COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Bray 

Argued at Norfolk, Virginia 

BOBBY RAY EDWARDS 

v. Record No. 0104-94-1 OPINION 

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA OCTOBER 3, 1995 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert W. Curran, Judge 

 David B. Olson for appellant. 

 Eugene Murphy, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on brief), 

 for appellee. 

 Bobby Ray Edwards (appellant) appeals from his convictions 

by the Circuit Court of the City of Newport News (trial court) 

for malicious wounding, use of a firearm, and possession of a 

firearm or concealed weapon by a felon. This appeal is limited 

to the question whether the trial court committed reversible 

error in allowing appellant to waive counsel and proceed pro se

without properly advising him of the potential consequences of 

his actions. Finding no error, we affirm the judgments of the 

trial court. 

 Appellant was arrested on October 31, 1992 and charged with 

malicious wounding, use of a firearm in the commission of the 

felony, and possessing a firearm after having been convicted of a 

felony. On November 3, 1992, he appeared in the General District 

Court of Newport News where a preliminary hearing on the charges 

was held. Code § 19.2-160, in pertinent part, provides: 
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 If the charge against the accused is a 

crime the penalty for which may be 

incarceration, and the accused is not 

represented by counsel, the court shall 

ascertain by oral examination of the accused 

whether or not the accused desires to waive 

his right to counsel. 

 In the event the accused desires to waive 

his right to counsel, and the court 

ascertains that such waiver is voluntary and 

intelligently made, then the court shall 

provide the accused with a statement to be 

executed by the accused to document his 

waiver. The statement shall be in a form 

designed and provided by the Supreme Court. 

Any executed statement herein provided for 

shall be filed with and become a part of the 

record of such proceeding. 

(Emphasis added.) The general district court, in compliance 

therewith, conducted an oral examination at the preliminary 

hearing, after which appellant signed the following waiver form: 

WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER 

 (CRIMINAL CASE)

 I have been advised by a judge of this 

court of the nature of the charges in the 

cases pending against me and the potential 

punishment for the offenses, which includes 

imprisonment in the penitentiary or 

confinement in jail. I understand the nature 

of these charges and the potential punishment 

for them if I am found to be guilty. 

 I have been further advised by a judge of 

this court that I have the following rights 

to be represented by a lawyer in these cases: 

 a. I have a right to be represented by a 

 lawyer. 

 b. If I choose to hire my own lawyer, I 

 will be given a reasonable 

 opportunity to hire, at my expense, 

a lawyer selected by me. The judge 

 will decide what is a reasonable 

 opportunity to hire a lawyer. If 

I have not hired a lawyer after 
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such reasonable opportunity, the 

judge may try the case even though I 

do not have a lawyer to 

represent me. 

 c. If I ask the judge for a lawyer to 

 represent me and the judge decides, 

 after reviewing my sworn financial 

 statement that I am indigent, the 

 judge will select and appoint a 

 lawyer to represent me. 

However, if I am found to be guilty 

of an offense, the lawyer's 

fee as set by the judge within 

statutory limits will be 

assessed against me as court costs 

and I will be required to pay it. 

I understand these rights to be represented 

by a lawyer. I also understand that I may 

waive (give up) my rights to be represented 

by a lawyer. 

 Understanding my rights to be represented 

by a lawyer as described above and further 

understanding the nature of the case and the 

potential punishment if I am found to be 

guilty, I waive all of my rights to be 

represented by a lawyer in these cases, with 

the further understanding that the cases will 

be tried without a lawyer either being hired 

by me or being appointed by the judge for me. 

 I waive these rights of my own choice, 

voluntarily, of my own free will, without any 

threats, promises, force or coercion. 

 s/ Bobby R. Edwards

 The district court judge found that appellant knowingly, 

voluntarily, and intelligently waived his right to be represented 

by counsel, and the judge signed the following statement: 

 Upon oral examination, the undersigned 

judge of this Court finds that the Adult, 

having been advised of the rights and matters 

stated above and having understood these 

rights and matters, thereafter has knowingly, 

voluntarily and intelligently waived his 

rights to be represented by a lawyer. 
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 NOV 3 1992 s/ Joan T. Morris

 DATE JUDGE 

After a hearing, probable cause was found and the cases were 

presented to a grand jury. True bills were returned on December 

14, 1992. 

 Trial on the charges was scheduled for February 17, 1993. 

The record discloses that appellant was certain of both the 

identification and the nature of all three charges. The 

Commonwealth advised the trial court that appellant had waived 

his right to an attorney. Finding in the court's file only the 

waiver executed in the general district court, the trial court 

asked appellant if he still wanted to waive his right to counsel. 

 When appellant responded affirmatively, the record reflects that 

"upon oral examination" the trial court made the same findings as 

made by the general district court judge.1

 In response to 

further inquiries by the court, appellant advised the court that 

he was not ready for trial and informed the court of the names 

and addresses of two witnesses. Appellant further stated that he 

was a college graduate and had completed one year toward a 

Master's degree at Howard University. 

 The following exchange between the trial court and appellant 

then occurred: 

THE COURT: Have you thought about the 

advisability of a trial by jury? 

 

 1The trial court signed the waiver in identical form as the 

district court judge. 
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THE DEFENDANT: In this particular case it's a 

question of law and I think I prefer the 

court. 

 The trial court granted a continuance to enable appellant to 

have subpoenas issued for the witnesses. The Commonwealth 

suggested a new trial date of May 13. Appellant called to the 

trial court's attention that he had been incarcerated since 

October 31 and hoped trial could be held earlier. The trial 

court acceded to appellant's desire and set the matter for April 

1. Appellant requested that the cases be heard by the same judge 

who was presiding at that time. The trial court agreed to this 

request. 

 On April 1, the trial court again inquired as to appellant's 

education and was again told by appellant that he was a college 

graduate with one year's credit toward a Master's degree. 

Appellant further denied having any inability to understand the 

proceedings and affirmed his understanding of the charges. He 

had previously complained that he had too little time allowed in 

the jail's law library and was assured by the trial court that 

the court would do what it could to increase that time. On April 

1, appellant advised the court that he had had adequate time to 

prepare his defense. 

 At trial, one defense witness did not appear. Appellant 

told the trial court that the witness was not needed but that a 

third witness, a police officer who appellant had not subpoenaed, 

was needed for his defense. The trial court arranged to have the 
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officer present to testify. Before the trial began, appellant 

moved to have the witnesses excluded. His motion was granted. 

 At the conclusion of the Commonwealth's case, appellant 

presented two witnesses to testify in his defense but did not 

testify himself. The trial court's orders, which documented that 

appellant had been found guilty on each charge, declared that: 

[T]he Court having made inquiry and being of 

the opinion that the defendant fully 

understood the nature and effect of his plea 

and of the penalties that may be imposed upon 

his conviction, and after having been first 

advised by the Court of his right to trial by 

jury, the defendant knowingly and voluntarily 

waived trial by jury and with the concurrence 

of the attorney for the Commonwealth . . . 

the Court proceeded to hear and determine the 

case. 

 The trial court ordered a presentence report, which revealed 

that appellant had a substantial number of felony and misdemeanor 

convictions.2

 Prior to the sentencing hearing, an attorney was appointed 

to represent appellant. A motion for a new trial was filed, 

alleging that the trial court failed to warn appellant that (1) 

he would be responsible for the adequacy of his defense, and (2) 

he would suffer the consequences of any inadequacy if he rejected 

professional assistance. After hearing argument thereon and 

reviewing the record and transcript, the trial court found as 

follows: 

And it is this Court's position, in viewing 

 2E.g., burglary, assault with a dangerous weapon, abduction, 

and robbery. 
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everything as a whole, that this particular 

Defendant, because of his education, because 

he had signed a waiver in the General 

District Court which sets out certain 

statements and which was referred to by this 

Court on the February 17th hearing, and in 

addition, the opening statement from this 

particular Defendant indicated that he was 

very knowledgeable and was not ready to 

accept counsel and that he wished to proceed 

pro se. So I believe that this particular 

Defendant, under the facts and circumstances 

of this case, intelligently waived his right 

to counsel, and I deny the motion. 

 At oral argument, appellant conceded that if the matters 

contained in the executed waiver forms were contained in the 

transcript of the trial proceedings the convictions should be 

affirmed. However, citing Faretta v. California, 422 U.S. 806 

(1975), and Kinard v. Commonwealth, 16 Va. App. 524, 431 S.E.2d 

84 (1993), appellant contends that without those specific 

warnings he could not make a knowledgeable and intelligent waiver 

of his right to be represented by an attorney. Thus, we must 

decide in this case whether, standing alone, the absence of those 

specific warnings requires reversal of the judgments of the trial 

court. 

 The issue in the case before us and before the courts in the 

cases relied upon by appellant in his quest for reversal arises 

out of an accused's right to counsel guaranteed by the Sixth 

Amendment of the Constitution of the United States, which 

provides that the accused shall enjoy the right to have 

assistance of counsel. If the accused has not competently and 

intelligently waived that constitutional right, the Sixth 
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Amendment stands as a jurisdictional bar to a valid conviction 

and sentence depriving him of his life or liberty. Johnson v. 

Zerbst, 304 U.S. 458, 468 (1938). When the issue is presented, 

the burden is on the Commonwealth to show by the record that an 

accused who proceeds pro se has competently, intelligently, and 

understandingly waived his right to counsel. Bolden v. 

Commonwealth, 11 Va. App. 187, 191, 397 S.E.2d 534, 536 (1990), 

cert. denied, 502 U.S. 943 (1991). 

 Signing a waiver form does not alone guarantee affirmance of 

a conviction, and failure to give the specific warnings suggested 

by appellant does not alone assure reversal of the conviction. 

All of the circumstances as shown by the record must be 

considered and an ultimate determination made whether the accused 

knowingly, competently, and intelligently waived his right to be 

represented by an attorney. 

 In Superintendent v. Barnes, 221 Va. 780, 273 S.E.2d 558 

(1981), the Supreme Court of Virginia said: 

While the Supreme Court has said in dictum 

that an accused who has chosen to represent 

himself "should be made aware of the dangers 

and disadvantages of self-representation," 

Faretta v. California, 422 U.S. 806, 835 

(1975), it has never held that the absence of 

such cautionary instruction, standing alone, 

defeats a waiver. 

Id. at 784, 273 S.E.2d at 561. Whether there has been an 

intelligent waiver of right of counsel depends upon the 

particular facts and circumstances on each case, including the 

background, experience, and conduct of the accused. Id. 
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 In Faretta, the sole issue decided was that the trial court 

erred when it denied Faretta the right to represent himself and 

proceed to trial pro se. Obviously, the specific warning 

statement from Faretta relied upon by appellant was dictum. 

Kinard quoted the dictum from Faretta but specifically 

acknowledged that "[t]o test the sufficiency of Kinard's waiver 

of counsel and election to proceed pro se, we must review the 

particular facts and circumstances surrounding this case." 

Kinard, 16 Va. App. at 527, 431 S.E.2d at 86. Citing United 

States v. Doe, 743 F.2d 1033, 1038 (4th Cir. 1984), the Kinard

opinion declares: 

[T]he primary inquiry . . . is not whether 

any particular ritual has been followed in 

advising the defendant of his rights and 

accepting his waiver, but simply whether the 

procedures followed were adequate to 

establish "an intentional relinquishment of 

the right to counsel, known and understood by 

the accused. . . ." 

Kinard, 16 Va. App. at 527, 431 S.E.2d at 86. 

Kinard is not based upon the dictum from Faretta. Rather, 

it is based upon the finding that Kinard's waiver was not 

intelligently made because the record failed to show that he had 

been advised of the nature of the charges against him and of the 

punishment that could be imposed. Kinard, 16 Va. App. at 527, 

431 S.E.2d at 86. 

Kinard is consistent with the prevailing constitutional 

standard expressed in North Carolina v. Butler, 441 U.S. 369, 

374-75 (1979). There, the Supreme Court upheld an "implicit 
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waiver" upon considering the whole record. Citing Butler, the 

Virginia Supreme Court in Barnes agreed that "[w]hile it is 

preferable practice for trial courts to warn an accused of the 

risks of self-representation, we believe that a cautionary 

instruction is only one of the 'facts and circumstances' relevant 

to a determination of the validity of a waiver of counsel." 

Barnes, 221 Va. at 784, 273 S.E.2d at 561. 

 The waiver form signed by appellant met the requirements of 

Code § 19.1-160. Appellant is a college graduate with one year's 

credit toward a Master's degree. His criminal record discloses 

numerous experiences with the judicial system and the criminal 

process. His attention was called to the advisability of 

considering a jury trial, and he specifically indicated a 

preference for a bench trial. He had access to a law library. 

He apparently used it because when asked on April 1 whether he 

was prepared for trial he answered in the affirmative. By 

executing the waiver forms, appellant acknowledged (1) that he 

had been advised of the nature of the charges and of the 

potential punishment for the offenses, and (2) that he understood 

he had the right to be represented by a lawyer, that he would be 

given the time to employ one and if he could not afford one the 

court would appoint one to represent him. He acknowledged 

further that he understood the nature of the charges, that the 

potential punishment if he were found guilty exposed him to 

penitentiary incarceration, and that he was waiving his rights of 
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his own choice, voluntarily, of his own free will, without 

threats, promises, force, or coercion. 

 The courts' orders and certifications to the waivers 

disclose findings that appellant knowingly and intelligently 

waived his right to be represented by an attorney. Two judicial 

officers, the general district court and the circuit court 

judges, declared that they had made an "oral examination," that 

appellant had been informed of his rights, that he understood the 

contents of the waiver, and that he had "knowingly, voluntarily 

and intelligently" waived his rights. In addition, post-trial, 

an attorney was appointed to represent appellant in this appeal. 

 Prior to perfecting the appeal, the newly appointed counsel 

moved the trial court to set aside the verdicts on the basis of 

the dictum contained in Faretta and quoted in Kinard. The trial 

court reviewed the record and made a further specific finding 

that the waiver complied with the constitutional requirements. 

 Nothing in this record contradicts the factual statements 

contained in the waivers. In fact, at oral argument, counsel for 

appellant conceded that if the contents of the waivers had been 

contained in the transcript of the trial procedure, appellant 

would have no basis for reversal of his convictions. 

 Upon review of the facts and circumstances shown, for the 

reasons stated, we hold that the record supports the trial 

court's finding that appellant competently, voluntarily, and 

intelligently waived his right to counsel, and that the 
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requirements of the Sixth Amendment have been met. 

 Accordingly, the judgments of the trial court are affirmed. 

 Affirmed.
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Benton, J., dissenting. 

 In applying the admonition in Faretta v. California, 422 

U.S. 806 (1975), that the record must establish that an accused 

who represents himself has "'knowingly and intelligently' 

forego[ne] those relinquished benefits" that are traditionally 

associated with the right to counsel, id. at 835, this Court 

stated: 

A defendant "should be made aware of the 

dangers and disadvantages of selfrepresentation, so that the record will 

establish that 'he knows what he is doing and 

his choice is made with eyes open.'" . . . 

"[T]he primary inquiry . . . is not whether 

any particular ritual has been followed in 

advising the defendant of his rights and 

accepting his waiver, but simply whether the 

procedures followed were adequate to 

establish 'an intentional relinquishment of 

the right to counsel, known and understood by 

the accused. . . .'" 

Kinard v. Commonwealth, 16 Va. App. 524, 527, 431 S.E.2d 84, 86 

(1993) (citations omitted). 

 In pertinent part, the transcript reflects that the 

following occurred in the circuit court: 

(The Court Reporter was duly sworn.) 

(The Defendant was present in the courtroom.) 

[PROSECUTOR]: Bobby Edwards. 

[JUDGE]: He waived his right to an attorney. 

[PROSECUTOR]: That's what I understand, 

Judge. The Commonwealth is ready, Judge. 

[JUDGE]: All right, in this particular case 

Mr. Edwards, in the General District Court 

you waived your right to an attorney. Do you 

still wish to waive your right to an attorney 
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in these cases, sir? 

[THE DEFENDANT]: Your Honor, because of the 

political and sociological ramifications of 

ride by shootings. And the falsification of 

information by the witnesses. And the 

withholding of information by the 

prosecutor's office to paint the scenario 

that I'm some person from out of town, some 

infamous or notorious person named Tank from 

out of town that is some kind of enforcer or 

some kind of a hit man or something, when, in 

fact, I have twelve children in Newport News 

and sixteen grandchildren. 

 I'm not someone coming here to be on some 

misadventure. And because of the turns and 

twist in the judicial system wherein a man is 

more or less guilty until he is proven 

innocent and the doubt goes towards the 

prosecutor, I have no alternative but to 

proceed as a pro se litigant. However, I 

make a motion to quash the information 

because in the -- there was no corpus delicti 

evidence of probable cause -- 

[JUDGE]: The first thing I want to do is get 

the paperwork straight, because all I have in 

front of me is a waiver from the General 

District Court. And I want to get straight 

that you want to represent yourself. So he 

needs to sign -- what do we have, we have 

three charges? 

 * * * * * * * 

[JUDGE]: Let me get -- Mr. Davenport if you 

will prepare three waivers and have the 

sheriff take them over to this gentleman and 

let him sign them and Mr. Duncan you can look 

through your file while we're doing that. 

 All right, Mr. Edwards, you had some 

motions. 

THE DEFENDANT: Yes, sir. 

 * * * * * * * 

[JUDGE]: I'm going to deny those motions 

because I don't believe this Court has 

anything to do with the probable cause 
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hearing. 

THE DEFENDANT: I can reserve those rights on 

those motions? 

[JUDGE]: Yes, sir, you can note your 

exception to my ruling on those issues, yes, 

sir. All right, now, with that in mind I'm 

going to ask that the Clerk read to you the 

indictments for you to plead to the 

indictments. 

 This Court's observations in Kinard are applicable to the 

record in this case. 

The record . . . does not show that the 

waiver was made intelligently. . . . [The 

record] was insufficient to ensure that [the 

defendant] understood that he was undertaking 

a complex and sophisticated role, the 

performance of which normally requires a high 

level of professional training and 

competence. It failed to warn him that if he 

rejected professional assistance, he would be 

responsible for the adequacy of his defense 

and would suffer the consequences of any 

inadequacy. At the time the waiver was 

accepted, [the defendant] had not been 

arraigned. The record does not show that he 

had been advised of the nature of the charges 

against him or of the punishment that could 

be imposed. Therefore, the record does not 

support . . . [a] finding that [the 

defendant's] waiver of counsel was 

intelligently made. 

16 Va. App. at 527, 431 S.E.2d at 86. Because the record in this 

case does not reflect that the defendant was made aware of the 

"dangers and disadvantages of self-representation," Faretta, 422 

U.S. at 835, I would hold that the record does not establish that 

the defendant made a knowing and intelligent waiver of his right 

to counsel. Accordingly, I would reverse the convictions and 

remand for a new trial.