This case is before us on certiorari from the United States Supreme Court vacating our decision reported as Cleveland v. State, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292 (1993), and remanding the case for our reconsideration in light of the Court’s decision reported as J.E.B. v. Alabama ex rel. T.B., 511 U.S._, 114 S. Ct. 1419 (1994). After a jury trial, appellant was convicted of five charges: capital murder, attempted capital murder, kidnapping, aggravated robbery, and theft of property; the kidnapping and aggravated robbery charges were merged in the capital murder conviction. Cleveland, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292. Appellant was sentenced consecutively to life imprisonment without parole for the capital murder, thirty years imprisonment for the attempted capital murder, and ten years imprisonment for the theft of property. Id. Upon appeal to this court, we affirmed the convictions. Id. We now reverse and remand this case to Desha County Circuit Court for a new trial.
During voir dire proceedings prior to the empanelment of the jury for appellant’s July 1992 trial, the following colloquy occurred:
MR. ROBINSON [counsel for defendant]: There is one more challenge. This has not yet become the law, but maybe one of these days, I guess — We noticed in the strikes that of the ten challenges, that there, the, there is a gender bias. Nine females were struck and only one male by the State.
THE COURT: All right. Are you — Are you raising that as an objection to the use of the, the nine female strikes by the State?
MR. ROBINSON: Yes, sir. I have no case authority as the Court is well aware.
THE COURT: The Court is frankly not aware of any at this time. It has been extended, but it hasn’t been extended past —
MR. ROBINSON: Yes, Sir.
THE COURT: — past racially identifiably [sic] groups or, or parties at this point, as far as the Court knows. All right. But you have made your record.
We take judicial notice of the fact that the case law alluded to in this exchange was Batson v. Kentucky, 476 U.S. 79 (1986) (a Kentucky state court criminal conviction on petition for certiorari) and its progeny. In Batson, the Court held that intentional discrimination on the basis of race in the exercise of peremptory challenges by a prosecutor in a criminal trial is violative of the protections afforded the defendant and the excluded juror under the Equal Protection Clause of the Fourteenth Amendment of our federal Constitution. Subsequently, the Court has extended this principle to govern civil proceedings as well, reasoning, in the words of Justice Blackmun: “We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in and reflective of, historical prejudice.” J.E.B., 511 U.S. at__, 114 S. Ct. at 1421 (citations omitted).
At the date of appellant’s trial, however, the Batson principle had not been extended by the Court to prohibit intentional discrimination on the basis of gender in the use of peremptory challenges in jury selection, and a division of authority existed among those state and lower federal courts which had considered the issue. Cleveland, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292. The trial judge denied appellant’s objection to the gender-based nature of the state’s peremptory challenges, and on appeal to this court, we declined to extend Batson to this case, in view of the fact that the J.E.B. case, an Alabama state court paternity action on grant of certiorari, was then pending and expected to provide the Court the opportunity to resolve that issue. Id.
On April 19, 1994, the J.E.B. case was decided, and the Court indeed extended the Batson principle to intentional discrimination in the use of peremptory strikes on the basis of gender, stating “gender, like race, is an unconstitutional proxy for juror competence and impartiality.” J.E.B., 511 U.S. at_, 114 S.Ct. at 1421. In the J.E.B. case, the State of Alabama filed a civil paternity action on behalf of the petitioner, id. at_, 114 S. Ct. at 1433 (O’Connor, J., concurring), and used nine of its ten peremptory challenges to remove men from the jury pool. The Court, in reversing and remanding the state court decision, held that "[ijntentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly, where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.” Id. at__, 114 S. Ct. at 1422. We now hold that the J.E.B. decision also governs the prosecutor’s use, as the state actor in this case, of its peremptory challenges.
In J.E.B., the Court also confirmed that the requirements governing proof in the trial court of the unconstitutional nature of challenged race-based peremptory strikes outlined in the Batson decision also apply to proof of challenged gender-based peremptory strikes in jury selection. J.E.B., 511 U.S. at_, 114 S. Ct. at 1429-30. Since Batson, we have applied these requirements to compel the following procedure at trial to protect the constitutional rights of a defendant who objects to the state’s use of its peremptory challenges on grounds of race bias:
[Ujpon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state’s explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.
The standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must test whether the court’s findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant’s objections, its ruling as to the sufficiency or insufficiency of the racially neutral explanation provided by the state.
Colbert v. State, 304 Ark. 250, 255, 801 S.W.2d 643, 646 (1990).
A prima facie case of purposeful discrimination, in the context of the Batson test for challenged race-based peremptory strikes, we have held, may be made “by showing one of the following: (1) the totality of the relevant factors gives rise to an inference of discriminatory purpose; (2) the total or seriously disproportionate exclusion of Negroes from the jury venires; or (3) a pattern of strikes, or questions and statements by a prosecuting attorney during voir dire.” Wainwright v. State, 302 Ark. 371, 382, 790 S.W.2d 420, 425 (1990), cert. denied, 499 U.S. 913 (1991) (citation omitted). In this case, appellant’s objection to the state’s use of 90% of its peremptory challenges to remove women from the jury pool sufficed to raise an inference, if not a presumption, that the gender of the jurors involved was a factor in the decision to strike. Colbert, 304 Ark. 250, 801 S.W.2d 643; see also J.E.B., 511 U.S._, 114 S. Ct. 1419.
That inference established, the explanation given by the state for its challenged strikes appears totally insufficient without further inquiry by the court to eliminate any probability of gender motivation in the state’s actions. The state’s explanation was as follows:
[PROSECUTING ATTORNEY]: Your Honor, I would just point out for the purposes of the record regarding the motion the Defense made on gender bias, that when you take a look at the Defense strikes, if, in fact, the State’s were gender biased one way, so are the Defense’s. Ten of the twelve are against males. And, you know, it appears to balance out.
In this case, because the trial court failed to: (a) make a finding, from all relevant circumstances, as to the sufficiency of the state’s gender-neutral explanation, and (b) as it appears was also required on these facts, then conduct a sensitive inquiry into the basis for each of the challenges by the state, the evidence before us does not establish that the state’s challenges were for valid reasons without any gender bias. Therefore, the defendant’s constitutional rights have not been protected and the trial court’s error requires a reversal and retrial. Colbert, 304 Ark. 250, 801 S.W.2d 643.
In so ruling, we reject the state’s argument that the better remedy here is to remand this case to the trial court first for the limited purpose of conducting an evidentiary hearing to determine whether an equal protection violation was in fact committed at the July 1992 trial proceedings. We are mindful that our holding in this case is consistent with our prior rulings regarding trial court failures to comply with the requirements of Bat-son hearings. Colbert, 304 Ark. 250, 801 S.W.2d 643; Wainwright,. 302 Ark. 371, 790 S.W.2d 420, cert. denied, 499 U.S. 913; Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). In addition, it is noteworthy that our holding will both avoid the difficulties of continuing and concluding the Batson hearing in this case more than two years after the original voir dire, and should more effectively expedite a speedy and economical ultimate disposition of this matter than would be the circumstance if we adopted the state’s argument.
Reversed and remanded.
Hays and Brown, JJ., dissent.