COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
JOHN W. LYLES, JR.
v. Record No. 1650-94-4 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jack B. Stevens, Judge
Francis G. McBride for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
John W. Lyles, Jr. (appellant) appeals his bench trial
convictions of reckless driving and disregarding a police signal
to stop in violation of Code §§ 46.2-852 and 46.2-817
respectively. The sole issue raised is whether the trial court
erred in continuing the hearing after jeopardy attached so that
appellant could retain an attorney. Finding no error, we affirm.
Under well established principles, we state the facts in the
light most favorable to the prevailing party below, in this case
1
the Commonwealth. See Martin v. Commonwealth, 4 Va. App. 438,
443,
358 S.E.2d 415, 418 (1987). On October 31, 1993, Trooper
Ingham of the Virginia State Police was patrolling Interstate 495
and saw appellant's vehicle in the middle lane moving at what
appeared to be a high rate of speed. He initially paced
1
The record in this case was a written statement of facts
pursuant to Rule 5A:8(c).
appellant's car at eighty-five miles-per-hour and activated his
emergency equipment. Appellant did not respond and increased his
speed to approximately 103 miles-per-hour. Appellant exited onto
Gallows Road and stopped for a traffic light. Trooper Ingham
pulled in front of appellant's car. When asked why he failed to
stop, appellant "responded that he was in a hurry to relieve the
doctor covering for him at the hospital."
On the original trial date, June 16, 1994, appellant waived
counsel, was arraigned on the charges, and entered pleas of not
guilty. The Commonwealth called its first witness, Trooper
Ingham, and he identified himself and began his testimony. The
trial judge interrupted and asked the Commonwealth's attorney
whether under the circumstances described by the trooper the
Commonwealth was willing to waive any possible jail sentence.
The Commonwealth's attorney responded that he would not, and the
trial judge then advised the parties that he would continue the
matter until July 7, 1994, to give appellant an opportunity to
retain counsel. The case was later continued from July 7 to July
28 at appellant's request.
On the morning of the resumption of trial, the case was
initially assigned to another judge but was transferred to the
original trial judge. The same judge heard the proceedings on
June 16, 1994, and the resumed trial on July 28, 1994.
Appellant's motion to dismiss based on double jeopardy was
denied. When the trial resumed, the trial court did not arraign
2
appellant a second time, and appellant did not enter pleas to the
charges. The Commonwealth recalled Trooper Ingham as its first
witness, and he continued his testimony. Appellant was found
guilty on both charges.
Appellant argues that the trial court's continuance of the
trial was in effect a termination or "complete discontinuance" of
the earlier proceedings without the consent of the accused and
thus barred any later trial. In his motion to dismiss, he relied
on Webb v. Hutto, 564 F. Supp. 405 (W.D. Va. 1982), a case
reversed on appeal. See
720 F.2d 375 (4th Cir. 1983), cert.
denied,
465 U.S. 1080 (1984).
"Whether to grant or deny a continuance of a trial is a
matter that lies within the sound discretion of a trial court,
and its ruling will not be reversed on appeal unless it is
plainly wrong." Cardwell v. Commonwealth, 248 Va. 501, 508,
450
S.E.2d 146, 151 (1994), cert. denied,
115 S. Ct. 1826 (1995). A
trial court is not prevented from granting an appropriate
continuance even after jeopardy has attached and the trial has
begun. See Bennett v. Commonwealth,
236 Va. 448, 459-62,
374
S.E.2d 303, 310-12 (1988), cert. denied,
490 U.S. 1028 (1989).
In Bennett, a capital murder case, an issue arose midtrial
whether Mary Bennett, the central witness for the prosecution,
was married to Bennett or to another man, and thus whether her
testimony should be excluded as privileged under Code
§ 19.2-271.2. 236 Va. at 454-55,
374 S.E.2d at 308. During the
3
trial, the Commonwealth was surprised when Bennett introduced
into evidence a California order that validated his marriage to
Mary. The Commonwealth asked for and was granted a continuance.
Bennett objected strenuously, arguing that a continuance would
deprive him of a part of his defense, the ability to surprise the
Commonwealth, and that it would violate his constitutional
rights. Id. at 459-60, 374 S.E.2d at 311. The Supreme Court
held that Bennett had no "right of surprise," stating that:
The aim of trials is to find the truth. . . .
All the rules of decorum, ethics, and
procedure are meant to aid the truth-finding
process. Ambush, trickery, stealth,
gamesmanship, one-upmanship, surprise have no
legitimate role to play in a properly
conducted trial.
Id. at 460-61,
374 S.E.2d at 311.
The Supreme Court also held that the fact that the jury had
been impaneled did not invalidate the continuance and relied upon
the Fourth Circuit Court of Appeals decision in Webb, 720 F.2d
375. In Webb, the Fourth Circuit upheld a five-day continuance
so that the prosecution could subpoena key witnesses.
720 F.2d
at 380. The Fourth Circuit stated that:
[I]mmediately before and immediately after
the swearing of the first witness in a nonjury trial the difference is, in many
respects, miniscule. The simple, yet to us
controlling, consideration is that the
accused must be placed in jeopardy twice for
double jeopardy to exist. It happens when
the second event involves a completely new
beginning, i.e., when the second proceeding
takes place before a new trier of fact, . . .
or the same judge starting with a clean
slate. It simply does not occur when the
very same proceeding continues on after a
4
brief postponement before the first and only
trier of fact . . . .
Id. at 379 (citation omitted) (emphasis added). The Court in
Bennett noted that, "even though the new witnesses [in Webb]
helped convict the accused, the Fourth Circuit said there was a
'total lack of prejudice to the defendant.'"
236 Va. at 462,
374
S.E.2d at 312 (quoting Webb,
720 F.2d at 378).
We hold that the rationale of Bennett and Webb is equally
applicable to the instant case. The trial court's order of
August 18, 1994 indicates why the court continued the trial:
During the Commonwealth's Attorney['s]
case in chief, the Court inquired of the
Commonwealth's Attorney if the Commonwealth
would be willing to waive jail time for the
Defendant. The Commonwealth's Attorney
advised the Court that the Commonwealth would
not waive jail time for the Defendant.
The Court then inquired of the Defendant
why he did not have legal counsel. The Court
stopped all proceedings in this case and
advised the Defendant to seek Counsel.
Unlike the continuances in Bennett and Webb, the continuance in
this case was for the benefit of appellant rather than the
Commonwealth. Appellant does not contend that the brief
continuance prejudiced him in any way, and no evidence in the
record demonstrates prejudice. On the contrary, the trial court
continued the case specifically to allow appellant to retain an
attorney to protect his interests. In fact, on July 7,
appellant's counsel requested an additional continuance to have
the trial heard on a date acceptable to his schedule. When the
5
trial resumed on July 28, 1994, the same judge heard the case who
had initially heard it on June 16, 1994. Appellant was not
re-arraigned and did not enter pleas to the charges. 2 The
Commonwealth called Trooper Ingham as its witness and continued
with his testimony. Additionally, the court orders and statement
of facts show no contemporaneous objection by appellant to the
continuance. Under the facts of this case, we find no abuse of
discretion in the trial court's granting of a continuance from
June 16, 1994 to July 7, 1994 to allow appellant to obtain
counsel. As in Webb, "[b]y granting the continuance, the state
trial court showed that it was 'scrupulously interested in
insuring that justice be done.'" Bennett, 236 Va. at 462,
374
S.E.2d at 312 (quoting Webb,
720 F.2d at 381).
Accordingly, the decision of the trial court is affirmed.
Affirmed.
2
As the dissent notes, the final order of July 28, 1994
indicated that appellant was arraigned on the warrant and pled
not guilty. However, the written statement of facts does not
reflect that appellant was re-arraigned and shows a resumption of
the trial with Trooper Ingham's testimony. We rely on the
written statement of facts.
6
Benton, J., dissenting.
The record reflects that on June 16, 1994, after John W.
Lyles, Jr., was "arraigned upon the warrant and . . . entered a
plea of not guilty," the trial began. The record reflects that
Lyles was not represented by counsel, and the record does not
reflect that Lyles waived his right to counsel. During the
testimony of the prosecutor's first witness, the charging police
officer, the trial judge learned that the prosecutor would
request a sentence of incarceration for Lyles, and the trial
judge stopped the proceedings. The trial judge "advised [Lyles]
to seek counsel" and "ordered that this case be continued to July
7, 1994 . . . for trial."
On July 28, 1994, the rescheduled trial date, the case was
assigned to another judge for trial. After that judge read
Lyles' motion to dismiss and plea of former jeopardy, that judge
referred the case to the trial judge who originally commenced the
case and stopped the proceedings.
When the original trial judge received the case, he denied
Lyles' motion to dismiss and plea of former jeopardy. After a
prosecutor was summoned to try the case, the prosecutor informed
the trial judge that he was not familiar with the case. The
trial judge recessed the proceeding to allow the prosecutor, who
was not the same prosecutor who commenced the case on June 16,
1994, to have a short time to interview the charging police
officer and prepare for trial. When the prosecutor was ready to
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begin, Lyles was again arraigned upon the same warrant, and he
pled not guilty. 3 The prosecutor began anew the presentation of
3
The order memorializing the events of June 16, 1994 states
in pertinent part as follows:
On [June] 16, 1994, the Commonwealth's
Attorney and the Defendant, John W. Lyles,
Jr., appeared before this Court. The
Defendant appeared while on bond.
The Defendant was arraigned upon the
warrant and the Defendant entered a plea of
not guilty. The Court proceeded to hear and
to determine the case without the
intervention of a jury, trial by jury having
been waived to which the Attorney for the
Commonwealth consented and the Court
concurred.
The Court then proceeded to hear all of
the evidence presented on behalf of the
Commonwealth.
During the Commonwealth's Attorney case in
chief, the Court inquired of the
Commonwealth's Attorney if the Commonwealth
would be willing to waive jail time for the
Defendant. The Commonwealth's Attorney
advised the Court that the Commonwealth would
not waive jail time for the Defendant.
The Court then inquired of the Defendant
why he did not have legal counsel. The Court
stopped all proceedings in this case and
advised the Defendant to seek Counsel.
(Emphasis added).
The final order states in pertinent part as follows:
On July 28, 1994, the Commonwealth's
Attorney, the Defendant, John W. Lyles, Jr.,
and Francis McBride, Counsel for the
Defendant, appeared before this Court. The
Defendant appeared while on bond.
Counsel for the Defendant motioned the
Court to dismiss the charges against the
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evidence in its case-in-chief.
Nothing in the record supports the trial judge's ruling that
the July 28, 1994, trial was a continuation of the first,
terminated proceeding.
The simple, yet . . . controlling,
consideration is that the accused must be
placed in jeopardy twice for double jeopardy
to exist. It happens when the second event
involves a completely new beginning, i.e.,
when the second proceeding takes place before
a new trier of fact, whether that be a
different judge or jury, or the same judge
starting with a clean slate.
Webb v. Hutto, 720 F.2d 375, 379 (4th Cir. 1983) (emphasis
added), cert. denied,
465 U.S. 1080 (1984). The facts prove a
new beginning of Lyles' trial.
On July 28, 1994, when the case was assigned to be re-heard,
a new judge was scheduled to try the case. When the new judge
declined to hear the case and sent it back to the original trial
judge, a new prosecutor was assigned to try the case. Lyles was
Defendant, which motion the Court denied.
The Defendant was arraigned upon the
warrant and the Defendant entered a plea of
not guilty. The Court proceeded to hear and
to determine the case without the
intervention of a jury, trial by jury having
been waived, to which the Attorney for the
Commonwealth consented and the Court
concurred.
(Emphasis added).
From the recitals in these two orders, I believe the
conclusion is manifest that Lyles was arraigned both on June 16
and July 28.
9
re-arraigned on the same charges. The new prosecutor then began
the Commonwealth's case-in-chief anew.
The result, not the simple use of the terminology
"continuance," is the controlling factor. "If what occurred
indeed amounted to a beginning over, rather than a progression
from the point at which the case had been suspended, calling it a
continuation when actually it was a complete retrial would not
enable the prosecution to escape the stricture against double
jeopardy." Id. at 380. The record in this case indisputably
proved that a complete retrial occurred.
Jeopardy attached on June 16, 1994, when the trial judge
began to hear evidence in the prosecution's case-in-chief. See
Greenwalt v. Commonwealth, 224 Va. 498, 500-01,
297 S.E.2d 709,
710 (1982). After jeopardy attached, Lyles "possessed a valued
right to have the judge decide his case [in] that [proceeding],
based upon the proof [that] the Commonwealth could adduce [at
that proceeding]." Harris v. Young,
607 F.2d 1081, 1086 (4th
Cir. 1979), cert. denied,
444 U.S. 1025 (1980). Lyles could not
be deprived of that right without a "manifest necessity."
Arizona v. Washington,
434 U.S. 497, 505 (1978). However, the
termination of the case on June 16 was made for the benefit of
the prosecutor, who indicated that he intended to ask the judge
to imprison Lyles. Although that request posed a dilemma for the
judge because Lyles was uncounseled, see Argersinger v. Hamlin,
407 U.S. 25 (1972), the dilemma was neither created by Lyles nor
10
resolved in a way that benefitted him. "[E]very judge [should]
know when the trial . . . starts that no imprisonment may be
imposed, even though local law permits it, unless the accused is
represented by counsel." Id. at 40. When the trial judge sua
sponte terminated the June 16 trial, the trial judge did so
without "manifest necessity." See Harris,
607 F.2d at 1084.
Thus, the subsequent conviction that occurred on July 28, 1994,
is barred by the prohibition against double jeopardy. See
id. at
1087.
Accordingly, I would reverse the conviction.
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