dissenting:
“Confessions of the accused are among the most powerful weapons employed in the prosecution of crimes. Nothing else can equal the impact upon the fact finder of an apparent admission of guilt by the party charged.” (2 J. Cook, Constitutional Rights of the Accused 21 (2d ed. 1986); People v. Prohaska (1956), 8 Ill. 2d 579, 585 (confession of guilt is evidence of a “high and convincing character”).) Therefore, courts must endeavor to ensure that confessions that reach the jury are reliable and voluntary products of police investigation and interrogation. The procedures used by the police in this case to obtain defendant’s confession — physical force, misrepresentation, and separation of counsel and client — undermine the reliability of the resulting confession and are impermissible under both State and Federal law. The trial court’s failure to suppress the resulting nonvoluntary confession constitutes error entitling defendant to a new trial. In addition, because all prospective black jurors were kept from service on the jury through the State’s use of peremptory challenges, defendant is entitled at the very least to a hearing on whether those jurors were unconstitutionally excluded from the jury which convicted him in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. See also Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (Batson applies retroactively to cases where the conviction had not become final before the new rule was announced).
A review of the circumstances surrounding defendant’s confession to the Des Plaines police reveals three factors which combined to induce defendant’s involuntary confession: physical injuries suffered by defendant while in the custody of the Schiller Park police, misrepresentations made to defendant by the Des Plaines police in order to induce defendant to confess, and the separation of defendant and his attorney during the period of police interrogation. I will address each of these factors separately.
At the suppression hearing, defendant testified that he was beaten by Schiller Park police. He described two episodes of brutality in which he was kicked, hit, and knocked to the ground, punched and beaten with a nightstick, raised off the floor by elevating his handcuffed arms behind him, and his hair was pulled. Defendant testified that as a result he suffered pain in his ribs and in his right knee, and that he lost tufts of hair. Defendant’s claims of mistreatment were corroborated by his attorney’s testimony that at their first meeting defendant told him that he had been beaten and showed the attorney his visibly injured knee. Defendant received no medical treatment for his injuries while at the Schiller Park or Des Plaines police stations on the day of his interrogation and confession. After a medical examination at Cermak Hospital the following day, defendant was informed that he probably had fractured ribs in the mid-chest area, advised to treat his injured knee with sitz baths, and given pain medication. After hearing all the evidence at the suppression hearing, the trial judge determined that the “apparently very severe physical confrontation” between defendant and the police warranted suppression of inculpatory statements made by defendant at the Schiller Park police station. The trial judge declined to suppress statements made at the Des Plaines station, however, in part because no additional physical cruelty was proven to have been exerted against defendant in Des Plaines.
It is axiomatic that confessions obtained through physical brutality or force may not be used as evidence to secure a conviction against the accused. (Brown v. Mississippi (1936), 297 U.S. 278, 285-86, 80 L. Ed. 682, 687, 56 S. Ct. 461, 464-65; People v. O’Leary (1970), 45 Ill. 2d 122, 125; People v. Davis (1966), 35 Ill. 2d 202, 205; People v. Cunningham (1964), 30 Ill. 2d 433, 436; People v. Prohaska (1956), 8 Ill. 2d 579, 585; People v. Davis (1948), 399 Ill. 265, 271.) In addition, brutality may render inadmissible not only inculpatory statements made by the accused during the beating or mistreatment, but also statements made later which are deemed to be tainted by the earlier brutality. People v. Thomlison (1948), 400 Ill. 555; People v. Santucci (1940), 374 Ill. 395.
Here, the defendant confessed within approximately six hours of sustaining significant injuries while in the custody' of the Schiller Park police. When asked “Did you confess because *** you were hurt?” the defendant replied, “Yes, I wanted people to just leave me alone.” That defendant suffered no additional physical brutality at the Des Plaines station (a fact which defendant disputes) does not vitiate the physical coercion to which defendant had already been subjected, especially because at the time of his confession defendant had received no medical treatment for his injuries. In view of these circumstances, the numerous Miranda warnings defendant received before confessing, and his experience in dealing with the police, could not cure the coercive effect of the actions of the Schiller Park police. Therefore, defendant’s Des Plaines confession was tainted by the physical confrontation in Schiller Park, and the trial court erred in concluding that the confession was admissible.
The majority’s suggestion that “there can be no coercion available to infect [defendant’s statements]” in the “absence of an affirmative finding of physical coercion” (121 Ill. 2d at 157) is not accurate. Here, it is uncontroverted that defendant sustained numerous injuries while in the hands of Schiller Park police. The trial court’s finding that a “very severe physical confrontation” had taken place necessarily includes a finding of coercion; otherwise, the trial court would not have suppressed defendant’s statements. In this light, the majority’s insistence on an “affirmative finding” of brutality is little more than a semantic game.
The second factor which rendered defendant’s confession inadmissible is the subterfuge used by the Des Plaines police to coerce defendant into confessing. Officer Meese of the Des Plaines police admitted at trial that he made untrue statements to defendant during the interrogation which led to defendant’s confession. Specifically, Meese told defendant that the Des Plaines police had received a report identifying his car at the scene of the crime:
“At that time I indicated to him that we were notified by the City of Chicago that his vehicle was observed in the alley involved in a rape incident, and that he could not be identified, but that he would have to explain why the vehicle was there.”
Meese’s misrepresentation achieved its desired result. Although defendant had already given a statement denying involvement in the crime, defendant gave another statement following Meese’s subterfuge in which he confessed.
In Miranda v. Arizona (1966), 384 U.S. 436, 476, 16 L. Ed. 2d 694, 725, 86 S. Ct. 1602, 1629, the United States Supreme Court stated that:
“[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver [of the fifth amendment privilege against self-incrimination] will, of course, show that the defendant did not voluntarily waive his privilege.”
(See also Moran v. Burbine (1986), 475 U.S. 412, 421, 89 L. Ed. 2d 410, 421, 106 S. Ct. 1135, 1141 (relinquishment of Miranda rights “must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception”); see, e.g., People v. Hogan (1982), 31 Cal. 3d 815, 647 P.2d 93, 183 Cal. Rptr. 817 (confession inadmissible due to misrepresentation); State v. Howard (Tenn. Crim. App. 1981), 617 S.W.2d 656 (same); Commonwealth v. Meehan (1979), 377 Mass. 552, 387 N.E.2d 527 (same).) In assessing whether misrepresentation renders a defendant’s confession involuntary and therefore inadmissible this court has applied a totality-of-circumstances test. Under this test misrepresentation is only a factor to be considered, along with “age, education and intelligence of the accused, the duration of questioning, and whether he received his constitutional rights or was subjected to any physical punishment.” People v. Kashney (1986), 111 Ill. 2d 454, 466-67, quoting People v. Martin (1984), 102 Ill. 2d 412, 427.
Applying this test to the facts in this case compels the conclusion that defendant’s confession was inadmissible. Not only had the defendant been subjected to severe physical brutality, but also he was kept incommunicado from his attorney in violation of his constitutional rights. In addition, defendant had been in police custody since early that morning and had been questioned by two different police departments and at least two assistant State’s Attorneys. The fact that defendant had received repeated Miranda warnings is of little significance in the face of these coercive conditions and the extended interrogation to which the defendant was subjected.
Based on its reading of Spano v. New York (1959), 360 U.S. 315, 3 L. Ed. 2d 1265, 79 S. Ct. 1202, and Lynumn v. Illinois (1903), 372 U.S. 528, 9 L. Ed. 2d 922, 83 S. Ct. 917, the majority concludes that the subterfuge employed by Officer Meese did not coerce the defendant’s confession because it was “not employed to suggest that the defendant would suffer physical, emotional, or material harm” or that “the defendant or a loved one would be harmed in some way” if the defendant refused to confess. (121 Ill. 2d at 155.) This is an overly narrow reading of Lynumn and Spano; these cases did not establish a requirement that the defendant or his loved ones be directly threatened with harm before a misrepresentation can be deemed to have a coercive effect powerful enough to invalidate defendant’s confession. Instead, the central inquiry under Spano and Lynumn is whether, considering the totality of circumstances, the defendant’s will was overborne by the techñiques employed by the police in obtaining the confession. (Spano, 360 U.S. at 323, 3 L. Ed. 2d at 1271-72, 79 S. Ct. at 1207; Lynumn, 372 U.S. at 534, 9 L. Ed. 2d at 926, 83 S. Ct. at 920.) Under this approach, defendant need not establish threats of the same directness or magnitude as those in Spano or Lynumn in order to establish that his will was overborne. Here, the effect of the officer’s subterfuge, which falsely implied that the police had eyewitness evidence against defendant, must be judged in light of the facts that defendant was suffering physical injuries and had already been interrogated and given an exculpatory statement. Under these circumstances, defendant’s confession cannot be characterized as “ ‘the product of a rational intellect and a free will.’ ” Lynumn, 372 U.S. at 534, 9 L. Ed. 2d at 926, 83 S. Ct. at 920, quoting Blackburn v. Alabama (1963), 361 U.S. 199, 208, 4 L. Ed. 2d 242, 249, 80 S. Ct. 274, 280; People v. Kincaid (1981), 87 Ill. 2d 107, 117.
Even before the United States Supreme Court announced its decision in Miranda v. Arizona prohibiting trickery in obtaining confessions, this court had denounced the use of trickery and falsehood to coerce a defendant’s confession. (See People v. Stevens (1957), 11 Ill. 2d 21, 27.) We should continue to denounce and deter these practices by rendering the fruit of such tactics inadmissible, especially where, as here, defendant’s confession was elicited through knowing and deliberate misrepresentation by the police with the specific intent to induce defendant’s confession. See Spano, 360 U.S. at 324, 3 L. Ed. 2d at 1272, 79 S. Ct. at 1207 (where an “undeviating intent of the officers to extract a confession *** is shown *** the confession obtained must be examined with the most careful scrutiny”); see also People v. Kashney (1986), 111 Ill. 2d 454, 467 (Goldenhersh, J., concurring in part and dissenting in part) (contending that use of deceptive practices by the police in obtaining confessions violates Miranda); People v. Martin (1984), 102 Ill. 2d 412, 429 (Goldenhersh, J., dissenting) (same).
The third factor which indicates that defendant’s confession was improperly obtained and should be suppressed is the way in which the defendant was kept incommunicado from his attorney. I agree with Chief Justice Clark’s analysis of this issue in the specially concurring opinion, and thus will not repeat those arguments here. I disagree with the special concurrence, however, on two points. First, there was sufficient evidence to establish that defendant’s attorney requested access to defendant during the interrogation period. Defendant’s wife testified at the suppression hearing that the attorney had attempted to contact the defendant. Also, although the attorney’s closing statement in the suppression hearing (in which he detailed his attempts to contact defendant) was not sworn testimony, as an officer of the court the attorney was under a continuing ethical duty to speak truthfully, and we have no reason to doubt his veracity. Furthermore, the trial court recognized that he was introducing facts in his closing not presented in testimony, but allowed him to continue over the State’s objection. Under these circumstances the attorney had every reason to believe his statement was being accepted by the court as the functional equivalent of testimony, and I would regard the statement as such. His attempts to contact his client were also enumerated in the written motion to suppress defendant’s confession filed before the suppression hearing. Moreover, as the appellate court noted, the testimony of the officer who claimed that the attorney had not requested access to the defendant had been severely discredited.
Second, because of a critical factual difference between this case and Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135, I am not convinced that Burbine controls the result here under Federal law. In Burbine, the defendant never expressed any desire for an attorney. The Court repeatedly noted the significance of this factor in its decision: “At no point during the course of the investigation *** did [defendant] request an attorney *** he ‘[did] not want an attorney called or appointed’ *** he had access to a telephone, which he apparently declined to use *** he at no point requested the presence of a lawyer.” (475 U.S. at 415, 417-18, 420, 89 L. Ed. 2d at 417, 418, 420, 106 S. Ct. at 1138, 1139, 1141.) The Court also reiterated the Miranda requirement that “[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, [or if he] states that he wants an attorney, the interrogation must cease.” (Emphasis added.) (475 U.S. at 420, 89 L. Ed. 2d at 420, 106 S. Ct. at 1141, quoting Miranda v. Arizona (1966), 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627.
In the present case it is undisputed that a Schiller Park police officer called defendant’s wife from the station and discussed defendant’s arrest and bail with her. The officer then put defendant on the line, at which time defendant instructed his wife to retain a specific attorney in his behalf. Thus, in this case, unlike Burbine, it is uncontested that defendant had actively sought the advice and counsel of an attorney prior to interrogation and confession. Defendant in this case, unlike the defendant in Burbine, had every expectation that an attorney would be contacting him. Defendant was persuaded to confess only after the police had successfully kept the defendant and his attorney separated prior to and during the interrogation period. Perhaps defendant lost hope that the attorney would actually appear for his defense, or. without the benefit of counsel simply gave in to the pressure to confess exerted by his interrogators.
Also, the Court in Burbine noted as significant that there was no evidence of physical coercion, and that the defendant initiated the confession conversation. In contrast, defendant in the present case had been physically injured at the hands of police only a few hours earlier, and had already been subjected to repeated interrogation initiated by the police before he confessed. I would hold, therefore, that because of the critical factual differences between Burbine and the present case, Burbine does not control the result in this case. We should look to the United States Supreme Court’s earlier statements in Miranda and Escobedo, as discussed in the special concurrence, for the resolution of the separation of attorney and client issue. See, e.g., Miranda, 384 U.S. at 476, 16 L. Ed. 2d at 724-25, 86 S. Ct. at 1629 (“Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights”).
In sum, it is clear that the combined conduct of the Schiller Park and Des Plaines police in this case rendered defendant’s confession involuntary and that the confession therefore should be suppressed. In the words of Chief Justice Earl Warren:
“The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” Spano v. New York (1959), 360 U.S. 315, 320-21, 3 L. Ed. 2d 1265, 1270, 79 S. Ct. 1202, 1205-06.
Even if defendant’s confession could be deemed voluntary and admissible, defendant’s conviction is still drawn into question by the State’s use of peremptory challenges to exclude black persons from the jury. Two black potential jurors, the only black persons on a venire of 40 people, were eliminated by the State through the exercise of its peremptory challenges, resulting in an all-white jury. Defendant contends that the exclusion of black persons from the jury violated his fourteenth amendment right to equal protection of the laws and his right to a jury selected from a representative cross-section of the community under the sixth amendment. The majority concludes that defendant does not have standing to assert a Batson violation on equal protection grounds because he is white and the excluded prospective jurors are black, and dismisses defendant’s sixth amendment argument as precluded by this court’s earlier rulings.
Even if Batson forecloses challenges to the discriminatory use of peremptory challenges under an equal protection analysis when the defendant is not a member of the class excluded from the jury, it in no way endorses the continued discriminatory exclusion of black people from juries. The Batson Court noted that the use of peremptory challenges to exclude black persons was impermissible based on three factors: harm to the defendant, harm to the juror, and harm to the community. Minorities, according to the Court, have an interest independent from the defendant’s in serving as jurors:
“Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. *** A person’s race simply ‘is unrelated to his fitness as a juror.’ [Citation.] As long ago as Strauder, therefore, the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror.” (Batson, 476 U.S. at 87, 90 L. Ed. 2d at 81, 106 S. Ct. at 1717-18.)
The community also has an interest in preventing discriminatory exclusion from jury service:
“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Batson, 476 U.S. at 87, 90 L. Ed. 2d at 81, 106 S. Ct. at 1718.
The Supreme Court used sweeping language throughout Batson in renouncing as unconstitutional exclusion of black persons from the jury, evincing a commitment to prohibit discriminatory exclusion tactics in their entirety: “the Constitution prohibits all forms of purposeful racial discrimination in the selection of jurors.” (Emphasis added.) (476 U.S. at 88, 90 L. Ed. 2d at 82, 106 S. Ct. at 1718.) The Court noted that in many State and Federal courts “the [peremptory] challenge may be, and unfortunately at times has been, used to discriminate against black jurors,” and concluded that “[i]n view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.” 476 U.S. at 99, 90 L. Ed. 2d at 89,106 S. Ct. at 1724.
Furthermore, the Batson Court made clear that the prohibition against discriminatory tactics now applies not only to the selection of the jury panel or venire, but equally to the selection of the petit jury. “While decisions of this Court have been concerned largely with discrimination during selection of the venire, the principles announced there also forbid discrimination on account of race in the selection of a petit jury.” (Emphasis added.) (476 U.S. at 88, 90 L. Ed. 2d at 82, 106 S. Ct. at 1718.) Thus, fair venire selection is only the threshold requirement for properly selecting a jury. The State cannot be aUowed, after seating a proper venire, to pervert the jury selection process by using peremptory challenges to ensure that minorities are kept off the jury. Batson, 476 U.S. at 88, 90 L. Ed. 2d at 82, 106 S. Ct. at 1718 (“the State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at ‘other stages in the selection process’ ”).
A logical extension of the language in Batson would prevent exclusion of black people from the jury through the use of peremptory challenges regardless of whether the defendant is a member of the excluded class, based on the juror’s and the community’s independent interests in a fairly selected jury, as well as the defendant’s interest. Defendant has suggested the proper rationale for the extension of the principle: defendant’s sixth amendment right to a representative cross-section of the community on the jury. A sixth amendment challenge is particularly appropriate in the present case, where the defendant is white and the excluded jurors are black, because a defendant need not be a member of the excluded class in order to raise a fair cross-section challenge. Duren v. Missouri (1979), 439 U.S. 357, 359 n.l, 58 L. Ed. 2d 579, 583 n.l, 99 S. Ct. 664, 666 n.l; Peters v. Kiss (1972), 407 U.S. 493, 33 L. Ed. 2d 83, 92 S. Ct. 2163 (white defendant could raise sixth amendment claim based on the exclusion of blacks).
Under the sixth amendment, a defendant is entitled to a fair cross-section of the community on the jury. (Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692.).This has been interpreted to guarantee that the jury venire be selected in a nondiscriminatory manner from a source fairly representative of the community, even though Taylor does not go so far as to guarantee a representative petit jury. But as already mentioned, Batson has added an additional dimension to this analysis: although a petit jury selected from a proper panel need not necessarily reflect a cross-section of the community, discriminatory tactics designed to manipulate the ultimate composition of the petit jury will no longer be tolerated. As the United States Court of Appeals for the Second Circuit phrased it in Roman v. Abrams (2d Cir. 1987), 822 F.2d 214, 226, 229:
“[T]he sixth amendment guarantees only the possibility of a petit jury reflecting a cross section of the community and forbids the prosecutor to exercise his peremptories discriminatorily in a manner that eliminates that possibility *** [W]hat the sixth amendment guarantees to a defendant is not that he will have a petit jury of any particular composition but that he will have the possibility of a jury that reflects a fair cross section of the community. The prosecutor violates sixth amendment rights when he starts out to eliminate that possibility.” (Emphasis in original.)
The Roman court also articulated the prima facie showing that should be required for a defendant to establish a violation of the sixth amendment right to the possibility of a fair cross-section on the petit jury. To establish a prima facie case, a defendant must show that “ ‘(1) the group alleged to be excluded is a cognizable group in the community, and (2) there is substantial likelihood that the challenges leading to this exclusion have been made on the basis of the individual venireperson’s group affiliation rather than because of any indication of a possible inability to decide the case on the basis of the evidence presented.’ ” Roman, 822 F.2d at 223, 225, quoting McCray v. Abrams (2d Cir. 1984), 750 F.2d 1113, 1131-32.
I raised an argument challenging the use of discriminatory peremptory challenges in the selection of petit juries as violative of the sixth amendment fair cross-section requirement, as well as arguments that such challenges are forbidden under our State constitution and that this court should exercise its supervisory authority to ensure that discriminatory tactics are not successful in People v. Payne (1983), 99 Ill. 2d 135, 140 (Simon, J., dissenting). I will not repeat those arguments here except to note the effect that Batson has on this court’s prior decisions rejecting a sixth amendment prohibition on the discriminatory use of peremptory challenges.
In the wake of Batson, nothing precludes this court from holding that the use of peremptory challenges to exclude black jurors, even where the defendant is not black, violates the fair cross-section requirement of the sixth amendment. The opinions relied on by the majority — People v. Payne (1983), 99 Ill. 2d 135, People v. Williams (1983), 97 Ill. 2d 252, and People v. Gaines (1984), 105 Ill. 2d 79 — were based on precedent that has now been overturned. In those cases defendants argued that use of peremptory challenges to exclude black people from the jury violated both their fourteenth amendment rights to equal protection and their sixth amendment right to a fair cross-section of the jury. In support of their sixth amendment arguments, the defendants relied on Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, in which the United States Supreme Court held that the sixth amendment right to a jury trial includes the right to have a petit jury selected from a representative cross-section of the community. In all of those cases, however, this court held that an earlier Supreme Court case, Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, must be read into Taylor and therefore that Swain controlled the resolution of the peremptory challenge issue under a sixth amendment analysis. Under Swain, an equal protection case, to establish discrimination in the use of peremptory challenges, a defendant was required to demonstrate systematic and purposeful exclusion of minorities in case after case. Swain has now been overruled by Batson, thereby calling into question the holdings in those cases relying on Swain, including Payne, Williams, and Gaines. Thus, this court writes on a clean slate, and it would be incongruous for this court not to read the Bat-son decision into the sixth amendment analysis of Taylor — thereby prohibiting the use of peremptory challenges to exclude black persons from petit juries under the sixth amendment — after insisting for so long on reading Swain into Taylor.
It is not our concern to ponder the motivation for the State’s attempt to exclude black persons from the jury in a particular case when the defendant is not black, but simply to ensure that it is not successful in doing so. Discrimination against black people is no less reprehensible simply because the defendant happens to be white. As acknowledged by the Supreme Court in Batson, black persons have an interest in serving as jurors independent from and in addition to the right of the defendant to a jury selected in a nondiscriminatory manner from a representative cross-section of the community, and interference with these rights should not be tolerated by this court for any reason.
In view of the long and unjustifiable history in this State of exclusion of black persons from jury service through the use of peremptory challenges (see People v. Lewis (1984), 103 Ill. 2d 111, 122 (Simon, J., dissenting) (listing cases in which peremptory challenges were used to exclude potential black jurors); People v. Payne (1983), 99 Ill. 2d 135, 152 (Simon, J., dissenting) (same)), I urge this court not to wait until the United States Supreme Court explicitly denounces the use of peremptory challenges to exclude minorities from the jury where the defendant is a nonminority, but instead to take the initiative, under the unequivocal condemnation of such procedures in Batson, in outlawing all discrimination against black persons in the jury selection system in this State. Some post-Buisoro courts have already held that discriminatory use of peremptory challenges is prohibited under the sixth amendment. See, e.g., Roman v. Abrams (2d Cir. 1987), 822 F.2d 214; Booker v. Jabe (6th Cir. 1986), 801 F.2d 871; Fields v. People (Colo. 1987), 732 P.2d 1145.
At the very least this matter should be sent back to the trial court for a hearing to determine whether black persons were improperly excluded from service on the jury. For these reasons I respectfully dissent.