                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Alston and Decker
PUBLISHED


            Argued by teleconference


            MICHAEL ALONZO ROBINSON, JR.
                                                                                  OPINION BY
            v.     Record No. 0097-13-2                                    JUDGE ROSSIE D. ALSTON, JR.
                                                                               SEPTEMBER 16, 2014
            COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                         Beverly W. Snukals, Judge

                           Jennifer M. Newman for appellant.

                           Susan Baumgartner, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   Michael Alonzo Robinson, Jr. (appellant) appeals his convictions of one count of

            first-degree murder in violation of Code § 18.2-32, one count of robbery in violation of Code

            § 18.2-58, two counts of abduction for pecuniary benefit in violation of Code § 18.2-48, and four

            counts of use of a firearm in the commission of a felony in violation of Code § 18.2-53.1. On

            appeal, appellant alleges that the trial court “erred in failing to dismiss the multi-jurisdictional

            grand jury indictments for murder and use of a firearm due to the violation of . . . Code

            § 19.2-215.9, which violated [appellant]’s rights to due process and to prepare his best defense.”

            We disagree and therefore affirm appellant’s convictions.

                                                         I. Background

                   The evidence established that on March 16, 2012, Jerrod Oliver was shot and killed in his

            house in the City of Richmond. Appellant, armed with a firearm, entered Oliver’s house and

            threatened Oliver and a friend, Chaquetta Bowles, demanding money and a gun from Oliver. On

            March 21, 2012, the Richmond Metropolitan Multi-Jurisdictional Grand Jury returned indictments
against appellant for the first-degree murder of Oliver in violation of Code § 18.2-32 and the use of

a firearm in the commission of that murder in violation of Code § 18.2-53.1. On May 3, 2012,

appellant moved to review the multi-jurisdictional grand jury evidence pursuant to Code

§ 19.2-215.9,1 or in the alternative, to dismiss the indictments if a transcript was unavailable.

       The trial court held a hearing on appellant’s motion to dismiss the multi-jurisdictional

grand jury indictments on May 11, 2012. The Commonwealth proffered to the trial court that a


       1
           Code § 19.2-215.9 states, in relevant part:

                         A. A court reporter shall be provided for a
                 multi-jurisdiction grand jury to record, manually or electronically,
                 and transcribe all oral testimony taken before a multi-jurisdiction
                 grand jury, but such a reporter shall not be present during any stage
                 of its deliberations. Such transcription shall include the original or
                 copies of all documents, reports, or other evidence presented to the
                 multi-jurisdiction grand jury. The notes, tapes, and transcriptions
                 of the reporter are for the use of the multi-jurisdiction grand jury,
                 and the contents thereof shall not be used or divulged by anyone
                 except as provided in this article.

                         B. The clerk shall cause the notes, tapes, and transcriptions
                 or other evidence to be kept safely. Upon motion to the presiding
                 judge, special counsel shall be permitted to review any of the
                 evidence which was presented to the multi-jurisdiction grand jury,
                 and shall be permitted to make notes and to duplicate portions of
                 the evidence as he deems necessary for use in a criminal
                 investigation or proceeding. Special counsel shall maintain the
                 secrecy of all information obtained from a review or duplication of
                 the evidence presented to the multi-jurisdiction grand jury, except
                 that this information may be disclosed pursuant to the provisions of
                 subdivision 2 of [Code] § 19.2-215.1. Upon motion to the
                 presiding judge by a person indicted by a multi-jurisdiction grand
                 jury, similar permission to review, note, or duplicate evidence
                 shall be extended if it appears that the permission is consistent
                 with the ends of justice and is necessary to reasonably inform such
                 person of the nature of the evidence to be presented against him,
                 or to adequately prepare his defense.

(Emphasis added).
        Code § 19.2-215.9 was amended in 2014; however the changes do not alter our analysis
of the issues presented on appeal.
                                            -2-
court reporter did not attend or record evidence presented during the proceedings before the

multi-jurisdictional grand jury. The Commonwealth further represented that only Detective

Goldman presented evidence at the hearing before the multi-jurisdictional grand jury and that

“Detective Goldman’s presentation of that evidence is not the same as a witness being called in

to testify, thus not requiring a transcript.” The trial court denied appellant’s motion stating in

part that the “remedy of dismissal of the charge is [not] part of [Virginia’s] statute, and the

[c]ourt would have to find some prejudice to the defense, and have to find that it was some act of

the Commonwealth that was not generally by malfeasance or something.” The trial court did,

however, order a bill of particulars concerning the charges certified by the multi-jurisdictional

grand jury against appellant.

       On June 4, 2012, a City of Richmond grand jury indicted appellant on two counts of

abduction for pecuniary benefit in violation of Code § 18.2-48, one count of robbery in violation

of Code § 18.2-58, and three counts of use of a firearm in the commission of a felony in violation

of Code § 18.2-53.1. The indictments from both grand juries were consolidated for trial and a

jury trial on all of the charges was held on October 9, 2012.

       At trial, Chaquetta Bowles testified that around 9:30-10:00 p.m. on March 16, 2012,

Oliver brought her to his home on the south side of the City of Richmond. Bowles testified that

while she was upstairs, Oliver asked her if she was hungry and offered to get her food. A few

minutes later, Oliver backed into the bedroom, in which Bowles was sitting, with his hands in the

air saying “don’t shoot.” Bowles testified that she then saw appellant holding a gun and

appellant told her “bitch, drop the phone and walk over to me.” Appellant then demanded

money and a “chopper” from Oliver.2 Oliver retrieved money from his closet and gave it to

appellant and told him that the “chopper” was downstairs in the oven. Appellant grabbed

       2
           “Chopper” is slang for a big gun.
                                                -3-
Bowles by the back of her hair and put the gun to her head as he walked her and Oliver

downstairs where Bowles reached into the oven and handed him the “chopper.”

       At that point, Bowles testified that Oliver said to appellant “I can’t believe you’re doing

this to me. I take care of you and your family.” Appellant replied “I’m hurtin. I’m hurtin” and

then shot Oliver twice. Appellant then turned and pointed the gun at Bowles. Oliver dove on top

of appellant in an effort to shield Bowles from appellant while Bowles ran upstairs and locked

herself in a closet. She then heard multiple gunshots. Bowles then heard Oliver call her name.

At that point, Bowles ran downstairs and saw Oliver going out the front door. Bowles ran to a

neighbor’s house and yelled at them to call 911. Later that day, Bowles looked at photographs

and identified appellant as the person who shot Oliver.

       Officer Burdette also testified and stated that he responded to the scene and observed

Oliver holding the handrails on his porch, covered in blood. Officer Burdette testified that he

asked Oliver what happened and Oliver responded that “Mikey. Rock’s brother [shot him and

took his gun].” Officer Burdette asked Mikey’s last name and Oliver responded “Robinson.”

Shortly thereafter, Oliver died from his gunshot wounds.

       The jury subsequently found appellant guilty of all charges alleged in the indictments.

The trial court sentenced appellant on January 15, 2013, and this appeal followed.

                                             II. Analysis

       Appellant argues that Detective Goldman’s statements before the multi-jurisdictional

grand jury were testimonial in nature and that the Commonwealth’s failure to comply with Code

§ 19.2-215.9 by providing a court reporter to transcribe the multi-jurisdictional grand jury

proceedings violated appellant’s constitutional due process rights by denying him the




                                               -4-
opportunity to prepare and present his best defense.3 The Commonwealth concedes that the

requirements of Code § 19.2-215.9 were not met in this case. For the following reasons, we

conclude that appellant’s constitutional challenge fails.

       An appellate court reviews “a circuit court’s interpretation of statutes de novo.” Paugh v.

Henrico Area Mental Health & Developmental Servs., 286 Va. 85, 88-89, 743 S.E.2d 277, 279

(2013) (citing Jones v. Williams, 280 Va. 635, 638, 701 S.E.2d 405, 406 (2010)).

       Subsection A of Code § 19.2-215.9 provides in relevant part that “A court reporter shall

be provided for a multi-jurisdiction grand jury to record, manually or electronically, and

transcribe all oral testimony taken before a multi-jurisdiction grand jury . . . .” (Emphasis

added). Subsection B then provides that:

               Upon motion to the presiding judge by a person indicted by a
               multi-jurisdiction grand jury, . . . permission to review, note, or
               duplicate evidence shall be extended if it appears that the
               permission is consistent with the ends of justice and is necessary to


       3
               Article I, Section 8 of the Constitution of Virginia provides, in part,
               “That in criminal prosecutions a man hath a right . . . to call for
               evidence in his favor.” This right is central to the proper
               functioning of the criminal justice system. It is designed to ensure
               that the defendant in a criminal case will not be unduly shackled in
               his effort to develop his best defense.

Massey v. Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 757 (1985). In
Washington v. Texas, 388 U.S. 14, 19 (1967), the United States Supreme Court discussed
the importance of a defendant’s right to present his version of the facts:

                        The right to offer the testimony of witnesses, and to compel
               their attendance, if necessary, is in plain terms the right to present a
               defense, the right to present the defendant’s version of the facts as
               well as the prosecution’s to the jury so it may decide where the
               truth lies. Just as an accused has the right to confront the
               prosecution’s witnesses for the purpose of challenging their
               testimony, he has the right to present his own witnesses to establish
               a defense. This right is a fundamental element of due process of
               law.

                                                -5-
               reasonably inform such person of the nature of the evidence to be
               presented against him, or to adequately prepare his defense.

(Emphasis added).

       The use of the word “shall,” however, does not ipso facto require this Court to draw the

conclusion that the statute is mandatory, rather than directory. “‘While violations of state

procedural statutes are viewed with disfavor, . . . neither the Virginia Supreme Court nor the

legislature has adopted an exclusionary rule for such violations . . . where no deprivation of the

defendant’s constitutional rights occurred.’” West v. Commonwealth, 16 Va. App. 679, 692, 432

S.E.2d 730, 738 (1993) (quoting Thompson v. Commonwealth, 10 Va. App. 117, 122, 390

S.E.2d 198, 201 (1990)).

       For example, in Butler v. Commonwealth, 264 Va. 614, 570 S.E.2d 813 (2002), a juror

became ill at the beginning of appellant’s trial and appellant moved for a mistrial, which the trial

court granted. Id. at 616, 570 S.E.2d at 814. As a result, the trial court had to prepare a new jury

panel and provide a list of the new panel members to counsel. Id. at 616-17, 570 S.E.2d at

814-15. The trial court provided counsel a recess but denied appellant’s request for a

continuance based on his argument that Code § 8.01-353 required that a copy of the jury panel be

made available to counsel at least forty-eight hours prior to trial and that he needed more time to

prepare for the new panel.4 Id. at 617, 570 S.E.2d at 815. The Supreme Court affirmed the trial

court and held that the language in Code § 8.01-353 was directory rather than mandatory because

Code § 8.01-353 did not “‘manifest[] a contrary intent.’” Id. at 619, 570 S.E.2d at 816. In so

holding, the Court noted that “‘[a] statute directing the mode of proceeding by public officers is


       4
          At the time that Butler was decided, Code § 8.01-353 provided in relevant part that
“Upon request, the clerk . . . shall make available to all counsel of record in that case, a copy of
the jury panel to be used for the trial of the case at least forty-eight hours before the trial.”
Butler, 264 Va. at 618, 570 S.E.2d at 815. In 2010, Code § 8.01-353 was amended and
“forty-eight hours” was changed to “three full business days.”
                                                  -6-
to be deemed directory, and a precise compliance is not to be deemed essential to the validity of

the proceedings, unless so declared by statute.’” Id. at 619, 570 S.E.2d at 816 (quoting Nelms v.

Vaughan, 84 Va. 696, 699, 5 S.E. 704, 706 (1888)). The Court observed that Code § 8.01-353

contained “no prohibitory or limiting language” nullifying the result of a trial in which counsel

did not receive a copy of the jury panel list in the requisite time frame or preventing the trial

court from proceeding to trial in such circumstances. Id. at 619-20, 570 S.E.2d at 816.

Therefore, the Court held that “a failure to comply with those provisions [was] not a per se basis

for reversing a trial court’s judgment in either a civil or a criminal case.” Id. at 620, 570 S.E.2d

at 816.

          Thus, the Court held that adherence to Code § 8.01-353 was required to the extent

necessary to insure due process and “‘any determination whether a [party] has suffered prejudice

constituting a denial of due process must be made on a case-by-case basis.’” Id. at 620, 570

S.E.2d at 816-17 (quoting Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 639 (1994)).

In Butler, because appellant did not demonstrate that he suffered any prejudice that constituted a

denial of due process as a result of the trial court’s ruling, the Court held that the trial court did

not abuse its discretion by denying appellant’s motion for a continuance when the jury panel was

reconstituted. Id. at 620-21, 570 S.E.2d at 817.

          We conclude that the analytical construction of Code § 8.01-353 discussed in Butler,

leads us to determine that the requirements set forth in Code § 19.2-215.9 for the recording of

multi-jurisdictional grand jury proceedings are directory rather than mandatory. The purpose of

requiring recordation of any grand jury proceedings supports this holding.

          In Vihko v. Commonwealth, 10 Va. App. 498, 503, 393 S.E.2d 413, 416 (1990), this

Court discussed the purpose of recording grand jury proceedings:



                                                  -7-
               While the better practice is to record all proceedings before the
               grand jury, other than their deliberations, the primary function of
               recording the proceedings is to maintain a record and transcript for
               the use, benefit, and convenience of the grand juries. The record is
               not maintained to provide those under investigation with a record
               to assure that all formalities attendant to the proceedings have been
               followed.

In Vihko, appellant alleged that a forensic accountant presented his report to the special grand

jury without having been sworn or without the grand jury having that part of the proceedings

recorded as required by Code § 19.2-212.5 Id. The Court, noting that the record failed to

establish that the special grand jury received and considered unsworn or unrecorded evidence

from a witness, held that it “need not address whether a showing of such procedural violations

would warrant review of the conviction or indictment without demonstrating prejudice.” Id. at

503, 393 S.E.2d at 417. Thus, in the instant matter, while the statute may provide an ancillary

benefit to defendants under limited circumstances, its purpose is for the benefit of the grand

juries, not individual defendants.




       5
         Code § 19.2-212 provides for the same recording, protection, and dissemination of
transcripts of special grand jury proceedings as Code § 19.2-215.9 does for multi-jurisdictional
grand juries. Code § 19.2-212 states in relevant part:

                       A. A court reporter shall be provided for a special grand
               jury to record, manually or electronically, and transcribe all oral
               testimony taken before a special grand jury, but such reporter shall
               not be present during any stage of its deliberations.

                       *       *      *       *      *       *       *

                       B. . . . Upon motion to the presiding judge by a person
               indicted after a special grand jury investigation, similar permission
               to review, note or duplicate evidence shall be extended if it appears
               that the permission is consistent with the ends of justice and is
               necessary to reasonably inform such person of the nature of the
               evidence to be presented against him, or to adequately prepare his
               defense.
                                                -8-
        This position is also supported by other Code sections within Title 19.2 and case law

related to grand jury proceedings which indicate that defects in grand jury procedure are not

necessarily constitutional violations.6 Moreover, other courts have reached similar conclusions

regarding procedural defects in grand jury proceedings and have declined to find such defects

constitutional violations absent some showing of prejudice.7

        Additionally, Code § 19.2-215.9, like Code § 8.01-353 analyzed in Butler, “contains no

prohibitory or limiting language that prevents a trial from proceeding when circumstances

necessitate [that a transcript is unavailable] . . . . Nor is there any language that renders the result

of a trial in that situation invalid.” 264 Va. at 619-20, 570 S.E.2d at 816. Therefore, consistent

with the analytical framework advanced in Butler, we hold that a failure to record the

multi-jurisdictional grand jury proceedings alone is “not a per se basis for reversing a trial

court’s judgment . . . .” Id. at 620, 570 S.E.2d at 816. Compliance with Code § 19.2-215.9 “is

required to the extent necessary to insure due process [and] . . . ‘any determination whether a

[party] has suffered prejudice constituting a denial of due process must be made on a



        6
         See Code § 19.2-226 (listing non-fatal defects in indictments); Reed v. Commonwealth,
281 Va. 471, 481, 706 S.E.2d 854, 859-60 (2011) (list of non-fatal defects in indictments in
Code § 19.2-226 is not exhaustive); Livingston v. Commonwealth, 184 Va. 830, 836, 36 S.E.2d
561, 564 (1946) (indictment requirement is statutory not constitutional and as long as an
indictment informs the accused of the nature and character of the crime charged against him, it is
sufficient).
        7
          “Failure to transcribe grand jury proceedings and provide the accused with a transcript
of grand jury testimony is not a denial of due process. Nor is it an unconstitutional practice or an
invasion of a constitutional right.” State v. Levesque, 281 A.2d 570, 572 (Me. 1971) (citations
omitted). See also Baker v. United States, 412 F.2d 1069, 1073 (5th Cir. 1969) (“There is no
constitutional requirement that grand jury proceedings be transcribed.”); Loux v. United States,
389 F.2d 911, 916 (9th Cir. 1968); United States v. Hensley, 374 F.2d 341, 352 (6th Cir. 1967);
Schlinsky v. United States, 379 F.2d 735, 740 (1st Cir. 1967); Maestas v. United States, 341 F.2d
493, 496 (10th Cir. 1965); United States v. Cianchetti, 315 F.2d 584, 591 (2d Cir. 1963); United
States v. Labate, 270 F.2d 122, 123-24 (3d Cir. 1959).

                                                  -9-
case-by-case basis.’” Id. at 620, 570 S.E.2d at 816-17 (quoting Jamborsky, 247 Va. at 511, 442

S.E.2d at 639).

        While the Commonwealth conceded the procedural defect in this case, and the trial court

plainly failed to comply with the recording requirements set forth in Code § 19.2-215.9, the

failure to record the grand jury proceedings and provide a transcript to defense counsel did not

prejudice appellant in any way that denied him due process. Appellant has not pointed to one

single viable basis for suggesting a denial of due process other than arguing for a strict

interpretation of the term “shall” in the statutory scheme. The Commonwealth provided

appellant with a bill of particulars due to the absence of a transcript, and “‘[t]he purpose of a bill

of particulars is to state sufficient facts regarding the crime to inform an accused in advance of

the offense for which he is to be tried. He is entitled to no more.’” Swisher v. Commonwealth,

256 Va. 471, 480, 506 S.E.2d 763, 768 (1998) (quoting Hevener v. Commonwealth, 189 Va.

802, 814, 54 S.E.2d 893, 899 (1949)). This is precisely the information appellant contends he

was not privy to as a result of the failure to record the multi-jurisdictional grand jury

proceedings.8 Additionally, Detective Goldman was the only person who testified before the

grand jury and he did not testify at appellant’s trial. Further, the trial court entered a traditional

criminal discovery order and the Commonwealth provided that discovery material to appellant.

Therefore, to the extent appellant argues that he was not provided with material to assist him in

setting forth his best defense, his argument is unpersuasive.

        Appellant was convicted based on a wealth of evidence including eyewitness testimony

from Ms. Bowles, testimony from Officer Burdette who responded to the scene and took the

victim’s dying declaration that “Mikey [Robinson,] Rock’s brother” shot him, other witness


        8
          We note that there is no evidence in the record that appellant objected to the sufficiency
of the bill of particulars provided by the Commonwealth.
                                                - 10 -
testimony (some family members of appellant) that appellant was the person to whom the victim

referred, testimony from the crime scene technician and a firearms expert that the bullets

recovered from the victim’s body came from one gun, and testimony that appellant was wearing

a disguise when he was arrested. Appellant was clearly provided the “right to confront the

prosecution’s witnesses for the purpose of challenging their testimony, [and] the right to present

his own witnesses to establish a defense.” Washington v. Texas, 388 U.S. 14, 19 (1967).

       For these reasons, we hold that Code § 19.2-215.9 is directory, not mandatory, and that

appellant was not prejudiced by the trial court’s failure to comply with the requirements set forth

in Code § 19.2-215.9 and, thus, his constitutional right to due process was not violated.

                                                                                            Affirmed.




                                               - 11 -
