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COURT OF APPEALS OF VIRGINIA
Present:    Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
AARON LAMONT BARNES
v.                                                                     Record No.  0456-95-2   OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA                                               MAY  14,  1996
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Cary B. Bowen  (Bowen & Bowen, on brief), for
appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a jury trial on February  27 and  28,  1995 in the
Circuit Court of the City of Richmond, appellant, Aaron Lamont
Barnes  ("Barnes"), was convicted of two counts of murder, two
counts of using a firearm in the commission of murder, and
possession of a firearm after having been convicted of a felony.
Barnes was sentenced to life imprisonment plus forty years and
fined  $26,000.    On appeal, Barnes contends the trial court abused
its discretion  (1) by refusing to sever his trial from that of
his co-defendant; and  (2) by denying his motion for continuance
when a subpoenaed witness did not appear.    Finding no error, we
affirm the convictions.
On the early morning of April  5,  1994, Patrick Allen
("Patrick") and Tamara Hinton  ("Tamara") died as a result of
multiple gunshot wounds.    Forensic evidence indicated that the




bullets recovered from the victims' bodies had been fired from
three guns.    Based on information given by an eyewitness,
Cornelius Clanton  ("Clanton"), the police arrested Barnes and
Gregory Allen  ("Allen").
Barnes, Allen, and a third man, Kenneth Haskins  ("Haskins"),
were indicted for the killings, and the Commonwealth filed a
motion requesting a joint trial.    In its motion, the Commonwealth
asserted that the defendants would not be prejudiced by a joint
trial because none of the three had made an incriminating
statement and because no evidence would be presented against one
defendant which would not be admitted if the defendants were
tried separately.
By the date of trial, the Commonwealth had decided not to
prosecute Haskins.    Concerned with the possible testimony of
Haskins, Barnes made a motion to sever his trial from that of
Allen.    The Commonwealth proffered that Haskins would testify
that Barnes was one of the shooters and that Allen was at the
scene, although he was not sure if Allen was a shooter.    The
Commonwealth stated its intent not to call Haskins as a witness,
however.    Barnes argued that a joint trial would result in
prejudice to him because Allen would likely call Haskins to
exculpate him while Barnes would never consider calling Haskins.
The court denied Barnes' motion to sever.
Before the trial began, Barnes requested a continuance
because a subpoenaed witness, Florence Elliot  ("Elliot"), was not
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present.    Barnes told the court he had spoken with Elliot a week
earlier, and that she had indicated she would be in court.
Before the Commonwealth responded, the judge stated he would
continue the case if necessary, and he asked Barnes to proffer
Elliot's testimony.    Barnes replied that Elliot was a material
witness and offered to proffer her testimony in camera.    The
court denied Barnes' request, stating that the issue was a matter
of public concern and that the court was interested in moving the
docket.    The court proceeded with the trial, stating that it
would send the sheriff for Elliot and continue the case if
necessary.
By the close of the Commonwealth's case, Elliot had not
appeared.    The court issued a capias, but the sheriff could not
find her.    The defense put on its evidence, except for Elliot.
By the end of the day, Elliot still had not appeared.    The court
continued the case until the following morning to allow Barnes
the opportunity to locate Elliot.
The following morning, the court asked Barnes if he had
additional evidence to present; Barnes replied that he did not.
Barnes did not mention Elliot again, either during the trial or
upon renewing his motions at the close of the evidence.    Barnes
never proffered Elliot's testimony.
At trial, Clanton identified Barnes and Allen as two of the
three shooters; he testified that he did not recognize the third.
The Commonwealth did not call Haskins, but Allen did.    Haskins
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testified that Barnes enticed Patrick out of a "bootlegger house"
and that he then heard shots.    Haskins saw two men shooting
Patrick and Barnes shooting Tamara.    On his way to the
bootlegger's house, Haskins said he saw Allen; however, he did
not see Allen do anything once the shooting started.
I.
Under former Code  §  19.2-263,1  co-defendants could elect to
be tried separately as a matter of right.    Burgess v.
Commonwealth,  224 Va.  368,  373,  297 S.E.2d  654,  656  (1982).
Prejudice was not a factor, and a co-defendant's election was not
a matter for the exercise of judicial discretion.    Id. at  372-73,
297 S.E.2d at  656.    Code  §  19.2-263 was repealed in  1993, and, in
its place, the General Assembly enacted Code  §  19.2-262.1, which
provides:
On motion of the Commonwealth, for good
cause shown, the court, in its discretion,
may 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
1                                                                         Code  §  19.2-263 provided:
If a person, indicted jointly with
others for a felony, elects to be tried
separately, the panel summoned for their
trial may be used for him who is first tried
and the court shall cause to be summoned a
new panel for the trial of the others,
jointly or separately, as they may elect.
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relief justice requires.
Barnes does not dispute that the acts for which he and Allen were
charged are sufficiently related under the statute.    Rather,
Barnes contends that the joint trial was prejudicial to him
because Haskins would not have testified for the defense in
Barnes' trial had the trials been separate.
A panel of this Court recently analogized Code  §  19.2-262.1
to the Federal Rules of Criminal Procedure governing joinder of
defendants.    See Goodson v. Commonwealth,  22 Va. App.  61,  71,  467
S.E.2d  848,  853  (1996); see also Fed. R. Crim. P.  8(b),  14.2    The
2                                                                          Federal Rule of Criminal Procedures  8(b) provides:
[t]wo or more defendants may be charged in
the same indictment or information if they
are alleged to have participated in the same
act or transaction or in the same series of
acts or transactions constituting an offense
or offenses.    Such defendants may be charged
in one or more counts together or separately
and all of the defendants need not be charged
in each count.
Federal Rule of Criminal Procedure  14 provides:
[i]f it appears that a defendant  .  .  . is
prejudiced by a joinder of offenses or of
defendants in an indictment or information or
by such joinder for trial together, the court
may order an election or separate trials of
counts, grant a severance of defendants or
provide whatever other relief justice
requires.  .  .
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Federal Rules start from the premise that co-defendants will be
tried jointly unless prejudice is shown, while the Virginia rule
starts from the premise that co-defendants will be tried
separately but that the trials may be joined unless prejudice is
shown.    Notwithstanding this distinction, prejudice is the
element governing whether co-defendants will be tried jointly
under both statutory schemes.    See Goodson,  22 Va. App. at  71
n.2,  467 S.E.2d at  853 n.2.    Accordingly, "cases interpreting
prejudice under Rule  14 are instructive in determining what
constitutes  `prejudice' under Code  §  19.2-262.1."    Id.
As a general proposition, prejudice requiring severance
under the federal provisions results only when "there is a
serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence."    See Zafiro v.
United States,  506 U.S.  534,  539,  113 S. Ct.  933,  938  (1993).
"The risk of prejudice will vary with the facts in each case,"
id., and "the determination of the risk of prejudice  .  .  .  [is
left] to the sound discretion of the  [trial] court."    Id. at  541,
113 S. Ct. at  939; United States v. Brugman,  655 F.2d  540,  543
(4th Cir.  1981); cf. Code  §  19.2-262.1  (decision to order joint
trial left to discretion of trial court).    In determining the
propriety of ordering a joint trial of multiple defendants, the
degree of prejudice may be balanced against the effectiveness of
using other measures to cure any such risk, such as limiting
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instructions.    Zafiro,  506 U.S. at  539,  113 S. Ct. at  938  (citing
Richardson v. Marsh,  481 U.S.  200,  211  (1987)).
Thus, prejudice may be found to result where evidence,
inadmissible against a defendant if tried alone, is admitted in a
joint trial against a co-defendant.    Id.; cf. Cook v.
Commonwealth,  7 Va. App.  225,  230,  372 S.E.2d  780,  783  (1988)
(addressing prejudice in conjunction with Rule  3A:6(b), which
provides for the joinder of offenses, and concluding that
prejudice is not established where evidence of each offense would
be admissible in the separate trial of the other).    Prejudice may
result where exculpatory evidence, available to a defendant if
tried alone, is unavailable if tried jointly.    Zafiro,  506 U.S.
at  539,  113 S. Ct. at  938  (citing Tifford v. Wainwright,  588 F.2d
954  (5th Cir.  1979)  (per curiam)).    Prejudice may also result in
a complex case where the co-defendants exhibit markedly different
degrees of culpability.    Id.  (citing Kotteakos v. United States,
328 U.S.  750,  774-75  (1946)).    Conversely, prejudice does not
exist merely because a co-defendant has a better chance of
acquittal if tried separately, and a defendant has no right to
exclude relevant and competent evidence, such as the testimony of
a former co-defendant.    Id. at  540,  113 S. Ct. at  938.
Here, the Commonwealth introduced the same evidence against
each co-defendant and made the "tactical" decision not to call
Haskins.    The Commonwealth's decision does not lead to the
ineluctable conclusion that Haskins' testimony would not have
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been properly admitted in Barnes' case had he been tried
separately.    Moreover, Barnes can point to no trial right which
was compromised or any basis for concluding the jury was
prevented from making a reliable judgment about his guilt or
innocence.    See id. at  539,  113 S. Ct. at  938.    Both men were
similarly situated with respect to Haskins' testimony; although
Haskins' testimony did not put the gun in Allen's hand, it put
Allen at the scene of the crime, and both men received identical
convictions and sentences.    Cf. id. at  540,  113 S. Ct. at  939
(considering fact that jury found all four co-defendants guilty
of various offenses).    In short, Barnes has failed to establish
that actual prejudice resulted from the joint trial.    See
Goodson,  22 Va. App. at  71,  467 S.E.2d at  853.
II.
Barnes' argument that the trial court abused its discretion
in denying his motion for a continuance to secure the presence of
Elliot is without merit.    The record fails to support Barnes'
contention that the court denied his motion.    Rather, the court
proceeded with trial, stating that it would send the sheriff for
Elliot and continue the case if necessary.    Elliot still had not
appeared by the close of the Commonwealth's case, so the court
issued a capias for her.    Barnes put on his case, except for
Elliot, who still could not be found.    The court then continued
the case until the following morning to allow Barnes the
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opportunity to locate Elliot.    Accordingly, we find the court did
not deny Barnes' motion on day one.    Instead, it provided Barnes
exactly what he requested--time to secure Elliot's presence.
The following morning, the court asked Barnes if he had
additional evidence to present.    Barnes replied that he did not.
Barnes did not request additional time to find Elliot and,
indeed, made no further mention of her.    Accordingly, Barnes'
contention that the court erred in denying his motion for a
continuance on day two is procedurally barred.    See Rule  5A:18.
We find no basis for invoking the "ends of justice"
exception.    The trial court did not abuse its discretion.    See,
e.g., Novak v. Commonwealth,  20 Va. App.  373,  391,  457 S.E.2d
402,  411  (1995).    Nothing in the record suggests that the court
would have denied Barnes' additional requests for time.    Indeed,
nothing suggests that Barnes was unable to locate Elliot.    For
all the court knew, Barnes had located Elliot and found that her
testimony would inculpate him.    Moreover, Barnes never proffered
the content of Elliot's testimony.    Thus, we have no basis upon
which to determine whether her absence prejudiced Barnes.    See
Gray v. Commonwealth,  16 Va. App.  513,  517,  431 S.E.2d  86,  89
(1993).
Accordingly, the convictions are affirmed.
Affirmed.
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