Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and 

Millette, JJ., and Carrico, S.J. 

RANDOLPH GEORGE COKES, JR. 

v. Record No. 091507 OPINION BY JUSTICE DONALD W. LEMONS 

 June 10, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal we consider whether the trial court erred 

when it denied the motion of Randolph George Cokes, Jr. 

(“Cokes”) to withdraw his waiver of his right to a jury trial 

in the Circuit Court of the City of Richmond on the day of his 

scheduled bench trial. 

I. FACTS AND PROCEEDINGS BELOW 

 Cokes was charged with possession of marijuana in 

violation of Code § 18.2-250.1, as well as possession of heroin 

and cocaine in violation of Code § 18.2-250(A)(a). On July 3, 

2008, Cokes appeared before the trial court.1 During that 

appearance, counsel for Cokes represented that during the 

preliminary hearing of April 23, 2008, Cokes requested a jury 

trial. Counsel then apologized to the trial court “for setting 

it for a bench [trial].” 

 1

 It appears from the record that the trial court and the 

Commonwealth expected Cokes’ July 3, 2008 appearance to be a 

bench trial. However, the trial court agreed with counsel for 

Cokes that Cokes was not sufficiently prepared to proceed to 

trial on that day. 
 Prior to scheduling Cokes’ jury trial, the Commonwealth 

moved the trial court to revoke Cokes’ bond. In support of its 

motion, the Commonwealth cited the fact that Cokes had been 

subsequently charged with additional drug-related offenses 

while released on bond. 

 The trial court temporarily set aside the question of bond 

revocation, instead focusing on a suitable trial date. The 

trial court inquired of Cokes’ counsel, “[w]hat is your best 

estimate of it going forward as a jury trial, your attorney 

assessment, just so I can schedule properly?” Counsel conceded 

that his only contact with Cokes was a brief discussion with 

him at the preliminary hearing, and another immediately prior 

to the present appearance. He concluded that he “ha[dn’t] had 

a real chance to evaluate that yet.” 

 The trial court then admonished Cokes and his counsel that 

if it were to set a jury trial, the trial court would “double 

or triple book it,” adding that the trial court was likely to 

revoke Cokes’ bond. The trial court noted the practical 

consequence of these actions to Cokes and his counsel: if the 

case were double- or triple-booked, “if [Cokes is] innocent, he 

will remain in jail much longer . . . than he needs to” in the 

event his case is postponed due to a scheduling conflict. 

 Cokes addressed the trial court himself, acknowledging 

that he “asked them in the lockup for a jury trial.” The trial 

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court responded, “[y]ou’re going to get one. I just want to 

make sure you understand what a jury trial is.” The trial 

court then conducted a colloquy with Cokes, identifying the 

material differences between a bench trial and a jury trial. 

At the conclusion of the colloquy, the clerk offered August 7, 

2008 as a possible trial date. 

 Counsel for Cokes then stated, “[y]our Honor, Mr. 

Cokes . . . has just informed me that he is prepared to go 

forward today with the bench trial. I have had very limited 

opportunity to speak with him about the – his right to 

testify.” The trial court responded, 

I don’t think that’s advisable, sir, because I 

don’t think you’ve had enough time to talk to 

your attorney. I can schedule this quickly for 

a bench trial, but I don’t think it’s in your 

best interest if your attorney hasn’t had enough 

time to talk to you. All right. And you’ve got 

other charges pending anyway. 

After discussing whether August 7, 2008 was a viable trial date 

for the parties, the trial court asked Cokes if he wished to be 

tried “in front of the judge or a jury.” Cokes responded, 

“[i]n front of the judge.” 

 Once the trial date was established, the trial court again 

addressed Cokes: “I’ve discussed with you the differences 

between a judge trial and jury trial. And you discussed it 

with your attorney; is that correct?” Cokes acknowledged that 

he had, and he again expressed his desire to be tried by a 

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judge. The trial court then revoked Cokes’ bond on the grounds 

that he violated the conditions of his bond when he was charged 

with additional drug-related offenses. On July 9, 2008, the 

trial court entered an order continuing Cokes’ case to August 

7, 2008. In that order, the trial court acknowledged that 

Cokes “voluntarily waived his right to a trial by jury” on the 

charged offenses.2

 On August 7, 2008, following the clerk’s reading of the 

charges he faced, the trial court asked Cokes whether he wished 

to be tried by the judge or a jury. After conferring with his 

attorney, counsel for Cokes addressed the trial court. He 

acknowledged that Cokes had initially requested a jury trial at 

the July 3, 2008 appearance, but then waived his right to a 

jury trial following a colloquy with the trial court. Counsel 

then stated, “I informed him that he already waived on the 

record, but as we’re still on the record, he would like to say 

he would want to be tried by a jury at this time. And I 

understand he has waived on the record.” 

 The Commonwealth responded, “Judge, I have all our 

witnesses here and are ready to go forward based on his prior 

waiver and decision to have a bench trial today.” The trial 

court denied Cokes’ motion to withdraw his waiver of his right 

 2

 During oral argument before this Court, Cokes 

acknowledged that he made a voluntary and knowing waiver of his 

right to a jury trial during his July 3, 2008 appearance. 

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to a jury trial, noting, “I think that asking for a jury trial 

on the – right at the moment of trial is too late once he’s 

waived a jury trial.” The case was tried without a jury and 

the trial court found Cokes guilty of all charges. 

 The Court of Appeals, per curiam, denied Cokes’ petition 

for appeal. Cokes v. Commonwealth, Record No. 2407-08-2 (April 

23, 2009). Cokes timely filed his notice of appeal and we 

granted an appeal on the following assignment of error: 

1. The Court of Appeals erred by holding that the trial court 

did not abuse its discretion by denying Cokes’ request to 

withdraw his jury trial waiver and to proceed with a jury 

trial. 

II. ANALYSIS 

A. Standard of Review 

 On the day Cokes’ bench trial was set to begin, Cokes made 

a motion to withdraw his waiver of his right to a jury trial. 

The trial court denied Cokes’ motion. “[O]nce a defendant makes 

a voluntary and intelligent waiver of [his right to a jury 

trial], his request to withdraw that waiver and be tried by a 

jury is subject to the circuit court’s discretion.” 

Commonwealth v. Williams, 262 Va. 661, 670, 553 S.E.2d 760, 764 

(2001). “In evaluating whether a trial court abused its 

discretion . . . we do not substitute our judgment for that of 

the trial court. Rather, we consider only whether the record 

fairly supports the trial court’s action.” Grattan v. 

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Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) 

(quotation marks omitted). 

B. Withdrawal of a Waiver of the Right to a Trial by Jury 

 “The right of a defendant to a jury trial in a criminal 

case is secured by Article I, § 8 of the Constitution of 

Virginia,” Williams, 262 Va. at 670, 553 S.E.2d at 764, the 

Sixth Amendment to the United States Constitution, and by 

statute. See Code §§ 19.2-260 and 8.01-336. We have 

previously observed, “[t]he right to a jury trial is one of the 

cornerstones of our legal system.” Norfolk Southern Railway 

Co. v. Bowles, 261 Va. 21, 28, 539 S.E.2d 727, 731 (2001). 

 Relying upon the analytical framework we first adopted in 

Thomas v. Commonwealth, 218 Va. 553, 238 S.E.2d 834 (1977), in 

Williams we stated the general rule regarding the withdrawal of 

a waiver of jury trial: 

 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 [circuit] court. The rule, as 

expressed in some cases, is that if an accused’s 

application for withdrawal of waiver is made in 

due season 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 

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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. 

262 Va. at 670, 553 S.E.2d at 764 (quoting Thomas, 218 Va. at 

555, 238 S.E.2d at 835) (emphasis added). 

 In Thomas, although the motion to withdraw the waiver of a 

jury trial was made eleven days prior to the trial date, the 

trial court did not act on the motion at that time. 218 Va. at 

556, 238 S.E.2d at 835. Upon weighing the facts and 

circumstances in light of the defendant’s constitutional and 

statutory rights to a jury trial, we held that the trial court 

abused its discretion when it denied the defendant the right to 

withdraw his waiver of a jury trial. Id. at 556, 238 S.E.2d at 

836. Central to that holding was the fact “[t]he record [wa]s 

devoid of any showing that a jury could not have been impaneled 

for the trial on December 3; that the motion was made solely 

for the purpose of delay; and that a continuance of the cases 

. . . would unduly delay the trial or impede the cause of 

justice.” Id. at 556, 238 S.E.2d at 835-36. 

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 Similarly, the record in this case fails to disclose that 

the motion was made solely for the purpose of delay or whether, 

in the ordinary course of the circuit court’s operation, Cokes’ 

request for a jury trial could have been accommodated at the 

time it was made. The record also fails to disclose the number 

of witnesses who would be inconvenienced by the continuance, or 

the difficulty rescheduling the trial would present to those 

witnesses. Instead of establishing that granting Cokes’ motion 

“would unduly delay the trial or would otherwise impede 

justice,” id. at 555, 238 S.E.2d at 835, the record leaves this 

Court to speculate whether Cokes’ request could have been 

honored in a timely fashion, thereby vindicating his 

constitutional and statutory rights without impeding the 

administration of justice. In the absence of such evidence, we 

hold that the trial court abused its discretion when it denied 

Cokes’ motion to withdraw his waiver of his right to a jury 

trial. 

 Our analysis today does nothing to undermine the broad 

discretion vested in trial courts to determine whether justice 

would be impeded by granting a defendant’s motion to withdraw 

his waiver of a jury trial. It merely confirms that the basis 

of that determination must be established on the record. In 

Williams, our last decision addressing this issue, we upheld 

the trial court’s denial of a defendant’s motion to withdraw 

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his waiver of a right to a jury trial. 262 Va. at 671, 553 

S.E.2d at 765. Unlike the records in Thomas and in this case, 

the record in Williams “show[ed] that if Williams had been 

allowed to withdraw his jury trial waiver and be tried by a 

jury, completion of the trial could have been substantially 

delayed and the cause of justice impeded.” Id.

This finding was based upon evidence that Williams’ case 

“originally had been set for trial ten months earlier, and 

already had been substantially delayed during the several 

months that Williams remained a fugitive.” Id. Further, the 

Commonwealth “intended to call 11 witnesses to testify” and the 

victim “was leaving the United States the following Monday to 

return to his native country for three months.” Id. Based on 

those facts and circumstances, we affirmed the trial court’s 

determination that granting Williams’ motion would impede the 

cause of justice, notwithstanding the defendant’s contention 

that the trial court recognized that “the trial would [not] 

have to be rescheduled to another day if the court granted 

Williams’ request,” but rather “Williams’ request for a jury 

trial [might only] delay the case for ‘several hours.’” Id. at 

669-70, 553 S.E.2d at 764. 

III. CONCLUSION 

 Because the trial court abused its discretion when it 

refused Cokes’ request for a jury trial, we will reverse the 

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judgment of the Court of Appeals and remand the case to the 

Court of Appeals with directions to remand to the trial court 

for a new trial if the Commonwealth be so advised. 

Reversed and remanded. 

SENIOR JUSTICE CARRICO, dissenting. 

I respectfully dissent. I do not agree that the circuit 

court abused its discretion in denying the defendant's motion 

for a jury trial made at the very moment his trial was to begin 

and after he had voluntarily waived his right to such a trial. 

True, this was the waiver of a cornerstone right, but the 

courts uphold waivers of such rights every day. To me, this is 

more a case of a defendant trying to play fast and loose with 

the court system in order to delay being tried than it is a 

case of an abuse of judicial discretion. I would affirm the 

judgment of the circuit court.

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