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. 

 ∗

 Justice Lemons participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 

 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. 
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. 

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 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 

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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 

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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 

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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 

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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 

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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 

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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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