Com. v. Williams, Record No. 003033.

Decision Date02 November 2001
Docket NumberRecord No. 003033.
Citation553 S.E.2d 760,262 Va. 661
PartiesCOMMONWEALTH of Virginia v. Herbert WILLIAMS, Jr.
CourtVirginia Supreme Court

Richard B. Smith, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on briefs), for appellant.

Dan Burke (Tyler Bartl & Gorman, on brief), Alexandria, for appellee.

Present: All the Justices.

KEENAN, Justice.

In this appeal, we consider whether the Court of Appeals erred in reversing the circuit court's judgment on the ground that the failure to grant the defendant's request for a jury trial denied him a constitutional right.

Herbert Williams, Jr., was indicted for robbery in violation of Code § 18.2-58, for illegal use of a firearm in violation of Code § 18.2-53.1, and for unlawful wearing of a mask in violation of Code § 18.2-422. He was accused of robbing Dost M. Khan, a hotel desk clerk, at gunpoint. Williams was convicted of all three offenses in a bench trial in the Circuit Court of the City of Alexandria. The court sentenced Williams to a total of 13 years' imprisonment and suspended five years of that sentence.

Williams appealed from his conviction to the Court of Appeals, which reversed and remanded the circuit court's judgment in a published opinion. Williams v. Commonwealth, 33 Va.App. 506, 515, 534 S.E.2d 369, 373 (2000). The Court of Appeals concluded, among other things, that the circuit court erred when it refused to grant Williams' request for a jury trial. Id. The Commonwealth appealed from the judgment of the Court of Appeals.

We do not state the evidence presented at trial because it is not relevant here. However, we recite the procedural history of the case in the circuit court prior to trial because that history is important to an understanding of the issue in this appeal.

The case was originally set for trial on March 4, 1997. On Williams' motion, the case was continued to April 2, 1997, and Williams was released on bond. Williams became a fugitive for six months and was arrested again in October 1997. His trial was rescheduled for November 20, 1997.

On that date, Williams moved for a continuance and signed a jury waiver form. The jury waiver form stated that "I, the undersigned defendant hereby waive my right to a trial by jury, and request the court to hear all matters of law and fact in [this] case." After the Commonwealth's attorney and the presiding judge also signed the jury waiver form, the court entered an order continuing the case to January 21, 1998. The order noted that "the defendant, the Attorney for the Commonwealth and the Court signed the jury waiver form."

On January 20, 1998, the day before trial, Williams again asked for a continuance. The circuit court denied Williams' motion. On the day of trial, Williams asked to be tried by a jury. Williams stated that he had changed his mind about wanting a jury trial because his expert witnesses were not available on that date and some of his tape recorded statements had been "compromised" and "tampered with" in the editing process.

Williams' counsel told the circuit court that he was not prepared for a jury trial. He requested a continuance of the case, informing the circuit court that "[w]e are simply not prepared to go forward today...." The Commonwealth's attorney objected to a continuance, arguing that the tape recordings of Williams' conversations had been made available to defense counsel at an earlier date, and that any revisions were minor in nature. The Commonwealth's attorney also noted that 11 witnesses for the Commonwealth were present in court and ready to testify. Finally, the Commonwealth's attorney informed the circuit court that the robbery victim was scheduled to leave the country the following week for a three-month visit to his native country.

The circuit court denied Williams' request for a jury trial and his counsel's motion for a continuance. The court noted that Williams could have requested a jury trial the previous day when he made a motion for a continuance.

The Court of Appeals held that the circuit court erred when it refused Williams' request to be tried by a jury. Williams, 33 Va.App. at 515, 534 S.E.2d at 372-73. The Court acknowledged that "[when] there has been a knowing, intentional and voluntary waiver of the right to a jury trial there is no absolute constitutional right to withdraw it." Id. at 513, 534 S.E.2d at 372 (quoting Carter v. Commonwealth, 2 Va.App. 392, 398-99, 345 S.E.2d 5, 9 (1986)). However, the Court observed that "[i]n the instant case, the record does not reflect that the [circuit] court determined that [Williams] voluntarily and intelligently consented to trial without a jury." Id. The Court stated:

In the present case, the [circuit] court never found that [Williams] voluntarily and intelligently waived his right to trial by jury. The transcript of the hearing in which [Williams] signed the waiver is not before this Court. The Commonwealth argues that because [Williams] did not include the transcript, the "waiver" argument must be rejected pursuant to Rule 5A:8(b). Because the continuance order, which referenced the "waiver," contains no finding that the jury waiver was voluntarily and intelligently entered, the transcript is not relevant. A court speaks only through its orders.... The order reflecting the hearing merely acknowledges that [Williams] signed the waiver and that the Commonwealth's attorney and the [circuit] court concurred.

Id. at 514, 534 S.E.2d at 372.

The Court of Appeals reasoned that Williams did not effectively waive his right to a jury trial because the record failed to show that the circuit court found that his waiver was voluntarily and intelligently made. Id. at 515, 534 S.E.2d at 372. The Court of Appeals thus concluded that Williams had an absolute right to a jury trial on the date he ultimately was tried. Id. at 515, 534 S.E.2d at 372-73.

On appeal, the Commonwealth first observes that the Court of Appeals based its holding on an issue that Williams did not preserve either at trial or on appeal, the question whether his jury trial waiver was voluntary. The Commonwealth notes that Williams did not challenge the voluntary nature of his jury trial waiver until four months after his convictions and, on appeal, merely asked the Court of Appeals to consider the question whether the circuit court's failure to grant Williams a jury trial "violated his right to a jury under the Virginia and United States Constitutions." Id. at 512, 534 S.E.2d at 372. Therefore, the Commonwealth contends that our review of the issue whether Williams' jury trial waiver was voluntary is procedurally barred under Rule 5:25, and that the circuit court's judgment must be reviewed to determine whether the court properly exercised its discretion in denying Williams' request to withdraw his jury trial waiver.

In response, Williams argues that the issue whether his jury trial waiver was voluntary cannot be separated from the issue whether the circuit court improperly denied him a jury trial. Williams contends that Rule 3A:13(b) requires that the voluntary nature of a jury trial waiver be reflected in the court's order memorializing that waiver. Williams asserts that "[t]he record is devoid of these findings required by Rule 3A:13," and that since the order of January 21, 1998 failed to make such findings, the circuit court lacked jurisdiction to try him without a jury. We disagree with Williams' arguments.

Initially, we conclude that the issue whether Williams' jury trial waiver was voluntary is not properly before us in this appeal. In reaching this conclusion, we reject Williams' assertion that Rule 3A:13 imposes a jurisdictional requirement that the voluntary nature of a jury trial waiver be memorialized in a court order. Rule 3A:13 provides, in relevant part:

(b) ... 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 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.

See Va. Const. art. I, § 8; Code § 19.2-257.

This provision requires the circuit court to determine whether a defendant voluntarily and intelligently waives his right to a jury trial before proceeding to trial of the case. Once the circuit court has made the determination that the defendant's waiver is voluntarily and intelligently made, the court is required to enter in the record the defendant's consent to be tried without a jury. The concurrence of the Commonwealth's attorney and the circuit court in the waiver of jury trial also must be entered in the record.

By its terms, therefore, Rule 3A:13(b) does not require that the circuit court memorialize by order its determination that the defendant's jury trial waiver is voluntary and intelligent. Instead, Rule 3A:13(b) requires that once the court has made this determination, the court shall enter in the record the defendant's agreement to be tried without a jury. See Va. Const. art. I, § 8; Code § 19.2-257.

In the present case, the record shows that on November 20, 1997, Williams signed a document stating, "I, the undersigned defendant hereby waive my right to a trial by jury, and request the court to hear all matters of law and fact in [this] case." The concurrence of the Commonwealth's attorney and the circuit court in the waiver was noted on the form by their respective signatures bearing that date. The circuit court also entered an order on November 24, 1997, stating that Williams, the Commonwealth's attorney, and the court had executed the jury waiver form. These entries in the record met the requirements of Rule 3A:13(b).

We disagree with Williams' assertion that a different conclusion is required by prior decisions in which we have stated that "a court speaks only through...

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