VIRGINIA:

     In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 27th day of
October, 2006.


Walter Lee Dupree, Jr.,                                    Appellant,

  against                 Record No. 060216
                          Court of Appeals No. 2682-04-1

Commonwealth of Virginia,                                  Appellee.

          Upon an appeal from a judgment rendered by the Court of
     Appeals of Virginia.


     Upon consideration of the record, the briefs, and the argument

of counsel, the Court is of opinion that there is reversible error

in the judgment of the Court of Appeals.

     The Commonwealth concedes that the circuit court erred in

refusing to allow Dupree to question his own witness, Patrice

Greene, about a prior inconsistent statement.    This concession

reflects the well-established principle of law that a party may

impeach a witness who unexpectedly proves adverse.     See Code § 8.01-

403; Roberts v. Commonwealth, 230 Va. 264, 269-70, 337 S.E.2d 255,
258-59 (1985); Stoots v. Commonwealth, 192 Va. 857, 866, 66 S.E.2d
866, 871 (1951); Maxey v. Commonwealth, 26 Va. App. 514, 518-19, 495

S.E.2d 536, 538-39 (1998).

     The circuit court’s refusal to allow Dupree to impeach Greene

was not harmless error.    “[I]f one cannot say, with fair assurance,

after pondering all that happened without stripping the erroneous

action from the whole, that the judgment was not substantially

swayed by the error, it is impossible to conclude that substantial

rights were not affected . . . . If so, or if one is left in grave
doubt, the conviction cannot stand.”   Clay v. Commonwealth, 262 Va.

253, 260, 546 S.E.2d 728, 731-32 (2001).

     The only issue at trial was whether Dupree fired a gun,

wounding three victims.   Before trial, none of the witnesses to the

crimes was able to identify Dupree in a photographic “line-up.”

However, at trial, three witnesses identified Dupree as the person

who fired the gun.   As a result, issues regarding the accuracy and

the credibility of the witnesses’ testimony focused on their

recollections concerning the clothing of the person they observed

firing the gun, Dupree’s clothing, and where Dupree was seated in

the vehicle.   The witnesses produced by the Commonwealth had made

inconsistent statements on these subjects.

     Dupree produced Greene as his only witness, expecting her to

testify consistently with her previous statement to the police that

the shooter was wearing a gray coat at the time of the shootings.

Instead, Greene testified that the shooter was wearing a “black

hoodie.”   The circuit court refused to allow Dupree to impeach
Greene with her prior inconsistent statement.

     The question whether the shooter was wearing a “black hoodie”

or a gray coat was rendered a crucial issue of fact in the case as a

result of the witnesses’ inconsistent recollections on that subject.

Greene’s prior inconsistent statement that the shooter was wearing a

gray coat when the shootings occurred would have served to impeach

her trial testimony.   Additionally, the fact that she gave

conflicting testimony would have tended to discredit further the

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testimony of other witnesses who also made similar inconsistent

statements.   Because the jury may have been swayed by Greene’s

impeachment testimony, “it is impossible to conclude that

substantial rights were not affected” by exclusion of this

impeachment testimony.   Id.   Therefore, the circuit court’s

erroneous exclusion of Greene’s impeachment testimony was not

harmless error.

     Accordingly, the judgment appealed from is reversed and the

case is remanded to the Court of Appeals for further remand to the

circuit court for a new trial if the Commonwealth be so advised.
     This order shall be published in the Virginia Reports and shall

be certified to the Court of Appeals of Virginia and the Circuit

Court of the City of Virginia Beach.


JUSTICE LACY, with whom JUSTICE KINSER and JUSTICE AGEE join,
dissenting.

     I respectfully dissent from the majority's conclusion that the

trial court's refusal to allow impeachment evidence was reversible

error.

     Walter Lee Dupree was convicted by a jury in the Circuit Court

of the City of Virginia Beach of three counts each of malicious

wounding and use of a firearm in commission of a felony.    Dupree

appealed his conviction to the Court of Appeals, arguing that the

trial court erred in ruling that he could not impeach his witness

with a prior inconsistent statement and in ruling that the

Commonwealth's strike of an African-American woman from the venire

was not racially motivated in violation of Batson v. Kentucky, 476

                                   3
U.S. 79 (1986).   The Court of Appeals denied Dupree's petition on

his assertion of a Batson violation, Dupree v. Commonwealth, Record

No. 2682-04-1 (May 25, 2005), and in an unpublished opinion held

that although the trial court erred in ruling that Dupree could not

impeach his own witness with a prior inconsistent statement, such

error was harmless.   Dupree v. Commonwealth, Record No. 2682-04-1,

slip op. 6 (Dec. 28, 2005).   Dupree filed a petition for appeal in

this Court, assigning error to the Court of Appeals' determination

that the Commonwealth did not violate the principles of Batson in

using its preemptory strikes and that the trial court's error in not

allowing impeachment of his witness was harmless.      This Court

granted Dupree an appeal on both issues.
     In my opinion, the Court of Appeals correctly held that the

trial court's decision not to allow Dupree to impeach his own

witness was harmless error.   Additionally, I find this Court cannot

say that the trial court was clearly erroneous in its holding that

the reason the Commonwealth gave for striking the venireman was race

neutral and not pretextual.   Accordingly, I would affirm the

conviction.

                              Impeachment

     The Commonwealth produced three witnesses at trial – Jamar

Mayo, Andrea Logan and Vashawn Williams – who testified that they

recognized Dupree as the shooter.       All three witnesses stated they

based their identifications on facial recognition of Dupree.        The

witnesses also testified that Dupree was wearing a black hooded

sweatshirt (referred to by the witnesses as a "hoodie") during the

                                    4
shooting.

     The Commonwealth also called Detective Glenn R. Sostak, the

lead investigator in the case, who testified that during his initial

interviews with Mayo and Logan, they told him the shooter was

wearing a gray coat.   When confronted with these prior inconsistent

statements at trial, Logan testified that she might have given this

description, while Mayo testified that he did not remember giving

this description.

     Dupree called Patrice Greene as his only witness.   Dupree

anticipated Greene would testify consistently with statements she

made shortly after the shooting to police, namely that the shooter

was wearing a gray coat.   At trial Greene instead testified that the

shooter was wearing a black hoodie.   Dupree attempted to impeach

Greene with her prior inconsistent statement, however the

Commonwealth objected and the trial court sustained the objection.
     The majority opinion states Greene's "conflicting testimony

would have tended to discredit further the testimony of other

witnesses who also made similar inconsistent statements."    However,

the long established rule of this Court is that a witness' prior

inconsistent statement may only be used to discredit that witness

and is not admissible as substantive evidence in the case.    Hall v.

Commonwealth, 233 Va. 369, 375, 355 S.E.2d 591, 595 (1987).     Thus,

even if Greene's prior inconsistent statement had been admitted as

impeachment evidence, and even if the statement had the effect of

totally discrediting Greene's testimony, the statement would not

have been admissible to contradict the prosecution's witnesses as

suggested by the majority.
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     Furthermore, even if Green's impeachment could have been used

to "discredit" other witnesses, they had already been discredited in

this regard.    The jury was told, prior to Greene's testifying, that

the other witnesses had given inconsistent information regarding the

shooter.   Detective Sostak testified that witnesses Mayo and Logan

initially told him that the shooter was wearing a gray jacket,

although they testified at trial that Dupree was the shooter and he

was wearing a black hoodie.   Thus, Greene's impeachment testimony

would have only been cumulative of the inconsistent testimony by

other witnesses already before the jury.
     In Rose v. Commonwealth, 270 Va. 3, 613 S.E.2d 454 (2005), we

outlined the test for determining whether non-constitutional error

was harmless.   We stated:

          When deciding whether non-constitutional error is
     harmless in the context of a criminal proceeding, we must
     apply Code § 8.01-678 that states in pertinent part:

                When it plainly appears from the record
           and the evidence given at the trial that the
           parties have had a fair trial on the merits and
           substantial justice has been reached, no
           judgment shall be arrested or reversed . . .
           for any . . . defect, imperfection, or omission
           in the record, or for any error committed on
           the trial.

          We stated in Clay v. Commonwealth, 262 Va. 253, 259,
     546 S.E.2d 728, 731 (2001) that "in a criminal case, it
     is implicit that, in order to determine whether there has
     been 'a fair trial on the merits' and whether
     'substantial justice has been reached,' a reviewing court
     must decide whether the alleged error substantially
     influenced the jury. If it did not, the error is
     harmless."

270 Va. at 11-12, 613 S.E.2d at 458.   Given the record before us, it

                                   6
is apparent Dupree had a fair trial on the merits and substantial

justice has been reached.

     The trial court's error in preventing impeachment of Greene did

not substantially influence the jury.    As the Court of Appeals

correctly noted, the jury heard the testimony of three of the

Commonwealth's witnesses who all testified that they remembered

seeing the shooter's face and that their in-court identifications

were based on facial recognition, not the clothing worn by the

shooter.   "The jury considered the discrepancy in the testimony and

resolved it by crediting the witnesses' testimony that they saw the

shooter's face.   An impeachment of Greene on the clothing issue,

therefore, could not have substantially influenced the jury, because

the jury resolved the only issue on which her testimony was

relevant."   Dupree, Record No. 2682-04-1, slip op. at 6.

Accordingly, in my opinion, the trial court's failure to allow

impeachment of Green had no impact on the jury's decision and,

therefore, its improper omission was harmless error.

                            Batson Challenge

     At Dupree's trial, the Commonwealth's Attorney exercised three

peremptory strikes.   The first strike was Peter Mikulka, a white

retired male psychology professor.     Mikulka's wife was a retired

high school counselor.   The second strike was Keira Taylor-Banks,

an African-American woman who worked as an assistant pastor and was

married to a senior pastor in a Christian international

organization.   The Commonwealth's third strike was Ciara Freeman,


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also an African-American woman, who was single, seven months

pregnant, and worked as a recovery analyst for Bank of America.

Following the exercise of these strikes, Dupree raised Batson

challenges with respect to the Commonwealth's strikes of Taylor-

Banks and Freeman, who were the only African-American members of

the venire.

     Dupree first objected to the strike of Taylor-Banks, stating

there were no race-neutral reasons for the strike.      The

Commonwealth's Attorney responded that she struck Taylor-Banks on

the basis of her employment as an assistant pastor and her

husband's employment as a pastor.       The Commonwealth's Attorney

noted that the strike was for the same race-neutral reason that she

struck the white psychology professor, Peter Mikulka.      She stated

she was "looking for people who can . . . sit in judgment of others

and don't have any problem with that" and that she believed

"somebody with very strong religious beliefs . . . and someone who

makes a living [as an assistant pastor] would not be a good

Commonwealth juror anymore than a therapist would or somebody who's

a counselor or somebody in that sort of employment field."

     The Court found the Commonwealth's explanation to be a "race-

neutral rationale" and allowed the Commonwealth to exercise the

strike.

     Second, Dupree challenged the strike of Ciara Freeman.       The

Commonwealth's Attorney responded that her "race-neutral reason to
                                    8
strike [Freeman] is that she's seven months' [sic] pregnant."    The

Commonwealth's Attorney went on to say, "Having had two children, I

know what it feels like to be seven months' [sic] pregnant and while

she may say that she would interrupt the court if she needed to have

a bathroom break, I don't believe that's likely to happen. . . .     I

don't believe a juror is going to raise her hand and interrupt the

court in an unfamiliar, intimidating setting such as this and say,

Hey, I need to use the bathroom."

     The trial court responded "I don't think that that is race

neutral, and she . . . indicated that she was perfectly fine in

sitting and was willing to sit and . . . she didn't even indicate

that she would have a bathroom problem.   I was the one who suggested

that . . . and she said that would be fine."   The court did not

allow the Commonwealth to exercise the strike as to Freeman.

     The principles applicable to challenges of racial motivation

for the exercise of peremptory strikes on a jury panel initially

were set out in Batson v. Kentucky, 476 U.S. 79 (1986), and

subsequently have been refined in decisions of this Court.    Most

recently, the test for a Batson violation was discussed in Juniper

v. Commonwealth, 271 Va. 362, 626 S.E.2d 383 (2006), in which we

stated:

          When a defendant makes a Batson challenge to the use
     of a peremptory strike, he must show that the individual
     "is a member of a cognizable racial group," Yarbrough v.
     Commonwealth, 262 Va. 388, 394, 551 S.E.2d 306, 309
     (2001) cert. denied, 535 U.S. 1060 (2002) (quoting
     Batson, 476 U.S. at 96), and "make a prima facie showing
     that the peremptory strike was made on racial grounds."
     Jackson, 266 Va. at 436, 587 S.E.2d at 542. Mere
                                  9
     exclusion of members of a particular race by using
     peremptory strikes "does not itself establish such a
     prima facie case under Batson." Yarbrough, 262 Va. at
     394, 551 S.E.2d at 309. To establish a prima facie case,
     the defendant must also "identify facts and circumstances
     that raise an inference that potential jurors were
     excluded based on their race." Id.

          Once a prima facie case is put before the court, the
     burden shifts to the prosecution "to produce race-neutral
     explanations for striking the juror." The defendant can
     then argue that the prosecution's explanations were
     purely a pretext for unconstitutional discrimination.
     Jackson, 266 Va. at 436, 587 S.E.2d at 542.

Juniper, 271 Va. at 407, 626 S.E.2d at 412.

     This Court explained the vital role of the trial court in the

Batson challenge process in Jackson v. Commonwealth, 266 Va. 423,

587 S.E.2d 532 (2003), where we stated:    "Whether the defendant has

carried his burden of proving purposeful discrimination in the

selection of the jury is . . . a matter to be decided by the trial

court."   Id. at 436, 587 S.E.2d at 542.   We went on to say, "On

appellate review, the trial court's conclusion regarding whether

reasons given for the strikes are race-neutral is entitled to great

deference, and that determination will not be reversed on appeal

unless it is clearly erroneous.   The trial court has the unique

opportunity to observe the demeanor and credibility of potential

jurors during voir dire."   Id. (citations omitted).

     In this case, the trial court held the Commonwealth's

rationale for striking Taylor-Banks was race-neutral and not

pretextual.   The trial court directed the voir dire of potential
                                  10
jurors and observed the Commonwealth's Attorney when she responded

to Dupree's Batson challenge.    As the first hand observer, the

findings of the trial court are to be accorded great deference and,

in accordance with this Court's holding in Jackson, should only be

reversed if clearly erroneous.

     This Court has held that concern over a venireman's occupation

and religious beliefs are valid reasons for a peremptory strike.    In

James v. Commonwealth, 247 Va. 459, 442 S.E.2d 396 (1994), the

Commonwealth struck an African-American member of the jury pool

based on his profession as a nursing assistant and the two-inch long

crucifix necklace he wore.   The Commonwealth's proffered rationale,

that a nursing assistant might be more sympathetic than persons in

other professions and that the man's visible display of a religious

symbol reinforced the perception of such sympathy, was upheld by

this Court.   Id. at 463, 442 S.E.2d at 398.

     In this case, the Commonwealth's Attorney similarly struck

Taylor-Banks on the basis of her profession.   The Commonwealth's

Attorney stated she was "looking for people who can . . . sit in

judgment of others and don't have any problem with that" and that

she believed "somebody with very strong religious beliefs . . . and

someone who makes a living [as an assistant pastor] would not be a

good Commonwealth juror anymore than a therapist would or somebody

who's a counselor or somebody in that sort of employment field."

Consistent with this rationale is the fact that the Commonwealth's

Attorney previously struck Peter Mikulka, a white male psychology

professor, who she argued had similar weaknesses as a juror for the
                                   11
Commonwealth.   The trial court found this rationale to be

persuasive, and it does not appear from the record that this Court

can find the trial court's holding to be clearly erroneous.

     Given the trial court's analysis in this case, the reasons

proffered by the Commonwealth for the strike, and the precedent set

forth in James, this Court cannot say the findings of the trial

court were "clearly erroneous."   Thus, under Jackson, 266 Va. at

435-37, 587 S.E.2d at 542-43, I would affirm the ruling of the trial

court.
                               A Copy,

                                  Teste:


                                     Patricia L. Harrington, Clerk




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