Mark Todd Showalter v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Salem, Virginia
MARK TODD SHOWALTER
MEMORANDUM OPINION * BY
v. Record No. 1718-00-3 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
Randolph D. Eley, Jr., for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Randolph A. Beales,
Attorney General, on brief), for appellee.
Mark Todd Showalter appeals his convictions, after a jury
trial, for abduction, sodomy, attempted sodomy, and two counts
of rape. Showalter contends that the trial court erred in
finding that he unequivocally asserted his right to represent
himself in the proceedings, in ordering him to appear without
counsel during a pretrial hearing, and in ordering that he be
shackled and gagged during sentencing proceedings. Because
Showalter did not properly preserve these issues for appeal, we
will not consider them as a basis for reversal and affirm the
judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Background
Showalter was arrested on July 21, 1998 on charges of
abduction, sodomy, attempted sodomy, and two counts of rape. 1
On January 28, 1999, Showalter signed a form requesting the
appointment of counsel. As a result, the court appointed
Raphael B. Hartley, III, to represent him.
However, on September 22, 1999, Showalter filed a motion
with the court requesting permission to represent himself in
both the proceedings involved in this appeal, as well as the
companion proceedings against him. Showalter also filed a
number of documents pro se during the months of September and
October of 1999. On October 14, 1999, Showalter wrote a letter
to Hartley informing him that he no longer wished for Hartley to
serve as counsel in his case and that Hartley was "fired."
Showalter noted in the letter, "I will proceed, pro se defense,
and you are relieved completely from representing I [sic]."
On October 22, 1999, the court conducted a hearing on
Showalter's motion to proceed pro se. Showalter and his attorneys
for both matters were present. During the hearing, Showalter
1
Showalter was also arrested on other charges. Those
charges were breaking and entering with the intent to commit
rape and attempted rape, involving a different victim. Many of
the pretrial proceedings addressed issues concerning both the
charges at issue, as well as these separate charges. However,
Showalter was arraigned, tried and convicted on the separate
charges in a different proceeding. Showalter has filed a
separate appeal concerning the convictions resulting from this
companion proceeding. See Showalter v. Commonwealth, Record
No. 2224-00-3 (Memorandum opinion, this day decided).
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again insisted that he be allowed to proceed pro se. However,
after some discussion with Showalter concerning the seriousness
and complexity of the charges, the trial court denied his motion
to proceed pro se.
Subsequently, on October 28, 1999, the trial judge had
Showalter brought before the court without notice to counsel,
who were not present. The trial judge began by stating
Mr. Showalter, I had the Sheriff's
Department bring you over just for a moment
because I wanted to be absolutely sure that
you understand how serious the charges are
against you, and I understand that you do
not want any attorney to represent you, I
understand that. We went through that the
other day.
* * * * * * *
But due to the complexity of the charges
against you and the complications and
expertise that is needed to adequately
defend you, as I told you the other day, I
feel like you need the help of an attorney.
They're [sic] highly complex technical
matters. I'm not going to force you to seek
their advice. I am going to have them on
stand-by and I will have them present in the
Courtroom and I will have them available to
you at all times between now and your trial
date, should you so wish to, to use them and
I can't suggest strongly enough that you
should, but I can't make you do it and I'm
not going to make you do it.
In response, Showalter replied, "yes," but indicated that he
could not properly represent himself if he remained handcuffed.
The trial judge agreed to take Showalter's request to remove the
handcuffs under advisement.
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Thereafter, Showalter acted pro se during two proceedings in
November of 1999, three in January of 2000, as well as a
proceeding on March 7, 2000. In addition, Showalter filed a
number of pretrial motions and letters with the court on his own
behalf during that time. At least one stand-by counsel appeared
during each of these pretrial hearings. During many of these
proceedings, the trial judge reiterated his concerns to Showalter
about his self-representation and confirmed Showalter's resolve to
continue on his own behalf.
On March 20, 2000, the trial judge once again had Showalter
brought before the court, apparently without stand-by counsel, to
determine yet again whether Showalter wished to continue pro se.
The trial judge restated his concerns to Showalter and then asked
him if he still wished to proceed pro se, and if he still wished
to be tried by a jury. However, Showalter did not give the trial
judge a clear response. Instead, he raised a number of complaints
concerning discovery matters. Showalter ultimately stated, "In
order for me to have received the four (4) elements of my
discovery motion, which [the Commonwealth's Attorney] failed to do
and you failed and the low court failed, then I have all of the
right in the world to object to answer that until they disclose
it." The trial judge responded that he would "assume based upon
[his] answers that [he] still wish[ed] to proceed without
representation." The trial judge also stated that since the
Commonwealth had requested a jury, the issue of whether Showalter
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wished to waive the jury was moot. Showalter responded that he
could not "represent [himself] in front of a jury." The trial
judge reminded him that Hartley would serve as stand-by counsel,
to which Showalter replied, "Attorney on stand-by I can show that
is corrupt within the system [sic]."
Showalter was subsequently tried, with stand-by counsel
present, on March 29 and 30, 2000. During the trial, Showalter
consulted his stand-by counsel on several occasions, at the
court's urging. He also cross-examined the Commonwealth's
witnesses and called witnesses on his own behalf. The jury
ultimately convicted Showalter on each of the charges.
During the penalty phase of the trial, Showalter was
consistently disruptive, as he had been during the trial itself. 2
Further, he consistently disobeyed orders from the trial judge
concerning his conduct. When the Commonwealth attempted to make
its closing argument, Showalter continued to be disruptive. The
trial judge warned him once again that if he said "one more
word . . . [he would] be gagged." Showalter responded, "You do
what you got to do." The trial judge then ordered, "Gag the
defendant, please."
2
For example, Showalter repeatedly interrupted witnesses
during their testimony, including the victim. He also assaulted
police officers outside of the courtroom, apparently on more
than one occasion. In light of this, he was often restrained
during the proceedings at issue. Moreover, after the trial
judge handed down his sentence, Showalter stated, "I will stand
up after the son-of-a-bitch leaves."
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At that time, the trial judge excused the jury and Showalter
was forcefully removed from the courtroom after a "physical
outburst." When Showalter was returned to the courtroom, he
remained restrained in his chair and gagged during the remainder
of the proceeding. The trial judge stated for the record that it
had "bound Mr. Showalter for his repeated interruptions and
disallowing the Commonwealth to conclude their argument as well as
other statements made after the Court had advised him to please
remain quiet until such time as he had a chance to testify if, in
fact, he chose to do so." The jury ultimately recommended the
maximum sentence on each of the charges.
II. Sixth Amendment Right to Counsel
On appeal, Showalter argues that the trial judge denied him
his Sixth Amendment right to counsel when he had him brought
before the court, without counsel, on October 28, 1999.
Specifically, Showalter asserts that the trial court denied his
motion to represent himself during the October 22, 1999 pretrial
hearing. Thus, he contends that the trial court violated his
right to counsel during the October 28, 1999 hearing by failing
to notify his counsel of the proceeding.
We first note that regardless of whether Showalter was
properly representing himself during the October 28, 1999
hearing, or whether he was represented by counsel, he has failed
to demonstrate on appeal that either he, or his counsel, raised
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an objection of this nature below. Rule 5A:18 provides that
"[n]o ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling . . . ." See
also McQuinn v. Commonwealth, 20 Va. App. 753, 755, 460 S.E.2d
624, 626 (1995) (en banc).
"The main purpose of requiring timely
specific objections is to afford the trial
court an opportunity to rule intelligently
on the issues presented, thus avoiding
unnecessary appeals and reversals. In
addition, a specific, contemporaneous
objection gives the opposing party the
opportunity to meet the objection at that
stage of the proceeding."
Ohree v. Commonwealth, 26 Va. App. 299, 307, 494 S.E.2d 484, 488
(1998) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d
164, 167 (1991)). We have repeatedly stated that we will not
consider the merits of an argument made for the first time on
appeal. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405
S.E.2d 630, 631 (1991). Further, "we will not search the record
for errors in order to interpret the appellant's contention [on
appeal] and correct deficiencies in a brief." Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Thus,
this issue is barred from our consideration pursuant to Rule
5A:18. See Rule 5A:18; see also Cottrell v. Commonwealth, 12
Va. App. 570, 574, 405 S.E.2d 438, 441 (1991) (noting this
procedural bar applies even to defendant's constitutional
claims).
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However, Rule 5A:18 provides for consideration of a ruling
by the trial court that was not properly objected to at trial
"for good cause shown or to enable the Court of Appeals to
attain the ends of justice." "'The ends of justice exception is
narrow and is to be used sparingly'" when an error at trial is
"'clear, substantial and material.'" Redman v. Commonwealth, 25
Va. App. 215, 220-21, 487 S.E.2d 269, 272 (1997) (quoting Brown
v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10-11
(1989)). "In order to avail oneself of the exception, a
defendant must affirmatively show that a miscarriage of justice
has occurred, not that a miscarriage might have occurred."
Michaels v. Commonwealth, 32 Va. App. 601, 608, 529 S.E.2d 822,
826 (2000) (quoting Redman, 25 Va. App. at 221, 487 S.E.2d at
272). Our review of the record here reveals no such good cause
or miscarriage of justice under the circumstances of this case.
Thus, we decline to invoke the exception.
III. Revocation of Pro Se Representation
Showalter next contends that the trial judge erred in
finding that he clearly and unequivocally waived his Sixth
Amendment right to representation. Showalter contends that he
revoked his waiver of representation on March 20, 2000, when he
informed the court that he was not able to represent himself in
front of a jury.
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Once again, however, Showalter has failed to demonstrate on
appeal that either he, or his stand-by counsel, raised an
objection of this nature below. Thus, this issue is not
properly before us and is also barred pursuant to Rule 5A:18,
unless Showalter can demonstrate good cause or an affirmative
miscarriage of justice. See Rule 5A:18; see also Michaels, 32
Va. App. at 608, 529 S.E.2d at 826. 3 We once again find no good
cause or affirmative miscarriage of justice demonstrated in the
record and decline to invoke the exception to Rule 5A:18.
IV. Restraint Before the Jury
Finally, Showalter contends that the trial judge erred in
forcing him to appear "bound and gagged before the jury during
the Commonwealth's remarks pertaining to sentencing . . . ."
Notably, Showalter concedes that his "conduct may have warranted
3
We note that on appeal, Showalter refers only to his
colloquy with the judge on March 20, 2000 as a basis for his
claim for error. However, Showalter also filed a motion for
continuance with the court on November 22, 1999, requesting
"time to search for an attorney that he may be able to hire,"
noting that he was dissatisfied with the present counsel
appointed to him. In addition, Showalter filed a motion styled
as a "Motion to Receive Effective Assistance of Counsel And to
Receive My Sixth Amendment Guarantee to the Right Towards the
Criminal Prosecution in Case Number: CR99015448-00 to –06," on
March 29, 2000, the day of his trial. However, both motions
address only Showalter's desire for an alternative to the
counsel then serving in a stand-by capacity. Neither motion
preserves any error with regard to Showalter's claim that he
revoked his earlier demand to proceed pro se, nor do the motions
or the trial court's related rulings demonstrate good cause or
an affirmative miscarriage of justice to warrant the exception
to Rule 5A:18.
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the court's order for restraint," but argues that his conduct
did not serve to "legitimize the cloud of prejudice created by
placing him in front of the jury." However, Showalter also
concedes that neither he, nor his stand-by counsel, raised any
objection to the court's action in this regard during the
proceedings below. Thus, this issue is also barred from our
consideration absent a showing of good cause or an affirmative
miscarriage of justice. See Rule 5A:18; see also Michaels, 32
Va. App. at 608, 529 S.E.2d at 826. Under the circumstances of
this case, we once again find no good cause or affirmative
miscarriage of justice and decline to invoke the ends of justice
exception to Rule 5A:18.
Finding no reason to merit the invocation of the ends of
justice exception with respect to any of the questions
presented, we decline to review them further and affirm
Showalter's convictions.
Affirmed.
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