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COURT OF APPEALS OF VIRGINIA

Present:

Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Agee, Felton and Kelsey Argued at Richmond, Virginia

MERRY CHRISTINE PEASE v. Record No. 2761-00-3 OPINION BY JUDGE RUDOLPH BUMGARDNER, III DECEMBER 10, 2002

COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC FROM THE CIRCUIT COURT OF WISE COUNTY J. Robert Stump, Judge Gerald L. Gray (Robert M. Galumbeck; Gerald Gray Law Firm; Dudley, Galumbeck, Necessary and Dennis, on brief), for appellant. John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

A jury convicted Merry Christine Pease of second degree murder and use of a firearm during the murder of her husband, Dennis Pease. The defendant contends the trial placed her in

double jeopardy, the substitute prosecutor had a personal interest in the outcome of the case, and the evidence was insufficient to convict. A panel of this Court held the

defendant was not placed twice in jeopardy nor was the substitute prosecutor disqualified, but it held the evidence was insufficient and reversed the convictions. We granted a

petition for rehearing en banc and stayed the mandate of the panel decision. court. In August 1994, a jury convicted the defendant of the murder of her husband. This Court reversed the conviction Upon rehearing en banc, we affirm the trial

because the Commonwealth's Attorney examined a witness during her appearance before the grand jury and influenced the grand jury in returning the indictment. Pease v. Commonwealth, 24

Va. App. 397, 400, 482 S.E.2d 851, 852 (1997). On remand, the trial judge appointed substitute Commonwealth's attorneys, Code

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