BEFORE ROY NOBLE LEE, P.J.; ROBERTSON AND GRIFFIN, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
We are concerned today with allegations of racially motivated peremptory challenges by a prosecutor in a criminal trial, recognizing that our course must be recharted in the wake of Batson v. Kentucky, 476 U.S. ___, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986) and Griffith v. Kentucky, 479 U.S. ___, 107 S. Ct. 708, 93 L.Ed.2d 649 (1987).
In the context of today's record, where the defendant has made a prima facie showing of constitutionally impermissible exclusion in a pre-Batson but not yet final case, the matter must be remanded to the Circuit Court with instructions that a hearing be held in accordance with Batson and our discussion which follows.
Albert Leroy Williams, Defendant below and Appellant here, is a black person. On January 16, 1986, he was convicted in the Circuit Court of Harrison County of the armed nighttime burglary of the home of Mr. and Mrs. Benjamin Simpson. The record contains the testimony of both of the Simpsons that Williams was indeed the man who appeared in their living room (having entered through a bedroom window), held a knife to Mr. Simpson's stomach and stole some money from Mrs. Simpson's purse. Because of the nature of the action we take today, further details of the offense are not needed. Suffice it to say that the evidence appears such that Williams was not entitled to acquittal as a matter of law.
Our focus factually is upon the jury selection process. The record reflects that six black persons were on the original venire from which the jury was selected. One was removed by the court. Following voir dire examination, the prosecuting attorney exercised all six of his peremptory challenges. *fn1 Five of those challenges were used to strike the remaining five black veniremen. At that point, as the panel was tendered to him and before he exercised any peremptory challenges, Williams' counsel moved to quash the jury panel, citing the fact that the prosecution had exercised five of its six peremptory strikes to exclude black persons from the jury, and arguing that this action had the effect of" exclud[ing] every possible black juror in this panel. "
The record establishes that the prosecution did indeed use its peremptory strikes in a manner resulting in the removal of all black persons from the jury panel. The prosecuting attorney denied that these strikes were motivated by considerations of race but made no specific explanation of the basis of his challenges. On the basis of then existing
law requiring as prima facie evidence of a violation of Williams' rights in the premises a showing of the prosecution's continuous and systematic use of peremptory challenges to exclude racial minorities in case after case, the Circuit Court denied the motion. See Swain v. Alabama, 380 U.S. 202, 855 S. Ct. 824, 13 L.Ed.2d 759 (1965). Thereafter, Williams was found guilty and sentenced to a term of twenty years imprisonment.
The defense timely filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, the latter of which reasserted Williams' challenge to the prosecution's racially discriminatory use of its peremptory challenges. During a hearing on this issue, defense counsel testified to his observation concerning the racial composition of other criminal juries selected in Harrison County and urged the Circuit Court to require the prosecutor to state a reason into the record for his strikes on black persons. The motion for new trial was denied, again on the basis of Swain, supra. This appeal has followed.
Williams' only assignment of error is the Circuit Court's overruling of his motion for a new trial *fn2 which, of course, served to renew his motion to quash the jury panel, both made below on grounds of the prosecution's constitutionally impermissible use of peremptory challenges to strike black persons from the jury. Williams cites Batson and argues that he made a prima facie showing of the discriminatory use of peremptory challenges against black jurors, a showing we are told was not rebutted with racially neutral explanations of the prosecutor's actions.
Decided on April 30, 1986, Batson significantly altered the substantive contours of, and the procedural ground rules for, the establishment of a claim of constitutionally impermissible exclusion of black jurors via use of peremptory challenges. Batson holds that a state criminal defendant establishes a prima facie case of such a violation on a showing (1) that he is a member of a" cognizable racial group, "(2) that the prosecutor has exercised peremptory challenges toward the elimination of veniremen of the defendant's race and (3) that attendant facts and circumstances infer that these challenges were made for the purpose of striking minorities from the jury. 90 L.Ed.2d at 87. The defendant mounting such a challenge" is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of mind to
discriminate.\rquote "Id, citing Avery v. Georgia, 345 U.S. 559, 562, 73 S. Ct. 891, ...