Thomas v. Com., 770421

• Decision Date: 23 November 1977
• Docket Number: No. 770421,770421
• Parties: Ralph THOMAS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 834

238 S.E.2d 834

218 Va. 553

Ralph THOMAS v. COMMONWEALTH of Virginia.

Record No. 770421.

Supreme Court of Virginia.

Nov. 23, 1977.

Fred A. Talbot, Richmond (James A. Baber, III, Bremner, Baber & Janus, Richmond, on brief), for plaintiff in error.

Vera S. Warthen, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

I'ANSON, Chief Justice.

The question presented on this appeal is whether the trial court abused its discretion in refusing to allow the defendant, Ralph Thomas, to withdraw his waiver of trial by jury and have his cases tried by a jury.

Defendant was charged in two misdemeanor informations with attempting to intimidate two witnesses from testifying in a case pending against his brother, and thereby attempting to obstruct and impede the administration of justice in violation of Code § 18.2-460.

At his arraignment on September 16, 1976, defendant pleaded not guilty to both charges. He voluntarily and intelligently waived his right to a jury trial with the concurrence of the attorney for the Commonwealth and the court entered of record. On November 22, defendant filed with the trial judge a written motion, which was marked "seen" by the attorney for the Commonwealth, seeking a jury trial of his cases set for trial on December 3, 1976. The trial judge marked the motion "filed" but did not act on it until the day the cases against the defendant were set for trial. On December 3, after hearing argument on the motion to which the attorney for the Commonwealth interposed no objection, the trial court overruled the motion on the grounds that the defendant had voluntarily and intelligently waived a trial by jury; that defendant had had an opportunity to request withdrawal of his waiver prior to November 22; and that since the court had scheduled its work throughout the months of December and January, to permit the withdrawal of the waiver "would interfere with the orderly administration of justice in this court." Thereupon, defendant's cases were tried by the court without the intervention of a jury. Defendant was found guilty of both charges and was sentenced to confinement in jail for a period of 12 months on each charge.

Article I, § 8 of the Constitution of Virginia guarantees to an accused in a criminal case the right to a jury trial. This same section of the Constitution of Virginia, however, also permits an accused who pleads not guilty to waive a jury and to be tried by the court with the concurrence of the attorney for the Commonwealth and the court entered of record. See also Code §§ 19.2-257 and 19.2-258. The Virginia Constitution and statutes are silent as to whether an accused will be permitted to withdraw a waiver of a trial by jury once that waiver has been exercised; and if so, when such withdrawal of the waiver must be exercised.

The precise question presented on this appeal has not been decided by us. However, the general rule is stated in 47 Am.Jur.2d Jury § 70 at 687 as follows:

"Whether one accused of crime who has regularly waived a jury trial will be permitted to withdraw the waiver and have his case tried before a jury is ordinarily within the discretion of the trial court. The rule, as expressed in some cases, is that if an accused's application for withdrawal of waiver is made in due season so as not to substantially delay or impede the cause of justice, the trial court should allow the waiver to be withdrawn.

"The authorities are uniformly to the effect that a motion for withdrawal of waiver made after the commencement of the trial is not timely and should not be allowed. Whether a motion for the withdrawal of a waiver of trial by jury made prior to the actual commencement of the trial of the case is timely depends primarily upon the facts and circumstances of the individual case. Where there is no showing that granting the motion would unduly delay the trial or would otherwise impede justice, the motion is usually held to be timely. In some cases, however, it has been held that a motion for withdrawal of a waiver of jury trial, although made prior to the trial, was not timely and was properly denied by the trial court, the decisions in these cases being based primarily upon the ground that granting the motion would have resulted in an unreasonable delay of the trial." (Emphasis added, footnotes omitted)

E. g., Brumbalow v. State, 128 Ga.App. 581, 197 S.E.2d 380 (1973); Staten v. State, 13 Md.App. 425, 283 A.2d 644, 646 (1971); People v. Melton, 125 Cal.App.2d 901, 271 P.2d 962, 964, 46 A.L.R.2d 914 (1954); Annot., 46 A.L.R.2d 919 (1956) and the numerous cases there collected.

In the present case the motion to withdraw the waiver of a jury trial was made eleven days before defendant's cases were set for trial, but the trial court did not act on it at that time. The record is devoid of any showing that a jury could not have been impaneled for the trial on December 3; that the motion was made solely for the purpose of delay; and that a continuance of the cases for a trial during the January term of court, which began on the second Monday of that month, would unduly delay the trial or impede the cause of justice. Furthermore, the attorney for the Commonwealth did not voice any objection to defendant's motion, and there is nothing in the record to indicate that the three witnesses for the prosecution would have been inconvenienced if the cases had been continued to a day during the January term of court.

When the facts and circumstances here are weighed in light of the defendant's constitutional and statutory right to a trial by jury, we hold that the motion was seasonably made; that it was not for the purpose of delay; and that granting the motion would not have resulted in an unreasonable delay of the trial thereby impeding the cause of justice. Hence, the trial judge abused his judicial discretion in denying the defendant the right to withdraw his waiver of a jury trial.

For the reasons stated, the judgment in the court below is reversed and the cases are remanded for a new trial.

Reversed and remanded.

COMPTON, J., dissenting.

COMPTON, Justice, dissenting.

The sole question here is whether there has been a valid exercise of discretion by the court below in denying defendant's motion to withdraw the waiver. When examining a trial court's employment of judicial discretion, a proper application of appellate review will leave the exercise of such discretion undisturbed unless it plainly appears that the discretion has been abused. It does not plainly appear to me that such an abuse has occurred in this case, and I therefore dissent.

The evidence requires close examination. After capiases, issued upon the informations, were executed on defendant on August 6, he was bonded on August 10 to appear before the court for arraignment on ...