Morse v. State , 1992 Ind. LEXIS 162 ( 1992 )

DeBRULER, Justice,

dissenting.

The majority opinion takes the wrong tack in light of this Court’s crucial recent opinions in Love v. State (1988), Ind., 519 N.E.2d 563 and Thorne v. State (1988), Ind., 519 N.E.2d 566, and commits federal constitutional error. The decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), wrote the word “systematic” out of equal protection law as it is applied to challenges to the prosecutor’s use of peremptory challenges for racial purposes. A prima facie showing of purposeful discrimination is all that is required to cast the burden on the State to give its neutral grounds. The pattern of strikes at the trial or the voir dire examination at the trial may suffice to raise this initial, necessary inference of purposeful discrimination.

Here the prosecutor removed the lone black member of the venire. As in Thorne v. State, supra, the action of the prosecutor left an all white venire. Appellant is black. The voir dire examination by the prosecutor and defense counsel is bland and benign. The black prospective juror responded that he would be willing to convict if the State met its burden. He had no previous record, no prior jury service, he was never a victim of a crime, nor was any member of his family ever charged or convicted of a crime. On this state of the record, the inference of purposeful discrimination is present. I would remand for a Love hearing to permit the State to present legitimate grounds for its challenge, and failing that, to order a new trial.

KRAHULIK, J., concurs.