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State v. Horcey

Decided: July 30, 1993.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WENDELL L. HORCEY, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.

Shebell, Arnold M. Stein and Conley. The opinion of the Court was delivered by Arnold M. Stein, J.A.D. Shebell, J.A.D., Concurring.

Stein

Defendant, an African-American male, described in the record as larger than the Caucasian female victim, was convicted of second degree robbery as a lesser included offense of first degree armed robbery. We reverse because the trial Judge refused to question prospective jurors about whether the racial disparity between the victim and the accused could affect their ability to be impartial.

The robbery occurred at a Fotomat booth in the parking area of a shopping mall. According to the victim, her assailant reached into the booth, grabbed her by the collar, pushed her against the wall, shoved a long, sharp, shiny object into her ribs and demanded money. The victim telephoned the police shortly after the robber fled with the money, which totaled about $115.

Defendant was stopped by the police about one mile from the Fotomat. The car he was driving, the clothes he was wearing and his physical description were similar to those previously provided by the victim, who identified defendant as the robber shortly after he was apprehended. The police found $116.66 crumpled up in his left front hip pocket. No knife or other shiny object was retrieved from defendant's car.

Defendant testified. He denied any contact with the victim. He claimed that he was on his way to help a friend move to a new residence when he was stopped.

On the first day of jury selection, defense counsel submitted a written list of questions to be asked of potential jurors regarding their racial attitudes and prejudices. The Judge refused to ask any questions about race stating:

I asked if they could be fair and impartial jurors and that as fellow jurors, they would expect their other jurors to be fair and impartial. So, in fact, I have made eleven jurors the watchdog of the twelve.

The next day, the Judge again denied defense counsel's request. He said:

This is not a question of black and white. This is a question of theft. That's what he has been indicted for. There is no reason to say to this jury anything about

black and white. This is the trial of a defendant who is accused by a grand jury of doing certain things.

Whenever there is a racial or ethnic difference between victim and accused, at defendant's request the trial Judge should inquire of the prospective jurors as to whether the disparity will affect their ability to be impartial. Rosales-Lopez v. United States, 451 U.S. 182, 191, 101 S. Ct. 1629, 1635, 68 L. Ed. 2d 22, 30 (1981); State v. Ramseur, 106 N.J. 123, 246, 524 A.2d 188 (1987); State v. Long, 137 N.J. Super. 124, 131, 348 A.2d 202 (App.Div.1975), certif. denied, 70 N.J. 143, 358 A.2d 190 (1976).

Refusal to ask the potential jurors questions about racial attitudes is error of constitutional magnitude where racial issues are "inextricably bound up with the conduct of the trial," Ristaino v. Ross, 424 U.S. 589, 597, 96 S. Ct. 1017, 1021, 47 L. Ed. 2d 258, 264 (1976), or where there exists "substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors ...


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