Farren v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia

EDWARD FARREN
OPINION BY
v. Record No. 0714-98-2 JUDGE RUDOLPH BUMGARDNER, III
JULY 13, 1999
COMMONWEALTH OF VIRGINIA

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

Harry M. Johnson, Jr. (Smith, Hinton &
Johnson, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Edward Farren appealed his convictions of driving under the

influence (second offense) and refusing to submit to a breath or

blood test in violation of Code §§ 18.2-266 and 18.2-268.3. He

contends the trial court erred: (1) by refusing to recuse

himself, (2) by allowing the Commonwealth to make a final

argument after it waived closing, and (3) by finding the

evidence was sufficient to convict. Concluding that the trial

court did not err, we affirm.

On appeal, we consider the evidence in the light most

favorable to the prevailing party below, granting to it all

reasonable inferences fairly deducible therefrom. See Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997). We
must discard the evidence of the accused in conflict with that

of the Commonwealth, see Cirios v. Commonwealth, 7 Va. App. 292,

295, 373 S.E.2d 164, 165 (1988), and not substitute our judgment

for that of the fact finder. See Cable v. Commonwealth, 243 Va.

236, 239, 415 S.E.2d 218, 220 (1992).

Officer Jeffrey Kencitzski was driving behind the defendant

and saw him travelling faster than the other cars, switch lanes

without signaling, and tailgate only one foot from the car in

front of him. After stopping the defendant, the officer smelled

the odor of alcohol and noted that the defendant’s eyes were

very glazed and red. The defendant slurred his speech, his head

wobbled, and he admitted, “I drank a lot. I don’t recall how

much.” After the officer had the defendant get out of the car,

he noted that the defendant still smelled of alcohol, was

unsteady on his feet, and had to lean on the car for balance.

The defendant refused to perform any field sobriety tests.

The officer arrested the defendant, but the defendant

resisted, and another officer had to assist in putting the

defendant in the police car. The arresting officer tried four

to six times to advise the defendant of his rights under Miranda

v. Arizona, 384 U.S. 436 (1966), and the implied consent law.

The defendant insisted repeatedly that he could not hear the

officer and became belligerent. After the defendant tried to

kick the radio out of the dashboard, the officer called for a

prisoner transport van. When the defendant was removed from the

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police car, he again resisted and had to be forced to the

ground.

The officer took the defendant before a magistrate. When

the magistrate attempted to explain his rights under the implied

consent law, the defendant repeatedly interrupted and refused to

remain quiet even when directed to do so. The magistrate

ordered the officer to remove the defendant, but he physically

resisted being returned to the holding cell.

The magistrate went to the holding cell and attempted again

to read the defendant his rights. The defendant refused to

listen. The magistrate ordered him to read it, but the

defendant responded by saying that he could not read without his

glasses on. When told to put on his glasses, the defendant

refused to read the form and subsequently refused to sign it.

The circuit court first arraigned the defendant on the

driving under the influence charge. 1 He pled not guilty and

waived his right to a jury trial. Next, it arraigned him on the

unreasonable refusal charge. Again, he pled not guilty and

waived jury trial. Then, the defendant requested "the Court

1
At the trial, the defendant made the following comment:

[DEFENSE COUNSEL]: I believe the Code says
they have to be tried separately.

THE COURT: All right. We will try him
separately. We'll arraign him on both
charges and we'll try him separately.

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. . . for a continuance to another judge . . . ," because

knowledge "that a man is charged with refusal, . . . poisons the

Court." The trial court ruled, "[t]hat will not prejudice the

Court in hearing this case," and denied the motion to recuse.

The defendant argues that the joint arraignment violated the

requirement that the refusal charge be tried subsequent to the

driving under the influence charge because the trial started at

the arraignment. He also argues that the trial judge was aware

of the refusal charge because of the arraignment and erred in

not recusing himself. We disagree.

The trial court heard the evidence on the driving under the

influence charge, found the defendant guilty, and imposed its

sentence. The evidence of the defendant's refusal was not

presented or considered by the trial court during the driving

under the influence trial. It then called the first witness for

the trial of the unreasonable refusal charge. The parties

stipulated all the evidence from the first trial, and the trial

court found the defendant guilty.

An unreasonable refusal charge must be tried subsequent to

the trial of a related charge of driving under the influence.

See Code § 18.2-268.3(D). However, it does not follow that the

two charges were tried together in violation of the statutory

mandate if arraignment was held on the refusal charge before the

trial court heard any evidence on the charge of driving under

the influence.

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 The trial court conducted these two proceedings

independently of each other. As used in the statute, "trial"

refers to the hearing of the evidence on the charge. See City

of Virginia Beach v. Reneau, 217 Va. 867, 868, 234 S.E.2d 241,

242 (1977) (citing Deaner v. Commonwealth, 210 Va. 285, 289, 170

S.E.2d 199, 201 (1969) (refusal proceeding is civil)). The

hearing of the evidence must be what is subsequent to the

hearing of the evidence on the first charge. See id. at 868,

234 S.E.2d at 242.

The trial court heard the evidence in the driving under the

influence case and found the defendant guilty. The trial court

then heard the evidence in the unreasonable refusal case. The

second proceeding was a trial subsequent to the first. The

trial court conducted an independent proceeding, and the outcome

of the one was of no consequence in the other. See id. It

complied with the mandate of the statute, and the trial court

committed no error proceeding as it did.

The statute does not require that a different judge hear

the unreasonable refusal charge, nor does it suggest that

knowledge of that charge mandates recusal. "'[W]hether a trial

judge should recuse himself or herself is measured by whether he

or she harbors "such bias or prejudice as would deny the

defendant a fair trial," and is a matter left to the reasonable

discretion of the trial court.'" Broady v. Commonwealth, 16 Va.

App. 281, 287, 429 S.E.2d 468, 472 (1993) (quoting Welsh v.

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Commonwealth, 14 Va. App. 300, 315, 416 S.E.2d 451, 459-60

(1992)). See Davis v. Commonwealth, 21 Va. App. 587, 590-91,

466 S.E.2d 741, 742-43 (1996) (trial judge's discretion to

determine whether "impartiality might reasonably be questioned")

(citing Canon 3(C) of the Canons of Judicial Conduct).

The fact that the trial judge was aware of the pending

refusal charge against the defendant before trying the driving

under the influence charge is not sufficient justification for

recusal. The defendant offered no other reason to support his

motion for recusal. As a practical matter, a trial judge is

aware of his docket and routinely disregards matters that would

be prejudicial if considered when deciding the case. For

example, a trial judge must disregard evidence ruled

inadmissible, though in making the ruling, the judge will have

learned the essence of the inadmissible evidence. Knowledge of

a pending unreasonable refusal charge does not prevent the judge

from being impartial when trying the related driving under the

influence charge.

Next, the defendant argues that the evidence was

insufficient to support his conviction. This argument is

without merit. The officer observed improper and erratic

driving. He stopped the defendant, smelled alcohol, and

observed signs of its effect on the defendant. After the

defendant exited his vehicle, the officer still smelled alcohol,

and its effect was more obvious as the defendant had to lean on

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the car for balance. The defendant refused to perform sobriety

tests, resisted the officer, and required physical restraint.

His disruptive behavior continued at the magistrate’s office.

The defendant asserts that bizarre behavior alone is an

insufficient basis upon which to base a conviction. He contends

the evidence could lead one to believe that the defendant was

tired, had wobbly knees because of a medical condition, and was

hard of hearing. While the defendant may urge that as the

reasonable interpretation of the facts, the trial court did not

have to agree. In finding the defendant guilty, the trial court

rejected the defendant’s theory of the facts and adopted the

opposite one.

The trial court inferred from the evidence that the

defendant was under the influence. That is an inference

reasonably deduced from the evidence, see Archer, 26 Va. App. at

11, 492 S.E.2d at 831, and it will not be disturbed unless it is

plainly wrong or without evidence to support it. See

Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265

(1998). The evidence was sufficient to support a finding that

the defendant had drunk enough alcoholic beverage to so affect

his manner, disposition, speech, muscular movement, general

appearance or behavior as to be apparent to observation. See

Clemmer v. Commonwealth, 208 Va. 661, 663, 159 S.E.2d 664,

665-66 (1968). Thus, the evidence was sufficient to support a

conviction of driving under the influence.

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 Finally, the defendant contends that the trial court erred

in allowing the Commonwealth to make a closing argument after it

waived closing. It is clear that the Commonwealth did not waive

rebuttal when it did not make an initial closing argument. 2

Nonetheless, the defendant argues that the Commonwealth's

argument was not in rebuttal because it mentioned "many things"

during its argument that were not addressed by the defendant in

his closing. We disagree.

We agree that "no new material should be injected" into a

rebuttal argument. See Griffin v. Commonwealth, 22 Va. App.

622, 624, 472 S.E.2d 285, 287 (1996) (citation omitted). If the

Commonwealth waives opening, it is limited to rebutting the

arguments raised by the defense during its closing. The

defendant concedes that his closing argument attacked the

sufficiency of the evidence. An argument that the evidence is

insufficient may invite a broader response than would be

appropriate to a more narrowly drawn defense. In certain cases,

to refute a sufficiency argument a review of the entire panoply

of evidence and inferences might be appropriate. The trial

court has broad discretion in supervising closing arguments.

See Jordan v. Taylor, 209 Va. 43, 51, 161 S.E.2d 790, 795

(1968). The trial court did not abuse its discretion in

2
At the conclusion of the evidence, the Commonwealth said,
“Judge, I waive opening.” The court asked, “Rebuttal?” The
Commonwealth replied, “No.”

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permitting the Commonwealth to make the argument it made in this

case.

For the reasons stated, we affirm the conviction of driving

under the influence (second offense).

Affirmed.

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