                        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 non-
            jury 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




                                 7
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



                                  8
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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