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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