Herbert Williams, Jr. v. Commonwealth of Virginia , 33 Va. App. 506 ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
HERBERT WILLIAMS, JR.
OPINION BY
v. Record No. 1253-98-4 JUDGE ROBERT P. FRANK
SEPTEMBER 26, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Thomas J. Fortkort, Judge Designate
Dan Burke (Tyler, Bartl, Burke & Albert, on
briefs), for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Herbert Williams, Jr., (appellant) was convicted of robbery
in violation of Code § 18.2-58, use or display of a firearm in
the commission of a felony in violation of Code § 18.2-53.1 and
wearing a mask in violation of Code § 18.2-422. On appeal, he
contends the trial court erred in: 1) failing to grant him a
trial by jury, 2) failing to grant him a continuance, and 3)
finding the evidence sufficient to support the convictions. We
agree in part and disagree in part. Accordingly, we reverse and
remand.
II. BACKGROUND
On September 18, 1996, Dost Khan was working at the front
desk of the Towers Hotel in Alexandria. At approximately
10:00 p.m., a man, who was dressed in a camouflage suit and was
carrying a gun, came up to him. Because the man was wearing a
mask, Khan could only see his eyes and hand. Khan estimated the
robber to have been six feet six inches tall and stated that the
man had dark skin.
The man told Khan to give him all the money or he would
shoot him. Khan told the man to take the money from the
register. The register contained one and five dollar bills.
When the man put the money in his pocket, Khan saw a key
attached to a white object fall to the floor. The robber then
left the premises.
Khan's co-worker, Sayed Salay, was in the back when he
heard the robber tell Khan, "Give me the money, Otherwise I will
shoot." Salay went into the office and called 911 as the robber
left the premises. Salay estimated there had been between $75
and $76 in the register.
The first police officer arrived within a minute. No one
entered or left the hotel between the time the robber left and
the police officer arrived.
Officer Kim Hendrick arrived within five minutes with her
police dog, "Husky." Hendrick was qualified as an expert and
testified that she "started a track right from the area [where
Khan] had pointed out he had last seen the suspect." She stated
that "Husky immediately picked up the scent," and she let the
dog pull her along the track.
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She testified that, as the dog moved away from the hotel,
"[t]he dog's behavior [was] telling [her] that the person that
[they were] tracking [was] close by." Shortly thereafter,
appellant came walking along the sidewalk from an area of
foliage. Husky lunged at appellant, which Hendrick said
indicated that the dog "was trying to tell [her] that this is
the person that we are looking for."
Appellant asked Hendrick, "Are you looking for a guy with a
mask on?" He then told her he had seen such a man running in a
northerly direction. Because Hendrick never saw anyone wearing
a mask or camouflage, she asked appellant why he was there.
Appellant answered, "I'm here to pick up my wife."
Hendrick left appellant with the other officers at the
hotel and went to a nearby site where a Cadillac automobile had
been found. She testified that she "put the dog in the car and
right away [Hendrick] saw a camouflage suit" in the backseat of
the car.
When Hendrick returned to the hotel, Husky immediately
focused on appellant again, barking and pulling toward appellant
while ignoring everyone else. In Hendrick's expert opinion,
Husky's behavior was consistent with the dog telling her
appellant was the object of the "track" from the front door.
When Officer Tim Madden talked to appellant, appellant told
him he had seen a man wearing a mask and a drab green sweatshirt
running north on Van Dorn Street. Officer Madden noted that
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appellant "appeared to me to be nervous." Madden also stated
that "he looked as though, very disheveled, sweating a slight
bit." Appellant told Madden his name was "Dick Clark" and that
he lived on Chamberlain Street in Cincinnati, but he could not
spell the name of the street. Appellant said he was visiting
friends in Washington and had been on his way to a 7-11
convenience store.
After Husky found the camouflage suit in the Cadillac,
Sergeant Bishop observed a telephone message slip with the name
"Herb Williams" on it, and another officer found a letter from
the I.R.S. addressed to "Herbert Williams" in the vehicle.
Beneath the papers in the car, the officers found a Marksman 177
air pistol. Officer Balcom testified the weapon fires a ".177
caliber steel or lead projectile." Balcom also stated that the
gun "resembles a semiautomatic handgun that would fire a
different type of projectile." They also found a mask in the
back of the car. The face of the mask was black and white and
had a black hood over the back of it.
The officers found "$77 in one and five denominations" in
the pocket of the camouflage suit. The set of keys dropped by
the robber had a Cadillac insignia on both sides. Detective
Joseph Seskey started the Cadillac with the keys dropped by the
robber.
Appellant told Sergeant Bishop he was visiting a friend at
the hotel but declined to identify the friend. When appellant
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told Bishop his name really was Herbert Williams, the officer
testified that he "linked [appellant] to the vehicle and told
him that he was under arrest and charged with robbery."
Dost Khan testified the mask found in the Cadillac was
similar to the one worn by the robber. The gun shown to him at
the trial was the same size as the robber's, but the color was
not exactly the same. However, Officer Balcom testified that
the cyanide acrylate that had been put on the gun when it was
processed for fingerprints had distorted the weapon's color.
Appellant testified in his own behalf. He admitted to
having been convicted of four felonies. He claimed someone
named "Steve" took his car. After waiting two hours, he started
to walk when he saw the police near the Towers Motel. He denied
going into the motel, wearing a mask, or carrying a gun.
Appellant denied having committed or having knowledge of the
robbery. He claimed "Steve" was 5'10" tall; appellant admitted
that he is 6'4" tall.
II. ANALYSIS 1
A. Trial by Jury
Appellant was indicted on January 6, 1997. The trial
originally was scheduled for March 4, 1997. On appellant's
motion, it was continued until April 2, 1997, and appellant was
1
Because we find the trial court erred in failing to grant
appellant a trial by jury, we need not address appellant's
assignment of error with regard to the continuance.
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released on bond. Appellant absconded for six months and was
arrested on a capias in October 1997. The trial was then set
for November 20, 1997.
On November 20, 1997, appellant signed a jury waiver form
that stated, "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 the above case." The jury waiver form also was
signed by the Commonwealth's attorney and the trial court,
indicating their concurrence. On November 24, 1997, the trial
court entered an order continuing the case until January 21,
1998. The order stated appellant and the Commonwealth signed
the jury waiver form.
On January 20, 1998, appellant filed a motion for another
continuance, which the trial court denied. On the day of trial,
January 21, 1998, appellant asked for a jury, stating that he
had changed his mind. In denying appellant's demand for a jury,
the trial court responded that appellant had more than a month
to request a jury and such request could have been made the day
before trial in connection with the continuance motion.
Appellant's counsel, the final of four attorneys who
represented appellant in various stages of the proceedings, was
surprised at appellant's demand and indicated he was not
prepared for a jury trial.
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The Commonwealth had eleven witnesses present and was ready
to proceed. One witness planned to leave on a three-month
vacation the next week.
Appellant maintains the trial court, in denying his request
to be tried by a jury, violated his right to a jury under the
Virginia and United States Constitutions.
Article I, § 11 of the Virginia Constitution provides, in
pertinent part, that "in controversies respecting property, and
in suits between man and man, trial by jury is preferable to any
other, and ought to be held sacred." Code § 8.01-336 provides,
in part, that "[t]he right of trial by jury as declared by
Article I, § 11 of the Constitution of this Commonwealth and by
the statutes thereof shall be preserved inviolate to the
parties." The same section also permits an accused who enters a
plea of not guilty to waive a jury with the concurrence of the
Commonwealth's Attorney and the court entered of record. See
id.
Rule 3A:13(b) sets forth the procedure for waiver of a jury
trial:
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.
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In the instant case, the record does not reflect that the
trial court determined that appellant voluntarily and
intelligently consented to trial without a jury.
Jones v. Commonwealth, 24 Va. App. 636, 484 S.E.2d 618
(1997), is instructive. In Jones, the appellant signed a
scheduling order indicating she chose to be tried by the court,
not a jury. See id. at 639, 484 S.E.2d at 620. The Jones Court
found that because the trial court made no finding that the
appellant voluntarily and intelligently waived her right to a
jury, there was no valid waiver of a jury. See id. at 640, 484
S.E.2d at 620. The Court stated, "This is not a case where an
accused validly waives a jury trial and then seeks to withdraw
that waiver." Id. at 641, 484 S.E.2d at 621.
"Where 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." Carter v. Commonwealth, 2
Va. App. 392, 398-99, 345 S.E.2d 5, 9 (1986) (citation omitted).
Thomas v. Commonwealth, 218 Va. 553, 238 S.E.2d 834 (1977),
sets forth the factors to be considered when the accused moves
to withdraw his or her waiver:
"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
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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."
Id. at 555, 238 S.E.2d at 835 (citation omitted).
In the present case, the trial court never found that
appellant voluntarily and intelligently waived his right to
trial by jury. The transcript of the hearing in which appellant
signed the waiver is not before this Court. The Commonwealth
argues that because appellant 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
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speaks only through its orders. See Cunningham v. Smith, 205
Va. 205, 208, 135 S.E.2d 770, 773 (1964).
The order reflecting the hearing merely acknowledges that
appellant signed the waiver and that the Commonwealth's attorney
and the trial court concurred.
Without such finding, appellant did not effectively waive
his right to a jury. On the trial date, appellant had an
absolute right to a jury. This is not a case where appellant
moved to withdraw his waiver; therefore, we do not decide
whether the trial court abused its discretion in not allowing
appellant to withdraw a proper waiver of his right to a jury.
For these reasons, we find that the trial court erred in failing
to grant appellant a trial by jury, and, therefore, we reverse
and remand for a new trial.
B. Sufficiency of the Evidence
We review the sufficiency of the evidence based on the
evidence adduced at trial, and we do so for double jeopardy
purposes. See Parsons v. Commonwealth, 32 Va. App. 576, 581,
529 S.E.2d 810, 812-13 (2000). We find the evidence adduced at
trial sufficient to support the convictions.
III. CONCLUSION
Although we find the evidence sufficient to support the
convictions, we reverse and remand for a new trial because we
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find that the trial court erred in failing to grant appellant's
request for a trial by jury.
Reversed and remanded.
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