On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-0441.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Harris, and Koblitz.
Defendant Amir A. Andrews appeals from a judgment of conviction that was entered after two sequential jury trials. In the first trial, Andrews was convicted of second-degree witness tampering, but the jury was deadlocked on the remaining eight counts of the indictment. At the second trial, Andrews was found guilty of the unresolved charges in the indictment, including two counts of attempted murder. The trial court imposed an aggregate sentence of life imprisonment plus twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In this appeal, defendant contends that the jury verdict in the second trial was obtained in violation of State v. Gilmore, 103 N.J. 508 (1986), and its progeny. He asserts that the trial court, having found that the defense attorney misused his peremptory challenges, was obliged to discharge the jury panel and commence jury selection anew. Instead, the court seated -- over Andrews's vehement objection -- the last juror who defense counsel sought to excuse. We agree that jury selection was fundamentally flawed, thereby leading us to lack confidence in the verdict and directing us to find the conviction of the charges tried in the second trial as unsustainable. We reverse and remand for a new trial.
The following facts are derived from the record, which we summarize solely as background to the jury selection process. According to the indictment, on October 3, 2006, Andrews and an unidentified, unindicted co-conspirator agreed to murder two individuals. The result of that conspiracy was the non-fatal shooting of the two victims with an illegal firearm.*fn1
The trial commenced in the conventional fashion. A jury venire was seated in the courtroom and individual prospective jurors were questioned by the court about their abilities to serve as fair and impartial triers of facts. Within a few hours of commencing that process, a panel of fourteen individuals was assembled. The court explained to the panel and the remaining members of the venire the practice of exercising peremptory challenges. By the end of the first trial day, the State had exercised three challenges, and the defense six.
The next day, while jury selection continued, the following colloquy occurred as defense counsel was about to exercise his tenth peremptory challenge:
[THE PROSECUTOR]: Your Honor, this panel is satisfactory to the State.
THE COURT: Thank you, Mr. [Prosecutor]. [DEFENSE COUNSEL]: Your Honor, will you please thank and excuse juror number four. [THE PROSECUTOR]: Your Honor, could I be heard?
THE COURT: Certainly. Okay.
THE COURT: Mr. [Prosecutor]. [PROSECUTOR]: This is the third jury we've picked on this case. I know that the last time we picked a jury we had this issue. It's raised its head again. I am not unsatisfied with the panel that we have, but, you know --
THE COURT: Just so we're all on the same page and we agree with the numbers themselves. I show now -- one, two, three, four, five, six white jurors have been excused and two African Americans -- let me just see if my records are correct. What was the other white juror? [PROSECUTOR]: I have seven.
THE COURT: Well, this would be the seventh. [PROSECUTOR]: I have that this would be the eighth.
THE COURT: Okay. Let me just see if my records are correct. what was the juror -- the other white juror. [PROSECUTOR]: The last juror was a white female.
THE COURT: That was juror number [ten]. [PROSECUTOR]: Juror number [twelve] was a white male.
THE COURT: I'm sorry -- that's correct. I miscounted. Okay. So I have one, two, three, four, five, six, seven white jurors and two African Americans. That is the correct number? [PROSECUTOR]: Yes.
THE COURT: Okay. And it's your position at this point, Mr. [Prosecutor], that you're now making a prima facie case for an inappropriate exclusion of jurors based on race?
[PROSECUTOR]: I just think, Your Honor, that we're to the point where we -- I don't want to lose the whole panel. Like I said, I am satisfied with the panel. I spent a long time doing it. I've indicated I'm satisfied with the panel. But if we're just going to keep excluding white jurors until there's no white jurors left -- I don't even care if I try this case in front of a jury with no white jurors. But it's just -- it's what's happening. It's just -- as a representative of the State I just -- I'm uncomfortable just allowing it to continue to happen.
[DEFENSE COUNSEL]: Judge, with respect to the white jurors that were excused yesterday, there was a valid reason for each. For instance, we took off juror number [twelve].
THE COURT: Well, I think . . . at this point in time there is a pattern. And so I am going to now rule that the [S]tate has presented a prima facie case of exclusion based on race and that from this point forward if white jurors are to be excused there must be some rational, articulable reason for excluding those jurors that does not relate to their race. Thank you very much.
[DEFENSE COUNSEL]: As of yesterday I could have given you an alternate reason that actually I thought was a sound reason that made sense, because I did ask [defendant]. As to this juror, all I can say is that this morning I said to [defendant] that I wasn't sure how I felt about her, and that is [defendant's] basis, you know, for excluding her is my ambivalence. There is no other explanation for it.
THE COURT: Okay. Well, with regard to this juror then I am not going to allow you to excuse this juror, because there's no articulable reason for excluding her. All right.
THE COURT: And then we'll now proceed.
THE COURT: Okay. Juror number [four], can you ...