Christopher Edward HARRIS v. COMMONWEALTH of Virginia.
Record No. 1615-01-2.
Court of Appeals of Virginia, Richmond.
Feb. 4, 2003.
576 S.E.2d 228
670
Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Chief Judge FITZPATRICK, Judges BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON and KELSEY.
UPON A REHEARING EN BANC
ROBERT J. HUMPHREYS, Judge.
This matter comes before the Court on a rehearing en banc from a decision of a divided panel rendered July 2, 2002. See Harris v. Commonwealth, 02 Vap UNP 1615012, 2002 WL 1419890 (Va.App.2002). The panel affirmed Harris’ conviction for driving without a license, in violation of
On December 13, 1999, Officer Josh Linger of the Richmond Police Department came upon Harris’ car parked in the travel lane on Marshall Street in front of Singer Hall on the Virginia Commonwealth University/Medical College of Virginia campus. Marshall Street is a one-lane street, and Harris’ car was obstructing traffic. The car was unoccupied, but its hazard lights were on.
Harris came out of Singer Hall, and Officer Linger asked to see his driver‘s license. Officer Linger then ran a check on Harris’ license and determined that his license was suspended.
Harris admitted that hе knew the car had failed inspection, but denied knowing about the license suspension. He told Officer Linger he drove the car for work, making deliveries, and that he had made a delivery in Singer Hall. Officer Linger issued Harris a summons for driving his car on a suspended license in violation of
The district court convicted Harris of driving a motor vehicle without a license, in violation of
Upon the conclusion of the evidence in his bench trial, Harris moved to strike the charge, arguing that
Harris subsequently filed a motion to reconsider restating his contention that
Harris appeals the trial court‘s finding in this regard, contending that the court erred in trying Harris on the charge “where the summons issued was not a valid process to present the charge for trial.” In response, the Commonwealth аrgues, for the first time on appeal, that Harris procedurally defaulted on this claim because he failed to raise a defense or objection “based upon defects in the institution of the prosecution,” seven days prior to trial, as required by Supreme Court of Virginia Rule 3A:9(b) and (c). We agree.
Rule 3A:9 states, in relevant part, as follows:
(b) The Motion Raising Defenses and Objections.
(1) Defenses and Objections That Must Be Raised Before Trial.—Defenses and objections based on defects in thе institution of the prosecution or in the written charge upon which the accused is to be tried, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion made within the time prescribed by paragraph (c) of this Rule. The motion shall include all such defenses and objections then available to the accused. Failurе to present any such defense or objection as herein provided shall constitute a waiver thereof. Lack of jurisdiction or the failure of the written charge upon which the accused is to be tried to state an offense shall be noticed by the court at any time during the pendency of the proceeding.
(2) Defenses and Objections That May Be Raised Before Trial.—In addition to the defenses and objеctions specified in subparagraph (b)(1) of this Rule, any defense or objection that is capable of determination without the trial of the general issue may be raised by motion before trial. Failure to present any such defense or objection before the jury returns a verdict or the court finds the defendant guilty shall constitute a waiver thereof.
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(c) Time of Filing Notice or Making Motion.—A motiоn referred to in subparagraph (b)(1) shall be filed or made before a plea is entered and, in a circuit court, at least 7 days before the day fixed for trial, and a copy of such motion shall, at the time of filing, be mailed to the judge of the circuit court who will hear the case, if known.
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(d) Relief From Waiver.—For good cause shown the court may grant relief from any waiver provided for in this Rule. (Emphases added.)
“Rule 3A:9 recognizes a class of defenses and motions which must be raised before trial, and a separate class which may be raised before trial.” Harward v. Commonwealth, 5 Va.App. 468, 474, 364 S.E.2d 511, 514 (1988). The plain language of the Rule states that the requirements of Rule 3A:9(b)(1) are mandatory, and “[f]ailure to raise such [defenses] properly is a waiver,” unless “good cause” is shown. Freeman v. Commonwealth, 14 Va.App. 126, 127, 414 S.E.2d 871, 872 (1992); see also Rule 3A:9(b)-(d).
Because Harris did not comply with the notice provisions of Rule 3A:9 and did not show “good cause,” he waived any “[d]efense[] [or] objection[] basеd on defects in the institution of the prosecution or in the written charge upon which [he was] to be tried,” including any defense or objection pursuant to
Although the Commonwealth raised this argument for the first time on appeal, we have long held that “Rule 5A:18 does not require an appellee to raise an issue at trial before it may be considered on аppeal, where the issue is not offered to support reversal of a trial court ruling.” Driscoll v. Commonwealth, 14 Va.App. 449, 451-52, 417 S.E.2d 312, 313 (1992) (“An appellee is subject to the limitations of Rule 5A:18 only where it asserts an error that seeks to reverse a judgment.” (citations omitted)). “The question we must address, therefore, is whether we may apply the right for the wrong reason rationale to affirm the judgment in this case.” Id. at
The rule does not always apply. It may not be used if the correct reason for affirming the trial court was not raised in any manner at trial. In addition, the proper application of this rule does not include those cases where, bеcause the trial court has rejected the right reason or confined its decision to a specific ground, further factual resolution is needed before the right reason may be assigned to support the trial court‘s decision.
Id. at 452, 417 S.E.2d at 313-14 (citation omitted).
Here, although stating that Harris should have raised the motion in the form of a motion to suppress, the Commonwealth clearly аrgued that in making his argument in the form of a motion to strike after the trial had commenced, Harris raised the motion improperly and, therefore, waived any objections made at such a “late juncture.” Thus, the reason for the proper resolution of Harris’ motion was raised before the trial court, albeit inartfully, and the facts in the record fully support the procedural bar. Accordingly, we find the trial court appropriately denied Harris’ motion in this regard as Harris had waived any objection with respect to the summons and the trial court.
Therefore, we hold that the trial court was correct, although for the wrong reason, in denying Harris’ motion to strike and subsequent motion to reconsider. Accordingly, we do not address the merits of Harris’ argument and affirm the judgment of the trial court.
Affirmed.
BENTON, J., with whom, ELDER, J., joins, dissenting.
I.
At the conclusion of the Commonwealth‘s evidence at the bench trial, Christopher Harris’ attorney moved to strike the evidence because it proved the officer, in violation of
After the trial judge heard arguments on the motion, he struck the evidence as to reckless driving and found that the evidence was sufficient to prove Harris was operating the vehicle. Thus, he convicted Harris of driving without a license in violation of
Evеn if Rule 3A:9(b)(1) and (c) apply, as the Commonwealth now contends for the first time on appeal, the trial judge‘s ruling disposed of this issue. Rule 3A:9(d) provides that “[f]or good cause shown the court may grant relief from any waiver provided for in this Rule.” After failing to argue that Harris’ claims in the motions to strike the evidence were untimely under Rule 3A:9, the prosecutor later objected to the trial
In аddition, it bears noting that the Commonwealth‘s contention that Harris’ appeal “is not reviewable pursuant to Rules 3A:9(b) and (c)” is an attempt to appeal an evidentiary ruling. The Commonwealth failed to assert at trial either that Rule 3A:9(b)(2) was inapplicable or that Rule 3A:9(c) precluded consideration of Harris’ claim. Thus, by asserting in the course of Harris’ aрpeal the trial judge‘s failure to explicitly address what is implicit in his ruling, the Commonwealth is merely appealing the trial judge‘s consideration of the claim on its merits. See Campbell v. Commonwealth, 246 Va. 174, 187 n. 11, 431 S.E.2d 648, 655 n. 11 (1993). We have also previously ruled in other decisions that “the Commonwealth cannot use [the right result for the wrong reason rule] as a subterfuge for a constitutionally prohibited cross-appeal.” Driscoll v. Commonwealth, 14 Va.App. 449, 452, 417 S.E.2d 312, 313 (1992). The rule “may not be used if the correct reason for affirming the trial court was not raised in any manner at trial.” Id.
Furthermore, in Neal v. Commonwealth, 27 Va.App. 233, 236 n. 1, 498 S.E.2d 422, 424 n. 1 (1998), we noted that when the Commonwealth failed to object to the timeliness of a motion and the judge ruled on the merits of the motion favorable to the Commonwealth, the issue of timeliness is
II.
The evidence in this case proved the police officer only saw Harris emerge from the building and did nоt see him in the automobile. The officer arrested Harris for violating
Because Harris did not “drive” the automobile in the officer‘s presence, the officer could not validly charge him with a violation of
Even if we were to assume, however, as the Commonwealth argues, that the prоhibition in
The offense of operating a motor vehicle on a suspended license ended when the appellant stopped driving the car and did not continue thereafter. Although the trooper developed evidence of the commission of that offense, no part of the offense was committed in his presence. Therefore, he lacked authority to arrest the appellant on that charge without a warrant. The arrest was unlawful, and the summons issued on that charge was not a valid process
to present that charge for trial. The trial court erred in trying that charge without a valid process.
Id. at 672, 440 S.E.2d at 430.
Likewise, the evidence at Harris’ trial is consistent with Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984), where the Supreme Court held as follows:
In the present case, ... Overbee was not in his vehicle when the оfficer found him. The engine was not running; the ignition key had been removed. Overbee‘s possession of the keys may have given him the means of effecting control over the truck, but he cannot be said to have been in actual physical control of the vehicle when he was standing in front of it on the highway. We hold that Overbee was not operating his truck when Trooper Lacey approached and arrested him.
Id. at 243, 315 S.E.2d at 244.
Absent proof that the motor of the automobile was activated, the evidence that the emergency flashers were blinking does not prove the automobile was then being operated. No evidence proved the emergency flashers “will activate the motive power of the vehicle.” Williams, 216 Va. at 300, 217 S.E.2d at 896. Indeed, in Overbee, the accused‘s presence at the front of the truck, where the hood of the truck had been unlatched and was open, was not proof he was operating the truck. Overbee, 227 Va. at 240-41, 315 S.E.2d at 243. Thus, unlike in Williams, where the “motor of the car was running” and “the defendant made a ‘motion’ to the gearshift” before he “cut off” the motor, 216 Va. at 301, 217 S.E.2d at 896, no evidence proved that Harris was “оperating” the automobile. “‘Operating’ means engaging the machinery of the vehicle which alone, or in sequence, would have activated its motive power.” Id. at 300, 217 S.E.2d at 896. See also Stevenson v. City of Falls Church, 243 Va. 434, 438, 416 S.E.2d 435, 438 (1992) (holding that “[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of Stevenson‘s car, Stevensоn[, who was
For these reasons, even if the prohibition in