COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia
KIEL TURNER
MEMORANDUM OPINION * BY
v. Record No. 1641-01-3 JUDGE WALTER S. FELTON, JR.
NOVEMBER 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
W. Todd Watson (David B. Hargett; J. Paul
Gregorio; Hargett & Watson, PLC; Paone &
Gregorio, PLLC, on brief), for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Kiel Turner was convicted by a jury of: (1) first-degree
murder in the commission of an attempted robbery, in violation
of Code §§ 18.2-32 and 18.2-18; (2) use of a firearm during the
commission of a felony, in violation of Code § 18.2-53.1; (3)
malicious wounding, in violation of Code § 18.2-51; (4) three
counts of abduction, in violation of Code § 18.2-47; (5)
breaking and entering with the intent to commit robbery, in
violation of Code § 18.2-90; (6) two counts of robbery, in
violation of Code § 18.2-58; and (7) attempted robbery, in
violation of Code §§ 18.2-58 and 18.2-26. On appeal, he
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
contends the trial court erred (1) in joining his case with
other defendants when severance was required to prevent
prejudice; (2) in denying his motion for a continuance to secure
the presence of an impeachment witness; and (3) in denying his
motion to set aside the verdict or declare a mistrial where the
polling of the jury revealed that only eleven jurors concurred
in the punishment verdict rendered by the jury. For the
following reasons, we affirm the judgment of the trial court.
I. BACKGROUND
A. THE OFFENSES
On August 29, 1997, Emanuel Kingsley was shot in the chest
and killed when he entered the house he was sharing with Anthony
Brunk. Approximately two weeks prior to Kingsley's death, Kiel
Turner asked Heather Blosser and Santia Frye if they knew of
anybody who had money or drugs. He had recently been robbed of
money and marijuana and wanted to replace his losses by robbing
someone. Blosser told Turner that Kingsley was a drug dealer
and had a great deal of money.
A few days prior to the murder, Blosser and Frye drove
Turner to Massanutten and pointed out the house where Kingsley
was living. Turner began asking the women specific questions
about the residence, such as how many entrances there were and
the time of day people were usually there. After staking out
the residence, Turner enlisted the help of Andre Cook. Cook
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agreed to help Turner commit the robbery, and he in turn
enlisted the help of Marcus Duenas and LaLarnie Larry.
On the evening of August 28, 1997, Cook and Larry picked up
Duenas in Washington D.C. Duenas had with him his Glock
nine-millimeter pistol. After getting into the van, the three
men drove around the corner and picked up a second gun, a chrome
.45 caliber handgun. Cook, Larry, and Duenas drove to
Harrisonburg and at approximately midnight, picked up Turner at
Rosslyn Williams' apartment. That night Turner was wearing a
black skullcap and Duenas' hair was "wild" and "bushed out."
Under Turner's direction, the four men drove to
Massanutten. They parked the van near Kingsley's house. Turner
handed out the guns. Duenas took the Glock nine-millimeter
pistol, Larry took his .380 caliber handgun, and Turner took the
chrome .45 caliber handgun. They walked through the woods to
approach the house and then entered. Upon entry, they split up
and began looking for items to take. Turner went upstairs and
determined that two people were there. Shana Curtis was in the
bedroom studying, and Neil Flick was in the bathroom taking a
shower. Turner told Larry and Cook to come upstairs.
Larry and Cook seized Curtis in the bedroom while Turner
went into the bathroom. In the bathroom, Turner opened the
shower curtain, put the .45 caliber chrome gun in Flick's face,
ordered him out of the shower, and pistol-whipped him. Flick
and Curtis were then brought downstairs, ordered to lie down,
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and were tied up. Flick was repeatedly asked where the money
was located and where Kingsley was. Flick told them that
Kingsley went out to get some food and would be back in fifteen
minutes. However, he stated he knew nothing about any money.
Larry then kicked Flick in the face, crushing his cheek bone and
tear duct.
Shortly thereafter, Brunk returned home. Brunk stated that
upon entering the house, an African-American male with an afro
"teased out a few inches" stuck a gun in his face and told him
to hit the ground. Brunk was tied up, and his watch, money
clip, credit card, and shoes were taken. By that time Larry and
Cook had returned to the van to drop off the items that were
taken from the house and its occupants. While they were at the
van, Kingsley and Amy Steward returned to the house. When they
entered the house, they were confronted by a man with a gun, who
shot at them. Steward was shot in the hand, but managed to
escape by running through the woods. Kingsley was shot in the
chest and fell to the floor.
Duenas and Turner fled the house and ran to the van with
their guns in their hands. Cook and Larry testified that once
inside the van, Duenas said he shot someone following a
struggle. 1 As they made their escape out of the neighborhood,
1
Forensic evidence corroborates the statement that Duenas
shot someone. David Gibbs, a forensic scientist specializing in
firearms and tool mark identification, testified that the
bullets submitted to him were all nine-millimeter bullets fired
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they passed Steward walking on the side of the road. Larry
testified that Turner recognized her as the woman he tried to
shoot moments earlier at the house. The four men returned to
Washington D.C. and divided the stolen items.
Back at the house, Brunk managed to untie himself and then
Flick. Realizing the phone lines had been cut, Brunk used
Kingsley's cellular phone to call 911. Brunk and Flick then
attempted to save Kingsley by administering CPR. Kingsley died
from his wound.
A few days following the shooting, Turner and the group
gathered at Cook's house. It was at that time they learned that
Kingsley had died. Cook testified that Duenas subsequently
decided to get rid of the nine-millimeter pistol. He dismantled
it, burned it, and threw it in a river.
B. PROCEDURAL HISTORY
Prior to trial the Commonwealth filed a motion to join the
trials of codefendants Turner, Duenas, Larry, and Frye. Over
the objections of the codefendants, the motion was granted.
Trial began on December 18, 2000. Prior to opening remarks,
Turner stated that a defense witness, Aaron Primes, was not
present and requested a continuance. He stated that Primes
would provide crucial exculpatory testimony. To ensure his
from the same gun. Duenas had the Glock nine-millimeter pistol
during the murder-robbery.
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appearance, Turner's counsel subpoenaed Primes by personal
service three months before trial and spoke to him by telephone
the day of trial regarding his testifying on behalf of Turner.
The trial court denied the continuance motion and issued a
capias for Primes. In turn, Turner proffered the anticipated
testimony of Primes. The proffered evidence was that while
Primes was incarcerated with Cook around August 28 or 29, 2000,
Cook told him that he was going to do anything to save his neck
and that Turner never went into the house. At trial, Cook
denied ever talking with Primes about the murder-robbery
incident.
On December 20, 2000, Primes, for the third time in as many
days, failed to appear in court. Turner's attorney indicated to
the trial court that he was reluctant to continue without "a
crucial witness." He again requested a continuance, but was
denied. The court held, and Turner's attorney agreed, that
Primes' testimony would be cumulative and that there was no way
to guarantee his appearance at trial. 2
2
Irvin Majors' testimony was virtually identical to the
proffered testimony of Primes. Majors testified at trial that
while in a holding cell with Cook, Cook told him that if he went
down he was going to take others with him. In addition, Majors
testified that Cook stated Turner was in the car during the
whole thing.
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Turner was convicted of ten of the eleven crimes with which
he was charged. 3 After the court read each verdict, the jury was
asked collectively by the trial judge, "Is this your verdict?"
Each time the record reflects that there was an affirmative nod
or response by the jurors, affirming the verdict to be his or
hers. Turner's attorney then moved for the jury to be
individually polled. After individual polling of the jurors,
the record reflects that each of the jurors responded that the
announced verdicts were his or hers. No juror dissented to the
announced verdicts.
At the conclusion of the jury's deliberation during the
sentencing phase, the jury foreperson announced in open court
the jury's sentencing verdict as to each charge. The trial
judge subsequently asked the jury, "Is this everyone's verdict?
Let the record show all have responded in the affirmative."
Thereafter, Turner requested that each juror be polled
individually to determine if all ten verdicts were his or her
own. The trial court charged the jury:
COURT: Ladies and gentlemen, again Mr.
Harper is going to call your name. If these
are your verdicts collectively, Commonwealth
versus Keil [sic] Turner, please respond
yes. If they are not your verdicts, any one
or more of them are not your verdicts,
please respond no. Thank you.
3
Turner was acquitted of the malicious wounding charge in
relation to Amy Steward. Duenas was acquitted of the malicious
wounding charge in relation to Neil Flick.
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The transcript indicates that only eleven of the jurors
responded. However, following the individual polling of the
jury, the court stated, "The record can show that each of the
jurors have responded that they are his or her verdicts in
total." Furthermore, prior to and following the individual
polling of the jurors, the court noted for the record that each
of the jurors confirmed that the sentencing verdict was theirs.
At no point during the polling of the jury did any juror dissent
to the announced verdicts.
As a result of the apparent non-response by a juror,
Melissa Putnam, to the polling, Turner's attorney filed a
post-trial motion requesting that a mistrial be declared. He
argued, among other things, that the jury polling did not
reflect a unanimous verdict as to punishment. Because Turner
failed to make a timely objection at the time the individual
polling occurred, the motion was denied.
On April 6, 2001, a hearing was held regarding the
individual polling. Juror Putnam testified that she recalled
being polled as to guilt and punishment. She stated there was
no point at which the other eleven jurors' names were called and
hers was not. The court reporter was also called to testify.
She stated that she listened to the tape recording of the
sentencing proceedings and was unable to detect Ms. Putnum's
voice. The court denied the motion for a mistrial, holding that
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it had been incumbent upon the counsel requesting the polling to
inquire as to the twelfth person.
II. JOINDER OF CODEFENDANTS
We first consider whether the trial court erred in denying
Turner's motion to sever his trial from the trials of his
codefendants. 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.
To prevail on appeal, Turner must demonstrate that he suffered
actual prejudice as a result of the joint trial.
"In determining whether a joint trial would
prejudice a defendant, the trial court
should require '[t]he party moving for
severance [to] establish that actual
prejudice would result from a joint trial.'"
Goodson v. Commonwealth, 22 Va. App. 61, 71,
467 S.E.2d 848, 853 (1996) [(citations
omitted)]. 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." Barnes v. Commonwealth, 22
Va. App. 406, 412, 470 S.E.2d 579, 582
(1996) (quoting Zafiro v. United States, 506
U.S. 534, 539, 113 S. Ct. 933, 938, 122
L.Ed.2d 317 (1993)).
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We recognize that prejudice may result
when evidence inadmissible against a
defendant, if tried alone, is admitted
against a codefendant in a joint trial. See
id. However, a "defendant has no right to
exclude relevant and competent evidence,
such as the testimony of a former co-
defendant," id. at 412-13, 470 S.E.2d at
582, despite "the impression that [they] may
be hostile to each other's position."
Goodson, 22 Va. App. at 71, 467 S.E.2d at
853. "'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, 113
S. Ct. at 939); 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.
Adkins v. Commonwealth, 24 Va. App. 159, 162-63, 480 S.E.2d 777,
779 (1997).
Turner contends that joinder was improper because he and
his codefendants had markedly different degrees of culpability.
The different degrees of culpability, he asserts, created
confusion and prejudice because it reduced the confidence that
should be part of a jury verdict. Despite the varying degrees
of culpability claimed, Turner fails to show that he suffered
actual prejudice during the course of his trial.
No evidence was admitted in the other cases that was not
admissible in Turner's case. In addition, the jury displayed no
confusion in determining the individual liability of the
codefendants. The jury acquitted Turner of the malicious
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wounding of Amy Steward and acquitted Duenas of the malicious
wounding of Neil Flick. That Turner and Duenas were acquitted
on different malicious wounding charges indicates that the jury
understood the varying degrees of culpability. The record fails
to show that Turner's trial rights were affected or that the
jury process was compromised. Accordingly, the trial court did
not err by denying Turner's motion to sever his trial from the
trials of his codefendants.
III. MOTION FOR CONTINUANCE
We next consider whether the trial court erred by denying
Turner's motion for a continuance to secure the appearance of a
witness. "Whether to grant or deny a continuance of a trial is
a matter that lies within the sound discretion of a trial court,
and its ruling will not be reversed on appeal unless it is
plainly wrong. A court must exercise this discretion in a
manner that does not prejudice a defendant's right to a fair and
impartial trial or deprive him of his constitutional right 'to
call for evidence in his favor.'" Cardwell v. Commonwealth, 248
Va. 501, 508-09, 450 S.E.2d 146, 151 (1994). "The burden is on
the party seeking the continuance to show that it is likely that
the witness would be present at a later date, and would testify
in the manner indicated in the proffer." Chichester v.
Commonwealth, 248 Va. 311, 322, 448 S.E.2d 638, 646 (1994). A
court need not continue a case indefinitely when there is no
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assurance that a witness can be located. Bryant v.
Commonwealth, 248 Va. 179, 182-83, 445 S.E.2d 667, 669 (1994).
Turner argues that the trial court abused its discretion in
denying his motion for a continuance in order to secure the
presence of his witness, Aaron Primes, because Primes would have
impeached Cook's testimony that Turner was in the house at the
time of the shooting. We disagree.
Several months prior to trial Turner properly obtained a
subpoena and assured personal service on Primes. The day of
trial, Turner's attorney spoke to Primes who assured him that he
would appear in court. Primes failed to appear, however. He
also failed to appear in the general district court in the same
jurisdiction for his own criminal trial. Turner subsequently
proffered to the trial court the statements to which Primes was
to testify. Those statements were essentially the same as those
about which Irvin Majors testified. We find that the trial
court reasonably concluded that Primes' testimony was cumulative
and that there was no assurance he would appear at a later date.
Further, Turner suffered no prejudice as a result of the denial
of his motion for a continuance, and the trial court neither
erred nor abused its discretion.
IV. POLLING OF THE JURY
We lastly consider whether the trial court erred in denying
Turner's motion to set aside the verdict, or for mistrial, as a
result of the alleged failure of the record to reflect a
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unanimous verdict with regard to sentencing. Rule 5A:18
provides, in relevant part:
[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
During the sentencing phase, Turner's attorney requested
that the jury be polled collectively after the sentence was
imposed. Collectively, the jurors were asked whether the
sentence verdicts were theirs. The court noted the jury's
response stating, "Let the record show all have responded in the
affirmative." There was no dissent by any of the jurors that
the announced sentencing verdicts were not theirs. Thereafter,
each juror was polled individually to determine if all ten
sentencing verdicts were his or her own. Following the
individual polling, the court stated, "The record can show that
each of the jurors have responded that they are his or her
verdicts in total." Again, there was no dissent to any of the
sentencing verdicts by any of the jurors, and no objection by
the attorneys, even though the transcript reflects that only
eleven of the jurors responded to the individual polling.
On April 6, 2001, a hearing was held regarding the polling.
Juror Melissa Putnam testified that she recalled being polled
both as to guilt and to punishment. Furthermore, she stated
there was no point at which the other eleven jurors' names were
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called and hers was not. Since Turner failed to object to the
individual polling of the jury at the time the poll was taken,
thus preventing the trial court from correcting any error or
determining if any individual juror opposed the sentencing
verdicts, he cannot raise the issue for the first time on
appeal. See Rule 5A:18. Moreover, the record reflects no
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
The judgment of the trial court is affirmed.
Affirmed.
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