No. 21173 - State of West Virginia v. Timothy Layton
Miller, Justice, dissenting:
Although the majority gives lip service to the Sixth
Amendment right to counsel, it fails to understand its application
to the facts of this case where the defendant wished to proceed pro
se and waive his right to assistance of counsel. We discussed this
question at some length in State v. Sheppard, 172 W. Va. 656, 310
S.E.2d 173 (1983), where we relied on Faretta v. California, 422
U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), and its progeny.
We concluded in Syllabus Point 8 of Sheppard:
"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."
Sheppard went on to explicitly outline the type of
inquiries that should be made by a circuit judge in order to
determine on the record that the accused has made a knowing and
voluntary waiver of his Sixth Amendment right to counsel:
"It is the primary duty of the trial court in conducting its inquiry to ascertain whether the defendant is cognizant of and willing to relinquish his right to assistance of counsel, since there can be no valid exercise of the right of self-representation absent a competent and intelligent waiver of the right to counsel. . . . The trial court should also insure that the accused is aware of the nature, complexity and seriousness of the charges against him and of the possible penalties that might be imposed. . . .
"It is incumbent upon the trial
court to warn the accused of the 'dangers and
disadvantages of self-representation.' . . .
In this context it has been held that the
trial court has an obligation to warn the
accused that self-representation is almost
always detrimental, that he will be afforded
no special indulgence or advocacy privileges
by the court; that he will be subject to all
the technical rules of substantive, procedural
and evidentiary law; that the prosecution will
be represented by an experienced attorney;
that misbehavior or disruption at trial may
vacate his right to represent himself; and
that in spite of his efforts he cannot later
claim ineffective assistance of counsel. . . .
In addition, the trial court should advise the
defendant that he waives his right to refuse
to testify by going outside the scope of
argument and testifying directly to the
jury. . . .
"Finally, the trial court should
make some inquiry into the defendant's
intelligence and capacity to appreciate the
consequences of his decision. In this
respect, the defendant's background,
education, experience and familiarity with the
legal system are relevant considerations in
the trial court's determination of the
validity of the defendant's election to
proceed pro se." 172 W. Va. at 671-72, 310
S.E.2d 188-89. (Citations omitted).
This type of searching inquiry was not made in this case
by the trial court. However, the majority decimates Sheppard by
concocting a hybrid test where standby counsel is utilized. The
only problem is that the standby counsel in this case was at odds
with the defendant. No consideration is given to this fact by the
majority. Finally, I believe the majority has improperly analyzed
the perjury issue, as did the trial court, to the extent that the
defendant's right to testify was seriously impaired.
The Sixth Amendment of the United States Constitution, applicable to the states by virtue of the Fourteenth Amendment, clearly guarantees any defendant brought to trial the right to assistance of counsel before he may be validly convicted and punished by imprisonment.See footnote 1 As the United States Supreme Court has stated: "'[The assistance of counsel] is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. . . . The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not "still be done."' Johnson v. Zerbst, 304 U.S. 458, 462 [58 S. Ct. 1019, 1022, 82 L. Ed. 1461, 1465] (1938)." Gideon v. Wainwright, 372 U.S. 335, 343, 83 S. Ct. 792, 796, 9 L. Ed. 2d 799, 804-05 (1963). A corollary of this safeguard to one's fundamental human rights of life and liberty is the right of an accused to reject assistance of counsel, and to defend himself at trial. Faretta v. California, supra; State v. Sheppard, supra. As the Faretta court stated:
"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 out of 'that respect for the individual which is the lifeblood of the law.' Illinois v. Allen, 397 U.S. 337, 350-351, 25 L. Ed. 2d 353, [363,] 90 S. Ct. 1057 [, 1064 (1970)] (Brennan, J., concurring)." 422 U.S. at 835, 95 S. Ct. at 2540-41, 45 L. Ed. 2d at 581.
As the majority purports to recognize, the United States Supreme Court in Faretta and our holding in Sheppard, supra, have made clear that before one may waive "many of the traditional benefits associated with the right to counsel . . . the accused must, 'knowingly and intelligently' forego those relinquished benefits." Faretta v. California, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581, citing Johnson v. Zerbst, 304 U.S. at 464-65, 58 S. Ct. at 1023, 82 L. Ed. at 1466-67. (Emphasis added).See footnote 2 From the record, it is clear to me that the defendant was upset with his counsel's representation and his counsel was equally frustrated with the defendant. It reached the point where several days prior to trial, counsel delivered his file to the defendant who was in jail, indicating to him that he could represent himself.
Counsel was aware that the defendant could neither read nor write.
This matter was brought to the attention of the trial court, but I
do not believe it fully grasped the extent of their disagreement
nor of the defendant's illiteracy.
The majority also fails to grasp these key facts. It
spends four pages of its opinion discussing the procedural aspects
of the defendant's first trial which ended in a hung jury. ___
W. Va. at ___, ___ S.E.2d at ___ (Slip op. at 4-7). This is not
relevant to the issues raised at the second trial except to
indicate to the reader that the defendant had difficulties with
other counsel and, according to his trial counsel, intended to
commit perjury. I do not believe even the majority would sanction
this type of information being given to the jury in the second
trial, which it now details at great length to the reader of its
The majority does not address the critical lapse that
occurred in the trial court's failure to ascertain whether a true
breakdown had occurred between the defendant and his attorney, as
required under Syllabus Point 5 of Watson v. Black, 161 W. Va. 46,
239 S.E.2d 664 (1977).See footnote 3 Moreover, the majority circumvents
Sheppard by holding that the presence of and assistance by counsel
at trial avoids the necessity of a full Sheppard inquiry when the
defendant elects self-representation. I find the cases used by the
majority easily distinguishable.
None of the cases cited by the majority deal with the factual situation presented here where there was a substantial breakdown between the defendant and his counsel and the defendant was allowed the right to pro se representation. Moreover, none of the cases cited by the majority dealt with a situation where the defendant was as illiterate as the defendant in this case. The majority cites extensively from the Washington intermediate court's decision in State v. Barker, 35 Wash. App. 388, 667 P.2d 108 (1983), where it concluded that the defendant, despite actively participating in his own defense, had been "fully represented by counsel," such that the issue of waiver never arose. 35 Wash. App. at ___, 667 P.2d at 113. This conclusion seems to fly in the face of logic. Certainly, one who actively undertakes his own defense was not "fully represented by counsel."
Commonwealth v. Palmer, 315 Pa. Super. 601, 462 A.2d 755
(1983), also cited by the majority, is clearly not on point. That
intermediate court noted that although the trial court therein had
not "fully explor[ed] all matters relating to waiver during the
colloquy," 315 Pa. Super. at ___, 462 A.2d at 758-59, neither had
the defendant fully waived his right to counsel. The majority
distorts Palmer by merely noting that the intermediate court held
"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 Shepard-type colloquy]
need not be met." ___ W. Va. at ___, ___ S.E.2d at ___ (Majority
op. at 18), citing 315 Pa. Super. at ___, 462 A.2d at 759. The
majority fails to recognize, however, that the Palmer court went on
to state in the next sentence that "[i]t is sufficient if the court
instructs the accused on those aspects of the trial for which he
seeks to represent himself." 315 Pa. Super. at ___, 462 A.2d at
759. Unlike Palmer, the trial court herein did not instruct Mr.
Layton on any aspect on the trial for which he chose to represent
himself, beyond a general discouragement and notice that Mr. Layton
would be held to appropriate standards of conduct.
Another case cited by the majority which is not on point
is United States v. Robinson, 783 F.2d 64 (7th Cir. 1986). In that
case, the defendant never sought to waive counsel. He merely
requested, with the advice and guidance of his counsel, that he be
permitted to make an unsworn statement to the jury during closing
arguments. That request was granted. Robinson is clearly
distinguishable from this case because the defendant neither sought
to waive his right to counsel nor did he so waive that right.
The same problems exists as to Clark v. State, 717 S.W.2d
910 (Tex. Crim. App. 1986), cert. denied, 481 U.S. 1059, 107 S. Ct.
2202, 95 L. Ed. 2d 857 (1987), where the Texas Court of Criminal
Appeals found that the defendant had not "ever actually made demand
of the trial judge that he be permitted to personally represent
himself, but . . . that at times the [defendant] was permitted to
personally inject himself and his views into the case." 717 S.W.2d
at 918. Again, Clark is obviously different from the present case
where Mr. Layton specifically demanded that he be permitted to
represent himself and did more than merely personally inject
himself and his views into the case.
The final case cited by the majority in support of its
view that Faretta warnings are unnecessary in a hybrid counsel
situation is People v. McKinney, 62 Ill. App. 3d 61, 19 Ill. Dec.
250, 378 N.E.2d 1125 (1978). In that case, the Illinois
intermediate court relied on a pre-Faretta decision, People v.
Lindsey, 17 Ill. App. 3d 137, 308 N.E.2d 111 (1974), in its
interpretation of the Illinois statute, Rule 401(a), Ill. Rev.
Stat. ch. 110A, para. 401(a) (1975). This statutory provision
codified the procedure to be used before permitting an accused to
waive his right to counsel. The intermediate court adopted the
Lindsey court's finding that a waiver of counsel is ineffective
unless an accused "informs a court that he does not wish counsel;
that he wants to stand alone." 62 Ill. App. 3d at 65, 19 Ill. Dec.
at ___, 378 N.E.2d at 1128, citing Lindsey, 17 Ill. App. 3d at 140,
308 N.E.2d at 114. No discussion of Faretta or an accused's rights
under the Sixth Amendment is found in either case. Consequently,
in the absence of such a discussion, McKinney is meaningless to our
On the other hand, several courts that have squarely addressed the Sixth Amendment issue of waiver have found that Sheppard-type warnings are necessary whenever an accused receives less than "full representation" by counsel, even if counsel undertakes "substantial" representation of the accused. See Hamilton v. State, 30 Md. App. 202, 205-06, 351 A.2d 153, 155 (1976), citing Faretta, supra (where the record of the case established that "assigned counsel participated substantially but not exclusively in the management of the conduct of the trial . . . . [T]he fact that an accused was assisted by counsel in the course of the ensuing trial is of no moment in the determination whether the right to self-representation has been denied." [Emphasis added]).
Moreover, several federal courts have addressed the waiver of counsel question whereby standby counsel participated.
These courts are of the view that a full explanation must be given
of the waiver of the right to counsel. The First Circuit Court of
Appeals in Maynard v. Meachum, 545 F.2d 273, 277 (1st Cir. 1976),
"We can conceive of no reason why the standard for waiving part of a constitutional right should be different from the standard for waiver of the entire right. Respondent argues, and we agree, that it is within the discretion of a trial court to allow the sort of hybrid arrangement that was adopted in this case, see, e.g., United States v. Hill, 526 F.2d 1019 (10th Cir. 1975); United States v. Guanti, 421 F.2d 792 (2d Cir. 1970). But it does not follow that such an arrangement is the equivalent of full representation by counsel for purposes of waiver. . . . On respondent's analysis, the right to counsel is satisfied, regardless of the reality of self-representation, so long as counsel is not formally allowed to withdraw and remains in the courtroom. We do not believe that the protections of this right that have evolved from Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), can be so casually swept away."
The Tenth Circuit Court of Appeals endorsed the Maynard
court's view in United States v. Padilla, 819 F.2d 952, 960 (10th
Cir. 1987), where it stated:
"Anything less than full representation by counsel raises the question of valid waiver of the right to counsel. . . . Even if appointment of standby counsel is contemplated, the district court must fulfill its affirmative responsibility of ensuring defendant is aware of the hazards and disadvantages of self-representation."
Applying the foregoing reasoning to the instant case, it
seems clear that the amount of participation in the trial by
standby counsel is not the correct criteria upon which to base a
determination of whether or not an accused has adequately waived
his Sixth Amendment right to counsel. Rather, such a decision must
be based upon a determination of who maintains "actual control"
over the presentation of the accused's defense. If, as in this
case, the trial court places the "actual control" of the case in
the hands of the accused, allowing him to decide strategy and what
use to make of counsel, it is clear that the accused has
relinquished "many of the traditional benefits associated with the
right to counsel." Faretta, supra. In such a situation, "the
accused must 'knowingly and intelligently' forego those
The foregoing analysis was recently adopted by the
Supreme Court of California in People v. Jones, 53 Cal. 3d 1115,
1142, 282 Cal. Rptr. 465, 481, 811 P.2d 757, 773 (1991), cert.
denied, ___ U.S. ___, 112 S. Ct. 1491, 117 L. Ed. 2d 631 (1992),
wherein it was stated:
"A defendant's entitlement to Faretta warnings turns on which form of representation the defendant selects. If the defendant chooses self-representation, Faretta requires that the defendant be warned of the dangers and pitfalls of doing so. (Faretta v. California, supra, 422 U.S. at p. 835, 95 S. Ct. at p. 2541 [45 L. Ed. 2d at pp. 581-82].) These warnings must be given even when the defendant has counsel to assist in an advisory capacity. So long as the defendant, by choosing to act as his or her own attorney, has assumed responsibility for the case, the defendant has forfeited the right to have an attorney make the critical strategic and tactical decisions pertaining to the defense and has thus waived the right to counsel. In such a situation, the record must show that the defendant 'understood the disadvantages of self-representation, including the risks and complexities of the particular case.' (People v. Bloom, supra, 48 Cal. 3d at p. 1225, 259 Cal. Rptr. 669, 774 P.2d 698.)
"If, on the other hand, a defendant
chooses to be represented by counsel and the
trial court allows the defendant a limited
role as cocounsel, the defendant has not
waived the right to counsel. The defense
attorney retains control over the case and can
prevent the defendant from taking actions that
may seriously harm the defense. In that
situation, the trial court may, but need not,
warn the defendant of the problems of being
I believe the approach of the Supreme Court of California
in People v. Jones, supra, is preferable to that chosen by the
majority. Rather than merely quantifying the amount of
participation by standby counsel, as does the majority, the
California test goes to the heart of the right to be protected, the
right to assistance of counsel, which as we have seen is one of the
safeguards of the Sixth Amendment deemed necessary to insure
fundamental human rights of life and liberty. People v. Jones,
Faretta, and in my opinion Sheppard, as well, require that where an
accused requests that he be permitted to proceed pro se and is
permitted by the trial court to either proceed pro se or to
exercise actual control over his defense and does, in fact,
exercise actual control over his defense, he must make a knowing
and intelligent waiver of his right to counsel.
In this case, the accused requested that he be permitted
to proceed pro se. The trial court granted him this right, but
allowed him to make use of standby counsel if he desired. The
defendant proceeded to actively represent himself through the
examination of several witnesses. It appears from the record that
the defendant chose how to make use of standby counsel. Certainly,
the defendant did not receive full representation by counsel. I
find the failure to give a full explanation to the defendant as to
his Sixth Amendment right to counsel resulted in a lack of a
knowing and intelligent waiver of this right. This failure
constituted reversible error.
Section II of the majority opinion discusses the conflicting obligations imposed upon a lawyer when he suspects that his client may offer perjured testimony to the court. On the one hand, a lawyer has a duty to zealously represent his client and to keep all discussions with his client confidential. On the other hand, a lawyer has a duty, as an officer of the court, to guard against a knowing subornation of perjury. The complexity of this issue raises not only questions of attorney-client relations, but also more serious constitutional implications as well, including an accused's right to testify, his right to counsel, and his fundamental due process rights. The majority has failed to understand these complexities as well as the facts surrounding the alleged attempted perjury.
The Supreme Court in Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 645, 28 L. Ed. 2d 1, 4 (1971), stated that "[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury." (Citations omitted).See footnote 4 The foregoing principle is embodied in Rule 3.3 of the Rules of Professional Conduct, which states, in pertinent part:
"(a) A lawyer shall not knowingly:
* * *
(4) offer evidence that the lawyer knows to be false. . . .
* * *
"(c) A lawyer may refuse to offer
evidence that the lawyer reasonably believes
It is clear that a lawyer has an affirmative duty not to offer evidence he knows to be false.See footnote 5 Furthermore, a lawyer may, at his discretion, refuse to offer evidence he "reasonably believes" to be false. Neither the Rules of Professional Conduct nor the Official
Comment thereto addresses the more difficult question of upon what
basis a lawyer may "reasonably believe" that his client's intended
testimony will be false and thereby refuse to offer such evidence
to the court.
The majority glosses over this issue by simply assuming
that Mr. Layton's appointed counsel had a "reasonable belief" that
Mr. Layton would testify falsely. Upon what basis this assumption
is made is unclear. A review of the record shows that far from
defense counsel approaching the trial court with his suspicion that
Mr. Layton may testify falsely, it was the trial court that
instigated the initial discussion thereon sua sponte. The majority
recognizes that the trial court engaged defense counsel in the
"THE COURT: Mr. Ollar, you and your [co-]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 actually wanted
this to occur.
"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
What the majority conveniently neglects to mention is that defense
counsel then responded to the trial court: "MR. OLLAR:
Your Honor, I have no knowledge of what [the defendant] intends to say on the stand." Nonetheless, the majority erroneously asserts that "the defendant [had] apparently [at that time] informed . . . his attorney during his second trial, that he . . . intended to perjure himself." ___ W. Va. at ___, ___ S.E.2d at ___ (Slip op. at 45).
Clearly, at that stage of the trial, defense counsel had
no suspicion that Mr. Layton intended to commit perjury for he did
not know what Mr. Layton would say. The trial court, again taking
the initiative, went on to state:
"THE COURT: Well, you'll have ample time to find out between now and the time that he takes the stand. You can take him back in the conference room here and discuss it with him and he will have to tell you so that you can ask the appropriate questions . . .
"MR. OLLAR: Thank you, sir.
"THE COURT: . . . as to what he wants to tell
Later during the trial, after the State rested, a bench
conference was held where the defendant sought to delay the trial
in order to obtain the testimony of witnesses absent from the
trial. The trial court refused. Apparently believing the bench
conference ended, Mr. Layton left the bench conference.
Immediately thereafter, still out of the presence of the jury,
defendant's counsel briefly addressed the trial court as follows:
"MR. OLLAR: 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: If you will ask him what he
"MR. OLLAR: I don't want to ask him anything.
"THE COURT: Okay. You may go back down."
The foregoing is the complete extent of the record showing the
basis upon which defense counsel believed that Mr. Layton would
testify falsely. In essence, defense counsel offered no basis, nor
was one asked for by the trial court.
The majority cites to Nix v. Whiteside, 475 U.S. 157, 106
S. Ct. 988, 89 L. Ed. 2d 123 (1986). Nix, however, is patently
distinguishable from this case. In Nix, the defendant moved for a
new trial after the jury convicted him of second-degree murder.
The motion for a new trial was based upon the defendant's assertion
that he was denied a fair trial because his defense counsel had
threatened to withdraw if the defendant committed perjury. That
issue was not raised before the trial court during trial. The
trial court, in a post-trial hearing, made specific findings that
the facts surrounding the potential perjury were as related by
defense counsel, thus rejecting the defendant's allegations. Nix,
475 U.S. at 162, 106 S. Ct. at 992, 89 L. Ed. 2d at 131-32.
Nix provides no guidance for situations where no record
is made concerning the validity of a defense counsel's "reasonable
belief" that his client may commit perjury. However, the Eighth
Circuit Court of Appeals squarely addressed this issue in United
States v. Long, 857 F.2d 436 (1988), cert. denied sub nom., Jackson
v. United States, ___ U.S. ___, 112 S. Ct. 98, 116 L. Ed. 2d 69
(1991). The facts in Long bear resemblance to those in the present
case. In Long, defense counsel approached the trial court after
the government rested its case and informed the court that he was
"concerned" about the potential testimony of the defendant. He
also informed the trial court that he had advised the defendant not
to take the stand. At that point, the trial court excused everyone
from the courtroom but defense counsel, the defendant, and a United
States Marshal. Defense counsel then informed the trial court that
he may have to withdraw based upon the potential testimony of the
defendant. The trial court informed the defendant that (1) he had
a right to testify, but (2) defense counsel could not elicit untrue
evidence. The defendant responded that he understood.
The trial court also informed the defendant that, if he
elected to testify, he only could do so by giving a narrative
statement without questioning by defense counsel. The trial court
then cryptically stated to the defendant that if defense counsel
found "things which he believes to be not true . . . he may have
other obligations at that point." 857 F.2d at 444. The trial
court cautioned the defendant again about the "obligations" of
defense counsel and defendant's right to testify. The defendant
informed the court that he would not testify.
Upon appeal, the Eighth Circuit Court of Appeals noted that, unlike Nix, there was nothing in the record of Long to show that the defendant would have testified falsely if he took the stand. The Long court described the absence of such a showing as "crucial": "In terms of a possible violation of [the defendant's] rights, this is crucial. If . . . [defense counsel] had no basis for believing [the defendant] would testify falsely and [the defendant], in fact, wanted to testify truthfully, a violation of his rights would occur." 857 P.2d at 445. The Court of Appeals noted its rule that defense counsel must have a "firm factual basis" for believing his client will testify falsely before taking any action to prevent such testimony:
"Counsel must act if, but only if, he or she has 'a firm factual basis' for believing that the defendant intends to testify falsely or has testified falsely. . . . It will be a rare case in which this factual requirement is met. Counsel must remember that they are not triers of fact, but advocates. In most cases a client's credibility will be a question for the jury." 857 F.2d at 445, citing Whiteside v. Scurr, 744 F.2d 1323, 1328, rev'd on other grounds sub nom., Nix v. Whiteside, supra. (Emphasis added).
The Court of Appeals held that an evidentiary hearing on that issue
would be necessary because the record did not reveal whether
defense counsel had a "firm factual basis" for his belief that the
defendant may testify falsely.
In this case, the record reveals no basis whatsoever for
defense counsel's belief that Mr. Layton would testify falsely. In
such a situation, the need for an evidentiary hearing, as ordered
in Long, is obvious. At a minimum, the record should reveal that
defense counsel attempted to persuade the defendant not to testify
perjuriously. As the Supreme Court stated in Nix: "It is
universally agreed that at a minimum the attorney's first duty when
confronted with a proposal for perjurious testimony is to attempt
to dissuade the client from the unlawful course of conduct." 475
U.S. at 169, 106 S. Ct. at 996, 89 L. Ed. 2d at 136.See footnote 6 (Citations
omitted). In this case, there is simply nothing in the record to
suggest that defense counsel performed this minimum duty. The need
for an evidentiary hearing is thus even stronger here than in Long.
The majority unexplicably proceeds to a conclusion that the defendant made a knowing and intelligent waiver of his right not to be present at the bench conference. At this bench conference, the trial court permitted defense counsel to withdraw from questioning the defendant when he testified on his own behalf.
The bench conference occurred when the defendant sought
a brief recess to determine whether several of his witnesses would
be available to testify. This recess was denied by the court.
Angered at this ruling, the defendant left the bench conference and
returned to counsel table. His counsel remained at the bench and
then brought up the question of not desiring to examine the
defendant. It was at this point that the court informed defense
counsel that he should not examine the defendant. The defendant
had no knowledge of this ruling, as evidenced by his remarks in the
record when he took the stand to testify.See footnote 7
The cases cited by the majority involving the waiver of a defendant's right to be present at trial involve those situations where a defendant voluntarily absents himself from the trial after being informed of his obligation and right to be present. Here, the defendant could not waive what he did not know had occurred. It is incredible to me that the majority could find a waiver in this case.
This case bears some analogy to State ex rel. Grob v.
Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975), where the attorneys
convened in the judge's office to consider how to deal with a
witness who wished to recant earlier testimony. The defendant was
not invited to this conference and we held this violated his
constitutional right to be present. Our rule on this point is
contained in Syllabus Point 6 of State v. Boyd, 160 W. Va. 234, 233
S.E.2d 710 (1977):
"The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless."
I cannot conceive of any reasonable argument that could
be made to justify this critical decision of whether counsel should
examine the defendant being made without the presence of the
defendant. There is absolutely no claim made that the defendant
was asked to return to the bench and refused to do so. The only
conclusion that can be rationally made is that his constitutional
right to be present was simply ignored.
Moreover, the related question of the defendant's Sixth Amendment right to have his counsel examine him is brushed away by the majority by citing Syllabus Point 7 of State v. Neuman, 179 W. Va. 580, 371 S.E.2d 77 (1988).See footnote 8 In Neuman, we dealt with a trial court's obligation to inform the defendant of the rights he would be giving up if he elected not to testify on his own behalf at trial. Here, the defendant elected to testify; thus, the Neuman principle is not applicable and cannot be applied to waive defendant's Sixth Amendment right to the assistance of counsel when he took the stand. What we have said in Part I, supra, regarding the Sixth Amendment right to counsel and its waiver applies with equal force here.
The trial court compounded its error even further when, in essence, it announced, in open court with the jury present, that defense counsel believed the defendant would commit perjury on the stand. This announcement occurred after the defendant agreed to testify and was sworn in. The trial court stated in the jury's presence that defense counsel had requested that he not be required to ask the defendant any questions. When the defendant expressed his surprise at this pronouncement and protested, the trial court responded that defense counsel "has certain rules that he has to go by."
A similar situation arose in Lowery v. Cardwell, 575 F.2d
727 (9th Cir. 1978), where the trial court sat without a jury. In
that case, defense counsel was in the process of examining the
defendant when defense counsel abruptly asked for a recess and the
trial court removed defense counsel to its chambers. There, the
defense counsel sought to withdraw. No explanation was given, but
his request for a recess came immediately after the defendant
denied committing the crime for which he was charged. The Ninth
Circuit Court of Appeals found that where a fact-finder is warned
by defense counsel, either explicitly or implicitly, that the
defendant's defense is based upon false testimony, the fact-finder
becomes "disabled . . . from judging the merits of the defendant's
defense." 575 F.2d at 730. That court made a distinction between
cases where a defense counsel declines to take action and
situations where the ethical quandary is all but announced to the
"In our view, mere failure to pursue actively a certain course of defense, which counsel ethically is precluded from actively pursuing, cannot be said to constitute denial of fair trial. While a knowledgeable judge or juror, alert to the ethical problems faced by attorneys and the manner in which they traditionally are met, might infer perjury from inaction, counsel's belief would not appear in the clear and unequivocal manner presented by the facts here. There may be many reasons for failure actively to pursue a particular line of defense. And in the weighing of competing values in which we are engaged . . . the integrity of the judicial process must be allowed to play a respectable role; the concept of due process must allow room for it.
"The distinction we draw is between
a passive refusal to lend aid to perjury and
such direct action as we find here--the
addressing of the court in pursuit of court
order granting leave to withdraw. By calling
for a judicial decision upon counsel's motion
in a case in which the judge served as fact
finder, this conduct affirmatively and
emphatically called the attention of the fact
finder to the problem counsel was facing."
575 F.2d at 731. (Footnote omitted).
In this case, the trial court implicitly informed the
jury that defense counsel was, at the very least, at odds with his
client. The fact that defense counsel refused to examine his own
client and that this was due to "rules that he has to go by," all
but announced to the jury that defense counsel believed his client
would lie to the jury. Such a situation clearly disabled the
jurors from judging the merits of the defendant's defense, and he
was denied a fair trial.
After the defendant testified in narrative form, and after the State was permitted to cross-examine him, defense counsel sought permission of the trial court to allow the defendant to continue his narrative testimony, stating: "Sir, if I might, [the
defendant] has not fully had an opportunity to fully describe what
he alleges happened that day." This was, in essence, a request for
redirect examination. The trial court denied the foregoing
In his very brief narrative testimony, the defendant made
only cursory remarks relating to the facts of the case although he
did deny participating in the crime. It seems abundantly clear
that the defendant's testimony was brief and disjointed, mostly
because he was completely unprepared to testify in narrative form
without the aid of questioning by his stand-by counsel. Defense
counsel sought to limit the already measurable prejudice to the
defendant by asking that the defendant be permitted to fully tell
his story. The trial court denied this request, stating simply
that the defendant had his opportunity the testify and the State
already had cross-examined him. Clearly, the Sixth Amendment right
to counsel, which has been previously discussed, was violated at
Although a trial court may exercise reasonable control
over the mode and order of interrogating witnesses, under Rule
611(a) of the West Virginia Rules of Evidence, this control may not
be exercised in such a way that the trial court abuses its
discretion. In State v. Armstrong, 179 W. Va. 435, 442, 369 S.E.2d
870, 877 (1988), we stated:
"Rule 611(a) of the West Virginia Rules of Evidence provides: 'The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.' This evidentiary rule is consistent with the common law in this State: 'A trial court has wide latitude in the conduct of a trial, and particularly in matters pertaining to the examination of witnesses, and its rulings in relation to the examination of witnesses will not be reversed except when there has been a plain abuse of its discretion.' Syl. pt. 2, Payne v. Kinder, 147 W. Va. 352, 127 S.E.2d 726 (1962). The discretion of the trial court to control the mode of interrogation of witnesses has been recognized in criminal cases in this State. See Syl. pt. 6, State v. Fairchild, 171 W. Va. 137, 298 S.E.2d 110 (1982) (leading questions). In practice, abuse of this discretion is more often found when the trial court has unduly curbed the examination than when the trial court has permitted an undue extension of the examination. State v. Altergott, 57 Haw. 492, 506, 559 P.2d 728, 737 (1977)." (Emphasis added).
It is clear to me that the trial court abused its
discretion when it denied the defendant an opportunity to present
his testimony, albeit in the form of a redirect examination to the
jury. Preventing such testimony of the defendant did not further
any of the goals outlined in Rule 611(a) of the Rules of Evidence.
Rather, it had the effect of denying the unprepared defendant, who
already was prejudiced by the surprise responsibility of testifying
in narrative form, his right to testify.
Finally, the majority makes the bizarre assertion that, "[i]f the question of perjury had arisen for the first time during the trial which underlies the present appeal, it could have been appropriate for the trial court to have declared a mistrial." ___ W. Va. at ___, ___ S.E.2d at ___ (Slip op. at 35). Again, I must disagree. The foregoing assertion is entirely groundless in any law that I can find.
When a question of perjury arises, whether it be in an
initial trial or a subsequent retrial, the procedure followed by
the trial court should be the same. In my opinion, if, and only if
the defense counsel has a "firm factual basis" for his assertion
that his client may commit perjury, and if he has attempted to
dissuade his client from so testifying, the trial court may permit
defense counsel to forego questioning the defendant.
Prior to placing the defendant on the stand, however, the
defendant must be made aware that his counsel will be unavailable
to question him and, if he chooses to testify, such testimony must
be in narrative form.See footnote 9 I can see no reason to declare a mistrial
every time a defendant threatens to commit perjury in an initial
trial. If the foregoing procedure is followed, there will be no
need to declare a mistrial at either an initial trial or any
For the foregoing reasons, I would reverse the defendant's conviction and remand this case for a new trial. I am authorized to state that Justice Thomas E. McHugh joins me in this dissent.
Footnote: 1See Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932).
Footnote: 2The Sixth Circuit Court of Appeals in United States v. McDowell, 814 F.2d 245 (6th Cir.), cert. denied, 484 U.S. 980, 108 S. Ct. 478, 98 L. Ed. 2d 492 (1987), required that district courts under its jurisdiction question defendants who wished to proceed pro se in accordance with guidelines for such an inquiry found in 1 Bench Book for United States District Judges 1.02-2 to -5 (3d ed. 1986). Only if such an inquiry is made in accordance with the Bench Book will a defendant be found to have knowingly waived his right to counsel.
Footnote: 3Syllabus Point 5 of Watson states:
"Good cause for the relief of a court-appointed counsel consists of: (1) a conflict of interest; (2) a complete breakdown in communication with court-appointed counsel
after the exhaustion of good faith efforts to
work with counsel; or, (3) an irreconcilable
conflict which might lead to an unjust
Footnote: 4In Faretta, the Supreme Court stated that "[t]his Court has often recognized the constitutional stature of rights that, though not literally expressed in the document, are essential to due process of law in a fair adversary process. It is now accepted, for example, that an accused has a right . . . to testify on his own behalf[.]" 422 U.S. at 819 n.15, 95 S. Ct. at 2533 n.15, 45 L. Ed. 2d at 572 n.15. (Citations omitted). See also Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 2708-09, 97 L. Ed. 2d 37, 44-45 (1987); Nix v. Whiteside, 475 U.S. 157, 164, 106 S. Ct. 988, 993, 89 L. Ed. 2d 123, 133 (1986).
Footnote: 5It has been stated, for obvious reasons, that a lawyer will rarely "know" that his client intends to commit perjury. Whiteside v. Scurr, 744 F.2d 1323 (8th Cir. 1984), rev'd on other grounds sub nom., Nix v. Whiteside, supra.
Footnote: 6The majority cites with approval The Committee on Professional Ethics of the Connecticut Bar Association's conclusion that, where a client insists on committing perjury, a lawyer "should attempt to persuade the defendant to testify in narrative fashion." It is clear from the record in this case that the defendant was completely surprised by the trial court's ruling that he must testify in narrative form, and that no such discussion with his lawyer as advocated by the Connecticut Bar Association Committee occurred.
Footnote: 7The record reveals the following colloquy:
"THE COURT: Do you desire to testify in this
"THE DEFENDANT: Yes, I do.
"THE COURT: You do?
"THE DEFENDANT: Yes, sir.
"THE COURT: You may proceed with your
testimony. Come and take the stand and be
"WHEREUPON, TIMOTHY LAYTON, having been duly
sworn in open court by the Clerk of the Court,
testified as follows:
"THE COURT: Mr. Ollar has requested that he
not be required to ask you any questions.
"[THE DEFENDANT]: You mean my counsel is not
going to assist me on the stand?
"THE COURT: That's correct. You may tell the
jury your name and address and what you want
them to know.
"THE DEFENDANT: But you're asking me to
testify here and violate my 6th Amendment
right to counsel.
"THE COURT: No. I told you what your rights
were and advised you of that this morning, and
your attorney has certain rules that he has to
go by. If you desire to tell the jury what
you want them to hear about this proceeding,
you may now tell them.
"THE DEFENDANT: But without counsel . . .
"THE COURT: Your counsel will not ask the
questions to you.
"THE DEFENDANT: Well, don't you think, sir,
don't you think that would cast a doubt on
"THE COURT: Sir?
"THE DEFENDANT: Don't you think that casts a
doubt on this jury?
"THE COURT: No.
"THE DEFENDANT: Why my counsel won't talk to
* * *
"THE COURT: You may proceed."
Footnote: 8Syllabus Point 7 of Neuman states:
"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."
Footnote: 9There is debate among authorities and commentators regarding the propriety of narrative testimony in situations where a lawyer suspects his client may commit perjury. Several courts have approved the use of narrative testimony in such a situation. See People v. Guzman, 45 Cal. 3d 915, 248 Cal. Rptr. 467, 755 P.2d 917 (1988), cert. denied, 488 U.S. 1050, 109 S. Ct. 380, 102 L. Ed. 2d 365 (1989); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (1981);
State v. Fosnight, 235 Kan. 52, 679 P.2d 174 (1984); People v.
Lowery, 52 Ill. App. 3d 44, 9 Ill. Dec. 41, 366 N.E.2d 155 (1977).
However, as the majority notes, the Official Comment to Rule 3.3 of
the Rules of Professional Conduct expressly disapproves of a
narrative approach, stating: "[T]his 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 commentator has stated
"The narrative approach allows the
lawyer to refrain from active participation in
the client's testimony while giving the client
the opportunity to testify, thereby avoiding
direct examination on matters in which the
lawyer believes the client will commit
perjury. Moreover, the lawyer may not argue
to the jury the client's known false version
of the facts as worthy of belief. Butler v.
United States, 414 A.2d 844 (D.C. 1980). One
commentator, who prefers the narrative
approach to mandatory withdrawal, points out
that withdrawal raises the danger of a
succession of withdrawal motions and
consequent trial delays. Lefstein, Client
Perjury in Criminal Cases: Still in Search of
an Answer, 1 Geo. J. Legal Ethics 521 (1988).
Nevertheless, the narrative approach does not
necessarily protect the client from an
implicit disclosure of confidential
communications, at least to the trial judge
and the prosecutor, who may easily surmise the
most likely reason for the lawyer's approach.
Because of this implicit disclosure, the
prosecutor may be barred from inviting the
jury to draw inferences from defense counsel's
conduct. See State v. Long, 714 P.2d 465
(Ariz. Ct. App. 1986).
"Arguably, this approach undermines
the lawyer's duty not to assist, even
passively, in the client's attempt to
perpetrate a fraud or mislead the court."
Center for Professional Responsibility, American Bar Association, Annotated Model Rules of Professional Conduct 341 (2d ed. 1992). See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 3.3:212-220 (1992); Carol T. Rieger, Client Perjury:
A Proposed Resolution of the Constitutional and Ethical Issues, 70
Minn. L. Rev. 121 (1985); Brent R. Appel, The Limited Impact of Nix
v. Whiteside on Attorney-Client Relations, 136 U. Penn. L. Rev.
In State v. Armstrong, 179 W. Va. 435, 369 S.E.2d 870 (1988), we stated in Syllabus Point 3: "The trial court is vested with sound discretion to permit a witness to testify in narrative form, rather than by question and answer." In Armstrong, the State's expert witness sought to testify in narrative form and was permitted to do so. We affirmed this mode of testimony based upon the fact that the testimony was expert in nature. 179 W. Va. at 443, 369 S.E.2d at 878. See W.Va.R.Evid. 702.