Walker v. Commonwealth

71 Va.App. 665

839 S.E.2d 123

Justin Leon WALKER

v.COMMONWEALTH of Virginia

Record No. 1945-18-1

Court of Appeals of Virginia, Norfolk.

MARCH 24, 2020

Charles E. Haden, Hampton, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Russell and Malveaux

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

Justin Leon Walker, appellant, was convicted by a jury of forcible sodomy, attempted rape, attempted object sexual penetration, and aggravated sexual battery. On appeal, he claims that the trial court erred in forcing him to go to trial without an attorney in violation of the Sixth Amendment of the United States Constitution. He contends: 1) he never waived his right to an attorney; 2) he did not ask to represent himself; 3) he clearly asserted his desire for an attorney; and 4) he was constitutionally entitled to the assistance of counsel at trial. For the reasons that follow, we affirm appellant’s convictions.

BACKGROUND²

Appellant was indicted for the four felonies on November 4, 2013, and, on the same day, the trial court appointed two attorneys from the Office of the Public Defender (counsel #1) to represent him.³ On January 28, 2014, counsel for appellant filed a motion to withdraw, asserting that appellant’s stated intent to file bar complaints against the two assistant public defenders who had been assigned to represent him created an "adversarial relationship" between client and counsel making further representation of him impossible. The trial court granted the motion and appointed James Gochenour (counsel #2) to represent appellant.

Soon thereafter, Gochenour moved to withdraw. The trial court initially denied the motion, however, at a hearing on May 16, 2014, appellant requested new counsel, stating to the trial court that, "I can’t use no lawyer that’s a liar and unprofessional ... I’m entitled to a lawyer that’s going to represent me not prosecute me." Ultimately, the trial court relieved Gochenour and appointed J. Robert Harris, III (counsel #3) to represent appellant.

On June 5, 2014, Harris filed a motion to withdraw as counsel. In the motion, Harris stated that appellant "desires to represent himself and requests to have J. Robert Harris, III serve as" standby counsel. On June 11, 2014, the trial court, in a written order, stated that the appellant’s conduct constituted a "constructive discharge of counsel or a de facto waiver of counsel" and appointed Harris as standby counsel for trial.

On February 13, 2015, the trial court relieved Harris as standby counsel. At that time, appellant indicated that he wished to have a new attorney appointed to represent him. The trial court appointed David Dildy (counsel #4) to represent appellant and continued the matter for a jury trial.

On April 14, 2015, Dildy filed a motion to withdraw, informing the trial court that a "conflict has developed between [appellant] and his counsel such that the counsel is ethically constrained to ask the [c]ourt for leave to withdraw." The trial court granted the motion, and, on April 24, 2015, appointed Stephen K. Smith (counsel #5) to represent appellant.

On August 27, 2015, Smith filed a motion to withdraw, informing the trial court of appellant’s wish to proceed pro se . On September 4, 2015, the trial court allowed Smith to withdraw. In the same order, the trial court appointed David Tichanski (counsel #6) to represent appellant.

On November 30, 2015, Tichanski, citing "ethical conflicts" that he was not able to disclose, filed a motion to withdraw as counsel. The trial court took the matter under advisement until a psychological evaluation of appellant could be completed. The trial court held a hearing on March 16, 2016, and Tichanski renewed his motion to withdraw. Tichanski informed the trial court that appellant would not speak to him, that appellant already had filed a bar complaint against him, and that appellant "is asking me to do certain things that I’m ethically prohibited from doing ...." In denying Tichanski’s request, the trial court posed the question, "Won’t that be the case with anybody that we appoint, then ...?" Counsel responded that, although he did not know what the answer to that question was, he knew that he could no longer effectively represent appellant. Tichanski added that appellant vacillated between wanting counsel and wanting to proceed pro se , with appellant’s thoughts on the topic changing "from day-to-day."

Appellant informed the trial court that he had brought the bar complaint to court with him and demanded yet another lawyer, declaring "I’m not dealing with" Tichanski. After some contentious discussion with appellant about whether to set the case with or without a jury, the trial court indicated it would set the case for a jury trial. Appellant responded, "You need to get this man off my case that’s what you need to do. ... You need to get that cracker off my case, how about that? Yeah, I know you don’t like that, do you? ... Red neck ass nigger. Fuck that, man." The trial court eventually scheduled the matter for a jury trial to commence on October 18, 2016.

The trial court brought the parties back for a hearing on April 1, 2016. Noting appellant’s combative behavior since the beginning of the proceedings, along with the multiple attorneys the trial court had appointed who "didn’t work" for appellant, the trial court finally allowed Tichanski to withdraw, stating to appellant that his behavior and language had created a situation where Tichanski could not effectively represent appellant. The trial court stated to appellant, "I’m not appointing another lawyer. You have every right to hire someone to represent you, but based on my review of your history -- your procedural history in this case, you have effectively waived your right to be appointed a lawyer to represent you. You’re going to have to represent yourself[.]"

On September 27, 2016, the trial court convened a hearing. At that hearing, the trial court informed appellant that, despite its prior ruling, it had reconsidered and would grant appellant’s previous request for appointment of yet another counsel. The trial court informed appellant that it was appointing Tyrone Johnson (counsel #7) as his counsel. In introducing appellant to Johnson, the trial court both encouraged appellant to cooperate with Johnson and warned of the consequences of a lack of cooperation, stating from the bench

But I need to just remind you that it’s real important that you cooperate with your counsel. Mr. Johnson has been appointed to help you with this case. So you need to cooperate with him and refusal to cooperate with your counsel can result in you waiving your right to court-appointed counsel.

The trial date ultimately was rescheduled for March 6, 2017. In setting the date, the trial court noted that the case had been continued nearly thirty times and informed the parties that the case would be tried on March 6, 2017.

On February 13, 2017, Johnson, citing a conflict of interest, moved the trial court for leave to withdraw. At the February 15, 2017 hearing on Johnson’s motion, the Commonwealth raised concerns, stating

that the defendant has acted in a dilatory manner because I think he uses the bar complaint to force an attorney to have to get out of the case or he acts in a manner that would force the defense attorney to be unable to properly prepare for the case.

In granting Johnson’s motion, the trial court agreed with the Commonwealth that appellant’s conduct amounted to a deliberate delay strategy and concluded that appellant had waived his right to counsel. The trial court explained from the bench that

[m]y conclusion is that [appellant] has, in fact, waived his counsel or right to a counsel by his behavior. And I concur totally with what [the prosecutor] said. The use of the bar complaints, refusal to come out and talk to his lawyer, to ask his lawyer to make frivolous motions, all of that. ... By the way, I had this discussion with him the last court hearing. So ... you’re now representing yourself in this case.

The trial court appointed Gregory Bane (counsel #8) as standby counsel for appellant’s jury trial occurring on March 6 and 7, 2017. Before trial, appellant made it clear to the trial court that he did not desire standby counsel, and Bane informed the trial court that appellant would not communicate with him. Appellant represented himself at trial and was convicted of all offenses.

This appeal followed.⁴

ANALYSIS

On appeal, appellant argues he was denied his constitutional right to the assistance of counsel. His constitutional challenge raises a question of law that we review de novo . Huguely v. Commonwealth, 63 Va. App. 92, 106-07, 754 S.E.2d 557 (2014).

I. The Sixth Amendment right to counsel and waiver

In pertinent part, the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defen[s]e." This Sixth Amendment guarantee "is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process." Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986). It mandates that a defendant have a fair opportunity to secure counsel of his own choice to represent him, Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932), or, if a defendant is indigent, that representation be made available to him by the court, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The Sixth Amendment right to counsel also "implicitly embodies a ‘correlative right to dispense with a lawyer’s help[,]’ " Faretta v. California, 422 U.S. 806, 814, 95 S.Ct. 2525, 2530, 45 L.Ed.2d 562 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942) ), and thus, it can be waived. Due to the fundamental...