                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Retired Judge Olitsky*
Argued at Richmond, Virginia


ANTONIO EDWARD BATTLE
                                        MEMORANDUM OPINION** BY
v.   Record No. 1224-98-2              JUDGE JAMES W. BENTON, JR.
                                              JULY 25, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    Timothy J. Hauler, Judge

          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


     * 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.

     ** Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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

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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 case."

     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?

                                 - 3 -
          [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.

                               II.

     "[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. . . .'"

                              - 4 -
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

                                 - 5 -
          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

                              - 6 -
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.




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