                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


ALLEN LAMONT HARRIS
                                                 OPINION BY
v.   Record No. 1933-99-2                 JUDGE ROBERT J. HUMPHREYS
                                               AUGUST 29, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

          (Derek E. Leake; Taylor, Taylor & Taylor, on
          brief), for appellant. Appellant submitting
          on brief.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Allen Lamont Harris appeals his convictions in a jury trial

for murder in the second degree and grand larceny.     He contends

the trial court erred (1) in instructing the jury following a

question by a juror regarding the failure of the parties to call

a particular individual as a witness, and (2) failing to impanel

a new jury for sentencing purposes when the jury recommended a

sentence greater than the statutory maximum which existed on the

date of the offense.   We find no error and for the reasons that

follow, affirm his convictions.

                            I.   Background

     On July 31, 1992, Jackson Burrell, Jr. was found dead in

his home by his father.     Burrell had been stabbed seven times.
Except for his socks, Burrell was unclothed.   An unwrapped

condom was found in the hallway near the body.    There was no

sign of forced entry.

     Until just prior to his death, Burrell lived with Delon

Moore.    Moore did not reside with Burrell at the time of his

death, and Burrell had expressed to members of his family that

he was afraid of Moore.   On the night before he died, Burrell

told his mother to make sure his fire insurance was paid up

because "they" might burn his house down.

     The appellant ("Harris") was acquainted with Burrell and

claimed that Burrell owed him money.    Barbara Richardson

testified that she was a former girlfriend of Harris and that

Harris told her, a few days after Burrell's murder, that he had

gone to see Burrell to collect the debt and that Burrell had

"come at him" with a knife so Harris took the knife away and

stabbed Burrell.   Harris also told Richardson that after

stabbing Burrell, he took Burrell's car and parked it on another

street after taking out the radio and battery and disposing of

the keys.

     Burrell's Pontiac Grand Am was later recovered by the

police.   A fingerprint belonging to Moore was found in the car.

No fingerprints belonging to Harris were found.   In addition,

swabs containing blood taken from Burrell's bathtub were

analyzed through DNA testing and the DNA in the blood from the



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bathtub was determined to be consistent with a mixture of the

DNA of Harris and Burrell.

     Harris was tried by a jury on May 25, 1999.    Moore was not

called as a witness by either party.

     Following jury instructions and closing arguments of

counsel, a juror raised his hand and the court took his question

in a sidebar conference.    The juror asked why Delon Moore was

not called as a witness in the case.    After taking the question,

the court instructed the juror to return to the jury box and the

sidebar conference continued with counsel.   The prosecutor

suggested that the question could not be answered because it

went beyond the evidence.    Counsel for Harris responded by

saying, "[W]e can't explain the question because it goes beyond

the scope of the witnesses presented.   I think that would be

more accurate."

     The court then instructed the jury as follows:

          Ladies and gentlemen of the jury, one of the
          members of your jury has a question in
          regards [sic] to a matter that was not
          presented to you. As you will see in your
          instructions - but I will tell you now – you
          are to decide the cases based on the law and
          the evidence that you have heard in this
          courtroom as respects to evidence presented
          and the law presented to you by way of the
          instructions and to not go outside of the
          evidence or speculate or conjure [sic] as to
          why or why not something was or was not
          presented to you.

     Following this instruction, counsel for Harris requested

another sidebar conference, objected to the instruction, and

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suggested that the jury should be permitted to consider why

Delon Moore was not called as a witness.    The trial court

overruled the objection and declined to modify its instruction.

The jury convicted Harris of murder in the second degree and the

grand larceny of Burrell's car.

     During the penalty phase of the trial, the jury was

instructed, without objection by Harris, that the maximum

penalty for second degree murder was forty years in the state

penitentiary.   The jury subsequently recommended that Harris be

sentenced to forty years on the charge of murder in the second

degree and ten years on the charge of grand larceny.

     Following the preparation of a pre-sentence report, a

sentencing hearing was held on August 9, 1999.     During this

hearing, the prosecutor advised the court that when the crime

occurred in 1992, the maximum penalty prescribed by law for

second degree murder was twenty years. 1   The court then sentenced

Harris to twenty years for murder in the second degree and ten

years for grand larceny.

                   II.   Instruction of the Jury

     Harris cites Robinson v. Commonwealth, 165 Va. 876, 879,

183 S.E. 254, 256 (1935), as authority for his position that the

court's instruction was erroneous.     Harris' reliance on Robinson


     1
       Effective July 1, 1993, the General Assembly increased the
maximum penalty for murder in the second degree from twenty
years imprisonment to forty years.


                               - 4 -
is misplaced.   In Robinson, the Supreme Court of Virginia

considered whether, in a perjury trial, it was error for the

prosecutor to comment in closing argument on the failure of the

defendant to call a witness who was present in court at the

hearing when the perjury occurred and who, according to the

defendant, could have corroborated his testimony.   The Supreme

Court held this "was a circumstance to be considered by the

jury, and was the legitimate subject of comment by the

Commonwealth's Attorney."   Id. at 881, 183 S.E. at 256.

     Here, there is no suggestion by Harris that Moore, if

called as a witness by the Commonwealth, would have given

testimony contradicting the Commonwealth's case.    Indeed, in

making his objection, Harris failed to proffer what testimony

Moore would have given.

     We have an adversary system of justice and while the

Commonwealth may call to testify such witnesses as it deems

necessary and appropriate to prove its case, likewise, "[t]he

Sixth Amendment provides that 'the accused shall enjoy the right

. . . to have compulsory process for obtaining witnesses in his

favor.'   Because this right 'is an essential attribute of the

adversary system itself,' we have repeatedly stated that few

rights 'are more fundamental than that of an accused to present

witnesses in his own defense.'"   United States v. Scheffer, 523

U.S. 303, 326 (1998).   Thus, if Moore had evidence that was

helpful to the defense, Harris could have availed himself of the

                               - 5 -
court's power to produce Moore and compel him to testify,

subject only to Moore's exercise of his own constitutional

rights or recognized privilege.    Because neither Harris nor the

Commonwealth called Moore, we must consider whether the jury

should have been specifically instructed on what legal

conclusions they might draw from the failure of either party to

produce a witness who might conceivably have been called by

either or both of the parties.

     In Russell v. Commonwealth, 216 Va. 833, 223 S.E.2d 877

(1976), the Supreme Court of Virginia held:

          [I]t is one thing for this court to employ a
          judicial guideline in determining the
          sufficiency of evidence, or to say that a
          matter may be the legitimate subject of
          comment by counsel for one party or another,
          or to indicate that a circumstance may be
          considered by the trier of fact; it is quite
          another thing, however, for a trial court to
          instruct a jury that an adverse presumption
          arises from the failure of one or the other
          of the parties to a criminal proceeding to
          call a particular witness.

Id. at 836, 223 S.E.2d at 879.

     In permitting juries to determine the facts, we expect and

require them to limit their fact finding exercise to the

evidence presented and any reasonable inferences they care to

draw from that evidence.   The rationale behind this requirement

is grounded in the presumption of innocence and ensures that the

burden of proof remains with the prosecution.    See e.g., Hayden

v. Commonwealth, 203 Va. 398, 124 S.E.2d 13 (1962), and Campbell


                                 - 6 -
v. Commonwealth, 162 Va. 818, 174 S.E. 856 (1934).     We find that

the trial court's instruction to the jury in response to the

juror's question was consistent with this principle and was,

therefore, not erroneous.

                         III.   Sentencing

     Harris acknowledges that he made no objection to the jury

instruction relating to the maximum sentence the jury could

recommend for second-degree murder.     Unless we invoke the "ends

of justice" exception to Rule 5A:18, his assignment of error is

procedurally barred.   See Clark v. Commonwealth, 30 Va. App.

406, 409-10, 517 S.E.2d 260, 261 (1999).     Because our holding in

Dargan v. Commonwealth, 27 Va. App. 495, 500 S.E.2d 228 (1998),

squarely resolves this identical issue, we decline to consider

this assignment of error under the "ends of justice" exception

to Rule 5A:18. 2

                                                           Affirmed.



     2
       In Dargan, a plurality of this Court held that "[a] trial
court may correct a void or unlawful sentence at any time
. . . . [As a consequence,] [a] court may impose a valid
sentence in substitution for one that is void . . . [w]here the
sentence imposed is in excess of that prescribed by law, that
part of the sentence which is excessive is invalid. A sentence
in excess of one prescribed by law is not void ab initio because
of the excess, but is good insofar as the power of the court
extends, and is invalid only as to the excess." Dargan, 27 Va.
App. at 497-98, 500 S.E.2d at 229 (citations omitted). In
addition, here as in Dargan, the jury recommended the maximum
sentence available in the instruction and the trial court
reduced it to the maximum sentence allowable by law. See id. at
499-500, 500 S.E.2d at 230 (Elder, J. concurring).


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