WATKINS v. COMMONWEALTH
JANUARY 20, 1998
Record No. 0649-96-4
MICHAEL TRACY WATKINS
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE ROSEMARIE ANNUNZIATA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
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
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 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
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
transcript. The Commonwealth filed a motion
to vacate the writ, 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
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 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).
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
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
defendant’s waiver."). 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.
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
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
"’[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.’" 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. 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.
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
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
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 COMMONWEALTH]: I don’t have a problem with that.
the case and his client wants him out of the case I am
inclined to grant Mr. Stith’s motion.
THE COURT: I will grant counsel’s motion.
THE DEFENDANT: That’s appropriate.
Finally, the court granted appellant’s request for advisory
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
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
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
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). 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
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 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
The evidence of appellant’s intent to commit burglary was
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.
 On November 19, 1997, Judge
Fitzpatrick succeeded Judge Moon as chief judge.
 The order reflected that
another attorney was appointed to assist the defense in a
 Code ? 8.01?675.4 provides
that this Court may:
in any case, after reasonable notice to 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.
 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
 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
 The Commonwealth’s motion to
strike appellant’s reply brief, as well as appellant’s various
motions, are also denied.
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