I respectfully dissent. In my opinion, the trial court’s mishandling of the Batson issue, and the admission of photographs 40 and 90 in the sentencing phase require reversal.
After a jury was selected, each party made a Batson motion. A hearing was held, and the trial judge found both appellant and the State had exercised unconstitutional peremptory strikes. The names of all jurors called in the first selection proceeding were put back in the pool, and a new jury selection proceeding commenced. One of the individuals improperly stricken by appellant was juror Cantley. Juror Cantley was called a second time, and as before the State accepted him and appellant struck him. The trial judge interjected “I’ve already ruled,” a bench conference was held, and juror Cantley was seated.
After the jury selection was complete, the judge put his ruling on the record:
I ruled at the side bar that he [defense attorney] did not have the right to again give me some race neutral reason. My idea was that if he did not have a reason then he couldn’t have a reason now and we had a discussion about it. (Emphasis added.)
Appellant was not permitted to proffer his reason for striking juror Cantley during the second proceeding.
In South Carolina, the remedy heretofore for a Batson violation has been to conduct a second jury selection proceeding de novo. State v. Jones, 293 S.C. 54, 358 S.E. (2d) 701 (1987). The majority overrules Jones’ bright line remedy and substitutes for it the vague rule that the remedy for a Batson violation is vested in the trial judge’s discretion. In my opinion, this new procedure is fraught with the potential for error and, at the least, will generate numerous appeals in which this Court will be required to define the parameters of the trial judge’s discretion. I would adhere to Jones.
The majority holds this new rule permits the trial judge to remedy a Batson violation by seating the improperly stricken juror on the jury from which he was stricken. Whatever the *60merits of such a new rule, that is not what the trial judge did in this case. I do not understand how this new remedy can be used to affirm this appeal.
De novo means to begin again “as if no proceeding whatsoever had been had in the first instance.” Nat’l Health Corp. v. DHEC, 298 S.C. 373, 378, fn. 1, 380 S.E. (2d) 841, 844, fn. 1 (Ct. App. 1989). Here, the trial judge initially complied with Jones and began the jury selection process de novo. He then sua sponte deviated from Jones and held that appellant could not strike juror Cantley or any other juror he had been found to have unconstitutionally stricken in the first proceeding regardless of the reason for the second strike. This ruling was reversible error. First, it ignores the plain meaning of the term de novo. Second, it is entirely conceivable that, in the interval between the Batson hearing and the second jury selection proceeding, appellant learned a race-neutral fact about juror Cantley which caused appellant to peremptorily strike him. Alternatively, the composition of the jury being selected de novo may have been such that appellant chose to strike juror Cantley because all remaining uncalled jurors in this second proceeding had been equivocal during voir dire about capital punishment, and he preferred to have them rather than juror Cantley seated on his jury. Compare State v. Davis, 306 S.C. 246, 411 S.E. (2d) 220 (1991) (vacillating voir dire responses by prospective capital jurors are proper grounds for peremptorily strikes) with State v. Grandy, 306 S.C. 224, 411 S.E. (2d) 207 (1991) (where no explanation given why other venirepersons were more desirable than one struck, Batson violated).
The trial judge’s ruling that no reason could support the striking of juror Cantley has deprived this Court of the ability to review whether appellant’s statutory right to a jury of his choice was violated. The majority ignores this fatal defect by finding appellant “was not denied his peremptory challenge. Rather, he was simply prohibited from exercising it in a racially discriminatory manner.” There is simply no evidence in the record that appellant struck juror Cantley for improper reasons during the de novo proceeding. The majority bolsters its unsupported finding by stating that appellant’s counsel conceded that there was no independent reason for the second strike. This alleged concession is derived from appellate coun*61set’s (who was not trial counsel) statements at oral argument. In my opinion, nothing in those responses is a concession that the second strike was racially motivated.11 would reverse and remand this capital case for a new trial. See State v. Briggs, 27 S.C. 80, 2 S.E. 854 (1887) (“The right of challenge as allowed [by statute] is regarded sacred.”).
Had this Batson error not required a new trial, I would nonetheless reverse and remand for resentencing. In my opinion, the prejudicial effect of the admission of photographs 40 and 90 so outweighed their probative value that reversal is mandated, especially since the effect of exhibit 90 was to suggest the victim had been sexually assaulted -with the broomstick even though the pathologist was unable to conclude this was so.
APPENDIX
JUSTICE 1:... Now what happens when Bradley Cantley is struck? Does defense counsel say, “I want to strike him because I struck him before and he is going to be tainted and he’s going to hold it against me?” What happens at that point? ATTORNEY: He objected and the trial court said, “Listen, I told you you can’t strike him and that’s it.”
JUSTICE 1:... And then nothing else was put on the record, was it, Mr. Attorney?
ATTORNEY: ... I believe that after all of the jury was selected I think there was some mention of it in the record. I would have to go back and look at my notes. I may be wrong.
* ‡ ‡ *
JUSTICE 1: But your understanding of the objection then by defense counsel is that it is purely an objection based on having struck him before. There isn’t any other reason we don’t know about for having struck him?
ATTORNEY: Well, no — -no. There is no other reason we don’t know of.
‡ * ‡ * #
JUSTICE 2: Was defense counsel afforded an opportunity to proffer any reason for striking juror Cantley?
*62ATTORNEY: No, your Honor, he wasn’t. I think the obvious reason in here is juror Cantley along with the other three jurors that were forced to be seated had previously been struck by him and he just didn’t want them on the jury.
* * * * *
JUSTICE 2: Was there any indication of an opportunity being afforded to articulate any basis that the second strike as to why juror Cantley would not be an acceptable juror to the defense?
ATTORNEY: The trial court wouldn’t allow anything. He just said...
JUSTICE 2: What did the trial court say?
ATTORNEY: He just said, “I’m not going to allow you to do it for any reason.”
JUSTICE 2: “I have previously ruled.”
ATTORNEY: He said, “I have previously ruled.” And, he said that “if you have done it for a racially discriminatory reason,” then he said “you cannot strike that juror again when it come up.” Then he said later, I think, he said, “you cannot do it for any reason.”
JUSTICE 2: Under the trial court’s ruling there had been a racially discriminatory reason at the first strike. That’s not before us, right?
ATTORNEY: No, your Honor, it’s not.
JUSTICE 2: And, when it comes up the second time, if something had developed, was counsel afforded an opportunity to give that reason? Say this juror had been observed talking to a police officer or any number of things that happen in the trial of cases, was he given an opportunity to give a reason? ATTORNEY: No. And I think he had a right to give that reason.
JUSTICE 1: You yourself, however, concede that the reason the juror was struck is because he struck him before. You don’t know of any other reason or anything in this record to suggest that defense counsel was prevented if he knew of some extraneous reason that cropped up between first selection and a half an hour later, the second selection, you don’t know of any other reason that developed for that strike? Do you, Attorney?
ATTORNEY: No, your Honor, I don’t.
A transcript of the relevant colloquy is attached as an appendix to this dissent.