Norman Lynwood Haley v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 18, 2000
• Docket: 2023984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Senior Judges Duff and Hodges

NORMAN LYNWOOD HALEY MEMORANDUM OPINION * BY v. Record No. 2023-98-4 CHIEF JUDGE JOHANNA L. FITZPATRICK JANUARY 18, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY H. Selwyn Smith, Judge Designate

(Christopher J. Collins, on brief), for appellant. Appellant submitting on brief.

(Mark L. Earley, Attorney General; Robert H. Anderson, III, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Appellant was tried and convicted of contracting without a

state contractor's license, third or subsequent offense, during a

thirty-six month period in violation of Code § 54.1-111(A)(8). On

appeal, appellant contends the trial court erred in denying his

motion to dismiss the indictment and his request to inspect the

minutes of the grand jury. For the reasons that follow, we

dismiss appellant's appeal.

FACTS

On February 9, 1998, the grand jury indicted appellant on the

above-referenced charge. By order dated February 19, 1998, the

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. case was continued until April 1, 1998. On March 3, 1998,

appellant filed a "Motion to Dismiss Indictment and Request to

Inspect Minutes of the Grand Jury" and a memorandum in support of

that motion. In the memorandum, appellant contended that

[t]he grand jury in this case was not informed of the appeal noted by defendant or that it had placed the status of his Fairfax conviction(s) in abeyance pending the conclusion of the appeal. The police officer, who we believe gave testimony regarding the Fairfax County conviction(s) before the grand jury, knew or had reason to know that an appeal was pending. An indictment in Loudoun County was, thus, premature.

As to the second issue, appellant moved for disclosure of

the grand jury proceedings, alleging "it is crucial to know how

the information leading to a third and subsequent felony

indictment evolved in order to know if the grand jury had been

adequately informed in reaching its indictment."

MOTION TO DISMISS INDICTMENT

On April 22, 1998, appellant appeared before the trial

court on Indictment Numbers 11283 and 11284. The trial court

entered an order of nolle prosequi on Indictment No. 11283. As

to Indictment Number 11284, the order reflected that the trial

court denied appellant's motions "To Have Judge Smith Recuse

Himself," "To Dismiss the Indictment," and "To Unseal Grand Jury

Minutes" after due "consideration and for the reasons stated on

the record." The record on appeal contains no transcript of the

April 22, 1998 proceeding nor a statement of facts reflecting

- 2 - what evidence and arguments were presented at that time and upon

what bases the trial judge denied the motions. Moreover, the

record does not contain copies of any district court misdemeanor

convictions allegedly on appeal to the circuit court.

"The trial court's judgment is presumed to be correct, and

'the burden is on the appellant to present to us a sufficient

record from which we can determine whether the lower court has

erred.'" Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d

848, 852 (1992) (en banc) (citations omitted). In a long series

of cases, this Court has addressed the necessity to provide a

record sufficient to determine the merits of the issues on

appeal. See, e.g., Anderson v. Commonwealth, 13 Va. App. 506,

508-09, 413 S.E.2d 75, 77 (1992); Turner v. Commonwealth, 2 Va.

App. 96, 99, 341 S.E.2d 400, 402 (1986).

Absent a transcript or statement of facts, we cannot

determine what arguments or objections were made to the

indictment or prior orders; what prior orders were contested;

what evidence was presented; and what actions the Commonwealth

or trial court took to cure any alleged improprieties.

Moreover, at appellant's July 24, 1998 trial on Indictment

Number 11284, the Commonwealth introduced and the trial court

admitted into evidence, without objection, certified copies of

three circuit court misdemeanor convictions. Appellant's

failure to object to the admission of the prior conviction

orders cured any alleged defects in the indictment.

- 3 - INSPECTION OF GRAND JURY MINUTES

Grand jury proceedings are to be kept secret unless a grand

jury witness is prosecuted for perjury. See Code § 19.2-192.

The characteristic secrecy associated with grand jury proceedings is intended to protect the proceedings from public exposure. The rationale for non-disclosure to the public is twofold: (1) to protect the reputation of suspected individuals from the stigma which investigation alone can bring, and (2) to promote public cooperation in investigations by providing some anonymity and reducing the risk of recrimination.

Vihko v. Commonwealth, 10 Va. App. 498, 504, 393 S.E.2d 413, 417

(1990) (explaining that the trial judge is the only authorized

official to monitor the scope of disclosure of grand jury

proceedings). Without a transcript of the April 22, 1998

hearing, we cannot determine what evidence and arguments were

presented and upon what bases the trial court refused to

exercise its authority to disclose the grand jury minutes. See

Twardy, 14 Va. App. at 658, 419 S.E.2d at 852.

Moreover, the record contains no evidence specifying which

underlying convictions, if any, were on appeal to the circuit

court at the time the grand jury issued the indictment to

support appellant's bare assertion of bad faith. See Ferguson

v. Commonwealth, 10 Va. App. 189, 194, 390 S.E.2d 782, 785,

aff'd in part, rev'd in part, 240 Va. ix, 396 S.E.2d 675 (1990)

(holding that appellant has primary responsibility of ensuring

that complete record is furnished to an appellate court so that

- 4 - errors assigned may be properly decided); see also Twardy, 14

Va. App. at 658, 419 S.E.2d at 852. Thus, we cannot say that

any conviction orders were on appeal at the time the grand jury

met and issued the indictment or that the police acted in bad

faith.

CONCLUSION

Appellant failed to include a transcript of the April 22,

1998 proceeding. He also failed to provide record evidence

identifying what convictions, if any, were on appeal and what

convictions, if any, were improperly used to obtain the

indictment. Because a transcript or statement of facts

concerning the incidents of the April 22, 1998 hearing is

indispensable to determining the merits of the issues raised by

appellant on appeal, we dismiss the appeal.

Dismissed.

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