On Appeal from the United States District Court for the Virgin Islands; D.C. Criminal No. 89-00093.
Greenberg, Cowen and A. Leon Higginbotham,*fn1 Circuit Judges.
HIGGINBOTHAM, JR., Senior Circuit Judge
Irving James appeals his conviction for first degree robbery and possession of an unlicensed firearm in the District Court of the Virgin Islands. Appellant claims that his Sixth Amendment right to assistance of counsel was unconstitutionally infringed upon when he was allowed to represent himself at trial without being fully apprised of the dangers of doing so. The appeal is from the district court's final order and judgment of commitment. This court has jurisdiction pursuant to 28 U.S.C. § 1291. Because we find that James knowingly and intelligently waived his right to counsel, we will affirm the district court's order and judgment of commitment.
On May 27, 1989, James was arrested in connection with the assault and robbery of Donald Riley in the parking lot of the Ramada Hotel in St. Thomas, Virgin Islands. On June 7, 1989, he was arraigned on a five-count information that charged him with 1) robbery in the first degree in violation of 14 V.I.C. § 1862(2); 2) assault in the first degree in violation of 14 V.I.C. § 295(3); 3) grand larceny in violation of 14 V.I.C. § 1083(1); 4) possession of an unlicensed firearm during the commission of a crime of violence in violation of 14 V.I.C. § 2253(a); and 5) possession of stolen property in violation of 14 V.I.C. § 2101(a). A Public Defender, Thurston McKelvin, was appointed to represent Mr. James and did so through the pre-trial proceedings up until the jury selection on the day of trial, July 24, 1989. On that day, James appeared before the court with Mr. McKelvin and expressed his desire to discharge his court-appointed counsel and represent himself at trial. Before granting appellant's request to proceed pro se, the trial judge ascertained that James did not wish to accept the plea bargain offer made by the government and engaged in a lengthy discussion with James about the perils of self-representation.*fn2 Following the trial, during which James was allowed to represent himself, the jury returned a verdict of guilty on the first degree robbery and possession of an unlicensed firearm charges. On November 10, 1989, James was sentenced to fifteen years imprisonment for the robbery count and eight years for the firearm possession count, the sentences to be served consecutively. On August 10, 1989, appellant filed a timely pro se notice of appeal. By order of this court, dated November 29, 1989, a Federal Public Defender was appointed to represent appellant on appeal.
The question presented by this appeal is whether the trial court's colloquy was sufficient to ensure that James' waiver of counsel was voluntary, knowing and intelligent. The Sixth and Fourteenth Amendments guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. See Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). This constitutional right also includes the converse guarantee that a defendant has the right to waive the assistance of counsel and proceed pro se when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562 (1975). Because of the dangers and disadvantages inherent in defending oneself, it is an absolute requirement that a defendant's waiver of his right to assistance of counsel is a voluntary, as well as knowing and intelligent relinquishment or abandonment of a known right or privilege. See Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1884, 68 L. Ed. 2d 378 (1981) (citations omitted).
As this court has explained previously, if on the eve of trial, a defendant seeks new counsel or, in the alternative, seeks to represent himself, the district court must engage in two lines of inquiry. McMahon v. Fulcomer, 821 F.2d 934, 942 (3d Cir. 1987); United States v. Welty, 674 F.2d 185, 187-88 (3d Cir. 1982). First, the court must decide if the reasons for the defendant's request for substitute counsel constitutes good cause and are sufficiently substantial to justify a continuance of the trial in order to allow new counsel to be obtained. Id. This should involve at least some inquiry as to the reason for defendant's dissatisfaction with his existing attorney. Id. Following such inquiry, if the court determines that good cause for substitution of counsel does not exist, the defendant then is left with the choice of continuing with existing counsel or proceeding to trial pro se. Id.
In the instant case, the trial court was not presented with a request to be allowed to obtain substitute counsel; James sought only to be allowed to defend himself.*fn3 This did not remove the district court's burden to make, at least, a minimal inquiry as to the basis for James' objection to counsel. We find, in this case, that the district court's inquiry was sufficient to determine the reasons for James' dissatisfaction and that good cause for substitution of counsel did not exist. During the pretrial colloquy, James expressed the view that his counsel exhibited a lack of enthusiasm about his case and that he believed that "counsel is quite inadequate in dealing with the issues of my case." The court explained to James that the nature of the charges and penalties against him were "very, very serious." (App. at 13). The court also informed James of counsel's qualification to represent him:
COURT: Now, you understand you have a right to have Mr. McKelvin represent you. He is with the Public Defender's Service and he is a very capable lawyer and has appeared in court numerous times and tried numerous cases. He has had some very good results. But I understand that you want him terminated and you are prepared to proceed on you own, is that correct.
(App. at 14). At no point during the colloquy did James advance any reason that might have constituted good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict with his attorney. See Welty, 674 F.2d at 188. The district court was correct in finding that James' judgment as to his counsel's abilities and enthusiasm, standing alone, did not constitute good cause to justify a continuance to obtain substitute ...