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. 
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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 seizure1 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.