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CAV: Jury-waiver objection tangential, not preserved

A defendant’s expression of dissatisfaction with a scheduled bench trial was not presented as an independent motion to the trial court, but merely as support for the defendant’s motion for new counsel.


Appellant Calvin Cardale Townes was to be tried for a firearm-possession offense and eluding police. At the scheduling hearing, Townes’s counsel requested a bench trial. After a colloquy with Townes directly, the trial court confirmed he understood he was waiving his right to a jury trial. Townes later told the trial court he wanted a new attorney in part because he wanted a jury trial, not a bench trial. The trial court ruled that Townes had not presented an adequate reason for a new attorney and proceeded with a bench trial.

At trial, the evidence showed that Virginia State Police Trooper Brandon Crockwell attempted to initiate a traffic stop, but the driver did not stop until hitting a curb and disabling his vehicle. Crockwell saw Townes exit the driver’s side and begin running, with one hand swinging naturally but the other near his waistline. Crockwell pursued and apprehended Townes, who fell twice during the chase. He had appeared to be looking for something near his waistband but did not find it. Crockwell returned to the area where Townes first fell and found a loaded firearm sitting on top of a pile of leaves.

The trial court found Townes guilty of both charges. This appeal followed.

Preservation of error

Townes failed to present the trial court with a motion to withdraw his jury trial waiver, preventing the trial court from having the opportunity to adequately consider and rule on any motion to withdraw his waiver. Further, though given the opportunity to make such a motion or at least raise the issue, Townes’s counsel failed to notify the trial court that Townes wanted to make a motion to withdraw his jury trial waiver and failed to object to proceeding with a bench trial.

Townes’s counsel informed the trial court that he had two motions to present to the trial court — a motion for new counsel and a motion to continue. He didn’t move the trial court to withdraw Townes’s waiver of his right to a jury trial, nor did he mention Townes’s revived interested in a jury trial.

On the trial court’s inquiry, Townes said that he was moving for new counsel because he was upset that his attorney tried to get him to take a plea. It was only after the court explained that this was an inadequate basis for new counsel that Townes mentioned a second reason for his motion: his desire not to have a bench trial. Thus, Townes was offering his dissatisfaction with a bench trial as a basis for another motion, not a separate motion to be considered independently by the trial court. The trial court apparently understood Townes’s statements this way, rendering express rulings on the motions for new counsel and to continue but not ruling at all on the jury trial waiver issue.

Finally, Townes’s counsel had the opportunity to put the trial court on notice of a motion to withdraw his jury trial waiver, but did not do so — or object to proceeding with the bench trial. On two occasions, the trial judge asked Townes’s counsel if he was prepared to proceed with the bench trial, once even mentioning Townes’s waiver. In both instances, Townes’s counsel responded affirmatively.

Because he did not alert the trial court that he apparently wished to withdraw his jury trial waiver, this court finds that he failed to preserve this assignment of error for review.

Sufficiency of evidence

The circumstantial evidence in this case supports Townes’s conviction. The firearm was found close to where he fell when he was being pursued. Crockwell testified that the firearm was warm to the touch, consistent with its having just been held close to Townes’s body. It was also dry and clean, suggesting that it had been dropped recently, after the earlier rain. Crockwell testified that there was no one else in the area who could have dropped the weapon. And his observations about Townes’s hand near his waist while running — and reaching toward his waistband when he was finally stopped — were consistent with Townes’s possession of a firearm.

Considering the totality of the circumstances, this court cannot say that no rational fact-finder could have concluded that Townes possessed the firearm police located that evening.


Townes v. Commonwealth, Record No. 0885-17-2, Mar. 13, 2018. CAV (Beales), from Richmond Cir. Ct. (Jenkins). Kyle Anderson for Appellant; Elizabeth Kiernan Fitzgerald for Appellee. VLW No. 018-7-057, 10 pp.

VLW 018-7-057