COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued by teleconference
CLIFTON ELLIOT ROBINSON
OPINION BY
v. Record No. 1785-00-2 JUDGE JAMES W. BENTON, JR.
JULY 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Douglas A. Ramseur (Bowen, Bryant, Champlin &
Carr, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
The sole issue presented by this appeal is whether Clifton
Elliot Robinson waived his right to a jury trial. Because the
record fails to prove a voluntary waiver, we reverse the
conviction and remand for a new trial.
I.
A grand jury indicted Robinson for the felony of aggravated
sexual battery in violation of Code § 18.2-67.3. On the day of
trial, Robinson's attorney moved for a continuance because a
witness, whom he had expected to appear without a subpoena, was
not present. The trial judge denied the motion for a
continuance, adding that if he later determined the testimony of
the witness would be necessary he would grant a continuance.
When the trial judge mentioned a second indictment that had not
been served on Robinson, the prosecutor moved to nolle pros that
indictment. The trial judge then ruled that Robinson, who had
been taken into custody that day because of the second
indictment, would continue "on bond," which we interpret to be a
reference to Robinson's bail status.
After the clerk announced the style of the case, Robinson's
attorney informed the judge that Robinson had a request. The
following colloquy then occurred:
[ROBINSON]: Request a jury for trial.
[JUDGE]: I think you're coming in late.
The Court's going to deny that. You're
coming in, you're here. You're ready for
trial this morning. You asked for a
continuance, didn't get it. Now you want a
jury. I'll give you a jury. I can't stop
your right of trial by jury. But I won't
give you bond.
[PROSECUTOR]: Thank you, Judge.
[JUDGE]: What do you want to say?
* * * * * * *
[DEFENSE ATTORNEY]: He'll try the case and
take exception for the record if Your Honor,
please that he be held without bond and that
he ask for a jury.
[JUDGE]: Well, the reason I do that is
motion for trial date is that people don't
show up and this is a delay tactic, but he's
entitled to trial by jury and I'll give him
a date quick as I possibly can.
[DEFENSE ATTORNEY]: I understand that,
Judge, but he's made bond. He's always come
to court and he's on bond now.
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[JUDGE]: I do recall that, but I find that
my experience has been when you come in like
this, you don't show up for the date of
trial, that's witnesses inconvenience.
[DEFENSE ATTORNEY]: He's made every
appearance.
[JUDGE]: All right. Well, let's go on. If
he wants that, that's the way we'll do it.
Any way he wants to go, I'll go. Make your
choice, it's up to him. I said without
bond, I'll set a higher bond. I don't
believe in holding people without bond. I
would set a bond, it would be higher. All
right, what do want to do? What is your
bond now?
THE CLERK: 5,000.
[JUDGE]: What does he want to do with the
case?
[DEFENSE ATTORNEY]: What would be the
Court's favor as far as bond is concerned?
[JUDGE]: I don't know. I'll wait and see
what he wants to do. Probably 25,000 or so.
[DEFENSE ATTORNEY]: Judge, for the record,
he cannot make a $25,000 bond. He has made
every court appearance up until now.
[JUDGE]: I agree to that.
[DEFENSE ATTORNEY]: Diligently cooperated
with myself.
[JUDGE]: Well, we've been over this once
and I've set out the Court's reason. No
sense in doing this again. Does he plead
guilty or not guilty?
During the ensuing arraignment, the following occurred:
THE CLERK: On your plea of not guilty, you
have a right to be tried by Judge, jury,
what's your choice?
[ROBINSON]: Under protest, ask for Judge.
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[JUDGE]: All right. The record will show
the situation.
After the arraignment, the trial proceeded without a jury.
At the conclusion of the Commonwealth's case-in-chief, Robinson
testified. After Robinson testified, his attorney renewed his
motion for a continuance to obtain the witness. The trial judge
granted the motion and ruled that Robinson "can stay under the
same bond," noting, "I'm going to let him go. He's all right."
Two weeks later when the trial resumed, Robinson again
testified and presented testimony of two witnesses. At the
conclusion of the evidence, the trial judge convicted Robinson of
aggravated sexual battery. This appeal followed.
II.
Article I, Section 8, of the Constitution of Virginia
provides "[t]hat in criminal prosecutions [an accused] . . .
shall enjoy the right to . . . an impartial jury." Although
recognizing that the Constitution also provides that the accused
may "waive a jury," id., the Supreme Court has emphasized that
"[u]nder the Constitution of Virginia the right to trial by jury
in criminal cases is guaranteed." Hodges v. Commonwealth, 213
Va. 316, 320, 191 S.E.2d 794, 797 (1972) (citing Va. Const. Art.
I, § 8). This constitutional guarantee is reinforced by the
following rule of court:
(a) Right to Jury; Duty of Court in Nonjury
Trial. - The accused is entitled to a trial
by jury only in a circuit court on a plea of
not guilty.
(b) Waiver of Jury in Circuit Court. - 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
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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.
Rule 3A:13. To protect these guarantees to a jury trial, we have
unambiguously held that reversible error occurs unless "[t]he
record . . . indicate[s] that the accused made a knowing,
intelligent and voluntary waiver of the right to trial by jury."
Wright v. Commonwealth, 4 Va. App. 303, 306, 357 S.E.2d 547, 549
(1987).
At the very outset of the calling of the case, Robinson
explicitly requested a jury. The trial judge initially said the
request was not timely and denied that request. The record
contains no indication, however, that prior to the day of trial
Robinson was required to elect whether he wanted a jury or bench
trial. In other words, "[t]his is not a case where an accused
validly waive[d] a jury trial and then [sought] to withdraw that
waiver." Jones v. Commonwealth, 24 Va. App. 636, 641, 484 S.E.2d
618, 621 (1997). We, therefore, do not need to determine whether
Robinson requested a jury trial "'in due season so as not to
substantially delay or impede the cause of justice.'" Williams
v. Commonwealth, 33 Va. App. 506, 514, 534 S.E.2d 369, 372 (2000)
(citation omitted).
The transcript of the incidents at trial provides the
exclusive basis upon which we determine whether Robinson waived
his guaranteed right to a trial by jury in accordance with the
law. It reflects that the trial judge retreated from his initial
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denial of Robinson's request for a jury trial and ruled, "I'll
give you a jury. . . . [b]ut I won't give you bond."
Reconsidering this ruling, the trial judge retreated further and
ruled that Robinson's bail would not be revoked but that it would
be increased. The trial judge agreed with Robinson's attorney at
least three times that Robinson had made every required
appearance and that he personally had not demonstrated any risk
of flight. Nonetheless, the judge threatened to revoke
Robinson's bail and then threatened to increase the amount of
bail. The judge did so only after Robinson requested a jury
trial. In this manner, the trial judge hampered Robinson's
exercise of his constitutional right to a jury trial. In view of
this patent coercion, we hold that the record fails to establish
that Robinson's election of a bench trial was a knowing and
voluntary waiver of his right to a jury trial. "Where there is
coercion there cannot be consent." Bumper v. North Carolina, 391
U.S. 543, 550 (1968). The trial judge's statements establish a
clear connection between the jury and bail issues.
Furthermore, Robinson's attorney expressly objected to the
judge's rulings and Robinson, himself, objected at arraignment by
responding, "Under protest, [I] ask for [a] Judge" trial. "To
conclude from the[se] statement[s] . . . that [Robinson]
knowingly and intelligently waived his right to a jury trial
. . . defies reason." Wright, 4 Va. App. at 307, 357 S.E.2d at
550. The statement, "[u]nder protest," indicates unequivocally
the involuntary nature of Robinson's request for a bench trial.
The judge erred by accepting Robinson's request, "under protest,"
as a waiver of his right to a jury trial. It neither accords
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with the Rule 3A:13 standard of "voluntarily and intelligently
given" nor constitutional standards for waiver. "[W]aiver of a
constitutional guarantee requires express and intelligent consent
by the accused." Jones, 24 Va. App. at 641, 484 S.E.2d at 621.
See also McCormick v. City of Virginia Beach, 5 Va. App. 369,
372, 363 S.E.2d 124, 125 (1987).
The Commonwealth argues that Robinson's request was merely a
stalling tactic. Such a motivation, even assuming its existence,
does not render the right to a jury trial in a felony case any
less fundamental. We reiterate a concern that we expressed in
Wright.
We recognize that a last minute request for
a jury trial may cause hardships and
scheduling difficulties, but we also believe
that it is not a problem without a solution.
Under the scheme mandated by our
constitution and augmented by statute and
the Rules of the Supreme Court, circuit
courts must assume that trial will be by
jury unless and until the accused knowingly
and intelligently waives that right and the
attorney for the Commonwealth and the trial
court concur in the decision to forego a
jury trial. Unless the circuit courts are
willing to accept delay and the
inconvenience of rescheduling, they should
not transfer to the attorney for the
Commonwealth or to defense counsel the sole
responsibility to timely determine the need
for a jury.
4 Va. App. at 309, 357 S.E.2d at 551.
The record in this case, which plainly shows that the trial
judge's threat of bail sanctions caused Robinson to request a
bench trial under protest, established a denial of Robinson's
right to a jury trial. Accordingly, we reverse the conviction
and remand for a new trial.
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Reversed and remanded.
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