Troussant Delano Lett v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia
TROUSSANT DELANO LETT
MEMORANDUM OPINION * BY
v. Record No. 2611-99-1 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 24, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
Erika L. Winter for appellant.
Thomas D. Bagwell, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Troussant Delano Lett was convicted in a bench trial of
operating a motor vehicle on a highway of the Commonwealth after
having been adjudicated an habitual offender, second or subsequent
offense, in violation of Code § 46.2-357(B)(3). On appeal, he
contends that the trial court erred in convicting him in violation
of his right to due process of law. We disagree and affirm the
conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Specifically, Lett contends that, because he reasonably
relied on a ruling by a judge in an earlier habitual offender
proceeding and on assurances from his attorney at that proceeding
that he could drive as an habitual offender in apartment
complexes, his prosecution and conviction for driving on a road
within an apartment complex violate his constitutional right to
due process.
A. Procedural Bar
The Commonwealth preliminarily contends that Lett's
constitutional claim is barred because he failed to raise the due
process issue at trial. We disagree with the Commonwealth's
premise and find that appellant's claim is not procedurally
barred.
Rule 5A:18 provides that "[n]o ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
time of the ruling, except for good cause shown or to enable the
Court of Appeals to attain the ends of justice." The purpose of
Rule 5A:18 is to ensure that the trial court and opposing party
are given the opportunity to intelligently address, examine, and
resolve issues in the trial court, thus reducing the need for
appeals and new trials. See Lee v. Lee, 12 Va. App. 512, 514, 404
S.E.2d 736, 737 (1991) (en banc); Kaufman v. Kaufman, 12 Va. App.
1200, 1204, 409 S.E.2d 1, 3-4 (1991).
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Here, Lett's attorney argued during closing argument at trial
that, in driving within the apartment complex, Lett was relying on
advice and information he had received from a judge and from his
attorney regarding where he could permissibly drive as an habitual
offender. Lett's reliance on such advice and information, his
attorney argued, precluded his prosecution and conviction "as a
matter of justice."
While not couched in specific constitutional terms, Lett's
defense at trial was plainly an argument of fairness grounded in
the Due Process Clause of the Fourteenth Amendment. We find that
it was sufficient to inform the trial court and opposing party of
his belief that his prosecution and conviction for driving in a
location that he had been informed by the court and his attorney
was permissible would violate his right to due process of law.
Accordingly, the issue was properly preserved for our
consideration on appeal.
B. Due Process Rights
The due process defense asserted here by Lett is a narrow
constitutional exception to the common law rule that ignorance
of the law is no excuse. See Miller v. Commonwealth, 25 Va.
App. 727, 732 n.2, 492 S.E.2d 482, 485 n.2 (1997) (reversing the
conviction of defendant who relied on his probation officer's
misinformation as to what was permissible conduct). "The due
process argument is, in essence, 'that the criminal statute
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under which the defendant is being prosecuted cannot
constitutionally be applied to the defendant without violating
due process of law, where government officials have misled the
defendant into believing that his conduct was not prohibited.'"
Id. at 736, 492 S.E.2d at 487 (quoting Jeffrey F. Ghent,
Annotation, Criminal Law: "Official Statement" Mistake of Law
Defense, 89 A.L.R.4th 1026, 1031 (1991)).
In examining this same due process defense in Miller, we
held that to successfully employ the defense the defendant must
first establish the legal sufficiency of the source and content
of the information received by showing (1) that the source of
the information was a "public officer or body charged by law
with responsibility for defining permissible conduct with
respect to the offense at issue" and (2) that the information
relied on by the defendant included an affirmative assurance
that the conduct at issue was lawful. Id. at 737-40, 492 S.E.2d
at 487-89.
Here, Lett asserts that in driving on Toano Drive he relied
on information from two public officials that driving within the
confines of an apartment complex was not driving "on the
highways of the Commonwealth." The first official was the judge
of the Circuit Court of Williamsburg and James City County who "in
the early '90s" dismissed a charge against Lett for driving on a
highway of the Commonwealth after having been declared an habitual
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offender. According to Lett, the court ruled that he had not been
driving on a "highway" but on a private road within the confines
of an apartment complex. The second person on whose advice Lett
relied was his attorney at that earlier proceeding who, in
explaining the court's ruling, told Lett that "it was all right"
for him to drive "on private property like the apartment complex."
We find, for purposes of this appeal, that a circuit court
judge is a government official responsible for defining
permissible conduct with respect to the habitual offender
statute. Judges are charged with interpreting and applying the
law, and their rulings, interpretations, and opinions may
properly be resorted to for guidance. See, e.g., United States
v. Brady, 710 F. Supp. 290, 295 (D. Colo. 1989).
Conversely, a private attorney is not a government
official. 1 See, e.g., United States v. Indelicato, 887 F. Supp.
23, 25 (D. Mass. 1995), modified in part on other grounds, 97
F.3d 627 (1st Cir. 1996). We are unable, therefore, to find
that Lett's former attorney was a public officer charged by law
1
Lett referred in his testimony at trial to the attorney
who represented him at the "early '90s" habitual offender
proceedings as "Judge" Stone. Appellant's brief explains that
Stone also served as a substitute judge. However, because Stone
was acting as Lett's attorney and not in a judicial capacity
when he gave Lett the stated advice regarding the propriety of
driving within an apartment complex, we will view him, for
purposes of this appeal, as a private attorney only.
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with the responsibility for defining where Lett could legally
drive.
We turn next to the question of whether the judge's ruling
relied on by Lett included an affirmative assurance that the
conduct at issue in this case was lawful. Lett testified at
trial regarding the assurances he received, as follows:
Q. Okay. Were you aware that you were
driving in violation of habitual offender?
A. No, I wasn't.
Q. And why is that, Mr. Lett?
A. Well, I had a case -- I was in
Benton Wood Apartments.
Q. Brentwood Apartments?
A. I think it's Benton Wood.
Q. Burton Woods?
A. Yeah. Burton Woods.
Q. Okay.
A. And Judge Stone -- well, Lawyer
Stone --
Q. Do you know when this was?
A. It was a few years back in the
early '90s and Judge Stone had the case
right here, because they arrested me for
driving habitual offender, and I came to
Circuit Court here, and Judge Person was
presiding. And Judge Stone --
Q. And by Judge Stone you mean
attorney, William Stone?
A. Yes. Attorney Stone, yes. He was
my lawyer at the time, and he stated that it
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was unlawful to arrest and try a citizen
driving habitual offender if in fact the
arresting officer did not see the citizen
drive on the state highway, and he quoted --
he said he got that from Mary Sue Terry and
the records is here on the file, and that
case was dismissed by Judge Person.
Q. And did you have a conversation
with Lawyer Stone after that about what that
meant?
A. Yes, I did. I asked him what did
that mean. He said as far as driving on
private property like the apartment complex
it was all right. He said but if you drive
on the highway then you can be arrested for
driving habitual offender. 2
There is no other evidence in the record regarding the
referenced "early '90s" habitual offender proceeding and the
advice and information received relative thereto by Lett.
Specifically, there is no evidence in the record as to the
court's exact ruling in that case or any evidence indicating why
the case was dismissed. Nor is there anything in the record to
suggest that the judge in that case advised Lett where he could
or could not legally drive as an habitual offender.
We cannot find, therefore, that the information relied on
by Lett included an affirmative assurance that the conduct at
issue here was lawful. Even if that court dismissed the case
2
As the Commonwealth reminds us, the credibility of a
witness and the weight accorded his testimony are matters solely
for the fact finder's determination. See, e.g., Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
For purposes of this appeal, we assume without deciding that the
trial judge accepted Lett's testimony as true.
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because, as Lett asserts, it found that Lett had been driving on
a private road within an apartment complex, we cannot find that
such a ruling constituted an affirmative assurance upon which
Lett could rely in deciding to drive on Toano Drive, a
state-maintained road with a highway marker on it located in a
different apartment complex. Clearly, the court's ruling fell
far short of informing Lett, as he would have us believe, that
all roads within all apartment complexes were private roads as
opposed to state "highways" and would remain so forever. And
most certainly it did not include an assurance that Toano Drive
was a private road or that Lett could otherwise drive on it as
an habitual offender with immunity.
Consequently, we are unable to find, based on the record
before us, that the content of the information received by the
defendant was legally sufficient to evoke due process concerns.
The due process defense asserted by Lett therefore does not
apply in this case. Accordingly, we affirm appellant's
conviction for operating a motor vehicle after having been
adjudicated an habitual offender, second or subsequent offense.
Affirmed.
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