COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
KEVIN LAMONT DICKERSON
OPINION BY
v. Record No. 2359-97-2 JUDGE JERE M. H. WILLIS, JR.
MARCH 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Brent A. Jackson (Jackson, Pickus &
Associates, P.C., on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction for first degree murder, in
violation of Code § 18.2-32; malicious wounding, in violation of
Code § 18.2-51; robbery, in violation of Code § 18.2-58; and
three counts of use of a firearm in the commission of a felony,
in violation of Code § 18.2-53.1, Kevin Lamont Dickerson contends
that the trial court erred in ordering that he be tried jointly
with Dimitri Clarke. We disagree and affirm the judgment of the
trial court.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences deducible therefrom." Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
On January 6, 1997, Dickerson and Dimitri Clarke arrived at
Preston Stiles' apartment to purchase marijuana. Dickerson
entered the apartment and argued with Stiles for several minutes,
during which time Clarke also entered. After the three
"tussl[ed]," Stiles told Clarke and Dickerson that they could
take whatever they wanted.
Clarke then forced Stiles and Kimberly Wells to lie on the
floor. He held them there at gunpoint while Dickerson ransacked
the apartment. Clarke went through Stiles' pockets, shot Wells
three times, and shot Stiles fatally in the head.
Dickerson and Clarke were each indicted for murder,
malicious wounding, robbery, and use of a firearm in the
commission of each of the predicate offenses. The Commonwealth
moved to try the charges against Dickerson and Clarke jointly.
Dickerson objected. He argued that he had an alibi and therefore
a defense different from Clarke's, that he and Clarke were
enemies, and that his right to confront Clarke would be
compromised by Clarke's right against self-incrimination.
The trial court ordered joinder and commenced a single
trial, which ended in a mistrial. Following a second trial, the
jury found Dickerson and Clarke guilty of all charges.
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.
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I.
The decision whether to order joinder of trials lies within
the sound discretion of the trial court. See Barnes v.
Commonwealth, 22 Va. App. 406, 412, 470 S.E.2d 579, 582 (1996).
The trial court weighed the factors of efficiency and prejudice.
It determined that the case did not require separate trials, that
joinder would not result in prejudice, and that joinder was
appropriate. The record supports that determination.
Dickerson argues that joinder denied him the ability to
assert at trial that Wells had misidentified him and that Terry
Brown was Clarke's confederate. The record does not support this
contention. Dickerson cross-examined Wells on her
identification. He presented Brown to Wells at trial. However,
although she acknowledged a strong resemblance between Dickerson
and Brown, she adhered to her identification of Dickerson as the
man who participated with Clarke in committing the crimes.
Nothing in the record suggests that joinder prejudiced
Dickerson's defense by rendering him unable to call Clarke as a
witness. Even had the two men been tried separately, Clarke, if
called to testify, could have asserted his Fifth Amendment right
against self-incrimination. See U.S. Const. amend. V. See also
Gosling v. Commonwealth, 14 Va. App. 158, 165-66, 415 S.E.2d 870,
874 (1992); Farmer v. Commonwealth, 12 Va. App. 337, 340, 404
S.E.2d 371, 372 (1991). Neither at the joinder hearing nor at
trial did Dickerson attempt to call Clarke to testify, nor did he
proffer what Clarke's testimony would be.
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Thus, the record discloses no abuse of discretion in the
trial court's determination that no prejudice would result from
joinder and that joinder was appropriate.
II.
Dickerson contends on appeal that Code § 19.2-262.1 is
unconstitutional and, therefore, cannot be a proper basis on
which to permit joinder. He argues that by permitting joinder in
the absence of a showing of prejudice, Code § 19.2-262.1 requires
the defendant to predict not only his own strategy, but also the
strategies of codefendants and of the Commonwealth. He argues
that this burden violates a defendant's Fifth and Fourteenth
Amendment rights of due process. He argues further that because
a defendant is not allowed adequate discovery or examination of
codefendants, he is denied his Sixth Amendment right of
confrontation. Dickerson did not present the foregoing arguments
to the trial court. He may not assert them for the first time on
appeal. See Rule 5A:18. See also Jacques v. Commonwealth, 12
Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).
The judgment of the trial court is affirmed.
Affirmed.
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