COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Ke lsey and Senior Judge Bumgardner Argued at Chesapeake, Virginia

ERWIN ALEXANDER EDWARDS OPINION BY v. Record No. 1697-06-1 JUDGE D. ARTHUR KELSEY MAY 22, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge Charles E. Haden for appellant. Josephine F. Whalen, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
A jury convicted Erwin Alexander Edwards of distribution of cocaine, his second or subsequent offense, in violation of Code § 18.2-248 and possession of co caine in violation of Code § 18.2-250. On the morning of trial, Edwa rds requested that he be allowed to defend himself pro se . The trial court denied the request, fi nding Edwards competent to stand trial but incompetent to represent himself. Because the court applied an incorrect legal standard and, consequently, failed to make factual determinati ons required by the correct standard, we vacate the convictions and remand for further proc eedings consistent with this opinion.
I. The evidence at trial showed that police vi deotaped Edwards selling crack cocaine to a confidential informant. Edwards ran when police moved in to arrest him. During his flight, Edwards threw away the money the confidential in formant paid him as well as another bag of crack cocaine. Edwards pled not guilty to possession and distribution charges.- 2 - The trial court appointed counsel to defend Ed wards. Lawyer after lawyer found it nearly impossible to represent Edwards. In successi on, his first three lawyers moved to withdraw, claiming conflicts of various sort s. About his fourth lawyer, Edwards exclaimed in open court that the lawyer was “trying to railroad” him. When the court expressed skepticism, Edwards retorted: “You ain’t the judge of me. The jury is. Get it ri ght.” “That motherfucker [speaking of his fourth lawyer],” Edwards snarled, “Man, y ou’re fired.” At that, the trial judge ordered Edwards out of the courtroom and granted the four th attorney’s request to withdraw. A fifth lawyer was appointed, whom Edward s likewise rejected. The court released this attorney as well and appointed a sixth lawyer to represent Edwards. The day before trial, Edward “fired” his si xth lawyer, prompting c ounsel to file a motion to withdraw. Edwards’s belliger ence, counsel explained, had irre trievably damaged the attorneyclient relationship. Edwards erupted with a ve rbal attack on his couns el, and the court again ordered Edwards removed from the courtroom. The court then denied counsel’s motion to withdraw, saying Edwards had delayed the proc eeding long enough. The trial would go forward the next day, the court ruled, with present counsel in attendance. On the morning of trial, Edwards advised the court that he wanted to fire his counsel and “proceed without a lawyer today.” The court questioned Edwards to ensure he understood the “advantages of continued legal representation” and that, with or without counsel, there would be no continuance of the trial. Edwards answered the court’s questions, prof essing to appreciate the risks of pro se representation, his obligation to follow the rules, his inability to solicit assistance from the court, and his duty to behave in the courtroom. After an extensive dialogue, the court concluded with the question: “Now, you still want to represent yourse lf?” “Yes,” Edwards replied. The court then held: Okay. I’m not going to let you. Y ou’re not competent to represent yourself. Yes, I mean you’re competent as an individual, but- 3 - you’re not competent to handle a ca se before a jury that you can potentially get life in the penitentiary. You need legal representation. Based on your responses, I’m not going to do that. . . . [H]e had no legal training to understand motions and all the other things that he needs to be able to do, again, to defend himself in a case where he could potentially get life in the penitentiary. My ruling is that he’s not competent to represent himself. Competent to stand trial, but not to represent himself. After Edwards unsuccessfully asked the court to reconsider, the cas e proceeded to trial with the jury finding him guilty on both charges. Edwards filed a petition for appeal on several grounds. We granted an appeal solely on the question whether the trial c ourt erred in denying his request for self-representation. 1
II.
A. T HE F ARETTA R IGHT OF S ELF -R EPRESENTATION The Sixth Amendment guarantees a criminal de fendant “the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This textual right, it has been held, “ implies” the concomitant right to be unassisted by c ounsel. Faretta v. California , 422 U.S. 806, 821 (1975). The unique right to appear pro se , known as the Faretta right, applies only when a defendant “truly wants to do so.” Id. at 817. Because a pro se defense “usually increases th e likelihood of a trial outcome unfavorable to the defendant,” McKaskle v. Wiggins , 465 U.S. 168, 177 n.8 (1984), courts scrutinize the bona fides of the defendant’s reque st as well as his manner of making it. Despite its constitutional rank, however, “the right to se lf-representation is not absolute.” Martinez v. Court of Appeal , 528 U.S. 152, 161 (2000).

1 We denied Edwards’s petition for appeal seek ing review of the trial court’s denial of a pretrial suppression motion (Question I of the petitio n), the denial of a motion to strike made at trial (Question II of the peti tion), the admission of chain-of -custody evidence challenged by Edwards as insufficient (Question IV of the pe tition), and a denial of Edwards’s request for admission into evidence of a warrant for hi s arrest (Question V of the petition).- 4 - To be successful, a Faretta request must be (i) timely, (ii) clear and unequivocal, and (iii) “voluntarily, knowingly, and intelligen tly made.” Thomas v. Commonwealth , 260 Va. 553, 558, 539 S.E.2d 79, 82 (2000) (footnote omitted) (employi ng criteria outlined in United States v. Frazier-El , 204 F.3d 553, 558 (4th Cir. 2000), which “d etailed the requirements for a valid assertion of the right of self-representation”); see also United States v. Bush , 404 F.3d 263, 271 (4th Cir. 2005). Aware of the subterfuges that sometimes accompany Faretta requests, courts also insist that they not be used as a “t actic to secure delay,” Stockton v. Commonwealth , 241 Va. 192, 203 & n.3, 402 S.E.2d 196, 202 & n.3 (1991), or “for disruption, for distortion of the system, or for the manipulation of the trial process,” Frazier-El , 204 F.3d at 560 (citations omitted); see also United States v. Lawrence , 605 F.2d 1321, 1324-25 (4th Cir. 1979). Consequently, a trial court may “deny a reque st for self-representa tion when the request is made for purposes of manipulation because, in such cases, the request will not be clear and unequivocal.” Bush , 404 F.3d at 271. “A trial court must be permitted to distinguish between a manipulative effort to present particular argumen ts and a sincere desire to dispense with the benefits of counsel.” Id. (quoting Frazier-El , 204 F.3d at 560). For the same reason, a defendant shifting “back and forth in his pos ition with respect to self-repre sentation” may be found to have “forfeited his right to self-representation by his vacillating positions.” Stockton , 241 Va. at 203, 402 S.E.2d at 202 (quoting United States v. Bennett , 539 F.2d 45, 51 (10th Cir. 1976)); see also Bush , 404 F.3d at 272 (rejecting defendant’s Farettarequest as an “effort to manipulate and distort the trial process”).
B. T HE T RIAL C OURT ’ S R EASON FOR R EJECTING E DWARDS ’ S R EQUEST In this case, the trial court did not address any of the traditional concerns governing the assertion of the Faretta right of self-representat ion. The court instead said, “My ruling is that- 5 - he’s not competent to represent himself . Competent to stand trial, bu t not to represent himself.” In context, the court meant Edwards was not legally capable of handling “a case before a jury” in which he could “potentially get life in the peni tentiary.” Edwards “had no legal training,” the court noted, to help him understand the many “things that he needs to be able to do” to defend himself. “You need legal representa tion,” the court advised Edwards. At the outset, we take no issue with either the accuracy or the wisdom of the court’s observations. As experienced tr ial judges know all too well, “a pro se defense is usually a bad defense, particularly when compared to a defe nse provided by an experi enced criminal defense attorney.” Martinez , 528 U.S. at 161 (citing John F. Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years after Faretta , 6 Seton Hall Const. L.J. 483, 598 (1996)). The trial court’s instinctual desire to protect Edwards from himself can hardly be cr iticized as irreflective. It was, nonetheless, legally irrelevant. Under settled principles, a defendant’s “tec hnical legal knowledge” is not “relevant” to the Faretta judicial inquiry. Godinez v. Moran , 509 U.S. 389, 400 (1993) (quoting Faretta , 422 U.S. at 836); see also Thomas , 260 Va. at 560, 539 S.E.2d at 83. Though the defendant’s choice to appear pro se may be “ultimately to his own detrim ent,” it still “must be honored” no matter its imprudence. Thomas , 260 Va. at 560, 539 S.E.2d at 83 (quoting Faretta , 422 U.S. at 834). His legal “ability to represent himself ha s no bearing upon his competence to choose selfrepresentation.” Godinez , 509 U.S. at 400 (footnote omitted); see also Thomas , 260 Va. at 560, 539 S.E.2d at 83. Instead, “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Godinez , 509 U.S. at 399 (footnote omitted). The tr ial court, therefore, erred by denying Edwards’s Faretta request on the ground that he was not le gally competent to represent himself.- 6 - C. R IGHT R ESULT FOR THE W RONG R EASON That the trial court used erroneous re asoning does not mean, legally or logically, Edwards’s Faretta request necessarily should have been gr anted. A trial court can reach the right result, albeit for the wrong reason. See , e.g. , Whitley v. Commonwealth , 260 Va. 482, 492, 538 S.E.2d 296, 301 (2000); Black man v. Commonwealth , 45 Va. App. 633, 642, 613 S.E.2d 460, 465 (2005). The Commonwealth adva nces two reasons why, consiste nt with the correct legal standard, the Faretta request was properly denied. We find neither persuasive.
1. Timeliness of Edwards’s Pro Se Request As a matter of law, the Commonwealth asserts, Edwards waited too late to make a Faretta request. We disagree. A pro se request meets the timeliness requirement if made before “meaningful trial proceedings” have commenced. Muhammad v. Commonwealth , 269 Va. 451, 502, 619 S.E.2d 16, 45 (2005) (adopting standard employed by United States v. Lawrence , 605 F.2d 1321, 1325 (4th Cir. 1979)). “The federal courts which have examined the issue universally agree that an assertion of the right of self-representation, even as la te as the morning of trial, is timely as a matter of law if it precede s the seating of the jury.” Thomas , 260 Va. at 559, 539 S.E.2d at 82 (citations omitted). Though the time liness requirement may “vary from case to case,” id. (quoting Lawrence , 605 F.2d at 1325), we see no reason for any variance from the norm here. Edwards made his Faretta request on the morning of tria l, after his arraignment, but before voir dire of the jury or the introduc tion of the courtroom participants to the venire. No principled basis exists for ruling as a matter of law that Edwards made his request too late. Nor is there any suggestion that Edwards’ s request, though otherwise timely, was meant to throw off the timeliness of the trial itself. A court may reject even a timely Faretta request when used as “a tactic to secure delay” of the tr ial, even if the defendant expressly disclaims any intent to do so. Stockton , 241 Va. at 203 & n.3, 402 S.E.2d at 202 & n.3 (citing Fritz v.- 7 - Spalding , 682 F.2d 782, 784-85 (9th Cir. 1982)); see also Bush , 404 F.3d at 272; Frazier-El , 204 F.3d at 560; Lawrence , 605 F.2d at 1324. Here, however, Edwards requested permission on the morning of trial to “proceed without a lawyer today.” The court’s colloquy with Edwards reminded him there would be no continuance of the trial. Edwards said he understood but still wanted to represent himself. Given these facts, we cannot hold as a matter of law that Edwards’s
Faretta request would have affected the timeliness of the trial.
2. Clear & Unequivocal

⎯ Voluntarily, Knowingly & Intelligently Even if timely, the Commonwealth contends, Edwards’s Faretta request should have been denied because it was neither “clear a nd unequivocal” nor “knowingly, voluntarily, and intelligently” made. We find this argument plausible, but nevertheless one requiring in the first instance an exercise of factfinding discretion by the trial court. Whether a Faretta request is “clear and unequivocal” involves much more than simply measuring how emphatically it has been asserted. See Frazier-El , 204 F.3d at 558-59. Even a perfectly clear request can rest upon an equivoc ation, pivoting a trial co urt on the thin line “between improperly allowing the defendant to proceed pro se , thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating his right to self-representation.” Id. (citation omitted); see also Stockton , 241 Va. at 203, 402 S.E.2d at 202 (holding defendant “forfeited his right to se lf-representation by his vacillating positions” (quoting Bennett , 539 F.2d at 51)). In this respect, the “clear and unequivocal ” requirement not only protects a defendant from inadvertent waivers stemming from “occasi onal musings” about self-representation, it “also prevents a defendant from taki ng advantage of and manipulating the mutual exclusivity of the rights to counsel and self-re presentation.” Frazier-El , 204 F.3d at 558-59; see also Bush , 404 F.3d at 271. “In ambiguous situations created by a defendant’s vacillation or manipulation, we- 8 - must ascribe a ‘constitutional primacy’ to the righ t to counsel because this right serves both the individual and collective good, as opposed to only the individual interests served by protecting the right of self-representation.” Frazier-El , 204 F.3d at 559 (citations omitted); see also Bush , 404 F.3d at 271. The voluntarily-knowingly-intelligently require ment addresses related concerns over the defendant’s ability to understand the choice he is making. Before deciding to proceed pro se , a defendant “should be made aware of the dangers a nd disadvantages of self-representation, so that the record will establish that he know s what he is doing.” Iowa v. Tavor , 541 U.S. 77, 89 (2004) (quoting Faretta , 422 U.S. at 835). This requiremen t ensures the defendant “actually does understand the significance and consequences of a pa rticular decision and whether the decision is uncoerced.” Godinez , 509 U.S. at 401 n.12 (emphasis in original). The Commonwealth argues the circ umstances surrounding Edwards’s Faretta request prove its equivocating nature a nd demonstrate he did not unders tand what he was doing. From this perspective, Edwards did not “tru ly” want to represent himself. See Faretta , 422 U.S. at 817. What he really wanted was to fi re his sixth lawyer (h aving effectively dispatched the first five), and he only mentioned the pro se option as a means of securing that illegitimate goal. Taking the opposite perspective, Edwards claims he wa s wholly sincere in his desire to appear pro se , claiming it was the true source of his inability to maintain a working relationship with any of his prior court-appointed counsel. He had no intenti on of requesting substitute counsel; he simply wanted to proceed without any counsel. Given its singular focus on legal competence, the trial court did not resolve the factual disputes inherent in the “clear and equivocal ” and “knowingly, voluntarily, and intelligently” requirements. We certainly cannot do so on appeal. See Orndorff v. Commonwealth , 271 Va. 486, 505, 628 S.E.2d 344, 355 (2006) (finding “standard of appellate review” could not be- 9 - applied where “circuit court employed an improper legal standard in exercising its discretionary function”). Whether a defe ndant’s in-court colloquy with a trial judge “clearly and unequivocally” invokes the right of self-representation involves fact ual determinations difficult, if not impossible, to make from a si lent paper record. Fields v. Murray , 49 F.3d 1024, 1031 (4th Cir. 1995) ( en banc ). As the Fourth Circuit has explained: The clarity and unequivocality of a defendant’s expression is determined not only by the words he speaks, but by his way of speaking them and his manner and demeanor when he is speaking; undeniably, the same words can express different degrees of certainty depending on how they ar e spoken. A transcript of the state trial court proceed ings can reveal neither the way a defendant spoke when he indicated his desi re to represent himself nor the manner and demeanor he assumed at the time of this indication. Id. For the same reason, “the trial judge has the duty to determine whet her such a waiver is voluntarily and intelligently made, ‘and it would be fitting and appropriate for that determination to appear on the record.’” Thomas , 260 Va. at 560, 539 S.E.2d at 83 (citation omitted). While we review the ultimate Sixth Amendment question de novo , the “trial court’s factual findings are reviewed for clear error.” Id. ; see , e.g. , Stockton , 241 Va. at 203 n.3, 402 S.E.2d at 202 n.3 (deferring to trial judge who concluded defe ndant’s statement made in support of his pro se motion was “not made in good faith”).
D. A PPELLATE R EMEDY — S COPE OF R EMAND When asked directly what remedy he seeks on appeal, Edwards’s c ounsel confirmed that the “remedy he is seeking in th is appeal is a retrial in his pro se capacity.” “That’s what he is asking for, that’s what he wants,” counsel st ated. We cannot order that remedy, however, because the trial court never examined Edwards’s Faretta request under the correct legal standard or made any of the required predicate factual findi ngs. The right of self-rep resentation, after all,- 10 - “entails a waiver of the right to counsel,” Thomas , 260 Va. at 558, 539 S.E.2d at 82 (quoting Frazier-El , 204 F.3d at 558), a waiver of the sort we do not ordinarily presume. Nor can we simply review the facts de novo , as the Commonwealth seems to suggest, and reject as a matter of law Edwards’s request for a pro se retrial. Instead, we take a more measured appr oach. “Cases involving Sixth Amendment deprivations are subject to the gene ral rule that remedies should be tailored to the injury suffered from the constitutional violation and should not un necessarily infringe on competing interests.” United States v. Morrison , 449 U.S. 361, 364 (1981) (emphasis added); see also Rushen v. Spain , 464 U.S. 114, 118 (1983). A tailored remedy is “ one that as much as possible restores the defendant to the circumstances that would have existed had there b een no constitutional error.” United States v. Carmichael , 216 F.3d 224, 227 (2d Cir. 2000). Thus, we must “identify and then neutralize the taint” by calibrating the judi cial relief to the actua l harm shown. Morrison , 449 U.S. at 365. In this case, the actual harm is not simply that the trial court denied Edwards’s Faretta request

⎯ but that it denied the request using an in correct legal standard without making any of the predicate factual findings, one way or the othe r, required by the correct standard. In such circumstances, the proper appellate response is to vacate the convictions and remand the case to the trial court with instructions to conduct a hearing on the matter. 2

2 This remedy tracks the prevailing approach used in analogous situations. See , e.g. , Murray v. United States , 487 U.S. 533, 543-44 (1988) (vacating and remanding with instructions for trial court to apply correct legal principl es to facts presented by a suppression motion); United States v. Wade , 388 U.S. 218, 242 (1967) (vacating and remanding for trial court to apply correct legal standard in determining whether in -court identifications ha d independent origin); Orndorff v. Commonwealth , 271 Va. 486, 505, 628 S.E.2d 344, 355 (2006) (ruling the “proper remedy” was to remand the case to the trial court for “proper application” of the legal test); Thomas v. Commonwealth , 263 Va. 216, 233, 559 S.E.2d 652, 661 (2002) (vacating and remanding for trial court to “apply the proper test” when ruling on the motion).- 11 - If the trial court finds Edwards’s request satisfies the Faretta requirements, the court should order a retrial so that Ed wards may exercise his constituti onal right of self -representation.
See , e.g. , People v. Carson , 104 P.3d 837, 844 (Cal. 2005) (holding that retrial wa s required if trial court on remand finds defendant’s Faretta right was violated). 3 If the court concludes, based upon facts previously presented and those offere d upon remand, that Edwards’s request fails the
Faretta standard, the cour t should reinstate th e convictions. See , e.g. , Carson , 104 P.3d at 844. In either event, Edwards reta ins his right of appeal from the final judgment on remand. Id.
III. We vacate Edwards’s convictions and remand the case to the trial court for further proceedings consistent with this opinion. Vacated and remanded.

3 We do not mean to imply that Edwards cannot withdraw his Faretta motion on remand. He has that right. But that election, howe ver, would moot the need for a retrial. If he were “represented by lawyers at any new trial, he would not have vindicat ed the right of selfrepresentation upon which he premises his appeal from the denial of that right.” United States v. Johnson , 223 F.3d 665, 669 (7th Cir. 2000). To be sure, if a defendant “wants on remand exactly what he had in his first trial, namely representation by competent lawyers, it is difficult to understand what he lost by the denial of his moti on: he had at the first trial what he wants at the second.” Id.- 12 - Humphreys, J., concurring, in part, and dissenting, in part: Because I agree with the majority that the trial court erred in denying Edwards his constitutional right to self-re presentation, and because I also agree that the request to act pro se was timely made, I join in the majority’s analys is in sections II(A), II(B), and II(C)(1). However, because I believe that there is ample support in the record to support the trial court’s implicit finding that Edwards’ decision to re present himself was made knowingly, voluntarily, and intelligently, I respectfully dissent as to sections II(C)(2) and II(D) of the majority opinion, and instead would remand for a new trial at whic h Edwards can exercise his constitutional right to represent himself. The Commonwealth asks us to affirm the tr ial court’s denial of Edwards’ right to self-representation, arguing that Edwards’ wa iver was not voluntary, knowing, and intelligent. 4 The majority holds that in this case, the tria l judge focused solely on “legal competence,” and failed to make the requisite factual finding regard ing the validity of the waiver. The majority states that “[w]hether a defendant’s in-c ourt colloquy with a tria l judge ‘clearly and unequivocally’ invokes the right of self-representation involves fact ual determinations [that are] difficult, if not impossible, to make from a silent paper record.” Accord ingly, the majority holds that the “appropriate appellate response is to vacate the convictions” a nd remand for hearing to determine if the waiver was unequivocal, voluntar y, knowing, and intelligent. In my view, the record is anything but silent with regard to Edwards’ invocation of his right to self-representation. Accordingly, a fact-finding hearing is unnece ssary, and I would thus reverse and remand for a new trial.

4 The Commonwealth also argues that Edward s’ request was not timely made. I agree with the majority’s holding and analysis that this argument is without merit.- 13 - “An assertion of the ri ght of self-representati on [] must be (1) clear and unequivocal, (2) knowing, intelligent and voluntary, [and] (3 ) timely.” United States v. Frazier-El , 204 F.3d 553, 558 (4th Cir. 2000) (internal citations omitted). In order to be a clear and unequivocal request for counsel, the request must not be stated in uncertain terms or in an uncertain manner. See People v. Mogul , 812 P.2d 705, 709 (Colo. Ct. App. 1991). Here, Edwards asked the trial court, “is it any way I just sign my ri ghts away and withdraw my counsel and represent myself as long as I don’t disrupt and I understand what’s going on and mentally I’m capable and I take the time, then may I represent myself? [sic]” The trial co urt then stated, “You just indicated to me this morning that you want to proceed without a lawyer today. Is that correct?” Edwards responded, “Yes, sir.” To determine whether the demand for self -representation is a valid, knowing, and voluntary waiver of the right to c ounsel, the court must engage th e defendant in a conversation to explain the consequences of proceeding pro se , and to make the defendant aware of the dangers and disadvantages of self-representation. See Faretta v. California , 422 U.S. 806 (1975). It is only after such dialogue that a trial court can determine whet her the waiver is knowing and voluntary, the request for self-representation is unequivocal, and the defendant “knows what he is doing and his choice is made with eyes open.” Adams v. United States , 317 U.S. 269, 279 (1942) (citing Johnson v. Zerbst , 304 U.S. 458, 468-69 (1938)). Here the record contains a long and specifi c colloquy between Edward s and the trial court regarding his request to represent himself. The tr ial court stated that, “before going any further, I want to be sure that you fully understand the cons equences of what you are choosing to do.” The trial court then asked Edwards his age and the hi ghest grade in school that he completed. The trial court also acknowledged that it had reviewed Edwards’ psyc hological evaluation regarding his competency to stand trial. Next the trial co urt asked Edwards if he was “familiar with this []- 14 - criminal justice system,” if he knew and unders tood the charges against him and that he could get life in the penitentiary for his crimes, if he knew or had studied courtroom procedure, and if he knew that there were technical and legal i ssues which could affect his case. Edwards responded affirmatively to each question. The trial court continually warned Edward s that “most people who are charged with serious crimes choose to be represented by counsel ,” that the court would appoint counsel if he so chose, that “in [his] experience, all [his] y ears on this bench, even la wyers in your position are represented by counsel,” and that “while you may be legally competent to represent yourself, if you choose to do so, you do so at your own risk.” The following discussion then took place: [TRIAL COURT]: Do you understa nd everything I have said to you? EDWARDS: Yes, I do, sir. [TRIAL COURT]: Any questions about what I said to you? EDWARDS: No, sir. [TRIAL COURT]: Now, you stil l want to represent yourself?
EDWARDS: Yes. The trial court persistently warned Edward s of the pitfalls of self-representation, and Edwards acknowledged that he under stood the consequences of his c hoice to waive his right to counsel. Given this extensiv e colloquy between the trial co urt and Edwards regarding the disadvantages of exercising his right to self-representation, it cannot be said that his decision to act as his own attorney was anything but “knowi ng.” There is not a single unequivocal response, nor is there any indication that Edwards is unsure of the consequences of his actions. Moreover, his repeated and unambiguous insistence that he wished to act as his own counsel amply demonstrates both the “unequivocal” and “voluntary” nature of his decision.- 15 - Finally, judges and attorneys are intimat ely familiar with the numerous rules and procedural intricacies that have evolved over time to ensure fairness and decorum in courtroom proceedings. Given our training and experience, it is often difficult — as it apparently was for the trial court here — to concl ude that anyone who decides to re present their own interests in a courtroom on a serious criminal offense is making an “intelligent” decision. Nonetheless, in the context of constitutional jurisprudence, an “intelligent” decision means one that is “considered.”
See Faretta , 422 U.S. at 835 (stating “in order to repr esent himself, the accused must knowingly and intelligently forgo those relinquished bene fits.” Thus, “although a defendant need not himself have the skill and experience of a lawy er in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will esta blish that he knows what he is doing and his choice is made with eyes open.” (internal cita tions omitted)). Considering the trial court’s explicit finding that he was competent to make such a decision, and considering the information Edwards had available to him when he made the decision, in my view, the record here supports only one reasonable conclusion. Th at is, that Edwards’ decision was considered, deliberate, and therefore “intelligent.” Thus, contrary to the majority’s assertion that we have a “silent record” regarding the validity of the waiver, I believe th at the record fully supports the implicit factual finding that the trial court accepted Edwards’ waiver as clear, unequivocal, knowing, intelligent, and voluntary. This finding is magnified by what the majority te rms as the “trial court’s instinctual desire to protect Edwards from himself,” thus leading it to a “legally irrelevant” an d erroneous conclusion. The inescapable conclusion is that the trial cour t denied Edwards his Sixth Amendment right to self-representation based solely upon the fact th at it found Edwards lacking in the professional skills to “handle a case be fore a jury that you can potentially ge t life in the penitentiary.” The- 16 - trial court summarized its laudable, but constitu tionally infirm, reasoning by succinctly stating, “You need legal representation.” 5 The record supports the conclusion that the trial court engaged in a sufficient dialogue with Edwards to determine that Edwards’ waiv er of his right to se lf-representation was

5 The majority contends that by focusing on “competence,” the trial court erred in applying the correct legal standard for a Faretta inquiry. In the case re lied upon by the majority, Frazier-El , 204 F.3d at 558, a trial judge found the defe ndant, Frazier-El “not competent because of arguments he made to represent hi mself.” The Fourth Circuit stated, If this particular statement by the court was intended as an explanation for its refusal to permit Frazier-El to proceed pro se , as Frazier-El now contends, it was an error of law. See Godinez [v. Moran] , 509 U.S. [389,] 399 [(1993)] (“ The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself”); Faretta , 422 U.S. at 836 (defenda nt’s technical legal knowledge “not relevant to an a ssessment of his knowing exercise of the right to defend himself”). But we must assume that the court’s statement . . . refers only to the legitimacy of the request and the arguments advanced, rather than to Frazier-El’s ability to make a knowing election of self -representation and waiver of counsel. This assumption is confir med by what the court said next: “Frazier-El understands th e nature of the proc eedings and is able, if he so desires — he is an inte lligent man — to assist in his own defense, if he so desires.” Id. at 560-61. In other words, the Fourth Circuit affirmed the trial court’s denial of Frazier-El’s request because “[t]he circumst ances surrounding Frazier-El’s purpor ted waiver of his right to counsel and the assertion of his right to proceed without counsel in this case suggest more a manipulation of the system than an unequivocal desi re to invoke his right of self-representation.” Id. at 560. Thus, taking the record as a whole, the trial court was “justi fied, when confronted with Frazier-El’s vacillation be tween his request for substitute counsel and his request for self-representation, in insisting that Frazie r-El proceed with appointed counsel.” Id. Unlike in Frazier-El , there is no finding by the trial c ourt that Edwards’ request was an attempt to manipulate the system. Although he had been represented by several lawyers, and was difficult to get along with, th e record does not reflec t that his request was used as a tactic for delay, see United States v. Lawrence , 605 F.2d 1321, 1324-25 (1979), for disruption, see Faretta , 422 U.S. at 834 n.46, for distor tion of the system, see United States v. Singleton , 107 F.3d 1091, 1102 (1997), or for manipulation of the trial process, see Lawrence , 605 F.2d at 1325. Accordingly, we can assume that the trial j udge found that the waiver was valid, but denied Edwards the right to self-repres entation based solely upon Edwards’ lack of legal expertise.- 17 - unequivocal, voluntary, knowing, and intelligent. But see Commonwealth v. Chapman , 392 N.E.2d 1213, 1218 (Mass. App. Ct. 1979) (reversing and remanding because the trial court made no effort to inquire into the circumstan ces of the defendant’s assertion of his pro se right, nor did it establish on the record any legitimate basi s for denying the defendant’s request); State v. Thornblad , 513 N.W.2d 260, 264 (Minn. Ct. App. 1994) (r eversing and remanding for a new trial because the district court’s inquiry was not sufficient to determine that the defendant’s waiver of the right to the assistance of c ounsel was not knowing and intelligen t). Because I believe that the trial court implicitly found that Edwards validly a sserted his constitution al right to represent himself, the trial court erred in denying him that right based solely upon the potential life sentence and the trial court’s pe rception of his “need” for represen tation. Accordingly, I believe a hearing to determine th e validity of Edwards’ waiver is unne cessary. He has validly and timely waived his Sixth Amendment right to counsel, and I would simply remand for a new trial at which Edwards should be permitted to represent himself. 6

6 Many other jurisdictions reverse and remand for a new trial to remedy a trial court’s error in denying a defendant his Sixth Am endment right to self -representation. See Akins v. State , 955 S.W.2d 483 (Ark. 1997); Colorado v. Mogul , 812 P.2d 705 (Colo. Ct. App. 1991); Stigars v. Delaware , 674 A.2d 477 (Del. 1996) ; Michigan v. Overby , 247 N.W.2d 857 (Mich. 1976); Thornblad , 513 N.W.2d 260.