A jury found the appellant guilty of rape and fixed his sentence at forty years. On appeal, he argues that the prosecutor used peremptory challenges in a racially discriminatory manner to strike blacks from the jury in violation of the Equal Protection Clause. We find no merit in the argument and affirm the judgment of conviction.
The Supreme Court of the United States has held that a criminal defendant has
the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race or on the false assumption that members of his race as a group are not qualified to serve as jurors.
Batson v. Kentucky, 476 U.S. 79,_, 106 S. Ct. 1712, 1717 (1986) (citations and footnote omitted). We wholeheartedly follow that rationale. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).
Under Batson, a defendant who alleges improper use of peremptory challenges must establish a prima facie case of purposeful discrimination. If the defendant makes this showing, then the burden shifts to-the State to give a neutral explanation for the questioned challenges. 106 S.Ct. at 1722-23. In the present case the appellant failed to establish a prima facie case of purposeful discrimination.
In Batson, the Supreme Court noted:
[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. 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 empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
Id. (citations omitted). It is clear from the record here that the appellant and the two veniremen struck were black. Therefore, the only question remaining is whether the facts and circumstances raise an inference that the strikes were racially motivated.
Regarding this question, the Supreme Court stated:
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative.
Id. at 1723. First, there were no questions or statements made during the voir dire examination that support an inference of discriminatory purpose. Second, the striking of two jurors, standing alone, is not sufficient to establish a Batson “pattern.” See Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986); see also United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir. 1987).The appellant argues that the striking of only two jurors is sufficient if the strikes have the effect of removing all blacks from the jury. The appellant asserted below that the two veniremen struck were the only black jurors empaneled; however, this assertion was denied by the deputy prosecutor, and we are unable to determine what the true facts were. In addition, but of lesser importance, we are not given any information about the race of the two veniremen empaneled to replace those struck. In short, the appellant did not establish the very fact on which he now seeks to base his argument. Accordingly, we hold that the appellant failed to make a prima facie case of purposeful discrimination as required by Batson and Ward.
Affirmed.
Purtle, J., dissents.