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.
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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
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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.
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denial of appellant's motion to sever at re-sentencing.
Therefore, we affirm appellant's sentence.
Affirmed.
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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.
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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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Jermaine Alfonzo Harris v. Commonwealth of Virginia
Combined Opinion