Sparks v. State , 180 Ga. App. 467 ( 1986 )

180 Ga. App. 467 (1986) 349 S.E.2d 504

SPARKS
v.
THE STATE.

72891.

Court of Appeals of Georgia.

Decided September 23, 1986. Rehearing Denied October 7, 1986.

Bentley C. Adams III, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Paschal A. English, Jr., J. David Fowler, Assistant District Attorneys, for appellee.

SOGNIER, Judge.

Appellant was convicted of armed robbery, aggravated assault and possession of a firearm by a convicted felon. He appeals on several grounds, including violation of his constitutional rights through the prejudicial striking of all black jurors through the use of peremptory challenges in violation of Batson v. Kentucky, 476 U. S. ____ (106 SC ____, 90 LE2d 69) (1986).

In this case appellant made proper objection (albeit by a motion for mistrial) to removal of all black persons on the venire by the prosecutor's use of peremptory challenges. Although the State contends the motion was not timely, it was made at a motion hearing immediately following selection and empaneling of the jury, which was the first opportunity appellant had to raise the issue. Because the trial court rejected the objection without requiring the prosecutor to give an explanation for his actions, we remand the case for further proceedings pursuant to the principles enunciated in Batson v. Kentucky, supra. The trial court will determine as a matter of fact if the prosecutor challenged the potential jurors solely on account of their race or on the assumption that black jurors as a group would be unable impartially to consider the State's case against a black defendant, or if the prosecutor has a neutral explanation for his action. Wise v. State, 179 Ga. App. 115 (346 SE2d 393) (1986).

Case remanded with direction. Banke, C. J., and Birdsong, P. J., concur.