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 
2

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 
3

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 
4

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 
5

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. 
6

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 
7

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, 
8

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 TaylorBanks 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 "raceneutral 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 
9

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 
10

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 
11

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 
12

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