NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-08-1042.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Fisher and Waugh.
In a prior appeal, we reversed defendant's conviction for purposeful murder, but we conditionally affirmed his convictions for felony murder and other offenses, subject to the outcome of proceedings regarding the prosecutor's exercise of a peremptory challenge to remove the only qualified African-American juror from the jury as constituted at the time of the challenge. State v. Vaughn, No. A-5910-07 (App. Div. Aug. 12, 2010). The petitions filed by both the State and defendant for certification were denied. 205 N.J. 79 (2011).
Due to the retirement of the trial judge, a different judge conducted a hearing on November 14, 2011. The remand judge concluded that the prosecutor did not act with a discriminatory purpose in causing the removal of the African-American juror, and defendant appeals, arguing in a single point:
THE TRIAL COURT ERRED IN CONCLUDING THE STATE'S EXERCISE OF A PEREMPTORY CHALLENGE TO EXCUSE THE ONLY AFRICAN-AMERICAN FROM THE JURY HAD BEEN PROPERLY UTILIZED AND NOT UNCONSTITUTIONALLY DISCRIMINATORY.
We find no merit in this argument.
In our earlier opinion, we explained the circumstances relevant to the issue that defendant continues to press. In the earlier appeal, defendant argued the trial judge erred by
declining to hold a hearing after the prosecutor exercised a peremptory challenge to excuse the only African-American person in the first jury panel who was qualified to sit as a juror. That juror, the first to be chosen, was employed as an organizer for a health care union in New York City. He had a degree in labor relations from Rutgers University, and he was pursuing a graduate degree in the same subject from Cornell University. The juror had been convicted of driving while intoxicated approximately two years earlier, and he had cousins who worked for the Federal Bureau of Investigation and the Drug Enforcement Administration. He testified that neither his conviction nor his relationship to people in law enforcement would affect his ability to decide the case fairly. The juror, who was unmarried, had four children and lived with a woman who was employed as an accountant. He had traveled extensively, did not watch television with the exception of the BBC channel, and had a production company that staged performances of poetry. The juror was the second person to be excused by the prosecutor.
At the conclusion of the first day of peremptory challenges, defense counsel moved for a hearing on the prosecutor's removal of the African-American juror pursuant to Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69, 82-83 (1986), a decision premised on federal equal protection grounds, and State v. Gilmore, 103 N.J. 508 (1986), a decision based on the State's constitutional guarantee of an impartial jury. Id. at 522. However, the trial judge denied counsel's motion, determining that counsel had not overcome the presumption of the constitutionality of the prosecutor's challenge by offering prima facie evidence "that the potential jurors wholly or disproportionately excluded were members of a cognizable group and that there ...