Webb v. Commonwealth

1

MICHAEL ALAN WEBB v. COMMONWEALTH OF VIRGINIA

No. 1972-22-1

Court of Appeals of Virginia

June 18, 2024

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Michael E. McGinty, Judge

Charles E. Haden for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on briefs), for appellee.

Present: Judges AtLee, Malveaux and Causey Argued at Norfolk Virginia

MEMORANDUM OPINION ^[*]

MARY BENNETT MALVEAUX JUDGE

A jury convicted Michael Alan Webb ("appellant") of first-degree murder in violation of Code § 18.2-32, after he waived his right to counsel and represented himself at trial. On appeal, appellant asserts that the trial court erred when it found that appellant was competent to represent himself at trial. For the following reasons, we affirm the judgment of the trial court.

BACKGROUND

On appeal, we recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v Cady, 300 Va. 325, 329 (2021)). Doing so requires us to "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 to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

Appellant was indicted on a charge of first-degree murder of his mother, pled not guilty, and demanded a jury trial. At appellant's arraignment in the juvenile and domestic relations district court ("JDR court") on May 18, 2017, Terry Osborne was appointed to represent appellant upon appellant's oral request. Upon Osborne's motion, the JDR court ordered that appellant be evaluated for competency to stand trial. On July 19, 2017, Dr. Kevin McWilliams reported that, "due to his mental health deficits," appellant did not "currently appear competent to stand trial."

Appellant was admitted to Central State Hospital for restoration services in August 2017. During appellant's three-month period at Central State, his clinical psychologist and evaluator, Maria Sverdlova, noted that he did not display "any symptoms of a psychotic disorder . . . or affective instability," was not prescribed any psychotropic medication due to the "lack of observable symptoms," and was not "diagnosed with any mental illness aside from Unspecified Personality Disorder." Sverdlova observed that appellant was likely to be "challenging" to work with, but this was due to "features of his personality" rather than "any serious mental illness." She also noted that he had "a relatively strong knowledge of court-related information." On November 21, 2017, Sverdlova reported that appellant was "competent to stand trial."

At a hearing on January 24, 2018, the circuit court was made aware that appellant had requested to represent himself as he felt deprived of his Sixth Amendment right to "act as his own counsel or co-counsel." Osborne told the court that she had explained to appellant the pros and cons of self-representation and that appellant seemed "determined to want to do it."

When the court asked appellant if he desired to represent himself, he answered, "I wish to represent myself with standby counsel as help." The court asked appellant if he thought he was "competent to represent [him]self." He responded "Yes, sir." The court then told appellant, "I want to make sure you understand the consequences of representing yourself." It inquired to his background:

THE COURT: How old [are] you?

[APPELLANT]: I'm 35.

THE COURT: What's the last grade in school that you completed?

[APPELLANT]: Tenth.

THE COURT: Can you read and write?

[APPELLANT]: Yes, sir.

THE COURT: All right. Did you get a GED?

[APPELLANT]: Yes, sir.

THE COURT: Do you have any other kind of training or experience . . . ?

[APPELLANT]: No, sir.

THE COURT: All right. And . . . what kinds of jobs have you had?

[APPELLANT]: Landscaping . . . Salvation Army, fast food.

The court then asked appellant if he had "any experience at all with the criminal justice system." Appellant explained that previously, while incarcerated for robbery, he had filed in federal court "a case of cruel and unusual punishment . . . when [he] was subject to physical abuse by a corrections officer." Appellant told the court that he filed the lawsuit himself, did not have a lawyer advising him, and "was successful" and received "nominal damages." Appellant also explained his previous felony and misdemeanor convictions, the location and manner of trial for those offenses, and that he "had representation" in those cases.

The court then asked about appellant's understanding of "the law and what the rules are that govern a trial on the charge here." Appellant explained that he had read about the "statutory limitations" and "sentencing guidelines" relating to the charge and that he understood what hearsay was; he also accused the Commonwealth of "mishandling . . . evidence." The court cautioned appellant about the seriousness of the charge and the potential sentence, and further warned:

there may be technical issues that require legal training to understand which would affect your case. There may be defenses that you have to the charge that a lawyer would know how to raise. If you don't raise the defense, you'll not be able to bring them up for the first time on appeal. What that means there may be certain things you could do during the course of a trial that a lawyer would know when to do that and how to do that. If you represent yourself and you don't do that . . . it's not going to be heard on appeal. Do you understand that?

Appellant replied that he understood.

The court expressed concern that appellant may not understand the limited role of standby counsel and explained that standby counsel "wouldn't be actively sitting there acting like a lawyer would, objecting at the moment the objection needs to be made," and that "only one person" could examine witnesses and make opening and closing statements. The court advised appellant that if he was representing himself and became confused or frustrated, "that's not a basis for stopping the trial." Appellant responded that he was aware and stated twice: "I will continue to represent myself."

The circuit court then discussed form DC-335, "Waiver of Right to Representation by a Lawyer." The court asked appellant to read parts of the form aloud, then it read other parts aloud to appellant, and asked him if he understood the form and its significance. Appellant replied that he understood, but then stated: "I don't waive the right to my lawyer. I do wish to represent myself."^[1] The circuit court told appellant that he couldn't "have [his] cake and eat it too."

After consulting with Osborne, appellant announced that he felt he needed to sign the waiver form "under duress." The court ultimately told appellant: "I'm not convinced at this point . . . that you're knowingly and intelligently . . . waiving your right to an attorney . . . because I don't think waiving your right to a lawyer is what you think it means." Accordingly, the court denied appellant's request to represent himself.

On February 12, 2018, Osborne moved to withdraw because appellant "consistently expressed the desire to represent himself," was "not receptive to the suggestion or direction of counsel," and was either unwilling or unable to assist in the preparation of his defense.

At a hearing on February 21, 2018, appellant again asserted that he wished to represent himself. The circuit court warned that if it relieved Osborne, appellant would be representing himself and "standby counsel would only be there to basically jump in if they need to but otherwise would not be participating in the trial." Appellant confirmed that he understood, asserted again that he wished to represent himself, and signed the waiver form. The court stated: "I'm now convinced that [appellant has] knowingly, intelligently, and voluntarily waived his right to an attorney. I find that to be a knowing and intelligent decision." The court accepted appellant's waiver, granted Osborne's motion to withdraw, and appointed Christopher Voltin as standby counsel.

Also at the February 21 hearing, the court commented on appellant's performance and noted that it was "impressed with certain things," including appellant's ability to locate caselaw. Still the court reminded appellant of the seriousness of the charge and told him that an attorney "has much more experience" and "can help [appellant] substantially." Appellant asserted that he was "more than competent to represent [him]self."

At a hearing on March 5, 2018, the court reminded appellant that Voltin "may become [his] attorney" if he chose, and insisted that such "would be the [c]ourt's advice." Appellant did not take the court's advice at that time. But the court entered an order after a hearing on March 8, 2018, reflecting "the request of [appellant] for court-appointed counsel" and appointing Voltin to represent appellant.^[2]

On May 25, 2018, the court granted Voltin's motion to withdraw due to a conflict and appointed George Brooks to represent appellant. On July 18, 2018, the circuit court granted Brooks's motion to withdraw due to "the parties' failure to agree on how to proceed." At a hearing on July 30, 2018, appellant asserted that he "did not ask for an attorney to represent [him]," that he "d[id]n't want a lawyer," and that he "wanted stand-by counsel." The court asked twice "Do you wish to represent yourself," and appellant answered, "I already said that in February." He also confirmed that he "wanted stand-by counsel." The court stated that it was going to "accept [...