                   COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia


MARCUS DUENAS
                                                            *
                                         MEMORANDUM OPINION BY
v.   Record No. 1429-01-3                 JUDGE ROBERT P. FRANK
                                             OCTOBER 1, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                   John J. McGrath, Jr., Judge

          Michael Morchower (Christopher C. Booberg;
          Morchower, Luxton & Whaley; Thorsen & Scher,
          L.L.P., on briefs), for appellant.

          Amy L. Marshall, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Marcus Duenas (appellant) was convicted in a jury trial of

first-degree murder, in violation of Code § 18.2-32; use of a

firearm in the commission of a felony, in violation of Code

§ 18.2-53.1; malicious wounding, in violation of Code § 18.2-51;

entering a dwelling house with the intent to commit robbery, in

violation of Code § 18.2-90; two counts of robbery, in violation

of Code § 18.2-58; one count of attempted robbery, in violation

of Code §§ 18.2-26 and 18.2-58; and three counts of abduction,

in violation of Code § 18.2-47.   On appeal, he contends the

trial court erred in refusing to sever his trial from the trial


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of two codefendants, Santia Frye and Keil Turner. 1   For the

reasons stated, we affirm appellant's convictions.

     At trial, after the Commonwealth and appellant rested,

Turner testified on his own behalf.   Before that testimony, the

trial court instructed the jury, at appellant's request, that

the case against appellant was concluded and they were not to

consider any subsequent testimony as evidence against appellant.

Appellant and his attorney then left the courtroom during

Turner's testimony and declined the court's offer to permit the

defense to re-open the case and cross-examine Turner.

     In his testimony, Turner admitted going to Harrisonburg

with appellant, Cook and Larry.   Although Turner denied that he

entered the home and that he had any knowledge of a robbery, he

admitted he remained in the van while the other three men went

into the house.   Turner testified he heard shots as Larry and

Cook returned to the van.   He also said he saw appellant run

across the street and jump into the van with a ".9 mm Glock" in

his hand.   This testimony directly contradicted appellant's

alibi defense that he was in Maryland at the time of the

robbery/murder.




     1
       Andre Cook and LaLarnie Larry, while not tried at the same
time, were charged with the same offenses as appellant. Heather
Blosser faced charges of first-degree murder and attempted
robbery as an accessory before the fact.

                              - 2 -
     Appellant contends the trial court erred in not severing

his trial from the codefendants' trial, in violation of Code

§ 19.2-262.1.   See also Rule 3A:10.    Code § 19.2-262.1 provides:

          On 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. If the court finds that a joint
          trial would constitute prejudice to a
          defendant, the court shall order severance
          as to that defendant or provide such other
          relief justice requires.

     Appellant does not dispute that the Commonwealth

demonstrated "good cause" nor that he and his codefendants

participated "in contemporaneous and related acts."    He does

contend the joint trial constituted prejudice to his defense.

Therefore, appellant must demonstrate "'actual prejudice'"

resulted from the joint trial.   Goodson v. Commonwealth, 22

Va. App. 61, 71, 467 S.E.2d 848, 853 (1996) (quoting United

States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995)).

     "Actual prejudice results only when '"there is a serious

risk that a joint trial would compromise a specific trial right

of [defendant], or prevent the jury from making a reliable

judgment about guilt or innocence."'"     Adkins v. Commonwealth, 24

Va. App. 159, 163, 480 S.E.2d 777, 779 (1997) (quoting Barnes v.

Commonwealth, 22 Va. App. 406, 412, 470 S.E.2d 579, 582 (1996)

(quoting Zafiro v. United States, 560 U.S. 534, 539 (1993))).

"[P]rejudice does not exist merely because a


                              - 3 -
co-defendant has a better chance of acquittal if tried

separately," Barnes, 22 Va. App. at 412-13, 470 S.E.2d at 582,

nor does it exist because codefendants may have positions that

are hostile to one another, Adkins, 24 Va. App. at 163, 480

S.E.2d at 779.

           "'The risk of prejudice will vary with the
           facts in each case,'" and the decision to
           permit a joint trial is entrusted to the
           sound discretion of the trial court.
           Barnes, 22 Va. App. at 412, 470 S.E.2d at
           582 (quoting Zafiro, 506 U.S. at 541); see
           Code § 19.2-262.1. The court must balance
           the specter of prejudice with "the
           effectiveness of . . . measures to cure any
           such risk, such as limiting instructions."
           Barnes, 22 Va. App. at 412, 470 S.E.2d at
           582.

Id.

      Here, appellant complains of prejudice because he was denied

his right to confront and cross-examine his codefendant, Turner,

who testified after appellant rested his case. 2

      Appellant is correct in his contention that the right to

confront a witness is a significant trial right.   As the United
States Supreme Court said, "In all criminal prosecutions, state

as well as federal, the accused has a right, guaranteed by the

Sixth and Fourteenth Amendments to the United States

Constitution, 'to be confronted with the witnesses against him.'"

Lilly v. Virginia, 527 U.S. 116, 123 (1999) (quoting U.S. Const.

      2
       He also argued at oral argument that the instruction given
prior to Turner's testimony prevented any effective
cross-examination, as the jury was instructed that the testimony
was not evidence against appellant. However, this argument was
not made on brief or at trial. Additionally, as appellant
requested the instruction, any restriction on his ability to
cross-examine was of his own making. See Brown v. Commonwealth,

                              - 4 -
amend. VI).   "The central concern of the Confrontation Clause is

to ensure the reliability of the evidence against a criminal

defendant by subjecting it to rigorous testing in the context of

an adversary proceeding before the trier of fact."         Maryland v.

Craig, 497 U.S. 836, 845 (1990).        The right of cross-examination

is an essential element of "the right of an accused in a criminal

case to confront the witnesses against him."        Lee v. Illinois,

476 U.S. 530, 539 (1986).

     However, the record belies appellant's contention that he

was denied this right.       After the Commonwealth rested, appellant

put on evidence.        Appellant then rested his case.   Turner

testified in his own behalf, exonerating himself and inculpating

appellant as the gunman who shot and killed the victim.        Prior to

this testimony, the trial court, on appellant's motion,

admonished the jury not to consider the ensuing evidence in
                    3
appellant's case.        The trial court told the jury:

          Henceforth any evidence that comes forward,
          Mr. Duenas has rested and everything that's
          determined regarding Mr. Duenas ultimately
          will be made on the evidence to this point




37 Va. App. 507, 519, 559 S.E.2d 415, 421 (2002) (finding a
defendant is not allowed to approbate and reprobate).
     3
       The trial court also granted Instruction No. 41:

          In the case of Marcus Duenas, the jury will
          disregard all evidence presented by or on
          behalf of Defendant Kiel Turner after Mr.
          Duenas rested his case. The jury may
          consider rebuttal evidence presented by the
          Commonwealth, but only insofar as it seeks
          to rebut evidence presented by or on behalf
          of Mr. Duenas.

                                   - 5 -
             in time and nothing that comes hereafter
             will be affecting Mr. Duenas' case. 4

        Appellant argues Bruton v. United States, 391 U.S. 123

(1968), controls our decision.    However, this reliance is

misplaced.     Bruton, although involving a joint trial of

codefendants, addressed the admission of a codefendant's

extrajudicial confession and a limiting instruction to the jury

regarding that confession.     Id. at 124-25.   The Bruton Court

held:

             [B]ecause of the substantial risk that the
             jury, despite instructions to the contrary,
             looked to [declarant's] incriminating
             extrajudicial statements in determining
             petitioner's guilt, admission of
             [declarant's] confession in this joint trial
             violated petitioner's right of
             cross-examination secured by the
             Confrontation Clause of the Sixth Amendment.

Id. at 126.

        Here, no extrajudicial statement was introduced.    Turner

testified in court and was subject to appellant's

cross-examination, if he had chosen to do so.      See Tennessee v.

Street, 471 U.S. 409, 413-14 (1985) (Bruton "considered whether a

codefendant's confession, which was inadmissible hearsay as to

Bruton, could be admitted into evidence accompanied by a limiting

instruction"); United States v. Brooks, 957 F.2d 1138, 1146 (4th
Cir. 1992) (Bruton creates a narrow exception to the principle

that jurors are assumed to follow instructions that applies only



        4
       As the issue was not raised at trial or on brief, we do
not address whether the instructions to disregard Turner's
testimony were either necessary or appropriate.

                                - 6 -
when a nontestifying codefendant's statements are facially

incriminating).

     Although appellant had rested, the trial court indicated he

could re-open his case and cross-examine Turner.   Appellant, for

tactical reasons, chose not to exercise that right.   In fact,

during Turner's testimony, appellant chose instead to absent

himself from the courtroom.   In his brief, appellant's counsel

characterized this withdrawal as an "attempt to distance himself

from Mr. Turner's testimony."    Counsel concluded that

"cross-examination of Mr. Turner could not be effective after

[appellant] and Mr. Turner had worked co-operatively in defense

of the charges up until that point."
     Appellant explains that, during the course of the trial

prior to Turner's testimony, the codefendants cooperated at the

defense table, giving the appearance that their cases were

joined.   They made joint motions, sat at the same table, and

conferred with each other.    Then, after the Commonwealth and

appellant rested, Turner gave testimony implicating appellant,

suggesting he had abandoned their alliance.   Appellant maintains,

if the trials had been separate, no appearance of an alliance

would have been created.   Turner's testimony, appellant argues,

forced him to leave the courtroom and forego cross-examination,

to distance himself from Turner.    Essentially, appellant argues

the joint trial altered his trial tactics, particularly when

Turner testified against him.

     The Confrontation Clause requires a defendant have a

meaningful opportunity to cross-examine witnesses against him.
Lee, 476 U.S. at 539.   Appellant had that opportunity, which he

                                - 7 -
chose not to take for tactical reasons.   Defendants are often

required to make difficult choices, but difficult choices do not

violate trial rights.   See Bilokur v. Commonwealth, 221 Va. 467,

472-73, 270 S.E.2d 747, 751-52 (1980) (noting a defendant can

implicitly waive the right to confront witnesses as part of a

trial strategy).   Appellant "'point[s] to no trial right,'

distinguishable from trial tactics, 'which was compromised or any

basis for concluding the jury was prevented from making a

reliable judgment about his guilt or innocence.'"    Adkins, 24 Va.

App. at 163, 480 S.E.2d at 779 (quoting Barnes, 22 Va. App. at
143, 470 S.E.2d at 582).

     The trial court did not compromise appellant's right.

Instead, appellant chose not to exercise his right to

cross-examine, in favor of a different strategy.    We, therefore,

find the joint trial did not deprive appellant of any trial

right.

     Indeed, the logical extension of appellant's contention

would eliminate joint trials when a codefendant may testify.

Codefendants often minimize their participation in offenses,

while inculpating the other defendants.   We find no cases, nor

does appellant cite any, to support the contention that no joint

trials are permitted where one of the defendants may testify.

Indeed, our jurisprudence is to the contrary.   See Barnes, 22 Va.

App. at 409-13, 470 S.E.2d at 580-82 (affirming trial court's

denial of a motion to sever based on codefendant's witness, who

was not called as part of the Commonwealth's case and who

implicated Barnes in the shooting).



                              - 8 -
     Appellant next contends the joint trial led to such

confusion that appellant was denied his right to due process. 5

He bases this argument on a question that the jury asked

concerning the differences between Instructions 22 and 21. 6   He

contends the jury was confused by the differences in the

instructions, which were necessitated by the different charges

each defendant faced.   He argues this confusion denied him a fair

trial.

     Appellant points to no facts that indicate the jury was so

confused they could not render a "reliable judgment."   Juries

frequently ask questions.   These questions are part of the jury

system.   In reviewing the record, we find the jury's verdict was

based on the evidence presented to them.   Ample evidence supports



     5
       Appellant did not argue a "due process" violation at
trial. When the jury inquired about the difference in language
in the instructions concerning appellant and Turner, the motion
for severance was renewed on the basis that the question
indicated the jury was confused. While Rule 5A:18 prevents us
from addressing the "due process" argument, we will consider
this issue in the context of whether a joint trial prevented
"'the jury from making a reliable judgment about guilt or
innocence.'" Adkins, 24 Va. App. at 163, 480 S.E.2d at 779
(quoting Barnes, 22 Va. App. at 143, 470 S.E.2d at 582).
     6
       Instructions 21 and 22 defined malicious wounding.
Instruction 21 referred to Neil Flick as the victim, and
Instruction 22 referred to Amy Steward as the victim. The
instructions differed in the placement of the "principal in the
second degree" language. In Instruction 21, this language was
written, by hand, into the first prong of the definition. In
Instruction 22, this language was included as the fourth prong
of the definition of malicious wounding. The jury questioned
whether this difference was important. The judge told them the
difference was "just a matter of style" and "done for
convenience as opposed to any other reason." The jury had no
further questions.

                              - 9 -
their verdicts, including finding appellant guilty of

first-degree murder under the felony-murder doctrine. 7

       The testimony of Larry and Cook proved that they, together

with appellant and Turner, conspired to rob Emanual Kingsley at

the home of Anthony Bruck, where Kingsley was staying.        They

armed themselves for that purpose.         The testimony proved

appellant entered Brunk's house with the others, armed with a

.9 mm firearm.      When they discovered Kingsley was not at home,

they waited for his return.      While waiting, the men assaulted the

people who were in the home, Shana Curtis, Neil Flick, and Brunk.
       When Kingsley entered the house, he was shot with a .9 mm

gun.       Larry and Cook, after hearing gunshots, saw appellant run

from the murder scene with a gun in his hand.        Appellant, in the

van, admitted to Larry and Cook that he shot Kingsley after a

struggle.      Brunk identified appellant as one of his assailants.

       From this evidence, the jury could have concluded that

appellant was the triggerman, but they did not have to find he

shot Kingsley to convict him of the murder.        "[A]ll of the

criminal participants in the initial felony may be found guilty

of the felony-murder of the victim so long as the homicide was

within the res gestae of the initial felony."         Wooden v.

Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981).

Here, the murder was in furtherance of the robbery.        Therefore,


       7
       The felony-murder doctrine is codified in Code § 18.2-32.
"The statute, of ancient origin, has been construed to mean that
a killing in the commission of or attempt to commit one of the
enumerated felonies is murder of the first degree." Haskell v.
Commonwealth, 218 Va. 1033, 1035 n.1, 243 S.E.2d 477, 478 n.1
(1978).


                                  - 10 -
the felony-murder doctrine applies.    Whether he killed Kingsley

himself, or one of the other men did, the evidence was sufficient

to prove appellant guilty of first-degree murder.

     The joint trial of appellant, Turner, and Frye did not

compromise a specific trial right of appellant nor did it prevent

the jury from making a reliable judgment about his guilt or

innocence.   For the reasons stated above, we affirm the

convictions.

                                                           Affirmed.




                              - 11 -
