Reed v. Commonwealth of Va..

• Decision Date: 04 March 2011
• Docket Number: Record No. 091803.
• Citation: 281 Va. 471,706 S.E.2d 854
• Parties: Charles E. REED, III,v.COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

281 Va. 471

706 S.E.2d 854

Charles E. REED, III,

v.COMMONWEALTH of Virginia.

Record No. 091803.

Supreme Court of Virginia.

March 4, 2011.

John E. Davidson (L. Steven Emmert, Virginia Beach; Davidson & Kitzmann; Sykes, Bourdon, Ahen & Levy, on briefs), for appellant.Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General, on brief), for appellee.Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ., and KOONTZ, S.J.^*OPINION BY Senior Justice LAWRENCE L. KOONTZ, JR.

In this appeal, we consider whether the circuit court properly denied a motion to vacate the convictions in a criminal case on the ground that the judgment was void ab initio because the foreman of the grand jury did not sign the indictments under which the defendant was subsequently tried, convicted, and sentenced.

BACKGROUND

The relevant facts are not in dispute. On October 4, 2004, the grand jury of the Circuit Court of Stafford County was presented with eight written charges against Charles Edward Reed, III arising from the robbery and murder of Robert Douglas Lee. Each was styled as a “Grand Jury Indictment” or as a “Direct Grand Jury Indictment,” and it is not disputed that each charge was made with requisite specificity to inform Reed of the nature and character of the accusations against him. Each of the indictments had a check mark in the space provided indicating that the grand jury had found it to be “A True Bill.” However, none of the indictments were signed by the foreman of the grand jury in the space provided for the foreman's signature.

On the same day that the grand jury considered the indictments against Reed, the Commonwealth requested that the trial court issue a capias for Reed's arrest.¹ The order directing that the capias be issued recited that Reed “was this day indicted for eight (8) felonies,” listed each offense by description and Code section, and further stated that “[i]t appear[ed] to the Court that [these] direct indictments were handed down by the Grand Jury this day.” Reed's court appointed attorney was present at the hearing at which the capias was issued. The record does not reflect that Reed's counsel raised any objection concerning the form of the indictments described in the capias.

Reed, with his counsel present, was subsequently arraigned in the trial court on November 1, 2004 and entered pleas of not guilty to all the charges against him. Again, Reed's counsel did not raise any objection to the form of the indictments on which Reed was being arraigned.

A jury trial was held on April 20, 2005. At the outset of the trial, Reed entered guilty pleas to three of the charges that were not directly related to the robbery and murder of Lee, and which would have permitted the Commonwealth to prove at trial that Reed had a prior felony record and was in possession of illegal drugs. The trial proceeded on the remaining five charges, and the jury convicted Reed on all five. Following preparation of a pre-sentence report, the trial court conducted a sentencing hearing on June 16, 2005. By an order dated June 19, 2005, the court sentenced Reed to life imprisonment for the murder of Lee, thirty-eight years imprisonment on the remaining charges, and fines totaling $200,000. The record again reflects that no objection was raised to the form of the indictments under which Reed had been tried during either the trial or the sentencing hearing.

Reed filed a petition for appeal in the Court of Appeals, which refused Reed's appeal in a per curiam order. Reed v. Commonwealth, Record No. 1535–05–4 (March 7, 2006). The order refusing Reed's appeal reflects that Reed did not raise the issue of the validity of the indictments under which he had been tried in his petition for appeal. Id. Thereafter, a three-judge panel of the Court refused Reed's appeal for the reasons stated in the per curiam order. Reed v. Commonwealth, Record No. 1535–05–4 (June 9, 2006). Reed's further appeal to this Court was also refused. Reed v. Commonwealth, Record No. 061375 (November 27, 2006). Reed's convictions became final on March 19, 2007, when the Supreme Court of the United States refused Reed's petition for a writ of certiorari. Reed v. Virginia, 549 U.S. 1290, 127 S.Ct. 1842, 167 L.Ed.2d 337 (2007).

Reed then filed a petition for writ of habeas corpus in the habeas court. Among the claims made therein, Reed alleged that his trial counsel had been ineffective in that “he did not verify the authenticity of the indictments, which were not signed by the grand jury foreman.” In a separate claim, Reed further contended that his counsel should have “assert[ed] the prosecution was void” because of the defect in the indictments. In an order dated February 27, 2008, the habeas court dismissed Reed's petition, finding that the failure of the jury foreman to sign the indictments was only a “technical omission[ ]” and “not a fatal defect.” The court further opined that if counsel had objected to the absence of the foreman's signature on the indictments, “the [trial] court would have addressed the issue, but the indictments would not have been found void.” The court further found that Reed “was arraigned on the charges, knew the crimes he was charged with, and was not hindered in any way in preparing his defense.” Thus, the court concluded that Reed's counsel could not “be found ineffective for not attacking the indictments because he had no viable grounds for doing so.”

Reed noted an appeal from the judgment of the habeas court to this Court. The Clerk of this Court received the record of the habeas proceeding on March 24, 2008. On July 31, 2008, the Clerk returned the habeas record to the Clerk of the Circuit Court of Stafford County “[b]ecause no petition for appeal has been filed and the time allowed by law within which to do so has expired.”

On July 23, 2009, Reed filed a motion in the circuit court to vacate his convictions on the ground that the indictments under which he had been tried were defective, contending that the failure of the jury foreman to sign the indictments rendered them a nullity. Reed contended that because a judgment based upon a nullity was void ab initio, it could be attacked in any court at any time, directly or collaterally.

In response to Reed's motion, and without requiring an answer from the Commonwealth, the circuit court entered an order dated August 5, 2009 denying the motion. The court concluded that endorsement of the indictment by the grand jury foreman was not a substantive part of the indictment. The court further found that as “the indictment[s] herein [were] returned in open court ... the signature of the foreman [was] unnecessary.” We awarded Reed this appeal.

DISCUSSION

As was noted during oral argument of this appeal, Reed did not assign error to the circuit court's factual finding that the indictments at issue were “returned in open court.” Accordingly, the issues presented in this appeal are limited to the questions of law as to whether the documents under which Reed was tried were in fact “indictments” and, even if they were, whether they were nonetheless so defective as to have deprived Reed of his due process right to a fair trial. We review these issues de novo. Hernandez v. Commonwealth, 281 Va. 222, 224, 707 S.E.2d 273, 275 (2011).

Reed first contends that the documents under which he was tried were not “indictments” because they were not signed by the foreman of the grand jury as required by this Court's Rule 3A:6(d). Reed notes that in a civil context, this Court has repeatedly held that a pleading that is not signed by the person with proper authority to do so is a nullity. See Aguilera v. Christian, 280 Va. 486, 489, 699 S.E.2d 517, 519 (2010); Shipe v. Hunter, 280 Va. 480, 484–85, 699 S.E.2d 519, 521–22 (2010); Kone v. Wilson, 272 Va. 59, 62–63, 630 S.E.2d 744, 745–46 (2006); Nerri v. Adu–Gyamfi, 270 Va. 28, 31, 613 S.E.2d 429, 430 (2005); Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283, 568 S.E.2d 671, 673 (2002). Reed contends that the same rationale should apply to indictments. He maintains that since the only person authorized to sign an indictment is the grand jury foreman, the indictments in this case are nullities and not indictments at all.

Citing Johnston Memorial Hospital v. Bazemore, 277 Va. 308, 314, 672 S.E.2d 858, 861 (2009), Reed asserts that “[i]f an action is a nullity, regardless of the reason it is such, then no legal proceeding is pending” and the purported action is of “no legal effect.” Thus, he contends that the convictions and sentences imposed upon him are void because the “indictments” against him were nullities and there was no other valid charging instrument under which he could have been tried. See Code § 19.2–217 (“no person shall be put upon trial for any felony, unless an indictment or presentment shall have first been found or made by a grand jury in a court of competent jurisdiction”).

The Commonwealth responds that the failure of the grand jury foreman to sign the indictments was a defect in form only. See Hobby v. United States, 468 U.S. 339, 345, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984) (foreman's duty to sign indictment is “a formality,” and the absence of his signature “is a mere technical irregularity that is not necessarily fatal to the indictment”); Frisbie v. United States, 157 U.S. 160, 164, 15 S.Ct. 586, 39 L.Ed. 657 (1895) (although “advisable” that indictment be endorsed by foreman, absence of signature is defect in form rather than in substantive charge). Accordingly, the Commonwealth contends that when the indictments were returned by the grand jury in open court, as the circuit court found was done in this case, this defect in form was cured, and the indictments became valid instruments under which to try Reed. We agree with the Commonwealth.

This Court has previously held that “[a] written charge preferred by the [Commonwealth's] attorney to the grand jury, is not,...