Robert Earle Rambo v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Frank, Humphreys and Haley
Argued at Salem, Virginia
ROBERT EARLE RAMBO
OPINION BY
v. 	Record No. 1117-06-3 	JUDGE JAMES W. HALEY, JR.
APRIL 1, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Joseph A. Sanzone (Sanzone & Baker, P.C., on brief), for appellant.
Gregory W. Franklin, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
I. INTRODUCTION
Robert Earle Rambo appeals from his convictions by a jury before the Circuit Court of
the City of Lynchburg for second-degree murder in violation of Code § 18.2-32, use of a firearm
while committing a murder in violation of Code § 18.2-53.1, and use of a firearm in an occupied
building in violation of Code § 18.2-279. Rambo argues the circuit court erred in (1) failing to
dismiss the indictment where the prosecution compelled the testimony of a witness under a grant
of immunity before a special grand jury and then declined to call that witness in a setting
affording him an opportunity for examination, and (2) refusing to permit him to introduce
rebuttal evidence of the victim’s bad character at sentencing. Finding these arguments
procedurally barred, we affirm.

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II. FACTS
We recite only those facts necessary to the disposition of this appeal.
In the early morning of July 2, 2005, Rambo fatally wounded Anthony Keith Nance by
shooting him. The Commonwealth convened a special grand jury to investigate the killing. As
part of that investigation, the Commonwealth sought the testimony of Melissa Burgess Rambo
(Burgess).1 Burgess asserted her Fifth Amendment rights and the Commonwealth granted her
immunity, after which she testified. The Commonwealth later obtained a direct indictment
against Rambo by a regular grand jury. Due to the direct indictment, no preliminary hearing
occurred.
On the day of trial, defense counsel raised for the first time a motion to dismiss the
indictment. Counsel stated his reasons as follows:
MR. SANZONE: Judge, in order not to prejudice the
Commonwealth by my motion -- that’s the only reason that I’m
raising this. Mr. Drewry advised me that one of my witnesses is
going to take the Fifth based upon the letter we got relative to the
special grand jury being called and her testimony before the special
grand jury and subsequently in a letter we received by the
Commonwealth Attorney. He told me that over the weekend while
court was not in session. I’ve not had an opportunity to come
back.
We would move to dismiss the indictments based upon the
effect that the grand jury has had upon the witnesses in this case
and the fact that it has impaired my ability to call witnesses to
testify in this matter.
THE COURT: Mr. Doucette, I’m not --
MR. SANZONE: He doesn’t have it. I just got it.
MR. DOUCETTE: Of course, Your Honor, motions to
dismiss because of some sort of impropriety in the indictment
process by rule are required to be filed at least seven days prior and
heard prior to trial. You know, the fact that a witness for the
1 Burgess and Rambo later married. At the time Burgess testified before the grand jury,
they were not married.

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defense is going to take the Fifth Amendment, I’ve got no control
over that. And certainly, I would submit to the Court having not
read this motion to dismiss at this point, I certainly can’t cite the
Court to any case law that deals with this particular issue, but, you
know, I don’t know of a provision that allows for a dismissal of an
indictment because there’s been a special grand jury and a witness
happened to take the Fifth Amendment before the special grand
jury.
* 	* 	* 	* 	* 	* 	*
MR. DOUCETTE: She took the Fifth before testifying
before the grand jury. At that point she was granted transactional -
- not transactional -- she was granted derivative immunity pursuant
to the statute so that she did, in fact, testify.
THE COURT: And Mr. Drewry represents her?
MR. SANZONE: Judge, he does.
And if I might just explain a little bit, Judge, the position I
set forth. She testified at the bond hearing and gave testimony and
was examined by Mr. Doucette and myself. The special grand jury
was impaneled. She was called before the special grand jury.
When the deputy -- it actually was the investigator that was
participating in this -- served her with the summons he told her,
when you come to the grand jury you better not tell that crap that
you told us down at the police station about being raped essentially
or else we’re going to charge you with perjury.
She appeared before the grand jury, did not wish to testify
based upon what was being said. And, of course, as we know,
perjury -- a charge of perjury can be brought in any matter
concerning any discrepancy. It has to be material for it to be a
convicted offense. But in any event, she came forward. She
testified before the grand jury, she was not cross examined, there
was no opportunity to object, and in essence, gave the
Commonwealth a form of discovery that we do not have in a case
like this.
When the grand jury proceeding was under way there was a
question as to why the grand jury had been impaneled. And
Mr. Doucette answered that, one, they wanted to find the gun. The
witnesses that were called before the grand jury had all spoken
with the police and given statements that were similar with what --
to what they had testified to before the grand jury.

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* 	* 	* 	* 	* 	* 	*
THE COURT: Any witness can take the Fifth.
MR. SANZONE: Well, the problem is the pressure that
was applied to witnesses who are testifying. And the problem in
this case has been from day one when she made the complaint that
night she was ignored. That next morning the course of the inquiry
seemed to be to prove that she had not been raped. Since that time
there’s been further inquiry into attempting to show that no rape
took place when it’s really not pertinent since the decedent is dead
and there’s absolutely no way to bring a charge of rape, abduction,
whatever in that matter.
The last thing is, is that one of the reasons that was stated
for calling the grand jury was to tie the witnesses down under oath.
There’s really no reason for that to be done. I think it’s an
improper reason for that to be done. I think it’s an improper reason
because if there’s an attempt to have the witnesses isolated in a
daunting setting without opportunity to go -- counsel can be
present, but can’t ask any questions. If counsel in this case for
Mr. Rambo was present he couldn’t ask -- I mean, couldn’t even be
present and couldn’t ask any questions, nor could we object to
leading questions or other matters. And I just think that using the
special grand jury not as an investigative tool, but as a method of
discovery in a criminal case is improper, because when you do that
and when you impair our ability to call a witness I don’t think we
should go forward.
After this dialogue, the circuit court denied the motion as untimely. Defense counsel did not ask
the court to consider good cause to excuse the untimely nature of the motion.
The case proceeded to trial before a jury. After hearing the evidence, the jury found
Rambo guilty of the above three mentioned charges and acquitted him of two others.
Before the parties presented evidence during the sentencing phase, defense counsel
moved to introduce evidence relating to Nance’s prior troubles with law enforcement. This
included two civil show cause summonses for failure to pay support, a capias for failure to
appear, and an arrest warrant for assault and battery of a household member. The court denied
admission of the evidence.

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During the Commonwealth’s sentencing phase presentation, it introduced evidence
showing Nance was a loving father with an upright character. Nance’s sister testified his son
“was devastated” by his father’s death. She stated his son was disappointed he would not “get to
do things with his father, play ball with his father or anything else that normally a child would
get to do with their father.” The jury was also shown a photograph of Nance with his son.
Nance’s sister further testified the death “really took a toll” on their father and had a “[t]errible”
impact on her. She testified Nance lived with her in the period immediately before his death and
that they enjoyed socializing with each other.
The jury recommended Rambo receive sentences of imprisonment of thirty years on the
murder conviction, ten years on the conviction of use of a firearm in an occupied building, and
three years on the conviction of use of a firearm while committing murder. The court imposed
these sentences during a hearing on April 14, 2006, and by a written order. Rambo now appeals.
III. ANALYSIS
A. Whether the Circuit Court Erred in Declining to Dismiss the Indictment
Rambo first contends the circuit court erred in denying his motion to dismiss the
indictment based upon prosecutorial misconduct involving the investigation of a special grand
jury. He states the Commonwealth convened a special grand jury to investigate the murder and
then compelled Melissa Burgess Rambo to testify before it by granting her immunity after she
invoked her Fifth Amendment rights. Rambo then states the prosecution brought charges by a
direct indictment from a regular grand jury. No preliminary hearing was held and since Rambo
could not participate in the special grand jury proceedings, he did not have an opportunity to
cross-examine Burgess. The prosecution did not call Burgess at trial and when Rambo did so,
she invoked her Fifth Amendment rights. Rambo argues this process violated his constitutional

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rights by enabling the prosecution to gain the benefit of Burgess’ testimony while depriving him
of an independent opportunity to examine her.
The Commonwealth contends Rambo’s motion is barred by Rule 3A:9(b)(1). The
Commonwealth argued this before the circuit court, and the court sustained its objection on this
basis. We agree with the application of the rule.
Rule 3A:9(b)(1) states in relevant part:
Defenses and objections based on defects in the institution of the
prosecution or in the written charge upon which the accused is to
be tried, other than that it fails to show jurisdiction in the court or
to charge an offense, must be raised by motion made within the
time prescribed by paragraph (c) of this Rule. The motion shall
include all such defenses and objections then available to the
accused. Failure to present any such defense or objection as herein
provided shall constitute a waiver thereof.
Paragraph (c) provides that except for speedy trial or double jeopardy claims, motions falling
under Rule 3A:9(b)(1) must be filed seven days before trial. Rule 3A:9(d) states the court may
dispense with the waiver provisions of the rule upon a showing of good cause. We have stated
that “[t]he plain language of the Rule states that the requirements of Rule 3A:9(b)(1) are
mandatory, and ‘failure to raise such [defenses] properly is a waiver,’ unless ‘good cause’ is
shown.” Harris v. Commonwealth, 39 Va. App. 670, 675, 576 S.E.2d 228, 230 (2003) (en banc)
(quoting Freeman v. Commonwealth, 14 Va. App. 126, 127, 414 S.E.2d 871, 872 (1992)).
The key inquiry here concerns whether prosecutorial use of an investigative special grand
jury involves “defects in the institution of the prosecution,” as required by the Rule, when a
regular grand jury ultimately indicts. Although we are aware of no Virginia precedent
interpreting this phrase, federal and state courts considering similar rules provide guidance.
Federal Rule of Criminal Procedure 12(b)(3)(A) states that “a motion alleging a defect in
instituting the prosecution” must be made prior to trial. Like the rules of this Court, the federal
rules also provide the failure to raise such a motion constitutes waiver absent a showing of good

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cause. Fed. R. Crim. P. 12(e). Motions under this rule “generally involve defects in the
procedures leading up to the indictment, because this type of defect can be cured by the
prosecutor prior to trial.” United States v. Smith, 866 F.2d 1092, 1098 (9th Cir. 1989). Such
defects include “prosecutorial misconduct, improper grand jury procedures, and noncompliance
with the Federal Rules of Criminal Procedure.” Id. at 1097. The United States Supreme Court
has held strict application of the rule resulting in waiver appropriate, even as to constitutional
claims. Davis v. United States, 411 U.S. 233, 238, 241 (1973).
State courts have similarly found a wide range of claims waived due to the failure to
comply with timely filing requirements. This includes the failure to grant a preliminary hearing.
State v. Kinner, 701 S.W.2d 224, 227 (Tenn. Crim. App. 1985). It also includes claims of
discriminatory prosecution, State v. Heald, 382 A.2d 290, 300 (Me. 1978), that the prosecution
failed to present exculpatory evidence to the grand jury, Buffington v. State, 745 P.2d 78, 78-79
(Alaska Ct. App. 1987), and that a police witness gave improper grand jury testimony, Edwards
v. State, 158 P.3d 847, 854 (Alaska Ct. App. 2007). Further examples consist of claims of
unconstitutional grand jury membership selection, Paciona v. Marshall, 359 N.Y.S.2d 360, 363
(N.Y. App. Div. 1974), and allegations of a prosecutor improperly expressing personal opinions
before the grand jury, State v. Thrunk, 384 A.2d 906, 912 (N.J. Super. Ct. App. Div. 1978).
Based on this precedent, we conclude Rambo’s arguments fall within the scope of our
Rule 3A:9(b)(1). The claims concern allegations of prosecutorial misconduct “in the procedures
leading up to the indictment.” Smith, 866 F.2d at 1098. Rambo was therefore required to file his
motion at least seven days before trial. Rule 3A:9(c). Yet Rambo did not raise his motion until
the day of trial. This normally results in waiver of any objection. Rule 3A:9(b)(1). While Rule
3A:9(d) allowed the circuit court to dispense with this sanction upon a showing of good cause,

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Rambo never asked the circuit court to consider this exception. We therefore find his arguments
procedurally barred.
B. Whether the Circuit Court Erred in Excluding Evidence of the Victim’s Bad Character
Rambo next contends the circuit court erred in refusing to allow him to admit evidence of
the victim’s bad character during the sentencing proceedings. Rambo argues that since the
Commonwealth presented evidence of the victim’s positive attributes during victim impact
testimony, he should have been allowed to present rebuttal evidence.
Rule 5A:20(e) states that briefs shall contain “[t]he principles of law, the argument, and
the authorities relating to each question presented.” This rule “bars us from addressing any
issues unsupported by authority.” Klein v. Klein, 49 Va. App. 478, 482, 642 S.E.2d 313, 315
(2007). “‘Statements unsupported by argument, authority, or citations to the record do not merit
appellate consideration.’” Budnick v. Budnick, 42 Va. App. 823, 833, 595 S.E.2d 50, 55 (2004)
(quoting Roberts v. Roberts, 41 Va. App. 513, 527, 586 S.E.2d 290, 297 (2003)).
Rambo’s brief cites to no authority on this issue other than to say that Code § 19.2-295.1
governs the admission of evidence in sentencing proceedings. Although Rambo argues in his
brief that “[t]he law is well settled that upon a showing by a party of the good character of a
party, the other side may introduce evidence of bad character,” he provides no citation to this
law. “By failing to cite any authority in support of this argument in his opening brief, [Rambo]
has violated the provisions of Rule 5A:20(e).” Jeter v. Commonwealth, 44 Va. App. 733, 739,
607 S.E.2d 734, 737 (2005). Accordingly, we hold Rambo has waived this argument.
For the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.