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. 

 - 2 - 
 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 

 - 3 - 
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 

 - 4 - 
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. ANALYSIS1

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. 

 - 5 - 

 
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. 

 - 7 - 
 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.

 - 11 -