                     COURT OF APPEALS OF VIRGINIA


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


DARRYL LEON HUNTER
                                              OPINION BY
v.        Record No. 1154-95-1       JUDGE JERE M. H. WILLIS, JR.
                                           OCTOBER 15, 1996
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Randolph T. West, Judge
          Richard C. Kerns, for appellant.

          John H. McLees, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     On appeal from his convictions of murder, malicious maiming,

and the use of a firearm in the commission of those felonies,

Darryl Leon Hunter contends that the trial court erred by

conducting a view of the crime scene in his absence, without

advising him of his right to be present and without securing a

waiver of his right to be present.    Because the record discloses

that Hunter waived his right to be present at the viewing, we

affirm the judgment of the trial court.

     An accused on trial for a felony has the right to be present

in person during the trial.    Code § 19.2-259.     The phrase "during

the trial" means "'every stage of the trial from [the accused's]

arraignment to his sentence, when anything is to be done which

can affect his interest.'"    Jones v. Commonwealth, 227 Va. 425,

428, 317 S.E.2d 482, 483 (1984) (citation omitted).      This

definition encompasses a view of the crime scene, but the right
may be waived.    Id. at 430, 317 S.E.2d at 485.     However, the

waiver must be given knowingly and intelligently and with

sufficient awareness of its likely consequences.       Hunter v.

Commonwealth, 13 Va. App. 187, 192, 409 S.E.2d 483, 486 (1991).

     Charged with one count of murder, three counts of malicious

maiming, and four counts of using a firearm in the commission of

the predicate felonies, Hunter waived trial by jury and submitted

to a bench trial, which began March 30, 1995.      At the conclusion

of the evidence, but before argument, the following dialogue took

place:
     Defense Counsel:                   I would think the Court
                                        would want to go to the
                                        scene if the Court wishes
                                        to go to the scene, Your
                                        Honor. I think it would
                                        be important.

     The Court:                         All right, gentlemen.
                                        Approach the Bench.

     Commonwealth's Attorney:           I'd submit the matter of the
                                        view of the scene, Judge.

                   (Counsel approached the Bench.)

     The Court:                         The case is continued to
                                        Tuesday morning, 9:30.


     The court reporter did not report the bench conference.        No

statement of facts reporting the substance of that conference has

been submitted.   The orders memorializing the proceedings of

March 30, 1995 provided, in pertinent part:
     And the evidence of the defendant being concluded, the
     rebuttal evidence of the Commonwealth being heard, the
     Court continues this matter until April 4, 1995 at 9:30
     a.m. to allow the Court to view the crime scene.



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     The trial reconvened April 4, 1995 at 9:30 a.m.   The trial

judge stated:
     I have been to the scene. The Court is prepared to
     hear your brief closing arguments.


Hunter advanced no objection to the trial court's visit to the

crime scene or to any circumstance related to that visit.

Counsel proceeded with argument on the merits of the case,

following which the trial court found Hunter guilty.   The final

order of sentence was entered May 22, 1995.
     On May 25, 1995, Hunter gave notice of his appeal to this

Court.   On September 14, 1995, on motion of the Commonwealth's

Attorney and upon notice to Hunter's counsel, the trial court

entered an order nunc pro tunc March 30, 1995, enlarging upon its

previous March 30, 1995 orders and providing, in pertinent part,

as follows:
     And the evidence of the defendant being concluded, the
     rebuttal evidence of the Commonwealth being heard, the
     Court advised the defendant that the Court would view
     the crime scene and after discussion with counsel
     regarding the issue, the defendant did waive his right
     to be present at said viewing as did counsel for the
     defendant and the attorneys for the Commonwealth.


     Code § 8.01-428(B) provides:
     Clerical mistakes in all judgments or other parts of
     the record and errors therein arising from oversight or
     from an inadvertent omission may be corrected by the
     court at any time on its own initiative or upon the
     motion of any party and after such notice, as the court
     may order. During the pendency of an appeal, such
     mistakes may be corrected before the appeal is docketed
     in the appellate court, and thereafter while the appeal
     is pending such mistakes may be corrected with leave of
     the appellate court.




                               - 3 -
     Because these appeals had been docketed when the September

14, 1995 orders were entered, the Commonwealth has moved for

leave of this Court to incorporate those orders into the record.

 Hunter has objected and has moved to quash the September 14,

1995 orders, contending that because his alleged waiver of the

right to be present at the trial court's view of the crime scene

was not memorialized contemporaneously in the March 30, 1995

trial orders, any such waiver was not effectively received by the

trial court and that such a waiver cannot be received and

memorialized through the agency of an order nunc pro tunc.

     Code § 8.01-428(B) covers more than errors committed by

court clerks.    It authorizes a court to correct its own errors

and omissions.    Nelson v. Commonwealth, 12 Va. App. 835, 837, 407

S.E.2d 326, 327-28 (1991).   "An order entered nunc pro tunc

cannot create a fiction that an act not yet performed has already

occurred.   Rather, the power of the trial court to amend by nunc

pro tunc order is restricted to placing upon the record evidence

of judicial action which has already been taken, but was earlier

omitted or misstated in the record."    Holley v. City of Newport

News, 6 Va. App. 567, 568, 370 S.E.2d 320, 321 (1988) (citation

omitted).

     Hunter relies on Catlett v. Commonwealth, 198 Va. 505, 95

S.E.2d 177 (1956).   In Catlett, the trial court, in accepting a

waiver of trial by jury, failed to enter of record the

concurrence of the Commonwealth's Attorney.   Later, depending



                                - 4 -
upon the order that contained the omission as evidence of the

fact, the trial court entered an order nunc pro tunc reciting the

entry of record of the Commonwealth's Attorney's concurrence.

Holding that the earlier order was an insufficient factual

predicate for the entry of the order nunc pro tunc, the Supreme

Court said:
     In the present case there is no issue of fact as to
     whether the Commonwealth's Attorney actually concurred
     in the waiver. The only question here is whether such
     concurrence was "entered of record", and no proper
     inference can be drawn from a reading of the order to
     show that the concurrence of the Commonwealth's
     Attorney, even if had, was "entered of record".
Id. at 508, 95 S.E.2d at 179.


     The trial court in this case did not rely upon a silent

record as the predicate for the modifying assertions in the nunc

pro tunc orders.   Rather, those assertions are the trial court's

certification of matters that transpired before it.   The

modifying assertion does not reflect something that occurred

after the fact, but rather, recites events that occurred at the

time the order is made operative, matters that could and should

have been included in the contemporaneous order of proceedings,

but were omitted inadvertently.

     We hold that the trial court did not err in entering the

orders of September 14, 1995.   The Commonwealth's motion that

those orders be incorporated into the records in this case is

granted, and the Clerk will enter an order accordingly.

     The record, as modified, discloses plainly that Hunter moved



                                - 5 -
the trial court to view the crime scene and that upon

consultation with his attorney, he knowingly and voluntarily

waived his right to be present at that view.    The orders of

September 14, 1995 bespeak verities.     Nothing in the record

challenges their assertions.   The court reporter did not report

the bench conference.   No statement of facts relating to that

conference has been submitted.

     The judgment of the trial court is affirmed.

                                                Affirmed.




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