Joseph v. State , 516 So. 2d 505 ( 1987 )

516 So.2d 505 (1987)

Earnestine (Ernestine) JOSEPH
v.
STATE of Mississippi.

No. 57611.

Supreme Court of Mississippi.

December 16, 1987.

Robert Chamoun, Brett B. Stein, Memphis, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and GRIFFIN, JJ.

GRIFFIN, Justice, for the Court:

Earnestine Joseph was convicted in the Circuit Court of Yalobusha County of the sale of less than one ounce of marijuana and sentenced to serve three years in the custody of the Mississippi Department of Corrections, two years suspended, one year to serve.

The facts are not in controversy. On April 9, 1984, Don Lee Porter, an undercover narcotics agent, with the assistance of a confidential informant, made a purchase of one-half ounce of marijuana from the defendant a black female. At voir dire, the prosecution struck all black jurors with peremptory challenges. Joseph unsuccessfully argued that the prosecution must make a racially neutral explanation for the challenges, citing a Kentucky case then pending in the United States Supreme Court. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) is now law.

A virtually identical factual situation and argument by the State on the retroactivity of Batson was examined by this Court in Harper v. State, 510 So.2d 530 (Miss. 1987). Under the Harper rationale, this case must be remanded to the lower court to determine if the appellant can establish a prima facie case of the constitutionally impermissible exclusion of the black jurors. The prosecutor must then enumerate neutral, non-racial explanations for those peremptory challenges, which the appellant may rebut, if she can. If purposeful discrimination is found, the lower court must order a new trial; if it is not found, the cause should be certified to this Court, along with the record of the hearing and finding of fact by the lower court.

REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON and ZUCCARO, JJ., concur.