                    COURT OF APPEALS OF VIRGINIA


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


ALFONZIA ARMSTEAD
                                           MEMORANDUM OPINION * BY
v.   Record No. 1788-00-4               JUDGE JEAN HARRISON CLEMENTS
                                                MAY 29, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Jane Marum Roush, Judge

          Michael F. Devine (Devine & Connell, P.L.C.,
          on brief), for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Appellant Alfonzia Armstead was convicted in a jury trial of

statutory burglary in violation of Code § 18.2-89, two counts of

abduction in violation of Code § 18.2-47, robbery in violation of

Code § 18.2-58, and attempted robbery in violation of Code

§§ 18.2-58 and 18.2-26.1    On appeal, he contends the trial court

erred (1) in denying his attorney's motions for a mistrial and for

leave to withdraw as counsel and (2) in instructing the jury that

it could find him guilty of burglary if he possessed an intent to


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Armstead was found not guilty of rape in violation of Code
§ 18.2-61, use of a firearm in the commission of robbery in
violation of Code § 18.2-53.1, and use of a firearm in the
commission of abduction in violation of Code § 18.2-53.1.
"commit a felony or any larceny."     Finding no error, we affirm

appellant's convictions.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.

         A.   MOTIONS FOR A MISTRIAL AND TO WITHDRAW AS COUNSEL

     On the afternoon of the first day of trial, the Commonwealth

unexpectedly called Brian Brown as a witness. 2    Brown testified on

direct examination that on the evening before trial he and

Armstead had a conversation in the jail in which Armstead asked

Brown to kill the victim, Mary Mattingly, or at least kidnap or

detain her until the trial was over.     Brown also testified about

his extensive criminal record.

     Shortly after cross-examination began, Armstead's

court-appointed public defender informed the trial court that

there might be a conflict of interest if Brown was represented by

the Public Defender's Office on his pending embezzlement charge.

Following inquiry by counsel and the trial court, it was

determined, based on Brown's testimony, that no attorney had been

appointed for Brown, and cross-examination continued.



     2
       Brown, who had been released from jail on bond the night
before, came to court voluntarily and, without prior notice to
the Commonwealth, offered to testify.


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     Armstead's attorney thoroughly questioned Brown about his

allegations and his criminal record.    Armstead's counsel also

questioned Brown about the lie he told counsel during a brief

out-of-court discussion earlier that day and about Brown having

given police a false name upon one or more of his earlier arrests.

Brown admitted having lied to Armstead's attorney when they met

earlier about how long he had known Armstead and acknowledged that

he had given police a false name one time.   At the conclusion of

Brown's testimony, the trial judge inquired, "Is he subject to

recall?"    Both parties responded that he was not, and Brown was

released as a witness, without objection.

     On the morning of the second day of trial, Armstead's

attorney moved for a mistrial and for leave to withdraw as

counsel, asserting there was a conflict of interest because he had

discovered that another attorney in the Public Defender's Office

was representing Brown on his pending embezzlement charge and that

other attorneys in the Public Defender's Office had represented

Brown on prior charges.   Armstead refused to waive the asserted

conflict.    The trial court denied the motions nonetheless.

     Armstead argues on appeal that the trial court erred in

denying the motions for a mistrial and to withdraw as counsel

because an actual conflict of interest existed in that Brown's

files in the Public Defender's Office were replete with

information that could have been used at trial to effectively


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impeach Brown's credibility.   Armstead's trial counsel, however,

was precluded by his ethical obligations, Armstead's argument

continues, from using this information to cross-examine Brown at

trial and from obtaining Brown's reappearance to conduct a more

thorough examination.   Therefore, the independent judgment of

Armstead's trial counsel in representing Armstead was, according

to Armstead, adversely affected by the Public Defender's Office's

representation of Brown.

     "On appeal the denial of a motion for a mistrial will not be

overruled unless there exists a manifest probability that the

denial of a mistrial was prejudicial."   Harward v. Commonwealth, 5

Va. App. 468, 478, 364 S.E.2d 511, 516 (1988).   Whether an

indigent defendant's court-appointed attorney should be permitted

to withdraw is a matter that lies within the sound discretion of

the trial court, and its ruling will not be reversed on appeal

unless it is plainly wrong.    Payne v. Commonwealth, 233 Va. 460,

473, 357 S.E.2d 500, 508 (1987).

     The Sixth Amendment to the United States Constitution

guarantees a defendant in a criminal trial the right to effective

assistance of counsel, which includes the right to representation

that is free from conflicts of interest.   See Cuyler v. Sullivan,

446 U.S. 335, 345-50 (1980).   "An actual conflict of interest

exists when the attorney's interests and the defendant's interests

'diverge with respect to a material factual or legal issue or to a


                                - 4 -
course of action'" or "where counsel has responsibilities to other

clients or personal concerns that are actively in opposition to

the best interests of the defendant."   Moore v. Hinkle, 259 Va.

479, 487-89, 527 S.E.2d 419, 423-24 (2000) (quoting Cuyler, 446

U.S. at 356 n.3).   "[I]f the defendant shows that his counsel

actively represented actual conflicting interests that adversely

affected his counsel's performance, prejudice is presumed."

Carter v. Commonwealth, 11 Va. App. 569, 573, 400 S.E.2d 540, 543

(1991).   "The burden of establishing an alleged conflict of

interest between an attorney and his client is upon the person who

asserts such a conflict."   Turner v. Commonwealth, 259 Va. 816,

819, 528 S.E.2d 112, 114 (2000).

     In Lux v. Commonwealth, 24 Va. App. 561, 574-75, 484 S.E.2d

145, 151-52 (1997), we declined to adopt a per se rule of

disqualification of an entire Commonwealth's Attorney's Office

when defendant's former attorney was employed by that office.

Rather, the Commonwealth was required to show that defendant's

former attorney had been "effectively screened from contact with

the Commonwealth's attorneys working on the defendant's case."

Similarly, we decline here to adopt a per se rule of

disqualification of an attorney of the Public Defender's Office

solely because other attorneys in the office have represented or

are representing a witness testifying against the defendant.




                               - 5 -
     Armstead's contention that his attorney had an actual

conflict of interest and that it adversely affected his attorney's

performance is unpersuasive.   Armstead's counsel never represented

Brown.   No members of the Public Defender's Office represented

Brown on the matters before the trial court in Armstead's case.

Armstead's attorney's cross-examination of Brown was completed and

Brown was released as a witness before Armstead's attorney

discovered the alleged conflict.   The cross-examination was

vigorous and thorough, detailing Brown's extensive criminal record

and revealing two instances of admitted lying.

     We conclude, therefore, that Armstead failed to show that his

counsel actively represented actual conflicting interests that

adversely affected his counsel's performance.    Hence, we hold that

there does not exist a manifest probability that the denial of a

mistrial was prejudicial.   We further hold that the trial court

did not abuse its discretion in ruling as it did and its rulings

were not plainly wrong.   Accordingly, the trial court did not err

in denying the subject motions for a mistrial and to withdraw as

counsel.

                  B.   JURY INSTRUCTION ON BURGLARY

     Armstead also contends the trial court erred because the

finding instruction of burglary did not specifically identify the




                                - 6 -
predicate offense of intent. 3    In support of this contention,

Armstead argued at trial that the Commonwealth was required to


     3
         The trial court gave the jury the following instruction:

                              INSTRUCTION NO. 3

                 The Court instructs the jury that the
            defendant is charged with the crime of
            burglary while armed. The Commonwealth must
            prove beyond a reasonable doubt each of the
            following elements of that crime:

                 (1) That the defendant broke and
            entered the dwelling house of another; and

                  (2)   That he did so in the nighttime;
            and

                 (3) That he did so with the intent to
            commit a felony or any larceny therein; and

                 (4) That at the time of his entry he
            was armed with a deadly weapon.

                 If you find from the evidence that the
            Commonwealth has proved beyond a reasonable
            doubt each of the above elements of the
            offense, then you shall find the defendant
            guilty [of] burglary while armed with a
            deadly weapon, but do not fix punishment
            until you receive further instructions from
            the Court.

                 If the only element which the
            Commonwealth has failed to prove beyond a
            reasonable doubt is that the defendant was
            armed with a deadly weapon at the time of
            his entry, then you shall find the defendant
            guilty of burglary, but do not fix
            punishment until you receive further
            instructions from the Court.

                 If you find that the Commonwealth has
            failed to prove beyond a reasonable doubt
            any of the other elements of the offense,

                                  - 7 -
elect one predicate offense of intent.   He concedes now, however,

that the Commonwealth was not required to choose only one offense

among the several felonies with which he was charged as the

predicate offense for intent to commit burglary.    Rather, the

instruction given by the trial court, Armstead now argues for the

first time, should have specifically identified each charged

felony that might have constituted the predicate intent offense.

Armstead also argues for the first time on appeal that the trial

court gave no instruction distinguishing a felony from lesser

offenses.

     "The Court of Appeals will not consider an argument on appeal

which was not presented to the trial court."   Ohree v.

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998);

see also Rule 5A:18.   The purpose of this rule is to ensure that

the trial court and opposing party are given the opportunity to

intelligently address, examine, and resolve issues in the trial

court, thus avoiding unnecessary appeals.   See Lee v. Lee, 12 Va.

App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc); Kaufman v.

Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991).

     Here, Armstead did not raise either of his present arguments

in the trial court.    His arguments are therefore procedurally

barred on appeal by Rule 5A:18.   Furthermore, our review of the


            then you shall find the defendant not
            guilty.


                                - 8 -
record in this case does not reveal any reason to invoke the "good

cause" or "ends of justice" exceptions to Rule 5A:18.

     For these reasons, we affirm appellant's convictions.

                                                        Affirmed.




                              - 9 -
