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. 
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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.