dissenting:
I respectfully dissent. In my view, the appellant established a prima facie showing of racial discrimination in the jury selection process, and the state failed to successfully *135rebut the inference of discrimination in the exercise of its peremptory challenges. See Batson v. Kentucky, 476 U. S. 79, 106 S. Ct. 1712, 90 L. Ed. (2d) 69 (1986), and State v. Jones, 293 S.C. 54, 358 S.E. (2d) 701 (1987). See also State v. Martinez, 294 S. C. 72, 362 S. E. (2d) 641 (1987) (Ness, C. J., dissenting).
Appellant was sentenced to death by a jury of eleven white jurors and one black juror.1 The state exercised only two peremptory challenges, both against black jurors. Appellant’s counsel objected on the ground that the jurors were excluded because of their race. Although the trial court ruled that appellant had not established a prima facie case of discrimination, it required the state to set forth reasons for exercise of its peremptory challenges.
The record reveals that the solicitor’s voir dire questioning evinces a more rigorous and detailed examination of black jurors. For example, the voir dire questioning of a black juror accepted by the state comprises approximately fifteen pages of transcript; whereas, the voir dire questioning for a white juror comprises approximately two pages.2 Furthermore, a comparison of the context of the voir dire questions shows obvious disparate treatment of black and white jurors.3 See State v. Howard, 295 S. C. 462, 369 S. E. (2d) 132 (1988) (Finney, A. J., dissenting). This type of questioning pervaded the entire voir dire aspect of appellant’s trial.
In Batson, supra, the United States Supreme Court sought to restrict a prosecutor’s use of peremptory challenges when such challenges are used against a potential juror “solely on account of... race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” 106 S. Ct. at 1719. In Bat-son, the Supreme Court promulgated the following standard for determining whether a defendant has established a prima facie case of discriminatory jury selection. First, a defendant must show that he is a member of a cognizable *136racial group and that the prosecutor exercised peremptory challenges to remove at least one member of the defendant’s race from the venire. Second, a defendant may rely on evidence, 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.’ ” Batson, 106 S. Ct. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S. Ct. 891, 892, 97 L. Ed. 1244 (1953)). Finally, a defendant must show that the aforesaid facts “and any other relevant circumstances raise an inference that the prosecutor used [the peremptory challenge] to exclude the veniremen from the petit jury on account of their race.” Batson, 106 S. Ct. at 1723. See also State v. Jones, supra. The Batson court found that “relevant circumstances” include a discernible pattern of peremptory challenges and a prosecutor’s questions and statements during voir dire questioning. Batson, 106 S. Ct. at 1723.
According to Batson, trial judges are given the discretion to determine whether a defendant has made out a case of purposeful discrimination. As guidance to the bench and bar with regard to implementing Batson, this Court has recently issued two opinions. In State v. Jones, supra, we recognized that the defendant is entitled to rely on the fact that peremptory challenges permit “those to discriminate who are of a mind to discriminate.” In accord, we recently said in State v. Oglesby, 298 S. C. 279, 379 S. E. (2d) 891 (1989), “[I]n deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Being fully familiar with the record and cognizant of the discretion afforded trial judges, I find that appellant did, indeed, raise an inference of discriminatory exclusion as prohibited by Batson.
Having determined that the court erred in finding that appellant had not established a prima facie case, it becomes necessary to ascertain whether the solicitor rebutted the inference of discrimination in the exercise of the state’s peremptory challenges. Once a defendant has made a prima facie showing of racial discrimination, the burden shifts to the state to articulate a racially neutral explanation for its challenges. Batson, supra.
*137In order to rebut a prima facie showing, a prosecutor must give a clear and reasonably specific “explanation of his ‘legitimate’ reasons” for exercising the peremptory challenges. Texas Dept, of Community Affairs v. Burdine, 450 U. S. 248, 258,101 S. Ct. 1089,1096, 67 L. Ed. (2d) 207 (1981). However, a racially neutral explanation need not rise to the level justifying exercise of a challenge for cause. Batson, supra. After the solicitor was required to present a racially neutral explanation for his jury challenges, he asserted that he relied on the advice of a Newberry County sheriff deputy and the assistant solicitor as sole justification for utilizing peremptory challenges against the black jurors. The state contends the fact that the two individuals upon whose advice the solicitor acted were black supports the theory that the solicitor’s explanations were racially neutral. I find that this rationale does not serve as the basis for a racially neutral explanation nor does it give credence to any explanation for the exercise of peremptory challenges. Allowing the solicitor to articulate the advice of others as the basis of a neutral explanation leaves the Equal Protection Clause devoid of substance. In effect, the solicitor gave no clear and reasonably specific explanation as to why the black jurors were stricken, which is contrary to the equal protection premise forming the basis of the Batson decision. Id. See also State v. Jones, supra.
For the foregoing reasons, I would vacate appellant’s death sentence and remand the case for a new sentencing proceeding.
ADDENDUM
Page A-l
As an illustration of the solictor’s disparate treatment of black and white jurors, the following is a comparison of the solicitor’s voir dire questioning of Barbara Richardson, a white juror, and Mattie Jones, a black juror, who were both seated.
BARBARA RICHARDSON
SOLICITOR: Ms. Richardson, you were speaking with Defense counsel about some matters, and I know that you said that you would have to be certain that a person accused in *138any given case was the one that actually committed the crime for which that person was accused. Let’s assume we’re talking about murder in a given case----
... I’d like to ask you this question, if your standard of proof — The Judge, of course, would, I assume, instruct you as to the law, and he might instruct you that it would be— that the state would have to prove its case beyond a reasonable doubt. His charge would be that to you. Would your certainty have to include that there was an eyewitness to the crime?
MS. RICHARDSON: No.
SOLICITOR: All right. But you would want an overwhelming and sufficient amount of evidence?
MS. RICHARDSON: I would want plenty of evidence, yes.
SOLICITOR: I gather from your responses that you’ve been very straightforward with us and that you’ve given some thought to your answers, and I do appreciate that very much, Ms. Richardson.
MS. RICHARDSON: Yes sir.
SOLICITOR: The State would present Ms. Richardson in this case.
Porto A _9
MATTIE JONES
SOLICITOR: Of course, if you were selected as a juror in any case, you would want to listen to all the evidence in determining what the proper punishment should be, is that correct?
MS. JONES: That’s right.
SOLICITOR: And that’s the way it should be. Of course, you realize the State has the burden of proof, do you not? The State of South Carolina is the one presenting the evidence and attempting to say that a particular individual is guilty of a crime. They have the burden of proving it.
SOLICITOR: They have to prove to you, and that is beyond a reasonable doubt, that the defendant is guilty.
*139SOLICITOR: Do you understand that? Reasonable doubt?
MS. JONES: Yes.
SOLICITOR: Then, in making your determination of whether or not the evidence presented is beyond a reasonable doubt, would you have to say that it’s a hundred percent positively clear?
MS. JONES: That I understand, yes.
SOLICITOR:... What is your understanding of “beyond a reasonable doubt”?
MS. JONES: Beyond a reasonable doubt? ...
THE COURT: That’s impossible to answer____
‡ # ‡ ‡ %
SOLICITOR: Let me ask you this____Do you believe that there are murders where life imprisonment is appropriate? Certain murders where life imprisonment is an appropriate punishment?
MS. JONES: Yes.
Page A-3
SOLICITOR: And you also believe that there are murders where the appropriate punishment is death by electrocution?
MS. JONES: If they show any evidence that they committed it and whatever. You know, listen to it and know the whole truth about it, and everything.
SOLICITOR: Yes ma’am. That’s what I’m asking you. I’m trying to get your feelings, like I say, your honest responses to us. Then, after you hear all the evidence in a case, if the case were such that you feel that you personally could recommend that the sentence to be imposed upon a defendant would be death by electrocution?
MS. JONES: After having all the evidence, yes.
SOLICITOR: All right. And could you also go so far as to sign your name to a piece of paper stating that that is your recommendation, that the defendant would be sentenced to death by electrocution?
MS. JONES: Yes.
SOLICITOR: You have no religious belief that would prevent you from carrying out that duty?
MS. JONES: No.
*140SOLICITOR: You have no personal belief that would prevent you from carrying out that duty?
MS. JONES: No.
SOLICITOR: And you do feel that in certain cases, there are certain murders where that [death] is the appropriate punishment?
MS. JONES: I do.
SOLICITOR: Now in deliberating — And in deliberating, you said you recognized that the facts must be proven to you; is that correct?
MS. JONES: That’s correct.
SOLICITOR: And you’re talking about the facts of the crime, is that correct?
MS. JONES: Right.
Page A-4
SOLICITOR: So you want the facts of the crime proven to you beyond a reasonable doubt, is that correct?
MS. JONES: Well, if he’s committed them, yes.
SOLICITOR: In determining whether he’s committed them, you’d use His Honor’s instructions that proof would have to go beyond a reasonable doubt?
MS. JONES: Yes.
SOLICITOR: But if the State established that proof, then you would be able to, if the State, in a particular case, weighing out both the mitigation and the aggravation, if you determined that the aggravation was such that it was such a type of murder that required a death by electrocution, you would be able to sign your name and you would sign your name to a piece of paper stating that your decision that the penalty should be death by electrocution?
MS. JONES: Yes.
SOLICITOR: Ms. Jones, I had one question I wanted to ask you, and that was: During the course of any presentation of evidence in a case — As His Honor mentioned to you, prior to this there was a finding by another jury of guilt of the Defendant. Do you follow that?
MS. JONES: Yes sir.
*141SOLICITOR: So you understand that another jury has decided that the Defendant is guilty of murder?
MS. JONES: Yes.
SOLICITOR: Do you understand that?
MS. JONES: I understand.
SOLICITOR: And you’re going to be considering testimony to decide whether that was the type murder that was aggravated to the extent that it warrants the imposition of the death penalty. Do you understand that?
MS. JONES: I understand.
Page A-5
SOLICITOR: You kind of go with the majority, or do you stand your own ground?
MS. JONES: I listen to see what other people are saying, but, you know, I usually have a say-so. I usually decide my own — have my own opinion about it.
SOLICITOR: Okay. So you have your own opinion about what something is, but you would also listen to the other people’s opinions?
MS. JONES: Well, to a certain extent, I would listen, but I have my own decision.
SOLICITOR: And what did you determine that you feel about the death penalty?
MS. JONES: Well, if the person committed the crime and they sentenced him to die in the electric chair, that I was agreed with them.
SOLICITOR: It didn’t offend your sensibilities as a human being?
MS. JONES: No.
Page A-6
This is an example of a question posed to Ms. Jessie Bates, a black juror, who was stricken by the state.
SOLICITOR: ... I want you, if you will, to think about it [imposing the death penalty] for a minute, because in any case that you might be on, you might have to make that decision, and you’d want to be sure in your heart and your mind and your conscience that you would be able to make *142that decision. I want you to think about it for a minute. You’ve got aggravating circumstances and mitigating circumstances in a murder, any particular murder, and then of course the jury would deliberate. But what I wanted to know is: In a particular case, if you weighed the evidence — and you think about it before you answer and let me know if Jessie Bates would be able, if you weighed the evidence and determined that the evidence would warrant the death penalty, would Jessie Bates be able to take part and be a part of recommending that someone be sentenced to death by electrocution in the electric chair and be part of that and write your name down on a piece of paper stating that you would be a part of recommending that somebody die in the electric chair? I just want to know if you had thought about it and if you were sure that if the circumstances were appropriate, that you would be able to do that, in your own conscience and your own mind and heart? I just want to know how you felt about that, because if you were called on to do that, it might be possible that you’d be required to do that, and we wouldn’t want you to be put in the position of doing anything that you couldn’t do. I want you to think about it, if you would, and let me know if you could and would do that.
See Addendum, Pages A-l through A-5, illustrating the voir dire questioning of jurors Richardson and Jones, respectively.
See Addendum, Page A-6, for an example of one question posed to Ms. Jessie Bates, a black juror who was stricken by the state.