BEFORE ROY NOBLE LEE, C.J., PRATHER AND ZUCCARO, JJ.
ZUCCARO, JUSTICE, FOR THE COURT:
Curley Dedeaux was convicted of the sale of a controlled substance by the Circuit Court of Harrison County and sentenced to thirty (30) years imprisonment, with said sentence to run consecutive with a prior sentence of fifteen (15) years for a total of forty-five (45) years to serve. Dedeaux appeals this adverse verdict and sentence making five (5) assignments of error.
On December 12, 1984, Roy Sanderfer, an agent with the Mississippi Bureau of Narcotics, was acting in an undercover capacity. On the above date, in a pre-arranged meeting, Agent Sanderfer purchased cocaine from Curley Dedeaux, a black man, for $300.00. The transaction took place in Pass Christian. Another agent was strategically placed so as to observe the transaction.
Not until September 19, 1985 was Dedeaux formally charged with selling cocaine by the Harrison County Grand
Jury. There was no arrest or preliminary hearing carried out prior to the rendition of the indictment against appellant. This was done due to the fact that there was an ongoing undercover drug operation being conducted on the Mississippi Gulf Coast that would have been "blown" if Dedeaux had been arrested or charged at an earlier date. Following the indictment, Dedeaux was arrested on October 4, 1985.
In the trial below, conducted February 24- 25, 1986, two (2) law enforcement officers testified that Dedeaux had sold the cocaine, and that he had, following the arrest, made an oral confession to the charge. Appellant denied all charges against him. At the end of the trial, a jury verdict of guilty was returned, and appellant was sentenced to thirty (30) years imprisonment, with the sentence to run consecutive with a fifteen (15) year sentence from a prior conviction for a total of forty-five (45) years to serve. From this adverse determination, Dedeaux perfected his appeal to this Court.
I. DID THE LOWER COURT ERR IN OVERRULING APPELLANT'S MOTION TO STRIKE THE JURY PANEL ON THE GROUND THAT THE STATE IMPERMISSIBLY USED ITS PEREMPTORY CHALLENGES TO STRIKE ALL MEMBERS OF APPELLANT'S RACE, THE BLACK JURORS?
In the trial below, the State utilized four (4) of its peremptory challenges to strike all four (4) remaining black members of the final jury panel made up of twenty-four (24) persons. Dedeaux entered a timely motion that the jury panel be stricken on the grounds that the State "systematically and arbitrarily" excluded members of the black race, wherein a black was being tried, for no reason through the use of peremptory challenges. The State upon request of Dedeaux refused to give any reason why the black members of the panel were stricken other than stating that such was not racially motivated. The lower court declined to make the State give its reasons for utilizing its peremptory challenges in such a manner stating, ". . . I can't make either one of you, under the law to my knowledge, state why you struck somebody peremptorily."
The present case was tried in the latter part of February, 1986. On April 30, 1986, the United States Supreme Court rendered its decision in Batson v. Kentucky, 476 U.S. ___, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986). Under Batson, a state criminal defendant can establish a prima facie case of the impermissible exclusion of black jurors through use of peremptory challenges by 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. Batson, 476 U.S. ___, 105 S. Ct. at 1722-1723, 90 L.Ed.2d at 87. Further, the defendant may rely on the fact, in making his claim, that peremptory challenges constitute a jury selection practice that provides "those to discriminate who are of a mind to discriminate." Id.
When the defendant has made a prima facie case in accord with the above standard, the burden of proof shifts to the State to come forward with a racially neutral explanation for each of the challenges. The explanation must be related to the particular case being tried. Batson, supra. The above stated Batson reasoning has been recognized and adopted by this Court. See Harper v. State, 510 So.2d 530 (Miss. 1987) and Williams v. State, 507 So.2d 50 (Miss. 1987).
As seen from the facts of the trial below, Dedeaux properly put the improper use of peremptory challenges to exclude blacks into issue, pursuant to Batson, supra. As such, the State erred when it refused to provide a neutral explanation for each of the challenges. This is not to place fault with the State for not providing or the court for not requiring neutral reasons, because Batson had not been decided at the time of trial. But, due to the fact that Batson has been given retroactive effect to all cases pending on direct review or not yet final, Griffith v. Kentucky, 479 U.S. ___, 107 S. Ct. 708, 93 L.Ed.2d 649 (1987); Harper, supra; Williams, supra, it must necessarily be the governing law of the case sub judice. In a retroactive application of Batson the case may be remanded to the trial court for ...