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State v. Carroll

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 3, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERIK CARROLL, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-02-0195.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 29, 2008

Before Judges Skillman and Yannotti.

Defendant was indicted for sexual assault, in violation of N.J.S.A. 2C:14-2c(1); and attempted sexual assault, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c(1). A jury found defendant guilty of attempted sexual assault. The jury acquitted defendant of sexual assault, but found him guilty of the lesser included offense of criminal sexual contact, in violation of N.J.S.A. 2C:14-3. The trial court granted the State's motion to sentence defendant to an extended term and imposed a seventeen-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for attempted sexual assault, and a concurrent eighteen-month term for criminal sexual contact.

Defendant's convictions were based primarily on the testimony of the alleged victim, B.S., a twenty-two-year-old married woman with a two-year-old-son. Defendant and the victim were friends who smoked marijuana together.

In the late afternoon on October 10, 2001, B.S. had a pizza delivered to her apartment. According to B.S., defendant knocked on the window to her apartment bedroom and told her the pizza delivery man had arrived. B.S. went outside and paid the delivery man for the pizza. She brought the pizza inside and put it down on the kitchen table. Defendant opened the door for her as she entered the apartment and followed her inside.

Defendant asked B.S. whether he could have a slice of the pizza, and she said yes. When she handed him a slice of pizza, defendant said: "I don't want that, I want you." Defendant then grabbed her around the waist. B.S. told him to stop, but defendant would not let go of her. According to B.S., they "ended up in the living room, tussling[,]" and she "told [defendant] to get off me, stop playing and let me go." She also told defendant that she was pregnant.

At this point, B.S.'s son, who had been asleep on the living room couch, began to wake-up. Defendant let go of B.S., and she walked over to the couch and patted her son back to sleep. After the child calmed down, defendant pulled B.S. into her son's bedroom, pushed her down on the bed and tried to pull her pants down. B.S. continued to resist, but defendant succeeded in pulling her pants down and also pulled down his own pants. According to B.S., defendant then penetrated her anally. He also attempted to penetrate her vaginally but was unsuccessful.

Defendant then asked B.S. whether she was "mad at him." She responded with an obscenity and told defendant to leave the apartment, which he did. Afterwards, B.S. called her mother and subsequently called the police to report the incident.

On cross-examination, B.S. indicated that she had let defendant into her apartment on prior occasions. However, she denied that their relationship involved hugging or defendant patting her "on the butt."

Defendant did not testify. However, the State introduced a statement that defendant gave the police after his arrest, which set forth his version of the events of October 10, 2001. According to defendant's statement, after B.S. paid the pizza delivery man, she asked him whether he wanted some pizza. After he said no, they stood outside talking for a little while, and he then "gave her a hug and smacked her on the butt." B.S. opened the front door to her apartment and again asked defendant whether he wanted some pizza. Defendant responded: "I don't want none of the pizza, I want you." According to defendant, "[B.S.] starting laughing and opened the screen door for me." She then handed him a slice of pizza, and when defendant told her he was "about to go back out there[,]" she again started laughing, put her slice of pizza down, and "walked up close to [defendant]." He put his "hands around her, like hugging her." After looking out a window to see whether her husband was coming home, she walked back towards defendant in the bedroom, and he again began "touching her butt" and started "grinding" her. At this point, B.S.'s son woke up and she went into the living room to take care of him.

Defendant gave the following account of what occurred after B.S. returned to him:

I told her, "You did that on purpose, to wake him up so we wouldn't have sex. Then she started laughing and said she was on her period anyway. She said, "If you keep feeling on my butt, you're going to touch a pad."

So I grabbed her butt and wanted to see if she had a pad on, and I didn't feel one. Then she said, "It's not a pad, it's a tampon." She stared laughing, and I said, "It ain't no tampon, because if it was, you would have said it was a tampon and not a pad."

Then she walked toward the room and lifted her shirt and asked me, "Don't I look pregnant?" And I told her, "No, you always been fat." She started laughing and went back into the room and sat on the bed. Then I went in the room and sat next to her, put my arms around her shoulder. We, like, on the bed grinding and stuff.

Then I asked her, "Let me hit that." She never said nothing, so I started taking off her pants. That took a long time, like three to five minutes. By that time her pants, like, below her waist on her butt, then that was it. We was still grinding. I still had on my pants, my clothes.

Some type of way, I stood up. And she was sitting on her butt, and then I started laying on her, grinding on her. Both our clothes are on. Then I started sweating and I said, "something stink." It was her.

. . . Then I said, "I don't want to stick you. Let me just rub on you," meaning, like, put my penis head on her vagina and rubbing it. Then she never said nothing, and started pulling her pants back up. Then I caught another scent and I sat up on my knees. I said, "It's too strong in here." Then I said, "Who you pregnant by, Keith or Derrick?"

I started laughing at her. Then she got up, walked in the front room. Then I asked her, "I know you're not mad at me. You don't got no attitude." Then she looked at me like, "Where the fuck you going? I know you ain't leaving." I told her, "I'm about to go back out."

Defendant also told the officers that B.S. never told him to stop and that "[s]he got mad" because he would not have intercourse with her. Defendant stated that when he said B.S. and he had been "grinding," he meant they had been "humping" with their clothes on. Defendant was not sure if his penis ever touched any part of B.S.'s body, but acknowledged ejaculating.

In addition, when one of the officers asked defendant whether he had ever had "sexual relations" with B.S., he responded: "No. We had a relationship, like, if I saw her, I'd smack her ass." Defendant concluded his statements by telling the officers: "I did not have any sex with her. Everything I did with her she agreed to it. I want you to investigate her. Most I did with her was grind on her and grab her ass."

Defendant attempted to present as a defense witness Nicole Blackshear, who resided in the victim's apartment for two to three months in the summer of 2001, to testify that B.S. had led the defendant on sexually and that she and defendant engaged in hugging and "butt touching" activity. However, the trial court barred Blackshear from testifying on the ground that her proposed testimony was subject to the Rape Shield Statute and that defendant had failed to comply with the procedural and substantive requirements for admission of evidence under that statute.

On appeal, defendant presents the following arguments:

I. THE TRIAL COURT ERRED WHEN IT GRANTED ADDITIONAL PEREMPTORY CHALLENGES TO BOTH DEFENSE COUNSEL AND THE PROSECUTOR RATHER THAN DISCHARGING THE JURY AND BEGINNING JURY SELECTION ANEW WHEN IT DETERMINED EACH PARTY HAD IMPERMISSIBLY UTILIZED ITS PEREMPTORY CHALLENGES TO EXCLUDE PROSPECTIVE JURORS ON THE BASIS OF GENDER. (PARTIALLY RAISED BELOW).

II. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S REQUEST TO ELICIT RELEVANT TESTIMONY ON THE BASIS THAT IT VIOLATED N.J.S.A. 2C:14-7 WITHOUT EVEN CONDUCTING A HEARING TO FULLY ADDRESS ITS ADMISSIBILITY.

III. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A HEARING AS A RESULT OF THE VICTIM BECOMING PHYSICALLY ILL IN THE PRESENCE OF THE JURY.

IV. THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.

V. THE TRIAL COURT ERRED IN ITS ASSESSMENT OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS IN IMPOSING SENTENCING.

VI. THE DEFENDANT IS ENTITLED TO A REMAND FOR A RESENTENCING PURSUANT TO STATE v. PIERCE.

VII. PAGE ONE OF THE JUDGMENT OF CONVICTION MUST BE CORRECTED TO ACCURATELY REFLECT THE DEGREE OF OFFENSES FOR WHICH THE DEFENDANT WAS CONVICTED.

We conclude that the trial court committed reversible error in barring Nicole Blackshear's proposed testimony on the ground that it would violate the Rape Shield Statute. Accordingly, we reverse defendant's convictions.

I.

The Rape Shield Law provides in pertinent part:

a. In prosecutions for . . . sexual assault . . . evidence of the victim's previous sexual conduct shall not be admitted nor reference made to it in the presence of the jury except as provided in this section. When the defendant seeks to admit such evidence for any purpose, the defendant must apply for an order of the court before the trial or preliminary hearing, except that the court may allow the motion to be made during trial if the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and highly material and meets the requirements of subsections c. and d. of this section and that the probative value of the evidence offered substantially outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted, and the reasons why the court finds that such evidence satisfies the standards contained in this section. The defendant may then offer evidence under the order of the court.

f. For the purposes of this section, "sexual conduct" shall mean any conduct or behavior relating to sexual activities of the victim, including but not limited to previous or subsequent experience of sexual penetration or sexual contact, use of contraceptives, sexual activities reflected in gynecological records, living arrangement and life style. [N.J.S.A. 2C:14-7.]

"The overarching purpose of the Rape Shield Statute is to protect the privacy interests of the victim while ensuring a fair determination of the issues bearing on the guilt or innocence of the defendant." State v. Garron, 177 N.J. 147, 165 (2003). "The Shield Statute is intended to deter the unwarranted and unscrupulous foraging for character-assassination information about the victim." Ibid. "On the one hand, the Shield Statute is intended to encourage the reporting of sexual abuse by assuring victims that they will not be subject to untoward invasions of privacy through excessive and collateral cross-examination of their prior sexual conduct." Ibid. "On the other hand, the Statute preserves the core values that are protected by the Federal and State Confrontation and Compulsory Process Clauses -- the right of the accused to present all relevant evidence necessary for the defense and the right to a fair trial." Id. at 166.

To preserve these core constitutional values, our Supreme Court has determined that the Rape Shield Statute cannot be applied literally but must be construed to allow presentation of evidence relevant to the defense that has probative value outweighing its prejudicial effect:

An unconstrained reading of the Statute leads to the exclusion of prior sexual conduct unless it is highly material and its probative value substantially outweighs its prejudicial effect. N.J.S.A. 2C:14-7a. . . . Accordingly, evidence of prior sexual conduct that is only material (not highly material) and that only has probative value outweighing (not substantially outweighing) its prejudicial impact would not be admissible at trial. That formulation of the Shield Statute would keep from the jury evidence that is admissible under the Confrontation and Compulsory Process Clauses, and the constitutional standard enunciated in [State v. Budis, 125 N.J. 519 (1991)]. We must construe the Statute so that its reach does not exceed its constitutional limits. We reaffirm the test advanced in Budis that evidence relevant to the defense that has probative value outweighing its prejudicial effect must be placed before the trier of fact. [Id. at 172.]

Blackshear apparently was identified as a potential defense witness before trial because her name was included on the list of potential witnesses read to the jury venire during jury selection. However, the defense first informed the trial court that her testimony might fall within the Rape Shield Statute during jury selection. At that time, defense counsel advised the court that he had just received a report from a Public Defender's office investigator that included "certain information" he would like to elicit from Blackshear. Defense counsel also stated that her proposed testimony raised "a question under the rape shield law." The prosecutor indicated that she had received a copy of the investigator's report and that she had "issues with what [Blackshear] proposes to testify to." The prosecutor specifically referred to Blackshear's statement to the investigator that "the victim would lead the defendant on sexually." The trial court responded: "We'll have a Rule 104 hearing for Miss Blackshear if I'm going to allow her to be a witness." There is no further reference in the trial record to Blackshear's proposed testimony until after the conclusion of the State's case.

After the State rested, defense counsel again expressed his intent to call Nicole Blackshear as a witness. Defense counsel made the following proffer of Blackshear's anticipated testimony:

Basically, your Honor, I would expect that Miss Blackshear would indicate that she has known both my client as well as [B.S.] for period of time; that she has seen them together. Not sexually, but that the conduct between them has been on a very friendly basis of hugging, butt touching, that type of thing.

The prosecutor objected to this proposed testimony as violating the Rape Shield Statute:

Your Honor, the proffer I received indicated Miss Blackshear was going to testify to the fact that the victim lead [sic] the defendant on sexually, that she observed that; that she was willing to testify because she knows how the victim is.

The State submits that pursuant to Rule 412 basically codified or adopted the Rape Shield Law, this is impermissible evidence.

The prosecutor also argued that she had not been given the required pretrial notice of this proposed testimony.

After extended colloquy with counsel, the trial court concluded that Blackshear's proposed testimony was subject to the Rape Shield Statute and that this testimony should be barred both because the defense proffer of that testimony was untimely and because its admission "[m]ight be highly prejudicial to the State's case." The court also concluded that the inadmissibility of this evidence under the Rape Shield Statute was sufficiently clear that there was no need to conduct an evidentiary hearing regarding its admissibility. Defendant then rested without presenting any witnesses.

Initially, we note that part of Blackshear's proposed testimony did not fall within the Rape Shield Law. Blackshear's proposed testimony that defendant and B.S. "[had] been on a very friendly basis of hugging" and that B.S. had "lead [sic] the defendant on sexually" would not constitute "evidence of the victim's previous sexual conduct" within the intent of N.J.S.A. 2C:14-7a and -7f. See Garron, 177 N.J. at 176-77. The only part of this proposed testimony that would have been subject to the Rape Shield Statute was Blackshear's claim that defendant and B.S. had engaged in "butt touching." See ibid. It is possible Blackshear's description of what B.S. did to "lead the defendant on sexually" would have included other evidence subject to the Rape Shield Statute, but since the trial court declined to conduct a hearing regarding the admissibility of this evidence, the record does not disclose precisely what Blackshear would have said.

In any event, we conclude that the probative value of Blackshear's proposed testimony regarding the relationship between B.S. and defendant before the date of the alleged sexual assault outweighed its prejudicial effect. Garron, supra, 177 N.J. at 172. There were only two witnesses to the alleged crime, B.S. and defendant. Although they agreed that there was sexual contact between them, their testimony was diametrically opposed with respect to exactly how that sexual encounter occurred -- most importantly, as to whether defendant forced himself on B.S. or the encounter was consensual.

Defendant and B.S. gave conflicting accounts of the nature of their relationship before the date of the alleged sexual assault. Defendant stated that he had the kind of relationship with B.S. where, "if I saw her, I'd smack her ass." On the other hand, B.S. testified that the only activity she engaged in with defendant was smoking marijuana. She denied that their relationship involved hugging or defendant patting her "on the butt."

Blackshear's proposed testimony was directly relevant to the resolution of defendant's and B.S.'s conflicting versions of the nature of their relationship before the alleged sexual assault. Moreover, the jury's resolution of this conflict could have played a significant role in their evaluation of the credibility of B.S.'s and defendant's conflicting versions of what occurred on October 11, 2001.

Furthermore, the prejudice to B.S. from the admission of Blackshear's testimony would have been minimal. The jury had already heard defendant's statement that he "smacked her ass" when he saw her, and the prosecutor did not object when defense counsel asked B.S. on cross-examination whether defendant had "ever pat[ted] [her] on the butt." Testimony about this alleged activity would not constitute a "prejudicial excursion[] into the non-probative private affairs of a victim[,]" which is what the Rape Shield Statute was designed to prevent. Garron, supra, 177 N.J. at 165-66.

The facts in this case are similar in some respects to those in Garron, which was decided a week after the end of defendant's trial. As in this case, the alleged sexual assault in Garron occurred in the victim's home, the only witnesses to the sexual encounter were the victim and the defendant, and the defense was consent. See id. at 159-63. In support of that defense, defendant attempted to introduce testimony by various witnesses concerning the victim's long course of sexually provocative behavior with the defendant before the day of the alleged sexual assault, some of which constituted "sexual conduct" within the intent of N.J.S.A. 2C:14-7f. See id. at 154-59, 176-77. The trial court allowed the defense to introduce evidence of three of the alleged incidents of sexual conduct but barred evidence of other incidents as well as of conduct by the victim that was "merely 'flirtatious.'" Id. at 158-59. At trial, the victim and defendant not only gave conflicting versions of their sexual encounter, id. at 159-60, but also of their prior relationship, id. at 161-62. The victim testified that she had never touched defendant "in a sexual way" before the alleged sexual assault except for one kiss initiated by defendant. Id. at 161. Defendant and his wife testified that the victim had grabbed defendant's buttocks and kissed him passionately on two occasions. Id. at 155-59, 163.

In concluding that the trial court's exclusion of other evidence of the victim's alleged prior sexual conduct and flirtations with defendant constituted reversible error, the court stated:

The trial judge permitted only fragmented pieces of evidence to be presented to the jury concerning [the alleged victim's] relationship with defendant. That judicial censorship did more than distort the true picture of events leading to the sexual encounter -- it made less likely that the jury would believe any part of the defense of consent. The trial court allowed testimony by defendant concerning [the alleged victim's] two passionate kisses and her grabbing his derriere. However, [the alleged victim] denied that those events ever occurred. Therefore, the truth regarding those incidents and the sexual encounter was reduced to a credibility contest between just two people. Without the testimony of independent witnesses [who worked in the office of defendant's employer] who were able to give examples of [the alleged victim's] public shows of affection toward defendant, it was less likely the jury would believe that [the alleged victim] passionately kissed defendant and grabbed his buttocks, and that in turn made it less likely the jury would find believable defendant's consent defense. Had [the alleged victim] contradicted [two witnesses who worked in that office's] testimony describing [the alleged victim's] physical advances toward defendant, as well as her sexually alluring remarks, the case would not have boiled down to a "he said-she said" dispute. The credibility determination between [the alleged victim] and defendant may well have hinged on the presentation of seemingly disinterested witnesses whose testimony had no partisan flavor, testimony that would have buttressed defendant's assertions. Each piece of evidence delicately supported another in the presentation of the consent defense, and the removal of key pieces of evidence presaged the total collapse of that defense.

Applying another metaphor, the jury was given a book with missing chapters. [Id. at 174.]

Blackshear's proposed testimony, if credited by the jury, could have shed similar light on B.S.'s relationship with the victim. As the case was presented to the jury, defendant, through his statement to the police, was the only one who asserted that he had the kind of relationship with B.S. where, if he saw her, he would feel free to "smack her ass." Blackshear's proposed testimony concerning B.S. and defendant's hugging and butt touching and B.S.'s leading defendant on sexually would have corroborated this part of defendant's statement and, if credited, could have caused the jury to have reasonable doubt concerning the truthfulness of B.S.'s testimony about defendant's alleged sexual assault upon her.

We also reject the State's argument that the trial court's exclusion of Blackshear's testimony should be upheld because defendant did not apply for an order permitting this testimony before trial, as required by N.J.S.A. 2C:14-7a. As previously discussed, a significant part of Blackshear's proposed testimony was not subject to the Rape Shield Statute and thus could not be excluded on the basis of defendant's failure to comply with this procedural requirement. Moreover, the part of Blackshear's proposed testimony that was subject to the Rape Shield Law was not automatically barred due to defendant's failure to provide the required pretrial notice. State v. Cuni, 159 N.J. 584, 597-99 (1999). The determination whether to bar Rape Shield testimony based on a defendant's failure to comply with this requirement turns on four factors:

(1) was defendants' discovery violation due to willful misconduct (e.g., was it a tactical decision); (2) would a mid-trial proffer have caused unfair surprise to the State; (3) were there alternatives to exclusion (e.g., recess, continuance, prosecutorial comment on discovery violation) and (4) the impact of witness preclusion on the outcome of the trial. [Id. at 598-99 (quoting State v. Scherzer, 301 N.J. Super. 363, 418 (App. Div.), certif. denied, 151 N.J. 466 (1997)).]

The application of these factors to the present case does not warrant the conclusion that Blackshear's proposed Rape Shield testimony should have been barred because of the defense's failure to apply for an order permitting that testimony. There is no basis for concluding that that failure was the product of "willful misconduct." Defense counsel did not become aware of Blackshear's observation of "butt touching" until the Public Defender's office investigator was able to locate and interview her just before the beginning of trial. The proffer of her proposed testimony did not occur "mid-trial" but rather during jury selection, and her testimony would not have "caused unfair surprise to the State." Indeed, when the prosecutor received the investigator's report indicating the contents of Blackshear's proposed testimony, she said:

I was actually provided two witness statements just today. Again, the one regarding this Miss Blackshear, now has her correct name, social security number. She's at the workhouse. I can check on Promis --that's easy enough -- to get her convictions[,] . . .

The prosecutor did not indicate that she would have any difficulty preparing for Blackshear's testimony, and the State did not complete its case until a week later. If the prosecutor had indicated she needed additional time to prepare for this testimony, the trial court easily could have granted a short continuance for this purpose. Finally, for the reasons previously discussed, we conclude that the exclusion of this witness's testimony had a significant potential impact on the outcome of the trial. Therefore, the defense's late production of the investigator's report indicating that part of Blackshear's testimony would be Rape Shield evidence did not provide a proper basis for exclusion of that testimony.

II.

Although our conclusion that the trial court committed reversible error in barring Blackshear from testifying makes it unnecessary to address defendant's other arguments, we consider it appropriate also to address the court's failure to dismiss the jurors already selected and discharge the remaining jury venire after finding that both the prosecutor and defense counsel had discriminated on the basis of gender in the exercise of their peremptory challenges.

In State v. Gilmore, 103 N.J. 508, 539 (1986), our Supreme Court held that if a trial court finds that the State has exercised its peremptory challenges on constitutionally impermissible grounds:

[I]t must dismiss the jurors thus far selected. So too it must quash any remaining venire, since the complaining party is entitled to a random draw from an entire venire -- not one that has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges. Upon such dismissal a different venire shall be drawn and the jury selection process may begin anew. [quoting People v. Wheeler, 583 P.2d 748, 765 (Cal. 1978).]

Since Gilmore, this court has reaffirmed that if the State is found to have exercised its peremptory challenges in a discriminatory manner, "[t]he only appropriate remedy is to start with a new venire that has not been impermissibly stripped of minority membership." State v. Scott, 309 N.J. Super. 140, 151 (App. Div.), certif. denied, 154 N.J. 610 (1998). In reaching this conclusion, we stated:

We find it to be no coincidence that the decision relied on most heavily in Gilmore, People v. Wheeler, supra, expressly adopts the same remedy. If the rule in Gilmore is to be reevaluated and modified in light of the weight of authority across the nation, that direction can only be given by our Supreme Court. [Id. at 152.]

Accord State v. Chevalier, 340 N.J. Super. 339, 355 (App. Div.), certif. denied, 170 N.J. 386 (2001) ("Gilmore unequivocally requires that the entire venire be discharged and that the selection process begin anew where there has been an unconstitutional use of a peremptory challenge.").

The trial court failed to dismiss the jurors already selected and discharge the remaining jury venire, as required by Gilmore. Instead, upon finding that the prosecutor and defense had both discriminated on the basis of gender in the exercise of three peremptory challenges, the court granted each party three additional peremptory challenges. In ordering this remedy, the court stated:

So what we have here is we've got basically a draw. Both parties have exercised challenges which appear to me to have been exercised improperly. I'm not going to reinstate anyone to the jury, but I'm going to give counsel -- now I'm going to give counsel for the defense three challenges for the challenges that you used inappropriately. So we'll start off tomorrow morning with the same jury and the same jurors. And we will each -- you will each have three additional challenges to attempt to right this wrong. . . . I think the procedure that has been established by the Supreme Court, the Appellate Division and the United States Supreme Court is very unwieldy here. I feel that this is very awkward, and I have nothing, I have really no alternative as I see it but to toss this jury and begin anew, which I'm unwilling to do because we've invested a lot of time.

The court also ruled that both the prosecutor and defense counsel would have to give reasons for the exercise of any additional peremptory challenges from that point forward.

The following day the trial court afforded the State and defendant an opportunity to argue that the jury should be dismissed and jury selection should begin again, but the prosecutor and defense counsel both declined to make this argument:

THE COURT: And I specifically want to hear from either or both of you whether you want me to dismiss the jury as presently constituted and begin over again, and I want to know your reasons why or why not. If you think I should just let this jury go by the boards and start again next week . . . .

Either of you wish to make an argument that the jury should be struck and we should begin anew because of the Court's findings yesterday?

[Prosecutor]: No, your Honor, not from the state.

[Defense Counsel]: No, your Honor.

The Attorney General argues that a party that prevails on a claim of the discriminatory exercise of peremptory challenges should be allowed to consent to the alternative remedy of reseating improperly stricken jurors or, as occurred in this case, accepting additional peremptory challenges. In support of this argument, the Attorney General notes that the Court in Gilmore relied upon the Supreme Court of California's decision in Wheeler, supra, 583 P.2d 748, in concluding that the appropriate remedy for the discriminatory exercise of peremptory challenges was to dismiss the jurors already selected and discharge the remaining venire, but that the California Supreme Court has subsequently held in People v. Willis, 43 P.3d 130, 138-39 (Cal. 2002), that a party which has succeeded on a claim of the discriminatory exercise of peremptory challenges may "waive the usual remedy of outright dismissal of the remaining venire[]" and consent to an alternative remedy for the constitutional violation "including reseating improperly challenged jurors[.]" However, it is not within the province of a trial court or this court to adopt a remedy for the discriminatory exercise of peremptory challenges different from the remedy expressly set forth in Gilmore. Only the Supreme Court can modify the remedy prescribed by Gilmore. Therefore, the trial court erred in failing to dismiss the jurors already selected and discharge the remaining jury venire.

Accordingly, defendant's convictions are reversed, and the case is remanded to the trial court for a new trial.

20080303

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