                   COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


STANLEY REID

v.        Record No. 0894-94-1          MEMORANDUM OPINION*
                                     BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                 OCTOBER 10, 1995


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                     Robert W. Stewart, Judge
          James S. Ellenson for appellant.

          Robert B. Beasley, Jr., Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on brief),
          for appellee.



     In this appeal from a judgment of the Circuit Court of the

City of Norfolk (trial court) that approved a jury verdict

convicting him for first degree murder, the sole issue presented

by Stanley Reid (appellant) is whether the trial court erred when

it refused to grant his motion for a mistrial and reconstitute

the jury panel.   Finding no error, we affirm the judgment of the

trial court.

     Appellant was indicted and tried for feloniously killing and

murdering Leon Mattox.   At trial, pursuant to the provisions of

Code § 19.2-242, a jury consisting of twenty persons was

impaneled, from which twelve were to be selected along with two

alternates. Counsel for each party was given the opportunity to
exercise four peremptory strikes. The Commonwealth made one

____________________

     *Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
initial strike of a black female who previously had been

represented by defense counsel.   That strike was followed by a

strike made by appellant.   Thereafter, the prosecutor advised the

trial court that he had "no reason to make any other strikes

based on peremptory challenges" and, citing Code § 19.2-262(4),

stated to the trial court that in situations where the

Commonwealth declined to make its strikes that section had been

applied.   Sub-section (4) provides:
             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 reasons 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.


(Emphasis added.)    That section clearly applies to "persons

indicted for felony [who] elect to be tried jointly."    The

conviction appealed from was a single-defendant trial.     Nothing

in that section provides an excuse for the failure of the

Commonwealth to prosecute appellant on the charge for which he

has been indicted.

     At trial, appellant argued that that Code section did not

relieve the Commonwealth from meeting the requirements of Batson



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v. Kentucky, 476 U.S. 79 (1986); however, in this appeal, the

Batson issue is not raised.   Instead, appellant here argues only

that the trial court erred when it applied the procedure for

making peremptory strikes as provided in Code § 19.2-262.    We

agree that the provisions of sub-section (4) of Code § 19.2-262

do not apply to the refusal of the Commonwealth to make the

peremptory strikes as directed by the General Assembly in

sub-sections (2) and (3) of that Code section.   Sub-sections (2)

and (3) establish the number of jurors required in criminal cases

and how they are to be selected. Those sub-sections provide:
            (2) Twelve persons from a panel of twenty
          shall constitute a jury in a felony case.
          Seven persons from a panel of thirteen shall
          constitute a jury in a misdemeanor 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.


The directive is that beginning with the Commonwealth, the

parties "shall" alternately strike one name until the jury has

been selected.   No alternative is given to the Commonwealth.

     The ultimate question before this Court is, did the parties

receive a fair trial, not a perfect trial, and did an action or

inaction of the trial court constitute reversible error.

     The trial judge is charged with the duty to see that the

trial proceeds in an orderly and expeditious manner.   An option

was to inform the Commonwealth of its duty to see that the

prosecution proceed as provided by law and that the failure to do


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so could result in dismissal of the charge for failure to

prosecute.   Another would be to use a procedure approved by the

legislature for defendants who are jointly tried.   The latter

procedure was applied in this case, and we find no reversible

trial court error in selecting the jury as was done here.

     Accordingly, the judgment of the trial court is affirmed.

                                                    Affirmed.




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