                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Overton and Bumgardner
Argued at Salem, Virginia


DENNIS EARL STONEMAN
                                          MEMORANDUM OPINION * BY
v.         Record No. 3069-96-3           JUDGE RICHARD S. BRAY
                                              JUNE 9, 1998
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF CARROLL COUNTY
                       Duane E. Mink, Judge
           Gary L. Lumsden (Rhonda L. Overstreet;
           Lumsden & Overstreet, on brief), for
           appellant.

           Robert H. Anderson, III, Assistant Attorney
           General (Richard Cullen, Attorney General, on
           brief), for appellee.



     A jury convicted Dennis E. Stoneman (defendant) of capital

murder, first-degree murder, and related firearm offenses.      On

appeal, defendant complains that the trial court erroneously

denied his motions (1) for a second preliminary hearing, (2) for

a continuance, and (3) to strike two prospective jurors for

cause.   Finding no error, we affirm the convictions.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.   In accord with well established

principles, "we review the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom."      Martin v. Commonwealth, 4 Va. App.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
438, 443, 358 S.E.2d 415, 418 (1987).

     The record establishes that defendant, accompanied by his

son, D.J., then age fifteen, was driving about Carroll County,

Virginia, on May 16, 1995, searching for his estranged wife.

When he encountered Tina Quesenberry, his wife's half-sister, and

her husband, Steve, he shot and killed both, following a brief

argument.   Defendant was later apprehended in North Carolina, and

the report of a psychiatric examination ordered by the Superior

Court incidental to extradition proceedings, dated June 6, 1995,

concluded that defendant was "incapable of proceeding to trial."

 Accordingly, the Superior Court ruled on June 26, 1995 that

defendant was "presently . . . incompetent [for] trial," but,

nevertheless, ordered extradition to Virginia.
     At defendant's preliminary hearing on February 29, 1996, he

moved the general district court to dismiss the prosecution on

jurisdictional grounds 1 and, alternatively, for an additional

psychiatric evaluation.    The district court denied both motions;

however, psychiatric evaluations ordered by the trial court

following indictment determined that defendant was competent for

trial "as of May," 1996.   Defendant, thereafter, moved the court

to order a new preliminary hearing, arguing that the North

Carolina finding of incompetency established that defendant had

been incapable of assisting in his defense at the prior hearing.

 Ruling that defendant had suffered no "prejudice," the court
     1
      The jurisdictional argument was not pursued on appeal.




                                - 2 -
denied his motion.

     In the months preceding trial on November 18, 1996, the

Commonwealth did not promptly and fully comply with several

discovery orders requiring, inter alia, disclosure of exculpatory

evidence to defendant.   However, by October 29, 1996, the

Commonwealth had provided defendant with evidence which he

construed as supportive of a theory that D.J. actually

perpetrated the offenses.   Thus, on November 13, 1996, and,

again, on the day of trial, defendant moved the court to continue

the proceedings to permit review and investigation of such

evidence, which motions were denied by the trial court.
     During voir dire prior to trial, venireperson Michael

McBride acknowledged reading news accounts and hearing

conversations relating to the offenses, and having a "vague

opinion of whether [defendant] is guilty."   Upon questioning,

however, McBride answered that he would "try to go by the

evidence" and that his opinion "will have no bearing whatsoever

on the evidence."    The court, therefore, determined that McBride

"can stand indifferent to the cause . . . and make his decision

in light of that evidence" and overruled defendant's challenge

for cause.

     Venireperson Carl Martin was also familiar with news

accounts of the crimes but assured the court that he had

developed no opinion and could decide the case solely upon the

evidence presented.   Martin acknowledged a friendship with Tina



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Quesenberry's family, but was certain that this relationship

would not affect his judgment.    Thus, the court again denied

defendant's challenge, finding that Martin had been "very

forthright" and "didn't waffle on any of his answers."

                     I. The Preliminary Hearing
                 If, at any time after the attorney for
            the defendant has been retained or appointed
            and before the end of trial, the court finds,
            upon hearing evidence or representations of
            counsel for the defendant . . . that there is
            probable cause to believe that the defendant
            lacks substantial capacity to understand the
            proceedings against him or to assist his
            attorney in his own defense, the court shall
            order that a competency evaluation be
            performed . . . .

Code § 19.2-169.1 (emphasis added).      Here, in denying defendant's

motion for a psychiatric evaluation, the district court

implicitly found no "probable cause" to "believe that the

defendant lacks substantial capacity to understand the

proceedings against him or to assist his attorney in his own

defense."

     "Probable cause, as the very name implies, deals with

probabilities.   These are not technical; they are the factual and

practical considerations in every day life on which reasonable

and prudent men, not legal technicians, act."      Derr v.

Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991).      The

record clearly establishes that defendant made numerous

appearances before both the general district and circuit courts

prior to the preliminary hearing, appropriately participated in




                                 - 4 -
such proceedings and failed to raise the issue of competency,

either through counsel or otherwise.     Moveover, the North

Carolina finding was specifically limited to defendant's mental

status on June 6, 1995, nearly nine months before the preliminary

hearing, while the later findings of competency in Virginia came

within three months of the disputed proceeding.      Such

circumstances clearly did not establish the requisite probable

cause as a matter of law and fully supported the trial court's

denial of defendant's motion for a new hearing.

                          II.   The Discovery

     "The suppression of exculpatory evidence upon request

violates due process where the evidence is material either to

guilt or punishment . . . ."     MacKenzie v. Commonwealth, 8 Va.

App. 236, 243, 380 S.E.2d 173, 177 (1989) (citations

omitted).Thus, failure to disclose [such] evidence requires

reversal only if the evidence was "material," and evidence is

"material" only if there is a reasonable probability that had the

evidence been [timely] disclosed to the defense, the result of

the proceeding would have been different.       A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.

Id. at 244, 380 S.E.2d at 177.     "[S]peculation and . . .

'conjecture'" will not support reasonable probability.         Id. at

245, 380 S.E.2d at 178.

     Moreover,


                                 - 5 -
          [l]ate disclosure does not take on
          constitutional proportions unless an accused
          is prejudiced by the discovery violations
          depriving him of a fair trial. So long as
          exculpatory evidence is obtained in time that
          it can be used effectively by the defendant,
          and there is no showing that an accused has
          been prejudiced, there is no due process
          violation. It is the defendant's ability to
          utilize the evidence at trial, and not the
          timing of the disclosure, that is
          determinative of prejudice.


Moreno v. Commonwealth, 10 Va. App. 408, 417, 392 S.E.2d 836, 842

(1990) (citations omitted); Novak v. Commonwealth, 20 Va. App.

373, 389, 457 S.E.2d 402, 409 (1995).
     Here, defendant complains that the Commonwealth's dilatory

discovery responses necessitated postponement of trial to

accommodate investigation and preparation of his theory that D.J.

committed the crimes. However,
          [defendant] introduced no evidence post
          verdict that he had uncovered that might have
          been obtained and been used at trial had he
          been furnished earlier [the exculpatory
          evidence][.] . . . [Defendant] cannot provide
          specific evidence of how he was prejudiced by
          not receiving timely disclosure of the
          information. The remedial relief to be
          granted by the trial court following a
          discovery violation or upon the late
          disclosure of evidence is within the trial
          court's discretion and will not be disturbed
          on appeal unless plainly wrong.

Moreno, 10 Va. App. at 420, 392 S.E.2d at 844 (citations

omitted); Code § 19.2-265.4.   Thus, defendant's "argument that

additional time or an earlier disclosure might have revealed

additional exculpatory evidence is conjectural and . . . does not

rise to the level of a due process violation" or an abuse of



                               - 6 -
discretion.     See id. at 419, 392 S.E.2d at 844 (citations

omitted).

                           III.   The Jurors

     "[I]n determining whether a prospective juror should have

been excluded for cause, we review the entire voir dire, rather

than a single question and answer."       Barnabei v. Commonwealth,

252 Va. 161, 174, 477 S.E.2d 270, 277 (1996) (citation omitted).

"'The standard to be applied by the trial court in determining

whether to retain a venireman on the jury panel is whether his

answers during voir dire examination indicate to the court
something that would prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath.'"      Moten v. Commonwealth, 14 Va. App.

956, 958, 420 S.E.2d 250, 251 (1992) (citations omitted).

"Whether a prospective juror should be excused for cause is a

matter resting within the sound discretion of the trial court,

and its action in refusing to excuse a particular venireman will

not be disturbed on appeal unless the refusal amounts to manifest

error."     Yeatts v. Commonwealth, 242 Va. 121, 134, 410 S.E.2d

254, 262 (1991) (citation omitted).

     Here, the trial court reasonably concluded that venireperson

McBride "can stand indifferent to the cause . . . and make his

decision in light of the evidence."       His assurance to "try to go

by" the evidence, considered in the context of the entire voir
dire, reveals an ability to properly discharge the




                                  - 7 -
responsibilities of jury service in accordance with the

instructions of court and attendant oath.   (Emphasis added).

See, e.g., Weeks v. Commonwealth, 248 Va. 460, 475, 450 S.E.2d

379, 389 (1994) (juror answered, "I think so," when asked if he

could serve impartially; court ruled that response must be viewed

in context of "entire voir dire" and "defer[red] to the trial

judge" who "'sees and hears the juror'"); Boggs v. Commonwealth,

229 Va. 501, 515, 331 S.E.2d 407, 418 (1985).
     Similarly, venireman Martin was "very forthright" during

voir dire, satisfying the court that he, also, was capable of

performing his duties without bias, despite exposure to news

accounts of the offenses and an acquaintance with relatives of a

victim.   See, e.g., George v. Commonwealth, 242 Va. 264, 411

S.E.2d 12 (1991) (venireman "not automatically disqualified from

acting as a juror [where] his son had served as a pallbearer at

[victim's] funeral").

     Thus, our examination of the record discloses neither an

abuse of discretion by the court nor "manifest error" in

overruling defendant's challenge to the two venirepersons.

     Accordingly, we affirm the convictions.
                                                          Affirmed.




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