Thomas Gerald Adkins, Sr. v. Commonwealth , 24 Va. App. 159 ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
THOMAS GERALD ADKINS, SR.
OPINION BY
v. Record No. 2993-95-3 JUDGE RICHARD S. BRAY
FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
(Leonard D. Rogers, on brief), for appellant.
Appellant submitting on brief.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
In a joint trial on joint indictments, a jury convicted
Thomas Gerald Adkins, Sr. (defendant) of robbery and possession
of a firearm by a convicted felon. A codefendant, Larry Herron
(Herron), was also convicted for like offenses and, additionally,
for unlawful wounding and larceny of a firearm. On appeal,
defendant contends that the trial court erroneously granted the
Commonwealth's motion for joint trial, pursuant to Code
§ 19.2-262.1, and did not permit both defendant and Herron four
peremptory strikes during jury selection. Finding no error, we
affirm the convictions.
In accordance with well established principles, we view the
evidence in the light most favorable to the Commonwealth. On the
evening of November 4, 1994, defendant and Herron, drinking
heavily, visited the apartment of Lester Cantrell, then age
eighty-one. Cantrell recognized Herron and invited the two men
into his apartment. After some conversation, eating, and
drinking, Cantrell attempted to leave the apartment, but was
"knocked . . . down," beaten, kicked, and struck on the head with
"a fruit jar or something" by Herron. Defendant then approached
Cantrell, "pulled out [a] big kni[fe]" and threatened to kill him
with the weapon. Injured, Cantrell watched as defendant and
Herron ransacked his apartment, and "took all they could get,"
including $400 and a handgun. Neither defendant nor Herron
disputed that Cantrell had been beaten and robbed, but, in their
respective testimony, each attributed the offenses to the other.
Herron had been previously convicted of several offenses
arising from the incident but was subsequently granted a new
trial for reasons unrelated to this appeal. When the
Commonwealth sought to join Herron's retrial with the instant
prosecution, both defendant and Herron objected. In a written
pretrial motion, defendant contended that he would "be unduly
prejudiced and the jurors . . . confused so as to not be able to
differentiate between what evidence is against which defendant."
In arguing the motion, defendant asserted that judicial economy
was outweighed by the prejudice to defendant certain to result
from "evidence . . . admissible against Mr. Herron . . . [but]
not . . . admissible against [him]." During post-trial motions
to set aside the verdicts, defendant revisited the joinder issue,
contending then that the "antagonistic defenses" had "obviously
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prejudiced both defendants," compelling each to testify and rebut
the incriminating evidence of the other. 1 In overruling
defendant's initial objection and subsequent motion, the court
reasoned that joinder would at once promote judicial economy and
the interests of the elderly victim, Cantrell, without prejudice
to defendants.
In an additional written motion, defendant requested the
court to impanel "sufficient jurors such that both defendants
would be allowed their appropriate strikes," later arguing that
each was entitled to four. With the concurrence of the
Commonwealth and over defendant's objection, the court impaneled
twenty-four venirepersons, allowed each defendant three and the
Commonwealth four peremptory strikes, and designated the
remaining two jurors as alternates.
INVOLUNTARY JOINDER
Code § 19.2-262.1 provides that:
On motion of the Commonwealth, for good cause
shown, the court, in its discretion, may
order persons charged with participating in
contemporaneous and related acts or
occurrences or in a series of acts or
occurrences constituting an offense or
offenses to be tried jointly unless such
joint trial would constitute prejudice to a
defendant. If the court finds that a joint
trial would constitute prejudice to a
defendant, the court shall order severance as
to that defendant or provide such other
relief [as] justice requires.
1
We assume, without deciding, that the post-trial argument
was timely.
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Id. (emphasis added); see Rules 3A:6(c), 3A:10. "In determining
whether a joint trial would prejudice a defendant, the trial
court should require '[t]he party moving for severance [to]
establish that actual prejudice would result from a joint
trial.'" Goodson v. Commonwealth, 22 Va. App. 61, 71, 467 S.E.2d
848, 853 (1996) (analogizing standard of Code § 19.2-262.1 to
prejudice standard of Fed. R. Crim. P. 14) (quoting United States
v. Reavis, 48 F.3d 763, 767 (4th Cir.) (emphasis added), cert.
denied, 115 S. Ct. 2597 (1995)). Actual prejudice results only
when "there is a serious risk that a joint trial would compromise
a specific trial right of [defendant], or prevent the jury from
making a reliable judgment about guilt or innocence." Barnes v.
Commonwealth, 22 Va. App. 406, 412, 470 S.E.2d 579, 582 (1996)
(quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)).
We recognize that prejudice may result when evidence
inadmissible against a defendant, if tried alone, is admitted
against a codefendant in a joint trial. See id. However, a
"defendant has no right to exclude relevant and competent
evidence, such as the testimony of a former co-defendant," id. at
412-13, 470 S.E.2d at 582, despite "the impression that [they]
may be hostile to each other's position." Goodson, 22 Va. App.
at 71, 467 S.E.2d at 853. "'The risk of prejudice will vary with
the facts in each case,'" and the decision to permit a joint
trial is entrusted to the sound discretion of the trial court.
Barnes, 22 Va. App. at 412, 470 S.E.2d at 582 (quoting Zafiro,
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506 U.S. at 541); see Code § 19.2-262.1. The court must balance
the specter of prejudice with "the effectiveness of . . .
measures to cure any such risk, such as limiting instructions."
Barnes, 22 Va. App. at 412, 470 S.E.2d at 582.
Defendant does not dispute that he and Herron were indicted
for offenses sufficiently related to constitute "good cause" for
joinder. However, he complains of prejudice arising from
evidence admissible against Herron, but inadmissible against him,
and prejudice which inhered in the hostile and conflicting
evidence of each defendant, compelling each to testify to
contradict the other. However, defendant "point[s] to no trial
right," distinguishable from trial tactics, "which was
compromised or any basis for concluding the jury was prevented
from making a reliable judgment about his guilt or innocence."
Id. at 413, 470 S.E.2d at 582. Thus, his contentions fail to
establish the requisite actual prejudice. See Goodson, 22 Va.
App. at 71-72, 467 S.E.2d at 853. Under such circumstances, the
trial court correctly concluded that joinder would promote the
interests of both the elderly victim and judicial economy,
without demonstrable prejudice to defendants.
ENTITLEMENT TO PEREMPTORY STRIKES
Both the Virginia and United States Constitutions provide
that a criminal defendant is entitled to trial by an impartial
jury. U. S. Const. amends. VI, XIV; Va. Const. art. I, § 8; see
Barker v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d 729, 732
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(1985). However, this right does not give an accused
constitutional entitlement to peremptory challenges but requires
only that jurors be removed upon a showing of cause. See 11B
Michie's Jurisprudence Jury § 32, at 130 (1986).
Code § 19.2-262 establishes the procedure for selection of a
criminal petit jury in Virginia, providing, in pertinent part,
that:
(2) Twelve persons from a panel of
twenty shall constitute a jury in a felony
case. . . .
(3) The parties or their counsel,
beginning with the attorney for the
Commonwealth, shall alternately strike off
one name from the panel until the number
remaining shall be reduced to the number
required for a jury.
(4) In any case in which persons indicted
for felony elect to be tried jointly, if
counsel or the accused are unable to agree on
the full number to be stricken, or, if for
any other reason counsel or the accused fail
or refuse to strike off the full number of
jurors allowed such party, the clerk shall
place in a box ballots bearing the names of
the jurors whose names have not been stricken
and shall cause to be drawn from the box such
number of ballots as may be necessary to
complete the number of strikes allowed the
party or parties failing or refusing to
strike. Thereafter, if the opposing side is
entitled to further strikes, they shall be
made in the usual manner.
In prosecutions of a single defendant, the statutory procedure
specified in subsections (2) and (3) mathematically results in
the Commonwealth and the defendant each enjoying four peremptory
strikes. See, e.g., Irving v. Commonwealth, 19 Va. App. 581,
583, 453 S.E.2d 577, 579 (1995).
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"If the language of a statute is plain and unambiguous, and
its meaning perfectly clear and definite, effect must be given to
it regardless of what courts think of its wisdom or policy."
Long v. Commonwealth, 7 Va. App. 503, 506, 375 S.E.2d 368, 369
(1988) (en banc) (per curiam) (quoting Temple v. City of
Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944)). Code
§ 19.2-262 clearly instructs that a jury in a felony prosecution
be composed of twelve persons, derived from a panel of twenty
without exception for multiple defendants joined for trial
pursuant to Code § 19.2-262.1. Nothing in the statute or the
United States or Virginia Constitutions assures multiple
defendants a specified number of strikes. Cf. Buchanan v.
Commonwealth, 238 Va. 389, 405, 384 S.E.2d 757, 767 (1989), cert.
denied, 493 U.S. 1063 (1990).
Defendant's reliance upon Code § 19.2-262(4) to support his
argument that persons involuntarily joined for trial are entitled
to an alternate selection procedure is misplaced. Code
§ 19.2-262(4) expressly applies only to felony prosecutions of
persons "elect[ing] to be tried jointly." (Emphasis added).
Contrary to defendant's assertion, this omission raises the
inference that the legislature did not intend to modify the
number of strikes allocable to defendants involuntarily joined
for trial. See Tharpe v. Commonwealth, 18 Va. App. 37, 43, 441
S.E.2d 228, 232 (1994). We, therefore, conclude that defendants
jointly tried are together entitled only to the four peremptory
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challenges provided by statute.
The trial court resolved defendant's motion by providing
defendant and Herron with three peremptory strikes each, a total
of two more than required by Code § 19.2-262. "The manner in
which jury selection is conducted is within the discretion and
control of the trial court, guided by statute and rule of court."
Buchanan, 238 Va. at 400, 405 S.E.2d at 764. We find no abuse
of discretion in the procedure adopted in this instance.
Accordingly, we affirm the convictions.
Affirmed.
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