                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons and Frank
Argued at Chesapeake, Virginia


HARRY STEPHEN CAPRIO
                                           MEMORANDUM OPINION * BY
v.   Record No. 2225-98-1                  JUDGE DONALD W. LEMONS
                                                MARCH 14, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     Johnny E. Morrison, Judge

          Dianne G. Ringer, Senior Assistant Public
          Defender, for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Stephen R. McCullough, Assistant Attorney
          General, on brief), for appellee.


     Harry Stephen Caprio appeals his conviction for second

degree murder.   On appeal, he argues that:   (1) the trial court

abused its discretion by denying his motion for a mistrial based

on the court's failure to strike a juror for cause, (2) that the

rebuttal argument of the Commonwealth's Attorney was improper

and should have been grounds for a mistrial or a cautionary

instruction, and (3) that the evidence was insufficient to

sustain the conviction.     Finding no reversible error, we affirm.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                          I.   BACKGROUND

     On August 5, 1991, Elizabeth Marie Bickley lived in a house

in Portsmouth with her tenant, Mike Webb.   Webb was moving out,

and Tanya Ayers was moving her possessions into the residence.

Bickley's mother went to the house that morning and noticed that

Bickley limped from a bruised hip and had a black eye. 1   There

was a message on Bickley's answering machine from Caprio saying

that he was "off today" and would "be over this afternoon."

Bickley and Caprio had been friends since childhood.   That night

Webb and Ayers observed Caprio and Bickley leave together at

eight o'clock to buy beer.

     Bickley's body was found at eleven o'clock on August 5,

1991, in the middle of a road in Portsmouth, a short distance

from her home.   The cause of death was strangulation, both

manual and with a plastic wire tie.    Bickley also had received

extensive blows from a blunt object.   Electrical ties, similar

to the one found on Bickley, were found in a nearby baseball

field.

     At trial, Caprio testified that while they were driving,

Bickley became "upset" because he refused to assist her in

evicting Webb and she decided to walk home alone.   Caprio

claimed that after he let Bickley out of his truck, he circled

the block and when he returned, Bickley was gone.   Friends of


     1
       Neither the bruised hip nor the black eye were caused by
Caprio.

                               - 2 -
Caprio testified that he came over to their house at about 9:00

or 10:30 that evening.   At approximately 3:30 on the morning of

August 6, Caprio returned home and woke his roommate Steven

Edwards.   He told Edwards that he and Bickley had a dispute,

that she got out of the truck and that he spent the remainder of

the evening with friends.

     At trial, Webb testified that he had not seen Bickley alive

since she left with Caprio the night before.    Tanya Ayers

testified that Bickley was afraid to go out at night because her

previous boyfriend, who had just gotten out of jail, had

threatened her.

     Caprio was a general contractor and kept plastic wire ties

in his garage and kept smaller ties in his truck.    Jeffrey Ban

of the Virginia Division of Forensic Science, testified that

blood consistent with Bickley's DNA was found on the shorts that

Caprio wore the night of the murder. 2   Dr. Bush of the Medical

Examiner's Office, testified that Bickley died sometime between

8:30 p.m. and 12:30 a.m. on the night of August 5th or in the

early morning hours of August 6th.

     Caprio was indicted for second degree murder.    He pled not

guilty and was tried by a jury in the Circuit Court of the City


     2
       The Commonwealth admitted into evidence Ban's report which
stated that the probability of finding another person "is
approximately one in 4.1 million in the Caucasian Population, 1
in 85 million in the Black Population, 1 in 10 million in the
Hispanic Population." Bickley was Caucasian.


                               - 3 -
of Portsmouth.   During voir dire, the trial court asked the

prospective jurors whether "we have anybody on the panel that

may be familiar with, been associated with, or know[s] anything

about or may have been represented by [this Commonwealth's

Attorney] or anybody in the Commonwealth's Attorney's office?"

No venireperson responded.      After the struck jurors were excused

and the jury of twelve had been sworn, the Commonwealth's

Attorney advised the court that he had just realized that he

went to high school with one of the jurors.      That juror was then

questioned out of the presence of the other jurors about his

relationship with the prosecutor.       The following exchange

occurred:

            THE COURT: . . . . Do you know any of the
            lawyers involved in this case?

            JUROR:   I know the Commonwealth's Attorney.

            THE COURT:   You know [the Commonwealth's
            Attorney]?

            JUROR:   Yes.

            THE COURT:   How is it you know him?

            JUROR:   We played football in school.

             *       *      *       *       *      *      *

            THE COURT:   What year did you graduate?

            JUROR:   '68.

            THE COURT: '68; and since you all
            graduated, have you all socialized together,
            are close friends?



                                  - 4 -
JUROR: I've seen him in the community, but
we don't socialize per se.

THE COURT: The fact that you all played
football together, went to the same high
school, notwithstanding that fact, can you
be fair and impartial to this trial, sir?

JUROR:   Oh, yeah.

THE COURT:     You can?

JUROR:   Yes, sir.

THE COURT: Do you have any questions,
[defense counsel]?

[DEFENSE COUNSEL]: Yes, sir. [Juror], the
fact that you know [the Commonwealth's
Attorney], would that give more credence,
less credence, or no credence to what he
said? In other words, would you believe him
if he said something versus other people?

JUROR: I believe a man at his word, his
word is truth; and I believe what a person
says, if it's the truth, then it will tell.
In other words, I don't believe a person
because he's a friend or I know you.

[DEFENSE COUNSEL]: And the fact that, as
the Judge will tell you, the jury is to
consider only the evidence that comes from
the stand. The lawyers' statements are not
evidence. They're just statements. They're
representing their side. The fact that you
played football with [the Commonwealth's
Attorney] would not elevate his words to a
higher standard?

JUROR:   No.

[DEFENSE COUNSEL]: And do you feel in your
heart you can give Mr. Caprio a fair
hearing?

JUROR:   Yes.



                          - 5 -
           [DEFENSE COUNSEL]: Knowing [the
           Commonwealth's Attorney]?

           JUROR:   Yes.

           [DEFENSE COUNSEL]: Y'all haven't been
           involved in any things as Norcom High School
           alumni, football games or anything like
           that?

           JUROR: No, not lately.

           [DEFENSE COUNSEL]:   Thank you.

Caprio moved "to have [the juror] taken off."     He stated, "I

know [the juror's] answers may satisfy the Court, but for the

record, I would ask that he be taken off.     We have,

unfortunately, twelve jurors.   We have one who played football

with [the Commonwealth's Attorney].     I would make a motion, I

guess it would be for a mistrial."      Defense counsel further

suggested that "knowing someone is not enough, but he is more

connected and did not make any mention that he knew [the

Commonwealth's Attorney] before.    I'm not saying he's trying to

hide anything.   It may have been the way the question was

worded.   I'm just making the motion for a mistrial."

     The Commonwealth's Attorney responded that he graduated

from Norcom High School in 1967 and had not socialized with the

juror since graduation.    He added, "In fact, I've never really

socialized with him, even when we went to high school . . . .

We're talking thirty years ago."

     Defense counsel noted that "the key was, you know, that it

was after the jury was selected that we knew of this.     We

                                - 6 -
brought to the Court's attention before jury selection or during

jury selection that there was a person on the jury that we know

very well.    We brought that up at what I thought was the

appropriate time.    It's just a little bit late at this point to

do that."    The trial court denied the defendant's motion.

     The jury found Caprio guilty of second degree murder.      No

additional evidence was presented to the jury at the sentencing

phase.    In his rebuttal argument, the Commonwealth's Attorney

stated:

             Can you imagine what [the victim's] last
             words were? Can you imagine what her last
             words were? I imagine probably they were,
             "Steve, why are you doing this to me?
             Steve, why are you doing this to me? What
             did I do to deserve this kind of beating,
             this kind of death?"

             I can't, you can't bring her back. These
             folks out here sobbing and crying, they
             would trade anything if you could bring her
             back. They have no problem walking about,
             walking out the door and going about their
             business if you could bring her back, but
             you can't bring her back; so what is your
             responsibility to this community, to this
             family, and all these people here?

Defense counsel interjected with, "Judge," and the trial court

immediately responded, "All right; sustained."    The

Commonwealth's Attorney continued, "What is your

responsibility?"    Again, defense counsel interjected, "Judge, I

would like to be heard at the bench."    The trial court told

counsel to "[c]ome on up," and there was a discussion at the



                                 - 7 -
sidebar.   The Commonwealth's Attorney completed his argument to

the jury without objection:

           Whatever you imagine her last words to be,
           whatever you imagine them to be, you can
           rest assured there was a plea for her life
           and it was a plea to stop the beating, it
           was a plea for her last breath, and he
           ignored it; so is he due any mercy from you?
           I don't think so. He had his chance to be
           merciful. It's your chance to meet [sic]
           out justice; and if ever a beating and
           murder justified the maximum penalty, this
           one does. This one does.

The Commonwealth's Attorney ended his argument by asking the

jury to impose the maximum penalty.

     Once the jury retired to deliberate, defense counsel asked

the court for permission to put certain previous objections on

the record.   The relevant objection relating to the

Commonwealth's Attorney's argument was:

           Judge . . . I timely [objected] to [the
           Commonwealth's Attorney's] second sentencing
           closing when he was talking about
           responsibility. At that point, the Court
           allowed me to approach the bench. I asked
           for a mistrial or a cautionary instruction.
           The Court said he would sustain that
           objection.

           Judge, we would make the motion clear that
           we were asking for a cautionary instruction
           or a mistrial based upon [the Commonwealth's
           Attorney's] comments at any part of the jury
           trial were improper and intended to have
           prejudicial value; and [the Commonwealth's
           Attorney] being the experienced prosecutor
           he is, he knows better than that; and Judge,
           we're putting the objection on the record
           and preserving the objection.



                               - 8 -
                      II.   PROSPECTIVE JUROR

     Caprio first argues that although the prospective juror may

not have been subject to automatic exclusion based on the

relationship with the Commonwealth's Attorney, the failure to

disclose this relationship on voir dire prevented Caprio from

the intelligent exercise of his right to exercise a peremptory

challenge.   This argument was not presented to the trial court

with the specificity required by Rule 5A:18 and will not be

considered by us on appeal.    See Helms v. Commonwealth, 10 Va.

App. 368, 372, 392 S.E.2d 496, 498 (1990); Hogan v.

Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376 (1987).

     Caprio's second contention is that the prior relationship

between the Commonwealth's Attorney and the juror coupled with

the juror's failure to respond to the voir dire question

demonstrates the juror's partiality.

     Both the United States Constitution and the Virginia

Constitution guarantee Caprio's right to an impartial jury.     See

U.S. Const. amend. VI, XIV; Va. Const. art. I, § 8; see also

Code § 8.01-358; Rule 3A:14.   The partiality or impartiality of

an individual juror is an issue of fact that is to be determined

by the trial court.   See Watkins v. Commonwealth, 229 Va. 469,

480, 331 S.E.2d 422, 431 (1985), cert. denied, 475 U.S. 1099,

106 S. Ct. 1503, 89 L.Ed.2d 903 (1986); Brown v. Commonwealth,

28 Va. App. 315, 327, 504 S.E.2d 399, 405 (1998).   Consequently,

the trial court's decision whether to retain or exclude

                                - 9 -
individual veniremen is given deference on appeal since it is in

a position to see and hear the juror.    See Wainwright v. Witt,

469 U.S. 412, 426, 105 S. Ct. 844, 853, 83 L.Ed.2d 841 (1985);

Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391

(1990); Brown, 28 Va. App. at 327, 504 S.E.2d at 405.     When

there is a "mid-trial" challenge to a juror's impartiality, this

Court will reverse the trial court's decision to seat a

prospective juror only for an abuse of discretion.     Hunt v.

Commonwealth, 25 Va. App. 395, 399, 488 S.E.2d 672, 674 (1997).

Furthermore, we will not overturn "'the denial of a motion for a

mistrial . . . unless there exists a manifest probability that

[the ruling] was prejudicial.'"    Taylor v. Commonwealth, 25 Va.

App. 12, 17, 486 S.E.2d 108, 110 (1997) (quoting Bottoms v.

Commonwealth, 22 Va. App. 378, 385, 470 S.E.2d 153, 157 (1996)).

     The record indicates that the juror was unaffected by his

prior relationship with the Commonwealth's Attorney.

Furthermore, while under oath, the juror answered non-leading

questions in his own words and repeatedly assured the court of

his ability to remain impartial.    See Educational Books, Inc. v.

Commonwealth, 3 Va. App. 384, 389, 349 S.E.2d 903, 907 (1986)

("The evidence used to show the requisite qualifications for

impartial jury service must emanate from the juror herself,

unsuggested by leading questions posed to her."); Hunt, 25 Va.

App. at 399, 488 S.E.2d at 674 (trial court properly refused to

remove juror when juror revealed during the trial that she knew

                             - 10 -
members of the victim's family, but that this would not affect

the juror's ability to provide the defendant with a fair trial).

     The passage of over thirty years and the weak nature of the

connection between the juror and the Commonwealth's Attorney

account for both the juror and Commonwealth's Attorney's failure

to immediately recall the other.     There was no manifest

probability that Caprio was prejudiced by the court's denial of

his motion for a mistrial.

         III.   THE COMMONWEALTH'S ATTORNEY'S REBUTTAL ARGUMENT

     Caprio next contends that the Commonwealth's Attorney's

statements were improper.     Based upon the timing of the

objection and defense counsel's later explanation offered for

the record, the issue we are limited to review on appeal is the

propriety of the Commonwealth's Attorney's comments about the

jury's responsibility to the community and to the victim's

family. 3   See Humbert v. Commonwealth, 29 Va. App. 783, 791-92,

514 S.E.2d 804, 808 (1999) (limiting appeal of denial of motion

for mistrial to that which was specifically preserved in the

trial court); Rule 5A:18.

     Due to the nature and timing of the penalty phase of a

bifurcated trial, the Supreme Court of Virginia has consistently


     3
       Caprio does not, however, specify which statements he
finds objectionable. Furthermore, at trial, Caprio never
suggested what made the Commonwealth's Attorney's comments
improper. Caprio did object, however, and is now limited to the
specific objection he raised at trial.


                                 - 11 -
acknowledged the appropriateness of a deterrence argument to

persuade a jury to assign a greater sentence to a guilty

defendant.   See, e.g., Wilkins v. Commonwealth, 253 Va. 156, 482

S.E.2d 837 (1997) (Commonwealth's attorney's comments that jury

had the "opportunity as the conscience of this community to deal

with this person" and that the jury could "send the message to

[the defendant] . . . that we will not tolerate the sale and

purchase of drugs in this county" was proper at the penalty

phase of trial); Hutchins v. Commonwealth, 220 Va. 17, 20, 255

S.E.2d 459, 461 (1979) (stating that the court did not disagree

with the Attorney General's observation "that it is proper for a

prosecutor to ask a jury to fix a punishment in a particular

case that will deter others from committing like offenses").

The Commonwealth's Attorney's comments with respect to the

jury's responsibility to the community were, therefore, entirely

proper.   Neither a cautionary instruction nor a mistrial should

have been granted based on this portion of his argument.

Furthermore, references to the jury's duty to the victim's

family were also proper since the Commonwealth's Attorney was

only asking the jury to consider the loss to the family when

assigning punishment.   See George v. Commonwealth, 242 Va. 264,

281-82, 411 S.E.2d 12, 22-23 (1991), cert. denied, 503 U.S. 973,

112 S. Ct. 1591, 118 L.Ed.2d 308 (1992).




                              - 12 -
                 IV.    SUFFICIENCY OF THE EVIDENCE

     Since the Commonwealth's case involved circumstantial

evidence, Caprio claims that his conviction should be reversed

because the Commonwealth failed to exclude his reasonable

hypotheses of innocence.    We disagree.

     When the sufficiency of the evidence is challenged on

appeal, this Court considers the evidence "in the light most

favorable to the Commonwealth," affording it "all reasonable

inferences" fairly deducible from the evidence.       Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975);

Iglesias v. Commonwealth, 7 Va. App. 93, 109, 372 S.E.2d 170,

179 (1988) (en banc).     The decision of the trier of fact will

not be disturbed on appeal unless plainly wrong or without

evidence to support it.     See Wright v. Commonwealth, 224 Va.

502, 505, 297 S.E.2d 711, 713 (1982).      Determination of witness

credibility and the weight to be afforded testimony are matters

for the trier of fact.     See Swanson v. Commonwealth, 8 Va. App.

376, 378-79, 382 S.E.2d 258, 259 (1989).

     Viewed in the light most favorable to the Commonwealth, the

evidence proved that Bickley was limping the night of the murder

and was afraid to go outside alone because her ex-boyfriend

recently had been released from prison.     She was also afraid of

the dark.   Webb, her tenant, was in the process of moving his

possessions out of her house on the night of the murder.

Bickley was last seen alive at eight o'clock that night driving

                                - 13 -
off with Caprio in his truck to get beer.   At eleven o'clock,

Bickley's beaten body was found near a convenience store and

near her home.   She died by strangulation both manually and by

use of a plastic wire tie, between 8:30 p.m. and 12:30 a.m.

Caprio possessed similar tie-straps in his garage and in his

truck.   Bickley's blood was found on the shorts Caprio wore the

night of the murder.

     When Caprio made a statement to the police, he told them

that Bickley had gotten out of his truck and simply disappeared.

According to Caprio, after they left the store, Bickley acted as

if she was angry about something and kept telling him that "she

wanted out" of the truck.   He also told the police that she was

drunk, but when she was drunk she would not bother anyone.

Caprio denied that they had a fight while she was in the truck

and denied any knowledge of the murder.   At trial, however,

Caprio testified that a fight occurred en route to the store

because he would not help her evict Webb from her home.

According to Caprio, Bickley became angry and belligerent and

got out of his truck.   Furthermore, when Caprio originally told

Bickley's mother about that night, he did not mention anything

about Bickley discussing an argument with Webb.

     Whether an hypothesis of innocence is reasonable is a

question of fact, to be decided by the trier of fact.     See

Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328,

339 (1988), cert. denied, 496 U.S. 911, 110 S. Ct. 2600, 110

                              - 14 -
L.Ed.2d 280 (1990).   The Commonwealth need only exclude

reasonable hypotheses of innocence that flow from the evidence,

not those imagined by the defendant or his attorney.     See

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,

29 (1993).   The jury was entitled to reject the portions of

Caprio's testimony that were not worthy of belief.

     Caprio's hypothesis of innocence is implausible and

inconsistent.   In essence, Caprio argues that Bickley, who was

too scared to go outside alone, got out of his truck in the

middle of the street because he would not help her evict a

tenant who was already packing his possessions to leave and

that, despite her limp, she was able to walk off and disappear

in the short time it took him to circle the block.    Bickley was

last seen alive with Caprio.   She was strangled manually and

with a plastic wire tie.   Similar ties were found in Caprio's

garage and truck.   Bickley suffered extensive blows from a blunt

object.   Her blood was found on the shorts worn by Caprio that

night.    The evidence is sufficient to sustain the verdict, and

the conviction is affirmed.

                                                     Affirmed.




                               - 15 -
