Dupree v. Commonwealth (ORDER) ( 2006 )

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
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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
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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
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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
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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
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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
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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
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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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