                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia


JERMAINE ALFONZO HARRIS
                                              MEMORANDUM OPINION * BY
v.   Record No. 2155-00-2                      JUDGE ROBERT P. FRANK
                                                  AUGUST 21, 2001
COMMONWEALTH OF VIRGINIA


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

          Reginald M. Barley for appellant.

          John H. McLees, Jr., Senior Assistant
          Attorney General (Mark L. Earley, Attorney
          General, on brief), for appellee.


     Jermaine Alfonzo Harris (appellant) appeals his sentence

after being convicted of second-degree murder.       On appeal, he

contends the trial court erred in:    1) overruling his motion for

separate sentencing and 2) instructing the jury on the theory of

concert of action during the sentencing proceeding.

                            I.   BACKGROUND

     On April 29, 1998, Vincent Hall (victim) was beating Mabel

Smith, Shateema Smith's mother, outside the Ruffin Road

apartments.   Shateema and Darlene Kittrell arrived and saw the

victim punching Mabel and asking her for his money.        After

Shateema approached and tried to push the victim off of her

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
mother, the victim stood up and tried to hit Shateema.   Travis

Kittrell, Darlene's son, then punched the victim.   A crowd of

young men, including appellant and his codefendants, Isham Davis

and Robert Davis, surrounded the victim and knocked him to the

ground.

     Darlene Kittrell testified she took her son, Travis, into

her house and then returned to the scene of the fight.   She

testified she saw the victim on the ground while the crowd

kicked and stomped him.   She testified that Isham Davis and

Robert Davis stomped the victim in the head.   Although appellant

kicked the victim, she testified he only kicked the victim in

the legs, not in the head.

     Darlene Kittrell stated that the kicking and stomping

continued for twenty to twenty-five minutes.   She testified the

crowd only stopped when the police arrived.    The victim died at

the scene.

     Travis Kittrell testified Robert Davis went into the house

with him and did not leave the house until after the fight

ended.    He stated he did not see Robert Davis kick or stomp the

victim.   Travis also testified that he did not see Isham Davis

stomp or kick the victim.    He stated that Isham Davis was

standing on a hill that was approximately ten feet away from the

victim.

     The jury convicted appellant of second-degree murder and

sentenced him to twenty years in prison.   The trial court

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imposed the twenty-year sentence.   On January 11, 2000, this

Court, by memorandum opinion, reversed the trial court's

sentencing order and remanded the case for re-sentencing.     See

Harris v. Commonwealth, No. 2568-98-2 (Va. Ct. App. Jan. 11,

2000).

     At re-sentencing, 1 appellant moved to sever sentencing from

his codefendants.   The trial court overruled that motion and

ordered that all three codefendants be sentenced together.

     On June 29, 2000, a jury was empanelled.   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 called the victim's mother to testify as to

the impact of the crime.   In mitigation, the three codefendants

introduced other portions of the trial testimony concerning how

the fight began, together with the testimony of Robert Davis'

mother.




     1
       The version of Code § 19.2-295.1 in effect at the time
stated, in part:

               If the sentence on appeal is
          subsequently set aside or found invalid
          solely due to an error in the sentencing
          proceeding, the court shall impanel a
          different jury to ascertain punishment,
          unless the defendant, the attorney for the
          Commonwealth and the court agree, in the
          manner provided in § 19.2-257, that the
          court shall fix punishment.


                               - 3 -
     At the conclusion of evidence, the trial court, sua sponte,

and over appellant's objection, orally instructed the jury on

the theory of concert of action.    He stated:

          If there is a 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.

     After deliberation, the jury then returned identical

twelve-year sentences for appellant and his two codefendants.

                           II.   ANALYSIS

     Appellant contends the trial court erred in instructing the

jury on the theory of concert of action.    He argues that because

he and his codefendants received identical sentences, the jury

must have felt compelled by the court's instruction to give each

defendant the same punishment and did not consider his

mitigating evidence.   Appellant argues that the trial court's

admonition to the jury that they must sentence each codefendant

individually did not remedy the prejudice caused by the

instruction on concert of action.

     In the case of appellant's codefendants, Davis v.

Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (July 31, 2001),


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this Court found that the trial court did not err in giving such

an instruction.   We are bound by that ruling.   See Commonwealth

v. Burns, 240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990) (a

panel decision of the Court of Appeals is established precedent

and is binding under the rules of stare decisis).    The trial

court did not err in giving the concert of action instruction.

     Appellant further contends the trial court erred in denying

his motion for a separate re-sentencing hearing.    He argues that

sentencing at the same proceeding as his codefendants prejudiced

him, violating his right to "individual sentencing."

     Continuing, appellant contends that with a separate

sentencing, the jury would have been permitted to view

appellant's background and criminal history in making an

individualized determination of sentence.   We find nothing in

the record to indicate that the jury did not "individualize"

appellant's sentencing.   The jury heard testimony of the acts of

each of the three codefendants.   The jury could determine the

levels of culpability.    The transcript reveals that appellant's

counsel argued to the jury that appellant's involvement was

minimal and that the other participants caused the victim's

death.

     Appellant correctly states that each defendant is entitled

to individualized sentencing.   As the Supreme Court has said,

"We begin by recognizing that the concept of individualized

sentencing in criminal cases generally, although not

                                - 5 -
constitutionally required, has long been accepted in this

country."   Lockett v. Ohio, 438 U.S. 586, 602 (1978).

Appellant, however, incorrectly equates "individualized

sentencing" with a sentencing hearing separate from his

codefendants.

     Assuming, without deciding, that Code § 19.2-262.1 also

applies to a determination of severing the sentencing proceeding

after a joint trial during the guilt phase, appellant has shown

no prejudice.   As previously stated, appellant offered evidence

of his role in the offense and other relevant evidence.    Indeed,

appellant argued that his role in the murder was minimal.   We

find the trial court did not abuse its discretion in denying the

motion to sever.

     The fact that each codefendant received the same sentence

does not establish that the jury failed to consider each

codefendant individually.   As this Court recently stated in

Davis, ___ Va. App. at ___, ___ S.E.2d at ___, "[t]he

punishments imposed bear a rational relationship to the

circumstances of the crime and the individualized histories of

each defendant." 2

     For these reasons, we find no error in the trial court's

instruction to the jury on the theory of concert of action and


     2
       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.

                               - 6 -
denial of appellant's motion to sever at re-sentencing.

Therefore, we affirm appellant's sentence.

                                                          Affirmed.




                              - 7 -
Benton, J., concurring.

     For the reasons stated in the majority opinion, I agree

that the record does not establish that the trial judge erred in

refusing Jermaine Harris' request for a punishment hearing

separate from the hearing of the codefendants.

     I believe, however, that the trial judge erred in

instructing the jury concerning the "concert of action"

principle.   This was a punishment hearing only.   The principle

of concert of action is designed to be used to establish

criminal liability upon a legal theory of transfer of intent.

See Riddick v. Commonwealth, 226 Va. 244, 248, 308 S.E.2d 117,

119 (1983) (holding that "[d]ue to the concert of action,

defendant is deemed to have shared [the codefendant's] intent").

See also Epps v. Commonwealth, 216 Va. 150, 156, 216 S.E.2d 64,

69 (1975).   Although the consequence of acting in concert with

the principal offender is that a defendant may be convicted as a

principal in the second degree and is subject to the same

punishment as if the defendant was the principal in the first

degree, the punishment proceeding under Code § 19.2-295.1 is an

inappropriate occasion to instruct the jury on the liability

issue of concert of action.   Once the issue of guilt has been

determined by the jury, any instruction to the jury at the

punishment proceeding on concert of action is unduly prejudicial

to the defendant.



                               - 8 -
     Sentencing of a defendant in Virginia is to be based upon

"individualized consideration of the defendant and the crime

committed."   Roach v. Commonwealth, 251 Va. 324, 347, 468 S.E.2d

98, 111 (1996).   See also Shifflett v. Commonwealth, 257 Va. 34,

42-44, 510 S.E.2d 232, 236 (1999).       The bifurcated procedure

under Code § 19.2-295.1 "assures the jury access to 'information

specific only to sentencing, apart from considerations of guilt

or innocence.'"   Daye v. Commonwealth, 21 Va. App. 688, 691, 467

S.E.2d 287, 288 (1996) (citation omitted).      The record

establishes a reasonable likelihood that the jury relied upon

the concert of action instruction to the prejudice of Harris'

right "to have his . . . punishment determined by the evidence

against him and not by what sentence has been imposed . . .

against . . . a co-defendant."     Walker v. Commonwealth, 212 Va.

289, 291, 183 S.E.2d 739, 741 (1971).

     Because of limitations imposed by Commonwealth v. Burns,

240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990), however, I

concur in the opinion's holding that we are bound by the prior

panel's decision, in the case of Harris' codefendants, see Davis

v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (July 31,

2001), that the trial judge did not err in giving a concert of

action instruction at the re-sentencing proceeding which only

involved the issue of punishment.




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