On appeal from Superior Court of New Jersey, Law Division, Essex County.
Antell, Long and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
[220 NJSuper Page 39] This appeal involves application of the principles announced in State v. Gilmore, 103 N.J. 508 (1986). Gilmore held that the
New Jersey Constitution forbids "a prosecutor to exercise peremptory challenges to remove potential petit jurors who are members of a cognizable group on the basis of their presumed group bias. . . ." Id. at 517.
Essex County indictment 2420-80 charged defendant, a black man, with aggravated assaults of Gerard Frisoli and Thomas Hill (N.J.S.A. 2C:12-1 b(5)(a)) and with resisting arrest (N.J.S.A. 2C:29-2). Frisoli and Hill are white*fn1 Newark police officers. Defendant denied his guilt and contended that he had been the victim of police brutality. At his first trial, defendant was found not guilty of assaulting Frisoli, but the jury was unable to reach a verdict on the two other charges. At his second trial, in September-October 1984, defendant was found not guilty of assaulting Hill, but he was found guilty of resisting arrest. Defendant, age 37, had no prior record. He was placed on probation for one year and fined $250.
At the conclusion of jury selection, but before the petit jurors were sworn, defense counsel moved for a mistrial on the ground that the assistant prosecutor (hereafter, prosecutor) had exercised his peremptory challenges to exclude blacks. The motion was denied. When he decided this motion, the trial judge did not have the benefit of the Appellate Division's second*fn2 Gilmore decision, which was decided in March 1985, or of the Supreme Court opinion. State v. Gilmore, 199 N.J. Super. 389 (App.Div.1985), affirmed, 103 N.J. 508 (1986).
Gilmore (hereafter, references to Gilmore are to the Supreme Court's opinion unless indicated otherwise) ruled that the defendant has the burden of persuading the trial court, by a preponderance of the evidence, that the State impermissibly exercised preremptory challenges to exclude members of a cognizable group. However, the prosecution has the intermediate burden of justifying its challenges if the defendant has established a prima facie showing that the State's exercise of peremptory challenges was constitutionally flawed. To establish a prima facie case, the defendant must demonstrate "that the potential jurors wholly or disproportionally excluded were members of a cognizable group" and "that there is a substantial likelihood that the peremptory challenges . . . were based on assumptions about group bias rather than any indication of situation-specific bias." Gilmore at 535-536.
In the present case, defendant made a prima facie showing that the State had exercised its peremptory challenges to exclude blacks. Under the version of R. 1:8-3(d) in effect in 1984, the State had 10 peremptory challenges. The prosecutor exercised nine peremptory challenges to exclude all but two of the blacks who were empaneled. Thus, the prosecutor utilized 90% of his challenges to exclude blacks. Through the exercise of his peremptory challenges, the prosecutor excluded 81% (9 of 11) of the blacks placed in the jury box. The fact that two blacks served as jurors gives no comfort to the State because the prosecutor had exhausted his peremptory challenges. The State's other challenge was exercised to exclude a white woman. The prosecutor candidly, perhaps ingenuously, admitted that he excluded the white woman because of her sex. The prosecutor told the trial judge that he did not want a female foreperson. Therefore, the only challenge not utilized to exclude a black was exercised to exclude a member of another cognizable group, a female. Thus, as in Gilmore,*fn3 the prosecution,
through the exclusion of a woman, clearly demonstrated a tendency to exclude jurors on the basis of presumed group bias.
We are satisfied that these facts establish the disproportionate exclusion by the State of blacks under circumstances which establish a substantial likelihood that the State's exercise of its peremptory challenges was based on the prosecution's concerns about group bias rather than on indicators of situation-specific bias.*fn4 Gilmore, 103 N.J. at 535-536.
The prosecutor's explanations indicate that challenges to four of the nine blacks could be justified on situation-specific grounds. One had been previously charged with a crime. Two had children who had been involved in the criminal justice system. However, the prosecutor's failure to exclude a white person whose son had been convicted of a drug offense and placed on probation for two years casts a doubt on the bona fides of this ...