Norman Lynwood Haley v. Commonwealth of Virginia ( 2000 )

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
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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.
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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
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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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