Stanley v. State

ADKINS, Judge. In this opinion we shall consider the cases of petitioner Michael Wardell Stanley (Stanley) and of appellant Clarence Haywood Trice a/k/a Benjamin Edward Chester (Trice). Both are members of the black race. Each was convicted at trial by substantially or totally white juries after most or all potential jurors who were black were excluded from jury service by peremptory challenges used by a State prosecutor.

The two cases thus present a common question: did the procedures used by the State violate the prohibition ⁵⁵ against racially discriminatory jury selection explained in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). 1 Based on the evidence concerning the prosecutors’ exercise of peremptory challenges, we shall hold that in each case a prima facie showing of purposeful discrimination in the selection of the petit jury was made. We shall invoke Md.Rule 871 to remand each case for further proceedings, the nature of which we shall describe in due course. Due to factual variations between the Trice and Stanley cases, we must discuss the issues somewhat differently in each. But first we set the constitutional scene.

I. BATSON V. KENTUCKY—ITS GENESIS AND SCOPE A. Batson v. Kentucky and the Exercise of Peremptory Challenges On 30 April 1986 the United States Supreme Court decided Batson v. Kentucky, in which the Court announced a new rule concerning the exercise of peremptory challenges in jury trials. That rule, as developed by the Court, follows from the conclusion “that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” 476 U.S. at 96 , 106 S.Ct. at 1722-1723 , 90 L.Ed.2d at 87 . With this new rule the Court rejected the evidentiary formulation of Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), which had insulated from inquiry the exercise of any peremptory challenge. “To the extent that anything in Swain ... is contrary to the principles we articulate today, that decision is overruled.” Batson, 476 ⁵⁶ U.S. at 100 n. 25, 106 S.Ct. at 1725 n. 25, 90 L.Ed.2d at 90 n. 25. For more than twenty years, Swain essentially foreclosed, in the context of the case of an individual defendant, the establishment of a violation of the equal protection clause given an apparently racially motivated exercise of a prosecutor’s peremptory challenges.

Under Swain , the significance of a defendant’s fourteenth amendment equal protection claim and the apparent perversion of the purposes of the peremptory challenge might be shown only “when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, ...” 380 U.S. at 223 , 85 S.Ct. at 837 , 13 L.Ed.2d at 774 . For more than twenty years this Swain standard presented to defendants aggrieved by the discriminatory use of peremptory challenges a virtually insurmountable burden to overcome and an almost impossible task to perform. As a result, some courts began sidestepping Swain to find protection for defendants. Some of them relied on their own state constitutions.

See, e.g., People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); and Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979). Others used a sixth amendment “cross-section of the community” jury analysis flowing from Taylor v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975), and its heritage. See McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), vacated and remanded, 478 U.S. 1001 , 106 S.Ct. 3289 , 92 L.Ed.2d 705 (1986), appeal dismissed per stipulation, No. 84-2026 (2d Cir. 23 Oct. 1986); and Booker v. Jabe, 775 F.2d 762 (6th Cir.1985), vacated and remanded, 478 U.S. 1001 , 106 S.Ct. 3289 , 92 L.Ed.2d 705 (1986), on remand, 801 F.2d 871 (6th Cir.1986), cert. denied, 479 U.S. ⁵⁷ 1046, 107 S.Ct. 910 , 93 L.Ed.2d 860 (1987). 2 Finally, in Batson v. Kentucky, the United States Supreme Court proclaimed that the Swain standard was overruled. 476 U.S. at 100 n. 25, 106 S.Ct. at 1725 n. 25, 90 L.Ed.2d at 90 n. 25. The Court recognized that in the context of petit jury selection a defendant could establish a fourteenth amendment equal protection violation using only the circumstances of the defendant’s own case. 3 ⁵⁸ “[A] consistent pattern of official racial discrimination” ■was not “a necessary predicate to a violation of the Equal Protection Clause.” Id. at 95 , 106 S.Ct. at 1722, 90 L.Ed.2d at 87 [citations omitted].

And a “single invidiously discriminatory governmental act” was not “immunized by the absence of such discrimination in the making of other comparable decisions.” Id. To be consistent with the promise of equal protection to all, evidentiary requirements would not “dictate that ‘several must suffer discrimination’ before one could object.” Id. at 95-96 , 106 S.Ct. at 1722, 90 L.Ed.2d at 87 [citations omitted]. Batson set a new standard to follow. 4 The Supreme Court declined, “however, to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.” Batson, 476 U.S. at 99 , 106 S.Ct. at 1724 , 90 L.Ed.2d at 89-90 [footnote omitted]. So for the past two years, as we shall see, state and federal courts have been fleshing out and filling in the gaps in their attempts to implement the Batson rule.

This is our first opportunity to do likewise. 5 Specifically, in ⁵⁹ these cases we address the procedures necessary to establish and deal with a prima facie case of a discriminatory exercise of peremptory challenges. B. The Batson Procedures In Batson , the Supreme Court concluded that by using evidence concerning the prosecutor’s exercise of peremptory challenges, a defendant could establish “a prima facie case of purposeful discrimination in selection of the petit jury.” Batson, 476 U.S. at 96 , 106 S.Ct. at 1722 , 90 L.Ed.2d at 87 . The Court said: To establish such a case, the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant 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 a mind to discriminate.” ____ Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. Id. at 96 , 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88 [citations omitted]. 6 ⁶⁰ The Supreme Court cited Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981), and other Title VII 7 cases such as McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), and United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 , 103 S.Ct. 1478 , 75 L.Ed.2d 403 (1983), for an explanation of the operation of prima facie burden of proof rules. See also State v. Antwine, 743 S.W.2d 51, 63 (Mo.1987), cert. denied, — U.S. -, 108 S.Ct. 1755 , 100 L.Ed.2d 217 (1988) {‘‘Batson intimates that it should be read side-by-side with the Supreme Court’s Title VII cases”).

See Batson, 476 U.S. at 94 n. 18, 106 S.Ct. at 1721 n. 18, 90 L.Ed.2d at 86 n. 18. Although the phrase “prima facie case” “may be used by courts to describe the plaintiff’s burden of producing enough evidence to permit the trier of fact to infer the fact at issue,” in the Title VII context (and by implication, the Batson context), the phrase denotes “the establishment of a legally mandatory, rebuttable presumption.” Burdine, 450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7, 67 L.Ed.2d at 216 n. 7. Also see B. Garner, A Dictionary of Modern Legal Usage 434 (1987) (citing Burdine for “prima facie case”). The Supreme Court was confident that trial judges, experienced in supervising voir dire, would “be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” Batson, 476 U.S. at 97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 .

It cautioned, however, that “[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances.” Id. at 96-97 , 106 S.Ct. at 1723, 90 L.Ed.2d at 88 . By way of illustration the Court observed that a “pattern” of strikes against black jurors in the particular venire, or the prosecutor’s questions and statements during the voir dire examination and the exercise of peremptory challenges ⁶¹ might give rise to or support or refute the requisite showing. Id. at 97 , 106 S.Ct. at 1723, 90 L.Ed.2d at 88 . It is the defendant’s burden to make that prima facie showing, but once that is done, “the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” Id.

Although this requirement imposes some limitation on the peremptory character of the challenge, the Court emphasized that “the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause.” Id. On the other hand, though, “the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race.” Id. And the prosecutor may not rebut the defendant’s case “merely by denying that he had a discriminatory motive or ‘affirmpng] [his] good faith in making individual selections.’ ” Id. at 98 , 106 S.Ct. at 1723, 90 L.Ed.2d at 88 [citations omitted]. If the trial court should accept mere general assertions of racial assumptions or nondiscriminatory purposes as rebutting a defendant’s prima facie case, then “the Equal Protection Clause ‘would be but a vain and illusory requirement.’ ” Id. [citations omitted].

Therefore, the prosecutor “must articulate a neutral explanation related to the particular case to be tried.” Id. [footnote omitted]. As the Court had explained in another context, “the prosecutor must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” Id. at 98 n. 20, 106 S.Ct. at 1724 n. 20, 90 L.Ed.2d at 88 n. 20, quoting Burdine, 450 U.S. at 258 , 101 S.Ct. at 1096 , 67 L.Ed.2d at 218 . Further examination of Batson and the Title VII cases has convinced us that the defendant has the ultimate burden of persuading the court there has been intentional racial discrimination. See Batson, 476 U.S. at 94 n. 18, 106 S.Ct. at 1721 n. 18, 90 L.Ed.2d at 86 n. 18, and Burdine, 450 ⁶² U.S. at 256, 101 S.Ct. at 1095 , 67 L.Ed.2d at 217 .

So, once the prosecutor has come forth with reasons to rebut the defendant’s case, the defendant then “must be afforded a fair opportunity to demonstrate that [the prosecutor’s] assigned reason for [the peremptory challenge] was a pretext or discriminatory in its application.” Paraphrasing McDonnell Douglas, 411 U.S. at 807 , 93 S.Ct. at 1826-1827 , 36 L.Ed.2d at 680 . But compare United States v. Davis, 809 F.2d 1194 (6th Cir.) cert. denied, — U.S. -, 107 S.Ct. 3234 , 97 L.Ed.2d 740 (1987) (Batson does not require a defense rebuttal) with United States v. Alcantar, 832 F.2d 1175 (9th Cir.1987) (the defendant has a right to rebut the government’s explanations as pretextual), and Williams v. State, 507 So.2d 50, 53 (Miss.1987) (the defendant may be afforded the opportunity to challenge and rebut any “neutral, non-race based Batson -conforming explanations”). And see United States v. Tucker, 836 F.2d 334, 340 (7th Cir.1988) (“[W]e believe that adversarial hearings are the appropriate method for handling most Batson -type disputes”). We read Batson as allowing rebuttal as per the Title VII cases.

Burdine continues to instruct that the defendant “may succeed in this [rebuttal] either directly by persuading the court that a discriminatory reason more likely motivated the [prosecutor] or indirectly by showing that the [prosecutor’s] proffered explanation is unworthy of credence.” Paraphrasing Burdine, 450 U.S. at 256 , 101 S.Ct. at 1095 , 67 L.Ed.2d at 217 . And once the trial court has all the facts and arguments before it, it “then will have the duty to determine if the defendant has established purposeful discrimination.” Batson, 476 U.S. at 98 , 106 S.Ct. at 1723-1724 , 90 L.Ed.2d at 88-89 [footnote omitted]. If that finding is made, the court must take appropriate remedial action. 8 Also see generally, 5 L. McLain, Maryland Prac ⁶³ tice: Maryland Evidence, §§ 300.1-300.6 (burdens) and §§ 303.2-303.5 (presumptions) (1987). In sum, the Batson decision “enforces the mandate of equal protection and furthers the ends of justice,” thereby assuring that “no citizen is disqualified from jury service” because of race. 476 U.S. at 99 , 106 S.Ct. at 1724, 90 L.Ed.2d at 89 [footnote omitted].

At the same time, the Batson majority disclaimed any intention of abolishing peremptory challenges: The standard we adopt under the Federal Constitution is designed to ensure that a State does not use peremptory challenges to strike any black juror because of his race. We have no reason to believe that prosecutors will not fulfill their duty to exercise their challenges only for legitimate purposes. Certainly, this Court may assume that trial judges, in supervising voir dire in light of our decision today, will be alert to identify a prima facie case of purposeful discrimination. Nor do we think that this historic trial practice, which long has served the selection of an impartial jury, should be abolished because of an apprehension that prosecutors and trial judges will not perform conscientiously their respective duties under the Constitution.

Id. at 99 n. 22, 106 S.Ct. at 1724 n. 22, 90 L.Ed.2d at 89 n. 22. With these principles in mind, we proceed to consideration of the application of Batson’s principles as we turn to the facts in Stanley’s case. ⁶⁴ II. APPLICATION TO THE FACTS IN NO. 82, STANLEY V. STATE Petitioner Michael Wardell Stanley was charged with murder, robbery with a deadly weapon, and use of a handgun in the commission of a crime of violence. A jury in the Circuit Court for Prince George’s County, the Honorable Vincent J. Femia, presiding, convicted him of those offenses.

The court merged the robbery count into the felony murder count and imposed concurrent sentences of incarceration for life and 20 years. The Court of Special Appeals affirmed. Stanley v. State, No. 1175, September Term, 1986 (Md.App., filed 21 April 1987) (per curiam). We issued the writ of certiorari. 310 Md. 276 , 528 A.2d 1287 (1987).

The jury selection aspect of Stanley’s trial occurred on 4 and 5 June 1986, just over a month after the Batson decision. Because the State had filed notice of its intention to seek the death penalty, the pool of jurors was larger than usual and the selection process was conducted in several phases. 9 During the first phase, conducted in open court, the court asked of the entire assembled jury array general qualification questions concerning knowledge of the case and participants, connections with legal employment, contacts with crime and the criminal justice system, and so forth. Any individual indicating that he or she had a response to the court’s questioning was allowed to give the answer and was then further questioned by the court and counsel before being retained in the venire or excused for cause. The second phase of jury selection dealt solely with the death penalty qualification of the jury.

Prospective jurors were individually called into the jury room where they were questioned by the court about whether their views concerning the death penalty would prevent them from rendering a fair and impartial verdict. Anyone indicating he or she ⁶⁵ would have difficulty being impartial was excused for cause. At the end of all death qualifications, defense counsel reiterated an objection they had made to the procedure that had been used. However, at this time one of them also raised an objection to the racial composition of the entire venire.

In the course of the discussion, counsel pointed out that the county was approximately 50 percent black, and that out of the 85 announced jurors on the panel, there were only 18 blacks—a 21 percent proportion only. Counsel further objected that three of those blacks were excluded by the court for their beliefs about the death penalty without an opportunity for counsel to question them. The court responded that the excluded jurors were clearly unequivocal in their beliefs and how it might affect their jury function; that whites and blacks were excluded in the same proportion as that observed on the panel; and that the jury list was prepared by a random selection, with no racial designation on it. Counsel’s challenge to the array was denied.

The court then proceeded to the next stage of the jury selection process where, on an alternating basis, defense counsel and the prosecutor were allowed to exercise their peremptory challenges. The defense used its twenty strikes and the prosecution used its ten. Of the State’s ten challenges, the first five were used to excuse black people. With its sixth challenge, the State excused a white woman who had said she was “firmly opposed to the death penalty,” and placed “a very high value on life.” With challenges seven and eight, two more black people were removed.

The ninth challenge removed a white woman who had stated at the death qualification phase that she had “heard the other ones and it didn’t make any difference.” Finally, an eighth black person was removed with the State’s tenth and last challenge. In sum, the State had used 80 percent of its challenges to remove black people. ⁶⁶ After the alternates were selected but before the jury was sworn, Stanley objected to the State’s exercise of its peremptory challenges: [DEFENSE COUNSEL]: May it please the Court. The records that we have kept, and I submit we kept close records of this, indicated that the State in its exercise of its peremptory challenges excluded from the panel nine out of the total of 18 blacks that were on the panel. Nine out of 10 of the strikes that were taken by the State’s Attorney were members of the black race____ Defense counsel proceeded to name the excluded black jurors at which point the court questioned the race of one juror listed.

The discussion continued with an indication of the race of the defendant, the victim, and the key State witness as black, and the race of the majority of the other State witnesses as white. At this point the prosecutor interjected: [ASS’T STATE’S ATTORNEY]: He is assuming the witness list are the people that will actually testify during the trial, and at this point I don’t think that is a fair assumption. THE COURT: Is your motion, [Defense Counsel], that the State has acted improperly by exercising its peremptory challenges in such a way as to unbalance the jury racially? [DEFENSE COUNSEL]: Yes. [ASS’T STATE’S ATTORNEY]: Your Honor, for the record I would point out, and I believe that [Defense Co-Counsel] wanted this on the record earlier. The actual jury panel that we had to pick from, which obviously the State’s Attorney’s Office has no way of forming.

We get it just the way the Defense does. It was approximately 75 percent white as a panel. [DEFENSE COUNSEL]: It was more than that. [ASS’T STATE’S ATTORNEY]: If we look at the jury that has in fact been selected you will find that three out of the 12 jurors actually on the jury are black. That ⁶⁷ would approximately be 75 percent. So that would be a direct correlation to what the panel was, what the State and the Defense had to choose from originally.

If his objection is on an individual basis that each one when I struck the individual he wanted to object because he thought I was striking an individual because of their race, it is my understanding that the Defense has the burden at that point to ask to approach the bench. I think the case is Batson versus Kentucky. At that time if you felt I did something improper you would be able to inquire of me what my exact reason was, even though it was a peremptory challenge. If his argument is as a whole the way it was done I would just submit on what I have already argued.

Defense counsel disputed the prosecutor’s reading of Batson , claiming instead that it was clear the State had systematically attempted to severely limit the number of blacks on the jury and had succeeded through the exercise of eight out of 10 peremptory challenges to black jurors alone. At this juncture, defense counsel thought the State should be required to explain the basis of its challenges so it would be clear they were not racially motivated. The court, however, simply noted for the record the race of the excluded jurors and proceeded to name them. At that time, though, another dispute arose as to the race of one of the named jurors.

The court then said: THE COURT: You see the problem is Ms. Lewis may well have been black. The problem is we in Prince George’s County gave up keeping track of people’s colors 17 years ago. We don’t keep a record of people’s races. The computer doesn’t have the racial designation on it when it selects people.

Somebody will be in trouble if this issue is appealed trying to figure out what color this list was because by law we may not keep racial designations. So the Supreme Court in its efforts in the Batson case has really put the rest of the world in trouble. They have been ⁶⁸ telling us for 30 years don’t make any decisions predicated upon race, creed, color, religion, national origin, and Article 46 says sex. So we stopped doing all of that.

The next thing they want to know is what color is everybody. You can’t have it both ways. I will tell you at this point I am the lowly trial judge, and I am at a loss as to what to do except to tell you, [Defense Counsel], I perceive no more indication of striking blacks on the part of the State than I do on your part. I notice that your very first strike, second strike—no, your very first strike was Mr. Ronald Dendy.

Then it was Mrs. Shirley Thomas. You can go on through like that. I don’t perceive it as trying to find out who is more white or black. God forbid we go back to those days.

I just see no racially motivated evidence of—evidence of racially motivated exercise of the strikes in this court. I deny your motion. Maybe at some later date someone will tell me how to do it. They will have a real problem, a real problem.

I’m not sure about the rest of Maryland, but they have [a] real problem in Prince George’s County because we haven’t kept racial designations since 1969. I guess next we will go back to seeing the names in the newspaper, John Smith, colored. That ruling is completed, gentlemen. The day has come for us to tell the trial court “how to do it____” But first we pause for some preliminary observations on the subject of preservation of Batson issues.

The State has conceded and we agree that Stanley made a timely objection to the peremptory challenges used in this case. As indicated in the voir dire record, however, the prosecutor had stated he understood it was the defendant’s burden to object at the point of the strike of each and every individual perceived to be racially stricken. See also Chew v. State, 71 Md.App. 681 , 698 n. 7, 527 A.2d 332 , 340 n. 7, ⁶⁹ cert. granted, 311 Md. 301 , 534 A.2d 369 (1987), and No. 166 (21 January 1988) (noting Indiana and Texas cases requiring objections both when the juror is excluded and after the jury is selected but not sworn). We disagree with the Indiana and Texas viewpoint.

A Batson objection is timely if the defendant makes it no later than when the last juror has been seated and before the jury has been sworn. By waiting, rather than objecting to the first and every subsequent strike of a black juror, a clearer picture of what the State is doing may be seen; a pattern may form. And if the objection is delayed, the trial court will have before it the total facts and circumstances of jury selection and thus will be in a better position to make the necessary Batson rulings, and to apply an appropriate remedy if one is called for. See n. 8, supra.

As Judge Robert Bell stated for the Court of Special Appeals in Parker v. State, 72 Md.App. 610, 617-618 , 531 A.2d 1313, 1317 (1987): It is clear ... that a prima facie case of the unconstitutional exercise of peremptory challenges cannot be established until the relevant facts and circumstances are known and reflected in the record of the proceeding. It follows, therefore, that an objection premised upon such unconstitutional exercise appropriately may not be raised, or, at the least, is not cognizable, until the factual predicate for it exists. Ordinarily the predicate will not exist until the last member of a cognizable racial group has been stricken or the twelfth juror has been seated, although not sworn. Only then, when all of the facts and circumstances necessary to a ruling on the objection are before it, is the court enabled to assess meaningfully the validity of the objection [footnote omitted].

We add a caveat, however. While an objection made just before the jury is sworn will ordinarily be sufficient to preserve a Batson issue for appellate review, under some circumstances prudence may suggest some action at an ⁷⁰ earlier time. 10 Returning to the merits, we are initially faced with the State’s contention that, as the Court of Special Appeals concluded, Judge Femia determined that Stanley had failed to make a prima facie showing of purposeful discrimination. The State’s argument rests on the trial judge’s final remarks in the dialogue last quoted. It is impossible to tell from these remarks whether the judge was attempting to make a Batson prima facie case ruling or whether he was philosophizing in a general way about racial matters in his Prince George’s County court and in Prince George’s County in general.

Certainly, he did not enumerate the Batson criteria or articulate any specific bases for finding lack of a prima facie showing: was there a failure to meet the Batson criteria, what matters had he observed during jury selection, were there apparent reasons (based on those observations) for striking certain blacks on nonracial grounds, and the like? 11 ⁷¹ Essentially, the judge did little more than state a conclusion. This is not surprising. Although it is apparent from the quoted colloquy that both court and counsel were aware of Batson , it is also true that the case was newly decided. It is understandable that no one was fully aware of all the requirements and nuances of the case.

But be that as it may, the trial judge did not make any specific findings. Moreover, the relevant facts are not disputed. Under these circumstances we exercise our independent constitutional judgment with respect to the conclusion to be drawn from them. See Chase v. State, 309 Md. 224, 237 , 522 A.2d 1348, 1354 (1987); McIntyre v. State, 309 Md. 607, 623 , 526 A.2d 30, 37 (1987).

The object of our inquiry is to determine whether these facts demonstrate the existence of a prima facie case as a matter of law. As Batson has referred us to them, we turn to the Title VII cases for the explanation of the operation of prima facie burden of proof rules. Batson, 476 U.S. at 94 n. 18, 106 S.Ct. at 1721 n. 18, 90 L.Ed.2d at 86 n. 18. We can deduce that the prima facie showing threshold is not an extremely high one—not an onerous burden to establish.

Burdine, 450 U.S. at 253 , 101 S.Ct. at 1094 , 67 L.Ed.2d at 215 . It simply requires the defendant to prove by a preponderance of the evidence that the peremptory challenges were exercised in a way that shifts the burden of production to the State and requires it to respond to the rebuttable presumption of purposeful discrimination that arises under certain circumstances. Those circumstances, under the Batson model for a prima facie case of racial discrimination (cf., Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. at 1094 n. 6, 67 L.Ed.2d at 215 n. 6) are, first, that the defendant is a member of a cognizable racial group and that the State has used peremptory challenges to remove members of that racial group from the venire. These facts are conceded here. “Second, the defendant 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 ⁷² a mind to discriminate.’ ” Batson, 476 U.S. at 96 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 87 .

And finally, the defendant must show that these facts and any other relevant circumstances raise a rebuttable presumption that “the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Batson, 476 U.S. at 96 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 87-88 . See also State v. Slappy, 522 So.2d 18 (Fla.1988), in which the Supreme Court of Florida resisted the temptation to craft a bright-line test and obscure the issue in procedural rules governing the shifting burdens of proof. In providing broad leeway in allowing parties to make a prima facie showing that a “likelihood” of discrimination exists, the court said “we hold that any doubt as to whether the complaining party has met its initial burden should be resolved in that party’s favor. If we are to err at all, it must be in the way least likely to allow discrimination.” 522 So.2d at 22 .

What are the circumstances here? While there was a dispute over the race of one of the jurors, making it unclear whether seven or eight blacks had been stricken from the jury, we shall accept the prosecutor’s concession that there were eight. Thus, the State used 80 percent of its peremptory challenges (eight of 10 strikes) to strike blacks from the jury panel. Although three blacks survived to the final panel, the State eliminated almost one-half of the blacks on the venire by use of a highly skewed number of its peremptory challenges.

It used 80 percent of its strikes to remove blacks who constituted less than 25 percent of the venire. See, e.g., Miller-El v. State, 748 S.W.2d 459 (Tex.Crim.App.1988), a case in which there was a similar use of a highly “skewed number” of peremptory challenges to black jurors. Also see Powell v. State, 182 Ga.App. 123 , 355 S.E.2d 72 (1987), where the State exercised nine of its 10 peremptory challenges to excuse nine of the 12 black veniremen. Three blacks were on the jury, but that was not the determinative fact.

There the court said “[t]he question is whether the state exercised any of its strikes for a racially discriminatory reason, for if it did, the ⁷³ rule of Batson was violated.” Id. at 124 , 355 S.E.2d at 73 . We note in this case that the defendant, victim, and key State witness were black whereas the police officers and other witnesses were white. But we further note, as far as voir dire is concerned, that only two of the excluded black jurors indicated any response to any of the court’s questions. And based on those responses, neither juror seems a clear choice for prosecution challenges, nor do the other six blacks who gave no responses.

On the other hand, the two excluded white jurors had responded to the death qualification questioning in a manner that made it clear the State might like to exclude them. Compare these circumstances with those in State v. Robbins, 319 N.C. 465, 493-496 , 356 S.E.2d 279, 295-296 , cert. denied, — U.S. -, 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987), where the State exercised seven of its 13 peremptories to exclude blacks, yet the attendant circumstances surrounding the exercise did not raise the necessary rebuttable presumption of racial discrimination. The court there found that many of the challenged blacks had expressed reservations to the death penalty. We believe that given the circumstances and the information at hand, there was enough evidence presented to establish a prima facie case of discrimination against black jurors.

We point out that the question in this type of case is whether a legally mandatory rebuttable presumption was established to which the State will now have a full opportunity to respond. We hold that it was so established. Many other jurisdictions have reached this result on often similar facts. For example, see the following cases where prima facie showings were established: United States v. Battle, 836 F.2d 1084 (8th Cir.1987) (The government exercised five of its six (83%) allowable peremptory challenges to strike five of the seven (71%) blacks from the jury panel); Fleming v. Kemp, 794 F.2d 1478 , 1484 ⁷⁴ (11th Cir.1986) (The defendant made out, at a minimum, a colorable Batson claim as the prosecutor had used eight of ten peremptory challenges to strike blacks from the jury where the venire (after challenges for cause) consisted of only 10 blacks and some 45 whites).

Fleming went on to state: First, the court found that because all black jurors were not excluded from Fleming’s jury as they were in Batson , the latter case did not apply. But nothing in Batson compels the district court’s conclusion that constitutional guarantees are never abridged if all black jurors but one or two are struck because of their race. On the contrary, Batson restates the principle that “ ‘[a] single invidiously discriminatory governmental act’ is not ‘immunized by the absence of such discrimination in the making of other comparable decisions.’ ” ... We cannot agree that Bat-son may be rendered a priori inapplicable by a prosecutorial game of numbers.

Id. at 1483 [citations omitted]. Also see Ex parte Branch, 526 So.2d 609 (Ala.1987) (The State struck six of seven blacks from the jury venire); 12 Ward v. State, 293 Ark. 88 , 733 S.W.2d 728 (1987) (All eight of the peremptory challenges exercised by the prosecutor were used to strike black people from the jury; an all white jury convicted the black defendant); Slappy v. State, 503 So.2d 350, 352 (Fla.Dist.Ct.App.1987), decision approved, State v. Slappy, 522 So.2d 18 (Fla.1988) (The State exercised four of its six challenges to exclude black members of the prospective jury ⁷⁵ panel); Powell v. State, supra (nine of 10 challenges were used by the State to exclude nine of the 12 black veniremen); and State v. Brinkley, supra, (four or five of the State’s challenges were used to strike black jurors). 13 Since Stanley showed a prima facie case of purposeful discrimination by establishing a rebuttable presumption to that effect, what is the remedy? One possibility, obviously, is to set aside Stanley’s conviction by an arguably tainted jury, and to order a new trial. Quite understandably, that is the relief Stanley seeks.

Another possibility is a limited remand under Rule 871, to permit the State to provide, if it can, racially neutral reasons for its use of peremptories. 14 A Rule 871 remand may ⁷⁶ be appropriate “ ‘to correct procedures subsidiary to the criminal trial, [but] it can never be utilized to rectify prejudicial errors committed during the trial itself.’ ” Reid v. State, 305 Md. 9, 15 , 501 A.2d 436, 439 (1985) (quoting Gill v. State, 265 Md. 350, 357 , 289 A.2d 575, 579 (1972)) (on motion for reconsideration). Here, the peremptory strikes were exercised before the jury was sworn, and thus before the beginning of the trial on the merits. Moreover, limited remand was the remedy applied in Batson. 476 U.S. at 100 , 106 S.Ct. at 1725 , 90 L.Ed.2d at 90 . We shall order a limited remand in this case.

We are aware of Stanley’s contention that a limited remand is impracticable, given the lapse of some two years since the original jury selection. That concern was voiced in Batson also: “[I]t would be virtually impossible for the prosecutor in this case to recall why he used his peremptory challenges in the fashion he did.” 476 U.S. at 133 n. 12, 106 S.Ct. at 1742 n. 12, 90 L.Ed.2d at 111 n. 12 (Burger, C.J., dissenting). Nevertheless, the State has never had an opportunity to respond to Stanley’s prima facie showing. We again advert to the novelty of the Batson decision when jury selection was undertaken in this case and to lack of familiarity with its prescribed procedures.

As a matter of fairness, we believe the State should be afforded a chance to explain its challenges, if it can. 15 On remand, then, the trial court will accept that a prima facie showing of purposeful discrimination has been made and will conduct a hearing into the circumstances of the exercise of the State’s peremptory challenges. Other courts have, followed the same course as we are doing and have remanded for the hearings to commence at ⁷⁷ the inquiry into the prosecutor’s reasons for the peremptory challenges. See, e.g., United States v. Leslie, 813 F.2d 658 (5th Cir.1987) (Batson retroactively governs the issue of the complained of challenges and on remand the prosecution is to submit its explanations); United States v. Chalan, 812 F.2d 1302 (10th Cir.1987) (being a pre-Batson trial, neither the trial court nor the parties were aware of the standards to be used to evaluate the Government’s proffered reasons); Ex parte Branch, supra, 526 So.2d at 611 (although, based upon an independent review of the record, the appellate court felt it could reverse the case, in the interest of justice, as Batson had just been decided when the case was tried, the court remanded to give the trial court an opportunity to review again the sufficiency of the state’s explanation); Powell v. State, supra, 182 Ga.App. at 124-125 , 355 S.E.2d at 73 (circumstances raised the inference of a racially discriminatory exercise, but the appellate court could not say as a matter of law that the explanations were constitutionally sufficient, so an evidentiary hearing was necessary); Saadiq v. State, 387 N.W.2d 315, 329 (Iowa), appeal dismissed, 479 U.S. 878 , 107 S.Ct. 265 , 93 L.Ed.2d 242 (1986) (the district court was “directed to find whether the prosecutor did or did not purposefully discriminate ...”); State v. Hood, 242 Kan. 115 , 744 P.2d 816 (1987) (remanded, not for further evidence, but for further argument as to the propriety of the peremptory challenges exercised by the state); Dedeaux v. State, 519 So.2d 886, 888 (Miss.1988) (when the defendant put the use of peremptory challenges in issue, it was proper to remand to get state explanations); and Williams v. State, supra, 507 So.2d at 53 (case remanded for prosecution explanations when Williams made out a prima facie case of illicit jury strikes). At this inquiry hearing into the State’s reasons for its peremptory challenges, we point out that those challenges must not be examined in a vacuum.

Rather, each strike must be examined “in light of the circumstances under which it [was] exercised, including an examination of the explanations offered for other peremptory strikes.” ⁷⁸ State v. Martinez, 294 S.C. 72, 76 , 362 S.E.2d 641, 643 (1987) (Ness, C.J., dissenting) (citing Gamble v. State, 257 Ga. 325 , 357 S.E.2d 792 (1987)). “Rubber stamp” approval to any and all nonracial explanations offered should not be given. As to whether the prosecutor’s explanations have rebutted the defendant’s prima facie case of discrimination, two general questions arise: “First, does any non-racial reason satisfy the ‘neutral explanation’ required under Batson or must the trial judge determine that the explanations are bona fide and not ‘sham excuses belatedly contrived to avoid admitting acts of group discrimination’?” and, “[sjecond, what criteria should be used to determine if an explanation is genuine?” State v. Butler, 731 S.W.2d 265, 268 (Mo.Ct.App.1987). Batson explicitly addresses the first question. The explanation must be neutral, related to the case to be tried, clear and reasonably specific, and legitimate. 476 U.S. at 98 & n. 20, 106 S.Ct. at 1723 & n. 20, 90 L.Ed.2d at 88 & n. 20.

Batson also implicitly approves inquiry into the legitimacy of the explanations because otherwise Batson would become a right without a remedy. “Rubber stamp” approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson’s commitment to “ensure that no citizen is disqualified from jury service because of his race.” ... Without some form of inquiry, a prosecutor could easily conceal his true reason for removing black jurors by simply inventing “neutral” reasons for the strikes____ (“[A]ny prosecutor’s office could develop a list of 10 or 15 standard reasons for striking a juror: ... ”). Batson would then merely reinstate, in another form, the “mission impossible” of Swain____ Batson surely cannot be read to produce such an anomalous result. Butler, 731 S.W.2d at 268-269 [citations omitted].

With respect to the second question, there are several factors the trial judge