                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Willis and Senior Judge Cole
Argued at Richmond, Virginia


KENNETH RAY LEWIS
                                           MEMORANDUM OPINION * BY
v.   Record No. 0843-99-2                   JUDGE MARVIN F. COLE
                                                JULY 25, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

          Esther J. Windmueller for appellant.

          Richard B. Smith, Senior Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Kenneth Ray Lewis, appellant, was convicted upon his guilty

plea of first-degree murder. 1   Appellant contends that the trial

court erred by allowing a police officer to testify at sentencing

regarding statements made by another inmate.    For the following

reasons, we find no error and affirm the conviction.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       The Court notes that the final sentencing order entered by
the trial court erroneously reflects that the appellant was
found guilty of "capital murder." Accordingly, this case is
remanded to the trial court for the sole purpose of amending the
final order to reflect that appellant was found guilty, pursuant
to his guilty plea, of first degree murder.
                                 Facts

       Appellant and the victim, Michael Smith, were having a

cookout on Smith's front porch when appellant began striking Smith

on the head and neck with a hammer.      Smith's blood splattered on

the walls.   Appellant dragged Smith's body through the house, and

tried to put Smith's body into the trunk of Smith's car.      Unable

to get Smith's body into the trunk, appellant put the body in the

backseat of the car, drove to Caroline County, and dumped the body

into the Mattaponi River.    Thereafter, appellant admitted his

crime to Johnny Wright.   Appellant explained how he threw chicken

bones and hamburger grease on the blood trail in the house in an

attempt to get dogs to lick up Smith's blood.     Appellant asked

whether Wright's wife could dye his hair.     Hair dye was found in

the car trunk along with cleaning items used to try to clean the

blood out of the car.   Prior to trial, appellant tried to "take

out a contract" on Wright, the Commonwealth's main witness against

him.

                               Analysis

       The only issue properly before this Court is the narrow issue

of whether the trial court erred by allowing hearsay testimony

during appellant's sentencing.    Special Agent Carl Fisher

testified that he interviewed inmate John Wallace about statements

appellant made to Wallace.   Appellant objected to any testimony

from Fisher, arguing that



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           if the Commonwealth wants that information
           . . . there's no reason that it could not
           . . . subpoena Mr. Wallace so we could have
           a reasonable opportunity to cross-examine
           the source. . . . [W]hile I understand
           certain hearsay is admissible at sentencing,
           this is one where, in fairness, if the Court
           wants to hear it, it should be able to hear
           it [from Wallace] . . . and we should have
           the opportunity to cross-examine [Wallace].

The trial court overruled appellant's objection and stated:

           The Court understands that certain hearsay
           evidence is admissible, and the Court will
           take into consideration when it hears the
           evidence, the fact that you will not have
           the opportunity to cross-examine that person
           who made those statements.

     Fisher then testified about his interview of Wallace.

Wallace told Fisher that appellant admitted to him killing a man

with a hammer on that man's front porch and that he had thrown

the body into the river.   Wallace also stated that appellant

offered him $1,500 to kill Johnny Wright, the Commonwealth's

main witness against appellant.   Appellant cross-examined

Fisher.   During allocution, appellant denied offering Wallace

money to kill the Commonwealth's witness.

     A sentencing hearing is not a trial.   The rules applicable

in a proceeding to determine a defendant's guilt are not

necessarily applicable in a sentencing proceeding.   See Moses v.

Commonwealth, 27 Va. App. 293, 300, 498 S.E.2d 451, 455 (1998)

(right to confrontation a trial right, not a right in sentencing

proceeding); Thomas v. Commonwealth, 18 Va. App. 656, 659, 446

S.E.2d 469, 471 (1994) (en banc) (during sentencing, court may

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consider defendant's criminal record, including dismissed

juvenile charges and pending charges, charges for which accused

has been indicted but not convicted, offenses for which

defendant has been convicted but not sentenced, convictions on

appeal, and evidence of unadjudicated criminal activity).    In

holding that a judge could use a presentence report containing

hearsay and evidence of unadjudicated crimes without offending

the due process guarantee, the Supreme Court noted that "most of

the information now relied upon by judges to guide them in the

intelligent imposition of sentences would be unavailable if

information were restricted to that given in open court by

witnesses subject to cross-examination."     See Williams v. New

York, 337 U.S. 241, 250 (1949).

     "In the sentencing phase of a case, the trial court may

rely upon hearsay testimony."     Alger v. Commonwealth, 19 Va.

App. 252, 258, 450 S.E.2d 765, 768 (1994).    "The information

relied upon by the court must, however, have some indicia of

reliability."   Id.

     At the arraignment held on December 18, 1998, appellant

pled guilty to the first degree murder of Michael Anthony Smith

and admitted to the trial judge he understood this guilty plea

lost him his right to confront and examine the Commonwealth's

witnesses.

     As a factual basis for the plea, the Commonwealth's

attorney set forth in great detail the Commonwealth's evidence

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to support the charge of murder.    Special Agent Fisher and

several Richmond police officers had interviewed Johnny Wright.

Wright advised the officers that appellant, a friend, had

admitted to him in a conversation he had with him in the late

evening hours of August 23, 1998, that he had struck Smith with

a hammer several times and dragged him into the house, where he

struck him several more times.    Appellant further admitted to

Wright that he had placed the victim in the backseat of his car,

driven it to Caroline County, and dumped the body into the

Mattaponi River.

        The Commonwealth's attorney further represented to the

court another piece of evidence that appellant, while

incarcerated, was housed with an inmate named John Wallace.      If

called as a witness, Wallace would testify to "the exact same

story that Mr. Lewis relayed to him [Wallace] in jail."    Wallace

also would testify that appellant asked him "when he got out of

jail, would [he] find [Wright] and do harm to him, if he were to

testify."

        The trial judge asked appellant if the facts as stated by

the Commonwealth's attorney "were they a fair statement of the

facts in the case."    Appellant personally responded that they

were.

        Almost four months later during sentencing, this same

information was elicited from Special Agent Fisher.    Appellant

clearly knew about this evidence prior to his sentencing

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hearing, cross-examined Fisher about this evidence, and denied

the accuracy of the evidence during allocution.   Appellant's

agreement that the Commonwealth's evidence would prove these

facts gives the evidence the necessary "indicia of reliability."

     The trial court properly admitted Fisher's hearsay

testimony during appellant's sentencing proceeding.   For these

reasons, we find no error in appellant's conviction, and

accordingly affirm.

                                                          Affirmed.




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