State v. Pruitt, A-1343-11T2; Appellate Division; opinion by Haas, J.S.C., temporarily assigned; decided and approved for publication April 23, 2013. Before Judges Sapp-Peterson, Haas and Happas. On appeal from the Law Division, Cape May County, No. 09-08-0662. [Sat below: Judge Batten.] DDS No. 14-2-9700 [17 pp.]
In this appeal, the issue is whether the prosecutor’s use of a peremptory challenge to excuse the only qualified African-American person in the jury panel was sufficient to require the prosecutor to provide a nondiscriminatory explanation for the exercise of the challenge.
The trial court conducted the standard juror voir dire. Juror 13 stated she had never served on a jury before, had no close family members or friends who were in law enforcement, and knew no one who had been affected by drug or alcohol abuse. She also stated that she could remain impartial in light of the numerous counts of the indictment, would listen to the evidence with an open mind, and agreed that a defendant on trial did not have to prove his innocence, present any evidence, or testify on his own behalf. In response to the biographical question, Juror 13 stated she had worked at the Woodbine Developmental Center for 20 years. She had a high school diploma and was now attending college. She was married with three children. Her husband worked in security. Juror 13 stated that she liked to watch basketball on television and read the Atlantic City Press newspaper. She had no nonpolitical bumper stickers on her car. She stated that she liked to spend her spare time "[f]ishing, and I spend time praying." Neither the prosecutor nor defendant’s attorney asked Juror 13 any follow-up questions.
Fourteen individuals were qualified to sit as jurors. The prosecutor used five peremptory challenges to excuse Jurors 4, 5, 6, 8 and 13. Defendant’s counsel asked for a side-bar conference and objected to the prosecutor’s use of a peremptory challenge against Juror 13 because there would be no African-Americans on the jury. Citing the New Jersey Supreme Court’s decision in State v. Gilmore, counsel asked the judge to require the prosecutor to explain why the juror was excused so that a determination could be made as to whether the peremptory challenge had been exercised for a valid reason or because of Juror 13′s race. The prosecutor declined to divulge his reasons, arguing that defendant had failed to make a threshold showing to require him to explain the basis for his peremptory challenge.
The judge concluded defendant had not demonstrated a "substantial likelihood" that the challenge to the only qualified African-American juror in the jury pool was made for a discriminatory purpose and denied defendant’s request.
Held: The prosecutor’s use of a peremptory challenge to excuse the only qualified African-American person in the jury panel was sufficient to require the prosecutor to provide a nondiscriminatory explanation for the exercise of the challenge.
The trial judge primarily relied on the 1986 decision in Gilmore, where the court held that peremptory challenges may not be used to exclude jurors solely for a racially discriminatory reason. The judge found that, in order to establish a prima facie case, defendant had to show there was a "substantial likelihood" that the prosecutor’s use of a peremptory challenge to Juror 13 was discriminatory. However, in its subsequent decision in State v. Osorio, the court modified the Gilmore rule to make it less difficult for defendants to establish a prima facie case, relying on the U.S. Supreme Court’s decision in Johnson v. California. Pursuant to Johnson, a defendant satisfies the requirements of making a prima facie showing that the prosecution exercised its peremptory challenges on constitutionally impermissible grounds by "producing evidence sufficient to draw an inference that discrimination has occurred."
In determining whether a defendant has produced evidence sufficient "to draw an inference that discrimination has occurred[,]" the Osorio court directed trial courts to consider these factors: (1) that the prosecutor struck most or all of the members of the identified group from the venire; (2) that the prosecutor used a disproportionate number of his or her peremptories against the group; (3) that the prosecutor failed to ask or propose questions to the challenged jurors; (4) that other than their race, the challenged jurors are as heterogeneous as the community as a whole; and (5) that the challenged jurors, unlike the victims, are the same race as defendant.
Here, the trial judge mistakenly found that defendant was required to establish a prima facie case by showing a substantial likelihood that peremptory challenges were used for discriminatory purposes. Thus, the judge imposed a more stringent standard than Osorio dictates.
Evaluating the evidence in light of the Osorio standard, the appellate panel finds that defendant produced sufficient evidence to draw an inference that the peremptory challenge to Juror 13 had been made for a discriminatory reason. Juror 13 appeared to be well-qualified to judge the case and, unlike the other four jurors who were challenged, the reason for her dismissal was far from evident.
Because there was only one qualified member of the cognizable group in the jury panel; the defendant was also a member of that same group; the prosecutor failed to ask the juror any follow-up questions; and, other than her race, the juror was as heterogeneous as the community as a whole, the trial judge should have required the prosecutor to explain his nondiscriminatory reason for the challenge.
The appellate panel remands the matter to the trial court for a hearing as to the basis for the prosecutor’s exercise of a peremptory challenge and a determination by the judge as to whether the prosecutor’s conduct was unconstitutionally discriminatory. If the remand hearing does not disclose a constitutional violation, defendant’s convictions and sentence are affirmed.
For appellant — Jason A. Coe, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender). For respondent — John Vincent Molitor, Assistant Prosecutor (Robert L. Taylor, Cape May County Prosecutor).