Filed: April 27, 1993
Rodney L. Bean
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Frank W. Helvey, Jr.
West Virginia Public Defender Services
Charleston, West Virginia
Attorney for the Appellant
JUSTICE BROTHERTON delivered the opinion of the Court.
JUSTICES MILLER AND McHUGH concur in part and dissent in part, and reserve the right to file separate opinions.
SYLLABUS BY THE COURT
1. "The right of self-representation is a correlative of
the right to assistance of counsel guaranteed by article III,
section 14 of the West Virginia Constitution." Syllabus point 7,
State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).
2. "A defendant in a criminal proceeding who is mentally
competent and sui juris, has a constitutional right to appear and
defend in person without the assistance of counsel, provided that
(1) he voices his desire to represent himself in a timely and
unequivocal manner; (2) he elects to do so with full knowledge and
understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which
does not disrupt or create undue delay at trial." Syllabus point
8, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).
3. Where a defendant ostensibly represents himself in a
criminal trial, but where standby counsel actually is consistently
available and actually plays the dominant role in the defense, it
is not reversible error for a trial court to fail to engage in the
full litany outlined in State v. Sheppard, 172 W.Va. 656, 310
S.E.2d 173 (1983).
4. When a criminal defendant, who has elected to take
the stand and testify in his own behalf, indicates to his attorney,
or to the court, that he is contemplating committing perjury during
his testimony, it is not error, or a denial of the criminal
defendant's constitutional right to the assistance of counsel, for
the trial court to direct the defendant's attorney to refrain from
participating in the examination of the defendant on the stand and
to rule that if the defendant wishes to testify, he must testify in
a narrative fashion.
5. "Where a defendant in a noncapital case is free on
bail and is initially present at trial, and thereafter voluntarily
absents himself after the trial has commenced, and where he has
been informed of his obligation to remain during all stages of the
trial, then such voluntary absence will be deemed a waiver of his
right to be present." Syllabus point 3, State v. Tiller, 168 W.Va.
522, 285 S.E.2d 371 (1981).
7. "Except for willful, intentional fraud the law of
this State does not permit the court to go behind an indictment to
inquire into the evidence considered by the grand jury, either to
determine its legality or its sufficiency." Syllabus, Barker v.
Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977).
8. "Sentences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review." Syllabus point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).
In this case the defendant, Timothy Layton, who was
ultimately convicted of aggravated robbery and sentenced to serve
forty-seven years in the State penitentiary, moved that his court-appointed counsel be permitted to withdraw and that he be allowed
to conduct his own defense during his jury trial. The trial court,
the Circuit Court of Jefferson County, granted the defendant's
motion that he be allowed to defend himself. The court, however,
denied his motion that the court-appointed attorney be allowed to
withdraw. Instead, the court directed that the attorney remain in
the case as standby counsel.
On appeal, the defendant claims that the trial court
committed reversible error in allowing him to proceed pro se in
his defense. He also claims that he was denied effective
assistance of counsel and the right to testify meaningfully in his
own behalf. Integral to, and critical to an understanding of these
claims, is the fact that the trial court ruled that standby counsel
was not to assist the defendant in testifying if he elected to take
the stand and testify in his own defense. The court made this
ruling when it appeared that the defendant was disposed to commit
perjury on the stand and when standby counsel sought instructions
on what he should do in view of the pending perjury.
The defendant, who walked away from a bench conference,
also claims that he was denied his right to be present at a
critical stage of his trial, and he argues that the indictment
against him was fatally defective. Lastly, he claims that the
sentencing process employed by the trial court was violative of due
process of law.
This Court has reviewed the record, as well as the
questions presented, and can find no reversible error. The
judgment of the Circuit Court of Jefferson County is, therefore,
The evidence in this case shows that on December 23,
1989, two armed, white males entered a dairy store in Charles Town,
West Virginia. One of the individuals stood by the store door with
a shotgun while the other, identified as the defendant, brandished
a pistol at the store's two employees and demanded money from them.
The employees put money in a paper bag and gave it to the robber
with a pistol. The employees were then forced to get on the floor,
and the robbers left.
In fleeing from the store, the driver of the getaway
pickup truck, driving without lights, swerved to miss another
vehicle. As he, or she,See footnote 1 did so, the getaway truck ran into a
ditch, hit a telephone pole and fence, and then returned to the
road with a flat tire. Two men in the vehicle which the getaway
truck narrowly missed followed the wobbling truck on State Route 9
in an attempt to obtain its license number. They retreated,
however, when they saw a gun appear from the truck's right side
Another individual was in his car at a stop sign when he
saw the getaway truck run off the road. He, too, followed for a
short distance, but stopped when an individual in the truck fired
two shots at him.
The State Police were notified of the robbery and were
provided with a general description of the robbers. Two police
officers received a radio report of the robbery and learned that
the getaway vehicle had had a flat tire. The police officers,
after proceeding to the dairy store, noticed intermittent gouge
marks in the pavement of the road which appeared to have been made
by a vehicle with a flat tire. They followed these marks to the
top of a mountain to a point where the road turned into a trailer
park. In the trailer park, they saw a truck which matched the
general description of the getaway vehicle parked behind a cement
block building. They also could see that the gouge marks led to
Shortly thereafter, police from a number of jurisdictions
were summoned to the scene and took up positions around the trailer
court. After they had taken up their positions, a yellow Mustang
with three occupants approached from inside the trailer park. A
police officer motioned for the driver to stop, and the driver, who
was Terri Miller, and two passengers, the defendant and another
male, Michael Tarmon, raised their hands above their heads. One of
the passengers had a partially uncased shotgun. A search of the
vehicle also revealed a pistol and ammunition, and a search of the
defendant produced $220.00 in small bills. The defendant and
Michael Tarmon, who matched the descriptions of the robbers, were
then arrested and charged with the robbery of the dairy store.
On January 16, 1990, a Jefferson County grand jury
indicted the defendant for aggravated robbery. Following the
return of the indictment, a rather tortured and prolonged series of
events occurred, including multiple changes of counsel and an
abortive trial which resulted in a mistrial, before the trial which
underlies the present appeal.
After the arrest of the defendant, the circuit court, on
December 27, 1989, appointed F. Samuel Byrer to represent him. As
the proceedings advanced, the defendant retained another attorney,
Steven M. Askin, and at the defendant's request, the circuit court,
by order dated February 13, 1990, relieved Mr. Byrer. Although Mr.
Askin vigorously undertook to defend the defendant, the defendant
failed to pay a promised retainer fee, and on June 4, 1990, Mr.
Askin moved to withdraw as counsel. On June 6, 1990, the circuit
court granted Mr. Askin's request and appointed Matthew E. Bieniek
to represent the defendant.
Less than a month later, on July 13, 1990, Mr. Bieniek
moved to withdraw after the defendant threatened to file an ethics
complaint against him. The State resisted Mr. Bieniek's motion to
withdraw on the ground that the defendant had intentionally created
an ethics conflict as a delay tactic. However, during the
consideration of the motion it came to the court's attention that
Kevin Mills, who was represented by Mr. Bieniek, had represented
Terri Miller, the female driver of the yellow Mustang. Upon
learning this, the court granted Mr. Bieniek's motion to withdraw
and appointed David Sanders to represent the defendant.
Mr. Sanders, when he realized that he had conversed with Terri Miller concerning the robbery, moved to withdraw. The circuit court then re-appointed Mr. Byrer to represent the defendant.
While Mr. Sanders was representing the defendant, a
motion was made to disqualify the Jefferson County Prosecuting
Attorney and for appointment of a special prosecutor in the matter.
The ground for doing this was that an attorney, Lawrence Crofford,
who had represented co-defendant, Michael Tarmon, had joined the
Jefferson County Prosecutor's office.
As development of this question proceeded, Mr. Byrer
realized that he would likely be called as a witness on the motion
for a special prosecutor. He, therefore, moved to withdraw as
attorney for the defendant. The circuit court granted Mr. Byrer's
motion and appointed Richard Gay to represent the defendant.
The defendant's case proceeded to trial on May 15, 1991.
On the second day of trial, defense counsel, Richard Gay, moved for
a mistrial. In an in camera hearing, Mr. Gay explained that he
believed that the defendant intended to take the stand and commit
perjury and that he, as an attorney, did not want to be a party to
that perjury and that he did not want to participate in what he
considered unethical and immoral conduct.
The trial judge attempted to propose a compromise and,
after examining the question in the context of the Rules of
Professional Conduct, suggested that Mr. Gay ask the defendant
certain preliminary questions and then ask a general question which
would allow the defendant to testify in narrative form, without Mr.
Gay's participation. Mr. Gay protested strenuously, and a recess
was taken for lunch. Upon resumption of the hearing, again in the
presence of the defendant, the State joined in Mr. Gay's motion for
a mistrial. After some reflection, the court concluded: "[T]he
Court has reached the somewhat agonizing conclusion that Mr. Gay
should be permitted to withdraw in this case and we must have a
mistrial."See footnote 2
After the first trial ended in a mistrial, the circuit
court appointed Scott Ollar to defend the defendant. The defendant
also obtained the recusal of the first trial judge and obtained the
appointment of Andrew Frye, Jr., to preside over his second trial.
In the second trial, the defendant was found guilty as
charged and sentenced to forty-seven years in the State
penitentiary. The present appeal focuses on events that occurred
during the second trial.
The defendant's first assignment of error on appeal is
that the trial court committed reversible error by allowing him to
proceed pro se during his second trial. His real argument is that
the trial court failed to conduct the in camera proceedings
mandated in State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173
(1983), before allowing him to proceed pro se in his defense and
that, as a consequence, it cannot be said that, prior to
undertaking his own defense, he made a voluntary waiver of his
right to counsel or that he understood his rights and the possible
consequences of self-representation.
Approximately a week prior to the commencement of the
second trial, the defendant informed defense counsel, Scott Ollar,
that he no longer wanted Mr. Ollar to defend him and that he wished
to defend himself. Mr. Ollar promptly, on August 23, 1991, wrote
the trial judge about the development:
On Thursday, August 22, 1991, my office received two telephone calls from my client, Timothy Layton, with regard to the above-referenced matter. In these conversations, Mr. Layton informed both my staff and myself that it was his decision that I be relieved as counsel on his behalf and that he would be taking over his own defense at the trial of this matter, now scheduled to commence August 28, 1991, in Jefferson County. Upon my receiving the first message, I immediately informed attorney Charles Trump, special prosecutor in this matter, as I was in his office at that time.
It is my understanding that in a telephone
conference concerning this matter on August
21, 1991, you were advised that Mr. Layton
wanted to file a motion for my withdrawal. I
understand you to have indicated that such a
motion would be denied. I further understand
you to have indicated that should I be
discharged, I am to be appointed as counsel to
assist him in his pro se defense. I have
enclosed a proposed Order and a copy of
correspondence forwarded to attorney Trump
regarding his matter. Mr. Layton's entire
file has been hand-delivered to him at the
Eastern Regional Jail. I will provide what
assistance I can, including secretarial
When trial actually commenced on August 28, 1991, the
court, before a jury was selected, and in what was a de facto in
camera situation, addressed the defendant's motions that Mr. Ollar
be dismissed and that he be allowed to proceed pro se. Without
much discussion, the court ruled that the defendant could represent
himself, but denied the motion that the court-appointed attorney be
allowed to withdraw. The court told the defendant:See footnote 3
[Y]ou do not have the right to dismiss him or
fire him. I'm going to require him to stay as
your attorney. If you do not desire to use
him, that is your prerogative, but I will not
delay the trial simply by your firing or
attempting to fire your court-appointed
attorney. The record will show in this case
that you have had probably four previous
attorneys. For some various reasons, they
have all no longer represented you. And this
case will proceed today with Mr. Ollar as your
counsel there available to assist you.
The court also advised the defendant that if he did not want to use
his attorney, he would proceed at his own prejudice or benefit as
he saw fit, that the decision was his own, and that he would be
subject to whatever happened. Specifically, the court said:
The fact that you do not desire to use him, you know, will be either to your prejudice or to your benefit as you see fit. However, as it turns out, it will be your decision and you will be subject to whatever happens. And you have your exceptions to the ruling of the Court.
Later, the court, again before the jury was selected, told the
defendant that he was entitled to represent himself, but at his own
peril. The defendant, at this time, indicated that he wanted
counsel to give him advice and to cross-examine the crime victims.
The court assured the defendant that defense counsel would be
Both this Court and the Supreme Court of the United
States have recognized that a criminal defendant has a
constitutional right to represent himself during a criminal trial.
The Supreme Court of the United States' recognition of the right
was expressed in Faretta v. California, 422 U.S. 806, 95 S.Ct.
2525, 45 L.Ed.2d 562 (1975). In the syllabus of that case, the
Supreme Court stated:
The Sixth Amendment as made applicable to the States by the Fourteenth guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so . . . .
In Faretta, the Court went on to recognize that:
It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer's training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored . . . .
422 U.S. at 834, 95 S.Ct. at 2540-41, 45 L.Ed.2d at 581.
In syllabus point 7 of State v. Sheppard, supra, this
Court similarly recognized that the West Virginia Constitution gave
a criminal defendant a constitutional right to represent himself:
The right of self-representation is a correlative of the right to assistance of counsel guaranteed by article III, section 14 of the West Virginia Constitution.
In Sheppard, the Court further outlined the circumstances
under which a defendant could proceed to represent himself in a
criminal proceeding. In syllabus point 8, the Court stated:
A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which does not disrupt or create undue delay at trial.
In the body of Sheppard, the Court established rather
detailed guidelines as to what a trial court must do to ascertain
whether a criminal defendant has a full knowledge and understanding
of his rights and of the risks involved in self-representation.
The Court stated:
The determination of whether an accused has knowingly and intelligently elected to proceed without the assistance of counsel depends on the facts and circumstances of the case . . . The test in such cases is not the wisdom of the accused's decision to represent himself or its effect upon the expeditious administration of justice, but, rather, whether the defendant is aware of the dangers of self-representation and clearly intends to waive the rights he relinquishes by electing to proceed pro se . . . To this end, the trial court is required to conduct, on the record and out of the presence of the jury, an inquiry of the defendant, informing him of his rights and of the possible consequences of self-representation.
Id. at 671, 310 S.E.2d at 188.
In the present case, it is the defendant's claim that the
trial court failed to conduct the in camera hearing on the record
required by State v. Sheppard and, consequently, his conviction was
tainted by the fact that he proceeded to represent himself.
A careful examination of the Sheppard case reveals that
it focuses on the situation where a criminal defendant attempts to
represent himself "without the assistance of counsel," and the
opinion in the case repeatedly makes references to a defendant who
elects to proceed "without the assistance of counsel."
A number of courts have indicated that there is an
important distinction between cases where a defendant elects to
proceed pro se in his criminal defense without the assistance of
counsel and the situation where he elects to proceed pro se with
standby counsel, a situation sometimes referred to as "hybrid"
representation.See footnote 4 As stated by the Superior Court of Pennsylvania:
There is, however, a distinction between the constitutional right to proceed pro se pursuant to a valid waiver of the right to counsel and the right to proceed pro se and with counsel.
Commonwealth v. Palmer, 462 A.2d 755, 759 (Pa.Super. 1983).
See also United States v. Robinson, 783 F.2d 64 (7th Cir.
1986); Bontempo v. Fenton, 692 F.2d 954 (3d Cir. 1982); People v.
McKinney, 62 Ill.App.3d 61, 19 Ill.Dec. 250, 378 N.E.2d 1125
(1978); People v. Boswell, 62 Ill.App.3d 1033, 19 Ill.Dec. 786, 379
N.E.2d 658 (1978); People v. Lindsey, 17 Ill.App.3d 137, 308 N.E.2d
111 (1974); State v. Leady, 679 S.W.2d 292 (Mo.App. 1984); State v.
Edwards, 592 S.W.2d 308 (Mo.App. 1979); Clark v. State, 717 S.W.2d
910 (Tex.Cr.App. 1986), 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d
857 (1987); and State v. Barker, 35 Wash.App. 388, 667 P.2d 108
These courts have also recognized that there is a
substantial difference between the colloquy which must be
conducted, or litany which must be followed, when a defendant
elects to proceed wholly pro se as opposed to when he proceeds pro
se with counsel.
In State v. Barker, Id., the Washington court referred to
seminal Texas law in the area and laid down the rule significant to
the present case. The Washington court said that:
Phillips v. State, 604 S.W.2d 904 (Tx.Crim.App. 1979), held that while there is no right to hybrid representation, if it occurs the defendant is not entitled to admonishments about the dangers of self-representation.
These admonishments are to be given
to a pro se defendant to insure that
he is informed of the dangers
involved when he waives counsel.
Although appellant partially
represented him in this case, he was
also fully represented by counsel.
Thus, no question of waiver of
counsel is involved. Absent such
issue arising, we cannot conclude
that the trial court erred in
failing to admonish appellant as to
the dangers, if any, of this form of
Phillips, at 908.
667 P.2d at 112.
In the Barker case, the Washington court recognized that
while there was authority for the proposition that when an accused
assumed functions which were at the core of the lawyer's
traditional role, he must intelligently and knowingly waive his
right to counsel. Barker went on, however, to indicate that where
counsel played a substantial role in a hybrid, standby, or advisory
counsel situation, the standard inquiries and admonitions, of the
type mandated by this Court in State v. Sheppard, supra, where a
defendant elected to defend himself pro se without the assistance
of counsel, were not required. Barker suggested the reasons for
the different rule where there was some assistance by standby or
[H]is [Barker's] . . . attorneys . . . handled all pretrial matters which included the omnibus hearing, two changes of plea, several motions for continuances, determinations of the mental competency of Barker, and several motions in limine. Moreover, his legal counsel made all the legal objections, handled the various legal issues which arose at trial, and presented and argued the jury instructions to the court . . . .
Hence, Barker had the advice and participation
of experienced legal counsel who actively
assisted in and conducted his defense
throughout the pretrial proceedings and at all
stages of the trial itself. He was not
subject to the same danger and disadvantages
as one who proceeds without representation or
one who has a mere technical advisor.
Although Barker partially represented himself,
he was also fully represented by counsel and
consequently, the issue of waiver never arose.
The trial court did not err by not insuring,
on the record, that Barker was aware of the
dangers and disadvantages of self-representation prior to appointing him as co-counsel.
667 P.2d at 113.
In Commonwealth v. Palmer, supra, the Pennsylvania court
adopted essentially the same rule as the Washington court and did
so apparently for the same reasons. It stated:
Although the record of this case reveals that the lower court did not fully explore all matters relating to waiver during the colloquy, appellant was not, in fact, fully waiving his right to counsel. The arrangement worked out . . . was that appellant's standby counsel would select the jury, make closing remarks, file post-trial motions, and confer with appellant during the trial. Appellant asserted his right to self-representation as to certain other aspects of the trial. Appellant was to appear pro se only for the purposes of opening statement and examination of witnesses.
462 A.2d at 758-59.
The Pennsylvania court went on to hold that the Sheppard-type colloquy was not required where a defendant represented
himself pro se with counsel:
We hold that in a partial waiver of right to counsel, where standby counsel has been appointed, the full requirements of 318(c) [a Pennsylvania criminal rule which required a Sheppard-type colloquy] need not be met.
462 A.2d at 759.
The same rule has been adopted in other jurisdictions.
See United States v. Robinson, supra; People v. McKinney, supra;
and Clark v. State, supra.
During trial in the case presently before this Court,
standby counsel actually conducted the bulk of the defendant's
defense. The defendant made the opening statement and cross-examined two of the State's witnesses. He also, as will be
explained later, testified in narrative form in his own behalf
without the assistance of counsel, and made one of two closing
arguments. Substantially all pre-trial work was performed by the
defendant's various attorneys. During trial, standby counsel
cross-examined six of the State's witnesses, and by direct
examination, in effect, rehabilitated the cross-examination of one
of the two witnesses that the defendant had cross-examined.
Defense counsel examined all the defendant's witnesses except the
defendant himself. Defense counsel also made a closing argument
and handled all evidentiary and purely legal questions.
In the present case, the defendant, Timothy Layton, did
not represent himself pro se, without the assistance of counsel,
but, in fact, he had standby counsel and was thus in a hybrid,
standby, or advisory counsel situation. It appears that standby
counsel participated very extensively and, from a legal point of
view, dominantly, during the defendant's trial.
In view of the circumstances, this Court believes that
the facts of the present case are similar to those in Commonwealth
v. Palmer, supra; State v. Barker, supra; Clark v. State, supra;
and the others cited, which hold that in a hybrid, standby, or
advisory-counsel situation it is not incumbent upon a trial court
to conduct what amounts to a Sheppard-type colloquy and administer
all the admonitions which are required in a situation where a
defendant elects to proceed pro se without the assistance of
counsel. Consequently, in view of the fact that the defendant in
the present case actually proceeded, substantially, with and
through standby counsel, this Court does not believe that the trial
court committed reversible error by failing to conduct fully the
colloquy outlined in State v. Sheppard, supra.
In reaching this conclusion, the Court has focused upon
the narrow and particular facts of this case which show that
although the defendant initially indicated that he wished to
proceed without counsel, during trial his standby counsel actually
played the dominant role in his defense. Counsel was also
consistently available for consultation. Although in such
situations, where a defendant ostensibly represents himself in a
criminal trial, but where standby counsel actually is consistently
available and actually plays the dominant role in the defense, it
is not reversible error for a trial court to fail to engage in the
full litany outlined in State v. Sheppard, 172 W.Va. 656, 310
S.E.2d 173 (1983), this Court believes that even in the standby-counsel situation, the Sheppard litany is desirable and recommends
that trial courts employ it.See footnote 5
The defendant's next claims are closely interrelated.
During trial it came to the court's attention that the defendant
was disposed to perjure himself when he took the stand to testify
in his own behalf. Upon learning of this, the trial court ruled
that standby counsel, who had apparently requested instruction on
how he should handle the situation, was not to participate in the
questioning of the defendant if he elected to take the stand. On
appeal, the defendant suggests that after this occurred, he took
the stand without understanding that he had a right not to do so
and that, in effect, he did not make a knowing and intelligent
waiver of his right not to testify. He also claims that the
court's ruling prohibiting the involvement of counsel
unconstitutionally abridged his right to testify meaningfully in
his own defense and prejudiced his case.
The record indicates that when it was suggested that the
defendant might take the stand in his own behalf, the trial court,
out of the presence of the jury, counseled him as follows:
Now, Mr. Layton, it's my understanding you may or may not want to take the stand and testify on your own behalf. You have the right to remain silent and require the State to prove you guilty beyond a reasonable doubt without taking the stand. And if you desire, an instruction will be tendered to the jury telling them that you have that absolute right and no inference can be drawn from the fact that you chose to remain silent.
Or you have the right to voluntarily waive
that right to remain silent and take the stand
and testify fully, fairly, and truthfully.
But if you do so, you will be treated like any
other witness, to be cross-examined by the
State like any other witness can be. You need
to talk with your attorney and advise the
Court whether you desire to voluntarily waive
your right to remain silent and want to take
the stand, or whether you want to exercise
your right to remain silent and not take the
stand. Then you can decide with your attorney
whether you want the jury to be instructed
about it or whether you want to remain silent
The record also indicates that when the defendant had
previously been tried on the indictment in issue, the judge during
that previous trial had informed him of his right to testify in his
own defense, and the defendant had apparently discussed the issue
with his then counsel.See footnote 6
It has been widely recognized that a criminal defendant has an unconditional right not to testify in his own defense. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972); Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981); State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977). It has been further recognized that if a defendant waives his constitutional right to remain silent and elects to take the witness stand in his own defense, the record must demonstrate that such waiver was knowingly, voluntarily, and intelligently made. State v. Gibson, ___ W.Va. ___, 413 S.E.2d 120 (1991); State v. Robinson, 180 W.Va. 400, 376 S.E.2d 606 (1988); and State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988).
In State v. Neuman, Id., this Court explored the steps
which a trial court should follow to insure that a criminal
defendant understands his right to testify or not to testify in his
own behalf. In syllabus point 7, the Court outlined the procedure
to be followed, as follows:
A trial court exercising appropriate judicial concern for the constitutional right to testify should seek to assure that a defendant's waiver is voluntary, knowing, and intelligent by advising the defendant outside the presence of the jury that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.
A careful review of the present case indicates that the
trial court advised the defendant of each of the four factors which
a trial court must cover under the guidelines set forth in syllabus
point 7 of State v. Neuman, Id. Specifically, the trial court
informed the defendant that he had the right to waive his right to
remain silent and take the stand and testify fully. The trial
court informed him that if he elected to take the stand, he would
be treated like any other witness and subject to cross-examination.
The court further informed the defendant "[y]ou have the right to
remain silent . . . ." Lastly, the court told him that if he
remained silent, an instruction would be tendered to the jury
telling them that he had an absolute right to remain silent and
that no inference would be drawn from the fact that he chose to
The defendant previously, during his former trial, had
been advised of the same rights, and it appears from the record
that during the previous trial he, after he had clearly consulted
with counsel, had made the determination not to testify. In the
present case, in spite of the warning given by the trial court, he
elected to testify.
It appears that the trial court precisely followed the
guidelines laid down by this Court for advising a defendant of his
rights relating to his taking the stand. The Court does not
believe that the defendant could have more clearly been informed of
those rights. Additionally, it appears that the defendant was
advised of his right on two separate occasions during his two
separate trials, and that at the time of his previous trial he was
clearly represented by counsel.
In view of these circumstances, the majority can only
conclude that the defendant elected to testify after being fairly
informed of his rights.
It further appears from the record that appointed
counsel's problem with assisting in the testimony of the defendant
arose from the possibility that the defendant might perjure
The fact that possible perjury on the part of the
defendant came to the attention of the trial court, in this Court's
opinion, presented the trial court with the extremely thorny
problem of weighing three very substantial interests. As will be
later discussed, on the one hand, the defendant had a significant,
and very clearly defined, constitutional right to testify
meaningfully in his own behalf -- and to the assistance of counsel
to assure that his testimony was, in fact, meaningfully presented.
On the other hand, defense counsel had both a legal and ethical
obligation to avoid aiding and abetting, and to avoid participating
in any way, in the commission of perjury by the defendant. Lastly,
the trial court had an obligation to take all reasonable steps to
insure that justice was speedily administered, and the court was
faced with a defendant who had apparently learned from his first
trial that he could possibly abort the trial, and frustrate the
administration of justice, by cloaking himself in his right to
counsel and by then throwing his counsel in an impossible legal and
ethical position by insisting that the attorney assist him in
committing perjury.See footnote 7 Rather clearly, the trial judge faced the
possibility of equipping the defendant with a legal device for
indefinitely frustrating his on-going and later trials if he ruled
that the defendant's right to counsel was so absolutely paramount
to other legal and ethical considerations that the defendant could
not be allowed to testify unless he was assisted by counsel.
While this Court has, of course, recognized that a
criminal defendant has the right to effective assistance of
counsel, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), the
Court believes that the right is circumscribed by a requirement
that the participation and assistance of counsel should be to
promote the lawful administration of justice and not to promote the
commission of some illegal act or to promote a disruption of
justice outside the limits set by the law.
This conclusion is somewhat supported by utterances of the Supreme Court of the United States. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
the Supreme Court suggested that the constitutional right of a
criminal defendant to assistance of counsel contemplated reasonable
professional assistance and further indicated that:
Prevailing norms of practice as reflected in American Bar Association standards and the like, . . . are guides to determining what is reasonable, but they are only guides.
Id. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.
In the later case of Nix v. Whiteside, 475 U.S. 157, 106
S.Ct. 988, 89 L.Ed.2d 123 (1986), the Supreme Court discussed the
relationship of a defendant's right to counsel to the broad
societal interest that the administration of justice not be
corrupted by perjury. Although the Nix case is factually somewhat
different from the case presently before this Court, it does
contain discussions which point to the resolution of the problems
raised by the assignment of error in the present case.
In the Nix case, a murder defendant who wished to
establish a claim of self-defense, informed his attorney that he
believed that the victim had a gun at the time the defendant killed
him. The defendant, however, also clearly indicated that he had
not seen the gun. Defense counsel advised the defendant that the
existence of a gun was not necessary to establish a claim of self-defense and suggested that the defendant truthfully testify that he
had not actually seen a gun. Shortly before trial, the defendant
told his defense counsel, "If I don't say I saw a gun, I'm dead."
Defense counsel then advised him that if he took the stand and
testified falsely, it would be his duty, as counsel, to advise the
court that the defendant was committing perjury. He also indicated
that he would then attempt to withdraw as counsel.
The defendant ultimately took the stand and testified.
Apparently because of his counsel's warning relating to what would
happen in the event he undertook to perjure himself, the defendant
refrained from stating that he saw a gun. On cross-examination he
actually admitted that he had not seen a gun in the victim's hand.
At the close of the trial, the jury found the defendant guilty, and
in the Nix proceeding the defendant sought federal habeas corpus
relief, claiming that defense counsel, by giving him the warnings
relating to what would happen in the event he attempted to commit
perjury, had denied him effective assistance of counsel. The
United States District Court for the Southern District of Iowa
denied the petition for habeas corpus relief, but the Court of
Appeals for the Eighth Circuit reversed the District Court's
decision and ruled that, in effect, the defendant had been denied
his Sixth Amendment to assistance of counsel when his attorney had
refused to cooperate with him in the presentation of perjured
testimony at trial. The Supreme Court of the United States, in its
decision, reversed the ruling of the Eighth Circuit.
In reaching its conclusion in the Nix case, the Supreme
Court discussed the right of counsel broadly and concluded that it
did not extend so far as to require that a defendant receive the
assistance of counsel in committing perjury. The Court stated:
In Strickland, we recognized counsel's duty of loyalty and his "overarching duty to advocate the defendant's cause." . . . Plainly, this duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. This principle has consistently been recognized in most unequivocal terms by expositors of the norms of professional conduct since the first Canons of Professional Ethics were adopted by the American Bar Association in 1908.
Id. at 166, 106 S.Ct. at 994, 89 L.Ed.2d at 134. The Court
proceeded to trace through various ethical standards the persistent
presence of the principle that an attorney must not engage in
deception of betrayal of the public. The Court then stated:
These standards confirm that the legal profession has accepted that an attorney's ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct; it specifically insures that the client may not use false evidence. This special duty of an attorney to prevent and disclose frauds upon the court derives from the recognition that perjury is as much a crime as tampering with witnesses or jurors by way of promises and threats, and undermines the administration of justice.
Id. at 168-69, 106 S.Ct. at 995, 89 L.Ed.2d at 135-36.
In Nix v. Whiteside, Id., the Supreme Court of the United
States concluded that:
Whatever the scope of a constitutional right
to testify, it is elementary that such a right
does not extend to testifying falsely. In
Harris v. New York, we assumed the right of an
accused to testify "in his own defense, or to
refuse to do so" and went on to hold:
[T]hat privilege cannot be construed
to include the right to commit
perjury. See United States v. Knox,
396 U.S. 77 [90 S.Ct. 363, 24
L.Ed.2d 275] (1969); cf. Dennis v.
United States, 384 U.S. 855 [86
S.Ct. 1840, 16 L.Ed.2d 973] (1966).
Having voluntarily taken the stand,
the petitioner was under an
obligation to speak truthfully
. . . .
401 U.S. at 225 [91 S.Ct. at 643, 28 L.Ed.2d
. . . [T]he right to counsel includes no right
to have a lawyer who will cooperate with
planned perjury. A lawyer who would so
cooperate would be at risk of prosecution for
suborning perjury, and disciplinary
proceedings, including suspension or
Id. at 173, 106 S.Ct. at 997, 89 L.Ed.2d at 138-39.
In adopting the Code of Professional Conduct, this Court
has attempted to insure that an attorney's participation in legal
matters occurs in a lawful way which promotes the ends of justice,
within limits generally considered proper and moral by society as
a whole. The Rules of Professional Conduct adopted by this Court
recognize, as did the Supreme Court of the United States, that the
elucidation of true testimony is a circumstance which promotes the
fair administration of justice, and, conversely, the Rules
implicitly recognize that the elucidation of false evidence
frustrates the proper administration of justice. It is for that
reason that Rule 3.3 of the Rules of Professional Conduct
circumscribes an attorney's right to elucidate false evidence.
That rule states:
(a) A lawyer shall not knowingly: . . . (4) offer evidence that the lawyer know to be false. If the lawyer has offered material evidence and comes to know its falsity, the lawyer shall take reasonable remedial measures.
This Court has recognized, as have commentators on the
Rules of Professional Conduct, that the circumscribing of a
lawyer's right to proffer false evidence potentially comes into
conflict with a client's right to representation by counsel. In
discussing the rule, the official comment on it states:
The most difficult situation . . . arises in a criminal case where the accused insists on testifying when the lawyer knows that the testimony is perjurious. The lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court.
Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution, of relatively recent origin, is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client.
This is a coherent solution but makes the
advocate a knowing instrument of perjury.
The other resolution of the dilemma is
that the lawyer must reveal the client's
perjury if necessary to rectify the situation.
A criminal accused has a right to the
assistance of an advocate, a right to testify
and a right of confidential communication with
counsel. however,an accused should not have a
right to assistance of counsel in committing
perjury. Furthermore, an advocate has an
obligation, not only in professional ethics
but under the law as well, to avoid
implication in the commission of perjury or
other falsification of evidence.
At least one state, Connecticut, has addressed the
question of what an attorney should do who is representing a
criminal defendant when it comes to the attorney's attention that
the defendant intends to commit perjury. The Committee on
Professional Ethics of the Connecticut Bar Association has
concluded that if the client insists on taking the stand and
persisting in his intention to commit perjury, the lawyer must
attempt to withdraw from the representation. If the court does not
permit the lawyer to withdraw, the lawyer should refuse to conduct
an examination of the defendant and should attempt to persuade the
defendant to testify in narrative fashion. Connecticut holds that
the lawyer is prohibited from providing any assistance to the
client in the preparation or presentation of the false testimony or
evidence, and, Connecticut further holds that an attorney may not
use such evidence in argument of the case. See ABA/BNA Lawyer's
Manual on Professional Conduct § 1001:2001 (1992).
In line with the thinking of the Supreme Court of the
United States and the Bar of the State of Connecticut, this Court
cannot conclude that a defendant's right to counsel is so broad as
to include the right to counsel to assist in the commission of
perjury. If the question of perjury had arisen for the first time
during the trial which underlies the present appeal, it would have
been appropriate for the trial court to have declared a mistrial.
However, since there had been a previous mistrial over the same
issue, this Court believes that the trial court did the only thing
possible to insure the appropriate administration of justice. The
trial court essentially followed the technique outlined by the
Commentary to Rules of Professional Responsibility and allowed the
defendant to testify in narrative form. In so doing, the trial
court appropriately weighed the conflicting interests involved and,
in this Court's opinion, adopted a procedure which allowed the
defendant to testify, which shielded the attorney from unethical
and illegal conduct, and which advanced the societal interest in
the administration of justice. This Court cannot conclude that in
so doing the trial court erred.
In summary, this Court concludes that when a criminal
defendant, who has elected to take the stand and testify in his own
behalf, indicates to his attorney, or to the court, that he is
contemplating committing perjury during his testimony, it is not
error, or a denial of the criminal defendant's constitutional right
to the assistance of counsel, for the trial court to direct the
defendant's attorney to refrain from participating in the
examination of the defendant on the stand and to rule that if the
defendant wishes to testify, he must testify in a narrative
fashion.See footnote 8
In conjunction with the prior assignments of error, the defendant alleges that he was denied effective assistance of counsel.
A principal part of this assignment of error deals with
the fact that the trial court refused to allow defense counsel to
participate when the defendant himself took the stand. This
essentially is the point discussed in Section II of this opinion
and, as indicated in that discussion, this Court has concluded
that, in line with the thinking of the Supreme Court of the United
States in Nix v. Whiteside, supra, the trial court did not violate
the defendant's constitutional right to effective assistance of
counsel by refusing to allow defense counsel to participate in the
examination of the defendant.
In addition to charging that he was denied effective
assistance of counsel in conjunction with his own testimony on the
stand, the defendant claims that his own participation in the
trial, when he elected to proceed pro se, was ineffective and that
by allowing him to proceed pro se, the trial, court, in effect,
denied him effective assistance of counsel.
It has been recognized that when a criminal defendant
elects to represent himself at trial, he cannot thereafter complain
that the quality of his own defense amounted to a denial of
effective assistance of counsel. State v. Brincefield, 43 N.C.App.
49, 258 S.E.2d 81 (1979); State v. Framton, 737 P.2d 183 (Utah
1987). See also Faretta v. California, supra.
This blanket rule has also been carried over in the
hybrid counsel situation. See State v. Barker, supra.
A more detailed rule, one which this Court believes is
more appropriate to a situation such as the one which is presently
before the Court, was enunciated by the Supreme Court of California
in People v. Bloom, 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698
(1989). In that case, the court stated:
Defendants who have elected self-representation may not thereafter seek reversal of their convictions on the ground that their own efforts were inadequate and amounted to a denial of effective assistance of counsel. (Faretta, supra, 422 U.S. 806, 834-835, fn. 46, 95 S.Ct. 2525, 2541, fn. 46.) This rule applies whether or not the self-represented defendant has been assisted by an attorney acting as advisory counsel or in some other limited capacity. (See Mullins v. Lavoie (1982) 249 Ga. 411, 290 S.E.2d 472, 474; Carter v. State, (Ind.1987) 512 N.E.2d 158, 163-164; State v. Hutchison (Iowa 1983) 341 N.W.2d 33, 42; Parren v. State, supra, 309 Md. 260, 523 A.2d 597, 599; State v. Harper (Mo.App. 1982) 637 S.W.2d 170, 173-174.)
. . .
To prevail on a claim that counsel acting in
an advisory or other limited capacity has
rendered ineffective assistance, a self-represented defendant must show that counsel
failed to perform competently within the
limited scope of the duties assigned to or
assumed by counsel. (see People v. Hamilton,
supra, 48 Cal.3d at pp. 1164-1165, fn. 14, 259
Cal.Rptr. 701, 774 P.2d 730); People v. Doane,
supra, 200 Cal.App.3d at pp. 864-866, 246
Cal.Rptr. 366), and that a more favorable
verdict was reasonably probable in the absence
of counsel's failings, (see Strickland v.
Washington (1984) 466 U.S. 668, 694, 104 S.Ct.
2052, 2068, 80 L.Ed.2d 674; People v.
Fosselman (1983) 33 Cal.3d 572, 584, 189
Cal.Rptr. 855, 659 P.2d 1144). A self-represented defendant may not claim
ineffective assistance on account of counsel's
omission to perform an act within the scope of
duties the defendant voluntarily undertook to
perform personally at trial.
774 P.2d at 717-18.
In the case presently before the Court, as previously
indicated, the defendant chose to make the opening statement. He
also cross-examined two witnesses and he made a closing statement
in addition to the one made by his attorney.
In line with the thinking in the Bloom case, this Court
generally believes that in view of the fact that the defendant
himself elected to undertake portions of his representation, he
cannot legitimately claim that he was denied effective assistance
of counsel in those matters.
However, additionally, this Court notes that in the
seminal case on the right of representation by counsel in West
Virginia, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), it
was stated that to establish a violation of the right to effective
assistance of counsel, a criminal defendant not only has to show
that his counsel's performance failed to conform with that of an
attorney possessing the normal and customary skill possessed by
attorneys who were reasonably knowledgeable in criminal law, but
that the assistance of counsel rendered, because of its
ineffectiveness, affected the outcome of the case. As stated in
syllabus point 19 of State v. Thomas:
In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error.
In the considerably later case of Strickland v.
Washington, supra, the Supreme Court of the United States discussed
effective assistance of counsel and the circumstances under which
ineffective assistance of counsel would support the reversal of a
criminal defendant's conviction. In that case, the Supreme Court
of the United States stated, in syllabus point 2:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial . . . (a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case . . . (b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
The record of the case presently before the court shows
that the defendant made the opening statement, as previously
indicated, and the State proceeded to present its evidence, which
consisted of the testimony of nine witnesses. Two of the witnesses
were the immediate victims of the robbery, and defense counsel,
rather than the defendant, vigorously cross-examined those two
witnesses. At least one of the immediate-crime witnesses suggested
that the defendant was vaguely familiar from having been in the
store robbed on previous occasions. The evidence further showed
that the robbery occurred in a plainly-lighted store and that the
defendant wore no disguise. He approached the witnesses with drawn
gun and demanded money. Both witnesses unequivocally identified
the defendant as the perpetrator of the crime in open court and
under rather vigorous cross-examination steadfastly stood by their
The State called seven other witnesses, and defense
counsel examined four of the seven. Neither the defendant nor
defense counsel cross-examined the eighth, the co-defendant in the
crime, who on the stand repeatedly indicated that he could not
remember any of the circumstances relating to the time of the
alleged crime. A number of the State's witnesses discussed the
circumstances leading to the defendant's arrest. Those
circumstances, as previously indicated, showed that upon
immediately leaving the crime scene, the defendant, and apparently
two accomplices, headed out in a truck and were almost involved in
a vehicular accident. They suffered a flat tire and proceeded to
cut a gouge mark in the road from the place of the robbery to the
place of their ultimate apprehension.
In this Court's opinion, the fact that there were
unshakable identifications of the defendant in open court by the
immediate victims of the crime, as well as by the fact that the
defendant and his accomplices literally cut a trail from the place
of the crime to the place where they were apprehended and by the
fact that they were apprehended with weapons in their possession
which matched the weapons involved in the perpetration of the
crime, all rather strongly point to the defendant's guilt in this
In examining the overall record in the case, in line with
the standards established by the Supreme Court in Strickland v.
Washington, supra, this Court cannot imagine what evidence or what
trial maneuver or tactic with any degree of reasonably probability
could undermine this Court's confidence in the outcome of the case.
On the stand, the defendant himself denied committing the crime, and the jury had an opportunity to consider his testimony. The Court cannot see how a more skillful examination of the defendant could have adduced evidence which could effectively have undermined the State's case.
Given all the circumstances of the case, this Court
cannot conclude that the defendant has made a sufficient showing of
ineffective assistance to justify a reversal of his conviction.
The defendant's next contention is that he was denied the
constitutional right to be present at a critical stage of his
During the presentation of the defendant's case, as
previously indicated, defense counsel, rather than the defendant
himself, called and examined a number of witnesses. After the last
of these witnesses testified, defense counsel requested a recess
until after lunch. The court, believing that it was too early to
break for lunch, requested information as to why a recess was
necessary for lunch at that time. It was brought to the court's
attention that certain witnesses whom the defendant sought to call
had not appeared. The court questioned defense counsel as to
whether they had been subpoenaed. Defense counsel indicated that
they had, though he was not certain whether the subpoenas had been
served. The Court at that point ruled that there would be a break
for lunch, but for the present the testimony would continue. The
defendant, who had proposed to testify, indicated that he was not
going to testify until the last witness testified. Defense counsel
said, "If the last witness showed up, that is our last witness the
court is saying." In response to defense counsel's statement, the
defendant said, "This is bullshit," and left the bench. At that
point, defense counsel stated:
Your Honor, I want to put something on the record here. I do not want to put on a witness that insists on putting on -- knowing what's going to be said, I want an instruction from you indicating that I can put him on the stand.
The court said, "If you will ask him what he remembers?" Defense
counsel said, "I don't want to ask him anything." The court said,
"O.K. You may go back down." At that point, the bench conference
was concluded and the trial continued with the defendant being
It appears from the record that defense counsel was at
this point actually requesting instructions on what to do in view
of the fact that he believed that the defendant intended to perjure
himself at trial.
As indicated in the statement of this case, the
defendant's first trial ended in a mistrial when it came to his
attorney's attention that the defendant intended to commit perjury
on the stand, and the attorney, Richard Gay, refused to participate
in the perjury. Prior to the conference at which the defendant
abruptly left the bench, which is the focus of his present
allegation that he was denied his constitutional right to be
present at a critical point in his second trial, the defendant
apparently had informed Scott Ollar, his attorney during his second
trial, that he again intended to perjure himself. It also appears
that Mr. Ollar, like Mr. Gay during the first trial of the
defendant, had brought this to the trial judge's attention. Prior
to the conference which the defendant abruptly left, the court and
defense counsel had discussed this problem in the presence of the
defendant in the following colloquy:
THE COURT: Mr. Ollar, you and your counsel are advised that if you do believe your client wants to take the stand and wants to perjure himself, you and your associate will not participate in the question and answer period.
MR. OLLAR: Yes, sir. As you know, we've
brought a potential conflict to the Court's
attention once in the past, and I'd appreciate
some instruction on how you wanted this to
THE COURT: Well, if he desires to take the
stand and his testimony is not going to be
truthful, then you will not participate
whatsoever in the questioning of this witness.
Although the United States and West Virginia
Constitutions guarantee defendants the right to be present at all
critical stages of criminal proceedings against them, a defendant
in a non-capital case, such as the one presently before the Court,
may waive that right when he voluntarily absents himself from
proceedings. United States v. Martinez, 604 F.2d 361 (5th Cir.
1979), cert. denied 444 U.S. 1034 (1980); State v. Tiller, 168
W.Va. 522, 285 S.E.2d 371 (1981). The rule is summarized in
syllabus point 3 of the Tiller case, as follows:
Where a defendant in a noncapital case is free on bail and is initially present at trial, and thereafter voluntarily absents himself after the trial has commenced, and where he has been informed of his obligation to remain during all stages of the trial, then such voluntary absence will be deemed a waiver of his right to be present.
Shortly before the decision in the Tiller case, this Court adopted the West Virginia Rules of Criminal Procedure. One of those rules, Rule 43, deals with the presence of a criminal defendant during his trial. That rule states, in part:
Presence of the Defendant. (a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. (b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be prevented and to [sic] the defendant shall be considered to have waived his right to be present whenever a defendant, initially present: (1) Voluntarily absents himself after the trial has commenced where he has been initially informed by the court of his obligation to remain during all stages of the trial; . . . .
This West Virginia rule is modeled after and closely tracks Rule 43
of the Federal Rules of Criminal Procedure.See footnote 9
In commenting on the Federal rule, the Federal Advisory
Committee indicated that:
The second sentence of the rule is a restatement of existing law that, except in capital cases, the defendant may not defeat the proceedings by voluntarily absenting himself after the trial has been commenced in his presence, Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 ann. cas. 1913C1138; United States v. Noble, 294 F. 689 (D.Mont.) - affirmed 300 F. 689, C.C.A. 9th; United States v. Barracota, 445 F.Supp. 38, S.D.N.Y.; United States v. Vassalo, 52 F.2d 699, E.D.Mich.
Commenting more recently on the rule, 3A Charles A.
Wright, Federal Practice and Procedure: Criminal 2d § 723, 19-25
In noncapital cases there has been almost no doubt. Despite a few contrary suggestions, it has been generally understood that defendant can waive his right to be present. He may do so expressly, though only with the consent of the court. Defendant has no right to be absent from the trial. Defendant may also waive his right to be present by not objecting to proceedings held in his absence.
Finally, a provision of the original rule now
carried forward as Rule 43(b)(1) provides that
a defendant waives his right to be present if
he voluntarily absents himself from the court
after the trial has commenced. The purpose of
this is to prevent the defendant from
obstructing the trial by absconding. If
defendant is voluntarily absent, the court may
continue the trial up to and including the
return of the verdict. Defendant's absence
must be found to be voluntary. It is not
voluntary if defendant did not know that the
trial was going on, but the court is not
required to inform the defendant of his
obligation to remain during trial . . .
If the defendant has voluntarily absented
himself, the court is authorized to proceed
only up to the return of the verdict. It is
not authorized to impose sentence until the
defendant has returned.
The facts in the present case indicate that the defendant
did appear for trial and, at the commencement of trial, was rather
clearly informed of his right to be present at all stages of the
trial. He was further notified that if he voluntarily absented
himself, the trial would nonetheless proceed. The further facts
show that the defendant voluntarily left the bench, apparently in
a spate of anger.
In this Court's opinion, the defendant's actions
constituted a waiver of his right to be present and his absence is
insufficient to support a reversal of his conviction.
The Court further believes that, as shown by the quoted
colloquy which had occurred in the presence of the defendant and
which had occurred before the conference which the defendant left,
the subject discussed in the defendant's absence, the perjury
problem, was the same as that discussed earlier and that the trial
court's conclusion was essentially the same as that reached
earlier. In essence, what occurred in no way altered the stance of
the trial judge nor in any way changed the course of the trial as
previously established by the trial judge.
In State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977),
this Court discussed what constitutes the critical stage of a
criminal trial. The Court stated:
We conclude that a critical stage in the criminal proceeding is one where the defendant's right to a fair trial will be affected. Certainly, Spaulding v. Warden, supra [158 W.Va. 557, 212 S.E.2d 619 (1975)], teaches that if a preliminary hearing is held, it is a critical stage. Pre-trial hearings involving substantial matters of law or the testimony of witnesses would be deemed critical. Entry of routine orders filing motions or court orders involving clerical or administrative matters in connection with the criminal proceeding do not require the presence of the accused. Likewise, consultation between defense counsel, the prosecutor and the court prior to the actual trial are not deemed a critical stage. Because of the impact of the right to a speedy trial, matters surrounding a continuance should require the presence of the defendant. Generally, all matters starting with the commencement of the actual trial require the presence of the accused through final judgment.
However, the critical stage requirement is, as
noted in Grob [State ex rel. Grob v. Blair,
158 W.Va. 647, 214 S.E.2d 330 (1975)], subject
to the harmless error test. Consequently,
there are two defenses available when it is
claimed that the accused's absence creates
reversible error. The first is that the
absence occurred at a non-critical stage of
the criminal proceeding. The second is that
even if at a critical stage, it was harmless
Id. at 246-47, 233 S.E.2d at 719.
Even if the defendant in the present case had not waived
his presence under Rule 43 of the West Virginia Rules of Criminal
Procedure, as previously discussed, it is apparent that what
occurred in the defendant's absence was a rehash of what had
previously occurred. The trial court had previously, clearly, in
the presence of the defendant, informed defense counsel that if
counsel believed that the defendant wanted to take the stand and
wanted to perjure himself, defense counsel was not to participate
in the question and answer period. That was precisely what the
court did later during trial after the defendant abruptly left the
bench conference and was momentarily absent.
Since nothing occurred in the bench conference while the
defendant was absent which had not already occurred in the
defendant's presence, and since no ruling was made or matter
discussed which had not previously been made or discussed, in the
Court's view the bench conference from which the defendant was
absent, even though a critical stage, was not a point at which
harmful error occurred. In essence, any error committed by the
court's acting in the defendant's absence was harmless error.
The defendant next claims that the indictment returned
against him was fatally defective because it was founded solely
upon the hearsay testimony of an incompetent witness.
It has generally been recognized that the validity of an indictment is not affected by the character of the evidence adduced before the grand jury and an indictment valid on its face is not subject to challenge by virtue of the fact that the grand jury considered incompetent or inadequate evidence in returning the indictment. State v. Bonham, 184 W.Va. 55, 401 S.E.2d 901 (1990);
State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844
(1989); Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977); State
v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975); State v. Riley, 151
W.Va. 364, 151 S.E.2d 308 (1966). Relating to this point, the
Court stated, in the syllabus of Barker v. Fox, supra, that:
Except for willful, intentional fraud the law of this State does not permit the court to go behind an indictment to inquire into the evidence considered by the grand jury, either to determine its legality or its sufficiency.
In light of this, the defendant's assignment of error
relating to the indictment is without merit.
Lastly, the defendant claims that the sentencing process
was violative of due process of law.
After the jury had returned its verdict in the present
case, the defendant requested that the trial court proceed with
sentencing in the following colloquy:
THE COURT: Is there any reason that anyone can think why based upon the interrogatory of the jury, that sentence should not now be imposed?
THE DEFENDANT: No. Please sentence me now.
THE COURT: Sir?
THE DEFENDANT: Sentence me now, please.
THE COURT: Well, you're entitled to file
certain pretrial motions or post trial
motions, and I understand that. But based
upon this jury's verdict, you know, and your
attorney's told you, you are not eligible for
THE DEFENDANT: I understand that, sir.
At that point, the trial court proceeded to sentence the defendant
to forty-seven years in the State penitentiary.
There is some indication in the documents filed with this
Court that prior to the indictment giving rise to the present case,
the defendant had been convicted of a prior felony.See footnote 10
Rather clearly, under West Virginia's recidivist statute,
W.Va. Code, 61-11-18, a prior felony conviction may be used to
enhance a sentence imposed upon a criminal defendant.
Given this circumstance, it appears to this Court that
there was a plausible tactical reason for the defendant to seek the
immediate imposition of a sentence at the conclusion of his trial.
It does not appear that a recidivist information was filed prior to
the defendant's sentencing, and clearly, if there had been a delay
in the sentencing process and a presentence investigation in the
matter, the presentence investigation report, if properly prepared
pursuant to the provisions of Rule 32(c)(2), would have contained
the defendant's prior criminal record.
Rule 32 of the Rules of Criminal Procedure contemplates that a presentence investigation may be waived and also contemplates that the defendant and his counsel be afforded to present information in mitigation of punishment.
In the present case, it is the Court's opinion that the
trial court, although it did not follow the ideal procedure, did
generally conduct the sentencing in conformity with appropriate
The defendant, on appeal, suggests that he did not
meaningfully waive his right to a presentencing report. However,
it does appear to this Court, as previously indicated, that the
defendant had a tactical reason for not wanting a presentence
investigation report, and a fair reading of the record suggests
that the trial court in no way forced the defendant to be sentenced
at the conclusion of trial. Instead, the defendant, if the record
is fairly read, encouraged the court to proceed with the sentencing
From the briefs in the case, it is not altogether clear
as to what the defendant's true complaint relating to the
sentencing procedure is. At one point he complains that Michael
Tarmon, the codefendant in the case who plead guilty, received only
a fifteen-year sentence, whereas the defendant received a forty-seven-year sentence.
As a general proposition in West Virginia, it has been recognized that if a sentence is within statutory limits and not based on some impermissible factor, it is not subject to appellate review. State v. Bennett, 172 W.Va. 123, 304 S.E.2d 28 (1983); State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982); State v. Rogers, 167 W.Va. 358, 280 S.E.2d 82 (1981). The rule is summarized in syllabus point 4 of State v. Goodnight, supra, as follows:
Sentences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review.
It appears to the Court that the defendant's
participation in the crime charged was somewhat different from that
of codefendant Michael Tarmon. It also appears that the sentence
imposed on the defendant was within the limits set by statute, and
overall, the Court cannot conclude that there is any showing that
the sentence imposed was based on some impermissible factor.
In view of the overall circumstances surrounding the
sentencing and the sentence imposed upon the defendant, this Court
cannot conclude that the defendant's assignment of error relating
to the sentencing procedure is sufficiently meritorious to support
a reversal of his conviction.
For the reasons stated, the judgment of the Circuit Court
of Jefferson County is affirmed.
Footnote: 1There is some suggestion that the driver may have been a third party, a female, Terri Miller.
Footnote: 2The remarks which occurred during this in camera hearing during which the perjury question was discussed were recorded by the official court reporter. The transcript of those remarks was sealed by the trial judge. In designating the record for the present appeal, defendant's counsel in the official "Designation of Record" filed on February 23, 1992, stated:
Comes now the defendant and hereby
designates as the record on appeal the entire
court file, including but not limited to, the
entire proceedings mechanically recorded in
this action including voir dire, the opening
and closing statements of all counsel, and
all hearings conducted outside the presence
of the jury.
The sealed transcript of the mistrial hearing, like the record of most of the proceeding during the defendant's first trial, was subsequently included in the printed transcript filed with this Court in support of the defendant's petition for appeal.
Footnote: 3This occurred in a broader notification of the defendant's rights. The full colloquy proceeded as follows:
THE COURT: Mr. Layton, I will give you and
your counsel a copy of your notice of your
duties and your obligations in this case, and
I will tell you that you have the right to be
present during this trial and represented by
an attorney to assist you. You have one
appointed to represent you. You understand
these rights as this case has already been
before a jury as I understand it.
You also have been notified that you have the right not to be called as a witness on your own behalf and be compelled to incriminate yourself. You also have the right to elect to testify on your behalf just by voluntarily
taking the stand, and you'd have the right
then to be subject to cross examination. You
and your attorney are to inform the Court of
your decision no later than the closing of
the State's case so that I can properly tell
you what your rights are at that time.
You are also required to be present at every
stage of the proceedings in this trial.
Should you absent yourself voluntarily or
otherwise, the trial will proceed in your
absence. So do not leave this courtroom
during the trial without -- unless you have
the permission of this Court. I understand
that you're in the custody of the Sheriff,
but do not leave the courtroom even in his
custody unless you have my permission.
THE DEFENDANT: Yes, sir.
THE COURT: You also have to be notified that
should you conduct yourself in a manner that
is not acceptable, then you will be removed
from the courtroom and the trial will proceed
in your absence even though you are not
there. Do you understand what your rights in
the proceeding are?
THE DEFENDANT: Yes, sir.
THE COURT: Now, I understand and received
yesterday a motion by Mr. Ollar that you had
dismissed him as counsel.
MR. OLLAR: Sir, before you go any further,
just for your information, I wanted to bring
it to your attention that Mr. Layton cannot
read. So that anything that you ask him
about, I just respectfully request that you
read to him for the record.
THE COURT: And I did, and that's what I've
MR. OLLAR: Yes, sir. I just want to make
sure you understand.
THE COURT: Mr. Ollar was appointed by this
Court to represent you back in May, I
believe, the 16th.
MR. OLLAR: Six months ago.
THE COURT: And you do not have the right to dismiss him or fire him. I'm going to require him to stay as your attorney. If you do not desire to use him, that is your prerogative, but I will not delay the trial simply by your firing or attempting to fire your court-appointed attorney. The record will show in this case that you have had probably four previous attorneys. For some various reasons, they have all no longer represented you. And this case will proceed today with Mr. Ollar as your counsel there available to assist you.
Footnote: 4It has been suggested that there is a technical distinction between a "hybrid" counsel and a "standby" or "advisory" counsel situation. Note, 12 Val.L.R. 331, The Accused as Co-Counsel: The Case for the Hybrid Defense (1977). However, the courts have not, as yet, apparently generally recognized the distinction.
Footnote: 5It is obviously impossible to determine prior to trial what precise relative roles an attorney and a defendant acting pro se will perform in the defendant's defense in a hybrid, advisory counsel, or standby counsel situation. It is very possible that counsel will perform a less substantial role than counsel played in the present case.
As indicated in the body of this opinion, the Court's decision is predicated on the factual showing that counsel played a very major role in the defense.
In a situation where counsel's role is less
substantial, the question of the waiver of the right to counsel
would potentially play a more weighty role in the Court's
thinking. In such a situation, the Court would reconsider the
question of whether the complete Sheppard litany was necessary.
In this Court's view, the prudent approach for any trial court in a hybrid, advisory, or standby situation, would be for the court to follow the full guidelines of Sheppard and engage in the full Sheppard litany.
Footnote: 6A portion of the record of that previous trial, which is included in the printed record in the present appeal, shows the following:
COURT: . . . Now Mr. Layton, do you
understand that you have the right to
DEFENDANT: Yes, sir.
COURT: Do you understand that if you wish to
testify, then no one can prevent you from
DEFENDANT: Yes, sir.
COURT: Do you understand that if you do
testify, the prosecutor will be permitted to
DEFENDANT: Yes, sir.
COURT: Do you understand that you also have
the right not to testify?
DEFENDANT: Yes, sir, I do.
COURT: And you understand that if you choose
not to testify, then the jury will be
instructed that they cannot hold that against
DEFENDANT: Yes, sir.
COURT: Do you understand that if you choose
to testify, the jury will be instructed that
they are not at liberty to disregard your
testimony simply because you have been
accused of a crime. But rather they must
give your testimony the same serious
consideration and weigh it by the same
factors as they consider and weigh the
testimony of any other witness?
DEFENDANT: Yes, sir.
COURT: Mr. Gay, has the defense made a
decision as to whether Mr. Layton will
MR. GAY: Your Honor, the accused is not going to testify.
Footnote: 7Although the record does not affirmatively show that the trial judge in the second trial was aware that the defendant's first trial resulted in a mistrial because the defendant's attorney during the first trial had refused to participate in the production of perjured testimony, the order memorializing the mistrial, an order entered on May 21, 1991, stated:
Whereupon the Court inquired of the
parties as to whether or not they were ready
to proceed, at which time counsel for the
Defendant advised the Court that he had an
irreconcilable conflict of interest with his
client, and he asked the Court's leave to
withdraw, and further counsel for the
Defendant and the Defendant asked the Court
that the Court declare a mistrial and appoint
other counsel for the Defendant. The State
opposed said motion. Thereupon the Court
heard the argument of the parties, after
which the Court, in accordance with what the
Court perceives to the applicable rule, Rule
3.3 of the Rules of the Professional Conduct,
convened an ex-parte hearing, during which
the Prosecuting Attorney and the
investigating officer, and all other person
except for the Defendant, his counsel
appointed for the purpose of this hearing,
Charlie Howard, and the Defendant's trial
counsel Richard Gay were present.
At the conclusion of said ex-parte hearing, the parties all reconvened in open Court before the Court and the Court announced that based on what the Court had heard during the ex-parte proceeding, and
considering the Rules of Professional Responsibility and considering certain matters of religious belief, the Court is of the opinion that the Defendant's motion should be granted. Accordingly, it is ORDERED and ADJUDGED that Mr. Gay's motion to withdraw, which is not opposed by his client Mr. Layton, is hereby granted and a mistrial is declared. It is further ORDERED that Scott Ollar, a discreet and competent attorney practicing before the bar of this Court shall be and is now appointed as counsel for the Defendant.
Footnote: 8It appears that the Ninth Federal Circuit has recognized that allowing a perjuriously-minded criminal defendant to testify in a narrative fashion is an appropriate solution to the dilemma presented in situations such as the one in the present case. See Lowery v. Caldwell, 575 F.2d 727 (9th Cir. 1978). In note 4 of that decision, the court said:
An ABA panel, which included then
Circuit Judge Warren E. Burger, in commenting
on a hypothetical case submitted to it in
1966, anticipated the Standards on the
question of the proper method of dealing with
the client who insists on taking the stand to
commit perjury. Judge Burger states:
If in those circumstances the
lawyer's immediate withdrawal from
the case is either not feasible, or
if the judge refuses to permit
withdrawal, the lawyer's course is
clear: He may not engage in direct
examination of his client to
facilitate known perjury. He
should confine himself to asking
the witness to identify himself and
to make a statement, but he cannot
participate in the fraud by
conventional direct examination.
Since this informal procedure is
not uncommon with witnesses, there
is no basis for saying that this
tells the jury the witness is
lying. A judge may infer that such
is the case buy lay jurors will
Burger, Standards of Conduct: A Judge's Viewpoint, 5 Am.Crim.Law Q. 11, 13 (1966).
Footnote: 9The Federal Rule states:
(a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. (b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present, (1) is voluntarily absent after the trial has commenced (whether or not the defendant has been informed by the court of the obligation to remain during the trial), . . . .
Footnote: 10The defendant's own brief suggests that he had a prior felony conviction.