COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons 

Argued at Salem, Virginia 

BORIS PREZECHOWSKI, S/K/A 

 BORIS PRZECHOWSKI 

 MEMORANDUM OPINION* BY 

v. Record No. 0945-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JUNE 1, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY 

George E. Honts, III, Judge 

James V. Doss, III, for appellant. 

(Mark L. Earley, Attorney General; 

Richard B. Smith, Assistant Attorney 

General, on brief), for appellee. 

 Boris Przechowski (appellant) was convicted of misdemeanor 

reckless driving, in violation of Code § 46.2-862. Appellant 

contends that the trial court erred in refusing his request for 

a trial by jury and in refusing his discovery requests for radar 

certificates. For the following reasons, we affirm. 

I. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to it all reasonable 

inferences fairly deducible therefrom. See Juares v. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

So viewed, the evidence established that on October 28, 1997, 

Trooper W.L. Warren issued appellant a summons charging him with 

reckless driving (speeding 97/65 m.p.h. zone) in a commercial 

motor vehicle. The summons required appellant, a Texas 

resident, to appear in the general district court on January 23, 

1998. 

 On December 10, 1997, the general district court received a 

pre-printed form letter from appellant stating the following: 

"I wish to enter a plea of not guilty to the charge on the 

attached citation, and I request a trial, by jury if possible." 

(Emphasis added). Appellant's response also included a "Request 

for Production" form letter, which, pursuant to the Texas Rules 

of Criminal Procedure governing discovery in traffic cases, made 

fifteen discovery requests.1

 When appellant failed to appear in the general district 

court on January 23, 1998, he was tried in his absence, 

convicted as charged and fined $100 plus court costs. By 

handwritten letter dated January 26, 1998, appellant noted his 

appeal to the circuit court and asked the court "to reconsider 

[his] request for production under the rule of discovery (code 

 

 1In the proceedings before the trial court, appellant 

referred to the applicable Texas law as the "Open Records Act," 

and the form letter contained a citation to "Acts 1965, 59th 

Leg., vol. 2, p. 317, ch. 722." 

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of criminal procedure) which was sent to the court prior to the 

[general district] court date." 

 On February 3, 1998, appellant's file was transmitted from 

the general district court to the circuit court. On March 10, 

1998, the clerk of the circuit court sent appellant a notice 

informing him that his reckless driving trial was scheduled for 

March 25, 1998 and that appellant should immediately contact the 

clerk's office if he wanted a jury trial.2 In a letter received 

by the clerk's office on March 17, 1998, appellant asked that 

his written response serve as his "appearance" or that the 

hearing be conducted by telephone. The letter also provided the 

following: 

I again request that my lawful request for 

production be filled, and I be given a short 

time to prepare for trial. I would also 

request that if a hearing is absolutely 

necessary that it be done by phone, or other 

means. If this motion is denied I request 

 

 2The clerk of the circuit court sent appellant a "Notice of 

Hearing on Appeal From A District Court," which provided the 

following: 

-- you must be present and ready to try this 

case at the hearing 

-- Immediately contact the clerk's office of 

this court if want one or more of the 

following: 

• a lawyer to represent you 

• witnesses to be subpoenaed in court to 

testify for you 

• a jury trial. 

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that this hearing be re-scheduled and that I 

be given at least 30 days prior notice so 

that I can arrange my schedule. 

Appellant made no request for a jury trial. The circuit court 

treated appellant's letter as a motion to continue the case, 

which was denied on March 18, 1998. 

 On March 25, 1998, the date of appellant's circuit court 

trial, the clerk's office received another form letter from 

appellant demanding discovery under the "Open Records Act" and 

various Texas laws. The circuit court tried appellant in his 

absence, convicted him of reckless driving, fined him $200 plus 

court costs and suspended his driver's license for 90 days. The 

clerk notified appellant of the disposition of his case by 

letter dated March 27, 1998. 

 In his letter dated April 5, 1998, appellant, still acting 

pro se, stated that he wished to appeal the decision of the 

circuit court. He also asked the circuit court to reconsider 

its finding of guilt and requested the court to compel 

discovery. The circuit court clerk responded with a letter 

informing appellant that his notice of appeal was not in proper 

form. On April 24, 1998, appellant, by retained counsel, filed 

a formal notice of appeal to this Court. 

II. TRIAL BY JURY 

 Appellant contends that the trial court erred in refusing 

his request for a jury trial. Although he concedes that a jury 

trial is not permitted in the general district court, he argues 

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that perfecting an appeal to the circuit court preserved his 

earlier request. Appellant concludes that when a defendant 

requests a jury trial in general district court and does not 

appear in person at trial, the circuit court should "write a 

letter noting the conviction and noting his appeal for him with 

clear instructions to schedule the jury in the circuit court." 

 Assuming, without deciding, that appellant preserved his 

right to a jury trial by simply perfecting his appeal to the 

circuit court, his failure to appear constituted a waiver of the 

jury trial. Under Code § 19.2-258, when the accused fails to 

appear in the circuit court on misdemeanor charge, he may be 

tried in his absence and his non-appearance waives the trial by 

jury. Specifically, that section provides: 

 In all cases of a misdemeanor upon a 

plea of guilty, tendered in person by the 

accused or his counsel, the court shall hear 

and determine the case without the 

intervention of a jury. If the accused 

plead not guilty, in person or by his 

counsel, the court, in its discretion, with 

the concurrence of the accused and the 

attorney for the Commonwealth, may hear and 

determine the case without the intervention 

of a jury. In each instance the court shall 

have and exercise all the powers and duties 

vested in juries by any statute relating to 

crimes and punishments. 

 When a person charged with a 

misdemeanor has been admitted to bail or 

released upon his own recognizance for his 

appearance before a court of record having 

jurisdiction of the case, for a hearing 

thereon and fails to appear in accordance 

with the condition of his bail or 

recognizance, he shall be deemed to have 

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waived trial by a jury and the case may be 

heard in his absence as upon a plea of not 

guilty.

Code § 19.2-258 (emphasis added). 

 In the instant case, appellant's failure to appear for his 

trial in the circuit court constituted a waiver of his right to 

trial by jury. Accordingly, the trial court did not err in 

proceeding with a bench trial and convicting appellant in his 

absence. 

III. DISCOVERY REQUESTS 

 Appellant next contends the trial court erred in refusing 

his discovery requests for radar certificates. He admits that 

discovery under Rule 3A:11 of the Virginia Supreme Court Rules 

applies only to prosecution for a felony in a circuit court and 

that he requested discovery under a Texas statute. However, he 

argues that as a commercial driver being licensed in Texas, 

"fundamental fairness dictates that licensees traveling the 

interstate highways of the Commonwealth be afforded uniform 

proceedings." This argument lacks merit. 

 In cases involving choice-of-law questions, Virginia 

adheres to the use of traditional rules applicable to conflicts 

of law. Under such rules, it is well settled that matters of 

procedure are governed by the law of the forum. See Frye v. 

Commonwealth, 231 Va. 370, 376, 345 S.E.2d 267, 272 (1986); see

also Hooper v. Musolino, 234 Va. 558, 566-67, 364 S.E.2d 207, 

211 (1988) ("Under settled choice-of-law principles, however, we 

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will apply our own law in matters that relate to procedure."); 

Clark v. Clark, 11 Va. App. 286, 300, 398 S.E.2d 82, 89 (1990) 

("If the issue is deemed procedural under the conflict of laws 

rules, the court shall apply its rules and procedures."). 

 Discovery is governed by Virginia law, which under Rule 

3A:11 is limited and applies only to felony charges in the 

circuit court. See Rule 3A:11(b) ("This rule applies only to 

prosecution for a felony . . . ."); see also Swisher v. 

Commonwealth, 256 Va. 471, 481, 506 S.E.2d 763, 768 (1998) 

("[T]here is no general constitutional right to discovery in a 

criminal case."). Because appellant was charged with a 

misdemeanor offense, he was not entitled to pretrial discovery. 

Accordingly, the trial court did not err in refusing his 

discovery requests.3

 Affirmed.

 

 3Appellant concedes that the Commonwealth was under no 

obligation to produce the radar certificates before trial and 

complains only that the court should have advised him that 

pretrial discovery was unavailable. 

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