                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia


TROUSSANT DELANO LETT
                                          MEMORANDUM OPINION * BY
v.   Record No. 2611-99-1              JUDGE JEAN HARRISON CLEMENTS
                                             OCTOBER 24, 2000
COMMONWEALTH OF VIRGINIA

        FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                     AND COUNTY OF JAMES CITY
                 Samuel Taylor Powell, III, Judge

          Erika L. Winter for appellant.

          Thomas D. Bagwell, Senior Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Troussant Delano Lett was convicted in a bench trial of

operating a motor vehicle on a highway of the Commonwealth after

having been adjudicated an habitual offender, second or subsequent

offense, in violation of Code § 46.2-357(B)(3).   On appeal, he

contends that the trial court erred in convicting him in violation

of his right to due process of law.   We disagree and affirm the

conviction.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     Specifically, Lett contends that, because he reasonably

relied on a ruling by a judge in an earlier habitual offender

proceeding and on assurances from his attorney at that proceeding

that he could drive as an habitual offender in apartment

complexes, his prosecution and conviction for driving on a road

within an apartment complex violate his constitutional right to

due process.

                          A.   Procedural Bar

     The Commonwealth preliminarily contends that Lett's

constitutional claim is barred because he failed to raise the due

process issue at trial.   We disagree with the Commonwealth's

premise and find that appellant's claim is not procedurally

barred.

     Rule 5A:18 provides that "[n]o ruling of the trial court

. . . will be considered as a basis for reversal unless the

objection was stated together with the grounds therefor at the

time of the ruling, except for good cause shown or to enable the

Court of Appeals to attain the ends of justice."   The purpose of

Rule 5A:18 is to ensure that the trial court and opposing party

are given the opportunity to intelligently address, examine, and

resolve issues in the trial court, thus reducing the need for

appeals and new trials.   See Lee v. Lee, 12 Va. App. 512, 514, 404

S.E.2d 736, 737 (1991) (en banc); Kaufman v. Kaufman, 12 Va. App.

1200, 1204, 409 S.E.2d 1, 3-4 (1991).


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     Here, Lett's attorney argued during closing argument at trial

that, in driving within the apartment complex, Lett was relying on

advice and information he had received from a judge and from his

attorney regarding where he could permissibly drive as an habitual

offender.   Lett's reliance on such advice and information, his

attorney argued, precluded his prosecution and conviction "as a

matter of justice."

     While not couched in specific constitutional terms, Lett's

defense at trial was plainly an argument of fairness grounded in

the Due Process Clause of the Fourteenth Amendment.   We find that

it was sufficient to inform the trial court and opposing party of

his belief that his prosecution and conviction for driving in a

location that he had been informed by the court and his attorney

was permissible would violate his right to due process of law.

Accordingly, the issue was properly preserved for our

consideration on appeal.

                       B.   Due Process Rights

     The due process defense asserted here by Lett is a narrow

constitutional exception to the common law rule that ignorance

of the law is no excuse.    See Miller v. Commonwealth, 25 Va.

App. 727, 732 n.2, 492 S.E.2d 482, 485 n.2 (1997) (reversing the

conviction of defendant who relied on his probation officer's

misinformation as to what was permissible conduct).     "The due

process argument is, in essence, 'that the criminal statute


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under which the defendant is being prosecuted cannot

constitutionally be applied to the defendant without violating

due process of law, where government officials have misled the

defendant into believing that his conduct was not prohibited.'"

Id. at 736, 492 S.E.2d at 487 (quoting Jeffrey F. Ghent,

Annotation, Criminal Law:   "Official Statement" Mistake of Law

Defense, 89 A.L.R.4th 1026, 1031 (1991)).

     In examining this same due process defense in Miller, we

held that to successfully employ the defense the defendant must

first establish the legal sufficiency of the source and content

of the information received by showing (1) that the source of

the information was a "public officer or body charged by law

with responsibility for defining permissible conduct with

respect to the offense at issue" and (2) that the information

relied on by the defendant included an affirmative assurance

that the conduct at issue was lawful.    Id. at 737-40, 492 S.E.2d

at 487-89.

     Here, Lett asserts that in driving on Toano Drive he relied

on information from two public officials that driving within the

confines of an apartment complex was not driving "on the

highways of the Commonwealth."    The first official was the judge

of the Circuit Court of Williamsburg and James City County who "in

the early '90s" dismissed a charge against Lett for driving on a

highway of the Commonwealth after having been declared an habitual


                                 - 4 -
offender.     According to Lett, the court ruled that he had not been

driving on a "highway" but on a private road within the confines

of an apartment complex.     The second person on whose advice Lett

relied was his attorney at that earlier proceeding who, in

explaining the court's ruling, told Lett that "it was all right"

for him to drive "on private property like the apartment complex."

     We find, for purposes of this appeal, that a circuit court

judge is a government official responsible for defining

permissible conduct with respect to the habitual offender

statute.      Judges are charged with interpreting and applying the

law, and their rulings, interpretations, and opinions may

properly be resorted to for guidance.      See, e.g., United States

v. Brady, 710 F. Supp. 290, 295 (D. Colo. 1989).

     Conversely, a private attorney is not a government

official. 1    See, e.g., United States v. Indelicato, 887 F. Supp.

23, 25 (D. Mass. 1995), modified in part on other grounds, 97

F.3d 627 (1st Cir. 1996).     We are unable, therefore, to find

that Lett's former attorney was a public officer charged by law




     1
       Lett referred in his testimony at trial to the attorney
who represented him at the "early '90s" habitual offender
proceedings as "Judge" Stone. Appellant's brief explains that
Stone also served as a substitute judge. However, because Stone
was acting as Lett's attorney and not in a judicial capacity
when he gave Lett the stated advice regarding the propriety of
driving within an apartment complex, we will view him, for
purposes of this appeal, as a private attorney only.


                                  - 5 -
with the responsibility for defining where Lett could legally

drive.

     We turn next to the question of whether the judge's ruling

relied on by Lett included an affirmative assurance that the

conduct at issue in this case was lawful.   Lett testified at

trial regarding the assurances he received, as follows:

               Q. Okay. Were you aware that you were
          driving in violation of habitual offender?

               A.   No, I wasn't.

               Q.   And why is that, Mr. Lett?

               A. Well, I had a case -- I was in
          Benton Wood Apartments.

               Q.   Brentwood Apartments?

               A.   I think it's Benton Wood.

               Q.   Burton Woods?

               A.   Yeah.   Burton Woods.

               Q.   Okay.

               A. And Judge Stone -- well, Lawyer
          Stone --

               Q.   Do you know when this was?

               A. It was a few years back in the
          early '90s and Judge Stone had the case
          right here, because they arrested me for
          driving habitual offender, and I came to
          Circuit Court here, and Judge Person was
          presiding. And Judge Stone --

               Q. And by Judge Stone you mean
          attorney, William Stone?

               A. Yes. Attorney Stone, yes. He was
          my lawyer at the time, and he stated that it


                                - 6 -
          was unlawful to arrest and try a citizen
          driving habitual offender if in fact the
          arresting officer did not see the citizen
          drive on the state highway, and he quoted --
          he said he got that from Mary Sue Terry and
          the records is here on the file, and that
          case was dismissed by Judge Person.

               Q. And did you have a conversation
          with Lawyer Stone after that about what that
          meant?

               A. Yes, I did. I asked him what did
          that mean. He said as far as driving on
          private property like the apartment complex
          it was all right. He said but if you drive
          on the highway then you can be arrested for
          driving habitual offender. 2

     There is no other evidence in the record regarding the

referenced "early '90s" habitual offender proceeding and the

advice and information received relative thereto by Lett.

Specifically, there is no evidence in the record as to the

court's exact ruling in that case or any evidence indicating why

the case was dismissed.   Nor is there anything in the record to

suggest that the judge in that case advised Lett where he could

or could not legally drive as an habitual offender.

     We cannot find, therefore, that the information relied on

by Lett included an affirmative assurance that the conduct at

issue here was lawful.    Even if that court dismissed the case


     2
       As the Commonwealth reminds us, the credibility of a
witness and the weight accorded his testimony are matters solely
for the fact finder's determination. See, e.g., Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
For purposes of this appeal, we assume without deciding that the
trial judge accepted Lett's testimony as true.

                                - 7 -
because, as Lett asserts, it found that Lett had been driving on

a private road within an apartment complex, we cannot find that

such a ruling constituted an affirmative assurance upon which

Lett could rely in deciding to drive on Toano Drive, a

state-maintained road with a highway marker on it located in a

different apartment complex.   Clearly, the court's ruling fell

far short of informing Lett, as he would have us believe, that

all roads within all apartment complexes were private roads as

opposed to state "highways" and would remain so forever.     And

most certainly it did not include an assurance that Toano Drive

was a private road or that Lett could otherwise drive on it as

an habitual offender with immunity.

     Consequently, we are unable to find, based on the record

before us, that the content of the information received by the

defendant was legally sufficient to evoke due process concerns.

The due process defense asserted by Lett therefore does not

apply in this case.   Accordingly, we affirm appellant's

conviction for operating a motor vehicle after having been

adjudicated an habitual offender, second or subsequent offense.

                                                           Affirmed.




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