concurring in result.
I concur in the majority opinion except for its analysis of the prosecutor's use of peremptory challenges.
The majority opinion states that it is generally presumed the prosecution uses its peremptory challenges to obtain a fair and impartial jury. This presumption, announced in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), *984was overruled in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Speaking for the Court, Justice Powell wrote, "[Pleremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.'" Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87 (quoting Avery v. Georgia, 345 U.S. 559, 562, 78 S.Ct. 891, 892, 97 L.Ed. 1244, 1247-48 (1953)).
Despite the absence of the presumption, I join in affirming the judgment.
In a dissenting opinion, Justice DeBruler argues that when a prosecutor peremptorily challenges the only two black persons on the venire, a prima facie case of discrimination against the black defendant has been made. The holding of Batson is more complex. The defendant must show that the removal of the prospective jurors and any other relevant cireumstances raise an inference that the prosecutor is discriminating. This inquiry into whether a prosecutor is improperly using peremptory challenges is for the trial court.
In this case, the prosecutor peremptorily struck two prospective black jurors, Connie Brodie and Charles Clark. The prosecutor said he struck Brodie because she did not understand the burden of proof. Her answers during voir dire, however, do not seem to demonstrate a basis for such an assertion. By contrast, the prosecutor discovered during voir dire that Clark had previous contact with the defendant. This was a legitimate, non-racial reason for a peremptory challenge.
When defense counsel moved to discharge the jury, the trial judge did not pause to make a separate ruling on whether the defendant had made a prima facie case of discrimination under Batson. Instead, the judge simply asked the prosecutor to respond. It was an eminently practical way to direct the proceedings.
By denying the defendant's motion, Judge Brune in effect determined that the defense had not established a prima facie case, or that the prosecutor's answer was adequate, or both. Under the cireumstanc-es of this case, the trial judge was within his discretion to hold that the removal of one juror for no apparent reason, without more, did not raise an inference of discrimination. The sound exercise of this discretion is part of the Batson teaching: "We have confidence that trial judges, experienced in supervising voir dire, will 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. This was a close call, but I cannot see an adequate basis for overturning the trial court's determination.