On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 95-06-0763.
Before Judges Petrella, Braithwaite and Wells.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a jury trial, defendant Elvido Chevalier appeals from his convictions of aggravated sexual assault, N.J.S.A. 2C:14- 2(a)(1); sexual assault, N.J.S.A. 2C:14-2(b) and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The victim was defendant's stepdaughter who at the time of the offenses was less than thirteen years of age.
Defendant was sentenced to a custodial term of nineteen years with an eight-year parole disqualifier on the aggravated sexual assault conviction. He received a concurrent nine-year custodial term, with a four-year parole bar on the sexual assault conviction, and a concurrent five-year custodial term, with a two-year period of parole ineligibility on the endangering the welfare of a child conviction.
This conviction and sentence resulted from was defendant's second trial. The first trial ended in a mistrial when the jury was unable to reach a verdict. During the selection of the jury for the first trial, the trial judge found defense counsel "had used his peremptory challenges to exclude members of a cognizable group," namely women. State v. Clark, 316 N.J. Super. 462, 466 (App. Div. 1998). As a remedy, the judge warned defense counsel not to engage in the practice. Jury selection proceeded thereafter without any further problem, and, as noted, defendant's trial resulted in a mistrial.
Thereafter, defendant was retried. During jury selection for the second trial, the State charged that defense counsel was improperly excluding jurors based on their gender. Once again, the trial judge found that defense counsel engaged in the improper exclusion with respect to three female jurors. The judge, recognizing that he could start jury selection anew with a different venire, see State v. Gilmore, 103 N.J. 508, 539 (1986), declined to take that course, but instead reseated the three jurors. He imposed that remedy because he was dealing with "a time schedule" that would "probably" result in no trial testimony being presented on the day of jury selection. The other time constraint according to the trial judge was his unavailability the following week.
After reseating the three jurors, the judge instructed both the jurors seated in the jury box and the remainder of the venire to disregard his ruling that reseated the jurors when deciding the merits of the case. Specifically, he told them that his decision to reseat the three jurors should not concern the selected jurors who would decide the outcome of defendant's trial. Jury selection continued thereafter without any further issues, and the empaneled jury convicted defendant. Defendant now appeals and contends:
DEFENDANT'S CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND RIGHT TO SEEK A FAIR AND IMPARTIAL JURY THROUGH A FREE EXERCISE OF PEREMPTORY CHALLENGES WAS VIOLATED BY THE TRIAL COURT'S REFUSAL TO ALLOW HIM TO EXERCISE THREE PEREMPTORY CHALLENGES AND ITS RESEATING OF THE THREE JURORS WHO HAD BEEN CHALLENGED.
DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.
Defense counsel improperly used his peremptory challenges to exclude female jurors solely on the basis of gender. We conclude, however, that the trial judge erred, under the circumstances here, in reseating the three jurors and now reverse and remand for a new trial.
Before addressing the peremptory challenge issue, we briefly set forth the facts. Defendant married a woman in 1981 who had three children, two sons and a daughter. The daughter is the victim in this case. The victim was two years of age at the time of her mother's marriage to defendant.
According to the victim, defendant's assaults began when she was six years old and took place in the family dwelling. According to testimony, defendant engaged in sexual intercourse with the victim until she was twelve years of age.
In 1995, after the victim told a friend about defendant's conduct, a teacher, the principal at the victim's school, and the police became involved. On the day she went to police headquarters to discuss the incidents, the victim told her mother about the history of sexual abuse. Defendant was then arrested.
A doctor examined the victim and concluded that she had an excessive vaginal opening consistent with the pre-pubescent penile penetration and long term sexual abuse. The doctor also testified that the victim had an area of her vagina that had "thinned out," which was consistent with penile entrance.
Defendant denied the allegations in the indictment. He testified that at no time did he ever touch the victim in an inappropriate manner or have sexual intercourse with her.
The use of peremptory challenges to exclude prospective jurors on the basis of gender violates both the United States Constitution and the New Jersey Constitution. In J.E.B. v. Alabama, 511 U.S. 127, 129, 114 S. Ct. 1419, 1421, 128 L. Ed. 2d 89, 91-92 (1994), the United States Supreme Court held that the equal protection clause of the Fourteenth Amendment prohibits the State from exercising peremptory challenges to remove jurors on the basis of gender. Our Supreme Court in Gilmore, supra, 103 N.J. at 517, relying on Article 1, Paragraphs 5, 9 and 10 of the New Jersey Constitution, held that a prosecutor is forbidden to exercise peremptory challenges "to remove potential petit ...