Commonwealth v. Williams

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'

2
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.

3
 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

4
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

5
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

6
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."

7
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'

8
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

9
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.

10
 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

11
 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,

12
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.

13
 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.

14