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. 
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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 grounds1

 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 

 1The jurisdictional argument was not pursued on appeal. 
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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 
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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, 
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 [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 
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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 
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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.