State v. Gilmore

• Decision Date: 16 July 1986
• Citation: 103 N.J. 508,511 A.2d 1150
• Parties: , 55 USLW 2084 STATE of New Jersey, Plaintiff-Appellant, v. Curtis GILMORE, Jr., Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 508

103 N.J. 508

511 A.2d 1150, 55 USLW 2084

STATE of New Jersey, Plaintiff-Appellant, v. Curtis GILMORE, Jr., Defendant-Respondent.

Supreme Court of New Jersey.

Argued Feb. 19, 1986.

Decided July 16, 1986.

Steven J. Kaflowitz, Asst. Prosecutor, for plaintiff-appellant (John H. Stamler, Union County Prosecutor, attorney).

Martin L. Greenberg, Roseland, for defendant-respondent (Greenberg, Margolis, Ziegler & Schwartz, Roseland, attorneys).

Abbie P. Maliniak, Deputy Atty. Gen., for amicus curiae Atty. Gen. of New Jersey (W. Cary Edwards, Atty. Gen., attorney).

Peter B. Meadow, Asst. Deputy Public Defender, for amicus curiae Public Defender (Thomas S. Smith, Jr., Acting Public Defender, attorney).

Theodore V. Wells, Jr., and Robert L. Krakower, Roseland, submitted a brief on behalf of amicus curiae New Jersey Ass'n of Criminal Defense Lawyers (Lowenstein, Sandler, Brochin, Kohl, Fisher, Boylan & Meanor, Roseland, attorneys).

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal presents the issue whether a prosecutor's use of peremptory challenges to exclude every black potential petit juror violates a defendant's constitutional right to trial by an impartial jury drawn from a representative cross-section of the community. This is a question of first impression for us. We hold 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. Moreover, we determine that the defendant here has established that the prosecutor impermissibly excluded all black potential petit jurors.

I

In a single jury trial, defendant was found guilty of three first-degree robberies of two Hispanic attendants at a gasoline station in Union, New Jersey. He was sentenced to three concurrent fifteen-year custodial terms with five years of parole ineligibility.

Defendant, who is black, was tried by an all-white jury made up of six males and six females. Defense counsel was black and the assistant prosecutor was white. During the jury selection, nine black potential jurors were seated in the jury box at different times. All nine were excused--the assistant prosecutor challenged two for cause, and peremptorily challenged the remaining seven. All told, the assistant prosecutor exercised eleven of the twelve peremptory challenges allowed him by Rule 1:8-3(d), while defense counsel exhausted the twenty permitted him.

After the jury selection, but before the jury was sworn, defense counsel moved for a mistrial, contending that the assistant prosecutor had used his peremptory challenges unconstitutionally to excuse the remaining seven black venirepersons on the basis of race. The assistant prosecutor responded: "It's my understanding of the rules that I can exercise my peremptory challenges as I see fit." The trial judge, relying heavily on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and State v. Smith, 55 N.J. 476, 479-84, 262 A.2d 868, cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970), rejected defendant's constitutional argument and accordingly denied the motion. On defendant's appeal following his conviction, the Appellate Division--pointing out that in Swain the majority conceded that circumstances might arise where "[t]he purposes of the peremptory challenge are being [perverted]," 380 U.S. at 224, 85 S.Ct. at 838, 13 L.Ed.2d at 774, and heeding the strong recommendation of Justices Stevens, Blackmun and Powell (as well as Justices Marshall and Brennan) respecting the denial of certiorari in McCray v. New York, 461 U.S. 961, 963, 103 S.Ct. 2438, 2439, 77 L.Ed.2d 1322, 1323 (1983), that state courts should serve "as laboratories in which the issue receives further study before it is addressed by [the United States Supreme] Court"--remanded the case to the Law Division to conduct a hearing "to establish the identity of the black prospective jurors and to afford the assistant prosecutor an opportunity to establish his motive or reasons for excusing each of the seven prospective black jurors." State v. Gilmore, 195 N.J.Super. 163, 166, 478 A.2d 783 (1984).

At the remand hearing, the parties stipulated to the identity of six of the seven Blacks peremptorily challenged, and agreed that the seventh was either of two persons. Then the assistant prosecutor articulated both his general criteria for exercising peremptory challenges and his specific reasons for excluding each black prospective juror in this case. First, he stated that he wanted jurors who were (1) able to ignore theatrics; (2) more intelligent and of the professional type; and (3) without maternal family instincts. And second, relying upon the transcript of the jury selection and notes he had made after the trial judge denied defendant's motion for a mistrial, he applied these criteria (as well as a residual criterion of "gut reaction" based upon "my life experience") to explain each peremptory challenge of a black venireperson.

On March 8, 1985, the Appellate Division issued its second opinion, interpreting the New Jersey Constitution as "proscribing the use of peremptory challenges to exclude prospective jurors solely by virtue of their membership in, or affiliation with, a cognizable group, a practice designed to defeat the purpose of the representative cross section rule." State v. Gilmore, 199 N.J.Super. 389, 405-06, 489 A.2d 1175 (1985). After defining guidelines for the permissible exercise of peremptory challenges and establishing the procedure and burden of proof for allegations of their improper use, the Appellate Division evaluated the assistant prosecutor's explanations of his reasons for excusing every one of the black jury members. It concluded that they were " 'sham excuses belatedly contrived to avoid admitting acts of group discrimination against all the black prospective jurors.' " Id. at 412-13, 489 A.2d 1175 (quoting People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 907, 583 P.2d 748, 765 (Cal.1978)). Hence, the court reversed the conviction, remanding the case to the Law Division for a new trial.

We granted certification, 101 N.J. 285, 501 A.2d 948 (1985), and now affirm the judgment rendered in the well-reasoned opinion of the Appellate Division.

II

Subsequent to the Appellate Division's decision to serve as a laboratory in federalism by resting its opinion on independent state constitutional grounds, the United States Supreme Court overruled Swain v. Alabama in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Swain, the first case to address directly the federal constitutional validity of the use of peremptory challenges to discriminate on the basis of race, a closely divided Supreme Court had concluded: "[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws." 380 U.S. at 221, 85 S.Ct. at 836, 13 L.Ed.2d at 773. In dictum, four members of the Court indicated that if the defendant could show that the prosecutor had systematically excluded all Blacks in case after case over a period of time, the presumption protecting the exercise of peremptory challenges "may well be overcome." Id. at 224, 85 S.Ct. at 838, 13 L.Ed.2d at 774. The Court opined that this presumption was not overcome in Swain itself, although the defendant offered evidence that no Black had ever served on a petit jury in Talladega County, Alabama. Yet if ever there were a case in which it would appear that Swain's standard of proof could be met, Swain itself surely was the one. Indeed, as of 1977, no defendant had ever surmounted this burden, despite proof in many instances that created a reasonable if not unmistakeable inference of racial discrimination. See Annot., "Use of Peremptory Challenge to Exclude from Jury Persons Belonging to a Class or Race," 79 A.L.R.3d 14 (1977) (collecting the federal and state cases in a sixty-page annotation); J. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels 156 n. 83-98 (1977) (listing more than fifty cases). By 1984, the Second Circuit indicated in McCray v. Abrams, 750 F.2d 1113, 1120 (1984), that Swain's "mission impossible" had been accomplished in only one instance, involving a prosecutor who admitted the practice of striking Blacks and whose use of peremptory challenges had been repeatedly appealed by black defendants. State v. Brown, 371 So.2d 751 (La.1979), and State v. Washington, 375 So.2d 1162 (La.1979).

Before the Supreme Court threw off Swain's "crippling burden of proof" in Batson supra, 476 U.S. at ----, 106 S.Ct. at 1720, 90 L.Ed.2d at 85, Swain had effectively immunized prosecutors' exercise of peremptory challenges from federal constitutional scrutiny and hence had been "the subject of almost universal and often scathing criticism." McCray v. New York, supra, 461 U.S. at 964, 103 S.Ct. at 2440, 77 L.Ed.2d at 1324 (Marshall, J., dissenting from the denial of certiorari). This prompted leading state courts to look to their state constitutions as sources of fundamental rights surpassing those guaranteed by the federal constitution. People v. Wheeler supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Cal.1978); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. den., 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); State v. Neil, 457 So.2d 481 (Fla.1984); State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.App.1980). The Appellate Division here followed their lead, concluding that Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution provide greater protection against a prosecutor's discriminatory use of peremptory challenges than the United States Supreme Court had afforded under the Equal Protection Clause of the United States Constitution....