                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


MICHAEL ANTHONY WINSTON
                                                 OPINION BY
v.   Record No. 1000-99-2                JUDGE JAMES W. BENTON, JR.
                                                JULY 18, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Margaret P. Spencer, Judge

            Maureen L. White for appellant.

            Steven A. Witmer, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.


     A jury convicted Michael Anthony Winston of unlawful

wounding.    On appeal, Winston contends the trial judge erred in

recalling to the venire panel a person whom the judge had

previously struck for cause.    He also contends the trial judge

erred in denying his motion for a mistrial after a witness

testified that Winston committed prior bad acts.    For the reasons

that follow, we reverse the conviction and remand for further

proceedings.




     ∗
       Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
                                I.

     The grand jury indicted Winston for malicious wounding, in

violation of Code § 18.2-51.   Prior to trial, Winston made a

motion in limine to bar one of the Commonwealth's witnesses from

testifying about thefts, prior assaults, or other prior bad acts

committed by Winston.   The trial judge denied the motion, ruling

that the purpose of the request was to sanitize the evidence.

     A panel of twenty-two prospective jurors was assembled for

Winston's trial.   During voir dire, the trial judge removed for

cause three prospective jurors, leaving only nineteen prospective

jurors from which to select a jury.    When the trial judge

realized only nineteen prospective jurors remained, she informed

both counsel that the options were to either continue the trial

to another day or agree that one side would take one less strike.

Winston's counsel informed the judge that Winston wanted his

"statutory right to a panel of twenty."   At the prosecutor's

suggestion, the judge reinstated to the panel a person who had

been removed for cause.   The trial judge conditioned the

reinstatement of that person upon the prosecutor's agreement to

exercise his first strike to remove that person.   After the trial

judge overruled Winston's objection, the prosecutor struck from

the panel the person who previously had been removed for cause.
     At the trial, Isaac Squire testified that he and his wife

separated because he was using controlled narcotics.   Squire's

wife then began a relationship with Winston.   Over Winston's

objection, Squire testified that two months after the separation,

Winston telephoned Squire and threatened to kill Squire and

Squire's wife.

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     Five months after their separation, Squire went to his

wife's home where Winston often stayed.     Squire testified that

his wife had invited him and that he went there to settle things

peaceably.   Winston answered the door wearing Squire's robe.

When Squire asked Winston to remove the robe and to leave the

house, Winston went upstairs and removed the robe.     Winston

returned to the front door, where an argument between the two men

ensued.   Squire testified that Winston pushed the door into

Squire's eye as Winston came outside.     Squire testified that when

Winston said Squire's eye was swollen, he told Winston, "Swell my

eye like you swole my wife's eye."      Referring to the motion in
limine, Winston's counsel objected to that testimony and moved

for a mistrial.   The trial judge overruled the objection and

denied the motion for a mistrial.

     Squire testified that he and Winston were threatening each

other.    Squire also testified that he could not see Winston's

hands.    Consequently, Squire pretended that he had a weapon by

putting his "hands behind [his] back like [he] had something."

During the argument, Squire told Winston he did not have a weapon

and displayed his hands.   Winston did the same.    The men then

fought with their fists.   Squire testified that he began to walk

away and that Winston walked toward the house.     Squire said he

returned after Winston verbally provoked him.     They resumed the

fistfight and the fighting "got rough."     Squire testified that

during the fight he saw a pair of scissors in Winston's hand.        As

he tried to get away, Winston stabbed him in the back with the

scissors.



                                - 3 -
       A police officer testified that she interviewed Squire at

the hospital where he was treated for a stab wound.      Later, she

arrested Winston and recovered a pair of scissors.      Another

officer testified that Winston had a large bandage on his back

that was "two by two inches."

       Winston testified that he had lived with Squire's wife for

six months.   He testified that Squire had previously threatened

him.   On the day Squire came to the house, Squire, a bigger man,

was acting aggressively with his hand behind his back.      Winston

said he grabbed scissors because he believed Squire had a weapon.

Squire threatened to kill him, pulled him out the door, and had a

sharp piece of metal in his hand.       During the fight, he stabbed

Squire with the scissors.
       At the conclusion of the evidence at the guilt phase, the

trial judge invited Winston's counsel to proffer "any reason you

think [Winston] was prejudiced by the Court's action in allowing

the Commonwealth to strike [the person who was reinstated on the

panel]."   Winston's counsel did not make such a proffer.     The

jury convicted Winston of unlawful wounding.

                                  II.

       In pertinent part, Code § 8.01-357 provides that "[o]n the

day on which jurors have been notified to appear, jurors not

excused by the court shall be called in such manner as the judge

may direct to be sworn on their voir dire until a panel free from
exceptions shall be obtained."    (Emphasis added).     In addition,

Code § 8.01-358 provides as follows:

            The court and counsel for either party shall
            have the right to examine under oath any
            person who is called as a juror therein and

                                 - 4 -
            shall have the right to ask such person or
            juror directly any relevant question to
            ascertain whether he is related to either
            party, or has any interest in the cause, or
            has expressed or formed any opinion, or is
            sensible of any bias or prejudice therein;
            and the party objecting to any juror may
            introduce any competent evidence in support
            of the objection; and if it shall appear to
            the court that the juror does not stand
            indifferent in the cause, another shall be
            drawn or called and placed in his stead for
            the trial of that case.

(Emphasis added).   "Twelve persons from a panel of twenty shall

constitute a jury in a felony case."    Code § 19.2-262(2).
     These statutes guarantee an accused the right to a panel of

twenty potential jurors who are "free from exceptions" and "stand

indifferent in the cause."    Justus v. Commonwealth, 220 Va. 971,

975-76, 266 S.E.2d 87, 90 (1980).   Virginia law is unequivocal

that "[i]t is the duty of the trial [judge], through the legal

machinery provided for that purpose, to procure an impartial jury

to try every case."    Salina v. Commonwealth, 217 Va. 92, 93, 225

S.E.2d 199, 200 (1976); see also Va. Const. art. I, § 8.

     The Commonwealth concedes that the trial judge erred in
restoring to the panel the person who earlier was removed for

cause; however, the Commonwealth argues that the error was

harmless.   We disagree.   The principle is ancient that the

"statutory requirements for impaneling jurors are mandatory."

Kennedy v. Commonwealth, 168 Va. 721, 726, 191 S.E. 634, 635-36

(1937).   Thus, any "departure from a strict observance of the

statutory provisions," when done "over the protest of the accused

. . . constitutes reversible error."    Elkins v. Commonwealth, 161

Va. 1043, 1047, 171 S.E. 602, 603 (1933).   Applying these


                                - 5 -
principles in Breeden v. Commonwealth, 217 Va. 297, 298, 227

S.E.2d 734, 735 (1976), the Supreme Court held that reversible

error occurred when the accused was denied "a right to an

impartial jury drawn from 'a panel [of twenty] free from

exceptions.'"    Id. at 300, 227 S.E.2d at 737 (citation omitted).

     This violation of Winston's statutory right to a panel of

twenty jurors "free from exception" was presumptively

prejudicial.    The trial judge reinstated to the panel a person

who was not impartial and free from prejudice.   The potential

juror's presence on the panel denied Winston the opportunity to

have another impartial person selected to sit as a juror.   That

additional juror may not have been struck by the prosecutor if a

full panel of twenty potential jurors had been provided.

Indeed, we have held that "where [an accused], as here, . . .

elects to stand on the statutory mandate of a panel of twenty

jurors, . . . he is entitled to a full panel of impartial jurors

and may not be required to accept a lesser number simply because

the Commonwealth agrees to waive one or more of its peremptory

strikes."   Fuller v. Commonwealth, 14 Va. App. 277, 281-82, 416

S.E.2d 44, 47 (1992).

     The Commonwealth contends that by exercising one of its

peremptory strikes against the biased potential juror, it removed

any prejudice to Winston and cured any error which occurred when

the trial judge re-seated the person she had stricken for cause.

We addressed a similar issue in DeHart v. Commonwealth, 19 Va.

App. 139, 449 S.E.2d 59 (1994).   The trial judge had refused to


                                - 6 -
strike for cause a potential juror, who, when asked "whether she

would base her decision on what she had read in the newspapers, .

. . replied that she 'would try not to, but I can't honestly say

I wouldn't use it because it is in my mind.'"    Id. at 140, 449

S.E.2d at 60.   As in this case, the Commonwealth contended that

DeHart was not prejudiced because the Commonwealth's attorney

used a peremptory strike to remove the potential juror.    See id.

at 142, 449 S.E.2d at 60.    Rejecting that argument, we held upon

rehearing as follows:

          Had [the potential juror] been replaced by a
          venireman who was free from exception, the
          Commonwealth might have used the peremptory
          strike exercised against [the potential
          juror] to remove a venireman who actually
          served on the jury. Thus, the composition
          of the jury panel that tried DeHart would
          have been different. This denial of his
          right to a jury chosen from a statutorily
          prescribed panel of twenty free from
          exception cannot be deemed non-prejudicial.

DeHart v. Commonwealth, 20 Va. App. 213, 216, 456 S.E.2d 133, 134

(1995) (citation omitted).

     Citing Breard v. Commonwealth, 248 Va. 68, 445 S.E.2d 670

(1994), the Commonwealth argued in DeHart that its use of a

peremptory strike to remove the potential juror rendered the

error harmless.   See 20 Va. App. at 214, 456 S.E.2d at 134.    The

Commonwealth raises that same issue again in this case and

rehashes the argument that we unanimously rejected in DeHart.      As

we said in DeHart:

          The Supreme Court based its holding on
          Breard's failure to lodge a proper
          objection. While the holding did not cite


                                - 7 -
            Rule 5:25, it fell within the ambit of that
            rule. The statement relied upon by the
            Commonwealth addressed the applicability of
            the ends of justice exception to the
            operation of the rule.

20 Va. App. at 215, 456 S.E.2d at 134.    This "ends of justice

analysis" under Rule 5:25 is not the same as a harmless error

analysis.    See Brown v. Commonwealth, 8 Va. App. 126, 131, 380

S.E.2d 8, 10 (1989) (explaining that the "ends of justice"

exception is only applied "where the error has resulted in

manifest injustice").   Indeed, neither the Supreme Court nor

this Court has ever engaged in a harmless error analysis

concerning an error of this nature.     See e.g., Medici v.

Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___ (June 9,

2000) (holding that the trial judge's failure to strike for

cause a prospective juror whose husband's murderer was

represented by Medici's counsel's employer was reversible

error).

     Because this issue falls squarely within our prior

decision, DeHart controls the resolution of this case.

Accordingly, we hold that the procedure deprived Winston of a

fundamental statutory right and constituted reversible error.

                                III.

     Winston's motion in limine raised the concern that Squire

would testify about previous incidents in which Squire claimed

Winston committed bad acts.   At trial, while explaining the

events that occurred before the fight, Squire testified

                                - 8 -
concerning an accusation that Winston had caused physical harm

to Squire's wife.

     "Evidence that shows or tends to show [an accused] has

committed a prior crime generally is inadmissible to prove the

crime charged."     Guill v. Commonwealth, 255 Va. 134, 138, 495

S.E.2d 489, 491 (1998).     On the other hand, such evidence "is

relevant and admissible if it tends to prove any element of the

offense charged."     Id.   Yet, as we have noted, "the fact that

evidence of other crimes is relevant does not end the inquiry as

to whether it was admissible.      In order for relevant evidence,

which has prejudicial aspects, to be admissible, its probative

value must outweigh its prejudice."        Rodriguez v. Commonwealth,

18 Va. App. 277, 282, 443 S.E.2d 419, 423 (1994).       In addition,

we have also noted that "[t]he prejudicial effect of the

evidence of other crimes [may be] limited by the instructions of

the court to the jury . . . [delimiting] the jury's use of the

evidence to that which was permissible and prohibited its use

for any other purpose."      Id.

     In this case, the jury was required to determine Squire's

and Winston's credibility.     Thus, the admission of Squire's

testimony about Winston's prior conduct causing the swelling of

Squire's "wife's eyes" may have unfairly undermined Winston's

credibility with the jury.     On the other hand, the evidence had

some tendency to prove the cause of the fight.       On remand, the



                                   - 9 -
trial judge is directed to consider the admissibility of the

evidence in light of the principles here discussed.

     For these reasons, we reverse the conviction and remand the

case for further proceedings.

                                         Reversed and remanded.




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