796 S.E.2d 854
Va. Ct. App.2017Background
- Appellant Gregory Richardson, committed as a sexually violent predator, was indicted for felony indecent exposure after exposing himself at the Virginia Center for Behavioral Rehabilitation (VCBR).
- Defendant challenged his court-appointed counsel, alleging inadequate preparation and failure to subpoena video footage; the court denied motions for new counsel and a continuance.
- Appellant refused to participate in the arraignment colloquy; he was found in contempt, lifted by bailiffs, and did not respond to plea requests.
- The court interpreted his silence as a plea of not guilty and later as consent to a jury-waiver bench trial, stating it would interpret silence as assent unless he spoke up.
- The conviction orders stated no demand for a jury and that the court, with Commonwealth and court concurrence, proceeded without a jury; appellant later moved to vacate the verdict.
- The Virginia Court of Appeals held the trial court lacked jurisdiction because there was no express, recorded consent by the defendant to waive the jury, and reversed/remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether waiver of jury trial requires express consent recorded. | Richardson argues no express consent was entered. | Commonwealth contends silence suffices as consent or is waived by inaction. | Waiver requires express, record-based consent; record shows no such consent. |
| Whether silence during colloquy can constitute consent to bench trial. | Richardson did not affirmatively consent. | Court can interpret silence as assent. | Silence cannot substitute for express, intelligent consent. |
Key Cases Cited
- Wright v. Commonwealth, 4 Va. App. 303 (1987) (consent must be entered of record; not implied by conduct)
- McCormick v. Virginia Beach, 5 Va. App. 369 (1987) (express and intelligent consent required to waive jury trial)
- Catlett v. Commonwealth, 198 Va. 505 (1956) (recorded concurrence required; waiver must be entered of record)
- Jones v. Commonwealth, 24 Va. App. 636 (1997) (consent must be express and intelligent; entered of record)
- Boaze v. Commonwealth, 165 Va. 786 (1936) (waiver must be manifest; silence alone insufficient)
- Cunningham v. Smith, 205 Va. 205 (1964) (jurisdiction hinges on constitutional compliance; records must show consent)
- Norton v. Commonwealth, 19 Va. App. 97 (1994) (consent and record-entry requirements for jury waiver)