                               COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Felton and McClanahan
Argued at Alexandria, Virginia


DONALD STEWARD
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0052-03-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                 DECEMBER 30, 2003
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                              Benjamin N. A. Kendrick, Judge

                 Denman A. Rucker (Rucker & Rucker, on brief), for appellant.

                 Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W.
                 Kilgore, Attorney General, on brief), for appellee.


       Donald Steward was convicted of felonious concealment in violation of Code § 18.2-103

and sentenced to a term in prison of five years. He contends on appeal that the trial court erred

in finding that he had validly waived his right to a jury trial. Because we find that Steward’s

claim is procedurally defaulted under Rule 5A:18, we affirm.

                                           I. Background

       On appeal, we review the evidence, and all reasonable inferences that may be drawn, in

the light most favorable to the party prevailing below, in this case the Commonwealth.

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). So viewed,

the record shows that, at the outset of the trial on May 29, 2002, and out of the presence of

Steward, the trial judge stated to defense counsel that he believed “the Commonwealth on second

thought may be willing to waive the jury” and inquired, “Is your client willing to waive?”


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Defense counsel replied that he was “sure he is.” Steward then entered the courtroom, and the

following colloquy ensued:

              THE COURT:            Mr. Steward, it’s my understanding that
                                    your desire this morning is to waive the jury
                                    and be tried by the Court, is that correct?

              THE DEFENDANT: Yes, sir.

              THE COURT:            Have you discussed that waiver with Mr.
                                    Gookin?

              THE DEFENDANT: My lawyer?

              THE COURT:            Yes.

              THE DEFENDANT: Your Honor, this man never came to see me.
                             He didn’t even ask me what happened. You
                             know this is my first time seeing him since
                             the Court appointed him to me last month. I
                             wasn’t going to trial with him.

              THE COURT:            My question is whether you want a jury –

              THE DEFENDANT: I want a jury trial.

              THE COURT:            There’s a big difference between a jury and
                                    non-jury. I want to make sure that you
                                    understand the difference. If you go to trial
                                    in front of a jury, they hear all of the
                                    evidence and decide the facts, and if they
                                    find that, based on the evidence, you’re
                                    guilty, then they will also hear evidence and
                                    decide what the punishment is. On the other
                                    hand, if you go to trial in front of the Court,
                                    the Court decides the evidence, the facts,
                                    and the law all in one. And the jury doesn’t
                                    get involved in it. Do you understand the
                                    difference?

              THE DEFENDANT: Yes.

              THE COURT:            And it is your desire to be tried by the Court
                                    and not by the jury?

              THE DEFENDANT: Yes.

                                             -2-
               THE COURT:              Let the record reflect that the waiver is made
                                       freely and voluntarily with an understanding
                                       of its nature and its consequences. Is the
                                       Commonwealth willing to waive?

               MS. RUEDA:              Yes, sir.

               THE COURT:              All right, the Court will concur. Would you
                                       arraign the defendant?

               MR. GOOKIN:             Your Honor, could we have a few minutes
                                       to discuss this in light of the fact that the
                                       Commonwealth is now willing to waive, and
                                       they weren’t before?

               THE COURT:              No. Arraign the defendant.

       After a bench trial on the merits, Steward was convicted as charged and sentenced to five

years in prison. Steward appeals his conviction on the ground that he did not voluntarily and

intelligently waive his right to a jury trial. Because Steward failed to object to the trial court’s

ruling, we find that his appeal is barred by Rule 5A:18.

                                             II. Analysis

       In order to preserve a claim on appeal that the trial court erred in determining that a

defendant voluntarily and intelligently waived his right to a jury trial, a proper objection must be

lodged in the trial court. Rule 5A:18; Commonwealth v. Williams, 262 Va. 661, 669, 553 S.E.2d

760, 763 (2001). Our review of the record, viewing the evidence in the light most favorable to

the Commonwealth, the party prevailing below, fails to disclose that Steward preserved the

claimed error. Grimstead, 12 Va. App. at 1067, 407 S.E.2d at 48.

       At no time during the colloquy regarding Steward’s election to be tried by jury or by the

court did Steward object to the court’s finding that he voluntarily and intelligently waived his

constitutional right to be tried by a jury. In that colloquy, the trial judge made clear that he found

that Steward waived his right to a jury trial and that the waiver was “freely and voluntarily”

given with “an understanding of [the nature of the wavier] and [its] consequences.” Steward’s
                                                   -3-
statement that he wished to be tried by the court and not by the jury, which followed his request

for a jury trial, cannot be viewed as a statement objecting to the court’s finding that his jury trial

waiver was voluntary and intelligent.

         His second contention on the procedural point is likewise without merit. At the end of

the colloquy, after the court found Steward waived his right to a jury trial, defense counsel

requested to “discuss this in light of the fact that the Commonwealth is now willing to waive and

they weren’t before.” Steward claims this request constituted a proper objection. We disagree.

Defense counsel’s request stated no grounds from which the trial judge could conclude that it

had erroneously found a voluntary and intelligent waiver. Furthermore, at no subsequent point

during the trial proceedings did the defendant’s attorney object to, or otherwise challenge, the

trial judge’s ruling that Steward had voluntarily and understandingly waived his right to a trial by

jury. In short, the trial court had no opportunity to consider and rule on the substantive objection

Steward presents to this Court. See Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737

(1991) (noting that “[t]he purpose of Rule 5A:18 is to allow the trial court to correct in the trial

court any error that is called to its attention”). Accordingly, Rule 5A:18 bars our consideration

of Steward’s argument on appeal.

         The defendant’s remaining arguments – which include his claim that the trial court did

not advise him that all twelve jury members must unanimously find him guilty before he could

be convicted and that the trial judge’s denial of defense counsel’s request to discuss the waiver

with Steward invalidated the defendant’s waiver and deprived him of his statutory right to the

assistance of counsel in determining whether to waive his right to a jury – are likewise

procedurally defaulted under Rule 5A:18 because he failed to raise the contentions in the trial

court.




                                                 -4-
       Finally, we decline to apply the “ends of justice” exception to the procedural bar to this

appeal. 1 Steward’s sole argument supporting application of the exception is that the trial court

conducted an inadequate inquiry before accepting his waiver. Williams, which Steward cites in

support of the argument, is inapposite. The Williams Court declined to apply the ends of justice

exception because the appellant-defendant failed to present the court with an adequate record.

262 Va. at 669, 553 S.E.2d at 764. Additionally, Steward fails to develop his argument, based on

the Williams case or any other case or rule, that the ends of justice exception should apply here.

See Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992) (declining to

address a question not fully developed on brief). Accordingly, we find no reason to apply the

ends of justice exception to this case.

                                                                                         Affirmed.




       1
         In addressing the ends of justice exception, Steward mistakenly cites to Rule 5:25, the
Rule governing procedural default in the Virginia Supreme Court. We address the question
under this Court’s Rule 5A:18.

                                               -5-
