                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Moon, Judge Fitzpatrick and
          Senior Judge Hodges
Argued at Alexandria, Virginia

JOHN JOSEPH GREASER

v.       Record No. 1056-94-4         MEMORANDUM OPINION * BY
                                      JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA                 DECEMBER 5, 1995


             FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                        James L. Berry, Judge
            E. Eugene Gunter for appellant.

            Michael T. Judge, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     The appellant, John Joseph Greaser, was convicted by a jury

of driving after having being declared an habitual offender, a

felony, pursuant to Code § 46.2-357(2).   On appeal, appellant

contends that the trial judge erred (1) in allowing counsel to

repeat their peremptory strikes and (2) in admitting evidence

that appellant smelled of alcohol and in refusing to admit

evidence that appellant was acquitted of driving while

intoxicated.   Finding no error, we affirm.

                      I. The Peremptory Strikes
            The United States Supreme Court has outlined
            the procedure for determining whether a
            prosecutor exercised a peremptory strike to
            remove a prospective juror solely on account
            of the juror's race. A defendant must first
            establish a prima facie showing that the
            peremptory strike was made on the basis of
            race. At that point, the burden shifts to
     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
          the prosecution to produce explanations for
          striking the juror which are race-neutral.
          Even if race-neutral, the reasons may be
          challenged by the defendant as pretextual.
          Finally, the trial court must decide whether
          the defendant has carried his burden of
          proving purposeful discrimination by the
          prosecutor in selecting the jury panel. On
          appeal, the trial court's findings will be
          reversed only if they are clearly erroneous.


Buck v. Commonwealth, 247 Va. 449, 451, 443 S.E.2d 414, 415

(1994) (citations omitted).   See also James v. Commonwealth, 247

Va. 459, 442 S.E.2d 396 (1994).
     After appellant made his Batson challenge, the prosecutor

explained that he struck Cecily Haston, an African-American, and

not Carolyn Rosenberger, who is white, because Haston indicated

she had a personal friendship with appellant's mother-in-law.

Rosenberger, on the other hand, knew appellant's mother-in-law

because they worked at the same place.   In his explanation, the

prosecutor suggested that he used his last available peremptory

strike to strike Haston, when he explained that he "was trying to

decide between the two."   After hearing the prosecutor's

explanation, the trial judge stated, "I don't think that I can

accept that as a valid reason, and not have struck the other

people who expressed a similar relationship."   Without expressly

finding discrimination, the trial judge ruled that the parties

would have to exercise their peremptory strikes anew.    During

this second procedure, the prosecutor struck Haston and

Rosenberger.

     The trial judge noted that he "ordered that the jury be re-


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struck" because Haston and Rosenberger "expressed a similar . . .

not exactly the same, but a similar relationship" with

appellant's mother-in-law.   Appellant reiterated his Batson

challenge, but the trial judge found that the Commonwealth

provided a "race-neutral explanation for the striking of Ms.

Haston."

     A defendant is not constitutionally entitled to be tried by

a jury made up of members of any particular race as long as the

jury was selected pursuant to nondiscriminatory, neutral

guidelines.    Winfield v. Commonwealth, 12 Va. App. 446, 448, 404

S.E.2d 398, 399 (1991), aff'd on reh'g en banc, 14 Va. App. 1049,

421 S.E.2d 468 (1992).   "The manner in which jury selection is

conducted is within the discretion and control of the trial

court, guided by statute and rule of court.    See Code § 8.01-358;

Rule 3A:14."    Buchanan v. Commonwealth, 238 Va. 389, 400, 384

S.E.2d 757, 764 (1989), cert. denied, 110 S. Ct. 880 (1990).      By

ordering the parties to exercise their peremptory strikes a

second time and withholding his findings as to whether the

Commonwealth violated Batson, the trial judge did not abuse his
discretion.    See id.; cf. Ellerbee v. State, 450 S.E.2d 443,

447-48 (Ga. Ct. App. 1994) (after initial determination that

race-neutral reason not given for peremptory strike, trial court

ordered parties to restrike jury before making final decision as

to discriminatory intent).

     Because Rosenberger and Haston were ultimately struck, the




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trial judge's deferred finding that there was no purposeful

discrimination was not clearly erroneous.




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                    II.   The Evidentiary Rulings

     "Evidence is admissible if it is both relevant and

material."   Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361

S.E.2d 436, 441 (1987).    "Evidence is relevant if it has any

logical tendency, however slight, to establish a fact at issue in

the case."   Ragland v. Commonwealth, 16 Va. App. 913, 918, 434

S.E.2d 675, 678 (1993).    "'Upon finding that certain evidence is

relevant, the trial court is then required to employ a balancing

test to determine whether the prejudicial effect of the evidence

sought to be admitted is greater than its probative value.'"      Id.

(quoting Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d

197, 203 (1988)).   On appeal, a trial judge's ruling that the

probative value of admitting relevant evidence outweighs any

incidental prejudice to the accused will be reversed only on a

clear showing of an abuse of discretion.    Lewis v. Commonwealth,

7 Va. App. 596, 602, 376 S.E.2d 295, 298, aff'd on reh'g en banc,

8 Va. App. 574, 383 S.E.2d 736 (1989).

     Evidence that appellant smelled of alcohol was admissible

and was a factor that the jury could consider in determining

whether appellant's driving endangered life, limb, or property.
See Simon v. Commonwealth, 220 Va. 412, 416-19, 258 S.E.2d 567,

570-73 (1979) (holding that evidence of alcohol consumption was

admissible to show reckless disregard of human life in retrial of

prosecution for vehicular manslaughter).    The evidence showed

that appellant's car weaved in the lane and abruptly stopped.




                                 -5-
Also, appellant and his wife testified that appellant had not

consumed any alcohol.   In light of the Commonwealth's burden to

prove that appellant's driving endangered life, limb, or property

and appellant's denial that he consumed alcohol, the trial court

did not abuse its discretion in ruling that the probative value

of admitting relevant evidence outweighed any prejudice to the

accused.

     Appellant also contends that the trial judge erred in

refusing to allow him to present evidence that he was acquitted

of driving while intoxicated.   When a party presents evidence,

the other party may introduce in rebuttal any relevant evidence

that directly responds to the evidence presented.   See Satcher v.

Commonwealth, 244 Va. 220, 252, 421 S.E.2d 821, 840 (1992); see

also 23A Am. Jur. 2d Criminal Law § 1219 (1989) (prosecution or

defense may introduce in rebuttal any competent evidence that

explains or is direct reply to material evidence presented by

opponent).

     Whether appellant was intoxicated was not an element of the

crime for which appellant was on trial, nor did the Commonwealth

present evidence that appellant was intoxicated or charged with

being intoxicated.   Thus, appellant was limited to rebutting the

circumstantial evidence that appellant smelled of alcohol by

presenting circumstantial evidence that he did not drink any

alcohol.   Appellant presented appropriate rebuttal evidence when

he and his wife testified that appellant did not drink any



                                -6-
alcohol.   Accordingly, the trial judge did not abuse his

discretion by refusing to admit evidence that appellant was

acquitted of being legally intoxicated.

     For the reasons stated, we affirm the trial court.

                                              Affirmed.




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