Vihko v. Com.

• Decision Date: 12 June 1990
• Docket Number: No. 1327-87-2,1327-87-2
• Citation: 10 Va.App. 498,393 S.E.2d 413
• Parties: Jukka Pekka VIHKO v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 413

393 S.E.2d 413

10 Va.App. 498

Jukka Pekka VIHKO v. COMMONWEALTH of Virginia.

Record No. 1327-87-2.

Court of Appeals of Virginia.

June 12, 1990.

Steven D. Benjamin, Richmond, for appellant.

Frank S. Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Panel: BARROW, COLEMAN and KEENAN, JJ.

COLEMAN, Judge.

Jukka Pekka Vihko, an established securities broker, solicited approximately $1.1 million from investors by falsely promising exorbitant returns from low risk investments. From the amount solicited, Vihko embezzled approximately $500,000. He was convicted of various securities frauds and illegalities for which he received sentences totalling 222 years in the penitentiary.

Vihko seeks reversal of his convictions on the grounds that the indictments were per se invalid because of prosecutorial misconduct which occurred before the special and the regular grand juries and because of procedural errors committed by both grand juries which, he contends, tainted the indictments. Specifically, Vihko alleges error in that: (1) the Commonwealth's attorney and special investigatory personnel participated throughout the investigatory stage of the special grand jury proceedings; (2) the Commonwealth's attorney prepared the special grand jury report; (3) the forensic accountant presented his report to the special grand jury without having been sworn or without the grand jury having that part of the proceeding recordings; (4) the special grand jury released transcripts of its proceeding to the Commonwealth's attorney and to the forensic accountant; (5) an investigator for the special grand jury presented the grand jury's report to the regular grand jury rather than the foreman and then the name of the investigator was omitted from the indictment contrary to statutory requirements; (6) the Commonwealth's attorney appeared before the regular grand jury; and (7) the defendant's bank records and financial statements which had been presented as evidence to the special grand jury could not thereafter be admitted as evidence at trial. With the exception of the release to the Commonwealth's attorney and accountant of the transcript of the special grand jury proceeding, which was not prejudicial, the questions presented by the defendant are not error. The practices about which the defendant complains are part of the statutory scheme and established practice governing special grand jury proceedings. Since we find that no reversible error occurred at the special grand jury proceedings, we do not address the Commonwealth's argument that an indictment returned by an untainted regular grand jury cures error by a prior special grand jury. See United States v. Mechanik, 475 U.S. 66, 72-73, 106 S.Ct. 938, 942-943, 89 L.Ed.2d 50 (1986).

By statute and established practice, grand juries are endowed with broad powers of inquisition and examination and are accorded wide discretion and relative autonomy in performing these duties. See Code §§ 19.2-191--19.2-215; Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). The regular grand jury's function, as both an investigating and indicting body, is augmented by the special investigating grand jury in those cases where more extensive, exhaustive, or specialized investigation is required. While the Commonwealth typically brings before the regular grand jury the evidence considered by the special grand jury, the sole function of the special grand jury is to gather evidence and synthesize its findings into a report, which may be presented to the regular grand jury. Thus, the special grand jury is invested by statute with much broader investigative powers, but no indicting power. See Code §§ 19.2-206--19.2-215.

We first consider whether the alleged grand jury improprieties violated statutes or case law:

I. Presence of Special Personnel

The Code provides for the appointment of special Commonwealth's attorney(s) and specialized investigatory personnel to assist the special grand jury in its investigatory and reporting work. Code § 19.2-211. These special investigatory personnel may, when requested, conduct an investigation, interrogate witnesses, testify before the grand jury, render investigatory results, and otherwise participate in the investigation as the grand jury deems necessary. These functions fulfill the purpose for which they are authorized and appointed, and the propriety of the special grand jury's utilization of forensic experts is beyond question. Code § 19.2-211; see Lujan v. State, 85 Nev. 16, 18, 449 P.2d 244, 245 (1969); see also Annot., Presence of Unauthorized Persons During State Grand Jury Proceedings as Affecting Indictment, 23 A.L.R.4th 397 (1983). The role of special personnel is not limited to educating the grand jurors in the areas of expertise in order that they may successfully conduct their own investigation and examination, and the role of special personnel is not limited simply to providing documentary evidence and reports. They may, and most often do, conduct the investigation. The limitation which the statute places on the appointed personnel is that they may not participate in the grand jury's deliberations. Code § 19.2-210. We find no error in the investigative functions which the special personnel provided to the special grand jury.

II. Preparation of Special Grand Jury Report

We find it not to have been error that the Commonwealth's attorney drafted the special grand jury's final report. So long as the grand jury arrived at its conclusions through untrammeled deliberations, it may then direct special counsel to draft its report. The evidence does not indicate that special counsel improperly influenced deliberations or drafted a report other than in conformity with the grand jury's findings. The delegation of clerical and preparatory tasks by the grand jury is proper. The report drafted by counsel becomes the report of the grand jury upon their adoption of it.

III. Presentation of Investigatory Report to Special Grand Jury

The Commonwealth's attorney acknowledged that the forensic accountant's report and his introductory explanation of what it contained were presented to the special grand jury without recording the statement and possibly without the accountant having being sworn. The defendant contends that because the report and possibly the witness were unsworn despite the requirements of Code § 19.2-208, and because the introductory statement was unrecorded as required by Code § 19.2-212, the report and explanation were improperly received in evidence.

The evidence presented by the forensic accountant consisted of a written report which organized and detailed his examination of bank and finance statements that are not easily understood by lay persons. While the better practice is to record all proceedings before the grand jury, other than their deliberations, the primary function of recording the proceedings is to maintain a record and transcript for the use, benefit, and convenience of the grand juries. The record is not maintained to provide those under investigation with a record to assure that all formalities attendant to the proceedings have been followed. In this case, the...