On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-00-4319.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2007
Before Judges Skillman, Winkelstein and Yannotti.
This appeal requires us to consider the principles that govern a trial court's consideration of a claim of the discriminatory use of peremptory challenges in light of recent decisions of the Supreme Court of the United States that modify the principles set forth in State v. Gilmore, 103 N.J. 508 (1986).
A jury found defendant guilty of conspiracy to violate the narcotics laws, in violation of N.J.S.A. 2C:5-2; possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and (b)(3); possession of cocaine within 1000 feet of school property with the intent to distribute, in violation of N.J.S.A. 2C:35-7; possession of cocaine within 500 feet of a public housing facility with the intent to distribute, in violation of N.J.S.A. 2C:35-7.1; and employing a juvenile in a drug distribution scheme, in violation of N.J.S.A. 2C:35-6.
The trial court sentenced defendant to a seven-year term of imprisonment, with five years of parole ineligibility, for employing a juvenile in a drug distribution scheme and a concurrent seven-year term for possession of cocaine within 500 feet of a public housing facility with the intent to distribute. The court merged defendant's conviction for possession of cocaine within 1000 feet of school property with the intent to distribute into his conviction for possession of cocaine within 500 feet of a public housing facility with the intent to distribute, except that the court imposed the three-year parole ineligibility period mandated by N.J.S.A. 2C:35-7, which survived the merger but is to be served concurrently. The court merged defendant's other convictions.
We affirmed defendant's convictions in an unreported opinion. State v. Osorio, No. A-1664-02 (App. Div., June 7, 2005). However, we concluded that the trial court had erred in failing to require the assistant prosecutor who tried the case to show that her first six peremptory challenges, all of which were used to excuse minority jurors (four African-Americans and two Hispanics), which the trial court found established a prima facie case of the discriminatory use of peremptory challenges against defendant, a Hispanic male, were justified on the basis of concerns about situation-specific bias. Consequently, we remanded the case to the trial court to determine whether the prosecutor had made discriminatory use of her peremptory challenges and directed the court to vacate defendant's conviction and order a new trial if it made this determination.
At the hearing on remand, which occurred more than three years after the trial, the trial judge indicated that he did not have any notes or specific recollection of jury selection.
Moreover, the judge did not obtain a copy of the transcript of jury selection before conducting the hearing. However, the assistant prosecutor who tried the case produced notes that she had taken during jury selection and explained her reasons for using her first six peremptory challenges to excuse minority jurors based on those notes. Those reasons are discussed in detail later in this opinion. The attorney who had represented defendant at trial did not appear at the hearing and, because of the deadline established by this court for completion of the remand, the trial judge declined a request by the substitute attorney appearing on defendant's behalf to adjourn the hearing to afford defendant's trial counsel the opportunity to appear. The trial judge accepted the assistant prosecutor's reasons for using her first six peremptory challenges to excuse minority jurors as legitimate and therefore again rejected defendant's claim that the prosecutor had made discriminatory use of her peremptory challenges.
Defendant filed a motion to supplement the record and for reconsideration. The transcripts of jury selection were produced for the hearing on this motion, and defendant's trial counsel appeared. The focus of this hearing was on the reasons given by the assistant prosecutor at the original hearing for using two of her first six peremptory challenges to excuse the only two Hispanic members of the jury. Those reasons were:
Juror number five that was kicked off actually was juror number nine. Her name, Judge, was Mrs. -- I think it's Aquirre, Judge. I'm not sure how to pronounce it. It's A-Q-U-I-R-R-E. She was a Hispanic female from Newark. She was a secretary for a doctor's office. She had one child and she was two years old. Judge, but just if I could place the next one on the record because the reason for her exclusion is --is coupled with the next woman who was excluded and that was juror number ten. Her name is Miss Martinez, and she was from East Orange. She was a Hispanic female and she was a program analyst in East Orange.
The reason Judge, that I have written down, and Your Honor, as you can see they were seated in juror, in seat number nine and seat number ten, next to each other.
And my notes indicate, Judge, making faces with Mrs. Martinez, giggling high fiving when a juror in the back row was excused.
So based on, Judge, they were sitting together and I was observing, I obviously wrote that they were making faces, giggling and -- and excited when another juror got kicked off, Judge.
Defendant's trial counsel informed the trial judge that he had no recollection of the alleged inappropriate conduct of the two Hispanic jurors ...