COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia
WILLIE WALTER BUTLER, JR.
MEMORANDUM OPINION * BY
v. Record No. 0185-01-1 JUDGE RICHARD S. BRAY
DECEMBER 11, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
Charles E. Haden for appellant.
Steven A. Witmer, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Willie Walter Butler, Jr. (defendant) was convicted by a jury
of first degree murder and forcible sodomy, violations of Code
§§ 18.2-32 and -67.1, respectively. On appeal, he contends the
trial court erroneously denied his motion to continue trial
because "a copy of the jury panel" had not been made available to
defense counsel "at least forty-eight hours before trial,"
pursuant to Code § 8.01-353. We disagree and affirm the
convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
Immediately following opening statements at trial, a juror
"suddenly became ill." After a related overnight recess and
further inquiry, the court determined the juror unable to continue
and, upon defendant's motion, declared a mistrial. The
Commonwealth then advised the court:
[T]here's a jury down the hall that's
available and I'd like to go forward today.
. . . I have three witnesses who are here
from out of state and one who is desperately
needed back in California, and, um, if
there's any way that we could do this today
and carry on today, we're ready to do that.
And I understand from the jury manager that
that's possible.
In response, defense counsel protested that he "hadn't even
seen the jury list," had not "consult[ed] with [his] client
about any of the people on the list" or "investigate[d] any
potential conflicts of interest," and "would need time to
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regroup and get ready for a new jury." Accordingly, counsel
represented he did not "believe [defendant] would be ready to
proceed" and requested a continuance "to give all involved an
opportunity to get ready for another jury selection process."
Following several brief recesses to confirm the
availability of an alternate jury panel, the court reconvened
the proceedings and, contemplating immediate commencement of
1
Defendant objected to a panel comprised of any among those
jurors originally selected, expressly demanding "a brand new
jury."
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trial, announced, "we have a jury ready in this matter," and
"the list . . . is now being prepared" for review by counsel.
Again, defense counsel objected and moved for a continuance,
citing Code § 8.01-353 for authority that "a copy of the jury
panel," "show[ing] the name, age, address, occupation and
employer of each person" must be made available to counsel "at
least forty-eight hours before the trial." Absent compliance
with the statute, counsel insisted, "we're not ready to go back
to trial this soon," adding defendant "is entitled to have a
defense team that's ready and prepared to go to trial."
Objecting to a continuance, the Commonwealth contended Code
§ 8.01-353 should not be "strictly construed against the
Commonwealth" and "the remedy . . . would be for [the defense]
to . . . get the list and have the time, which should not be
that long . . . to look to see if there are any conflicts." The
prosecutor further advised the court that "a forensic scientist
from Oakland, California" was present and prepared to testify on
behalf of the Commonwealth and "needs to get out today." 2
Relying upon Code § 8.01-355 and the attendant procedure,
the court denied defendant's motion but afforded defendant a
further recess "to review the jury panel [list]," then prepared
and available to counsel. Following the recess, the court
2
Defense counsel countered, "we believe . . . forcing the
defendant to go forward just based on the Commonwealth's time
frame" would "be prejudicial."
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assured defense counsel, "I understand your objections . . . and
the comments on it," and inquired, "[i]s there anything else
. . . you'd like to say before we proceed?" When counsel
responded, "[n]o, your honor," a jury was selected and seated
from the reconstituted panel, without further objection by
defendant, and trial proceeded, resulting in the instant
convictions and appeal.
II.
Code § 8.01-353 provides, in pertinent part:
Upon request, the clerk or sheriff or other
officer responsible for notifying jurors to
appear in court for the trial of a case
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.
However, Code § 8.01-355 provides, in pertinent part:
When by reason of a challenge or otherwise a
sufficient number of jurors summoned cannot
be obtained for the trial of any case, the
judge may select from the names of the jury
list provided for by Code § 8.01-345 the
names of as many persons as he deems
necessary and cause them to be summoned to
appear forthwith for the trial.
Recently, in Norfolk Southern Ry. Co. v. Bowles, 261 Va.
21, 539 S.E.2d 727 (2001), the Supreme Court construed Code
§ 8.01-353 in resolving the very issue now before this Court.
There, counsel for appellant Norfolk Southern had requested and
received the jury panel list forty-eight hours before the trial,
pursuant to Code § 8.01-353. However, on the day of trial,
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several summoned jurors were unable to attend court due to
inclement weather. With only forty potential jurors present for
the Bowles trial and an unrelated criminal matter, the court
"combined" the jurors into a common "pool" from which juries
were selected first for the criminal trial and, next, for the
Bowles trial. Id. at 27, 539 S.E.2d at 730. The jury
ultimately chosen for the Bowles trial consisted of six persons
not named on the jury panel list previously provided to Norfolk
Southern.
In affirming the verdict, the Court instructed that
the statutory scheme does not contemplate
that a full and accurate jury panel list
will always be available for counsel
forty-eight hours before the trial of the
case . . . . [Code §§ 8.01-353 and -355]
recognize that unanticipated circumstances
requiring alternative means of securing a
jury panel will arise.
Id. at 28, 539 S.E.2d at 731. Thus,
even assuming without deciding that the
requirement of Code § 8.01-353 regarding
provision of the jury panel list is
mandatory . . . the mandatory nature of that
provision cannot extend to requiring that
the jury panel list provided to counsel
prior to trial be identical to the actual
jury panel when circumstances require
reconstitution of the jury panel.
Id.
Here, as in Bowles, unanticipated circumstances arose that
necessitated reconstitution of the original jury panel and,
pursuant to Code § 8.01-355, an alternate panel was summoned for
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the trial. Also, like the appellant Norfolk Southern in Bowles,
defendant objected to departure from the provisions of Code
§ 8.01-353, "posit[ing] that the failure to comply with [Code
§ 8.01-353] 'constitutes, in and of itself, injustice,'" without
"cit[ing] any specific prejudice resulting from the trial
court's action." Id. at 29, 539 S.E.2d at 731. Such arguments
were rejected by the Court. See id.
Thus, guided by Bowles, we find the trial court committed
no error in reconstituting the original jury panel and
proceeding with trial and, accordingly, affirm the convictions.
Affirmed.
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