State v. Prentiss Quick

*147Justice Frye

dissenting.

Drawing lines is not easy — in life or in law. Nevertheless, sometimes the line has to be drawn. In State v. Ross, 338 N.C. 280, 449 S.E.2d 556 (1994), the prosecutor used his only peremptory challenge against a black juror. Although defendant was black and the victim white, we held that no prima facie case of purposeful racial discrimination had been shown, and the trial court did not err in failing to require the prosecutor to give a race-neutral explanation for the peremptory challenge. I joined in that decision.

Ross involved murder. In this case, defendant is charged with, among other crimes, rape and first-degree sexual offense. In Ross, the prosecutor challenged one of three black jurors peremptorily. Here, the prosecutor challenged two of four black jurors peremptorily. Although there were many more white than black jurors in the panel here, no white jurors were challenged peremptorily. Where is the line to be drawn? Would the removal of the third black juror be enough to require the prosecutor to give race-neutral reasons for exercising peremptory challenges?

The fact that a prima facie case has been established does not mean that jury selection cannot continue. The establishment of a prima facie case simply shifts the burden to the prosecutor to give a race-neutral explanation for the peremptory challenges. See Purkett v. Elem, — U.S. —, —, 131 L. Ed. 2d 834, 839 (1995). As the majority recognizes, the prosecutor’s race-neutral explanation does not have to be persuasive or even plausible. See id. But he must state a reason for the record, and that reason may be challenged by defendant. State v. Robinson, 330 N.C. 1, 16, 409 S.E.2d 288, 296 (1991); State v. Green, 324 N.C. 238, 240, 376 S.E.2d 727, 728 (1989).

As the United States Supreme Court noted in Batson, “peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ” Batson v. Kentucky, 476 U.S. 79, 96, 90 L. Ed. 2d 69, 87 (1986). Thus, under Batson, defendant can rely on the following facts and circumstances in this case to raise an inference that the prosecutor used peremptory challenges to exclude one or more veniremen from the jury on account of race: (1) a black defendant was charged with rape of a white woman, (2) the jurors challenged peremptorily were of the same race as defendant, (3) no jurors of the race of the victim were peremptorily challenged, and (4) the overwhelming majority of the jurors left on the jury were of the same race as the victim.

*148I would hold that the trial court erred by ruling that defendant failed to make out a prima facie case of racial discrimination. I would thus affirm the Court of Appeals by remanding this case to the trial court for a hearing on the Batson issue. At that hearing, the trial court should determine whether the prosecutor’s articulable reasons for peremptory challenges are race-neutral. Defendant will then be given the opportunity to provide additional evidence to rebut the State’s contentions. State v. Green, 324 N.C. 238, 376 S.E.2d 727. If defendant can establish purposeful racial discrimination, he is entitled to a new trial. If not, the trial court should order commitment to issue in accordance with the judgment entered by the trial court on 15 July 1993.

Justice WEBB joins in this dissenting opinion.