Opinion by
Asserting error in the use of peremptory challenges, defendant, Victor Arnold Gabler, appeals from a judgment of conviction entered upon a jury verdict finding him guilty оf felony theft. We reverse and remand for a new trial.
Defendant was apprehended by department store security guards after being observed removing three bеdskirts from the linen department and leaving the store with them without paying. The sole issue at trial was whether the merchandise taken was of sufficient value that the theft constituted a felony, or of a lesser value making the theft only a misdemeanor.
Defendant contends that the trial court erred in denying his objections to the prosecution’s use of peremptory challenges to excuse two African-American prospective jurors. We agree.
The use of peremptory challеnges to exclude prospective jurors because of their race violates the Equal Protection Clause.
Batson v. Kentucky,
In Batson, the Supreme Court outlined a three-pаrt test for determining whether a peremptory challenge constitutes purposeful discrimination against a cognizable group.
First, the defendant must make a primа facie showing that the prosecution used a peremptory challenge to exclude the prospective juror because of race.
Batson v. Kentucky, supra.
While thе excluded juror must be a member of a cognizable group, the defendant need not be.
Powers v. Ohio,
Second, if the defendant satisfies the first part of the test, then the burden shifts to the prosecution, to state a race-neutral explanation for the challenge.
Batson v. Kentucky, supra.
At this point, the prosecution’s reasons need not be persuasive or even plausible,
Purkett v. Elem,
Third, once the prosecution articulates a race-neutral explanation, the trial court must decide whether the defendant has prоved purposeful racial discrimination.
Batson v. Kentucky, supra; People v. Cerrone, supra.
At this point the plausibility of the prosecutor’s race-neutral explanation becomes'relevant, such that incredible explanations “may (and probably will) be found to be pretexts for purposeful discrimination.”
Purkett v. Elem, supra,
After the prosecution used two of its five peremptory chаllenges to excuse white jurors, it accepted the jury as then constituted which was entirely white. The defense then continued exercising its peremptory challenges which resulted in two African-Americans joining the panel. Defendant, who is white, objected to the prosecution’s peremptory challenges as to the two African-American jurors.
The two African-American jurors were questioned briefly by the court and defense counsel. The prosecutor, without questioning either juror, then usеd two of his remaining peremptories to challenge them both.
Defendant’s objections to the prosecution’s peremptory challenges were heard at tmre-ported bench conferences that were reconstructed in summarized form by the trial court after the jury was impaneled. From those reconstructed summaries, it would appear that when defense counsel objected to each challenge, in turn, the trial court, with *508 out ruling that defendant had made the requisite prima facie showing that the challenge was based on race, inquired of the prosecutor the reason for each challenge.
As to the first prospective juror, the prosecutor replied that he feared that, because the prospective juror frequently watched Court TV, he would hold the proseсutor to a higher standard of proof. Defense counsel, who had inquired of the juror, responded that the juror had stated “specifically that he did not feel his viewing Court TV would affect his ability to judge the evidence impartially.” The trial court then found that there was “a rational reason for excusing [prospective juror] beyоnd his racial status,” and permitted the challenge.
As to the second prospective juror, the prosecutor replied that he was concerned that shе would be distracted by work responsibilities and that she might be biased against police because her friend had been arrested. The trial court found that “there was again a rational reason for excusing the juror other than racial reasons.... ”
With respect to the first step in the Batson analysis, we note that the trial court made no express finding that defendant had mаde a prima facie showing of discrimination with respect to either juror. The fact, however, that the trial court proceeded through the remaining steps оf the Batson analysis and ruled on the ultimate issue renders moot any question as to the prima facie showing of discrimination. Hernandez v. New York, supra.
With respect to the second step in the
Batson
test, whether the prosecutor’s explanatiоns for excusing the potential jurors were race-neutral, our review is
de novo. United States v. Kunzman,
After taking into account the fact that, at this stage, the prosecution’s reasons need not be persuasive or even plausible and we must accept the proffered reasons as true, we conclude, as did the trial court, that the explanations offered by the prosecutor were race-neutral.
As to the third step of the Batson test, we defer to the trial court’s factual finding as to whether the defendant proved intentionаl discrimination, see People v. Cerrone, supra, and we review the trial court’s ruling in that regard for clear error. See United States v. Kunzman, supra.
Our review of the third step of the
Batson
analysis, in this instance, is considerably more troubling. The record reveals that the prosecutor did not question either prospective juror
at all
during voir dire, which raises the inference of purposeful discrimination.
Colbert v. State,
Besides not questioning the second prospective juror regarding any bias against the police, thе prosecutor did not challenge white jurors who had related similar experiences which might give rise to a possible bias against the police. The prosеcutor did not challenge a white juror whose son had been arrested by police officers and convicted of a crime or a white juror who had been in jail himself. A prosecutor’s disparate treatment of prospective jurors who, but for their race, have similar and allegedly objectionable experiеnces, is pretextual.
See Walton v. Caspari,
Moreover, defendant was apprehended by store security guards and, while a police officer served as advisory witness to the prosecution, no police officer testified at trial. Therefore, any bias against police upon which the prosecutor relied for challenging the second African-American juror bore little or no relationship to the case. For the announced reason for challenging a prospective juror for bias to be credible, the bias must relate to the facts or circumstances of the case which will be tried before, and ulti
*509
mately submitted to, the jury.
State v. Walker,
Taken together, these factоrs indicate to us a high probability that the prosecutor challenged the two prospective jurors because of their race. Despite the fact thаt our review is limited to clear error, and the third step in the Batson test is a pure issue of fact, we conclude that peremptory challenge by the prosecutоr of the two African-American jurors constituted purposeful discrimination against a cognizable group and a denial of equal protection, and the trial сourt’s conclusion to the contrary was clearly erroneous.
Having reached this conclusion, we need not address the remaining issues raised by defendant on appeal as they are unlikely to recur on retrial.
The judgment of conviction is reversed and the cause is remanded to the trial court for a new trial.