Bennett v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder,
Bray, Bumgardner, Humphreys and Senior Judge Cole
Argued at Richmond, Virginia

ALLEN DALE BENNETT
OPINION BY
v. Record No. 0925-98-2 JUDGE MARVIN F. COLE
AUGUST 29, 2000
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge

William J. Doran, III (Chaplin, Papa & Gonet,
on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Appellant, Allen Dale Bennett, appeals his conviction of

operating a motor vehicle under the influence of alcohol with

two prior convictions within ten years, in violation of Code

§ 18.2-266. He contends the trial court erred (1) in refusing

to decide whether the Commonwealth complied with Code

§ 18.2-268.2, pertaining to the administration of a breath test

to determine his blood alcohol content, and in ruling that this

issue was a jury question; and (2) in refusing to allow him to

introduce evidence from the district court testimony of an

absent witness whom he had failed to subpoena. A divided panel

of this Court reversed the conviction of driving under the
influence and remanded for a new trial. See Bennett v.

Commonwealth, 31 Va. App. 30, 520 S.E.2d 845 (1999). We granted

the Commonwealth's request for rehearing en banc, and upon

rehearing, we affirm appellant's conviction.

Background

Around midnight on January 18, 1997, Richmond City Police

Officer John B. Sheppard was stopped at a red traffic light at

the intersection of Meadow and Main Streets. When the light

changed, Sheppard pulled forward and was almost hit by Bennett's

pickup truck, which ran through the red light. Sheppard "had to

slam on brakes" to keep from having a collision with Bennett's

vehicle, which did not stop but continued on its way.

Sheppard activated his emergency lights and siren,

accelerating to nearly fifty-five miles per hour, and caught up

with Bennett in a couple of blocks. Sheppard pursued Bennett

until Bennett turned right on Stafford Street. Bennett then

turned into an alley and cut off the ignition on his truck.

According to Sheppard, when Bennett exited his vehicle, he

rocked back and forth between the door and the doorjamb. He

appeared unsteady on his feet, and Sheppard smelled alcohol on

his breath. His eyes were red and glassy. Bennett told the

officer that he had "a couple of beers," but he refused to

perform field sobriety tests. Sheppard arrested Bennett for

driving under the influence of alcohol and transported him to

police headquarters, where he advised him of his rights under

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the implied consent law. Bennett agreed to take the breath

test.

Sheppard administered a breathalyzer test several times,

but Bennett failed to produce a satisfactory sample. He was

taken before a magistrate, who again read him the implied

consent law. Again, Bennett did not produce a satisfactory

breath sample, and the magistrate charged Bennett with refusal

to take the breathalyzer test. Bennett was convicted of both

charges in general district court on January 20, 1998. These

convictions were appealed to the circuit court on or about March

26, 1998. The charge of driving under the influence of alcohol

with two prior convictions in ten years was tried on April 14,

1998.

On appeal from the circuit court, we granted Bennett's

petition on the following two issues:

1. Did the trial court err in ruling that
the issue of whether the Commonwealth had
complied with Code § 18.2-268.2 was a jury
issue that it would not decide?

2. Did the trial court err in refusing to
allow the defendant to put on evidence as to
the testimony of a material witness who had
testified in the [general district] court
and who was shown to be unavailable in the
trial court?

Motion to Suppress

In the circuit court, Bennett filed a motion to dismiss the

charges of driving under the influence of alcohol and

unreasonable refusal to submit to a breath or blood test.

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 In the motion, Bennett acknowledged that at police

headquarters, "he agreed to take a breath test to determine the

probable alcohol content of his blood." He further alleged that

after the breath test was administered, he was advised that the

results were not "satisfactory." According to Bennett, he then

requested, but was denied the opportunity to take a blood test

in violation of Code § 18.2-268.2. He also alleged that when

the Commonwealth requires a person to take a breath or blood

test, the accused has a right to receive the benefits of the

test, and the failure to permit the requested test deprived him

of a significant method of establishing his innocence. Bennett

alleged that the court should dismiss the charges against him

because the Commonwealth failed to follow proper procedure at

the time of his arrest in refusing to grant him a blood test.

Prior to January 1, 1995, Code § 18.2-268.2 provided, in

pertinent part, that "[a]ny person so arrested for a violation

of § 18.2-268.2(i) or (ii) or both . . . shall elect to have

either a blood or breath sample taken but not both." That code

section was amended by the General Assembly on January 1, 1995.

The revised statute, in effect at the time of this incident,

provides in pertinent part:

Any person so arrested for a violation of
§ 18.2-266(i) or (ii) or both . . . shall
submit to a breath test. If the breath test

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 is unavailable 1 or the person is physically
unable to submit to the breath test, a blood
test shall be given.

The motion to dismiss was scheduled for a hearing on April

9, 1998 before a judge, and the trial of the case with a jury

was set for April 14, 1998. Because Bennett filed the motion to

dismiss, he had the burden to go forward with the evidence. See

Lamay v. Commonwealth, 29 Va. App. 461, 475-76, 513 S.E.2d 411,

418 (1999). At the April 9, 1998 hearing on his motion to

dismiss, Bennett called the arresting officer as his first

witness. Sheppard testified about the events that took place on

January 18, 1997. He explained how he stopped appellant's

vehicle and described appellant's condition. He further related

the details of appellant's arrest.

On cross-examination by the Commonwealth's attorney,

Sheppard testified that Bennett was given three opportunities to

take the breath test. According to Sheppard, on the first test,

Bennett "placed his lips around the plastic mouthpiece and

inflated his cheeks as to appear to be blowing into the machine.

The machine gives you a great amount of time to attempt to give

a sample. He did this for several seconds, probably 30 or 45

seconds I believe."

1
Bennett has not raised any issue that a breath test was
not available. The issue is whether he was physically unable to
submit to it.

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 After waiting the time required by law, the officer gave

Bennett the test a second time. Bennett placed his lips around

the mouthpiece and allowed the air to escape rather than enter

the mouthpiece. The machine ran out of time and registered that

it had not received an air sample. At that point, Sheppard took

Bennett before a magistrate. The magistrate read Bennett the

implied consent law and asked if he would consent to take the

breath test. Bennett agreed to take the test. However, he did

the same thing he had done with the officer. He expanded his

cheeks so that the machine would not receive air. Thereupon,

the magistrate cited Bennett for refusal to take the breath

test.

Sheppard testified that Bennett did not advise him of any

physical problems that would prevent him from taking the breath

test.

At the hearing, Bennett testified on his own behalf. In

response to questions from his attorney, he testified that he

now knew that he had a physical condition that might impact his

ability to take the test, namely, bronchitis and asthma. The

following dialogue occurred between Bennett and his attorney:

[DEFENSE COUNSEL]: You cannot say today you
had asthma in January of 1997, can you?

[BENNETT]: Just by what my doctor says,
that you cannot occur [sic]. Like it's in
my lungs now. If a doctor was here and put
a thing on there, you could hear it in my
chest when I breath [sic].

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 Bennett produced no evidence to prove he was physically

unable to take the test. Bennett acknowledged that he did not

tell the police officer or the magistrate that physical or

medical problems prevented him from blowing into the

breathalyzer. The reason Bennett gave for his failure to do so

was that he was "never asked about my medical condition." In

response to a question posed by the trial judge, Bennett

admitted he had successfully blown into a breath machine on two

previous occasions, one in 1989 and one in 1994.

After all the evidence was presented, the trial judge asked

counsel if they wished to be heard. The following colloquy

occurred:

[DEFENSE COUNSEL]: Judge, under 18.2-268.2,
the Commonwealth is required if the breath
test is unavailable or if the individual is
physically unavailable to take the breath
test to administer the blood test. It's an
absolute requirement.

[THE COURT]: Isn't that a jury question?

[DEFENSE COUNSEL]: No, sir, I don't [think]
so.

[THE COURT]: How am I going to say that,
the officer says he was blowing out the
sides of the mouth and at one time, he
wasn't blowing at all. Then your client
comes on and says, well, no, I tried but it
didn't work. What am I supposed to do?

[DEFENSE COUNSEL]: I understand that there
is a question of credibility there. If you
choose to resolve against the defendant, you
can certainly do that.

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 [THE COURT]: Well, isn't it a jury
question? Isn't this something that a fact
finder [must] decide?

[DEFENSE COUNSEL]: No, sir. It seems to me
that the statute is mandatory . . . .

The basic factual issue to be decided on Bennett's motion

to dismiss was whether he faked the breath test, refusing to

properly breathe into the tube, or whether he was "physically

unable to submit to the breath test." The question then before

the trial court was whether, under the statute, this issue was

to be decided by the judge or the jury. Defense counsel's

response to the trial judge was correct. It was a legal

question to be decided by the trial judge. If the trial judge

believed Officer Sheppard, Bennett had no defense on this issue

because he had failed in his burden of proof to prove that he

was physically unable to take the breath test. See Lamay, 29

Va. App. at 473, 513 S.E.2d at 417 (holding that the accused

bears the burden of establishing physical inability to take the

breath test). If the trial judge believed appellant's theory of

the case and found he was physically unable to take the breath

test, then appellant would have been entitled to a blood test

and the motion to dismiss should have been granted.

Because the trial judge did not grant the motion to

dismiss, he implicitly found as a fact that appellant did not

establish that he was physically unable to take the breath test.

The trial judge at no time entered any order holding that the

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question of Bennett's physical inability to take the breath test

was a jury question. To the contrary, he decided the question

was one of law to be decided by the trial judge.

It is not unusual for a trial judge to instruct jurors that

they are the judges of the facts, the credibility of the

witnesses, and the weight of the evidence. The judge, as he is

required to do from time to time, asked counsel on both sides

for advice and guidance on the issue. Such "brainstorming" by

the trial court and counsel is an integral part of our judicial

system. Further, as previously stated, Code § 18.2-268.2 was

amended effective as of January 1, 1995, and no cases had been

decided interpreting the statute at that time. The trial judge

and the attorneys did not have the benefit of Lamay, which was

not decided until April 12, 1999, one year later. In Lamay we

said:

Appellant contends the trial court
erred in refusing to allow testimony
relating to the failure of the police to
comply with the requirement that when a
person is physically unable to submit to a
breath test, a blood test shall be given.
We have not had an opportunity to construe
fully the provisions of Code § 18.2-268.2
since its effective revision date of January
1, 1995. Therefore, this case comes before
us as one of first impression and requires
us to analyze Code § 18.2-268(B) in
situations where at his or her DUI trial an
accused DUI driver alleges physical
inability to take a breath test. We must
determine under the limited facts of this
case, what evidence is admissible, the

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 procedure to follow, and what remedy, if
any, should issue.

Id. at 467-68, 513 S.E.2d at 414-15 (emphasis added).

In this setting, the trial judge understandably but perhaps

erroneously said: "We will have to let the jury decide."

However, we do not view the trial judge's statement as

constituting an order or ruling on the motion to dismiss. He

never took any action or entered any order based upon the

statement. It is well understood that circuit court judges act

only through written, signed orders. See Rule 1:1; Davis v.

Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996); see also

Robertson v. Superintendent of the Wise Correctional Unit, 248

Va. 232, 235 n.*, 445 S.E.2d 116, 117 n.* (1994) (citing cases).

Nothing in the record suggests that the trial judge entered any

order or that the attorneys understood otherwise at the motion

hearing. Furthermore, judges can change their minds, and the

Rules of Court give them twenty-one days to do so.

The statement made by the trial judge at the motion hearing

did not conclude the hearing. The trial judge and counsel

continued to talk about the appearance of defense witnesses for

the trial scheduled on April 14, 1998. If counsel thought the

judge had ruled upon the motion, this would have ended the case,

and they would have had no reason to discuss further proceedings

that were to occur at the trial. After the discussion about the

witness, the motion hearing was adjourned with no decision

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having been made. In effect, the judge took the motion under

advisement.

On the same date as the hearing, April 9, 1998, the trial

judge entered an order which could not have been clearer or more

explicit. He ruled and appropriately memorialized his ruling in

the following signed, written order:

Evidence and arguments of counsel having
this day been presented on the defendant's
motion to dismiss these Appeals, the court
denied said motion.

This order complies in every respect with Rule 1:1.

Furthermore, the order shows that the trial judge accepted the

testimony of the police officer that Bennett repeatedly feigned

his offer to take the breath test and rejected the

unsubstantiated testimony of Bennett.

The trial judge was not required to give any written

explanation for his signed, written order. In Freeman v.

Payton, 207 Va. 194, 196, 148 S.E.2d 795, 797 (1966), Freeman

contended he "was denied a full and complete hearing because the

[trial] judge ruled on only the first two questions raised by

[his habeas corpus] petition." Finding that Freeman failed to

distinguish "between failure to rule and failure to announce

reasons for a ruling," id., the Supreme Court said:

[T]he [trial] Judge ruled on all points
raised in the petition. The [trial] Judge
saw fit to state reasons for rejecting two
of the alleged grounds for granting the
writ, and he saw fit to refrain from stating
reasons for rejecting the other . . .

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 alleged grounds. He may have refrained
because he thought the reasons self-evident.
In any event, he was not required to give
his reasons.

Id.

The only ruling made by the trial court upon the motion to

dismiss was on the issue of Bennett's ability to take the breath

test. Resolution of that issue rested on which witness to

believe, Sheppard or Bennett. This issue relates to the

previous dialogue between the trial judge and defense counsel.

Defense counsel advised the judge, "I understand that there is a

question of credibility there. If you choose to resolve against

the defendant you can certainly do that." The trial judge

accepted Sheppard's testimony that Bennett repeatedly feigned

his attempts to take the breath test, and he rejected Bennett's

unsubstantiated theory, raised for the first time at that

hearing, that he might possibly have an asthmatic condition,

making him physically unable to take a breath test. That

disposed of the motion to dismiss on the issue of Bennett's

physical inability to take the breath test. Because Bennett

failed to establish physical inability, he was not entitled to a

blood test under Code § 18.2-268.2.

Moreover, had Bennett truly believed the trial judge ruled

that the jury was to determine whether he was physically unable

to take the test, he would have attempted to raise that issue at

trial before the jury. He did not do so. At trial, the parties

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confined themselves to Bennett's guilt, namely, whether he was

driving under the influence of alcohol. Ostensibly, Bennett

failed to bring the matter up at trial because he was aware of

the written order denying the motion to dismiss based on the

credibility determination made by the trial judge and suggested

by defense counsel at the pretrial hearing.

In summary, we hold that the trial judge, in his order

following the motion hearing on April 9, 1998, implicitly found

that Bennett feigned the taking of the breath test in order to

prevent a proper breath analysis of the alcohol content of his

blood and that he was not physically unable to take the breath

test. We find that the Commonwealth fully complied with Code

§ 18.2-268.2. We further find that this issue was a question of

law and was so decided by the trial judge and was not submitted

or intended to be submitted to the jury for determination.

Testimony of Unavailable Witness

Bennett filed a motion in limine in the circuit court,

which was heard at a motion hearing on April 9, 1998, and on the

morning of the trial on April 14, 1998. He moved the court to

permit the introduction of the prior testimony of Pamela

Peterson, who testified in the general district court as a

witness on January 20, 1998, about sixteen months before the

circuit court trial. Bennett moved that Peterson's prior

testimony be presented to the jury in the form of either a

stipulation or by the testimony of persons present in the

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general district court who heard Peterson's testimony. However,

no transcript was made of the general district court proceeding,

and no proffer is in the record showing what the testimony of

any witness was.

In argument on the motion in limine, defense counsel

explained that he attached a stipulation to the motion, hoping

to get an agreement with the Commonwealth. However, the

Commonwealth's attorney refused to agree with the stipulation.

Further, defense counsel sought to ask Ms. Vigilance, the

prosecutor in the general district court, to appear and

"possibly recite what she recalls of that testimony." The

Commonwealth objected to this procedure. Nothing in the record

indicates what Ms. Vigilance recalled, if anything, or what her

testimony would have been if called.

"It is well established that 'testimony given at a former

trial is admissible as an exception to the hearsay rule if

certain requirements are met.'" Jones v. Commonwealth, 22 Va.

App. 46, 50, 467 S.E.2d 841, 843 (1996) (citation omitted); see

also Longshore v. Commonwealth, ___ Va. ___, ___, 530 S.E.2d

146, 146 (2000). These requirements are as follows:

"(1) The original witness must be
unavailable. (2) The witness who is now
unavailable must have been testifying under
oath (or affirmation) at the former trial.
(3) The issues must be substantially the
same in both trials. (4) The party against
whom the hearsay testimony is now offered
(or his privy in interest) must have been a
party in the former trial. (5) The witness

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 who is now testifying as to what was said at
the former trial must be able to do so with
reasonable accuracy."

Doan v. Commonwealth, 15 Va. App. 87, 100, 422 S.E.2d 398, 405

(1992) (citation omitted). The party offering the testimony

bears the burden of establishing the witness' unavailability.

See Jones, 22 Va. App. at 50, 467 S.E.2d at 843.

"'[A] declarant is unavailable if the party seeking to

introduce the statement has been unable by diligent inquiry to

locate the declarant.'" Cooper v. Commonwealth, 26 Va. App.

537, 542, 496 S.E.2d 77, 79 (1998) (citation omitted). We have

held that reasonable or "due diligence is that amount of

prudence 'as is properly to be expected from, and ordinarily

exercised by, a reasonable and prudent man under the particular

circumstances.'" McDonnough v. Commonwealth, 25 Va. App. 120,

128, 486 S.E.2d 570, 574 (1997) (citation omitted). This

standard "requires only a good faith, reasonable effort; it does

not require that every possibility, no matter how remote, be

exhausted." Id. at 129, 486 S.E.2d at 574. Furthermore, "it is

well established that the sufficiency of the proof to establish

the unavailability of a witness is largely within the discretion

of the trial [judge], and, in the absence of a showing that such

discretion has been abused, will not be interfered with on

appeal." Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660,

665 (1954).

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 In Doan, we explained that, "for a witness to be deemed

unavailable, the proponent of the evidence bears the burden of

proving . . . that one of the following conditions exists:

(1) The declarant is dead; (2) The declarant
is too ill to testify; (3) The declarant is
insane; (4) The declarant is absent from the
state and the party is unable to obtain the
declarant's deposition; (5) The party has
been unable by diligent inquiry to locate
the declarant; (6) The declarant cannot be
compelled to testify; and (7) The opposite
party has caused the declarant's absence."

Doan, 15 Va. App. at 101, 422 S.E.2d at 406.

At the April 9, 1998 motion hearing, appellant testified

regarding Peterson's unavailability. Bennett contends that he

met his burden under Doan and established Peterson's

unavailability, so that her testimony should have been presented

to the jury. We look to the facts to determine whether Bennett

was unable by diligent inquiry to locate the witness.

At the time of the January 20, 1998 general district court

trial, Peterson lived with friends in Hampton. Bennett and his

mother picked her up and transported her to court. After the

trial, she was taken to the bus station and returned to Hampton

by bus. A week later, Peterson contacted Bennett and gave him

her telephone number and address.

After obtaining the circuit court trial date, Bennett

called Peterson's telephone number and a man answered. He said

Peterson no longer lived there. When asked where he could "get

in touch with her," the man told Bennett he could try her place

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of employment at Bilo's in Newport News. Bennett tried several

times to contact her at Bilo's by telephone, but the company

would not give him any information about Peterson.

Three weeks prior to the trial, Peterson called Bennett's

wife, but his wife was ill. Peterson said she would call back

but did not do so.

Bennett never made any attempt to locate Peterson in person

at her place of employment. He relied on Peterson to contact

him rather than attempting to locate her in the Hampton area.

Bennett did not subpoena her at her last place of residence or

at her place of employment. The only excuse given for not

issuing a subpoena was that he did not know her address.

Peterson had friends in the Hampton area because Bennett picked

her up at their home for the general district court trial. He

made no effort to contact any of them to locate her.

Based on this evidence, the trial judge ruled that

reasonable or due diligence had not been exercised and that

appellant failed to prove Peterson was unavailable. After

reviewing the record before us, we cannot say the trial judge

abused his discretion.

In Doan, we said that "'[t]he witness who is now testifying

as to what was said at the former trial must be able to do so

with reasonable accuracy.'" Id. at 100, 422 S.E.2d at 405

(citation omitted). In this case, we do not know who the

witness would be. Defense counsel suggested that the former

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prosecutor, Ms. Vigilance, might testify concerning what

Peterson's testimony might have been. However, nothing in this

record proves that Ms. Vigilance recalled the Peterson testimony

with reasonable accuracy.

The trial judge refused to admit the evidence proposed by

Bennett because he failed to prove the former witness was

unavailable. The trial judge also found the proposed evidence

was speculative. We agree with these rulings.

Accordingly, we affirm the judgment of the trial court.

Affirmed.

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Coleman, J., with whom Benton and Elder, JJ., join, dissenting,
in part, and concurring, in part.

A panel of this Court reversed the defendant's conviction

for a second or subsequent offense of driving while intoxicated

because the trial court erroneously ruled that the jury, rather

than the trial judge, had to decide whether the defendant was

"physically unable to submit to the breath test" and thereby

entitled to a blood test as provided by Code § 18.2-268.2(B).

See Bennett v. Commonwealth, 31 Va. App. 30, 520 S.E.2d 845

(1999). In support of its decision reversing the trial court,

the panel set forth the dialogue between defense counsel and the

judge at the hearing on the motion to dismiss that led up to the

trial court's erroneous ruling, "We will have to let the jury

decide [that issue]." 2 Based upon that dialogue, the panel

2
The following dialogue ensued between the trial court and
defense counsel:

THE COURT: Do you have anything further?
Do you want to be heard?

MR. DORAN (defense counsel): Yes, sir, just
briefly. Judge, under 18.2268.2 [sic], the
Commonwealth is required if the breath test
is unavailable or if the individual is
physically unavailable to take the breath
test to administer the blood test. It's an
absolute requirement.

THE COURT: Isn't that a jury question?

MR. DORAN: No, sir, I don't think so.

THE COURT: How am I going to say that, the,
the officer says he was blowing out the side
of the mouth and at one time, he wasn't
blowing at all. Then, your client comes on

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concluded that the trial judge ruled that the issue was a

factual question for the jury and, therefore, denied the motion

to dismiss.

and says, well, no, I tried but it didn't
work. What am I supposed to do?

MR. DORAN: I understand that there is a
question of credibility there. If you
choose to resolve against the defendant, you
can certainly do that.

THE COURT: Well, isn't it a jury question?
Isn't this something that a fact finder to
decide?

MR. DORAN: No, sir. It seems to me that
the statute is mandatory and if there is
sufficient indication, I think the standard
of proof is on the probable cause. You may
reject it and say that factually we have not
laid the predicate for you to call into play
the mandatory language of the statute. If
you do that, it's not much I can say except
I appeal or otherwise.

THE COURT: Wait a minute. You are hanging
your hat on the fact that he asked for a
blood test?

MR. DORAN: That is right.

THE COURT: The officer said he never asked
for a blood test.

* * * * * * *

THE COURT: Isn't this a jury question?

* * * * * * *

THE COURT: We will have to let the jury
decide. It's not for me to decide. I can't
just do that. I'm not even going to try the
case. I'm just going to sit here and watch
you try the case.

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 Now, a majority of the Court disregards the clear ruling of

the trial judge by characterizing it as an "understandabl[e] but

perhaps erroneous[] [statement]." Inexplicably, the majority

further holds that the trial judge "implicitly" ruled on the

merits of the motion to dismiss and found that Bennett was not

physically unable to submit to the breath test. The record

contains not the slightest suggestion that the trial judge found

that the defendant was not physically unable to submit to the

breath test. The trial judge denied the motion to dismiss

because he decided it was an issue for the jury, not because he

decided the merits of the motion. Accordingly, I respectfully

disagree with the majority's opinion and dissent from that

holding. 3

I would reverse and remand to the trial court with

directions for the court to conduct an evidentiary hearing on

the motion to dismiss and to rule on that motion. If the trial

court finds by a preponderance of the evidence that the

defendant was able to submit to a breath test and denies the

motion, the judgment of the jury should be reinstated. However,

if the trial judge finds that the defendant was unable to submit

to the breath test and was denied a blood alcohol test, the

motion to dismiss should be granted. See Lamay v. Commonwealth,

29 Va. App. 461, 476, 513 S.E.2d 411, 418 (1999).

3
I concur in the majority's opinion on "The Unavailable
Witness."

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 The analysis in support of my dissent in this case is ably

set forth in the panel's opinion authored by Judge Willis, who

has approved my adopting it verbatim:

The order reciting the proceedings on Bennett's motion to

dismiss states, in essential part:

Evidence and arguments of counsel having
this day been presented on the defendant's
motion to dismiss these Appeals, the Court
denies said motion.

* * * * * * *

"It is firmly established law in this Commonwealth that a

trial court speaks only through its written orders." Davis v.

Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996). Normally,

in reviewing a trial court's factual holding, we inquire whether

the record contains credible evidence supporting that holding.

Were that the standard of review to be applied in this case, we

would affirm the trial court's dismissal of Bennett's motion.

Officer Sheppard's testimony sufficiently supported that ruling.

However, upon the record presented in this case, our first

inquiry is to identify the trial court's ruling. Its holding,

embodied in the order, can be read fairly only in the context of

its pronouncements from the bench. From the bench, the trial

court made no ruling and directed the entry of no order

addressing the merits of the motion. The order itself contains

no recitation suggesting a ruling on the merits. Rather, the

trial court stated plainly and repeatedly that it found the

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issues raised by the motion inappropriate for decision by it.

It refused decision on those issues and reserved them for

presentation to the jury, should Bennett so elect. 4 Plainly, the

trial court's dismissal of the motion was based not upon a

determination on the merits, but rather upon its refusal to

entertain the motion as a preliminary matter. In so ruling, the

trial court erred.

The credibility issue concerning compliance with Code

§ 18.2-268.2 was a question of fact preliminary to a ruling of

law. This question necessarily required determination by the

trial court. "Issues of fact are usually left to the jury, but

there are strong reasons here for not doing so." 6 McCormick on

Evidence § 53 (Edward W. Cleary ed., 3rd ed. 1984). The motion

to dismiss addressed whether the Commonwealth might prosecute

the charge.

"Questions as to the competency or
admissibility of testimony . . . are
referred to the decision of the judge. 'As
it is the province of the jury to consider
what degree of credit ought to be given to
evidence, so it is for the court alone to
determine whether a witness is competent, or
the evidence admissible. Whether there is
any evidence is a question for the court;
whether it is sufficient is for the jury.
And whatever antecedent facts are necessary
to be ascertained, for the purposes of
deciding the question of competency -- as,
for example, whether a child understands the
nature of an oath, or whether the confession
of a prisoner was voluntary, or whether

4
These issues were not presented to the jury.

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 declarations offered in evidence as dying
declarations were made under the immediate
apprehension of death -- those, and other
facts of the same kind, are to be determined
by the court, and not by the jury.'"

Mullins v. Commonwealth, 113 Va. 787, 791, 75 S.E. 193, 195-96

(1912) (citations omitted).

The action of the [trial] court in
leaving evidence objected to provisionally
to the jury, to be considered or rejected by
them, as they might determine its
admissibility or inadmissibility under the
instruction given by the [trial] court, was
not proper practice, as the jury has nothing
to do with the admissibility of the
evidence.

Id. See 7B Michie's Jurisprudence, Evidence § 287 (1998). "The

factual determinations which are necessary predicates to rulings

on the admissibility of evidence and the purposes for which it

is admitted [as well as related questions] are for the trial

judge and not the jury." Rabeiro v. Commonwealth, 10 Va. App.

61, 64, 389 S.E.2d 731, 732 (1990). See also C. Friend, The Law

of Evidence in Virginia, §§ 1-5 (4th Ed. 1993). The same rule

governs resolution of preliminary questions of fact underlying

rulings of law by a trial court.

If the trial court believed Bennett, Code § 18.2-268.2

required dismissal of the charge. If, however, the trial court

believed Officer Sheppard, the motion to dismiss should have

been denied.

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 The trial court erred in refusing to determine the

preliminary question of credibility and in refusing to rule on

the merits of the motion to dismiss.

For these reasons, I dissent from the majority's decision

on the motion to dismiss and would reverse and remand with

directions for the trial court to hear and rule upon the motion

to dismiss.

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