                  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,




                               - 4 -
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



                                 - 7 -
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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