Dennis Earl Stoneman v. Commonwealth ( 1998 )

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
- 3 -
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.
- 8 -