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. 

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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. 

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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 

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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 

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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 

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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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