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November 3, 2000
Record No. 000408
Present: All the Justices
Antoine Lamont Thomas
Commonwealth of Virginia
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
FROM THE court of appeals of virginia
In this appeal, we consider whether the trial
court erred in denying a criminal defendants motion that he
be permitted to waive his right to counsel and to represent
himself at trial.
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 dont mind just
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. 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 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 counsels response to his request for
further discovery. In reply to the trial courts 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 dont 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 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 theyre 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
The Commonwealth presented evidence from the
storeowner, a police detective, and a forensic expert. The
evidence showed that Thomas fingerprints were found on the
stores 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 of burglary but convicted him of grand larceny,
sentencing him to three years imprisonment with two years
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.
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 elects to do so. "Because an exercise of the right of
self-representation necessarily entails a waiver of the right to
counsela defendant obviously cannot enjoy both rights at
trialthe 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
defendants motion must be timely, clear, and unequivocal,
and the defendants decision must be voluntarily, knowingly,
and intelligently made. Id.
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 courts
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 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 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
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 courts 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 courts 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
courts stated reasons for denying the request to proceed pro
se was that Thomas was facing "serious charges"
that were "technical offenses" and for 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 defendants "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 Appeals
finding that such a basis existed for denying the request. We
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 courts questions and showed respect for the trial
courts 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
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
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.
 Thomas was represented by
different appointed counsel for the revocation hearing.
 Although the right to counsel,
and consequently the right to serve as ones 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
 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.