John Joseph Greaser v. Commonwealth ( 1995 )

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.
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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
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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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