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 
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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.