Before Judges Skillman, P.g. Levy and Lesemann.
The opinion of the court was delivered by: Skillman, J.A.D.
 Submitted September 14, 1998
On appeal from Superior Court of New Jersey, Law Division, Union County.
This appeal involves the procedures a trial court is required to follow when a defendant asserts that the prosecution has used its peremptory jury challenges to exclude members of a cognizable group.
Tried before a jury, defendants were found guilty of armed robbery, in violation of N.J.S.A. 2C:15-1, felony murder, in violation of N.J.S.A. 2C:11-3a(3), possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a, possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b, and conspiracy, in violation of N.J.S.A. 2C:5-2. In addition, the jury acquitted defendants of a charge of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1),(2).
The court sentenced Clark to a life sentence, with thirty years of parole ineligibility, for felony murder, and a consecutive ten year term, with five years of parole ineligibility, for possession of a weapon for an unlawful purpose. In addition, the court imposed a concurrent term of five years imprisonment for possession of a handgun without a permit. It merged Clark's other convictions into his conviction for felony murder and also imposed the prescribed VCCB and SNSF assessments.
The court sentenced Griggs to a thirty year term of imprisonment without parole for felony murder. In addition, the court imposed concurrent terms of ten years imprisonment, with five years of parole ineligibility, for possession of a weapon for an unlawful purpose, and five years imprisonment for possession of handgun without a permit. It also imposed the prescribed VCCB and SNSF assessments.
Both defendants have appealed. Because the appeals arise out of a joint trial and the issues substantially overlap, we consolidate them.
The initial argument of both defendants is that the prosecutor violated their constitutional rights to equal protection of the law and to trial by a jury drawn from a representative cross-section of the community by using peremptory challenges to remove six prospective black jurors. We conclude that the trial court failed to make adequate findings with respect to the prosecutor's alleged discriminatory use of her peremptory challenges. We also conclude that the record is inadequate for us to determine whether the prosecutor's use of peremptory challenges resulted in a denial of defendants' constitutional rights because it does not indicate whether there were any blacks on the jury. Consequently, the case must be remanded to the trial court to supplement the record, make adequate findings of fact and reconsider its Conclusion that defendants failed to establish that the prosecutor used her peremptory challenges in a racially discriminatory manner.
Both the United States and New Jersey Constitutions prohibit the use of peremptory challenges to remove prospective jurors on the basis of race. In Batson v. Kentucky, 476 U.S. 79, 96, 106 S. Ct. 1712, 1723, 90 L. Ed. 2d 69, 87 (1986), the Supreme Court of the United States held that the Equal Protection Clause of the Fourteenth Amendment forbids a prosecutor from exercising peremptory challenges to remove jurors on the basis of race, and that "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." *fn1 In State v. Gilmore, 103 N.J. 508 (1986), the Supreme Court of New Jersey held that Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution forbids a prosecutor from exercising peremptory challenges to remove potential petit jurors who are members of a cognizable group on the basis of presumed group bias. *fn2
Under both the United States and New Jersey Constitutions, the determination of whether the prosecution has exercised peremptory challenges in a discriminatory manner involves a three-step procedure. As described in Gilmore, the defendant initially has the burden to make a "prima facie showing that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds." 103 N.J. at 535. To satisfy this burden, a defendant "must establish that the potential jurors wholly or disproportionately excluded were members of a cognizable group within the meaning of the representative cross-section rule" and that "there is a substantial likelihood that the peremptory challenges resulting in the exclusion were based on assumptions about group bias rather than any indication of situation-specific bias." Id. at 535-36. If a defendant makes this prima facie showing, "[t]he burden shifts to the prosecution to come forward with evidence that the peremptory challenges under review are justifiable on the basis of concerns about situation-specific bias." Id. at 537. To satisfy its burden, "the State must articulate `clear and reasonably specific' explanations of its `legitimate reasons' for exercising each of the peremptory challenges." Ibid. (quoting Texas Dep't of Community Affairs v. Burdin, 450 U.S. 248, 258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207, 218 (1981)). Finally, if the State presents such reasons, "the trial court must Judge the defendant's prima facie case against the prosecution's rebuttal to determine whether the defendant has carried the ultimate burden of proving, by a preponderance of the evidence, that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias." Id. at 539. Similarly,
"the Supreme Court has indicated that under Batson, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination." [Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770-71, 131 L. Ed. 2d 834, 839 (1995).]
Although a similar three step procedure is used under both the United States and New Jersey Constitutions, the prosecution must satisfy a heavier burden under the New Jersey Constitution to overcome a prima facie showing that it has exercised peremptory challenges on constitutionally-impermissible grounds. In Purkett v. Elem, supra, the Supreme Court of the United States held:
The second step of this process does not demand an explanation that is persuasive, or even plausible. "At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." [514 U.S. at 767-68, 115 S. Ct. at 1771, 131 L. Ed. 2d at 839 (quoting Hernandez v. New York, supra, 500 U.S. at 360, 111 S. Ct. at 1866, 114 L. Ed. 2d at 406 (plurality opinion)).]
In fact, the Court in Purkett indicated that the prosecution's burden to come forward with a race neutral explanation for the exercise of a peremptory challenge can be satisfied even by reasons which are "silly" or "superstitious." Ibid.
In contrast, our Supreme Court has held that the prosecution's burden under the New Jersey Constitution can be satisfied only by the presentation of reasons "that are reasonably relevant to the particular case on trial or its parties or witnesses." Gilmore, supra, 103 N.J. at 538 (quoting People v. Wheeler, 583 P.2d 748, 765 (Cal. 1978)). "The State needs to show a genuine and reasonable ground for believing that a prospective juror might have an individual or personal bias that would make excusing him or her rational and desirable." State v. McDougald, 120 N.J. 523, 555 (1990); see also James H. Coleman, Jr., The Evolution of Race in the Jury Selection Process, 48 Rutgers L. Rev. 1105, 1132-33 (1996) ("New Jersey has adopted a stricter rule than Purkett's implausible rule.").
The Supreme Court of New Jersey also has established a more demanding standard under the New Jersey Constitution with respect to the ultimate determination of whether the prosecution has exercised its peremptory challenges on impermissible grounds. In Purkett, supra, 514 U.S. at 769, 115 S. Ct. at 1771-72, 131 L. Ed. 2d at 840, the Supreme Court of the United States held that when a defendant claims that the prosecution has made racially discriminatory use of its peremptory challenges, a trial court needs to consider only the "genuineness" of its purported non-racial motives for peremptory challenges, and not their "reasonableness." However, our Supreme Court has held that under the New Jersey Constitution, "[t]he trial court must decide whether [the prosecution has presented] genuine and reasonable grounds for believing that potential ...