                       COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia


KIEL TURNER
                                           MEMORANDUM OPINION * BY
v.   Record No. 1641-01-3                JUDGE WALTER S. FELTON, JR.
                                              NOVEMBER 26, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                      John J. McGrath, Jr., Judge

          W. Todd Watson (David B. Hargett; J. Paul
          Gregorio; Hargett & Watson, PLC; Paone &
          Gregorio, PLLC, on brief), for appellant.

          Margaret W. Reed, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Kiel Turner was convicted by a jury of:    (1) first-degree

murder in the commission of an attempted robbery, in violation

of Code §§ 18.2-32 and 18.2-18; (2) use of a firearm during the

commission of a felony, in violation of Code § 18.2-53.1; (3)

malicious wounding, in violation of Code § 18.2-51; (4) three

counts of abduction, in violation of Code § 18.2-47; (5)

breaking and entering with the intent to commit robbery, in

violation of Code § 18.2-90; (6) two counts of robbery, in

violation of Code § 18.2-58; and (7) attempted robbery, in

violation of Code §§ 18.2-58 and 18.2-26.     On appeal, he


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
contends the trial court erred (1) in joining his case with

other defendants when severance was required to prevent

prejudice; (2) in denying his motion for a continuance to secure

the presence of an impeachment witness; and (3) in denying his

motion to set aside the verdict or declare a mistrial where the

polling of the jury revealed that only eleven jurors concurred

in the punishment verdict rendered by the jury.   For the

following reasons, we affirm the judgment of the trial court.

                          I.    BACKGROUND

                         A.    THE OFFENSES

     On August 29, 1997, Emanuel Kingsley was shot in the chest

and killed when he entered the house he was sharing with Anthony

Brunk.   Approximately two weeks prior to Kingsley's death, Kiel

Turner asked Heather Blosser and Santia Frye if they knew of

anybody who had money or drugs.    He had recently been robbed of

money and marijuana and wanted to replace his losses by robbing

someone.   Blosser told Turner that Kingsley was a drug dealer

and had a great deal of money.

     A few days prior to the murder, Blosser and Frye drove

Turner to Massanutten and pointed out the house where Kingsley

was living.   Turner began asking the women specific questions

about the residence, such as how many entrances there were and

the time of day people were usually there.    After staking out

the residence, Turner enlisted the help of Andre Cook.    Cook



                                 - 2 -
agreed to help Turner commit the robbery, and he in turn

enlisted the help of Marcus Duenas and LaLarnie Larry.

     On the evening of August 28, 1997, Cook and Larry picked up

Duenas in Washington D.C.   Duenas had with him his Glock

nine-millimeter pistol.   After getting into the van, the three

men drove around the corner and picked up a second gun, a chrome

.45 caliber handgun.   Cook, Larry, and Duenas drove to

Harrisonburg and at approximately midnight, picked up Turner at

Rosslyn Williams' apartment.   That night Turner was wearing a

black skullcap and Duenas' hair was "wild" and "bushed out."

     Under Turner's direction, the four men drove to

Massanutten.   They parked the van near Kingsley's house.   Turner

handed out the guns.   Duenas took the Glock nine-millimeter

pistol, Larry took his .380 caliber handgun, and Turner took the

chrome .45 caliber handgun.    They walked through the woods to

approach the house and then entered.    Upon entry, they split up

and began looking for items to take.    Turner went upstairs and

determined that two people were there.   Shana Curtis was in the

bedroom studying, and Neil Flick was in the bathroom taking a

shower.   Turner told Larry and Cook to come upstairs.

     Larry and Cook seized Curtis in the bedroom while Turner

went into the bathroom.   In the bathroom, Turner opened the

shower curtain, put the .45 caliber chrome gun in Flick's face,

ordered him out of the shower, and pistol-whipped him.    Flick

and Curtis were then brought downstairs, ordered to lie down,

                                - 3 -
and were tied up.     Flick was repeatedly asked where the money

was located and where Kingsley was.       Flick told them that

Kingsley went out to get some food and would be back in fifteen

minutes.      However, he stated he knew nothing about any money.

Larry then kicked Flick in the face, crushing his cheek bone and

tear duct.

     Shortly thereafter, Brunk returned home.       Brunk stated that

upon entering the house, an African-American male with an afro

"teased out a few inches" stuck a gun in his face and told him

to hit the ground.     Brunk was tied up, and his watch, money

clip, credit card, and shoes were taken.      By that time Larry and

Cook had returned to the van to drop off the items that were

taken from the house and its occupants.      While they were at the

van, Kingsley and Amy Steward returned to the house.      When they

entered the house, they were confronted by a man with a gun, who

shot at them.     Steward was shot in the hand, but managed to

escape by running through the woods.      Kingsley was shot in the

chest and fell to the floor.

     Duenas and Turner fled the house and ran to the van with

their guns in their hands.     Cook and Larry testified that once

inside the van, Duenas said he shot someone following a

struggle. 1    As they made their escape out of the neighborhood,


     1
       Forensic evidence corroborates the statement that Duenas
shot someone. David Gibbs, a forensic scientist specializing in
firearms and tool mark identification, testified that the
bullets submitted to him were all nine-millimeter bullets fired

                                  - 4 -
they passed Steward walking on the side of the road.    Larry

testified that Turner recognized her as the woman he tried to

shoot moments earlier at the house.     The four men returned to

Washington D.C. and divided the stolen items.

     Back at the house, Brunk managed to untie himself and then

Flick.   Realizing the phone lines had been cut, Brunk used

Kingsley's cellular phone to call 911.    Brunk and Flick then

attempted to save Kingsley by administering CPR.    Kingsley died

from his wound.

     A few days following the shooting, Turner and the group

gathered at Cook's house.    It was at that time they learned that

Kingsley had died.   Cook testified that Duenas subsequently

decided to get rid of the nine-millimeter pistol.    He dismantled

it, burned it, and threw it in a river.

                      B.    PROCEDURAL HISTORY

     Prior to trial the Commonwealth filed a motion to join the

trials of codefendants Turner, Duenas, Larry, and Frye.    Over

the objections of the codefendants, the motion was granted.

Trial began on December 18, 2000.    Prior to opening remarks,

Turner stated that a defense witness, Aaron Primes, was not

present and requested a continuance.    He stated that Primes

would provide crucial exculpatory testimony.     To ensure his




from the same gun. Duenas had the Glock nine-millimeter pistol
during the murder-robbery.

                                - 5 -
appearance, Turner's counsel subpoenaed Primes by personal

service three months before trial and spoke to him by telephone

the day of trial regarding his testifying on behalf of Turner.

     The trial court denied the continuance motion and issued a

capias for Primes.   In turn, Turner proffered the anticipated

testimony of Primes.   The proffered evidence was that while

Primes was incarcerated with Cook around August 28 or 29, 2000,

Cook told him that he was going to do anything to save his neck

and that Turner never went into the house.   At trial, Cook

denied ever talking with Primes about the murder-robbery

incident.

     On December 20, 2000, Primes, for the third time in as many

days, failed to appear in court.   Turner's attorney indicated to

the trial court that he was reluctant to continue without "a

crucial witness."    He again requested a continuance, but was

denied.   The court held, and Turner's attorney agreed, that

Primes' testimony would be cumulative and that there was no way

to guarantee his appearance at trial. 2




     2
       Irvin Majors' testimony was virtually identical to the
proffered testimony of Primes. Majors testified at trial that
while in a holding cell with Cook, Cook told him that if he went
down he was going to take others with him. In addition, Majors
testified that Cook stated Turner was in the car during the
whole thing.

                                - 6 -
        Turner was convicted of ten of the eleven crimes with which

he was charged. 3      After the court read each verdict, the jury was

asked collectively by the trial judge, "Is this your verdict?"

Each time the record reflects that there was an affirmative nod

or response by the jurors, affirming the verdict to be his or

hers.       Turner's attorney then moved for the jury to be

individually polled.       After individual polling of the jurors,

the record reflects that each of the jurors responded that the

announced verdicts were his or hers.        No juror dissented to the

announced verdicts.

        At the conclusion of the jury's deliberation during the

sentencing phase, the jury foreperson announced in open court

the jury's sentencing verdict as to each charge.       The trial

judge subsequently asked the jury, "Is this everyone's verdict?

Let the record show all have responded in the affirmative."

        Thereafter, Turner requested that each juror be polled

individually to determine if all ten verdicts were his or her

own.        The trial court charged the jury:

                COURT: Ladies and gentlemen, again Mr.
                Harper is going to call your name. If these
                are your verdicts collectively, Commonwealth
                versus Keil [sic] Turner, please respond
                yes. If they are not your verdicts, any one
                or more of them are not your verdicts,
                please respond no. Thank you.



        3
       Turner was acquitted of the malicious wounding charge in
relation to Amy Steward. Duenas was acquitted of the malicious
wounding charge in relation to Neil Flick.

                                    - 7 -
The transcript indicates that only eleven of the jurors

responded.   However, following the individual polling of the

jury, the court stated, "The record can show that each of the

jurors have responded that they are his or her verdicts in

total."   Furthermore, prior to and following the individual

polling of the jurors, the court noted for the record that each

of the jurors confirmed that the sentencing verdict was theirs.

At no point during the polling of the jury did any juror dissent

to the announced verdicts.

     As a result of the apparent non-response by a juror,

Melissa Putnam, to the polling, Turner's attorney filed a

post-trial motion requesting that a mistrial be declared.    He

argued, among other things, that the jury polling did not

reflect a unanimous verdict as to punishment.   Because Turner

failed to make a timely objection at the time the individual

polling occurred, the motion was denied.

     On April 6, 2001, a hearing was held regarding the

individual polling.   Juror Putnam testified that she recalled

being polled as to guilt and punishment.   She stated there was

no point at which the other eleven jurors' names were called and

hers was not.   The court reporter was also called to testify.

She stated that she listened to the tape recording of the

sentencing proceedings and was unable to detect Ms. Putnum's

voice.    The court denied the motion for a mistrial, holding that



                                - 8 -
it had been incumbent upon the counsel requesting the polling to

inquire as to the twelfth person.

                   II.   JOINDER OF CODEFENDANTS

     We first consider whether the trial court erred in denying

Turner's motion to sever his trial from the trials of his

codefendants.   Code § 19.2-262.1 provides:

          On motion of the Commonwealth, for good
          cause shown, the court shall 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 justice requires.

To prevail on appeal, Turner must demonstrate that he suffered

actual prejudice as a result of the joint trial.

          "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) [(citations
          omitted)]. 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, 113 S. Ct. 933, 938, 122
          L.Ed.2d 317 (1993)).



                               - 9 -
               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, 506 U.S. at 541, 113
          S. Ct. at 939); 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.

Adkins v. Commonwealth, 24 Va. App. 159, 162-63, 480 S.E.2d 777,

779 (1997).

     Turner contends that joinder was improper because he and

his codefendants had markedly different degrees of culpability.

The different degrees of culpability, he asserts, created

confusion and prejudice because it reduced the confidence that

should be part of a jury verdict.   Despite the varying degrees

of culpability claimed, Turner fails to show that he suffered

actual prejudice during the course of his trial.

     No evidence was admitted in the other cases that was not

admissible in Turner's case.   In addition, the jury displayed no

confusion in determining the individual liability of the

codefendants.   The jury acquitted Turner of the malicious

                               - 10 -
wounding of Amy Steward and acquitted Duenas of the malicious

wounding of Neil Flick.   That Turner and Duenas were acquitted

on different malicious wounding charges indicates that the jury

understood the varying degrees of culpability.     The record fails

to show that Turner's trial rights were affected or that the

jury process was compromised.    Accordingly, the trial court did

not err by denying Turner's motion to sever his trial from the

trials of his codefendants.

                   III.   MOTION FOR CONTINUANCE

     We next consider whether the trial court erred by denying

Turner's motion for a continuance to secure the appearance of a

witness.   "Whether to grant or deny a continuance of a trial is

a matter that lies within the sound discretion of a trial court,

and its ruling will not be reversed on appeal unless it is

plainly wrong.   A court must exercise this discretion in a

manner that does not prejudice a defendant's right to a fair and

impartial trial or deprive him of his constitutional right 'to

call for evidence in his favor.'"    Cardwell v. Commonwealth, 248

Va. 501, 508-09, 450 S.E.2d 146, 151 (1994).   "The burden is on

the party seeking the continuance to show that it is likely that

the witness would be present at a later date, and would testify

in the manner indicated in the proffer."    Chichester v.

Commonwealth, 248 Va. 311, 322, 448 S.E.2d 638, 646 (1994).     A

court need not continue a case indefinitely when there is no



                                - 11 -
assurance that a witness can be located.      Bryant v.

Commonwealth, 248 Va. 179, 182-83, 445 S.E.2d 667, 669 (1994).

     Turner argues that the trial court abused its discretion in

denying his motion for a continuance in order to secure the

presence of his witness, Aaron Primes, because Primes would have

impeached Cook's testimony that Turner was in the house at the

time of the shooting.    We disagree.

     Several months prior to trial Turner properly obtained a

subpoena and assured personal service on Primes.     The day of

trial, Turner's attorney spoke to Primes who assured him that he

would appear in court.     Primes failed to appear, however.   He

also failed to appear in the general district court in the same

jurisdiction for his own criminal trial.     Turner subsequently

proffered to the trial court the statements to which Primes was

to testify.   Those statements were essentially the same as those

about which Irvin Majors testified.      We find that the trial

court reasonably concluded that Primes' testimony was cumulative

and that there was no assurance he would appear at a later date.

Further, Turner suffered no prejudice as a result of the denial

of his motion for a continuance, and the trial court neither

erred nor abused its discretion.

                     IV.    POLLING OF THE JURY

     We lastly consider whether the trial court erred in denying

Turner's motion to set aside the verdict, or for mistrial, as a

result of the alleged failure of the record to reflect a

                                - 12 -
unanimous verdict with regard to sentencing.   Rule 5A:18

provides, in relevant part:

           [n]o ruling of the trial court . . . will be
           considered as a basis for reversal unless
           the objection was stated together with the
           grounds therefor at the time of the ruling,
           except for good cause shown or to enable the
           Court of Appeals to attain the ends of
           justice.

     During the sentencing phase, Turner's attorney requested

that the jury be polled collectively after the sentence was

imposed.   Collectively, the jurors were asked whether the

sentence verdicts were theirs.   The court noted the jury's

response stating, "Let the record show all have responded in the

affirmative."   There was no dissent by any of the jurors that

the announced sentencing verdicts were not theirs.   Thereafter,

each juror was polled individually to determine if all ten

sentencing verdicts were his or her own.   Following the

individual polling, the court stated, "The record can show that

each of the jurors have responded that they are his or her

verdicts in total."   Again, there was no dissent to any of the

sentencing verdicts by any of the jurors, and no objection by

the attorneys, even though the transcript reflects that only

eleven of the jurors responded to the individual polling.

     On April 6, 2001, a hearing was held regarding the polling.

Juror Melissa Putnam testified that she recalled being polled

both as to guilt and to punishment.    Furthermore, she stated

there was no point at which the other eleven jurors' names were

                              - 13 -
called and hers was not.    Since Turner failed to object to the

individual polling of the jury at the time the poll was taken,

thus preventing the trial court from correcting any error or

determining if any individual juror opposed the sentencing

verdicts, he cannot raise the issue for the first time on

appeal.   See Rule 5A:18.   Moreover, the record reflects no

reason to invoke the good cause or ends of justice exceptions to

Rule 5A:18.

     The judgment of the trial court is affirmed.

                                                         Affirmed.




                               - 14 -
