PRESENT: ALL THE JUSTICES
WILLIE WALTER BUTLER, JR.
v. Record No. 012826 OPINION BY JUSTICE CYNTHIA D. KINSER
November 1, 2002
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we decide whether a defendant was
entitled to a continuance of his trial when the jury panel
had to be reconstituted and the defendant’s attorney did
not receive the new jury panel list forty-eight hours prior
to trial in accordance with the provisions of Code § 8.01-
353. Because we conclude that the requirements of that
statute are directory rather than mandatory and that the
defendant suffered no specific prejudice, we will affirm
the judgment of the Court of Appeals, which affirmed the
circuit court’s refusal to grant the defendant’s motion for
a continuance.
I. FACTS AND MATERIAL PROCEEDINGS
The appellant, Willie Walter Butler, Jr., was indicted
for first-degree murder and forcible sodomy. Immediately
following opening statements at his trial, a juror suddenly
became ill. The circuit court subsequently recessed the
trial until the next morning. The juror appeared the
following day but advised the court that she was still ill
and could not continue to sit on the case as a juror. At
that point, Butler moved for a mistrial. The court granted
Butler’s motion and indicated that it would continue the
trial to the next day.
The Commonwealth, however, opposed a continuance
because it had three out-of-state witnesses who needed to
leave that day. The Commonwealth wanted to proceed with
the trial and informed the court that a new jury panel was
available in an adjacent courtroom because another trial
had been canceled. Butler’s counsel then advised the court
that the defense could not be ready to proceed that day
because he needed time to “regroup and get ready for a new
jury.” Defense counsel also stated that he had not seen
the new jury panel list. Consequently, Butler moved for a
continuance in order to prepare for voir dire of another
jury panel, to consult with his client about the new
potential jurors, and to investigate any conflicts of
interest regarding those jurors. Butler objected to using
any of the jurors who were already seated and had heard
opening statements. He insisted that he was entitled to a
“brand new jury,” and the court agreed.
After another recess, the court announced that a new
panel of jurors was available and that a list of those
jurors was being prepared so that counsel could review it.
2
The court indicated that, after counsel had done so, it
intended to attempt to seat a jury from that panel and
proceed with the trial that day. Butler objected, arguing
that Code § 8.01-353 requires that a copy of the jury panel
be made available to counsel at least forty-eight hours
before trial. Continuing, Butler’s counsel asserted that
the defense needed time to prepare for the new jury and
that it was prejudicial to the defendant to be required to
go forward just to accommodate the Commonwealth’s
witnesses.
The Commonwealth again opposed Butler’s request for a
continuance, arguing that Code § 8.01-353 should not be
strictly construed against the Commonwealth and that the
proper remedy would be for defense counsel to review the
new jury list with Butler and then proceed with the trial
that day. Relying on Code § 8.01-355, the court denied
Butler’s motion for a continuance but recessed in order for
Butler’s counsel to review the new jury panel list. After
counsel had done so and before voir dire of the new
prospective jurors, the court asked Butler’s counsel if
there was “anything else that’s not cumulative that [he
would] like to say before we proceed.” Counsel responded,
“No, your Honor.” Without further objection by Butler, a
jury was then selected and seated from the new panel.
3
After hearing the evidence, the jury found Butler guilty of
both charges.
Butler appealed his convictions to the Court of
Appeals. Relying on this Court’s decision in Norfolk
Southern Ry. Co. v. Bowles, 261 Va. 21, 539 S.E.2d 727
(2001), the Court of Appeals held that the circuit court
did not err “in reconstituting the original jury panel and
proceeding with trial.” Butler v. Commonwealth, Record No.
0185-01-1 (Dec. 11, 2001). The court noted that
“unanticipated circumstances arose that necessitated
reconstitution of the original jury panel and, pursuant to
Code § 8.01-355, an alternate panel was summoned for the
trial.” Id. The Court of Appeals thus affirmed Butler’s
convictions, and he now appeals from that judgment. 1
II. ANALYSIS
On appeal, Butler asserts that the “Court of Appeals
erred in affirming the trial court’s decision forcing
Butler to go to trial where a copy of the jury panel to be
used for trial had not been made available to defense
counsel at least [forty-eight] hours before the trial,
contrary to the requirements of . . . Code § 8.01-353.”
1
A summary of the evidence supporting Butler's
convictions is not necessary to the issue presented on
appeal.
4
Butler claims that the provisions of Code § 8.01-353
“mandate” that a copy of the jury panel be provided to
counsel forty-eight hours prior to trial. We do not agree.
The pertinent portion of Code § 8.01-353 reads as
follows:
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.[ 2 ]
This same statute was at issue in Bowles, 261 Va.
at 27, 539 S.E.2d at 730. In that case, inclement
weather forced all potential jurors to be placed into
a combined pool. Id. That pool was used first for
selecting a jury for a criminal case with the
remaining jurors being made available for the Bowles
trial. Id. Ultimately, the jury chosen from the pool
to hear the Bowles case contained six persons who were
not on the jury panel list previously furnished to
Norfolk Southern’s counsel. Id.
After examining the statutory procedures for
empanelling a jury and recognizing the importance of
2
It is not clear from the record whether Butler’s
counsel requested a copy of the new jury panel list from
the clerk or sheriff, but he made his request known to the
circuit court.
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complying with those procedures designed to insure the
presence of a fair and impartial jury, we, nonetheless,
held that the statutory scheme set forth in Code § 8.01-353
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.” Id. at 28, 539 S.E.2d at
731. As an example, we pointed out that Code §§ 8.01-353
and –355 “allow the trial judge to delay the appearance of
previously-summoned members of a jury panel and to call
persons on the term list to serve for a particular trial,
even though those persons were not on the jury panel list.”
Id. We recognized that these provisions take into account
the fact that “unanticipated circumstances requiring
alternate means of securing a jury panel will arise.” When
such circumstances occur, “the members of the actual jury
panel necessarily will vary from those persons listed on a
jury panel list provided forty-eight hours before trial.”
Id.
Butler argues that the present case is distinguishable
from Bowles primarily for three reasons. First, Bowles was
a civil case, as opposed to a criminal case. Next, it
involved the substitution of only some of the members of
the original jury panel rather than the reconstitution of
the entire jury panel as happened here. Butler
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acknowledges that Code § 8.01-353 contemplates that trial
counsel may be expected to cope with the addition of a few
panel members not included on the original list but that
Code § 8.01-353 does not allow for the “wholesale wavier of
the requirement for a jury list [forty-eight] hours in
advance of trial.” Finally, in Bowles, Norfolk Southern
asserted that failure to comply with the statute was a per
se error that did not require a showing of prejudice,
whereas Butler claims that he did suffer prejudice. We are
not persuaded by Butler’s arguments.
In Bowles, we did not decide the question whether the
pertinent provisions of Code § 8.01-353 are mandatory in
nature or merely directory. We answer that question today
because Butler complains about the fact that the entire
jury panel was reconstituted in this case. To do so, we
need look no further than the language utilized in that
statutory provision.
Although Code § 8.01-353 states that a copy of the
jury panel “shall” be made available to counsel upon
request, we have repeatedly held “that the use of ‘shall,’
in a statute requiring action by a public official, is
directory and not mandatory unless the statute manifests a
contrary intent.” Jamborsky v. Baskins, 247 Va. 506, 511,
442 S.E.2d 636, 638 (1994); accord Tran v. Board of Zoning
7
Appeals of Fairfax County, 260 Va. 654, 657-58, 536 S.E.2d
913, 915 (2000); Commonwealth v. Wilks, 260 Va. 194, 199-
200, 530 S.E.2d 665, 667 (2000); Commonwealth v. Rafferty,
241 Va. 319, 324, 402 S.E.2d 17, 20 (1991). As far back as
1888, when this Court addressed a statute that used the
term “shall,” we stated that “[a] statute directing the
mode of proceeding by public officers is 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.” Nelms v. Vaughan, 84 Va. 696, 699, 5
S.E. 704, 706 (1888).
Code § 8.01-353 contains no prohibitory or limiting
language that prevents a trial from proceeding when
circumstances necessitate that part or all of a jury panel
be reconstituted and counsel, consequently, has not
received a list of the new jury panel forty-eight hours
prior to trial. Nor is there any language that renders the
result of a trial in that situation invalid. Absent such
language, we hold that the provisions of Code § 8.01-353 at
issue in this case are directory rather than mandatory.
Thus, a failure to comply with those provisions is not a
per se basis for reversing a trial court’s judgment in
either a civil or a criminal case.
8
This conclusion does not mean that, in every instance
when a jury panel has to be reconstituted, a trial court
can require a party to proceed to trial without the benefit
of a continuance in order for counsel to receive the new
panel list in accordance with the provisions of Code
§ 8.01-353. As we recognized in Bowles, “[t]he right to a
jury trial is one of the cornerstones of our legal system,”
and the process of securing a fair and impartial jury
includes “the ability of the parties to investigate
potential jurors for information which may disqualify a
juror for cause or otherwise impact the jury selection
process.” 261 Va. at 28, 529 S.E.2d at 731. Thus,
adherence to the provisions of Code § 8.01-353 is required
to the extent necessary to insure due process. When
dealing with a statute whose terms are directory, “[a]ny
determination whether a [party] has suffered prejudice
constituting a denial of due process must be made on a
case-by-case basis.” Jamborsky, 247 Va. at 511, 442 S.E.2d
at 639; accord Tran, 260 Va. at 658, 536 S.E.2d at 916;
Wilks, 260 Va. at 201, 530 S.E.2d at 668.
Despite Butler’s argument to the contrary, he has not
demonstrated that he suffered any specific prejudice that
constituted a denial of due process as a result of the
circuit court’s refusal to grant his motion for a
9
continuance when the jury panel had to be reconstituted in
this case. Butler does not dispute the necessity of
discharging the juror who became ill nor did he do so at
trial. In fact, Butler is the party who moved for a
mistrial. When the court inquired of the parties whether
they believed the remaining jurors could continue to sit on
the case, meaning that only one new juror would be needed,
Butler insisted on having a “brand new jury.” As soon as
the new panel list was prepared, the court gave counsel
time to review that list. After doing so, Butler’s counsel
voiced no specific need for additional time in which to
investigate any particular juror on the new list. In fact,
when asked by the court at that time if he had anything
that was not cumulative to say before proceeding, Butler’s
counsel answered, “No, your Honor.”
Thus, we conclude that the circuit court did not abuse
its discretion in refusing to grant Butler’s motion for a
continuance when the jury panel had to be reconstituted.
The Commonwealth had out-of-state witnesses who needed to
leave that day, the trial had already been postponed one
day because the juror became ill, and Butler, after
reviewing the list of the new jury panel, did not identify
any specific prejudice that would result from proceeding
with the trial. “A trial court’s ruling on a motion for a
10
continuance will be reversed on appeal only if it is
plainly erroneous and upon a showing of abuse of discretion
and resulting prejudice to the movant.” Mills v. Mills,
232 Va. 94, 96, 348 S.E.2d 250, 252 (1986) (citing Autry v.
Bryan, 224 Va. 451, 454, 297 S.E.2d 690, 692 (1982)).
“Abuse of discretion and prejudice to the complaining party
are essential to reversal.” Ferguson v. Colonial Pipeline
Co., 206 Va. 719, 722, 146 S.E.2d 173, 175 (1966).
III. CONCLUSION
For these reasons, we will affirm the judgment of the
Court of Appeals.
Affirmed.
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