COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Annunziata 

Argued at Richmond, Virginia 

KEVIN LAMONT DICKERSON 

 OPINION BY 

v. Record No. 2359-97-2 JUDGE JERE M. H. WILLIS, JR. 

 MARCH 9, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Brent A. Jackson (Jackson, Pickus & 

Associates, P.C., on briefs), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 On appeal from his conviction for first degree murder, in 

violation of Code § 18.2-32; malicious wounding, in violation of 

Code § 18.2-51; robbery, in violation of Code § 18.2-58; and 

three counts of use of a firearm in the commission of a felony, 

in violation of Code § 18.2-53.1, Kevin Lamont Dickerson contends 

that the trial court erred in ordering that he be tried jointly 

with Dimitri Clarke. We disagree and affirm the judgment of the 

trial court. 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences deducible therefrom." Martin v. Commonwealth, 4 Va. 

App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 On January 6, 1997, Dickerson and Dimitri Clarke arrived at 

Preston Stiles' apartment to purchase marijuana. Dickerson 

entered the apartment and argued with Stiles for several minutes, 
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during which time Clarke also entered. After the three 

"tussl[ed]," Stiles told Clarke and Dickerson that they could 

take whatever they wanted. 

 Clarke then forced Stiles and Kimberly Wells to lie on the 

floor. He held them there at gunpoint while Dickerson ransacked 

the apartment. Clarke went through Stiles' pockets, shot Wells 

three times, and shot Stiles fatally in the head. 

 Dickerson and Clarke were each indicted for murder, 

malicious wounding, robbery, and use of a firearm in the 

commission of each of the predicate offenses. The Commonwealth 

moved to try the charges against Dickerson and Clarke jointly. 

Dickerson objected. He argued that he had an alibi and therefore 

a defense different from Clarke's, that he and Clarke were 

enemies, and that his right to confront Clarke would be 

compromised by Clarke's right against self-incrimination. 

 The trial court ordered joinder and commenced a single 

trial, which ended in a mistrial. Following a second trial, the 

jury found Dickerson and Clarke guilty of all charges. 

 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. 
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 I. 

 The decision whether to order joinder of trials lies within 

the sound discretion of the trial court. See Barnes v. 

Commonwealth, 22 Va. App. 406, 412, 470 S.E.2d 579, 582 (1996). 

The trial court weighed the factors of efficiency and prejudice. 

It determined that the case did not require separate trials, that 

joinder would not result in prejudice, and that joinder was 

appropriate. The record supports that determination. 

 Dickerson argues that joinder denied him the ability to 

assert at trial that Wells had misidentified him and that Terry 

Brown was Clarke's confederate. The record does not support this 

contention. Dickerson cross-examined Wells on her 

identification. He presented Brown to Wells at trial. However, 

although she acknowledged a strong resemblance between Dickerson 

and Brown, she adhered to her identification of Dickerson as the 

man who participated with Clarke in committing the crimes. 

 Nothing in the record suggests that joinder prejudiced 

Dickerson's defense by rendering him unable to call Clarke as a 

witness. Even had the two men been tried separately, Clarke, if 

called to testify, could have asserted his Fifth Amendment right 

against self-incrimination. See U.S. Const. amend. V. See also

Gosling v. Commonwealth, 14 Va. App. 158, 165-66, 415 S.E.2d 870, 

874 (1992); Farmer v. Commonwealth, 12 Va. App. 337, 340, 404 

S.E.2d 371, 372 (1991). Neither at the joinder hearing nor at 

trial did Dickerson attempt to call Clarke to testify, nor did he 

proffer what Clarke's testimony would be. 
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 Thus, the record discloses no abuse of discretion in the 

trial court's determination that no prejudice would result from 

joinder and that joinder was appropriate. 

 II. 

 Dickerson contends on appeal that Code § 19.2-262.1 is 

unconstitutional and, therefore, cannot be a proper basis on 

which to permit joinder. He argues that by permitting joinder in 

the absence of a showing of prejudice, Code § 19.2-262.1 requires 

the defendant to predict not only his own strategy, but also the 

strategies of codefendants and of the Commonwealth. He argues 

that this burden violates a defendant's Fifth and Fourteenth 

Amendment rights of due process. He argues further that because 

a defendant is not allowed adequate discovery or examination of 

codefendants, he is denied his Sixth Amendment right of 

confrontation. Dickerson did not present the foregoing arguments 

to the trial court. He may not assert them for the first time on 

appeal. See Rule 5A:18. See also Jacques v. Commonwealth, 12 

Va. App. 591, 593, 405 S.E.2d 630, 631 (1991). 

 The judgment of the trial court is affirmed. 

 Affirmed.