Charles Walter Clay, Jr. v. Commonwealth of VA

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia

CHARLES WALTER CLAY, JR.
MEMORANDUM OPINION * BY
v. Record No. 0619-99-2 JUDGE ROBERT P. FRANK
SEPTEMBER 5, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge

Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.

Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Charles Walter Clay, Jr., (appellant) was convicted by a jury

of reckless driving in violation of Code § 46.2-862 and evading

and eluding in violation of Code § 46.2-817. On appeal, he

contends the trial court erred in denying his motions to dismiss

the charges based on former jeopardy and violation of Code

§ 19.2-274. For the reasons that follow, we affirm the

convictions.

I. BACKGROUND

On June 21, 1998, Virginia State Trooper John Wright

noticed a red car in Richmond traveling southbound on Interstate

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
95. The red car was traveling 83 miles per hour in a posted 55

miles-per-hour zone. When the trooper activated his blue light

and siren, the red car pulled over to the side of the road. As

the trooper approached the red car, the driver sped off. The

trooper returned to his police unit and pursued the red car into

Chesterfield County. The red car reached a speed of 110 miles

per hour in a 55 miles-per-hour zone. Though the trooper had

his blue lights flashing, appellant refused to stop and was

getting further ahead of the patrol car.

Appellant passed several other vehicles during the chase,

including a car and a truck that he "split . . . up the middle"

by driving down the center line of the road between the two

vehicles. The driver of the overtaken car, Leonard Price,

identified appellant as the driver of the red car. Trooper

Wright eventually lost sight of appellant's vehicle. Appellant

was later arrested at his mother's home.

On June 21, 1998, the trooper charged appellant in

Chesterfield with reckless driving due to excessive speed in

violation of Code § 46.2-862 and attempting to elude a police

officer in violation of Code § 46.2-817. Approximately four

days later, the trooper charged appellant in Richmond with the

same two offenses.

After both jurisdictions' general district courts found

appellant guilty of all the offenses, appellant appealed to the

circuit courts in Chesterfield County and Richmond.

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 The Richmond appeal was heard first. One week prior to the

Chesterfield trial, appellant pled guilty in Richmond circuit

court to evading and eluding in violation of Code § 46.2-817 and

reckless driving in violation of Code § 46.2-852. No evidence

was presented at the Richmond trial on appellant's pleas of

guilty.

On the day of the appeal in Chesterfield County Circuit

Court, appellant moved to dismiss the Chesterfield charges based

on double jeopardy and a violation of Code § 19.2-294 because of

the Richmond convictions.

In Chesterfield circuit court, appellant did not produce a

copy of the conviction orders from Richmond, representing to the

trial court that the orders had not yet been entered. Appellant

proffered that the Richmond and Chesterfield charges arose out

of the same incident.

In Chesterfield circuit court, the Commonwealth contended

appellant's double jeopardy defense and the defense based on

Code § 19.2-294 were waived because no written motion was made

at least seven days prior to trial, as required by Rule 3A:9.

The Commonwealth further argued that the Richmond and

Chesterfield violations were two different events. Finally, the

Commonwealth argued appellant did not present any evidence of

the facts of the Richmond convictions to support a former

jeopardy argument.

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 The trial court ruled that appellant was not procedurally

barred in his double jeopardy and Code § 19.2-294 arguments and

heard evidence on the underlying facts. The trial court then

denied appellant's motion, finding that there was no double

jeopardy or violation of Code § 19.2-294 because the Richmond

and Chesterfield incidents were not the same event or events.

However, the trial court made no finding of "good cause."

The trial court found appellant guilty of evading and

eluding and reckless driving.

II. ANALYSIS

To argue a violation of double jeopardy protections or Code

§ 19.2-294, a defendant must present his plea in writing seven

days prior to the trial date. See Rule 3A:9(b)-(c). See also

Cooper v. Commonwealth, 13 Va. App. 642, 644, 414 S.E.2d 435,

436 (1992) (citations omitted). If Rule 3A:9 is not followed, a

defendant is deemed to have waived these concerns. See Freeman

v. Commonwealth, 14 Va. App. 126, 127-28, 414 S.E.2d 871, 872

(1992). However, "for good cause shown," a circuit court can

allow an oral motion prior to trial. See Rule 3A:9(b)(3).

In this case, appellant did not file a written motion seven

days prior to the trial date pursuant to Rule 3A:9(c). The

Commonwealth objected on this ground and others. Appellant,

instead of offering "good cause" for his non-compliance with

Rule 3A:9, argued that double jeopardy is a "jurisdictional"

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issue that can be raised at any time, even for the first time on

appeal.

The Commonwealth contends the trial court erred in allowing

appellant to argue double jeopardy and a violation of Code

§ 19.2-294 because double jeopardy, just like other defenses,

must be timely asserted. Therefore, the Commonwealth contends,

because appellant waived these defenses, this Court should not

consider appellant's argument on appeal. We agree.

Double jeopardy and a violation of Code § 19.2-294 both are

"defects in the institution of the prosecution or in the written

charge upon which the accused is to be tried . . . ." Rule

3A:9(b)(1). 1 The requirements of Rule 3A:9(b)(1) are mandatory

unless "good cause" is shown. See Rule 3A:9(b)-(d).

The Double Jeopardy Clause insures that an accused is not

"subject for the same offense to be twice put in jeopardy of

life or limb." U.S. Const. amend. V. "This constitutional

guarantee is applicable to the States through the Due Process

Clause of the Fourteenth Amendment." Illinois v. Vitale, 447

U.S. 410, 415 (1980) (citing Benton v. Maryland, 395 U.S. 784

(1969)).

1
The requirement under Rule 3A:9(b)(2) is permissive. See
Simmons v. Commonwealth, 6 Va. App. 445, 450, 371 S.E.2d 7, 9
(1988). While Rule 3A:9(b)(1) pertains to defects in the
institution of the prosecution or in the written charge upon
which the accused is to be tried, Rule 3A:9(b)(2) pertains to
"any defense or objection that is capable of determination
without the trial of the general issue."

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 Although the language of Code § 19.2-294 does not state

that it provides a defense of former jeopardy, "it amounts to

such a defense in purpose and desired effect." Epps v.

Commonwealth, 216 Va. 150, 155, 216 S.E.2d 64, 68 (1975)

(citation omitted). Like the bar of former jeopardy under the

Fifth Amendment, Code § 19.2-294 prevents the Commonwealth from

"subjecting an accused to the hazards of vexatious, multiple

prosecutions." Hall v. Commonwealth, 14 Va. App. 892, 899, 421

S.E.2d 455, 460 (1992) (en banc).

Appellant concedes in his reply brief that Rule 3A:9

applies. However, he argues the trial court made a finding that

"good cause" was shown and the record supports such finding.

However, we note that the trial court never explicitly made a

finding of "good cause."

Appellant offers his inability to obtain a certified copy

of the Richmond conviction orders because of the holiday season

and inclement weather as "good cause." In his reply brief,

appellant, for the first time, argues that until he was

convicted in Richmond circuit court a week earlier, there was no

basis for a double jeopardy motion. However, appellant never

made this argument to the trial court. His argument before the

trial court was an explanation of the reason he could not

produce certified copies of the Richmond conviction orders.

When the Commonwealth argued appellant had not given timely

written notice, appellant did not argue he had not had

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sufficient time to comply. His argument was that double

jeopardy, being a constitutional issue, could be raised at any

time.

In ruling that appellant had not waived his defenses, the

trial court stated:

Normally, if it goes to the institution of
prosecution, it must be filed seven days
ahead of time. You have argued and, I
think, most persuasively that, if it's
double jeopardy in this jurisdiction, of
course, that may be raised under the rule
309 [sic]. 2

Assuming, without deciding, the trial court implicitly

found "good cause" under Rule 3A:9(d), the record does not

support that finding. As discussed above, appellant gave no

reason for his non-compliance with Rule 3A:9. He only offered

an explanation of the reason he could not produce a certified

copy of the Richmond conviction orders. When addressing the

Commonwealth's argument that a motion was not timely filed,

appellant only argued that he could raise a double jeopardy

defense at any time, even for the first time on appeal.

Since appellant did not comply with the notice provisions

of Rule 3A:9 and did not show "good cause," he has waived the

double jeopardy and Code § 19.2-294 defenses. We, therefore, do

2
This reference to Rule 309 is an obvious error in the
record because there is no Rule 309. In context, the argument
dealt with Rule 3A:9. We, therefore, assume Rule 3A:9 is being
referred to by the trial court.

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not address the merits of his argument and affirm the judgment

of the trial court.

Affirmed.

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Elder, J., dissenting.

I believe the majority erroneously revisits the trial

court's implicit finding of good cause for the late filing by

Charles Walter Clay, Jr., (appellant) of his motions to dismiss.

Therefore, I respectfully dissent. For the reasons that follow,

I would reach the merits of the double jeopardy claim, affirming

appellant's conviction for reckless driving pursuant to Code

§ 46.2-862 and reversing the conviction for evading and eluding

police pursuant to Code § 46.1-817 because it constituted double

jeopardy.

Rule 3A:9 requires that a defendant asserting a violation

of double jeopardy or Code § 19.2-294 must file a written motion

to dismiss on those grounds at least seven days before trial.

Failure to comply with these requirements ordinarily results in

a waiver of the right to make such a challenge, see Freeman v.

Commonwealth, 14 Va. App. 126, 127, 414 S.E.2d 871, 872 (1992),

but the trial court may grant relief from such waiver "[f]or

good cause shown," Rule 3A:9(b)(3), (d). Here, as the majority

acknowledges, the Commonwealth specifically contended that

appellant's double jeopardy and Code § 19.2-294 challenges were

waived because appellant made his motion on the day of trial

rather than at least seven days prior to trial. The trial court

ruled, however, that appellant was not procedurally barred from

raising these challenges, and it heard evidence on the

underlying facts. Implicit in this approach is that the trial

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court ruled against the Commonwealth and found "good cause" for

appellant's failure timely to file a written motion to dismiss.

Although the majority concludes the record does not support

a finding of "good cause," we are not at liberty to revisit this

issue on appeal. In considering the constitutional and

statutory issues, the trial court implicitly rejected the

Commonwealth's argument that good cause did not exist, and the

Commonwealth was not entitled to appeal that ruling. Revisiting

and reversing that implicit ruling on appeal would amount to

allowing the Commonwealth to appeal an issue which is not

constitutionally or statutorily appealable. See Va. Const. art.

VI, § 1; Code § 19.2-398; cf. Driscoll v. Commonwealth, 14 Va.

App. 449, 452, 417 S.E.2d 312, 313 (1992) (citing Hart v.

Commonwealth, 221 Va. 283, 290, 269 S.E.2d 806, 810 (1980), for

proposition that affirmance of trial court ruling based on

right-result-wrong-reason rationale is not permitted where

affirmance serves as "a subterfuge for a constitutionally

prohibited cross-appeal"). Therefore, I would reach the merits

of the appeal without examining the correctness of the trial

court's implicit good cause ruling. See Manning v.

Commonwealth, 2 Va. App. 352, 356 & n.2, 344 S.E.2d 197, 199 &

n.2 (1986) (noting that Commonwealth could not contest court's

ruling on admissibility of particular evidence, "right or wrong"

and that Court of Appeals would "express no opinion on this

issue").

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 In reaching the merits of the appeal, I would affirm

appellant's conviction in Chesterfield County for reckless

driving and reverse and dismiss his Chesterfield conviction for

eluding on the ground that it constituted double jeopardy. The

Double Jeopardy Clause of the United States Constitution

"'protects against [(1)] a second prosecution for the same

offense after acquittal[, (2)] . . . a second prosecution for

the same offense after conviction[, and (3)] . . . multiple

punishments for the same offense.'" Illinois v. Vitale, 447

U.S. 410, 415 (1980) (quoting North Carolina v. Pearce, 395 U.S.

711, 717 (1969)); see Bennefield v. Commonwealth, 21 Va. App.

729, 739-40, 467 S.E.2d 306, 311 (1996) (holding that double

jeopardy provisions of United States Constitution are

co-extensive with those of Virginia Constitution). Code

§ 19.2-264, upon which appellant also relies, provides similar

protections: "If the same act be a violation of two or more

statutes, . . . conviction under one of such statutes . . .

shall be a bar to prosecution or proceeding under the other or

others." 3 "[T]he analysis for what constitutes the same act or

3
The ways in which Code § 19.2-294 differs from double
jeopardy protections, see, e.g., Hall v. Commonwealth, 14 Va.
App. 892, 894, 421 S.E.2d 455, 457 (1992) (en banc) (noting that
statute does not bar multiple convictions for same act when
obtained in a single trial whereas double jeopardy may preclude
such convictions even if obtained in a single trial); Blythe v.
Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981)
(holding that statute applies only to statutory offenses and not
common law crimes), are not relevant in appellant's case.

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transaction is the same" for double jeopardy and Code

§ 19.2-294. Henry v. Commonwealth, 21 Va. App. 141, 146 n.2,

462 S.E.2d 578, 581 n.2 (1995). "The test of whether there are

separate acts sustaining several offenses 'is whether the same

evidence is required to sustain them.'" Treu v. Commonwealth,

12 Va. App. 996, 997, 406 S.E.2d 676, 677 (1991) (quoting Estes

v. Commonwealth, 212 Va. 23, 24, 181 S.E.2d 622, 624 (1971)).

This requires a determination of "whether the acts are the same

in terms of time, situs, victim, and the nature of the act

itself." Hall v. Commonwealth, 14 Va. App. 892, 898, 421 S.E.2d

455, 459 (1992) (en banc). "Two crimes, even though similar

because committed by the same criminal agent during a continuing

course of action . . . , are not committed by the same act if

not simultaneously committed." Henry, 21 Va. App. at 146, 462

S.E.2d at 581.

The burden of establishing the identity of the offenses is

on the accused. See Low v. Commonwealth, 11 Va. App. 48, 50,

396 S.E.2d 383, 384 (1990). An accused ordinarily may meet this

burden by offering a transcript of the prior proceedings into

evidence, but the burden may be met in other ways, such as

through a concession by the Commonwealth as to the identity of

the offenses. See id.

At issue here are two sets of convictions for violation of

the same or similar statutes. Assuming without deciding that

Code § 19.2-294 may be applied, despite the fact that at least

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some of the challenged convictions were rendered under identical

statutes rather than "two or more statutes," the determinative

issue for both the constitutional and statutory claims is

whether the acts supporting the convictions are the same. This

analysis, therefore, requires a careful review of the evidence

presented. The Commonwealth's implicit proffer 4 at the hearing

on the motion to dismiss and the testimony given by State

Trooper John Wright at trial, after which appellant renewed his

motion to dismiss, provide a complete recitation of the events

on which both the Richmond and Chesterfield convictions were

based.

At the hearing on the double jeopardy motion, the

Commonwealth's attorney said that the trooper who took out the

Richmond and Chesterfield warrants was present and argued that

the two sets of warrants "essentially [were based on] two

different events." He continued:

What happened is that . . . the defendant
was driving in the City, was stopped by the
trooper and came to a complete and total
stop on the side of the road, and we would
say that ended the first event. The trooper
walks up to him. At that point, he then

4
Although the Commonwealth's attorney rejected the proffer
of defense counsel, the Commonwealth made its own proffer as to
why the two sets of charges were "essentially two different
events." Although the Commonwealth contends on appeal that the
record may not clearly establish all relevant events which
supported the Richmond and Chesterfield County charges, I would
hold that the Commonwealth's proffer in arguing that the charges
arose from two different events, coupled with Trooper Wright's
trial testimony, provide a sufficient record from which to
analyze appellant's double jeopardy claim.

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 takes off, and at that point there, then,
begins a second event of reckless driving
and attempting to elude.

* * * * * * *

[W]hen the defendant starts from ground
zero and takes off and gets going at 100
[or] so miles an hour, that's the attempt to
elude. And, when he almost drives other
citizens off the road, that's the reckless
driving.

Trooper Wright's trial testimony confirmed and expanded

upon the Commonwealth's pretrial proffer. Shortly before

6:00 p.m. on June 21, 1998, Wright observed a red Chevrolet

speeding in the southbound lanes of Interstate 95 in the City of

Richmond. After pacing the vehicle at 83 miles per hour in a 55

miles-per-hour zone, Wright caught up with the vehicle and

activated his blue lights and siren. "When the blue lights and

siren came on," the vehicle pulled to the side of the road, and

Trooper Wright followed. After calling in the license number,

Wright exited his vehicle and walked toward the red car, but it

sped off before he reached it. Trooper Wright ran back to his

car and began to pursue the Chevrolet at high speed with his

lights still flashing. After the Chevrolet veered off onto

Chippenham Parkway into Chesterfield County, Trooper Wright

paced it at 110 miles per hour in a 55 miles-per-hour zone.

During the chase, appellant drove down the center line of the

road, narrowly missing at least one car as he passed it.

Although Trooper Wright never got a good look at the driver of

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the fleeing Chevrolet, the driver of the car the Chevrolet

narrowly missed identified appellant as the driver of the

Chevrolet. Wright was unable to keep pace with appellant's car,

but using the license plate number, he subsequently arrested

appellant at his home.

The record established that appellant was convicted in the

Richmond General District Court on November 18, 1998, on

warrants obtained by Trooper Wright for (1) "driv[ing] a vehicle

on the highway recklessly or at a speed or in a manner so as to

endanger the life, limb, or property of any person" on June 21,

1998, in violation of Code § 46.2-852 and (2) "willfully

fail[ing] to bring his motor vehicle to a stop after having

received an audible or visible signal from a law-enforcement

officer to do so" on June 21, 1998, in violation of Code

§ 46.2-817. The record does not establish definitively whether

appellant appealed these convictions and, if so, whether the

outcome on appeal resulted in his conviction or acquittal.

However, because the double jeopardy clause bars subsequent

prosecution after a conviction or acquittal, see Vitale, 447

U.S. at 415 (citing Pearce, 395 U.S. at 717), the ultimate

outcome of the charge is not crucial as long as the evidence

establishes the second prosecution is for the same offense.

As to appellant's two reckless driving convictions, both

based on excessive speed, the evidence establishes that

appellant committed two separate offenses during two separate

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acts of driving such that the reckless driving conviction

rendered in Chesterfield did not constitute double jeopardy.

Per Trooper Wright's testimony, appellant drove 83 miles per

hour in a 55 miles-per-hour zone before Wright activated his

lights and siren and pulled appellant over to the side of the

road. As per the Commonwealth's attorney's proffer, this

constituted "the first event" and provided the basis for

appellant's reckless driving conviction in Richmond. After

appellant came to a complete stop on the side of the road and

then drove away as Trooper Wright approached on foot, appellant

obtained a speed of 110 miles per hour in a 55 miles-per-hour

zone. This constituted a "second event" of reckless driving and

supported appellant's conviction for reckless driving in

Chesterfield County. 5

As to appellant's two convictions for attempting to elude a

police officer, however, the evidence establishes only a single

act of eluding which continued from Richmond into Chesterfield

County. The Commonwealth's attorney proffered that "the first

event" ended when appellant's vehicle came to a complete stop on

the side of the road. Viewed along with Trooper Wright's

5
Although the Commonwealth's attorney argued during the
motion hearing that the Chesterfield reckless driving conviction
was based on "[appellant's] almost driv[ing] other citizens off
the road," the warrant on which appellant was arrested and
convicted was based on excessive speed, and the instructions
given the jury permitted a conviction for reckless driving based
only on excessive speed.

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testimony, the events to that point establish only that

appellant drove recklessly by exceeding the speed limit and that

he pulled over immediately when Wright activated his lights and

siren. Thus, although appellant may have formulated a plan to

stop and then speed away from Trooper Wright before he actually

pulled over in response to the lights, appellant's effort to

elude was one continuous act regardless of when it began, and it

began no later than when appellant "start[ed] from ground zero

and [accelerated to] 100 . . . miles an hour." This is

precisely the same act the Commonwealth's attorney proffered in

support of appellant's second conviction for eluding. Because

nothing separated the acts supporting the convictions in terms

of time, situs, victim or nature, they were one in the same for

purposes of double jeopardy

On appeal, the Commonwealth contends that appellant's

initial flight from the side of the road constituted one act and

his failure to stop a second act. However, the only reasonable

inference from the evidence is that appellant acted on a single

impulse with an ongoing intent to elude. Compare Carter v.

Commonwealth, 16 Va. App. 118, 127-29, 428 S.E.2d 34, 41-42

(1993) (holding that rape generally is not a continuous offense

and that one who repeated the crime by penetrating the victim,

allowing her to visit bathroom, penetrating her again, stopping

for several minutes, and penetrating her a third time was

properly convicted of three counts of rape because evidence

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established that each of the "repenetrations was clearly . . .

occasioned by separate acts" (citation omitted)), with Campbell

v. Commonwealth, 201 Va. 507, 510-11, 112 S.E.2d 155, 157-58

(1960) (holding that where accused hit victim multiple times

with revolver, causing him to fall into chair, said "I ought to

kill him," and then shot him within thirty to sixty seconds of

when he fell into chair, accused was engaged in fight involving

but one impulse and could be convicted for one count of common

assault rather than two for striking victim and then shooting

him). Because the Chesterfield conviction for eluding was based

on the same act as the Richmond conviction, it constituted

double jeopardy. 6 Therefore, I would hold the trial court erred

in denying appellant's motion to dismiss the Chesterfield

eluding charge, and I would reverse and dismiss this conviction.

Appellant contends on brief that, because his Richmond

eluding conviction was based on the single act of driving from

Richmond into Chesterfield, this conviction also barred his

Chesterfield reckless driving conviction because it resulted

6
The Commonwealth does not contend that appellant committed
two violations of the same statute simply by crossing the
jurisdictional boundary between Richmond and Chesterfield
County, and I do not believe such a distinction, standing alone,
is dispositive. Cf. Padgett v. Commonwealth, 220 Va. 758, 761,
263 S.E.2d 388, 389-90 (1980) (holding under Code § 19.2-264.1,
which provides that accused may not be convicted for driving
while intoxicated and reckless driving "growing out of the same
act or acts," that the difference in venue does not "alter[] the
singular nature of the act or acts out of which the charges
arose").

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from the same act of driving. Assuming without deciding

appellant properly preserved this argument for appeal, I would

hold that it lacks merit. We held in Lash v. County of Henrico,

14 Va. App. 926, 421 S.E.2d 851 (1992) (en banc) (applying Code

§ 19.2-264), that a conviction for eluding a police officer did

not preclude a conviction for reckless driving which arose out

of the same "'continuous, uninterrupted course of operation of a

motor vehicle.'" Id. at 930-31, 421 S.E.2d at 853-54 (quoting

Padgett v. Commonwealth, 220 Va. 758, 761, 263 S.E.2d 388,

389-90 (1980)). We reasoned that "[t]he manner in which the

defendant drove away from the officer and the manner in which he

drove through the red traffic signal and through the supermarket

parking lot were acts upon which the charge of reckless driving

could have been based" whereas "[t]he defendant's failure to

stop in response to the police officer's flashing light and

siren after he drove away and before he reached the supermarket

intersection was a separate and distinct act upon which the

[eluding offense] was based." Id. at 930-31, 421 S.E.2d at

853-54. Similarly here, although the Chesterfield reckless

driving conviction was based on speeding which occurred in the

course of appellant's flight from the officer, it began after

appellant initiated his flight and constituted a distinct act

for purposes of double jeopardy and Code § 19.2-264 analysis.

For these reasons, I would reach the merits of appellant's

appeal and affirm his Chesterfield conviction for reckless

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driving but reverse and dismiss his Chesterfield conviction for

eluding a police officer because it constituted double jeopardy.

Therefore, I respectfully dissent.

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