Keeton v. State

749 S.W.2d 861, 1988 Tex. Crim. App. LEXIS 61, 1988 WL 28681

• Court: Court of Criminal Appeals of Texas
• Decided: April 6, 1988
• Docket: 69639
• Status: Published

Opinions

OPINION FOLLOWING ABATEMENT

MILLER, Judge.

Appeal was taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03. After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071(b), V.A.C. C.P. Punishment was assessed at death. We issued one opinion reforming the punishment in the judgment to life and affirming the case, and then granted rehearing on our own motion and abated the appeal for a trial court hearing concerning the prosecutor’s use of peremptory strikes. Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987). The trial court conducted a hearing and returned findings of fact and conclusions of law to this Court. The transcription of the hearing, however, was not forwarded. We issued an unpublished order on May 27, 1987, requesting that the notes taken during the hearing, if any, be transcribed and sent to this Court.

The record of the hearing has been sent as requested. Thus, we are now equipped to dispose of appellant’s fifth point of error, wherein he claims that the trial court erred in allowing the prosecutor to exercise peremptory strikes against members of appellant’s race in violation of appellant’s constitutional rights as set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), (hereinafter cited as Bat-son ).

As stated in Keeton, supra at 65, once the defendant has established a prima facie case of discrimination regarding the State’s use of its peremptory strikes, the burden shifts to the State to come forward with a neutral explanation for the challenges. The trial court then has the duty to consider the evidence and determine whether the explanations are sufficient.

PROCEEDINGS IN THE TRIAL COURT

In the case before us, the State exercised three peremptory strikes against members of appellant’s race. One black person did serve on the jury. We will consider the State’s explanation regarding each strike.

William Littleton was the first prospective juror struck by the State. After appellant’s counsel objected to the prosecutor’s use of a peremptory strike against Little-ton, the following testimony was given by the prosecutor:¹

“I am Pat Batchelor. I’m Criminal District Attorney of Navarro County, Texas. I am representing the State in this cause number against Perry Keeton.

I have just examined William Alexander Littleton in this case and have exercised a preemptory [sic] strike against Mr. Littleton. The reasons that I did exercise that strike against Mr. William Alexander Littleton was that on the 12th day of October, 1974, in Cause No. 17,-099, in the County Court of Navarro County, Texas, Mr. Littleton was convicted of transporting whiskey and wine in a dry area. He plead guilty to that and was found [guilty] by the Court of that offense.

Also in Cause No. 17,438 on December the 17th, 1975, this prospective venireman, Mr. William Alexander Littleton, was convicted of sale of whiskey in a dry area in Cause No. 17,438.

Also on December the 17th, 1975, this prospective venireman, Mr. William A. Littleton, was convicted of sale of whiskey in cause No. 17,437 in the County Court of Navarro County, Texas.

I exercised my right to preemptorily [sic] challenge Mr. Littleton based solely upon these prior misdemeanor convictions and run-ins with the law and did not exercise that challenge because Mr. Lit-tleton was of any particular race, color or creed.”

At the Batson hearing, the prosecutor stated that he used a peremptory strike against Littleton because:

“[I]t was my feeling that because of these prior convictions and contacts at and by my office, he could not be fair to the State of Texas.”

The second prospective juror struck by the State was Jeanetta Chaney. The record of her voir dire examination revealed that Chaney was well acquainted with appellant and his mother. She indicated that she would have trouble making a decision concerning the death penalty in this case because appellant was related to her daughter and was “kind of like in the family.”

After the prosecutor exercised a peremptory strike against Chaney, appellant’s counsel objected. [See footnote 1, supra.] The prosecutor again was sworn in as a witness and testified as follows:

“I am Pat Batchelor. I’m the Criminal District Attorney in Navarro County Texas. I will be representing the State in the case of ‘The State of Texas versus Perry Keeton.’

I have examined the prospective veni-reperson Jenetta [sic] Chaney and I did exercise a preemptory [sic] challenge on behalf of the State. The reason that I exercised that preemptory [sic] challenge was because of her knowledge of and relationship with the family of the Defendant and the statement that she felt like that the Defendant was on a level with one of her sons and that they were related in some fashion, that I was unable to ascertain the exact degree of relationship, but she felt it was somewhat of a close relationship from the impression that I got.

The reason that I exercised a preemp-tory [sic] challenge is I felt that this would cause her undue stress to serve on this jury and have to make a decision of life or death with somebody that she obviously was this close with and had absolutely nothing to do with the fact that she was black and I did not strike her because of her race, color or creed.”

During the Batson hearing, the prosecutor stated that this prospective juror was struck because:

“... the Defendant had too close a tie to the — that the prospective venireman had too close a relationship to the Defendant to be completely fair to the State of Texas and the people of Navarro County in making a decision in this case.”

Tommy Crosby was the third prospective juror struck. The record of the voir dire examination shows the following:

Q. [By the prosecutor] In capital cases, Capital Murder cases, the State’s burden of proof is beyond a reasonable doubt. That’s the same burden — It’s a relatively high burden. It’s the highest that we have in the criminal just [sic] system. But it’s also the same burden that we have in a speeding ticket case or misdemeanor; it’s no higher.

Do you feel like if you were sitting on a Capital Murder case where a person’s life was involved that you would require the State to bring you more evidence and carry forth a higher burden than you would in, say, a speeding ticket case?

A. Definitely.

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Q. [By Appellant’s attorney] ... Mr. Crosby, there’s one aspect of what you and the District Attorney talked about that I would like to go into a little deeper with you, and that is — I believe that you told the District Attorney that due to the fact that this was a Capital Murder case that you would require a higher burden on the State than the burden of reasonable doubt. Am I right when I say that?

A. Yes, sir.

Later in the examination, the juror did indicate that he could follow the court’s instructions with regard to the State’s burden of proof.

After the State exercised its strike, appellant’s counsel objected. The prosecutor took the stand [see footnote 1, supra] and stated:

“I am Pat Batchelor. I’m District Attorney in Navarro County, Texas. I am representing the State in this cause. I have just examined Tommy Crosby and exercised a preemptory [sic] challenge on behalf of the State of Mr. Crosby [sic] for the reason that Mr. Crosby vacilated [sic] a great deal on whether or not he could hold the State to no higher burden than the law required. When first asked he was fairly definite that he would hold the State to a higher burden even to the point of saying beyond a shadow of a doubt. This is the reason that I exercised that preemptory [sic] challenge. It had nothing to do with his race, color, creed, religious [sic] or national origin.”

In explaining the use of a peremptory strike against Crosby during the Batson hearing, the prosecutor stated:

“The State did strike preemptorily [sic] the prospective venireman, Tommy J. Crosby ... for the reason that during his voir dire examination, he had stated numerous times that in this particular case he would have to hold the State to a higher burden of proof than he would in an ordinary case where the death penalty was not involved.

I felt like that we could have challenged Mr. Crosby for cause, but out of an over abundance of precaution — and since the State had not used all of its preemptory [sic] challenges — the State chose to exercise a preemptory [sic] challenge instead of challenging for cause because we felt Mr. Crosby could not be fair because of his belief that he would have to hold the State to a higher burden of proof in this particular case.”

After the hearing, the trial court filed findings of fact and conclusions of law which included the following:

1. The Court finds that the defendant, PERRY KEETON, is a member of a cognizable racial group.

2. The Court finds that the prosecutor exercised premptory [sic] challenges to remove from the venire members of the defendant’s race.

3. The Court finds that the attorney for the defendant raised an inference of purposeful discrimination.

4. The Court finds that the prosecutor came forward with a neutral explanation for each of the premptory [sic] challenges of prospective jurors of the defendant’s race.

5. The Court finds that the explanation given by the prosecutor in each case is completely credible.

6. The Court finds that the explanations given by the prosecutor in each case is [sic] completely sufficient as to content.

7. The Court finds that there was no purposeful discrimination by the prosecutor in the use of his premptory [sic] strikes whatsoever.

8. The defendant’s objection to the prosecutor’s premptory [sic] strikes is overruled.

In sum, the trial judge held that the prosecutor had not exercised peremptory challenges against black prospective jurors because of racial bias or prejudice.

The question we now face is whether the trial judge’s findings are supported by the record. To answer this question we must necessarily examine both the trial court’s role in making the appropriate determinations in a Batson hearing, and our role as an appellate court in reviewing those determinations.

THE ROLE OF THE TRIAL JUDGE UNDER BATSON

We first note that the trial judge’s role is slowly being defined by our sister states. Since the Batson decision calls for a new procedure not heretofore familiar to daily trial practice — that of demanding of a party the reasons for their exercise of peremptory strikes — most states are, as we are, plowing new ground. A few attempts to define the trial judge’s role, however, have already been made, and to those we now turn.

In State v. Antwine, 743 S.W.2d 51 (Mo.1987), the Missouri Supreme Court noted their understanding of the procedural route to be traveled in dealing with a challenge under Batson. The defendant must establish a prima facie case of discrimination in peremptory strike use which creates a presumption of discrimination that shifts the burden of production to the prosecution to come forth with a racially neutral explanation. If such an explanation is given, the defendant may attempt to show that such explanation is merely a pretextual one. Then, and most importantly for our purposes, they dealt with the difficulty of the trial judge’s role:

“The trial judge’s task is extremely difficult. One doubts that a prosecutor will admit that his decision to challenge a particular member of the venire was based on race. The court is left with determining from the totality of the circumstances whether an articulated neutral explanation is but an excuse for improper discrimination. Batson thus requires the trial judge to embrace a participatory role in voir dire, noting the subtle nuance of both verbal and nonverbal communication from each member of the venire and from the prosecutor himself.

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And we believe that Batson leaves room for the State to exercise its peremptory challenges on the basis of the prosecutor’s legitimate “hunches” and past experience, so long as racial descrimination is not the motive. We do not, therefore, adopt the holding of Butler [Butler v. State, 731 S.W.2d 265, 269, 41 CrL 2081 (Mo CtApp 1987)] that only objectively supportable explanations of its use of peremptory challenges survive a Batson challenge.

We do not believe, however, that Batson is satisfied by “neutral explanations” which are no more than facially legitimate, reasonably specific and clear. Were facially neutral explanations sufficient without more, Batson would be meaningless. It would take little effort for prosecutors who are of such a mind to adopt rote “neutral explanations” which bear facial legitimacy but conceal a discriminatory motive. We do not believe the Supreme Court intended a charade when it announced Bat-son.

* * * * * *

[W]e read Batson to require the trial judge to assess the entire milieu of the voir dire objectively and subjectively. The judge must consider his personal, lifetime experiences with voir dire, comparing his observations and assessments of veniremen with those explained by the State. In addition, he must consider both his personal experiences with the prosecutor and any evidence offered by a defendant to show a pattern or practice of a prosecutor using peremptory challenges in a racially discriminatory manner over the course of time. Other factors must be considered as circumstances demand.

Ultimately, however, the trial judge must focus all of the information and intuitive perceptions he has gathered to determine whether the prosecutor’s use of his peremptory challenges proceeds from a racially discriminatory motive.

(743 S.W.2d at 64, 65)

(emphasis supplied)

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Slappy v. State, 503 So.2d 350 (Fla.Dist.Ct.App.1987), was one of the first post-Batson cases to focus on the trial judge’s responsibility with respect to the explanations given by the prosecutor to rebut the presumption of his use of racially motivated peremptory strikes. After an exhaustive examination of California’s handling of the issue under their state constitution, the Florida court noted that California’s analysis and holdings, that prosecutor’s explanations were insufficient under the facts of the four cases discussed, had the effect of giving meaning to the requirements of Bat-son. Then a five part analysis, sometimes misnomered a test, was announced:

After a presumption arises that a party has used its peremptory challenges to exclude prospective jurors on the basis of race, the offending party must articulate “legitimate reasons” which are “clear and reasonably specific” and which are “related to the particular case to be tried.” The following will weigh heavily against the legitimacy of any race-neutral explanation:

1) an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically;

2) no examination or only a perfunctory examination of the challenged juror;

3) disparate examination of the challenged juror, i.e., questioning challenged venireperson so as to evoke a certain response without asking the same question of other panel members;

4) the reason given for the challenge is unrelated to the facts of the case; and

5) disparate treatment where there is no difference between responses given and unchallenged venirepersons.

The error in this case, as it was in [People v.] Hall, [35 Cal.3d 161, 197 Cal.Rptr. 71, 672 P.2d 854 (1983)] is that the trial court apparently considered itself bound to accept all of the prosecutor’s explanations at face value. That view, said the California Supreme Court, would constitute an abdication of obligations imposed by the constitution. Hall, 35 Cal.3d at 169, 197 Cal.Rptr. at 76, 672 P.2d at 858-59.

At the time of trial the trial judge was certainly without guidance in Florida or federal law on the precise question. We hold now that is not sufficient that a prosecutor’s explanations, in meeting the presumption that the peremptory challenge is being abused, are facially race-neutral. The trial court must further evaluate the proffered explanations in light of the standards we recognize here, other circumstances of the case, and the judges’ knowledge of trial tactics in order to make a reasoned determination that the prosecutor’s facially innocuous explanations are not contrived to avoid admitting acts of group discrimination. Slappy v. Florida, 503 So.2d 350 (Fla.App.3 Dist.1987).

(emphasis supplied and citations omitted)

By far, the most exhaustive attempt to analyze the Batson decision and give both lower and appellate courts guidance in implementing its procedure was done by the Alabama Supreme Court in Ex Parte Branch, 526 So.2d 609 (Ala.1987). The Alabama Supreme Court, having granted certiorari to the Alabama Court of Criminal Appeals, remanded the Branch case for a Batson hearing in the trial court. In an thirty-plus page opinion, the Court completed what must be the most comprehensive survey of State law dealing with Batson -type issues in formulating specific guidelines for trial and appellate courts. Concerning the general guidelines for trial courts, the Alabama Supreme Court began by paraphrasing the holding in Batson that the determination of whether there is a prima facie case must be made by considering “all relevant circumstances” which could lead to an inference to discrimination. Then the Court stated:

The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:

1.Evidence that the ‘jurors in question sharefd] only this one characteristic- — their membership in the group— and that in all other respects they [were] as heterogeneous as the community as a whole.’ For instance, ‘it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions,’ indicating that race was the deciding factor.

2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors.

3. The past conduct of the state’s attorney in using peremptory challenges to strike all blacks from the jury ve-nire.

4. The type and manner of the state’s attorney’s questions and statements during voir dire, including nothing more than desultory voir dire.

5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions.

6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged.

7. Disparate examination of members of the venire; e.g., in Slappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors.

8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury.

9. The state used peremptory challenges to dismiss all or most black jurors.

After a prima facie case is established, there is a presumption that the peremptory challenges were used to discriminate against black jurors. The state then has the burden of articulating a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory. However, this showing need not rise to the level of a challenge for cause. In addition to a clear, specific, and plausible nondiscriminatory explanation of a specific characteristic that affected the decision to challenge, the following are illustrative of the types of evidence that can be used to overcome the presumption of discrimination and show neutrality:

1. The state challenged non-black jurors with the same or similar characteristics as the black jurors who were struck.

2. There is no evidence of a pattern of strikes used to challenge black jurors; e.g., having a total of 6 peremptory challenges, the state used 2 to strike black jurors and 4 to strike white jurors, and there were blacks remaining on the venire.

Batson makes it clear, however, that “[t]he State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. Rather, the State must demonstrate that ‘permissible racially neutral selection criteria and procedures have produced the monochromatic result.” Furthermore, intuitive judgment or suspicion by the prosecutor is insufficient to rebut the presumption of discrimination. Finally, a prosecutor cannot overcome the presumption “merely by denying any discriminatory motive or ‘affirming his good faith in individual selections.’ ”

(emphasis supplied and citations omitted)

Echoing, without citation, the procedure outlined by the Missouri Supreme Court in Antwine, supra, the Alabama Supreme Court went on:

“Once the prosecutor has articulated a nondiscriminatory reason for challenging the black jurors, the other side can offer evidence showing that the reasons or explanations are merely a sham or pretext. The following are illustrative of the types of evidence that can be used to show sham or pretext:

1. The reasons given are not related to the facts of the case.

2. There was a lack of questioning to the challenged juror, or a lack of meaningful questions.

3. Disparate treatment — persons with the same or similar characteristics as the challenged juror were not struck.

4. Disparate examination of members of the venire; e.g., a question designed to provoke a certain response that is likely to disqualify the juror was asked to black jurors, but not to white jurors.

5. The prosecutor, having 6 peremptory challenges, the prosecutor used 2 to remove the only 2 blacks remaining on the venire.

6. “[A]n explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.” For instance, an assumption that teachers as a class are too liberal, without any specific questions having been directed to the panel or the individual juror showing the potentially liberal nature of the challenged juror.

The trial judge cannot merely accept the specific reasons given by the prosecutor at face value, the judge must consider whether the facially neutral explanations are contrived to avoid admitting acts of group discrimination. This evaluation by the trial judge is necessary because it is possible that an attorney, although not intentionally discriminating, may try to find reasons other than race to challenge a black juror, when race may be his primary factor in deciding to strike the juror. (emphasis supplied and citations omitted)

We approve of the conceptual analysis of the proceedings in the trial court employed by the Supreme Courts of Alabama, Florida and Missouri, and find them in harmony with, though considerably more elaborative than, our analysis in Keeton, supra.²

THE ROLE OF THE APPELLATE COURT

The question of what role the appellate court should play in reviewing the proceedings involving a Batson challenge, and what standard of review should be employed, has also been discussed (albeit sometimes cursorily) by other states.

In Antwine, supra, the Missouri Supreme Court was somewhat cursory. In reviewing the determination of the Missouri trial judge that the defendant did not establish a prima facie case of racial descri-mination, the Missouri Supreme Court reviewed all of the voir dire and the prosecutor’s explanations for the use of his strikes against blacks and concluded that the trial court’s ruling was not “clearly erroneous”.

The Supreme Court of Indiana, in Stamps v. State, 515 N.E.2d 507 (Ind.1987), has carried over the standard of appellate review used previously to determine error in voir dire, that of “manifest abuse of discretion and denial of a fair trial”, to decide if the trial judge correctly found no purposeful discrimination.

The Alabama Court of Criminal Appeals, in reviewing claimed Batson error in Bryant v. State, 516 So.2d 938 (Ala.Cr.App.1987), seemingly re-determined that the reason given by the prosecutor, that the stricken venireman had written bad checks in the past, was clearly race neutral.

The Arizona Court of Appeals in State v. Tubbs, 155 Ariz. 533, 747 P.2d 1232 (App.1987), when dealing with the first review of a prosecutor’s racially neutral explanation for striking certain blacks, began by stating the obvious:

“Courts have had a difficult time determining whether the reasons given by the prosecutor are the true reasons or fictitious reasons given for the purpose of masking discrimination.

Citing with approval the five part test set forth in Slappy, supra, discussed infra, the Court went on to say:

In this case, the prosecutor stated that he struck the only black member on the panel because he did not like the potential juror’s eye contact and because he thought that the juror and the defendant both worked for the City of Phoenix Sanitation Department. The prosecutor further stated that he struck a white juror for the same reason, i.e., that he did not like that juror’s eye contact.

While it is true that an elusive, intangible explanation for exclusion might not qualify as racially neutral, such is not the case when the explanation is coupled with an objectively verifiable reason. We are not asked to decide whether lack of eye contact alone is sufficient for a prosecutor to exclude the only black juror on the panel. The lack of eye contact coupled with the possibility that, at one time, defendant and the juror worked for the same employer is racially neutral and sufficient to support exclusion. See State v. Holder, [155] Ariz. [83], 745 P.2d 141 (1987).

If defendant is claiming the prosecutor was not being truthful in his responses, we note that the United States Supreme Court has stated that, since the findings of the trial judge largely will turn on an evaluation of credibility, appellate courts should give these findings “great deference.” Batson v. Kentucky, 476 U.S. at 98, n. 21, 106 S.Ct. at 1724, n. 21.

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The Alabama Supreme Court in Branch, supra, elucidated what they believe the role of an appellate court to be in reviewing a trial judge’s decisions after a Batson -type challenge.

What is the scope of review on appeal from a finding by the trial judge that the state has given a satisfactory neutral explanation? This, too, is a question of first impression.

* * * * ⅛ *

We believe that the Court of Criminal Appeals correctly held that “[w]e may only reverse the trial judge’s determination that the prosecution’s peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous.” We realize that the trial court and the Court of Criminal Appeals were reviewing the requirements of Batson with little guidance on how a trial judge should discharge his responsibility when a defendant raises a Batson objection. We have the benefit of several cases decided in other jurisdictions, which may or may not have been called to the attention of those courts. We also have benefitted from some reviews of Batson that have been made in legal publications. We believe that the guidelines that we set out in this opinion will not only aid the trial court in this case, but other courts faced with a Batson or [similar] challenge.

In adopting our own standard for review, we reject Alabama’s “clearly erroneous” standard, which is the federal standard for reviewing findings of fact. See Rule 52(a), Federal Rules of Civil Procedure. Nor do we adopt Indiana’s abuse of discretion standard. We believe that our focus, as well as that of the trial judge, should be on whether purposeful discrimination was established. We will of course consider the evidence in the light most favorable to the trial judge’s rulings and determine if those rulings are supported by the record. If the record supports the findings of the trial judge, they will not be disturbed on appeal.

THE CASE AT BAR

Applying this standard to the facts at bar, we find that the trial court’s findings were supported by the record. During their voir dire examinations, both Lit-tleton and Chaney evidenced a potential to be biased against the State: Littleton because of prior misdemeanor convictions prosecuted by the State’s attorney and Chaney because of a close relationship to appellant and his family. The prosecutor stated during trial that these bases for potential bias were the reasons for the strikes. At the Batson hearing, the prosecutor again stated that he believed neither prospective juror could be fair: Littleton because of the prior convictions and Chaney because of her association with appellant’s family. Based upon this record, we perceive no error in the trial court’s finding of no purposeful discrimination in the State’s use of peremptory challenges against Littleton and Chaney.

The record also shows that the third juror, Crosby, may have held the State to a higher standard of proof. The prosecutor stated during trial and at the Batson hearing that this was the basis for the strike. The use of a peremptory strike against this prospective juror was understandable, and the trial court’s finding that it was not based solely on the juror’s race is supported by the record.

Based upon the preceding analysis, we hold that there was sufficient evidence in the record to support the trial judge’s finding that there was no purposeful discrimination by the prosecutor in the use of his peremptory strikes. Appellant’s fifth point of error is overruled.

Since no reversible error arose with regard to the State’s use of peremptory strikes, a new trial is not required. For the reasons stated in Keeton, supra, the punishment in the judgment is reformed to life.

W.C. DAVIS and WHITE, JJ., join the opinion but dissent to the reformation of the punishment to life. See Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987).

1 . The record shows that during the voir dire portion of the trial, appellant’s counsel objected to each of the State’s peremptory strikes as they were leveled at members of the black race. The prosecutor took the stand subsequent to each Batson objection and presented testimony as to why the prospective jurors were struck. The prosecutor's reason for so doing is not clear, but we may assume that this was a laudable attempt to pay homage to Batson, supra, which was delivered two weeks before the instant trial and generated confusion over the procedures to follow. See Seymore and Thielman, Batson v. Kentucky: A New Weapon for the Defense, Voice for the Defense, October 1987, 21-24. There was no Batson hearing as we now conceive it held during the trial; rather, the hearing took place after the order of this Court, mentioned at the beginning of this opinion, issued. Since we must examine the entire record when passing upon the propriety of a trial court’s rejection of a Batson objection, the prosecutor’s trial testimony is included in this discussion.

2 . Note also the analysis and results stemming from challenges to the State’s use of voir dire strikes in People v. Hall, 35 Cal.3d 161, 197 Cal.Rptr. 71, 672 P.2d 854 (1983); People v. Trevino, 39 Cal.3d 667, 217 Cal.Rptr. 652, 704 P.2d 719 (1985); and People v. Turner, 42 Cal.3d 711, 230 Cal.Rptr. 656, 726 P.2d 102 (1986) (post Batson).