                   COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia


ROBERT SYLVESTER DAVIS, JR.

v.   Record No. 1716-00-2

COMMONWEALTH OF VIRGINIA                  OPINION BY
                                   JUDGE ROSEMARIE ANNUNZIATA
ISHAM D. DAVIS                           JULY 31, 2001

v.   Record No. 1813-00-2

COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          (Cary B. Brown; Bowen, Bryant, Champlin &
          Carr, on brief), for appellant Robert
          Sylvester Davis, Jr. Appellant submitting
          on brief.

          William T. Linka (Boatwright & Linka, on
          brief), for appellant Isham D. Davis.

          (Mark L. Earley, Attorney General; John H.
          McLees, Jr., Senior Assistant Attorney
          General, on briefs), for appellee. Appellee
          submitting on briefs.


     The appellants, Robert Sylvester Davis, Jr. and Isham D.

Davis, appeal the sentences imposed by a jury impaneled for the

purpose of resentencing them upon their conviction for second

degree murder, in violation of Code § 18.2-32.    The two

appellants and a third codefendant, Jermaine Harris, were

originally tried jointly and appealed their respective
sentences.    Upon remand by this Court, the jury resentenced all

three codefendants to twelve years each.    The appellants allege

that during the resentencing hearing the court erred in

instructing the jury on a concert of action theory.    For the

following reasons, we affirm.

                             BACKGROUND

     The appellants, along with another codefendant, Jermaine

Harris, were convicted of second-degree murder in a joint jury

trial for the beating death of Vincent Hall.    The jury in the

original sentencing proceeding fixed punishment at twenty years

in prison for each of the defendants.     All three appealed,

alleging, inter alia, that the prosecutor had made improper and

prejudicial comments to the jury during the sentencing

proceeding.   We agreed, vacated the sentences, and remanded to

the circuit court for a new sentencing proceeding.

     On remand in the circuit court, relevant portions of the

testimony detailing the crime were read to the jury.    The

Commonwealth also introduced evidence regarding each defendant's

criminal history, and the Commonwealth called the victim's

mother to testify as to the impact of the crime.    In mitigation,

the three defendants introduced other portions of the trial

testimony concerning how the fight began, together with the

testimony of Robert Davis's mother.

     At the conclusion of the evidence, the trial court, sua

sponte, ruled that it would give the jury the same concert of

                                - 2 -
action instruction that had been given to the previous jury

during the guilt phase of the trial.     Each of the defendants

objected, claiming the instruction violated his right to be

sentenced individually.   The trial court overruled the objection

and instructed the jury, inter alia, that:

            If there is concert of action with the
            resulting crime one of its incidental
            probable consequences, then whether such
            crime was originally contemplated or not,
            all who participate in any way in bringing
            it about are bound by the acts of every
            other person connected with the consummation
            of such resulting crime. Now, that does not
            mean that you have to give all three of the
            defendants the same punishment. That just
            says that they're all bound by the acts of
            the other. You decide the punishment for
            each individual defendant. Do you
            understand that? All right. You have heard
            the evidence. These are the instructions.
            I am not sure whether you have any questions
            or not, but if you do I will try to answer
            them if I can. All right. Seeing no
            questions from the jury, you may summarize
            your case.

The jury fixed each defendant's punishment at twelve years in

prison, and the court imposed judgment in accordance with those

verdicts.   The appellants now appeal separately from the

judgment of the court.

                              ANALYSIS

     The appellants contend the court's issuance of a concert of

action instruction improperly influenced the jury's deliberation

and prevented the appellants from being sentenced as

individuals.   We disagree.


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     A joint trial for the purpose of resentencing each of the

defendants was proper under the circumstances of the case.    Code

§ 19.2-262.1 provides, "[o]n 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."   See also Rule 3A:10(a).

     The purpose and function of jury instructions are to confer

upon the trier of fact the legal basis for which a defendant may

be found guilty and for which he or she could be punished.    The

Virginia Supreme Court in Spradlin v. Commonwealth, 195 Va. 523,

528, 79 S.E.2d 443, 445 (1954), established the concert of

action theory of guilt and explicitly related it to an

accomplice theory of punishment.   The Court found that, based on

the defendants' concerted action, they had aided and abetted in

the commission of the crime and that each was "liable to the

same punishment as if he had actually committed the offense,"

each being an "accessory . . . [or] principal in the second

degree, but . . . tried and punished as if a principal in the

first degree."   Id. at 527, 79 S.E.2d at 445.   Subsequently, in

Riddick v. Commonwealth, 226 Va. 244, 308 S.E.2d 117 (1983), the

Supreme Court reiterated its holding:

          [T]he evidence establishes that Riddick and
          Butts were acting in concert. . . . Due to
          the concert of action, defendant is deemed

                               - 4 -
            to have shared Butts' intent. Thus, even if
            Butts killed one victim, defendant was
            criminally responsible for the acts of the
            gunman, Butts, as a principal in the second
            degree. And every principal in the second
            degree may be indicted, tried, convicted,
            and punished, with certain exceptions not
            applicable here, as if a principal in the
            first degree.

Id. at 248, 308 S.E.3d at 119 (citing Code § 18.2-18, which

provides:   "every principal in the second degree and every

accessory before the fact may be indicted, tried, convicted and

punished in all respects as if a principal in the first

degree . . ."); see also Charlton v. Commonwealth, 32 Va. App.

47, 526 S.E.2d 289 (2000).    In short, the Supreme Court treats

concert of action as a species of accomplice liability, carrying

with it the principle that the punishment imposed on each

accomplice may be the same.

     Upon remand for resentencing, the nature and circumstances

of the crime committed by the appellants were properly before

the jury.   Watkins v. Commonwealth, 229 Va. 469, 479-80, 331

S.E.2d 422, 431 (1985) (new jury impaneled for resentencing

would have to be informed of nature and circumstances of

offense).   Integral to the circumstances underlying this case

was each defendant's action in concert with others in committing

the offense, which made each defendant equally culpable for the

acts of the others, and answerable for the consequences.

Accordingly, the court was required to give a concert of action

instruction to the jury, advising them that each participant in

                                - 5 -
the crime may be held accountable for the actions of the other

participants.   Spradlin, 195 Va. at 528, 79 S.E.2d at 445 ("If

there is concert of action with the resulting crime one of its

incidental probable consequences, then whether such crime was

originally contemplated or not, all who participate in any way

in bringing it about are equally answerable and bound by the

acts of every other person connected with the consummation of

such resulting crime."); see also Westry v. Commonwealth, 206

Va. 508, 514, 144 S.E.2d 427, 431 (1965); Boggs v. Commonwealth,

153 Va. 828, 836-37, 149 S.E. 445, 447 (1929).

     In this case, the jury instruction properly explained the

legal basis for imposing punishment.   It did not instruct the

jury on the specific penalty to impose.   The court instructed

the jury that they did not have to give each defendant the same

sentence and were, in fact, required to punish each defendant

individually.   Furthermore, individualized evidence regarding

the appropriate penalty was admitted, including each defendant's

role in the crime and their respective criminal histories. 1

     1
       Isham Davis had been convicted twice of violating
probation. Robert Davis had been convicted of unauthorized use of
an automobile. Jermaine Harris had been convicted of two
assaults, distribution of cocaine, and a violation of probation.
The testimony read to the jury showed that Vincent Hall, the
victim, was attacked by a group of people, which included the
three defendants, following Hall's altercation with a woman.
Hall was thrown to the ground and the group continued to "kick[]
and stomp[]" Hall for a period of twenty to twenty-five minutes,
while Hall lay on the ground bleeding and "moaning." Despite the
pleas of witnesses to the attack, the group did not stop beating
Hall until the police arrived. The evidence showed that Isham
and Robert Davis "kicked and stomped" Hall's head during the
attack, while codefendant Jermaine Harris kicked Hall's legs.

                               - 6 -
     Contrary to appellants' contention, the fact that each

defendant received the same sentence does not compel a finding

that the jury disregarded the court's instruction that each

defendant be considered individually for purposes of punishment

and that the jury failed to sentence each defendant

individually.     See LeVasseur v. Commonwealth, 225 Va. 564, 589,

304 S.E.2d 644, 657 (1983) (it is presumed that jury followed

court's instruction).    The punishments imposed bear a rational

relationship to the circumstances of the crime and the

individual histories of each defendant.

     Finally, we reject appellants' argument that because the

Commonwealth cannot introduce evidence of a sentence received by

one codefendant in the separate trial of another codefendant,

the court erred in instructing the jury on a concert of action

theory at appellants' joint sentencing hearing.     See Ward v.

Commonwealth, 205 Va. 564, 573, 138 S.E.2d 293, 300 (1964);

Brown v. Commonwealth, 3 Va. App. 101, 103, 348 S.E.2d 408,

409-10 (1986); Walker v. Commonwealth, 212 Va. 289, 291, 183

S.E.2d 739, 741 (1971) ("[A] defendant has a right to have his

guilt or innocence, and punishment, determined by the evidence

against him and not by what sentence has been imposed in another

criminal prosecution against an accomplice, a co-defendant or

anyone else.").    The infirmity sought to be avoided in the line

of cases cited by appellants is the imposition of a sentence by



                                 - 7 -
rote application of a prior sentence and "in the abstract,"

viz., without evidence relevant to each of the sentencing

factors, including the defendant's criminal history, the

particular role the defendant played in the commission of the

crime, and evidence of any mitigating or aggravating

circumstances attending the crime uniquely associated with the

defendant.   In this case, a single jury had before it all the

evidence relevant to its determination of an appropriate

sentence for each of the defendants.   We find that the procedure

followed is fully consistent with the principles articulated in

Ward and its progeny.

     Because we find no error in the instruction given by the

court, we affirm.

                                                        Affirmed.




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