E.2d 822,
826 (2000) (quoting Redman, 25 Va. App. at 221, 487 S.E.2d at
272).
Our review of the record here reveals no such good cause or
miscarriage of justice under the circumstances of this case.
Thus, we decline to invoke the exception and affirm the
convictions.
Affirmed.
- 6 -