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State v. Gilmore

Decided: March 8, 1985.


Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by J. H. Coleman, J.A.D.


[199 NJSuper Page 394] As we noted in our remand decision, the crucial question presented in this appeal is whether defendant's constitutional right to an impartial jury was violated by the assistant prosecutor's exclusion of all black prospective petit jurors by the use of peremptory challenges. We conclude that the assistant prosecutor systematically excluded all black prospective petit jurors based on group association, rather than individual bias, and that his conduct was in violation of N.J. Const. (1947), Art. I, para. 5, para. 9 and para. 10. We therefore reverse the judgment of conviction and order a new trial without a showing of any other prejudice.



In a single jury trial, defendant was found guilty of three first degree robberies of two Hispanic attendants at Carmine's Exxon gasoline station, Route 22, Union, New Jersey. The robberies occurred on July 28, 1981, August 21, 1981 and August 22, 1981. Defendant was sentenced to three concurrent 15 year custodial terms with five years of parole ineligibility.

Defendant, who is black, was tried to an all-white jury, comprised of six males and six females. Defense counsel was black and the assistant prosecutor was white. During the jury selection, nine black potential jurors were seated in the jury box at different times. Two of them were excused for cause. The assistant prosecutor used 11 of the 12 peremptory challenges allowed him by R. 1:8-3(d). He excused the remaining seven black prospective jurors. Defense counsel exhausted his 20 peremptory challenges.

At the conclusion of the jury selection, but before the jury was sworn, defense counsel moved for a mistrial. He contended that the assistant prosecutor used his peremptory challenges to excuse the remaining seven black prospective jurors based on race alone. He argued:

In response to the motion for a mistrial, the assistant prosecutor stated:

It's my understanding of the rules that I can exercise my peremptory challenges as I see fit. It's my judgment that the people I have excused, the majority are blacks, but I did excuse certain whites. I have a right to excuse them, just as [defense counsel] had a right to excuse some of the older white businessmen on the jury. He exhausted his challenges.

The trial judge relied heavily on Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965) and State v. Smith, 55 N.J. 476, 479-484

(1970), cert. den. 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970) in rejecting defendant's constitutional argument. On defendant's appeal following his conviction, we recognized that the black prospective jurors were not identified in the record and that the decisional law in this State did not compel the assistant prosecutor to explain the reasons for his use of peremptory challenges; we therefore remanded the case to the Law Division "to establish the identity of the black prospective jurors and to afford the assistant prosecutor an opportunity to establish his motive or reasons for excusing each of the seven prospective black jurors." State v. Gilmore, 195 N.J. Super. 163 at 166. The remand hearing was conducted on June 28, 1984. After the remand, we granted defendant bail pending disposition of the appeal.



In State v. Smith, 55 N.J. at 483-484, our Supreme Court held that defendant had failed to establish "any practice of systematic exclusion of Negroes" or that all of the black prospective jurors had been excluded by the use of peremptory challenges solely because of their race. The Court in Smith accordingly found that the use of peremptory challenges by the assistant prosecutor and defense counsel did not violate federal constitutional law announced in Swain v. Alabama, supra. Our Supreme Court did not consider whether the use of peremptory challenges, N.J.S.A. 2A:78-7 and R. 1:8-3(d), based solely on group association rather than individual bias would violate the New Jersey Constitution. Likewise, the decision in State v. Johnson, 125 N.J. Super. 438, 439 (App.Div.1973) was based on Swain v. Alabama, supra and did not consider the issue under our State Constitution. While the United States Constitution remains the primary source of fundamental rights, it is now well established that we may look to our State Constitution to provide a higher level of protection of personal

rights than those guaranteed by the federal constitution. Oregon v. Kennedy, 456 U.S. 667, 681, 102 S. Ct. 2083, 2092, 72 L. Ed. 2d 416, 428 (1982); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 78-81, 100 S. Ct. 2035, 2039-2040, 64 L. Ed. 2d 741, 750-752 (1980); Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 1219, 43 L. Ed. 2d 570, 575-576 (1975); Right to Choose v. Byrne, 91 N.J. 287, 299-300 (1982); State v. Hunt, 91 N.J. 338, 359 (1982); State v. Alston, 88 N.J. 211, 225 (1981); State v. Schmid, 84 N.J. 535, 553-560 (1980); State v. Johnson, 68 N.J. 349, 353-354 (1975). Distinguished jurists and scholars have encouraged state courts to look to their state constitutions as a supplemental source of fundamental rights which may surpass those guaranteed by the federal constitution. Note, "Developments in the Law -- The Interpretation of State Constitutional Rights," 95 Harv.L.Rev. 1324, 1326-1328 (1982); see Brennan, "State Constitutions and the Protection of Individual Rights," 90 Harv.L.Rev. 489, 491-495 (1977); Pollock, "State Constitutions as Separate Sources of Fundamental Rights," 35 Rut.L.Rev. 707, 708 (1983). For the reasons which follow, we are satisfied that the New Jersey Constitution provides greater protection against the discriminatory use of peremptory challenges than the United States Supreme Court has afforded under the United States Constitution.



Article I of the New Jersey Constitution, paragraph 5 provides "[n]o person shall be denied the enjoyment of any civil . . . right, nor be discriminated against in the exercise of any civil . . . right . . . because of . . . race, color, ancestry or national origin." Paragraph 9 provides "[t]he right of trial by jury shall remain inviolate; . . . ." Finally, paragraph 10 provides "[i]n all criminal prosecutions the accused shall have the

right to a speedy and public trial by an impartial jury; . . . ." Read together, these paragraphs of Article I guarantee that a defendant in a criminal case is entitled to a jury trial by a fair and impartial jury without discrimination on the basis of race, color, ancestry or national origin.

That guarantee has long and consistently been articulated in our case law. As long ago as 1900, the then Court of Errors and Appeals held that prospective jurors may not be "designedly excluded on account of color" from petit jury lists. Bullock v. State, 65 N.J.L. 557, 564 (E. & A.1900). In State v. Stewart, 2 N.J. Super. 15, 24 (App.Div.1949), Judge (later Justice) Jacobs stated that "in the drawing of jury panels, grand or petit, there must be no intentional discrimination against persons because of their color." And in State v. Rochester, 54 N.J. 85 (1969), our Supreme Court found that "[n]o one may be disqualified from service as a grand or petit juror because of 'race, color, creed, national origin, or ancestry'" (citing N.J.S.A. 2A:72-7) and held that "[t]he methods of selection must be so designed as to insure that juries are impartially drawn from community cross-sections." 54 N.J. at 88. (citations omitted). Our cases accord with a long line of federal cases. Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 1905, 26 L. Ed. 2d 446, 460 (1970); Apodaca v. Oregon, 406 U.S. 404, 410-411, 92 S. Ct. 1628, 1632-1633, 32 L. Ed. 2d 184, 191 (1972); Johnson v. Louisiana, 406 U.S. 356, 378, 92 S. Ct. 1620, 1642, 32 L. Ed. 2d 152, 169 (1972); Smith v. Texas, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84 (1940). Even though New Jersey established the representative cross-section rule as early as 1949 in Stewart, the rule, however, was not made applicable to the states through the Sixth Amendment until the decisions in Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968), reh. den. 392 U.S. 947, 88 S. Ct. 2270, 20 L. Ed. 2d 1412 (1968) and Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). See State v. Porro, 158 N.J. Super. 269 (App.Div.1978), cert. den. 439 U.S. 1047, 99 S. Ct. 724, 58 L. Ed. 2d 706 (1978).

The purpose of the representative cross section rule was summarized in Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct. 984, 985, 90 L. Ed. 1181 (1946). The court observed:

Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.

In the same connection, Justice Black said:

It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government. [Footnote omitted] [ Smith v. Texas, 311 U.S. at 130, 61 S. Ct. at 165]

The rationale for establishing the representative cross section rule is anchored in the fact that in our heterogeneous society jurors belong to many diverse groups. The groups are often defined by race, sex, age, religion and national or ethnic origin. The larger group is often further defined by education, economic condition, place of residence, occupation and political affiliation. Frequently, groups overlap one another.

The cross section representation rule does not require the systematic inclusion of the diverse, cognizable groups. See State v. Stewart, supra. It requires that a cognizable group cannot be intentionally or systematically excluded. While defendant in the present case has no right to insist that Blacks serve on his trial jury or that there be proportional representation of Blacks on the jury, State v. Zicarelli, 154 N.J. Super. 347 (App.Div.1977), certif. den. 75 N.J. 601 (1978), he does have the unqualified right to be tried by a fair and impartial jury. In New Jersey the right to trial by a jury drawn from a representative cross section of the community is guaranteed by N.J. Const. (1947), Art. I, para. 5, para. 9 and para. 10, independently of the Sixth Amendment to the federal constitution.

Although the representative cross section rule is implicated in the entire jury selection process, we are ...

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