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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