Thomas v. Commonwealth

Present: All the Justices
ANTOINE LAMONT THOMAS
OPINION BY
v. Record No. 000408 JUSTICE LAWRENCE L. KOONTZ, JR.
November 3, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the trial court erred
in denying a criminal defendant’s motion that he be permitted to
waive his right to counsel and to represent himself at trial.
BACKGROUND
On March 1, 1999, the grand jury of the City of Richmond
returned indictments against Antoine Lamont Thomas charging him
with grand larceny, Code § 18.2-95, and statutory burglary, Code
§ 18.2-91. The charges arose from the breaking of a window and
taking of consumer goods valued at over $600 from a downtown
Richmond store on August 25, 1998.
The Circuit Court of the City of Richmond (the trial court)
appointed counsel to represent Thomas on April 26, 1999, and she
undertook discovery on his behalf. For reasons not fully
disclosed in the record, the trial date was continued four times
over the course of three months, during which time Thomas
continued to be represented by his court-appointed counsel.
On July 22, 1999, Thomas and his counsel appeared in the
trial court. When the clerk called the case and asked counsel
whether she was prepared, she responded, “I believe my client
had a motion.” The trial court asked Thomas whether he had a
motion to make and Thomas replied:
Yes, Your Honor, sir. If the Court will allow I
would like to represent myself on the charge[s] of
grand larceny and burglary. I believe I am well
educated with those two charges and elements which
consist of them so if you don’t mind just those two.
By “just those two,” Thomas meant that he did not wish to
represent himself in a probation revocation proceeding that
would follow his trial if he were convicted. 1 The trial court
asked Thomas whether he had ever previously represented himself.
Thomas replied, “Yes I have. Not on these exact charges but I
have represented myself.” The trial court then asked whether
Thomas understood the elements of the offenses with which he was
charged. Thomas replied:
For . . . statutory burglary the breaking and
entering in the night time as well as the intent. As
far as the grand larceny, the actual taking [of] the
stuff. That pretty much sums it up.
The trial court asked Thomas whether he had an
understanding of the rules of evidence. In response, Thomas
said that he understood that grand larceny required proof that
the value of the goods was at least $200. The trial court then
asked specifically whether Thomas understood the rules of
1
Thomas was represented by different appointed counsel for
the revocation hearing.
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hearsay, and Thomas said that he did. When the trial court
asked whether he had any formal legal training, Thomas stated
that he had “studied these charges for the last seven months.”
When asked whether he had made any request with which his
counsel had not complied, Thomas indicated that he was not
satisfied with counsel’s response to his request for further
discovery. In reply to the trial court’s inquiry on this
matter, Thomas’ counsel indicated that she had shared with
Thomas the forensic reports obtained through discovery. She had
not complied, however, with Thomas’ request that she ask the
Commonwealth to disclose the identity of its witnesses. She
explained to him that the Commonwealth was not required to make
such disclosure. Thomas stated that he wanted the Commonwealth
to disclose the criminal backgrounds of all its witnesses. The
trial court explained, however, that the Commonwealth could not
be compelled to reveal that information, unless it was
exculpatory.
The trial court then asked Thomas’ counsel whether she felt
capable of representing Thomas at trial. Counsel responded, “I
don’t have a problem trying this case. . . . I have every
confidence I could try this case to the utmost of my ability and
zealously represent Mr. Thomas.” The trial court asked whether
Thomas had requested that any witnesses be called on his behalf.
Counsel replied that he had, but that she had interviewed them
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and had concluded that “they are not viable witnesses.” Thomas
conceded that he had discussed the potential witnesses with his
counsel and indicated that he would not be able to call any of
his witnesses that day. Nonetheless, Thomas stated that he was
“prepared to move on myself.”
The trial court denied Thomas’ motion to represent himself,
stating that burglary and larceny “are serious charges. They
have elements – which you have recited some of those but they’re
technical offenses. I think you need counsel to help with
that.”
Trial then commenced with Thomas represented by his
appointed counsel. Thomas pled not guilty to both charges and,
the Commonwealth and the trial court concurring, waived his
right to a jury trial. The witnesses were excluded on motion of
Thomas’ counsel.
The Commonwealth presented evidence from the storeowner, a
police detective, and a forensic expert. The evidence showed
that Thomas’ fingerprints were found on the store’s window
display. An eyewitness testified that he heard the window break
and saw Thomas walking away from the store with a bag of
merchandise late at night. Thomas testified on his own behalf
and denied taking the merchandise from the display window. At
the conclusion of the evidence, the trial court, finding there
was no evidence that Thomas had entered the store, acquitted him
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of burglary but convicted him of grand larceny, sentencing him
to three years’ imprisonment with two years suspended.
Thomas filed a petition for appeal in the Court of Appeals
asserting issues related to the denial of his motion to
represent himself and sufficiency of the evidence to prove grand
larceny. By unpublished order, the Court of Appeals refused
Thomas’ petition for appeal. With respect to the denial of his
motion to represent himself, the Court of Appeals found that the
record supported a finding that Thomas “had not knowingly,
voluntarily, and intelligently waived his right to counsel.”
Thomas v. Commonwealth, Record No. 1880-99-2 (February 2, 2000).
Thomas filed a petition for appeal in this Court, assigning
error to the Court of Appeals’ failure to award him an appeal on
both issues raised in his petition to that Court. By order
dated June 12, 2000, we awarded Thomas an appeal limited to the
issue whether the trial court erred in denying his motion to
represent himself.
DISCUSSION
In Faretta v. California, 422 U.S. 806, 835-36 (1975), the
United States Supreme Court held that the Sixth Amendment
guarantee of the right to assistance of counsel also provides a
criminal defendant with a constitutional right to represent
himself without counsel if he voluntarily and intelligently
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elects to do so. 2 “Because an exercise of the right of self-
representation necessarily entails a waiver of the right to
counsel—a defendant obviously cannot enjoy both rights at trial—
the exercise of the right of self-representation must be
evaluated by using many of the same criteria that are applied to
determine whether a defendant has waived the right to counsel.”
United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000).
In Frazier-El, the United States Court of Appeals for the Fourth
Circuit detailed the requirements for a valid assertion of the
right of self-representation: the defendant’s motion must be
timely, clear, and unequivocal, and the defendant’s decision
must be voluntarily, knowingly, and intelligently made. 3 Id.
2
Although the right to counsel, and consequently the right
to serve as one’s own counsel, is not explicitly set out in the
Constitution of Virginia, we have held that it is nonetheless a
fundamental right guaranteed to an accused by the Bill of Rights
of the Constitution of Virginia. See Fitzgerald v. Smyth, 194
Va. 681, 690, 74 S.E.2d 810, 815 (1953).
3
Because the issue is governed by the application of the
Sixth Amendment, made applicable to the states in this regard by
Faretta, federal precedent is pertinent. We recognize that the
United States Court of Appeals for the Ninth Circuit adds a
further requirement that the trial court must also determine
that the motion is “not for the purposes of delay.” See, e.g.,
United States v. Schaff, 948 F.2d 501, 503 (9th Cir. 1991). The
Fourth Circuit has not yet ruled on this point, and, because the
record here establishes that Thomas was not seeking a
continuance or to otherwise delay his trial, we need not
consider at this time whether this requirement should apply to
Faretta motions in the courts of Virginia.
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The Commonwealth concedes that Thomas’ request to represent
himself was clear and unequivocal. Indeed, the record
establishes that Thomas made his request in unambiguous and
precise terms, being cautious to waive his right to counsel only
for the present criminal proceeding and not for the probation
revocation proceeding that might follow. Similarly, nothing in
the record suggests that Thomas’ motion was not voluntary. The
Commonwealth asserts, however, that Thomas’ motion was not
timely. We agree that this is the dispositive issue in this
case.
When the motion is timely, the trial court has no
discretion to deny a defendant his right to represent himself,
if the trial court is satisfied that the requirements of Faretta
have been met. United States v. Lawrence, 605 F.2d 1321, 1324
(4th Cir. 1979). Once meaningful trial proceedings have
commenced, however, the decision to permit the exercise of the
right of self-representation lies within the trial court’s sound
discretion. Bassett v. Commonwealth, 222 Va. 844, 857-58, 284
S.E.2d 844, 853 (1981); accord Lawrence, 605 F.2d at 1325.
“When ‘meaningful trial proceedings have commenced’ will,
of course, vary from case to case.” Lawrence, 605 F.2d at 1325.
The federal courts which have examined the issue universally
agree that an assertion of the right of self-representation,
even as late as the morning of trial, is timely as a matter of
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law if it precedes the seating of the jury. Compare, e.g.,
Armant v. Marquez, 772 F.2d 552, 555-56 (9th Cir. 1985); Chapman
v. United States, 553 F.2d 886, 895 (5th Cir. 1977); United
States v. Denno, 348 F.2d 12, 16 (2nd Cir. 1965). But see
Lawrence, 605 F.2d at 1325 (motion made after jury had been
selected but not yet sworn was untimely where delay in seating
jury was attributable to defendant). In the present case,
Thomas had not been called upon to enter pleas to the two
charges, he had not yet been required to elect between a jury
trial and a bench trial, and the witnesses had not yet been
separated. Accordingly, despite the Commonwealth assertion that
“the trial had begun when Thomas finally requested to defend
himself,” the record does not establish that “meaningful trial
proceedings” had occurred when Thomas made his motion.
Accordingly, we hold that Thomas’ request was timely.
On brief and during oral argument of this appeal, the
Commonwealth urged this Court to depart from the standard
adopted in Bassett in favor of a per se rule that any Faretta
motion made the day of trial would be untimely, whether or not
meaningful trial proceedings have commenced. See Russell v.
State, 383 N.E.2d 309, 314 (Ind. 1978). We decline to adopt
such a rule. The majority view among both state and federal
jurisdictions which have considered the issue, consonant with
that expressed in Bassett and reiterated here, is that the
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timeliness of a Faretta motion made on the verge of trial must
be determined by the facts of the individual case. See, e.g.,
People v. Mogul, 812 P.2d 705, 708-09 (Colo. Ct. App.
1991)(rejecting per se rule).
When a Faretta motion is timely made, “the trial judge has
the duty to determine whether such a waiver is voluntarily and
intelligently made, ‘and it would be fitting and appropriate for
that determination to appear on the record.’ ” Church v.
Commonwealth, 230 Va. 208, 215, 335 S.E.2d 823, 827
(1985)(quoting Johnson v. Zerbst, 304 U.S. 458, 465 (1938)).
Since the right to represent oneself is constitutional, on
appeal a defendant need not show prejudice resulting from the
denial of his demand, Bittaker v. Enomoto, 587 F.2d 400, 402-03
(9th Cir. 1978), and the trial court’s factual findings are
reviewed for clear error. United States v. McConney, 728 F.2d
1195, 1200 (9th Cir. 1984)(en banc); see also Faretta, 422 U.S.
at 835.
Although the Court of Appeals apparently interpreted the
trial court’s stated reasons for denying Thomas’ motion as
comporting with Faretta, the trial court made no express finding
that Thomas’ waiver of counsel was not knowingly and
intelligently made. Rather, the trial court’s stated reasons
for denying the request to proceed pro se was that Thomas was
facing “serious charges” that were “technical offenses” and for
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which he would need the assistance of counsel in presenting a
defense.
In light of these stated reasons, it would appear that the
trial court was not considering whether Thomas’ waiver was
intelligently made but, rather, was concerned with the dangers
and disadvantages of self-representation in the absence of
adequate legal knowledge. While this concern on the part of the
trial court is understandable, a defendant’s “technical legal
knowledge . . . [is] not relevant to an assessment of his
knowing exercise of the right to defend himself.” Faretta, 422
U.S. at 836. Indeed, “although [a defendant] may conduct his
own defense ultimately to his own detriment, his choice must be
honored” so long as it is knowingly and intelligently made. Id.
at 834.
The Commonwealth contends that despite the lack of an
express finding by the trial court that Thomas’ request to
represent himself was not knowingly and intelligently made, the
record nonetheless supports the Court of Appeal’s finding that
such a basis existed for denying the request. We disagree.
Although Thomas expressed only a rudimentary understanding
of criminal discovery and the rules of evidence, his basic grasp
of the nature of the offenses with which he was charged was
accurate. In his colloquy with the trial court, Thomas was
literate, competent, and thoughtful in responding to the trial
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court’s questions and showed respect for the trial court’s
authority. Moreover, Thomas appeared to have recognized that
there were limits to his abilities, since he expressly asserted
that he did not desire to represent himself in the probation
revocation hearing that would follow a conviction on the
criminal charges. Thomas was clearly cognizant of the potential
hazards of representing himself and of the limitations he faced
in presenting his case, but was nonetheless willing to proceed.
Whatever legitimate misgivings the trial court may have had
about the difficulty Thomas would face in representing himself,
his constitutional right to waive the assistance of counsel
takes precedence when the choice to exercise that right is
knowingly and intelligently made. The record in this case
supports the conclusion that Thomas exercised that choice within
that standard. Accordingly, we hold that the trial court erred
in not permitting Thomas to represent himself and the Court of
Appeals erred in denying an appeal of that judgment.
CONCLUSION
For these reasons, Thomas’ conviction will be reversed, and
the case remanded to the Court of Appeals with directions to
remand the same to the trial court for a new trial on the charge
of grand larceny if the Commonwealth be so advised.
Reversed and remanded.
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