On appeal from Superior Court of New Jersey, Law Division, Essex County, 2000-10-2901 and 1999-09-2896.
Before Judges Wefing, Lisa and Fuentes.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2002
Tried to a jury, defendant was convicted in Essex County of first-degree armed robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of an imitation firearm under circumstances that would lead an observer to believe it was possessed for unlawful purposes, N.J.S.A. 2C:39-4e. The weapons offense was merged with the robbery. Defendant was sentenced to ten years imprisonment. After the trial, and while pending sentencing, defendant pled guilty to another Essex County indictment for third-degree receiving stolen property, N.J.S.A. 2C:20-7, and second-degree eluding the police, N.J.S.A. 2C:29-2b, pursuant to a plea agreement recommending sentences of four years imprisonment for each offense, concurrent to each other but consecutive to sentence imposed on the earlier indictment. Defendant was sentenced on both indictments on the same date. The judge followed the recommendation in the plea agreement (which included sentencing the second-degree eluding as though it were a third-degree offense, pursuant to N.J.S.A. 2C:44- 1f(2)). Defendant's aggregate sentence was fourteen years. Appropriate monetary sanctions were also imposed.
On appeal, defendant contends:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL SINCE THE PROSECUTOR EXERCISED HIS PEREMPTORY CHALLENGES ON CONSTITUTIONALLY-IMPERMISSIBLE GROUNDS, THEREBY DENYING TO THE DEFENDANT HIS RIGHT TO EQUAL PROTECTION AS WELL AS A FAIR TRIAL.
POINT II THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We reject these contentions and affirm.
Because the issues raised on appeal are limited to the jury selection procedures and the sentence, we need not recount the facts in detail. The robbery occurred when defendant entered a take-out restaurant, pointed a gun at the proprietor, and demanded money. The proprietor, believing it was a real gun, became frightened and went to the cash register to comply with defendant's demand. Upon further observation, however, the proprietor realized it was a water gun, and he wrested it from defendant. He then called the police. Defendant testified he was only playing a practical joke on the proprietor, a contention the jury obviously did not believe. Although not real, the gun meets the definition of a "deadly weapon" for purposes of robbery, pursuant to N.J.S.A. 2C:11-1c.
In this robbery trial, the prosecutor was entitled to exercise twelve peremptory challenges and defendant was entitled to twenty. N.J.S.A. 2B:23-13b; R. 1:8-3(d). The prosecutor exercised six; the defense exercised five. Defendant is African-American. Five of the six peremptory challenges exercised by the prosecutor were directed at African-American jurors. Defense counsel objected on two occasions during the jury selection process, and again raised the issue in a new trial motion prior to sentencing. Defendant argues the prosecutor violated his right to equal protection of the laws and to a trial by a jury drawn from a representative cross- section of the community by using peremptory challenges to exclude five African-American jurors.
Our Supreme Court has held "that Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution forbid a prosecutor to exercise peremptory challenges to remove potential petit jurors who are members of a cognizable group on the basis of their presumed group bias; the State, however, may peremptorily challenge such venirepersons on grounds of situation-specific bias." State v. Gilmore, 103 N.J. 508, 517 (1986). Without question, members of the black race constitute a cognizable group for these purposes. Id. at 526-27 n.3.
In State v. Clark, 316 N.J. Super. 462 (App. Div. 1998), Judge Skillman cogently summarized the three-step procedure in which a trial court must engage in evaluating a prosecutor's challenged use of peremptory challenges:
[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 disportionately 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." [Id. at 468-69 (quoting State v. Gilmore, 103 N.J. 508, 535-37, 539 (1986))(citations omitted).]
Defense counsel first interposed an objection after the prosecutor exercised his fifth peremptory challenge, the last four of which were against African-American individuals. When the objection was made, the prosecutor, without waiting for a ruling by the court whether defendant met his initial burden, volunteered the reasons for excusing each of the four African- American jurors. The court then ruled on the ultimate issue. Thus whether a prima facie showing was made by defendant became moot. Our task is to evaluate the ultimate determination by the trial judge that the prosecutor's reasons precluded defendant from establishing, by a preponderance of the evidence, that the challenges were exercised on constitutionally-impermissible grounds of presumed group bias.
The first juror peremptorily challenged was C.E., a white man. He had been working as a missionary for the past two years and his wife was also a missionary. The next three, all African-American, had friends or relatives who had been convicted of crimes. A.C.'s brother was convicted of stealing a vehicle about two years earlier; S.A. had friends who were convicted of selling drugs; and B.L.-C.'s nephew had pled guilty to killing a man about twenty years earlier, but she had not had regular contact with him since he moved to Georgia about seven or eight years earlier after serving his time. Notably, A.C. had "cousins and a couple friends that are police officer[s]," and S.A. had "two relatives on the police force."
The prosecutor exercised his fifth peremptory challenge on M.S., an African-American man, whose aunt worked for the Newark Police Department and whose brother was shot to death in 1995. M.S. was dressed entirely in black clothing (described in the post-trial motion as a "rather long outer garment") and wore a skull cap.
Upon defense objection, the prosecutor, at side bar, stated his reasons for exercising these challenges:
Well, to make sure we are very clear about this, Judge, the first juror who was excused was [C.E.], who was a missionary and white. . . . The next three who were black all had members of their family or friends who were convicted of crimes.
And the last juror was excused was also black, [M.S.], is Muslim. And I have found with regard to juror number one [and] juror number four that people who tend to be demonstrative about their religions tend to favor defendants to a greater extent than do persons who are, shall we say, not as religious. So that those are the reasons for my excusals of the jurors at this point. The judge found those reasons sufficient and denied defendant any relief.
The prosecutor later exercised a peremptory challenge against S.G., an African-American, whose cousin had been charged, tried and acquitted of rape about three years earlier in Essex County. S.G. testified as a witness for his cousin in a trial conducted in a courtroom "down the hall." Defense counsel objected to the prosecutor's challenge and renewed her 6 motion to declare a mistrial and vacate the jury panel. At side bar, the prosecutor stated his reasons for excusing S.G. After recounting S.G.'s experience in testifying for his cousin, he stated:
So, he may very well say it wouldn't affect him; I don't have to accept that. I wonder how he will be judging someone who might be close to his cousin's age on a case right down the hall from where his own cousin had been acquitted of a very serious crime, and whether he could, in fact, be fair and impartial. Especially considering the fact that it was this office that apparently prosecuted him.
The judge found this reason to be sufficient and again denied defendant's motion.
In Gilmore, the Court determined the New Jersey Constitution guarantees "that in all criminal prosecutions the defendant is entitled to trial by an impartial jury without discrimination on the basis of religious principles, race, color, ancestry, national origin, or sex." State v. Gilmore, supra, 103 N.J. at 524. Defendant asserts a violation of this guarantee based on race with respect to the five African-American jurors peremptorily excused by the prosecutor, and also based on religious principles with respect to M.S.
We first address the race issue. As previously noted, members of the black race clearly constitute a cognizable group. To be permissible, a prosecutor's peremptory challenge of a member of a cognizable group must be "'on grounds that are reasonably relevant to the particular case on trial or its parties or witnesses -- i.e., for reasons of specific bias. . . .'" State v. Gilmore, supra, 103 N.J. at 538 (quoting People v. Wheeler, 148 Cal. Rptr. 890, 906, 583 P.2d 748, 765 (1978)). The prosecutor must "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).
Importantly, a party reasonably may believe on any number of grounds "that a prospective juror may have some slight bias that would not support a challenge for cause but that would make excusing him or her desirable." State v. Gilmore, supra, 103 N.J. at 538 (quoting McCray v. Abrams, 750 F.2d 1113, 1132 (2nd Cir. 1984)). Defendant places reliance on the fact that each challenged juror stated he or she could be fair and impartial. A.C., S.A. and B.L.-C., who had friends or relatives who had been convicted of crimes, stated that circumstance would not affect their ability to be impartial. S.G. likewise stated his experience in testifying in his cousin's criminal trial would not affect his impartiality. These assertions may properly preclude challenge for cause. The circumstances and experiences, however, that are specific to these individual jurors, may reasonably lead the prosecutor to believe the jurors may harbor some "slight bias" against the State in the criminal trial for which a jury is being selected. "There is nothing ineffable or inscrutable about sound 'hunches.'" State v. Gilmore, supra, 103 N.J. at 538.
The reasons expressed by the prosecutor for excusing A.C., S.A., B.L.-C. and S.G. are race-neutral, individualized to their particular circumstances or experiences, sufficiently specific, and reasonably relevant to the case on trial. We find nothing unreasonable or irrational in a prosecutor's belief that individuals with these life experiences might disfavor the State in a criminal prosecution. Further, there is nothing to suggest the prosecutor's peremptory challenges against these jurors were not exercised in an even-handed manner. Although not argued at trial, on appeal defendant points to two other jurors who the prosecutor did not challenge who, according to defendant, are similarly situated to those challenged. We have reviewed the record and observe that the experiences of one individual involved disorderly persons offenses, not crimes, and one of them was very remote in time. The other juror's nephew had been involved in "something to do with killing a teacher in Newark" in the 1970's or 80's. The juror had no contact with his nephew since then and he was unclear about the nature of the offense. Thus the offense was remote in time and his relationship with the offender was attenuated. Very significantly, the record does not reveal the race of these two jurors. One or both of them may have been African-American. The final jury composition included five African-American jurors. These two individuals were on the jury finally selected. We are satisfied there is no need for a remand for an attempted determination of the race of these two jurors, an explanation by the prosecutor of his reason for passing on them while excusing the others, and supplemental findings by the trial court. The record supports a reasonable basis for distinction as argued by the State on appeal.
The final composition of the jury is not dispositive of whether the prosecutor's intent in exercising peremptory challenges against members of a cognizable group was discriminatory. However, the entire selection process is relevant to that determination, and the final composition, the product of that process, is highly probative of the prosecutor's intent. State v. Clark, supra, 316 N.J. Super. at 474. That five African-American jurors were among those finally selected is thus corroborative of the prosecutor's asserted genuine and reasonable race-neutral reasons. The prosecutor approved of the jury while holding six unused peremptory challenges, and the defense approved while holding fifteen unused peremptory challenges.
Finally, we consider that we must accord substantial deference to the trial court's sense of fairness and findings relating to whether the prosecutor exercised his peremptory challenges on constitutionally impermissible grounds. State v. Gilmore, supra, 103 N.J. at 545; State v. Clark, 324 N.J. Super. 558, 571 (App. Div. 1999).
Against these standards, we find no error in the trial judge's determination that defendant failed to carry his burden of proving the prosecutor's reasons for excusing A.C., S.A., B.L.-C. and S.G. were pretextual and based on group bias. In other words, defendant did not establish that these individuals were excluded because they are African-American.
We next consider prospective juror M.S. The prosecutor inferred from M.S.'s name *fn1 and attire that he was a Muslim and that he was devout in his faith. The prosecutor pointed out that he excused C.E., who is white, a missionary of unknown affiliation, as well. He explained he excused both of these individuals for the same reason, namely because of his belief "that people who tend to be demonstrative about their religions tend to favor defendants to a greater extent than do persons who are, shall we say, not as religious."
At the new trial motion, the prosecutor elaborated on his reasons for excusing these two jurors:
White juror I dismissed, I believe, was a minister, if memory serves me correctly, or was a missionary -- I tend to forget; but had some sort of religious affiliation. And the other juror was, apparently, Muslim, I would say, based upon his dress and the name, if I'm not mistaken. But I did not dismiss any juror because of religious beliefs.
I think what I said was it's been my experience that persons who strongly profess to religious belief or religious persuasion might be more lenient toward -- might be more forgiving toward a defendant, and might not listen to the evidence as perhaps they should. They may very well tend to be more accepting of a person's professions of innocence in the face of facts to the contrary. And that's why I exercised those challenges. . . . . So, therefore, Judge, Gilmore really does not apply here. Gilmore is really applicable when there is an obvious attempt to exclude jurors of a particular race, a particular religious group. That is not what we had here. So, I really say that [defense counsel's] allegations or accusations really come to naught, in light of the final composition of the jury.
I don't even think [defense counsel] can say with utmost honesty what the ultimate religious composition of the jury was. I certainly can't. I don't think the Court can either.
. . . . And I believe I commented [at] the time that, you know, it was obvious he [M.S.] was apparently very devout in his faith, and that's what led me to believe that he might be sympathetic toward the defendant; despite facts that might go to the contrary.
And the man who was the minister indicated to us that that was his profession, that's how we happened to know. So, there were other obvious manifestations and that's something that we drew conclusions to.
We reject defendant's argument that M.S. was impermissibly challenged under the Gilmore holding. Fundamentally, the Gilmore rationale and holding require the identification of a cognizable group, which may then be the target of group bias in the jury selection process. "The peremptory challenge, exercised in an absolutely unfettered manner, could be abused to strike all members of certain cognizable groups from the jury venire, and so could destroy the representative cross-section rule." State v. Gilmore, supra, 103 N.J. at 530 (emphasis added). In prescribing the three-step process for mounting a challenge to the exercise of peremptory challenges, the Court stated "the defendant initially must establish that the potential jurors wholly or disportionately excluded were members of a cognizable group within the meaning of the representative cross-section rule." Id. at 535-36 (emphasis added). The Court cited with approval the statement in McCray v. Abrams, supra, 750 F.2d at 1132, that defendant's showing must demonstrate "a substantial likelihood that the challenges leading to the exclusion have been made on the basis of the individual venireperson's group affiliation rather than because of any indication of a possible inability to decide the case on the basis of the evidence presented." Id. at 536 (emphasis added). The forbidden use of peremptory challenges lies in the exclusion of jurors, presuming them to be biased "merely because they are members of an identifiable group distinguished on racial, religious, ethnic or similar grounds. . . ." Id. at 531 (quoting People v. Wheeler, supra, 148 Cal. Rptr. at 902, 583 P.2d at 761 (emphasis added)). We have held that age-defined groups are not cognizable for purposes of impartial jury analysis. State v. Bellamy, 260 N.J. Super. 449, 457 (App. Div. 1992). We determined that "young people" do not constitute a cognizable group within the meaning of Gilmore, noting that "[t]o prove either an equal protection or fair cross-section claim, a defendant must first identify a constitutionally cognizable group, i.e., a group capable of being singled out for discriminatory treatment." Id. at 453 (quoting State v. Ramseur, 106 N.J. 123, 215 (1987)).
In Bellamy, we considered the rationales of courts in other jurisdictions which have rejected age as a basis for establishing a cognizable group. The parameters of such a "group" are difficult to ascertain, rendering any attempt to classify jurors as "young adults," "middle age adults," and so on an essentially arbitrary process. State v. Bellamy, supra, 260 N.J. Super. at 454. Further, there has been no showing that members of such a "group" hold cohesive and consistent values and attitudes or that their values and attitudes are substantially different from other segments of the community. In this regard, it is also significant that young adults are not a group that has traditionally needed special legal protection. Id. at 454-55. Finally, membership in such a group is in flux. Id. at 454.
We recognize that Article I, Paragraph 5 of the New Jersey Constitution, which underpins Gilmore, does not contain a prohibition of discrimination based on age, whereas it does prohibit discrimination based on "religious principles," as well as "race, color, ancestry or national origin." Defendant contends M.S. was improperly excluded based on religious principles. We do not agree.
We first note that in Gilmore, the Court found the constitutional proscription against discrimination based on "religious principles" congruent with the then-statutory proscription of N.J.S.A. 2A:72-7 *fn2 prohibiting discrimination in jury selection based on "creed." State v. Gilmore, supra, 103 N.J. 526. The Gilmore Court disapproved as a clear indication of religious group bias the prosecutor's exclusion of African- American jurors because he assumed they were predominantly Baptists. *fn3 Id. at 541. Baptists constitute a clearly defined group, a creed or denomination sharing common religious principles. Thus exclusion based upon membership in this group is properly prohibited.
The exclusion of M.S., however, was not based on his presumed membership in the Muslim faith. If it were, the exclusion would be constitutionally impermissible. The prosecutor believed, from the manner of M.S.'s dress, that he was likely to be "very devout in his faith." The prosecutor further believed that people ...