COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Elder and Bray 

Argued at Salem, Virginia 

THOMAS GERALD ADKINS, SR. 

 OPINION BY 

v. Record No. 2993-95-3 JUDGE RICHARD S. BRAY 

 FEBRUARY 4, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WISE COUNTY 

J. Robert Stump, Judge 

 (Leonard D. Rogers, on brief), for appellant. 

 Appellant submitting on brief. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 In a joint trial on joint indictments, a jury convicted 

Thomas Gerald Adkins, Sr. (defendant) of robbery and possession 

of a firearm by a convicted felon. A codefendant, Larry Herron 

(Herron), was also convicted for like offenses and, additionally, 

for unlawful wounding and larceny of a firearm. On appeal, 

defendant contends that the trial court erroneously granted the 

Commonwealth's motion for joint trial, pursuant to Code 

§ 19.2-262.1, and did not permit both defendant and Herron four 

peremptory strikes during jury selection. Finding no error, we 

affirm the convictions. 

 In accordance with well established principles, we view the 

evidence in the light most favorable to the Commonwealth. On the 

evening of November 4, 1994, defendant and Herron, drinking 

heavily, visited the apartment of Lester Cantrell, then age 
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eighty-one. Cantrell recognized Herron and invited the two men 

into his apartment. After some conversation, eating, and 

drinking, Cantrell attempted to leave the apartment, but was 

"knocked . . . down," beaten, kicked, and struck on the head with 

"a fruit jar or something" by Herron. Defendant then approached 

Cantrell, "pulled out [a] big kni[fe]" and threatened to kill him 

with the weapon. Injured, Cantrell watched as defendant and 

Herron ransacked his apartment, and "took all they could get," 

including $400 and a handgun. Neither defendant nor Herron 

disputed that Cantrell had been beaten and robbed, but, in their 

respective testimony, each attributed the offenses to the other. 

 Herron had been previously convicted of several offenses 

arising from the incident but was subsequently granted a new 

trial for reasons unrelated to this appeal. When the 

Commonwealth sought to join Herron's retrial with the instant 

prosecution, both defendant and Herron objected. In a written 

pretrial motion, defendant contended that he would "be unduly 

prejudiced and the jurors . . . confused so as to not be able to 

differentiate between what evidence is against which defendant." 

 In arguing the motion, defendant asserted that judicial economy 

was outweighed by the prejudice to defendant certain to result 

from "evidence . . . admissible against Mr. Herron . . . [but] 

not . . . admissible against [him]." During post-trial motions 

to set aside the verdicts, defendant revisited the joinder issue, 

contending then that the "antagonistic defenses" had "obviously 
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prejudiced both defendants," compelling each to testify and rebut 

the incriminating evidence of the other.1

 In overruling 

defendant's initial objection and subsequent motion, the court 

reasoned that joinder would at once promote judicial economy and 

the interests of the elderly victim, Cantrell, without prejudice 

to defendants. 

 In an additional written motion, defendant requested the 

court to impanel "sufficient jurors such that both defendants 

would be allowed their appropriate strikes," later arguing that 

each was entitled to four. With the concurrence of the 

Commonwealth and over defendant's objection, the court impaneled 

twenty-four venirepersons, allowed each defendant three and the 

Commonwealth four peremptory strikes, and designated the 

remaining two jurors as alternates. 

INVOLUNTARY JOINDER

 Code § 19.2-262.1 provides that: 

 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 

relief [as] justice requires. 

 

 1We assume, without deciding, that the post-trial argument 

was timely. 
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Id. (emphasis added); see Rules 3A:6(c), 3A:10. "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) (analogizing standard of Code § 19.2-262.1 to 

prejudice standard of Fed. R. Crim. P. 14) (quoting United States 

v. Reavis, 48 F.3d 763, 767 (4th Cir.) (emphasis added), cert.

denied, 115 S. Ct. 2597 (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." 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 (1993)). 

 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, 
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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. 

 Defendant does not dispute that he and Herron were indicted 

for offenses sufficiently related to constitute "good cause" for 

joinder. However, he complains of prejudice arising from 

evidence admissible against Herron, but inadmissible against him, 

and prejudice which inhered in the hostile and conflicting 

evidence of each defendant, compelling each to testify to 

contradict the other. However, defendant "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." 

Id. at 413, 470 S.E.2d at 582. Thus, his contentions fail to 

establish the requisite actual prejudice. See Goodson, 22 Va. 

App. at 71-72, 467 S.E.2d at 853. Under such circumstances, the 

trial court correctly concluded that joinder would promote the 

interests of both the elderly victim and judicial economy, 

without demonstrable prejudice to defendants. 

ENTITLEMENT TO PEREMPTORY STRIKES

 Both the Virginia and United States Constitutions provide 

that a criminal defendant is entitled to trial by an impartial 

jury. U. S. Const. amends. VI, XIV; Va. Const. art. I, § 8; see

Barker v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d 729, 732 
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(1985). However, this right does not give an accused 

constitutional entitlement to peremptory challenges but requires 

only that jurors be removed upon a showing of cause. See 11B 

Michie's Jurisprudence Jury § 32, at 130 (1986). 

 Code § 19.2-262 establishes the procedure for selection of a 

criminal petit jury in Virginia, providing, in pertinent part, 

that: 

 (2) Twelve persons from a panel of 

twenty shall constitute a jury in a felony 

case. . . . 

 (3) The parties or their counsel, 

beginning with the attorney for the 

Commonwealth, shall alternately strike off 

one name from the panel until the number 

remaining shall be reduced to the number 

required for a jury. 

 (4) In any case in which persons indicted 

for felony elect to be tried jointly, if 

counsel or the accused are unable to agree on 

the full number to be stricken, or, if for 

any other reason counsel or the accused fail 

or refuse to strike off the full number of 

jurors allowed such party, the clerk shall 

place in a box ballots bearing the names of 

the jurors whose names have not been stricken 

and shall cause to be drawn from the box such 

number of ballots as may be necessary to 

complete the number of strikes allowed the 

party or parties failing or refusing to 

strike. Thereafter, if the opposing side is 

entitled to further strikes, they shall be 

made in the usual manner. 

In prosecutions of a single defendant, the statutory procedure 

specified in subsections (2) and (3) mathematically results in 

the Commonwealth and the defendant each enjoying four peremptory 

strikes. See, e.g., Irving v. Commonwealth, 19 Va. App. 581, 

583, 453 S.E.2d 577, 579 (1995). 
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 "If the language of a statute is plain and unambiguous, and 

its meaning perfectly clear and definite, effect must be given to 

it regardless of what courts think of its wisdom or policy." 

Long v. Commonwealth, 7 Va. App. 503, 506, 375 S.E.2d 368, 369 

(1988) (en banc) (per curiam) (quoting Temple v. City of 

Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944)). Code 

§ 19.2-262 clearly instructs that a jury in a felony prosecution 

be composed of twelve persons, derived from a panel of twenty 

without exception for multiple defendants joined for trial 

pursuant to Code § 19.2-262.1. Nothing in the statute or the 

United States or Virginia Constitutions assures multiple 

defendants a specified number of strikes. Cf. Buchanan v. 

Commonwealth, 238 Va. 389, 405, 384 S.E.2d 757, 767 (1989), cert.

denied, 493 U.S. 1063 (1990). 

 Defendant's reliance upon Code § 19.2-262(4) to support his 

argument that persons involuntarily joined for trial are entitled 

to an alternate selection procedure is misplaced. Code 

§ 19.2-262(4) expressly applies only to felony prosecutions of 

persons "elect[ing] to be tried jointly." (Emphasis added). 

Contrary to defendant's assertion, this omission raises the 

inference that the legislature did not intend to modify the 

number of strikes allocable to defendants involuntarily joined 

for trial. See Tharpe v. Commonwealth, 18 Va. App. 37, 43, 441 

S.E.2d 228, 232 (1994). We, therefore, conclude that defendants 

jointly tried are together entitled only to the four peremptory 
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challenges provided by statute. 

 The trial court resolved defendant's motion by providing 

defendant and Herron with three peremptory strikes each, a total 

of two more than required by Code § 19.2-262. "The manner in 

which jury selection is conducted is within the discretion and 

control of the trial court, guided by statute and rule of court." 

Buchanan, 238 Va. at 400, 405 S.E.2d at 764. We find no abuse 

of discretion in the procedure adopted in this instance. 

 Accordingly, we affirm the convictions. 

 Affirmed.