Mose M. Bias, Jr. was charged by bill of information with two simple burglaries and thefts of a building owned by Ollie Deville, Jr., committed on April 11 and 26, 1976. Defendant was tried on only the burglary counts by a jury, and was acquitted of the April 11 burglary and convicted of the April 26 burglary. Defendant was sentenced to seven years at hard labor. On appeal defendant relies on four assignments of error for reversal of his conviction and sentence.
Defendant raises a substantial issue on Assignments of Error Nos. 3 and 4. He moved to quash the completed petit jury panel
This court has consistently reiterated its adoption of the views expressed in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), wherein the United States Supreme Court held that an accused is not denied equal protection when the State, through the use of peremptory challenges, prevents blacks from serving on the jury unless he can prove systematic exclusion over a period of time. See, e. g., State v. Trudell, 350 So.2d 658 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Bennett, 341 So.2d 847 (La.1977).
Where defendant is able to establish a prima facie case of such systematic exclusion, the burden shifts to the State to show that no discrimination was practiced. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); State v. Brown, 319 So.2d 409 (La.1975). Defendant must not be denied the opportunity to make his prima facie showing.
The State in brief points out that one juror selected for the panel who did sit in judgment of the case is a member of the Negro race. Thus, it argues, the presence of that black juror on the panel is conclusive proof that there was no systematic exclusion of blacks in this case. This fact alone cannot preclude defendant from making a showing that blacks are systematically excluded in disproportionate numbers and that only a token selection of blacks has been made over a period of time.
The remaining assignments of error are without merit. The evidence fully supports the ruling of the trial judge on the admissibility of the confession. The reply on voir dire examination by the prospective juror Guillory that he passed the store on the morning defendant was caught in the store did not justify a mistrial, in view of the admonition by the judge and the full explanation by Guillory. The ruling on the motion for new trial was correct.
Because no other reversible error is disclosed, and because the error noted might be obviated by an evidentiary hearing, we refrain from reversing the conviction, and will remand for a hearing. State v. Simmons, 328 So.2d 149 (La.1976).
For the reasons assigned, the conviction and sentence are affirmed, except that the case is remanded to the district court for an evidentiary hearing on the issue of systematic exclusion of blacks through the exercise of peremptory challenges by the prosecutor. If the trial court finds for the defendant on this issue, it shall grant the defendant a new trial. The right to appeal the trial judge's ruling is reserved to the defendant.