                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia


FRANK E. PENNINGTON, JR.
                                       MEMORANDUM OPINION * BY
v.         Record No. 1346-95-3         JUDGE RICHARD S. BRAY
                                           FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ROANOKE COUNTY
               Kenneth E. Trabue, Judge Designate
          John E. Lichtenstein (Charles M. Smith, Jr.;
          Lichtenstein & Fishwick, P.L.C., on briefs),
          for appellant.

          Eugene Murphy, Assistant Attorney General
          (James S. Gilmore, III, Attorney General;
          Margaret Ann B. Walker, Assistant Attorney
          General, on brief), for appellee.



     Frank E. Pennington, Jr., (defendant) was convicted by a

jury for first degree murder and related use of a firearm.   On

appeal, he complains that the trial court erroneously refused

(1) to strike for cause a prospective juror with demonstrable

bias, and (2) to suppress defendant's statement to police.   For

the reasons that follow, we reverse the convictions and remand

for a new trial.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.



     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                   IMPARTIALITY OF JUROR STUART

     An accused is constitutionally guaranteed the right to trial

by "an impartial jury."   U.S. Const. amends. VI, XIV; Va. Const.

art. I § 8; see Code § 8.01-358; Rule 3A:14.    "Trial courts, as

the guardians of this fundamental right, have the duty to procure

an impartial jury," a responsibility primarily discharged

"through meaningful voir dire."   Griffin v. Commonwealth, 19 Va.

App. 619, 621, 454 S.E.2d 363, 364 (1995).
     "[T]he test of impartiality is whether the venireperson can

lay aside . . . preconceived views and render a verdict based

solely on the law and evidence presented at trial."     Id.

Persistence in a "view . . . inconsistent with an ability to give

an accused a fair and impartial trial, or . . . a misapprehension

of law," determined in the "context of the entire voir dire,"

mandates exclusion of a prospective juror.     Sizemore v.

Commonwealth, 11 Va. App. 208, 211-12, 397 S.E.2d 408, 410-11

(1990).   Reasonable doubt that a juror possesses the ability to

render a fair and impartial service must be resolved in favor of

the accused.   See Breeden v. Commonwealth, 217 Va. 297, 298, 227

S.E.2d 734, 735 (1976).

     "The partiality or impartiality of an individual juror is a

factual issue best determined by the trial court."     Watkins v.

Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 (1985), cert.

denied, 475 U.S. 1099 (1986).   On appeal, "we must give deference

to the trial court's decision whether to retain or exclude



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individual veniremen because the trial court 'sees and hears the

juror.'"   Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d

385, 391 (1990) (quoting Wainwright v. Witt, 469 U.S. 412, 426

(1985)), cert. denied, 502 U.S. 824 (1991).    Hence, we will not

disturb the trial court's decision "absent a showing of 'manifest

error.'"   Id. (quoting Spencer v. Commonwealth, 240 Va. 78, 94,

393 S.E.2d 609, 619, cert. denied, 498 U.S. 908 (1990)).

     Here, during individual voir dire, venireperson Stuart

indicated in response to several inquiries by the court and

counsel that she "would try" to presume defendant innocent and

afford him a fair trial, despite her "religious beliefs"

pertaining to "tak[ing] another one's life."   When further

questioned whether she "would . . . vote for acquittal," "if at

the end of the case [she had] a reasonable doubt as to whether

the Commonwealth . . . proved" defendant's guilt, she responded,

"if . . . they can't prove that he did it, sure, you'd have to

vote for acquittal," adding later, "[As long as] they prove that

he didn't do it, you know."   (Emphasis added).    Brief additional

voir dire provided little assurance that Stuart understood and

would apply the proper burden of proof.

     Viewing Stuart's voir dire in its entirety, we find that the

record discloses a series of tentative, equivocal responses to

questioning intended to probe and ascertain Stuart's state of

mind, leaving reasonable doubt of her partiality as a matter of

law and requiring that she be removed for cause.     See Griffin, 19




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Va. App. at 622-26, 454 S.E.2d at 365-66.    Under such

circumstances, it was reversible error to require defendant to

exhaust a peremptory strike to remove the juror.        See, e.g.,

Scott v. Commonwealth, 1 Va. App. 447, 451, 339 S.E.2d 899,

900-01 (1986), aff'd, 233 Va. 5, 353 S.E.2d 460 (1987).

                     DENIAL OF MOTION TO SUPPRESS

     In reviewing the ruling on a suppression motion, we assess

the evidence in the "light most favorable to . . . the prevailing

party below," the Commonwealth in this instance, and the decision

of the trial court will be disturbed only if plainly wrong.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991).    Our consideration of the record includes evidence

adduced at both trial and suppression hearings, if any.         See

DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540,

542-43 (1987), cert. denied, 488 U.S. 985 (1988).       To prevail on

appeal, the defendant must "show . . . that the denial of [his]

motion . . . constitute[d] reversible error."       Motley v.
Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233

(1993).

     Assuming, without deciding, that Detective Kern's stop of

defendant exceeded the jurisdictional limitations of Code

§ 19.2-249, such violation does not necessitate suppression of

related evidence.     See, e.g., Troncoso v. Commonwealth, 12 Va.

App. 942, 944, 407 S.E.2d 349, 350 (1991).    We have previously

held that
             "historically, searches or seizures made


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            contrary to provisions contained in Virginia
            statutes provide no right of suppression
            unless the statute supplies that right."
            Virginia employs the rule . . . that evidence
            obtained in violation of constitutional
            proscriptions against unreasonable searches
            and seizures may not be used against an
            accused. However, our Supreme Court has
            steadfastly refused to extend that rule to
            encompass evidence [obtained] pursuant to
            statutory violations, absent an express
            statutory provision for suppression.


Id. (quoting Commonwealth v. Brown, 8 Va. App. 41, 44, 378 S.E.2d

623, 625 (1989) (Baker, J., concurring)) (other citations

omitted).
     The constitutional implications of the subject seizure 1 are

governed by Terry v. Ohio, 392 U.S. 1 (1968), and its progeny.

Police may conduct an investigatory stop when armed with

reasonable and articulable suspicion that an individual "'is

committing, has committed or is about to commit' a crime."     Layne

v. Commonwealth, 15 Va. App. 23, 25, 421 S.E.2d 215, 216 (1992)

(quoting Simmons v. Commonwealth, 217 Va. 552, 557, 231 S.E.2d

218, 221-22 (1977)).   In assessing the constitutionality of a

stop, the court must consider the totality of the circumstances,

including the length of the detention, its purposes and attendant

requirements, and the officer's diligence and choice of

investigative means.    See United States v. Sharpe, 470 U.S. 675,
     1
      "'When the police stop a motor vehicle and detain an
occupant, this constitutes a seizure of the person for Fourth
Amendment purposes . . . .'" Logan v. Commonwealth, 19 Va. App.
437, 441, 452 S.E.2d 364, 367 (1994) (reh'g en banc) (quoting
Zimmerman v. Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709
(1988)).




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685-86 (1985); DePriest, 4 Va. App. at 587, 359 S.E.2d at 545.

These factors must be assessed objectively, and the officer's

motivations are of no relevance "as long as the circumstances

. . . justify that action."    Ohio v. Robinette, 117 S. Ct. 417,

420-21 (1996) (quoting Scott v. United States, 436 U.S. 128, 138

(1978)); see Whren v. United States, 116 S. Ct. 1769, 1774

(1996).

     Here, Detective Kern was aware that Bedford County police

were en route to arrest defendant on two misdemeanor warrants.

He, therefore, properly detained defendant, pending the imminent

arrival of the Bedford officers.    Kern also "wanted to talk to

[defendant]" relative to Kern's investigation of an unsolved

murder and questioned him while awaiting the Bedford officers.

However, Kern's primary motivation does not displace other

justifications for the stop.
     The trial court, therefore, correctly denied defendant's

motion to suppress, but erroneously denied the motion to strike

juror Stuart for cause.   Accordingly, we reverse the convictions

and remand the proceedings for a new trial.
                                          Reversed and remanded.




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