dissenting.
The majority appears to have forgotten Commonwealth v. Snodgrass,1 where this Court indicated that it would give great deference to a trial court’s findings of fact regarding the validity of a prosecutor’s stated race-neutral reasons for exercising a peremptory challenge to remove an African-American juror:
The sole determination by the trial court when it holds a Batson hearing is whether the prosecutor exercised a peremptory challenge on a venireman because of his race. Batson gives great deference to the trial court in determining whether the prosecutor’s strike is racially motivated. A trial court should give appropriate weight to the disparate impact of the prosecutor’s criterion in its decision, but this factor is not conclusive in the preliminary race-neutral inquiry. The trial court may accept at face value the explanation given by the prosecutor depending upon the demeanor and credibility of the prosecutor. No additional inquiry or evidentiary hearing is required under Batson.
There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercised the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province. ”
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“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”
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[T]he trial court’s finding on the question of discriminatory intent is a question of historical fact and is not to be set aside unless shown to be clearly erroneous. 2
In this case, the prosecution articulated more than one legitimate, race-neutral basis for his peremptory challenge, and the trial court accepted one — Newberry’s apparent disinterest3 in the proceedings— and determined that the prosecution had *381not exercised its peremptory challenges in an unconstitutional manner. The majority in this case reverses Washington’s convictions, finds the trial court’s findings clearly erroneous, and implicitly finds that the only conclusion possible from the record is that the prosecution’s explanation was a pretextual justification for deliberate race-based exclusion. The majority’s holding also implies that the highly respected trial judge presiding over the case made findings in order to support a pretextual justification for the prosecution’s race-based exclusion of a juror. I find the majority opinion an inappropriate substitution of this Court’s judgment for that of the fact-finder, and I dissent from the majority opinion because I believe the record clearly supports the trial court’s findings.
After the trial court gave the jury its oath, defense counsel asked to approach the bench, and noted that neither of the two (2) African-Americans originally on the jury panel were seated on the jury. The prosecution explained that it had exercised a peremptory challenge to exclude a female African-American juror, and gave legitimate, race-neutral explanations for its challenge which the defense did not dispute. Counsel and the trial court then incorrectly suggested that the other African-American on the jury panel, Newber-ry, had been removed by lot:
Comm.: There was another fellow...
Defense: Newberry.
Court: We must have drawn his name.
Comm.: Mr. Newberry? We did not strike Mr. Newberry.
Court: His name was drawn by lot.
Comm.: O.K.
Defense: O.K., thank you.
The trial court’s bench clerk then advised the judge that the Commonwealth had exercised a peremptory challenge to remove Newberry, and the trial court asked counsel to confer at the bench:
Court: Could I see counsel here at the bench again? [To Commonwealth] Janice tells me that you struck Newberry. His name was not drawn.
Comm.: I didn’t strike Newberry. [Walks to clerk’s bench and apparently reviews his strike sheet]
Court: Ohhhhh ... God.4
Comm.: [Off-camera by clerk] I didn’t think I struck Newberry, but I can’t argue with the record. [At bench] I struck Mr. Newberry because of his youth. Also, he was ... actually I didn’t even realize that he was a black fellow, but I struck him because of his youth. Also, he indicated that he was, ah, he did not appear to be following voir dire He appeared bored by the entire process. He reacted negatively on a couple of occasions [inaudible, although it appears counsel attempted to indicate New-berry’s location in the room during the voir dire process.] Late 20’s, early 30’s, indicated boredom, indicated lack of interest in voir dire process and indicated some distaste for some of the questions. So, we struck him for those peremptory reasons.
Defense: I would object to ...
Court: That’s not good enough.
Comm.: Your Honor, the fact is that is those are the reasons.
Court: I’m saying that’s not good enough. Why didn’t you speak up and tell me when I assumed — you said you did strike one of them and I said the other one must have drawn — you should have confirmed it right then?
Comm.: Oh, O.K., [defense counsel] also struck because ... let me get you my notes just to make sure, alright? [Goes off camera, returns] He was struck, additionally, because he served on a jury panel in a prior case that resulted in an acquittal.
Court: That’s not good enough.
Comm.: Your Honor, I wouldn’t care if you put him back on and draw somebody else off.
Court: [To bailiff] Would you see if the jury has left? [To counsel] Oh, this is infuriating, I don’t know how we can do this. This is infuriating to me.
Comm.: I have the case. He was on this Pam Cummins case, and that’s the reason we struck him.
Court: That’s not ... just because he was on a jury that found somebody not guilty is not good enough.
Bailiff: [Off-camera] They’re already gone out of the building.
Court: Let’s let them go to lunch and we will discuss what to do.
The parties returned to the bench after the trial court dismissed the jury for lunch, and, after the parties argued the topic, the trial court found that the prosecution struck Newberry for a permissible, race-neutral reason:
Court: Okay, what are we going to do?
Comm.: [Inaudible, brief]
Court: Here’s the problem. [To slowly departing jurors] Would you all step out of the courtroom? We need to *382discuss a matter here, on the record. [To counsel] When I asked about the reason for his dismissal I came to believe immediately that he was one of the names that we drew out, that is not the case, and no one corrected me. The reasons you have defined for me — well go ahead and define your reasons.
Comm.: I’ve already [inaudible — counsel appears to read from a treatise] 5 ... put this man back on this jury, I’ll make no objection, and you can [inaudible],
Defense: [Inaudible]
Court: Well, I think there probably is sufficient reason to excuse the juror. I did observe that he was being somewhat inattentive. My upset is that I mistakenly believed that his name was one of those drawn and nobody corrected me and Mr. McDaniel had no opportunity to make his argument before the young man was excused. This should have been corrected.
Defense: I don’t believe the reasons given are [inaudible] and I would certainly object.
Comm.: The primary reason again [inaudible]
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Comm.: The fact of the matter is [inaudible] I went through at the end [inaudible] 5 or 6 people [inaudible]
Court: [To defense counsel] What is your response to Mr. Cleveland’s arguments about the reasons the validity of his reasons for striking Mr. New-berry?
Defense: First of all, if he was struck on youth [inaudible]
Court: I don’t know how old he is—
Counsel for the defense and the Commonwealth retrieved juror information sheets from counsel tables and returned to the bench.
Court: [Smiling] Yeah, that’s very young, we all know.
Comm.: No, he does appear young, wouldn’t you say?
Defense: I really don’t think that’s a legitimate reason. [Inaudible.] I know that Mr. Newberry [inaudible] I was walking [inaudible]
Comm.: Regardless of what you may argue that way [inaudible]
Court: I think that’s right
Without question, the Commonwealth exercised a peremptory strike which excused Newberry from the jury panel. Whether the Commonwealth did so accidentally 6 or intentionally, and if intentionally, whether the Commonwealth did so for the race-neutral reasons articulated by the prosecution or in a deliberate attempt to exclude Newberry from the panel because of his race is a factual issue to be determined by the trial court. Here, an experienced and highly respected trial judge, who had an opportunity to observe and assess the demeanor and credibility of the prosecuting attorney and who personally observed evidence of Newberry’s disinterest, found that the prosecution’s stated reasons for striking Newberry were more than pretext for unconstitutional motivations. Today’s majority sweeps the trial court’s findings to the side and makes its own determinations:
Unfortunately, after viewing the proceedings in this case, we can reach no other conclusion but that the trial court erred in ruling that the Commonwealth proffered sufficient explanations to overcome the Batson challenge. The Commonwealth’s strike of Mr. Newberry was, at best, inadver-tant, and at worst, based on something other than a race-neutral reason. Thus ... we are compelled to reverse this case for a new trial because of the prosecutor’s failure to follow the Batson rule in exercising peremptory challenges.7
I note that, although the majority reverses the conviction, it is unwilling to label the trial court’s finding’s clearly erroneous, and, although its holding requires the majority to have concluded that the record supports only the view that the Commonwealth engaged in unconstitutional, race-based exclusion, the majority dances around its conclusions regarding the Commonwealth’s racism by turning to double*383speak: “something other than a race-neutral reason.”
In Batson, the United States Supreme Court itself expressed the importance of deference to a trial court’s determination whether the prosecution’s use of peremptory challenges constituted purposeful discrimination:
“[A] finding of intentional discrimination is a finding of fact” entitled to appropriate deference by a reviewing court. Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.8
Today’s majority fails to pay even lip service to this deference, and engages in its own factfinding mission independent of our role as a reviewing Court. The prosecutor in this case stated that he struck Newber-ry because of the potential juror’s inattentiveness. The trial court stated that he, too, observed Newberry’s inattentiveness, and found the Commonwealth’s explanation sufficient. Although the majority opinion focuses on what it refers to as the Commonwealth’s disingenuous explanations, we must remember that “[t]he sole determination by the trial court when it holds a Batson hearing is whether the prosecutor exercised a peremptory challenge on a venireman because of his race.”9 I believe the trial court sits in a far better position to make this decision than this Court, and I see nothing cleai'ly erroneous about the trial court’s findings in this case. In fact, I find them clearly supported by the record.
I would affirm Washington’s convictions.
WINTERSHEIMER, J., joins this dissent.
. Ky., 831 S.W.2d 176 (1992).
. Id. at 179-180 (citations omitted).
.See Stanford v. Commonwealth, Ky., 793 S.W.2d 112, 114 (1990); United States v. Rodrequez, 859 F.2d 1321 (8th Cir.1988); United States v. Roberts, 913 F.2d 211 (5th Cir.1990).
. Although the majority opinion attributes this exclamation to the Commonwealth, I believe, based on the recording volume and the voice itself, that it came from the trial judge.
.Large portions of this discussion are inaudible apparently as a result of the failure to "lock-in” the microphone located at the bench or a malfunction of the recording equipment. Although counsel for both the Commonwealth and the defense can be seen speaking and gesticulating, no audio is available for the majority of the last portion of the argument regarding Newberry’s removal.
. I note that an accidental use of a peremptory challenge to exclude a minority member of a jury panel would not be unconstitutional because Batson only concerns “purposeful” acts of discrimination through abuse of peremptory challenges. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
. Majority Opinion at 379-80.
. Batson v. Kentucky, supra note 6 at 476 U.S. 79, 98 n. 26b, 106 S.Ct. 1712, n. 26b, 90 L.Ed.2d 69, 89 n. 21 (citations omitted).
. Commonwealth v. Snodgrass, supra note 1 at 179.