This opinion amplifies an oral decision. The matter came before this court on defendant's motion for a mistrial based on an assertion that the prosecution had impermissibly exercised peremptory challenges to remove potential jurors on the basis of race. The issue before the court is whether the use of a disproportionate number of challenges to exclude minorities from the petit jury coupled with the State's admission that it had excluded six of eight jurors on the basis of a bias against young persons establishes by a preponderance of the evidence that the prosecution exercised its peremptory challenges on constitutionally impermissible grounds of group bias in violation of State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986).
Hudson County Indictment Number 0961-04-91 charged defendants Juan Zavala and Bartolo Zavala with Attempted Murder in violation of N.J.S.A. 2C:5-1 and 2C:11-3; Aggravated Assault in violation of N.J.S.A. 2C:12-1b(1), (2) and (3); Unlawful Possession of a Weapon in violation of N.J.S.A. 2C:39-5(d); Possession of a Weapon for Unlawful Purpose in violation of N.J.S.A. 2C:39-4(d) and Tampering with a Witness in violation of N.J.S.A. 2C:28-5(a) (Juan Zavala only). Both Juan and Bartolo Zavala are nationals of El Salvador.
Consistent with R. 1:8-3(a) the court conducted a voir dire examination of the prospective jurors. The State was entitled to twelve peremptory challenges and the defendants to ten each. R. 1:8-3(d). During the selection process, but prior to the Gilmore motion, the prosecution exercised eight challenges to exclude five black and/or hispanic persons. Thus, of the eight challenges exercised, the prosecution utilized 62.5% to
exclude minorities from the petit jury. Additionally, of the eight challenges exercised, six of these or 75%, were used to exclude young persons between the ages of eighteen to thirty. Five of these persons were either black or hispanic. Following the prosecution's eighth challenge, defense counsel moved for a mistrial asserting that the prosecution had exercised peremptory challenges solely on the basis of race.
In State v. Gilmore, supra, the New Jersey Supreme Court held that a criminal defendant may challenge the State's use of peremptory challenges if such challenges were constitutionally flawed. This holding has recently been extended to allow the State to challenge the defendant's use of peremptory challenges as well as to the use of challenges by civil litigants. See Georgia v. McCollum, U.S. , 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992); State v. Alvarado, 221 N.J. Super. 324, 534 A.2d 440 (App.Div.1987); Edmonson v. Leesville Concrete Co., 500 U.S. , 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991).
In Gilmore, the Court established a three step process for the trial court's determination. First, the defendant must make out a prima facie showing of purposeful discrimination by demonstrating that the potential jurors wholly or disproportionately excluded were members of a cognizable group and that there is a substantial likelihood that the peremptory challenges resulting in the exclusion were based on assumptions about group bias rather than situation-specific bias. Gilmore, supra, 103 N.J. at 535-536, 511 A.2d 1150. Second, upon the defendant's prima facie showing, the burden shifts to the prosecution to come forward with evidence that the peremptory challenges under review are justifiable on the basis of prosecutorial concern about situation-specific bias. Id. at 537, 511 A.2d 1150. Finally, the trial court must weigh all of the circumstances and determine whether the defendant established purposeful discrimination. Ibid.
Here, the defendants established a prima facie showing that the potential jurors excluded were members of a cognizable
group. The facts indicate that five of the eight jurors challenged were black or hispanic. Both black and hispanic persons have been determined to be cognizable groups for purposes of a Gilmore motion. See, State v. Gilmore, supra; State v. Townes, 220 N.J. Super. 38, 531 A.2d 381 (App.Div.1987). Once the court is satisfied that the excluded jurors were members of a cognizable group, the defendant must also show that there is a "substantial likelihood" that the peremptory challenges exercised were based on assumptions about group bias rather than situation-specific bias. Although the Court in Gilmore left the term "substantial likelihood" underfined, the decision instructs the trial courts to consider "all of the relevant circumstances" including such factors as:
(1) that the prosecutor struck most or all of the members of the identified group from the venire; (2) that the prosecutor used a disproportionate number of his or her peremptories against the group; (3) that the prosecutor failed to ask or propose questions to the challenged jurors; (4) that other than their race, the challenged jurors are as heterogeneous as the community as ...