COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Clements 

Argued at Alexandria, Virginia 

 

 

ROBERT SYLVESTER DAVIS, JR. 

v. Record No. 1716-00-2 

COMMONWEALTH OF VIRGINIA OPINION BY 

 JUDGE ROSEMARIE ANNUNZIATA 

ISHAM D. DAVIS JULY 31, 2001 

 

v. Record No. 1813-00-2 

 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 

 (Cary B. Brown; Bowen, Bryant, Champlin & 

Carr, on brief), for appellant Robert 

Sylvester Davis, Jr. Appellant submitting 

on brief. 

 William T. Linka (Boatwright & Linka, on 

brief), for appellant Isham D. Davis. 

 (Mark L. Earley, Attorney General; John H. 

McLees, Jr., Senior Assistant Attorney 

General, on briefs), for appellee. Appellee 

submitting on briefs. 

 The appellants, Robert Sylvester Davis, Jr. and Isham D. 

Davis, appeal the sentences imposed by a jury impaneled for the 

purpose of resentencing them upon their conviction for second 

degree murder, in violation of Code § 18.2-32. The two 

appellants and a third codefendant, Jermaine Harris, were 

originally tried jointly and appealed their respective 
sentences. Upon remand by this Court, the jury resentenced all 

three codefendants to twelve years each. The appellants allege 

that during the resentencing hearing the court erred in 

instructing the jury on a concert of action theory. For the 

following reasons, we affirm. 

BACKGROUND

 The appellants, along with another codefendant, Jermaine 

Harris, were convicted of second-degree murder in a joint jury 

trial for the beating death of Vincent Hall. The jury in the 

original sentencing proceeding fixed punishment at twenty years 

in prison for each of the defendants. All three appealed, 

alleging, inter alia, that the prosecutor had made improper and 

prejudicial comments to the jury during the sentencing 

proceeding. We agreed, vacated the sentences, and remanded to 

the circuit court for a new sentencing proceeding. 

 On remand in the circuit court, 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 the Commonwealth called the victim's 

mother to testify as to the impact of the crime. In mitigation, 

the three defendants introduced other portions of the trial 

testimony concerning how the fight began, together with the 

testimony of Robert Davis's mother. 

 At the conclusion of the evidence, the trial court, sua

sponte, ruled that it would give the jury the same concert of 

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action instruction that had been given to the previous jury 

during the guilt phase of the trial. Each of the defendants 

objected, claiming the instruction violated his right to be 

sentenced individually. The trial court overruled the objection 

and instructed the jury, inter alia, that: 

If there is 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. You have heard 

the evidence. These are the instructions. 

I am not sure whether you have any questions 

or not, but if you do I will try to answer 

them if I can. All right. Seeing no 

questions from the jury, you may summarize 

your case. 

The jury fixed each defendant's punishment at twelve years in 

prison, and the court imposed judgment in accordance with those 

verdicts. The appellants now appeal separately from the 

judgment of the court. 

ANALYSIS

 The appellants contend the court's issuance of a concert of 

action instruction improperly influenced the jury's deliberation 

and prevented the appellants from being sentenced as 

individuals. We disagree. 

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 A joint trial for the purpose of resentencing each of the 

defendants was proper under the circumstances of the case. Code 

§ 19.2-262.1 provides, "[o]n 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." See also Rule 3A:10(a). 

 The purpose and function of jury instructions are to confer 

upon the trier of fact the legal basis for which a defendant may 

be found guilty and for which he or she could be punished. The 

Virginia Supreme Court in Spradlin v. Commonwealth, 195 Va. 523, 

528, 79 S.E.2d 443, 445 (1954), established the concert of 

action theory of guilt and explicitly related it to an 

accomplice theory of punishment. The Court found that, based on 

the defendants' concerted action, they had aided and abetted in 

the commission of the crime and that each was "liable to the 

same punishment as if he had actually committed the offense," 

each being an "accessory . . . [or] principal in the second 

degree, but . . . tried and punished as if a principal in the 

first degree." Id. at 527, 79 S.E.2d at 445. Subsequently, in 

Riddick v. Commonwealth, 226 Va. 244, 308 S.E.2d 117 (1983), the 

Supreme Court reiterated its holding: 

[T]he evidence establishes that Riddick and 

Butts were acting in concert. . . . Due to 

the concert of action, defendant is deemed 

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to have shared Butts' intent. Thus, even if 

Butts killed one victim, defendant was 

criminally responsible for the acts of the 

gunman, Butts, as a principal in the second 

degree. And every principal in the second 

degree may be indicted, tried, convicted, 

and punished, with certain exceptions not 

applicable here, as if a principal in the 

first degree. 

Id. at 248, 308 S.E.3d at 119 (citing Code § 18.2-18, which 

provides: "every principal in the second degree and every 

accessory before the fact may be indicted, tried, convicted and 

punished in all respects as if a principal in the first 

degree . . ."); see also Charlton v. Commonwealth, 32 Va. App. 

47, 526 S.E.2d 289 (2000). In short, the Supreme Court treats 

concert of action as a species of accomplice liability, carrying 

with it the principle that the punishment imposed on each 

accomplice may be the same. 

 Upon remand for resentencing, the nature and circumstances 

of the crime committed by the appellants were properly before 

the jury. Watkins v. Commonwealth, 229 Va. 469, 479-80, 331 

S.E.2d 422, 431 (1985) (new jury impaneled for resentencing 

would have to be informed of nature and circumstances of 

offense). Integral to the circumstances underlying this case 

was each defendant's action in concert with others in committing 

the offense, which made each defendant equally culpable for the 

acts of the others, and answerable for the consequences. 

Accordingly, the court was required to give a concert of action 

instruction to the jury, advising them that each participant in 

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the crime may be held accountable for the actions of the other 

participants. Spradlin, 195 Va. at 528, 79 S.E.2d at 445 ("If 

there is 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 equally answerable and bound by the 

acts of every other person connected with the consummation of 

such resulting crime."); see also Westry v. Commonwealth, 206 

Va. 508, 514, 144 S.E.2d 427, 431 (1965); Boggs v. Commonwealth, 

153 Va. 828, 836-37, 149 S.E. 445, 447 (1929). 

 In this case, the jury instruction properly explained the 

legal basis for imposing punishment. It did not instruct the 

jury on the specific penalty to impose. The court instructed 

the jury that they did not have to give each defendant the same 

sentence and were, in fact, required to punish each defendant 

individually. Furthermore, individualized evidence regarding 

the appropriate penalty was admitted, including each defendant's 

role in the crime and their respective criminal histories.1

 1

 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. 

The testimony read to the jury showed that Vincent Hall, the 

victim, was attacked by a group of people, which included the 

three defendants, following Hall's altercation with a woman. 

Hall was thrown to the ground and the group continued to "kick[] 

and stomp[]" Hall for a period of twenty to twenty-five minutes, 

while Hall lay on the ground bleeding and "moaning." Despite the 

pleas of witnesses to the attack, the group did not stop beating 

Hall until the police arrived. The evidence showed that Isham 

and Robert Davis "kicked and stomped" Hall's head during the 

attack, while codefendant Jermaine Harris kicked Hall's legs. 

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 Contrary to appellants' contention, the fact that each 

defendant received the same sentence does not compel a finding 

that the jury disregarded the court's instruction that each 

defendant be considered individually for purposes of punishment 

and that the jury failed to sentence each defendant 

individually. See LeVasseur v. Commonwealth, 225 Va. 564, 589, 

304 S.E.2d 644, 657 (1983) (it is presumed that jury followed 

court's instruction). The punishments imposed bear a rational 

relationship to the circumstances of the crime and the 

individual histories of each defendant. 

 Finally, we reject appellants' argument that because the 

Commonwealth cannot introduce evidence of a sentence received by 

one codefendant in the separate trial of another codefendant, 

the court erred in instructing the jury on a concert of action 

theory at appellants' joint sentencing hearing. See Ward v. 

Commonwealth, 205 Va. 564, 573, 138 S.E.2d 293, 300 (1964); 

Brown v. Commonwealth, 3 Va. App. 101, 103, 348 S.E.2d 408, 

409-10 (1986); Walker v. Commonwealth, 212 Va. 289, 291, 183 

S.E.2d 739, 741 (1971) ("[A] defendant has a right to have his 

guilt or innocence, and punishment, determined by the evidence 

against him and not by what sentence has been imposed in another 

criminal prosecution against an accomplice, a co-defendant or 

anyone else."). The infirmity sought to be avoided in the line 

of cases cited by appellants is the imposition of a sentence by 

 

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rote application of a prior sentence and "in the abstract," 

viz., without evidence relevant to each of the sentencing 

factors, including the defendant's criminal history, the 

particular role the defendant played in the commission of the 

crime, and evidence of any mitigating or aggravating 

circumstances attending the crime uniquely associated with the 

defendant. In this case, a single jury had before it all the 

evidence relevant to its determination of an appropriate 

sentence for each of the defendants. We find that the procedure 

followed is fully consistent with the principles articulated in 

Ward and its progeny. 

 Because we find no error in the instruction given by the 

court, we affirm. 

 Affirmed. 

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