Present: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 003033 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 2, 2001
HERBERT WILLIAMS, JR.
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in reversing the circuit court's judgment on the ground
that the failure to grant the defendant's request for a jury
trial denied him a constitutional right.
Herbert Williams, Jr., was indicted for robbery in
violation of Code § 18.2-58, for illegal use of a firearm in
violation of Code § 18.2-53.1, and for unlawful wearing of a
mask in violation of Code § 18.2-422. He was accused of robbing
Dost M. Khan, a hotel desk clerk, at gunpoint. Williams was
convicted of all three offenses in a bench trial in the Circuit
Court of the City of Alexandria. The court sentenced Williams
to a total of 13 years' imprisonment and suspended five years of
that sentence.
Williams appealed from his conviction to the Court of
Appeals, which reversed and remanded the circuit court's
judgment in a published opinion. Williams v. Commonwealth, 33
Va. App. 506, 515, 534 S.E.2d 369, 373 (2000). The Court of
Appeals concluded, among other things, that the circuit court
erred when it refused to grant Williams' request for a jury
trial. Id. The Commonwealth appealed from the judgment of the
Court of Appeals.
We do not state the evidence presented at trial because it
is not relevant here. However, we recite the procedural history
of the case in the circuit court prior to trial because that
history is important to an understanding of the issue in this
appeal.
The case was originally set for trial on March 4, 1997. On
Williams' motion, the case was continued to April 2, 1997, and
Williams was released on bond. Williams became a fugitive for
six months and was arrested again in October 1997. His trial
was rescheduled for November 20, 1997.
On that date, Williams moved for a continuance and signed a
jury waiver form. The jury waiver form stated that "I, the
undersigned defendant hereby waive my right to a trial by jury,
and request the court to hear all matters of law and fact in
[this] case." After the Commonwealth's attorney and the
presiding judge also signed the jury waiver form, the court
entered an order continuing the case to January 21, 1998. The
order noted that "the defendant, the Attorney for the
Commonwealth and the Court signed the jury waiver form."
On January 20, 1998, the day before trial, Williams again
asked for a continuance. The circuit court denied Williams'
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motion. On the day of trial, Williams asked to be tried by a
jury. Williams stated that he had changed his mind about
wanting a jury trial because his expert witnesses were not
available on that date and some of his tape recorded statements
had been "compromised" and "tampered with" in the editing
process.
Williams' counsel told the circuit court that he was not
prepared for a jury trial. He requested a continuance of the
case, informing the circuit court that "[w]e are simply not
prepared to go forward today . . . ." The Commonwealth's
attorney objected to a continuance, arguing that the tape
recordings of Williams' conversations had been made available to
defense counsel at an earlier date, and that any revisions were
minor in nature. The Commonwealth's attorney also noted that 11
witnesses for the Commonwealth were present in court and ready
to testify. Finally, the Commonwealth's attorney informed the
circuit court that the robbery victim was scheduled to leave the
country the following week for a three-month visit to his native
country.
The circuit court denied Williams' request for a jury trial
and his counsel's motion for a continuance. The court noted
that Williams could have requested a jury trial the previous day
when he made a motion for a continuance.
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The Court of Appeals held that the circuit court erred when
it refused Williams' request to be tried by a jury. Williams,
33 Va. App. at 515, 534 S.E.2d at 372-73. The Court
acknowledged that "[when] there has been a knowing, intentional
and voluntary waiver of the right to a jury trial there is no
absolute constitutional right to withdraw it." Id. at 513, 534
S.E.2d at 372 (quoting Carter v. Commonwealth, 2 Va. App. 392,
398-99, 345 S.E.2d 5, 9 (1986)). However, the Court observed
that "[i]n the instant case, the record does not reflect that
the [circuit] court determined that [Williams] voluntarily and
intelligently consented to trial without a jury." Id. The
Court stated:
In the present case, the [circuit] court never found
that [Williams] voluntarily and intelligently waived
his right to trial by jury. The transcript of the
hearing in which [Williams] signed the waiver is not
before this Court. The Commonwealth argues that
because [Williams] did not include the transcript, the
"waiver" argument must be rejected pursuant to Rule
5A:8(b). Because the continuance order, which
referenced the "waiver," contains no finding that the
jury waiver was voluntarily and intelligently entered,
the transcript is not relevant. A court speaks only
through its orders. . . . The order reflecting the
hearing merely acknowledges that [Williams] signed the
waiver and that the Commonwealth's attorney and the
[circuit] court concurred.
Id. at 514, 534 S.E.2d at 372.
The Court of Appeals reasoned that Williams did not
effectively waive his right to a jury trial because the record
failed to show that the circuit court found that his waiver was
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voluntarily and intelligently made. Id. at 515, 534 S.E.2d at
372. The Court of Appeals thus concluded that Williams had an
absolute right to a jury trial on the date he ultimately was
tried. Id. at 515, 534 S.E.2d at 372-73.
On appeal, the Commonwealth first observes that the Court
of Appeals based its holding on an issue that Williams did not
preserve either at trial or on appeal, the question whether his
jury trial waiver was voluntary. The Commonwealth notes that
Williams did not challenge the voluntary nature of his jury
trial waiver until four months after his convictions and, on
appeal, merely asked the Court of Appeals to consider the
question whether the circuit court's failure to grant Williams a
jury trial "violated his right to a jury under the Virginia and
United States Constitutions." Id. at 512, 534 S.E.2d at 372.
Therefore, the Commonwealth contends that our review of the
issue whether Williams' jury trial waiver was voluntary is
procedurally barred under Rule 5:25, and that the circuit
court's judgment must be reviewed to determine whether the court
properly exercised its discretion in denying Williams' request
to withdraw his jury trial waiver.
In response, Williams argues that the issue whether his
jury trial waiver was voluntary cannot be separated from the
issue whether the circuit court improperly denied him a jury
trial. Williams contends that Rule 3A:13(b) requires that the
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voluntary nature of a jury trial waiver be reflected in the
court's order memorializing that waiver. Williams asserts that
"[t]he record is devoid of these findings required by Rule
3A:13," and that since the order of January 21, 1998 failed to
make such findings, the circuit court lacked jurisdiction to try
him without a jury. We disagree with Williams' arguments.
Initially, we conclude that the issue whether Williams'
jury trial waiver was voluntary is not properly before us in
this appeal. In reaching this conclusion, we reject Williams'
assertion that Rule 3A:13 imposes a jurisdictional requirement
that the voluntary nature of a jury trial waiver be memorialized
in a court order. Rule 3A:13 provides, in relevant part:
(b) . . . If an accused who has pleaded not guilty in
a circuit court consents to trial without a jury, the
court may, with the concurrence of the Commonwealth's
attorney, try the case without a jury. The court
shall determine before trial that the accused's
consent was voluntarily and intelligently given, and
his consent and the concurrence of the court and the
Commonwealth's attorney shall be entered of record.
See Va. Const. art. I, § 8; Code § 19.2-257.
This provision requires the circuit court to determine
whether a defendant voluntarily and intelligently waives his
right to a jury trial before proceeding to trial of the case.
Once the circuit court has made the determination that the
defendant's waiver is voluntarily and intelligently made, the
court is required to enter in the record the defendant's consent
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to be tried without a jury. The concurrence of the
Commonwealth's attorney and the circuit court in the waiver of
jury trial also must be entered in the record.
By its terms, therefore, Rule 3A:13(b) does not require
that the circuit court memorialize by order its determination
that the defendant's jury trial waiver is voluntary and
intelligent. Instead, Rule 3A:13(b) requires that once the
court has made this determination, the court shall enter in the
record the defendant's agreement to be tried without a jury.
See Va. Const. art. I, § 8; Code § 19.2-257.
In the present case, the record shows that on November 20,
1997, Williams signed a document stating, "I, the undersigned
defendant hereby waive my right to a trial by jury, and request
the court to hear all matters of law and fact in [this] case."
The concurrence of the Commonwealth's attorney and the circuit
court in the waiver was noted on the form by their respective
signatures bearing that date. The circuit court also entered an
order on November 24, 1997, stating that Williams, the
Commonwealth's attorney, and the court had executed the jury
waiver form. These entries in the record met the requirements
of Rule 3A:13(b).
We disagree with Williams' assertion that a different
conclusion is required by prior decisions in which we have
stated that "a court speaks only through its written orders."
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See, e.g., Berean Law Group, P.C. v. Cox, 259 Va. 622, 626, 528
S.E.2d 108, 111 (2000); Walton v. Commonwealth, 256 Va. 85, 94,
501 S.E.2d 134, 140, cert. denied, 525 U.S. 1046 (1998); Davis
v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996). This
language generally refers to instances when some conflict or
ambiguity exists between the language expressed in a transcript
and a court's order, when an order fails to reflect an action
allegedly taken by one or more parties, or when a court's order
fails to reflect compliance with a jurisdictional requirement.
See, e.g., Fredericksburg Constr. Co. v. J.W. Wyne Excavating,
Inc., 260 Va. 137, 143, 530 S.E.2d 148, 152 (2000); Wagner v.
Shird, 257 Va. 584, 588, 514 S.E.2d 613, 615 (1999); Robertson
v. Superintendent of Wise County Corr. Unit, 248 Va. 232, 235
n.*, 445 S.E.2d 116, 117 n.* (1994); Walton, 256 Va. at 94, 501
S.E.2d at 140; Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d
770, 773 (1964).
We also have used this language to emphasize the finality
of court orders, which cannot be modified by later conduct of
the parties that fails to result in a subsequent order
suspending or vacating an initial order. See, e.g., Berean, 259
Va. at 626, 528 S.E.2d at 111; Davis, 251 Va. at 148-49, 466
S.E.2d at 94. Thus, we conclude that the language cited by
Williams has no application here because the circuit court was
not required to enter an order stating a finding that Williams'
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jury trial waiver was voluntary and intelligent, and there is no
conflict or ambiguity in the record before us. Moreover, the
court's order of November 24, 1997 complied with the requirement
of Rule 3A:13(b) that the consent of the defendant, the
Commonwealth's attorney, and the circuit court to a waiver of
jury trial be entered of record. See Va. Const. art. I, § 8;
Code § 19.2-257.
If a defendant wishes to challenge the voluntary and
intelligent nature of his jury trial waiver, he must state a
timely objection on that basis in the circuit court. Because
Williams did not question the voluntary nature of that waiver
until four months after he was tried and convicted of the
present offenses, we conclude that he has not preserved that
issue for appeal. Rule 5:25; see Schmitt v. Commonwealth, 262
Va. 127, 137, 547 S.E.2d 186, 194 (2001); Burlile v.
Commonwealth, 261 Va. 501, 508, 544 S.E.2d 360, 363 (2001); Lenz
v. Commonwealth, 261 Va. 451, 467, 544 S.E.2d 299, 308 (2001);
Lovitt v. Commonwealth, 260 Va. 497, 512 n.2, 537 S.E.2d 866,
876 n.2 (2000).
We are unable to consider Williams' request that we
nevertheless examine the issue under the exception permitted by
Rule 5:25 "to enable this Court to attain the ends of justice."
Among other deficiencies in the present record, Williams failed
to include on appeal to the Court of Appeals a transcript of the
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November 20, 1997 proceeding in which the circuit court accepted
his jury trial waiver. Without that transcript, we are unable
to determine whether the circuit court conducted an adequate
inquiry before accepting the waiver. As we explained in Justis
v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961), the
circuit court's judgment is presumptively correct and the burden
is on the appellant to present a sufficient record to permit a
determination whether the circuit court committed an alleged
error. See also McDonald v. Nat'l Enters., Inc., 262 Va. 184,
195, 547 S.E.2d 204, 211 (2001); White v. Morano, 249 Va. 27,
30, 452 S.E.2d 856, 858 (1995); Oliver v. Commonwealth, 35 Va.
App. 286, 296-97, 544 S.E.2d 870, 875-76 (2001).
We next consider the central issue presented by the
Commonwealth in this appeal, namely, whether the Court of
Appeals erred in holding that the circuit court's failure to
grant the defendant a jury trial was a denial of his
constitutional right to trial by jury. Citing Thomas v.
Commonwealth, 218 Va. 553, 238 S.E.2d 834 (1977), the
Commonwealth argues that once a defendant has waived his right
to a trial by jury, he does not have a constitutional right to
withdraw that waiver. The Commonwealth asserts that in the
present case, the circuit court did not abuse its discretion in
denying Williams' request to withdraw his waiver because the
request was untimely.
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In response, Williams asserts that his request for a jury
trial was timely made because the circuit court did not find
that the trial would have to be rescheduled to another day if
the court granted Williams' request. Williams contends that the
circuit court abused its discretion in denying his request
because the court stated only that Williams' request for a jury
trial could delay the case for "several hours." We disagree
with Williams' arguments.
The right of a defendant to a jury trial in a criminal case
is secured by Article 1, § 8 of the Constitution of Virginia.
Thomas, 218 Va. at 554, 238 S.E.2d at 835. However, once a
defendant makes a voluntary and intelligent waiver of this
right, his request to withdraw that waiver and be tried by a
jury is subject to the circuit court's discretion. Id. at 555,
238 S.E.2d at 835.
In Thomas, 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
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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 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.
Id. (citations omitted).
In Thomas, we held that the circuit court abused its
discretion when it denied the defendant's request to withdraw
his previous jury trial waiver. Id. at 556, 238 S.E.2d at 836.
We based our conclusion primarily on the fact that the defendant
made his request to withdraw the waiver 11 days before trial,
and that there was no showing that granting the defendant's
request would unduly delay the trial or impede the cause of
justice. Id. at 556, 238 S.E.2d at 835-36.
Here, Williams' request for a jury trial was, in effect, a
request to withdraw his previous jury trial waiver. The facts
before us are distinctly different from those in Thomas and
support the circuit court's determination to deny Williams'
request. The 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. Further,
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Williams waited until the morning of trial to state his request
for a jury trial, although he could have made this request at
any time during the two-month period after the court granted his
November 1997 continuance motion.
Williams made his request shortly after the trial was to
begin on Wednesday, January 21, 1998. The circuit court
informed the parties that if the case were to be tried by a
jury, "it may take several hours to begin the case."
Thereafter, Williams restated his request for a jury trial, and
the Commonwealth's attorney opposed the request, informing the
court that she intended to call 11 witnesses to testify in the
case. She further stated that Khan, the robbery victim, was
leaving the United States the following Monday to return to his
native country for three months.
Under these facts, the circuit court was presented with the
prospect that selection of a jury could not begin until late
that day, Wednesday afternoon. Given the number of witnesses
that the prosecution intended to call in the case, the court had
no assurance that the trial could have been concluded before
Monday, when Khan intended to leave the country for a three-
month period. Moreover, even if the Commonwealth's attorney
presented Khan's testimony early in the case, there remained the
possibility that Khan would be required as a rebuttal witness
near the end of the trial.
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Based on these facts and circumstances, the record shows
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. Therefore, we conclude that the circuit court did not
abuse its discretion in denying Williams' request to be tried by
a jury.
For these reasons, we will reverse the Court of Appeals'
judgment and reinstate Williams' convictions in accordance with
the circuit court's judgment order.
Reversed and final judgment.
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