Before Judges Skillman, P.G. Levy and Lesemann.
The opinion of the court was delivered by: Skillman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 1998 and Resubmitted after remand May 17, 1999
On appeal from Superior Court of New Jersey, Law Division, Union County.
The opinion of the court was delivered by
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 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 merged Griggs' other convictions into his conviction for felony murder and imposed the prescribed VCCB and SNSF assessments.
Both defendants appealed. Because the appeals arise out of a joint trial and the issues substantially overlap, we consolidated them. [At the court's direction, its recitation of all the issues defendants presented on appeal has been omitted from the published opinion.]
Upon an initial review of this appeal, we concluded that defendants' most substantial argument was that the prosecutor had used her peremptory challenges in a racially discriminatory manner. We also concluded that the trial court had failed to make adequate findings with respect to the prosecutor's alleged discriminatory use of her peremptory challenges and that the record was inadequate for this court to determine the issue. We noted in particular that the record failed to indicate whether there were any blacks on the jury ultimately selected to hear the case. Accordingly, we remanded the case to the trial court to supplement the record, make detailed findings of fact and reconsider its decision rejecting defendants' objections to the prosecutor's use of her peremptory challenges. State v. Clark, 316 N.J. Super. 462 (App. Div. 1998).
Upon remand, the trial court determined on the basis of its own notes, the court clerk's notes taken during jury selection and the clerk's minute sheet that five of the fourteen jurors selected to sit on the case and four of the twelve jurors who found defendants guilty were black. The court also found that reviewing the State's peremptory challenges "individually and as a whole, there was good and sufficient reasons for each challenge." Therefore, the court reaffirmed its original decision rejecting defendants' claim that the prosecutor had exercised her peremptory challenges in a racially discriminatory manner.
The remand having been completed, the appeal is now before us for a final decision. After a careful review of the entire record, including the proceeding on remand, we conclude that, except for the argument that the trial court should have merged defendants' convictions for possession of a weapon for an unlawful purpose into their convictions for robbery and felony murder, defendants' arguments are without merit. Accordingly, we vacate defendants' convictions for possession of a weapon for an unlawful purpose but affirm their convictions and sentences in all other respects.
[At the court's direction, a preliminary Discussion appearing at this point in the filed opinion has been omitted from the published opinion.]
Before discussing defendants' arguments, it is appropriate to summarize briefly the evidence presented at trial. The State presented testimony by five eyewitnesses to the crime. They testified that during the afternoon of November 1, 1994, the victim, Evan Graham, was selling heroin and cocaine at his usual location on a street corner in Elizabeth when defendants, armed with handguns, accosted him, took money from his pockets, hit him in the back of the head with a pistol butt, and then shot him point-blank in the chest. Although none of these witnesses saw the fatal shot fired, four of them saw defendants approach the victim with handguns and rob him a few moments before they heard the shot. These witnesses all knew defendants from the neighborhood and identified them from photographic arrays and again at trial. The five eyewitnesses were also involved in drug trafficking, but the State elicited evidence that none of them had been offered any special consideration in exchange for their testimony at defendants' trial.
The State also presented testimony that when Clark was arrested, the police asked him where the gun was, and he replied, "it's not here." At police headquarters, when officers told Clark there were witnesses to the murder, he responded: "All you got are the words of the nigger drug dealers on the corner. Ain't nobody going to take their word. F---them. They mean nothing to me. They're afraid of me." Neither defendant took the stand or presented any alibi evidence.
Initially, we consider defendants' argument that the prosecutor violated their constitutional rights to equal protection of the law and trial by a jury drawn by a representative cross-section of the community by using peremptory challenges to remove six prospective black jurors. The basic three-step procedure that a trial court must apply in assessing a claim that a prosecutor has exercised peremptory challenges in a discriminatory manner was set forth in our prior opinion:
[D]efendant initially has the burden to make a "prima facie showing that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds." 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." 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." To satisfy its burden, "the State must articulate 'clear and reasonably specific' explanations of its 'legitimate reasons' for exercising each of the peremptory challenges." 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."
[316 N.J. Super. at 468-69 (quoting State v. Gilmore, 103 N.J. 508, 535-37, 539 (1986)) (citations omitted).]
We also explained that if the court finds that a defendant has made a prima facie showing of discriminatory use of peremptory challenges and the prosecution has presented neutral reasons for exercising each disputed challenge, the court then has the responsibility:
[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." [Gilmore, supra, 103 N.J. at 539.] In making this determination, the court must consider whether the prosecution has applied the proffered reasons for the exercise of the disputed challenges even-handedly to all prospective jurors. A nondiscriminatory reason for exercising a peremptory challenge which appears "genuine" and "reasonable" on ...