Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.
RANDOLPH GEORGE COKES, JR.
v. Record No. 091507 OPINION BY JUSTICE DONALD W. LEMONS
June 10, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we consider whether the trial court erred
when it denied the motion of Randolph George Cokes, Jr.
(“Cokes”) to withdraw his waiver of his right to a jury trial
in the Circuit Court of the City of Richmond on the day of his
scheduled bench trial.
I. FACTS AND PROCEEDINGS BELOW
Cokes was charged with possession of marijuana in
violation of Code § 18.2-250.1, as well as possession of heroin
and cocaine in violation of Code § 18.2-250(A)(a). On July 3,
2008, Cokes appeared before the trial court. 1 During that
appearance, counsel for Cokes represented that during the
preliminary hearing of April 23, 2008, Cokes requested a jury
trial. Counsel then apologized to the trial court “for setting
it for a bench [trial].”
1
It appears from the record that the trial court and the
Commonwealth expected Cokes’ July 3, 2008 appearance to be a
bench trial. However, the trial court agreed with counsel for
Cokes that Cokes was not sufficiently prepared to proceed to
trial on that day.
Prior to scheduling Cokes’ jury trial, the Commonwealth
moved the trial court to revoke Cokes’ bond. In support of its
motion, the Commonwealth cited the fact that Cokes had been
subsequently charged with additional drug-related offenses
while released on bond.
The trial court temporarily set aside the question of bond
revocation, instead focusing on a suitable trial date. The
trial court inquired of Cokes’ counsel, “[w]hat is your best
estimate of it going forward as a jury trial, your attorney
assessment, just so I can schedule properly?” Counsel conceded
that his only contact with Cokes was a brief discussion with
him at the preliminary hearing, and another immediately prior
to the present appearance. He concluded that he “ha[dn’t] had
a real chance to evaluate that yet.”
The trial court then admonished Cokes and his counsel that
if it were to set a jury trial, the trial court would “double
or triple book it,” adding that the trial court was likely to
revoke Cokes’ bond. The trial court noted the practical
consequence of these actions to Cokes and his counsel: if the
case were double- or triple-booked, “if [Cokes is] innocent, he
will remain in jail much longer . . . than he needs to” in the
event his case is postponed due to a scheduling conflict.
Cokes addressed the trial court himself, acknowledging
that he “asked them in the lockup for a jury trial.” The trial
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court responded, “[y]ou’re going to get one. I just want to
make sure you understand what a jury trial is.” The trial
court then conducted a colloquy with Cokes, identifying the
material differences between a bench trial and a jury trial.
At the conclusion of the colloquy, the clerk offered August 7,
2008 as a possible trial date.
Counsel for Cokes then stated, “[y]our Honor, Mr.
Cokes . . . has just informed me that he is prepared to go
forward today with the bench trial. I have had very limited
opportunity to speak with him about the – his right to
testify.” The trial court responded,
I don’t think that’s advisable, sir, because I
don’t think you’ve had enough time to talk to
your attorney. I can schedule this quickly for
a bench trial, but I don’t think it’s in your
best interest if your attorney hasn’t had enough
time to talk to you. All right. And you’ve got
other charges pending anyway.
After discussing whether August 7, 2008 was a viable trial date
for the parties, the trial court asked Cokes if he wished to be
tried “in front of the judge or a jury.” Cokes responded,
“[i]n front of the judge.”
Once the trial date was established, the trial court again
addressed Cokes: “I’ve discussed with you the differences
between a judge trial and jury trial. And you discussed it
with your attorney; is that correct?” Cokes acknowledged that
he had, and he again expressed his desire to be tried by a
3
judge. The trial court then revoked Cokes’ bond on the grounds
that he violated the conditions of his bond when he was charged
with additional drug-related offenses. On July 9, 2008, the
trial court entered an order continuing Cokes’ case to August
7, 2008. In that order, the trial court acknowledged that
Cokes “voluntarily waived his right to a trial by jury” on the
charged offenses. 2
On August 7, 2008, following the clerk’s reading of the
charges he faced, the trial court asked Cokes whether he wished
to be tried by the judge or a jury. After conferring with his
attorney, counsel for Cokes addressed the trial court. He
acknowledged that Cokes had initially requested a jury trial at
the July 3, 2008 appearance, but then waived his right to a
jury trial following a colloquy with the trial court. Counsel
then stated, “I informed him that he already waived on the
record, but as we’re still on the record, he would like to say
he would want to be tried by a jury at this time. And I
understand he has waived on the record.”
The Commonwealth responded, “Judge, I have all our
witnesses here and are ready to go forward based on his prior
waiver and decision to have a bench trial today.” The trial
court denied Cokes’ motion to withdraw his waiver of his right
2
During oral argument before this Court, Cokes
acknowledged that he made a voluntary and knowing waiver of his
right to a jury trial during his July 3, 2008 appearance.
4
to a jury trial, noting, “I think that asking for a jury trial
on the – right at the moment of trial is too late once he’s
waived a jury trial.” The case was tried without a jury and
the trial court found Cokes guilty of all charges.
The Court of Appeals, per curiam, denied Cokes’ petition
for appeal. Cokes v. Commonwealth, Record No. 2407-08-2 (April
23, 2009). Cokes timely filed his notice of appeal and we
granted an appeal on the following assignment of error:
1. The Court of Appeals erred by holding that the trial court
did not abuse its discretion by denying Cokes’ request to
withdraw his jury trial waiver and to proceed with a jury
trial.
II. ANALYSIS
A. Standard of Review
On the day Cokes’ bench trial was set to begin, Cokes made
a motion to withdraw his waiver of his right to a jury trial.
The trial court denied Cokes’ motion. “[O]nce a defendant makes
a voluntary and intelligent waiver of [his right to a jury
trial], his request to withdraw that waiver and be tried by a
jury is subject to the circuit court’s discretion.”
Commonwealth v. Williams, 262 Va. 661, 670, 553 S.E.2d 760, 764
(2001). “In evaluating whether a trial court abused its
discretion . . . we do not substitute our judgment for that of
the trial court. Rather, we consider only whether the record
fairly supports the trial court’s action.” Grattan v.
5
Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)
(quotation marks omitted).
B. Withdrawal of a Waiver of the Right to a Trial by Jury
“The right of a defendant to a jury trial in a criminal
case is secured by Article I, § 8 of the Constitution of
Virginia,” Williams, 262 Va. at 670, 553 S.E.2d at 764, the
Sixth Amendment to the United States Constitution, and by
statute. See Code §§ 19.2-260 and 8.01-336. We have
previously observed, “[t]he right to a jury trial is one of the
cornerstones of our legal system.” Norfolk Southern Railway
Co. v. Bowles, 261 Va. 21, 28, 539 S.E.2d 727, 731 (2001).
Relying upon the analytical framework we first adopted in
Thomas v. Commonwealth, 218 Va. 553, 238 S.E.2d 834 (1977), in
Williams we stated the general rule regarding the withdrawal of
a waiver of jury trial:
Whether one accused of crime who has
regularly waived a jury trial will be permitted
to withdraw the waiver and have his case tried
before a jury is ordinarily within the
discretion of the [circuit] court. The rule, as
expressed in some cases, is that if an accused’s
application for withdrawal of waiver is made in
due season so as not to substantially delay or
impede the cause of justice, the trial court
should allow the waiver to be withdrawn.
The authorities are uniformly to the effect
that a motion for withdrawal of waiver made
after the commencement of the trial is not
timely and should not be allowed. Whether a
motion for the withdrawal of a waiver of trial
by jury made prior to the actual commencement of
the trial of the case is timely depends
6
primarily upon the facts and circumstances of
the individual case. Where there is no showing
that granting the motion would unduly delay the
trial or would otherwise impede justice, the
motion is usually held to be timely. In some
cases, however, it has been held that a motion
for withdrawal of a waiver of jury trial,
although made prior to the trial, was not timely
and was properly denied by the trial court, the
decisions in these cases being based primarily
upon the ground that granting the motion would
have resulted in an unreasonable delay of the
trial.
262 Va. at 670, 553 S.E.2d at 764 (quoting Thomas, 218 Va. at
555, 238 S.E.2d at 835) (emphasis added).
In Thomas, although the motion to withdraw the waiver of a
jury trial was made eleven days prior to the trial date, the
trial court did not act on the motion at that time. 218 Va. at
556, 238 S.E.2d at 835. Upon weighing the facts and
circumstances in light of the defendant’s constitutional and
statutory rights to a jury trial, we held that the trial court
abused its discretion when it denied the defendant the right to
withdraw his waiver of a jury trial. Id. at 556, 238 S.E.2d at
836. Central to that holding was the fact “[t]he record [wa]s
devoid of any showing that a jury could not have been impaneled
for the trial on December 3; that the motion was made solely
for the purpose of delay; and that a continuance of the cases
. . . would unduly delay the trial or impede the cause of
justice.” Id. at 556, 238 S.E.2d at 835-36.
7
Similarly, the record in this case fails to disclose that
the motion was made solely for the purpose of delay or whether,
in the ordinary course of the circuit court’s operation, Cokes’
request for a jury trial could have been accommodated at the
time it was made. The record also fails to disclose the number
of witnesses who would be inconvenienced by the continuance, or
the difficulty rescheduling the trial would present to those
witnesses. Instead of establishing that granting Cokes’ motion
“would unduly delay the trial or would otherwise impede
justice,” id. at 555, 238 S.E.2d at 835, the record leaves this
Court to speculate whether Cokes’ request could have been
honored in a timely fashion, thereby vindicating his
constitutional and statutory rights without impeding the
administration of justice. In the absence of such evidence, we
hold that the trial court abused its discretion when it denied
Cokes’ motion to withdraw his waiver of his right to a jury
trial.
Our analysis today does nothing to undermine the broad
discretion vested in trial courts to determine whether justice
would be impeded by granting a defendant’s motion to withdraw
his waiver of a jury trial. It merely confirms that the basis
of that determination must be established on the record. In
Williams, our last decision addressing this issue, we upheld
the trial court’s denial of a defendant’s motion to withdraw
8
his waiver of a right to a jury trial. 262 Va. at 671, 553
S.E.2d at 765. Unlike the records in Thomas and in this case,
the record in Williams “show[ed] that if Williams had been
allowed to withdraw his jury trial waiver and be tried by a
jury, completion of the trial could have been substantially
delayed and the cause of justice impeded.” Id.
This finding was based upon evidence that Williams’ case
“originally had been set for trial ten months earlier, and
already had been substantially delayed during the several
months that Williams remained a fugitive.” Id. Further, the
Commonwealth “intended to call 11 witnesses to testify” and the
victim “was leaving the United States the following Monday to
return to his native country for three months.” Id. Based on
those facts and circumstances, we affirmed the trial court’s
determination that granting Williams’ motion would impede the
cause of justice, notwithstanding the defendant’s contention
that the trial court recognized that “the trial would [not]
have to be rescheduled to another day if the court granted
Williams’ request,” but rather “Williams’ request for a jury
trial [might only] delay the case for ‘several hours.’” Id. at
669-70, 553 S.E.2d at 764.
III. CONCLUSION
Because the trial court abused its discretion when it
refused Cokes’ request for a jury trial, we will reverse the
9
judgment of the Court of Appeals and remand the case to the
Court of Appeals with directions to remand to the trial court
for a new trial if the Commonwealth be so advised.
Reversed and remanded.
SENIOR JUSTICE CARRICO, dissenting.
I respectfully dissent. I do not agree that the circuit
court abused its discretion in denying the defendant's motion
for a jury trial made at the very moment his trial was to begin
and after he had voluntarily waived his right to such a trial.
True, this was the waiver of a cornerstone right, but the
courts uphold waivers of such rights every day. To me, this is
more a case of a defendant trying to play fast and loose with
the court system in order to delay being tried than it is a
case of an abuse of judicial discretion. I would affirm the
judgment of the circuit court.
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