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COURT OF APPEALS OF VIRGINIA PRIVATE

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
of two codefendants, Santia Frye and Keil Turner. 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.
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
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.
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. 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
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
in time and nothing that comes hereafter
will be affecting Mr. Duenas' case.
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 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
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).
Appellant next contends the joint trial led to such
confusion that appellant was denied his right to due process.
He bases this argument on a question that the jury asked
concerning the differences between Instructions 22 and 21. 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 their verdicts, including finding appellant guilty of
first-degree murder under the felony-murder doctrine.
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,
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.
* Pursuant to Code 17.1-413, this opinion is not
designated for publication.
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.

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,
37 Va. App. 507, 519, 559 S.E.2d 415, 421 (2002) (finding a
defendant is not allowed to approbate and reprobate).
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.
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.

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).

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.

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).

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