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JULY 25, 2000

Record No. 1224-98-2





Timothy J. Hauler, Judge

Present: Judges Benton, Humphreys and Retired
Judge Olitsky

Argued at Richmond, Virginia

John B. Boatwright, III (Boatwright &
Linka, on brief), for appellant.

(Mark L. Earley, Attorney General; John H.
McLees, Jr., Assistant Attorney General, on brief), for appellee.


A jury convicted Antonio Edward Battle of
robbery and use of a firearm in the commission of the robbery.
Battle contends the trial judge erred in denying his motion for a
continuance and in permitting him to act as his own attorney
during the trial. For the reasons that follow, we reverse the
convictions and remand for a new trial.

After Battle’s arrest for robbery and use of a
firearm in the commission of robbery, a judge of the general
district court appointed Travis Williams, an attorney, to
represent Battle, an indigent person, during the preliminary
hearing. Following the preliminary hearing, a grand jury indicted
Battle on both charges. The trial judge appointed Williams to
continue representing Battle in the circuit court. Two weeks
later, Battle wrote a letter to the trial judge dated February
26, 1998, alleging that his attorney had not obtained specific
"evidence that can prove [Battle’s] innocence,"
requesting the judge’s assistance in obtaining this evidence, and
seeking a new attorney. The trial judge sent a copy of the letter
to Battle’s attorney, who replied that he had met with Battle and
"fully explored all the options, evidence and requests that
. . . Battle has put forth." On March 5, 1998, Battle’s
counsel requested and received a thirty day continuance for
"more time to prepare [the] case." Five days later,
Battle was released on bail. Battle’s attorney then filed a
motion for discovery.

On May 6, 1998, the day of trial, Battle
requested a continuance to retain a private attorney. He alleged
that he was employed, that he had been "working hard . . .
to afford an attorney," that his appointed attorney had not
obtained the evidence he requested, and that he had given new
information to his appointed attorney to no avail. Battle’s
appointed attorney informed the trial judge that the items of
evidence existed but "they are [not] essential to the
case." He also told the judge that although he was prepared
to try the case, he wanted the judge to consider Battle’s request
to retain his own paid attorney. After hearing Battle’s
arguments, the trial judge denied his request for a continuance.
Following a conference in chambers with only the prosecutor and
Battle’s appointed attorney, the trial judge returned to court
and stated on the record that he had "discussed this case in
conference, in camera, in chambers with counsel, and . . .
believe[d] both sides are adequately prepared to try this

During the arraignment, Battle stated that his
appointed attorney was not adequately prepared. His attorney
disagreed. Battle again requested a continuance, which the trial
judge denied. The Commonwealth’s first witness at trial
identified Battle as the person who showed her a gun and robbed
her. After Battle’s attorney cross-examined the witness, Battle
informed the judge that he was not satisfied with his attorney
and the following exchange ensued:

DEFENDANT BATTLE: Judge, this is one reason why
I wanted other counsel, wanted to pay for other counsel. There
are other questions that definitely needed to be asked that I
wanted asked that didn’t get asked because he feels that they
didn’t need to. I do feel that they need to be asked, and that’s
why I’ve been out working trying to get me a lawyer–

[JUDGE]: We’re not going through this drill
again. Mr. Williams is the lawyer in the case. If you want to
represent yourself, I’ll let you represent yourself.

DEFENDANT BATTLE: Well, can I represent myself?

[JUDGE]: All right. I’m not dismissing you from
the case, Mr. Williams. I’m asking that you be here in the
courtroom. I think you’re making a mistake, Mr. Battle.

DEFENDANT BATTLE: Sir, my life is on the line.
I’m going to do all that I have to do in order to prove my . . .
innocence. Excuse me.

During that same exchange, Battle again said
"I want another lawyer" and "can it be definitely
stated for the record that I choose other counsel."

The trial continued with Battle representing
himself. At the conclusion of the evidence, the jury convicted
Battle of robbery and use of a firearm in the commission of
robbery. This appeal followed.


"[I]n order to represent himself, the
accused must ‘knowingly and intelligently’ forego those
relinquished benefits [that are traditionally associated with the
right to counsel]." Faretta v. California, 422 U.S.
806, 835 (1975). Thus, we have ruled as follows:

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).

The record establishes that Battle consistently
requested the trial judge to allow "other counsel" to
represent him. Battle did not initiate the idea of representing
himself. That idea was proposed by the trial judge after he
informed Battle that he would not delay the trial by permitting
other counsel to represent Battle. Furthermore, when the trial
judge said to Battle, "If you want to represent yourself,
I’ll let you represent yourself," Battle’s response was
framed as a question, "Well, can I represent myself?"
The record contains no indication that Battle had previously
entertained this idea or understood the vast implications of
representing himself before a jury.

In Kinard, where the accused "moved
to proceed pro se," 16 Va. App. at 526, 431
S.E.2d at 85, we found insufficient the trial judge’s warnings
that "you’re making a big mistake" and that the accused
would be "expect[ed] . . . to comport [himself] as any other
lawyer." Id. at 527, 431 S.E.2d at 86. The trial
judge in this case, however, merely warned Battle, "you’re
making a mistake." We again note, as we did in Kinard,
the following:

This warning was insufficient to ensure that
[Battle] 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.

16 Va. App. at 527, 431 S.E.2d at 86.

The Commonwealth argues that "[i]n this
case, the Court can . . . properly infer Battle’s understanding
that self-representation would be risky." Thus, the
Commonwealth points to (i) Battle’s two felony convictions when
he was eighteen years of age and several misdemeanor convictions
to establish he "was no stranger to the criminal justice
system or to courtroom procedure," (ii) Battle’s letter to
the trial judge complaining about his attorney’s failure to
obtain evidence favorable to his innocence, and (iii) Battle’s
express desire for "the assistance of counsel, thus showing
that he was not unaware of the utility of legal counsel."

The right to counsel, however, 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." . . . [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 v. Commonwealth, 230 Va. 208,
215, 335 S.E.2d 823, 827 (1985) (citations omitted).

Nothing in this record proves that Battle made
a knowing and intelligent waiver of his right to counsel.
Clearly, Battle continually and consistently requested
representation by an attorney. Expressing his belief that his
appointed attorney was inadequately representing him, Battle
sought the representation of another attorney "to prove
[his] innocence." That was his initiative until the trial
judge prompted him to another course. Furthermore, Battle’s prior
experience with the criminal justice system is not unequivocal
evidence that he knowingly and intelligently understood the
consequences of his acceptance of the trial judge’s offer. It is
just as likely that his prior experience was the reason he so
forcefully sought to have his own paid attorney represent him.
The inferences that flow from the evidence in the record are
equivocal. We hold, therefore, that any inferences to be drawn
from these matters do not rise to clear, precise, and unequivocal
evidence that Battle’s acceptance of the trial judge’s suggestion
that he represent himself was a knowing and intelligent waiver of
his right to counsel.

Accordingly, we reverse the convictions and
remand for a new trial if the Commonwealth be so advised. Because
we reverse on this issue, Battle’s other contention concerning
the trial judge’s refusal to grant a continuance is moot.

Reversed and remanded.



[1] Retired Judge Norman Olitsky took
part in the consideration of this case by designation pursuant to
Code ? 17.1-400, recodifying Code ? 17-116.01.

[2] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.