                   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.




                                 - 6 -
      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

                                 - 8 -
          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




                               - 9 -
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




                                 - 10 -
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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