dissenting. This decision is worrisome because this court, for the first time, has assumed jurisdiction of an issue that was never developed in the trial court and has decided it. By doing so, this court has taken original jurisdiction over the matter which is in direct contravention of our State Constitution. Ark. Const, art. 7, § 4.
As the majority correctly points out, during voir dire defense counsel made an objection based on gender discrimination by the prosecutor in jury selection. Defense counsel readily admitted that he had no authority for the objection, and the trial court concurred that it knew of none. Accordingly, the court refused to entertain the objection, and no Batson!J.E.B. procedure was followed by the court and the parties to determine whether a violation had occurred.
This court has made it clear what that procedure is in the racial context. See Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). First, a defendant must make a prima facie case of purposeful racial discrimination in juror challenges. If such a case is made, this shifts the burden of proof to the State to prove that the exclusion of jurors is not based on race. The State must then give a neutral explanation of the juror strikes. If the State fails in this, a sensitive inquiry in the nature of a more comprehensive hearing must follow. We have added that the standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must be whether the court’s findings are clearly against a preponderance of the evidence. Hence, the trial court must state its findings and ruling on the sufficiency or insufficiency of the racially neutral explanation provided by the State to enable this court to review what occurred. Id.
Clearly, these are precise steps that must be taken by the trial court in making a decision on discrimination in the jury-selection process, whether it be racial discrimination or gender discrimination. None of that was done by the trial court in this case. In fact, the issue was never considered because there was no authority for it. Now for the first time this court has decided that a gender violation did occur and has summarily granted a new trial. In doing so the majority (1) has not engaged in a Bat-son/J.E.B. analysis, and (2) has usurped the jurisdiction of the trial court. Furthermore, this decision runs counter to a decision by the Eighth Circuit Court of Appeals, which, of course, is not binding on this court, but also to decisions by this court. See Reynolds v. City of Little Rock, 893 F.2d 1004 (8th Cir. 1990), cert. denied, 501 U.S. 1204 (1991) (remand for Batson hearing); Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990) (remand for Denno hearing); Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980) (remand for Denno hearing).
In Reynolds, the Eighth Circuit decided that Batson v. Kentucky, 476 U.S. 79 (1986), did apply to trials of § 1983 civil rights actions. In remanding the case to the District Court to determine whether a Batson violation had occurred, the court stated:
We therefore vacate the judgment of the District Court insofar as it adopts the position that the City need not explain its peremptory challenges against black jurors. On remand, the District Court should first determine whether plaintiff has made a prima facie case of discrimination. If it finds that a prima facie case has been made out, it should then conduct a hearing pursuant to the evidentiary standards articulated in Batson, 476 U.S. at 96-98, 106 S.Ct. at 1722-1723. In the event that the District Court believes that the City’s peremptory challenges are racially motivated, it should order a new trial. If the Court finds no racial motivation, the judgment will stand affirmed, subject, however, to plaintiff’s right to appellate review of this finding of fact.
893 F.2d at 1009-1010.
Similarly, this court has held in two cases where Denno hearings were warranted, following appeal, that a remand to the trial court was appropriate. Moore v. State, supra; Harris v. State, supra. In each case, we concluded: “A new trial should be ordered only if the trial court finds the statement to have been involuntary.” Moore, 303 Ark. at 5, 791 S.W.2d at 700; see also, Harris, 271 Ark. at 571, 609 S.W.2d at 50.
The majority offers no case law supporting what it is doing, other than a vague reference to the fact that a Batsonl J.E.B. hearing is difficult two years after the trial and that judicial economy supports the decision. Those considerations do not justify an erroneous exercise of jurisdiction. Though Cleveland argues that this court has made Batson decisions before, we have never done so when the trial court had never considered the issue. The State should certainly have an opportunity to comment on whether it engaged in purposeful discrimination. It is worth noting that the original jury that heard the Cleveland case was comprised of five women. See Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993).
I would reverse this case and remand it to the trial court for a decision under J.E.B. v. Alabama, 511 U.S._, 114 S.Ct. 1419 (1994).
Hays, J., joins.