State v. Saladin Thompson(074971) , 224 N.J. 324 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Saladin Thompson (A-47-14) (074971)
Argued December 1, 2015 -- Decided March 8, 2016
SOLOMON, J., writing for a unanimous Court.
In this appeal, the Court considers the manner in which a trial court should evaluate challenges regarding
the State’s alleged use of racial discrimination in jury selection.
In July 2005, defendant committed a series of shootings, killing one man and injuring another. Thereafter,
he was charged with murder and related offenses. During jury selection, the State exercised seven of its peremptory
challenges to strike African-American prospective jurors. On the eve of trial, but before the jury was sworn,
defendant’s counsel raised a challenge pursuant to State v. Gilmore, 103 N.J. 508 (1986), in which he alleged racial
discrimination in jury selection. The trial court dismissed the challenge. The case proceeded to trial where the jury
convicted defendant of two counts of conspiracy to commit murder, and one count each of attempted murder,
murder, simple assault, resisting arrest, possession of a weapon for an unlawful purpose, and unlawful possession of
a weapon. The court imposed an aggregate 67-year term of incarceration, subject to an 85 percent period of parole
ineligibility, pursuant to the No Early Release Act.
Defendant appealed, claiming that the trial court failed to engage in the three-step analysis mandated by
Gilmore. The Appellate Division remanded the matter to the trial court to give the State an opportunity to articulate
its reasons for excusing the African-American prospective jurors and for the court to determine whether defendant
had proved by the preponderance of the evidence that the prosecution engaged in discrimination. On remand,
defendant was represented by new counsel. The State provided the court with explanations as to why it used its
peremptory challenges to excuse seven African-American jurors. Following the State’s presentation, defense
counsel acknowledged that the information provided by the prosecutor was supported by the transcript from jury
selection, but insisted that defendant was at a disadvantage because of the time that has lapsed since trial. The trial
court concluded that defendant had failed to prove that the State’s use of peremptory challenges was constitutionally
impermissible.
Defendant appealed, claiming again that the prosecution had used its peremptory challenges in a
discriminatory manner. He also raised a sentencing claim. In a published opinion, the Appellate Division vacated
the judgments of conviction and remanded for a new trial. 437 N.J. Super. 266 (App. Div. 2014). The panel found
that the court’s failure to conduct the three-step analysis mandated by Gilmore constituted error. The panel also
observed that the State’s explanations for the challenges may not have been evenly applied and that the record was
silent with respect to responses by many prospective jurors on key questions. The panel did not reach defendant’s
sentencing claim. The Court granted certification. 221 N.J. 219 (2015).
HELD: The record below demonstrates that the prosecutor’s race-neutral reasons for striking the jurors were supported
by the record and that the trial court conducted an adequate Gilmore analysis. Therefore, the Appellate Division’s
reversal and remand for a new trial was inappropriate.
1. The United States Constitution forbids prosecutorial challenges to potential jurors solely based on race. Batson
v. Kentucky, 476 U.S. 79 (1986). A defendant asserting the State’s improper use of peremptory challenges must
first make a prima facie showing that the challenge has been exercised on the basis of race. Once this burden is met,
the prosecutor must offer a race-neutral basis for striking the juror in question. Thereafter, the trial court must
determine whether the defendant has established intentional discrimination. (pp. 13-14)
2. Likewise, the New Jersey Constitution prohibits a prosecutor from exercising peremptory challenges on the basis
of race. State v. Gilmore, 103 N.J. 508 (1986). Gilmore outlined a three-step analysis for trial courts to follow
when adjudicating a claim of unconstitutional discrimination in the use of peremptory challenges. After defendant
has rebutted the presumption of constitutionality by making a prima facie showing (step one) and the prosecutor has
proffered an explanation based on permissible grounds (step two), Gilmore’s third step is applied. In the third step,
the trial court must judge the defendant’s prima facie case against the prosecution’s explanation to determine
whether the defendant has carried the burden of proving that the prosecution exercised its peremptory challenges on
constitutionally-impermissible grounds of presumed group bias. (pp. 15-17)
3. In 2009, this Court revisited the trial court’s obligation to conduct a three-step analysis when considering a
challenge to the prosecutor’s use of peremptory challenges. State v. Osorio, 199 N.J. 486 (2009). In doing so, the
1
Court reexamined the rule established in Gilmore and refined its three-step analysis. Accordingly, the trial court
must assess whether the State has applied the proffered reasons even-handedly, the overall pattern of the use of
peremptory challenges, and the composition of the jury ultimately selected to try the case. (pp. 17-20)
4. The federal standard of review for a trial court’s factual determinations regarding a Batson claim is in line with
Gilmore and this Court’s well-settled law directing appellate courts to give deference to trial court findings based on
its opportunity to hear and observe witnesses. Here, defendant’s Gilmore objection, while timely, was made five
days into jury selection on the scheduled first day of trial, after challenges had been exercised and prospective jurors
excused, but before the jury was sworn. In support of his objection, defense counsel stated only that the prosecutor
used seven of nine peremptory challenges to excuse African-American prospective jurors. The court did not inquire
any further, concluding that defendant had failed to make establish a prima facie claim that the prosecution had used
its peremptory challenges in a discriminatory manner. (pp. 22-24)
5. Under Gilmore, the analysis ends if the trial court finds that defendant failed to meet his initial burden of
establishing a prima facie case of purposeful discrimination. The better practice is to allow the State to make a
record of its reasons for exercising its peremptory challenges. Because this did not occur, there was sufficient
support for the initial remand ordered by the Appellate Division. On remand, the prosecutor presented race-neutral
reasons for excusing each African-American prospective juror, reminded the court that the final composition of the
empaneled jury included a higher percentage of African Americans than the venire, and explained that the State’s
strategy benefited from having African-American jurors because two of the three victims in this case were also
African American. (pp. 25-26)
6. On appeal from the remand hearing, the Appellate Division found that the trial court failed to advance to the third
step in the Gilmore analysis and that the transcript of the jury selection process suggested that the State’s proffered
explanations may not have been evenly applied. Based on those purported failures, the panel incorrectly reversed
defendant’s convictions and remanded for a new trial. The Appellate Division ignored the trial court’s credibility
findings, canvassed the record to find an example of the prosecutor’s supposed uneven application of peremptory
challenges and misapplied Osorio and Gilmore. The remand court in this case gave defendant an opportunity, in
response to the State’s explanations, to provide information beyond the fact that seven of the nine peremptory
challenges were against African-American prospective jurors. That defendant was unable to do so supports the
court’s conclusion that defendant failed to carry his ultimate burden and, under this Court’s deferential standard of
review, militates against the Appellate Division’s reversal. Nothing in Gilmore or Osorio placed the onus on the
court to comb the record for instances where a juror selected provided answers similar to the reasons the State
proffered for its use of a peremptory challenge; it is the defendant’s obligation to do so. In light of the remand
record, and pursuant to a deferential standard of review, the trial court conducted an adequate Gilmore analysis and
its findings were not erroneous. (pp. 27-30)
The judgment of the Appellate Division is REVERSED. Defendant’s convictions are REINSTATED and
the matter is REMANDED to the Appellate Division for consideration of defendant’s sentencing claim.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.
2
SUPREME COURT OF NEW JERSEY
A-47 September Term 2014
074971
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SALADIN THOMPSON,
Defendant-Respondent.
Argued December 1, 2015 – Decided March 8, 2016
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 437 N.J. Super. 266 (App. Div.
2014).
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor argued
the cause for appellant (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney;
Mr. Ducoat and Sara A. Friedman, Special
Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the briefs).
Stefan Van Jura, Deputy Public Defender II,
argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney).
Jenny M. Hsu, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
JUSTICE SOLOMON delivered the opinion of the Court.
On a single evening in July 2005, defendant committed a
series of shootings in Irvington, killing one man and injuring
1
two others. Defendant, who is African American, was charged
with first-degree murder and related offenses.
During jury selection, the State exercised nine of its
twelve peremptory challenges; seven of the nine were used to
strike African-American prospective jurors. On the eve of
trial, but before the jury was sworn, defendant’s trial counsel
raised a challenge pursuant to State v. Gilmore, 103 N.J. 508
(1986), alleging racial discrimination in the jury selection
process. Because counsel was unable to substantiate the
allegation beyond noting that the majority of the prosecutor’s
challenges targeted African Americans, the trial court dismissed
the challenge and the case proceeded to trial.
Following trial, a jury convicted defendant of various
offenses, including first-degree murder and attempted murder.
Thereafter, the court sentenced defendant to an aggregate term
of sixty-seven years of imprisonment subject to an eighty-five
percent period of parole ineligibility. On appeal, the
Appellate Division determined that defendant made a prima facie
showing of discrimination with respect to the prosecutor’s use
of peremptory challenges, and remanded for the trial court to
conduct an inquiry into the jury-selection process.
At the remand hearing, the State provided explanations for
its use of the peremptory challenges. Defense counsel, who did
not represent defendant at trial, acknowledged that the
2
information provided by the prosecutor was supported by the
transcripts of jury selection, and offered nothing further.
Instead, counsel claimed he was at a disadvantage due to the
passage of time and because defendant’s trial counsel, who had
moved to Colorado, was unavailable for the hearing. The court
then credited the State’s explanations, indicating that they
were supported by the record, and dismissed defendant’s Gilmore
challenge.
Defendant again appealed, and the Appellate Division
reversed his convictions and remanded for a new trial because
the trial court failed to assess whether the State’s
explanations were genuine and applied evenhandedly.
We granted the State’s petition for certification, 221 N.J.
219 (2015), and now reverse the judgment of the Appellate
Division and reinstate defendant’s convictions.
I.
A.
For context, we recount briefly the facts of the underlying
incident which led to defendant’s indictment.
Tony Andrews was on his porch when two African-American
males fired four or five gunshots, wounding him. After firing
the initial rounds of bullets, one of the two men approached
Andrews and attempted to shoot him in the face but narrowly
missed. When officers arrived on the scene, they found Andrews
3
lying in the hallway of the residence, bleeding from his right
shoulder.
On the same evening, two men approached a restaurant
located near the scene of the Andrews’ shooting. One of the men
waited outside while the other entered briefly to purchase
cigarettes. As he exited the restaurant, an employee later
identified as Leno Zhou, noticed the man drawing a gun. Once
outside, both men began firing. Zhou heard four gunshots and
realized that he had been shot in the leg and that a patron,
Nibal Green, had been shot and killed.
After receiving treatment for his leg, Zhou was taken to
the police station where he identified defendant from a photo
array as one of the shooters. Defendant was apprehended later
that evening following a car and foot pursuit. One of the
pursuing officers recovered a gun discarded by defendant as he
attempted to flee. Ballistics confirmed that bullets and
casings found at the scene of both shootings had been fired from
that weapon.
An Essex County grand jury indicted defendant on two counts
of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:11-3(a); two counts of first-degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a); first-degree
murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2);
third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
4
5(b); second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b); third-degree receipt of stolen property,
N.J.S.A. 2C:20-7; and third-degree resisting arrest, N.J.S.A.
2C:29-2.
B.
In anticipation of trial, a pool of prospective jurors
consisting of thirty African Americans and sixty-five non-
African Americans was brought to the courtroom. During jury
selection, the State used seven of its nine peremptory
challenges1 to strike African Americans from the jury venire.
The final jury panel was comprised of five African-American and
nine non-African-American jurors.
On the first day of trial, five days after the jury was
selected but before it was sworn, defense counsel raised a
Gilmore challenge, alleging that the State exercised its
peremptory challenges in a discriminatory manner. To support
his challenge, defense counsel cited only the prosecutor’s use
of seven of her nine challenges to strike African Americans.
The trial judge asked defense counsel, “Got anything else[,]”
and counsel replied, “I think that’s it.” The prosecutor
“vigorously oppose[d]” counsel’s Gilmore challenge, asserting
1 The prosecutor was entitled to a total of twelve peremptory
challenges pursuant to Rule 1:8-3(d).
5
that defendant failed to establish a prima facie case of
discrimination and denying that the State used its “p[er]emptory
challenges to systematically exclude members of . . . any group,
whether it be racial, gender, or otherwise.” The State further
pointed out that there were “a significant number of individuals
of African-American descent seated on the current jury, which we
expect to be sworn.”
The prosecutor then offered to explain her use of
peremptory challenges, but submitted that “since no prima facie
case has been made of a systematic exclusion of individuals . .
. there has been no grounds put forward for going any further in
the procedure set forth in the Gilmore case.” Without asking
for further explanation from the prosecutor or additional
argument from defense counsel, the trial court summarily
dismissed defendant’s Gilmore challenge, stating that “[t]here
being no prima facie case being made with regard to a
discriminatory pattern of jury selection on behalf of the State,
no further inquiry of this Court is necessary. The issue is
over.”
Thereafter, the jury, which included five African
Americans, was sworn and the trial proceeded to conclusion.
Defendant was convicted of two counts of first-degree conspiracy
to commit murder, first-degree attempted murder, first-degree
murder, third-degree unlawful possession of a weapon, second-
6
degree possession of a weapon for an unlawful purpose, simple
assault, and fourth-degree resisting arrest. The court
sentenced defendant to an aggregate sixty-seven-year prison term
subject to an eighty-five percent parole disqualifier pursuant
to the No Early Release Act, N.J.S.A. 2C:43-7.2.
C.
Defendant appealed his conviction. He argued, among other
things,2 that the trial court failed to engage in the three-step
analysis mandated by Gilmore, supra, 103 N.J. at 537-38.
The Appellate Division remanded,3
to afford the prosecution the opportunity to
articulate its reasons for excusing the seven
African-American prospective jurors and for
the court to then weigh those reasons against
defendant’s prima facie case in order to
determine whether defendant has met his
ultimate burden of proving by the
preponderance of the evidence that the
prosecution engaged in impermissible
discrimination in exercising its peremptory
challenges.
This Court denied defendant’s petition for certification. State
v. Thompson, 203 N.J. 439 (2010).
2 Defendant also claimed the trial court: (1) erred in its jury
instruction on identification; and (2) subjected defendant to
disparate treatment when it imposed a custodial sentence greater
than the sentence received by his co-defendant.
3 Prior to the remand hearing, defendant filed a pro se petition
for post-conviction relief (PCR). The PCR proceeding was not
adjudicated until several months after the remand hearing and is
not relevant for the purposes of this appeal.
7
D.
At the remand hearing, defendant was represented by new
counsel, who had to rely on trial transcripts of the jury
selection process because defendant’s trial counsel had since
moved to and was practicing law in Colorado; trial counsel
certified that he had no notes, files, or significant
recollection of the jury selection. As such, remand counsel
requested copies of the prosecutor’s notes from jury selection,
citing State v. Osorio, 199 N.J. 486 (2009). The court denied
defendant’s application, concluding that Osorio did not require
such notes to be turned over, but offered to provide counsel
with its own notes which were limited, for the most part, to
gender and race. It is unclear from the record whether defense
counsel accepted this offer.
The prosecutor, who also represented the State at trial,
then provided the court with the following explanations for the
State’s exercise of peremptory challenges to excuse seven
African-American prospective jurors:4
Juror B, who initially asked to be excused out of concern
that serving on the jury may affect her probationary work
status, was excused because she was familiar with the
address where the crime occurred, had a family member
previously accused of drug possession, and had been
dissatisfied with the prosecution in a prior case in which
a family member was the victim of a hit-and-run accident.
4 In the interest of privacy, the jurors are referred to by
initials.
8
Juror G was excused because her boyfriend, who is also the
father of her child, had been convicted of and was on
probation for weapons charges, and his prosecution was
undertaken by Essex County, the same office prosecuting
defendant’s case.
Juror Gr, who indicated that she hosted adult-themed
“passion parties,” was dismissed because she had been
involved in a domestic violence case which had been
initially prosecuted and subsequently dismissed by the
Essex County Prosecutor’s Office and “the aggregate effect
of those statements . . . cause[d] [the prosecutor] to have
a reaction that she would not be a juror who would be
equally open to the State’s evidence in this matter.”
Juror H, who worked in a half-way house and had a daughter
who had been laid off from her job as a Corrections
Officer, was excused because she was once subpoenaed as a
witness, but did not ultimately testify, in a trial where
her brother was convicted of homicide.
Juror Go was excused because he had been previously
prosecuted by the Essex County Prosecutor’s Office in
connection with a case that was eventually “thrown out” in
which his son was the alleged victim.
Juror Mk, who expressed that she was very religious and
indicated that she read daily meditations and regularly
attended “meetings” of a possible religious nature, was
excused because, after being denied an opportunity to ask
follow-up questions, the prosecutor “felt that she might,
in fact, be disturbed in sitting in judgment upon another
individual, particularly in something as serious as a
murder case.”
Juror Jn was dismissed because during voir dire he provided
a “deliberately misleading” statement that neither he nor
any member of his family had ever been charged with an
offense. In actuality, the prosecutor was aware, and the
juror subsequently admitted, that he and his brothers were
facing assault charges in Essex County at the time of
trial.
The prosecutor also noted that thirty of the ninety-five
potential jurors in defendant’s case, or approximately 31.5%,
9
“appeared to be African-American.” By comparison, the final
jury was 35.7% African American –- five of the fourteen jurors5
were African American. Finally, the prosecutor explained that
with two African-American victims, one of whom
was murdered and one of whom was only saved by
the fact that one of the guns did not fire
initially against his head . . . there was no
intention on the part of the State to exclude
African-Americans from this jury. It would
not be, in my view, sound trial strategy and
the exercise of peremptory challenges was done
for situations, specific reasons, and without
any intent to exclude a particular race,
without any intent to exclude African-
Americans.
Following the prosecutor’s presentation, the court asked
defense counsel, “you have anything?” Defense counsel
acknowledged that much of the information provided by the
prosecutor was supported by the transcript of jury selection,
but insisted that the defense was “at a substantial disadvantage
now because so much time has past [sic] and because Mr. Rosen,
the trial attorney, is not here.” Defense counsel also renewed
his application to review the prosecutor’s notes from jury
selection, which the court, once again, denied. The court then
held that defendant failed to carry his ultimate burden of
proving that the State’s use of peremptory challenges was
constitutionally impermissible. In making this determination,
5 Twelve jurors deliberate on a verdict and two serve as
alternates in the event that a juror is unable to continue
serving to verdict.
10
the court found that the prosecutor’s stated reasons for
excusing the seven African-American prospective jurors were
credible and that the State “did not engage in impermissible
discrimination in exercising its peremptory challenges.”
Defendant appealed for a second time, arguing, among other
things,6 that his convictions must be reversed because the
prosecutor’s peremptory challenges were impermissible and
unconstitutional, and the record below regarding the challenges
was insufficient.
In a published opinion, the Appellate Division vacated the
judgment of conviction and remanded for a new trial. State v.
Thompson, 437 N.J. Super. 266 (App. Div. 2014). Relying on
Osorio, supra, the panel concluded that the failure of the court
to conduct “a Gilmore third-step analysis left open the question
whether the prosecutor’s ‘nondiscriminatory reason for
exercising a peremptory challenge which appear[ed] genuine and
reasonable on its face [was] suspect if the only prospective
jurors with that characteristic who the [prosecutor] has excused
are members of a cognizable group.’” Id. at 280 (quoting
Osorio, supra, 199 N.J. at 506) (citation omitted).
6 Defendant also claimed that the court impermissibly double-
counted aggravating factors during the re-sentencing hearing.
This contention was not reached by the Appellate Division.
11
The panel then engaged in its own review of the jury
selection transcript and found that “the State’s proffered
explanations may not have been evenly applied.” Ibid.
Specifically, the panel claimed that although the prosecutor
excused Juror B, who was African American, she did not excuse
Juror Ch even though her answers to questions during voir dire
were similar to Juror B’s responses. Ibid. The panel
acknowledged that the race of Juror Ch was not recorded.7 Ibid.
The panel continued, “[i]t is also important to note that
the record, unfortunately, is silent with respect to responses
by many prospective jurors on key questions, such as whether
they were familiar with the crime area, and whether they or
members of their family had been crime victims.” Id. at 280-81.
Thus, it stated that
as in Osorio, the ‘scant record before us’ in
this case ‘does not instill confidence that
the trial [judge] properly exercised [his]
discretion in assessing the propriety of the
contested peremptory challenges.’ The failure
to engage in the requisite third-step analysis
mandated by the Supreme Court necessitates
reversal.
[Id. at 281 (internal citation and quotation
marks omitted).]
7 In its supplemental brief to this Court, the State represented
that Ch was, in fact, African-American. This assertion has not
been contested by defendant. We reiterate that on remand the
trial court offered to hand over its own notes, which consisted
of the sex and race of prospective jurors. It is unclear from
the record whether defense counsel accepted this offer.
12
The Appellate Division did not reach the issue of disclosure of
the prosecutor’s jury selection notes, and this question is not
addressed here.8
II.
A.
We begin with a review of the basic principles governing a
challenge to the State’s use of peremptory challenges to excuse
minority jurors.
In Batson v. Kentucky, the United States Supreme Court held
that the Equal Protection Clause of the Fourteenth Amendment
“forbids the prosecutor to challenge potential jurors solely on
account of their race.” 476 U.S. 79, 89, 106 S. Ct. 1712, 1719,
90 L. Ed. 2d 69, 83 (1986). A defendant asserting the State’s
improper use of peremptory challenges under Batson must first
“make a prima facie showing that a peremptory challenge has been
exercised on the basis of race.” Snyder v. Louisiana, 552 U.S.
472, 476, 128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175, 180 (2008)
(citations and quotation marks omitted). Once this burden has
been met, the prosecutor “must offer a race-neutral basis for
striking the juror in question.” Id. at 477, 128 S. Ct. at
1207, 170 L. Ed. 2d at 180. Thereafter, the trial court is
8 Defendant now “agrees with the State that a criminal defendant
is not entitled to a prosecutor’s notes by virtue of
establishing a prime facie case under Gilmore.”
13
tasked with determining whether the defendant has established
intentional discrimination, “in light of the parties’
submissions.” Id. at 477, 128 S. Ct. at 1207, 170 L. Ed. 2d at
181.
Batson’s first two steps “govern the production of evidence
that allows the trial court to determine the persuasiveness of
the defendant’s constitutional claim.” Johnson v. California,
545 U.S. 162, 171, 125 S. Ct. 2410, 2417-18, 162 L. Ed. 2d 129,
140 (2005). “It is not until the third step that the
persuasiveness of the justification becomes relevant -- the step
in which the trial court determines whether the opponent of the
strike has carried his burden of proving purposeful
discrimination.” Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct.
1769, 1771, 131 L. Ed. 2d 834, 839 (1995) (citations omitted).
Under the Batson framework, the defendant shoulders the
ultimate “burden of persuasion” to “prove the existence of
purposeful discrimination.” Batson, supra, 476 U.S. at 93, 106
S. Ct. at 1721, 90 L. Ed. 2d at 85 (internal quotation marks and
citations omitted). This burden “rests with, and never shifts
from, the opponent of the strike.” Purkett, supra, 514 U.S. at
768, 115 S. Ct. at 1771, 131 L. Ed. 2d at 839. Discriminatory
intent “may be proven by systematic exclusion of eligible
jurymen of the proscribed race or by unequal application of the
law to such an extent as to show intentional discrimination.”
14
Hernandez v. New York, 500 U.S. 352, 373, 111 S. Ct. 1859, 1873,
114 L. Ed. 2d 395, 415 (1991) (O’Connor, J., concurring)
(citations and quotation marks omitted). However, the United
States Supreme Court has cautioned that “[t]he inherent
uncertainty present in inquiries of discriminatory purpose
counsels against engaging in needless and imperfect speculation
when a direct answer can be obtained by asking a simple
question.” Johnson, supra, 545 U.S. at 172, 125 S. Ct. at 2418,
162 L. Ed. 2d at 140-41. Thus, “if . . . the trial court
believes the prosecutor’s nonracial justification, and that
finding is not clearly erroneous, that is the end of the
matter.” Hernandez, supra, 500 U.S. at 375, 111 S. Ct. at 1875,
114 L. Ed. 2d at 416 (O’Connor, J., concurring).
Less than three months after Batson was handed down, this
Court, in Gilmore, supra, determined that the provisions of the
New Jersey Constitution, Article I, Paragraphs five, nine, and
ten, likewise prohibited a prosecutor from exercising peremptory
challenges on the basis of religious principles, race, color,
ancestry, national origin, or sex. 103 N.J. at 524-29.
Building on the principles articulated in Batson, the Gilmore
Court outlined a similar three-step analysis for trial courts to
follow when adjudicating a claim of unconstitutional
discrimination in the use of peremptory challenges. Id. at 533-
39.
15
That analysis begins with the “rebuttable presumption that
the prosecution has exercised its peremptory challenges on”
constitutionally permissible grounds. Id. at 535. From there,
the Gilmore Court instructed that, as the first step, “[t]his
presumption may be rebutted . . . upon a defendant’s prima facie
showing that the prosecution exercised its peremptory challenges
on constitutionally-impermissible grounds.” Ibid. To make out
a prima facie claim, Gilmore required a defendant to “initially
. . . establish that the potential jurors wholly or
disproportionally excluded were members of a cognizable group,”
and then that “there is a substantial likelihood that the
peremptory challenges resulting in the exclusion were based on
assumptions about group bias rather than any indication of
situation-specific bias.” Id. at 535-36.
Once the trial court is satisfied that the defendant has
made this prima facie showing, “[t]he burden shifts to the
prosecution to come forward with evidence that the peremptory
challenges under review are justifiable on the basis of concerns
about situation-specific bias.” Id. at 537. This is
accomplished by the prosecutor “articulat[ing] ‘clear and
reasonably specific’ explanations of its ‘legitimate reasons’
for exercising each of the peremptory challenges.” Ibid.
(quoting Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248,
258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207, 218 (1981)). The
16
State’s explanations, “if they appear to be genuine, should be
accepted by the court, which will bear the responsibility of
assessing the genuineness of the prosecutor’s response and of
being alert to reasons that are pretextual.” Id. at 538
(quoting McCray v. Abrams, 750 F.2d 1113, 1132 (2d Cir. 1984)).
After the defendant has rebutted the presumption of
constitutionality by making a prima facie showing (step one) and
the prosecutor has proffered an explanation based on permissible
grounds (step two), Gilmore’s third step is applied. In this
last step of the analysis, “the trial court must judge the
defendant’s prima facie case against the prosecution’s rebuttal
to determine whether the defendant has carried the ultimate
burden of proving, by a preponderance of the evidence, that the
prosecution exercised its peremptory challenges on
constitutionally-impermissible grounds of presumed group bias.”
Id. at 539.
We revisited the trial court’s obligation to conduct a
three-step analysis when considering a challenge to the
prosecutor’s use of peremptory challenges in Osorio. In that
case, defendant, a Hispanic male, was arrested and charged with
various drug-related offenses. Osorio, supra, 199 N.J. at 493.
During jury selection, the prosecutor used her first six
peremptory challenges to strike African-American and Hispanic
jurors. Ibid. Defense counsel raised a Gilmore challenge, but
17
the trial court summarily rejected the objection without
requiring an explanation from the State. Ibid. After the
prosecutor used her next challenge to dismiss an African-
American juror, the court asked for an explanation. Id. at 493-
94. The prosecutor claimed that the juror appeared to be
sleeping, and the court stated that it was “satisfied” without
inviting the prosecutor’s justification for the first six
peremptory challenges or any response from defense counsel. Id.
at 494.
On appeal, the Appellate Division affirmed defendant’s
convictions, but remanded to the trial court for the prosecutor
to justify her reasons for striking the minority jurors. Ibid.
At the remand hearing, the prosecutor stated, “Juror Number 9,
from Newark, and Juror Number 10, from East Orange, both
Hispanic females seated next to each other, were excused because
they were ‘giggling [and] high[-]fiving when a juror in the back
row was excused’ and were ‘making faces[.]’” Id. at 495.
Without the benefit of its own trial notes or “separate
recollection of the jury selection process,” the trial court
accepted the prosecutor’s representations, did not allow defense
counsel to respond and, once again, rejected the defendant’s
Gilmore challenge. Id. at 496.
Defense counsel later sought to supplement the remand
record, claiming that the prosecutor’s representations regarding
18
Jurors 9 and 10 did not “conform to his recollection, [and] . .
. that he ‘remember[ed] those two people very well,’” and they
did not engage in any of the gesturing described by the
prosecutor. Ibid. In light of this factual dispute, the delay
in time, and the prosecutor’s “failure to apply the purported
reason[s] for the excusal” even-handedly,9 the Appellate Division
reversed and remanded for a new trial. Id. at 498.
We affirmed the Appellate Division’s grant of a new trial.
In doing so, we reexamined the rule established in Gilmore and
refined its three-step analysis. First, we modified the
“substantial likelihood” standard set forth in the first step of
the Gilmore analysis in light of Johnson, supra, which “ma[de]
clear that the burden to overcome the presumption of
constitutionality of a peremptory challenge exercise is far less
exacting than was originally stated in Gilmore.” 103 N.J. at
502. Thus, we reduced Gilmore’s “substantial likelihood”
9 Apparently, four out of the twenty-one prospective jurors who
indicated that either they, a relative, or a friend had been a
crime-victim were seated on the jury. State v. Osorio, 402 N.J.
Super. 93, 107-08 (App. Div. 2008). However, the prosecutor
excused an African-American juror, who was the only prospective
juror to state that the perpetrator “got off,” even though
others who reported that the perpetrator was never apprehended
were not subject to peremptory excusal by the State. Id. at
108. The Appellate Division had “difficulty understanding how a
prosecutor could [conclude] that a prospective juror who felt
that the perpetrator of a crime against a family member ‘got
off’ would be biased against the State, but that prospective
jurors who had been informed the perpetrator had not been
apprehended would not have such bias.” Ibid.
19
standard to the less-onerous “inference” standard set forth in
Johnson. Ibid.; see Johnson, supra, 545 U.S. at 170, 125 S. Ct.
at 2417, 162 L. Ed. 2d at 139 (clarifying that “a defendant
satisfies the requirements of Batson’s first step by producing
evidence sufficient to permit the trial judge to draw an
inference that discrimination has occurred”).
Next, we reiterated that the third step of the Gilmore
analysis requires the trial court to “weigh the proofs . . . and
determine whether, by a preponderance of the evidence, the party
contesting the exercise of a peremptory challenge has proven
that the contested peremptory challenge was exercised on
unconstitutionally impermissible grounds of presumed group
bias.” Osorio, supra, 199 N.J. at 492-93. In conducting this
last phase of the analysis, the court must assess, among other
things, whether the State has applied the proffered reasons
“even-handedly to all prospective jurors”; the “overall pattern”
of the use of peremptory challenges; and “the composition of the
jury ultimately selected to try the case.” Id. at 506 (quoting
State v. Clark, 316 N.J. Super. 462, 473-74 (App. Div. 1998),
appeal after remand, 324 N.J. Super. 558 (App. Div. 1999),
certif. denied, 163 N.J. 10 (2000)). In the end, we concluded
that a second remand seven years after jury selection would have
been futile, and that a new trial was required because there
were irreconcilable factual issues regarding two of the
20
peremptorily challenged jurors that could not be resolved by the
“scant record before us.” Id. at 509.
B.
Guided by these principles, we turn to the applicable
standard of review. To begin, we note that in the instant case
the Appellate Division did not articulate the standard it
employed when reviewing the trial court’s determinations on
remand. In addition, our review of this Court’s jurisprudence
reveals that we have not enunciated the standard to be applied
to a trial court’s findings under the Gilmore analysis.
In Clark, supra, the Appellate Division noted that “[a]n
Appellate Court will extend substantial deference to a trial
court’s findings relating to whether the prosecution has
exercised its peremptory challenges on constitutionally-
impermissible grounds.” 316 N.J. Super. at 473. This
deferential standard is similar to that applied by the federal
courts where, “[t]he opponent of the strike bears the burden of
persuasion regarding racial motivation, and a trial court
finding regarding the credibility of an attorney’s explanation
of the ground for a peremptory challenge is entitled to great
deference.” Davis v. Ayala, __ U.S. __, __, 135 S. Ct. 2187,
2199, 192 L. Ed. 2d 323, 335 (2015) (internal citations and
quotation marks omitted). Thus, under federal law, “[o]n
appeal, a trial court’s ruling on the issue of discriminatory
21
intent must be sustained unless it is clearly erroneous.”
Snyder, supra, 552 U.S. at 477, 128 S. Ct. at 1207-08, 170 L.
Ed. 2d at 181 (citations omitted).
We find the federal standard of review for a trial court’s
factual determinations regarding a Batson claim to be
appropriate under Gilmore and in line with our own well-settled
body of law directing appellate courts to “‘give deference to
those findings of the trial judge which are substantially
influenced by his opportunity to hear and see the witnesses and
to have the “feel” of the case, which a reviewing court cannot
enjoy.’” State v. Elders, 192 N.J. 224, 243 (2007) (quoting
State v. Johnson, 42 N.J. 146, 161 (1964)). Indeed, “[a]n
appellate court should not disturb the trial court’s findings
merely because ‘it might have reached a different conclusion
were it the trial tribunal’ or because ‘the trial court decided
all evidence or inference conflicts in favor of one side’ in a
close case.” Id. at 244 (quoting Johnson, supra, 42 N.J. at
162). Therefore, “[a] trial court’s findings should be
disturbed only if they are so clearly mistaken ‘that the
interests of justice demand intervention and correction.’”
Ibid. (quoting Johnson, supra, 42 N.J. at 162). This standard,
we note, necessarily applies to the trial court’s assessment of
the prosecutor’s candor and sincerity in the presentation of
reasons for exercising peremptory challenges. See State v.
22
Williams, 113 N.J. 393, 411 (1988) (acknowledging that appellate
courts are “‘perhaps too far removed’ from the realities of the
voir dire to appreciate the nuances concealed by a ‘bloodless
record’; therefore deference to the trial court is usually
prudent”) (quoting Gilmore, supra, 103 N.J. at 547 (Clifford,
J., dissenting)).
III.
With this deferential standard in mind, we apply the law
applicable to defendant’s challenge of the prosecutor’s use of
peremptory challenges. In doing so, we must resolve whether
defendant is entitled to a new trial owing to the remand court’s
purported failure to balance defendant’s prima facie case
against the prosecution’s rebuttal evidence to determine whether
defendant carried the ultimate burden of proving, by a
preponderance of the evidence, that the prosecution “exercised
its peremptory challenges on constitutionally-impermissible
grounds.” Gilmore, supra, 103 N.J. at 539.
At the outset, we note that defendant’s Gilmore objection,
while timely, was made five days into jury selection on the
scheduled first day of trial, after challenges had been
exercised and prospective jurors excused, but before the jury
was sworn. Furthermore, in support of his objection, defense
counsel presented only that the prosecutor used seven of her
nine peremptory challenges to excuse African-American
23
prospective jurors. When the trial court asked counsel to
elaborate further, he was unable to do so.
The prosecutor then argued that defendant failed to
establish a prima facie case, but nonetheless offered that “[i]f
the Court wishes, I can with a few moments make a record clearly
about the current composition as the State sees it of the
sitting jury.” The court responded by saying merely that
defendant had failed to establish a “prima facie case . . . with
regard to a discriminatory pattern of jury selection on behalf
of the State, [and that] no further inquiry of this Court is
necessary.” This conclusion by the court was incorrect because
defendant established a prima facie claim by pointing out that
the prosecutor exercised seven of the nine peremptory challenges
to strike African Americans. See Osorio, supra, 199 N.J. at 503
(noting that a defendant meets his burden under the first step
of the Gilmore analysis by showing that the State “has used a
disproportionate number of [its] peremptories against [a
cognizable] group”) (citations and quotation marks omitted).
As emphasized in Gilmore, supra, we require a defendant’s
timely10 objection to the prosecution’s use of peremptory
challenges in order to “facilitate the development of as
10A Gilmore challenge is timely so long as it is raised “during
or at the end of the jury selection, but before the petit jury
is sworn.” Gilmore, supra, 103 N.J. at 535.
24
complete a record of the circumstances as is feasible, as well
as enabling the trial court to make a fairer determination.”
103 N.J. at 535. Here, the trial court failed to allow
development of as complete a record as possible when it did not
require the prosecutor to justify, before the jury was sworn,
her use of seven out of nine peremptory challenges to remove
African Americans. Although, in this instance, the prosecutor
argued, and the trial court agreed, that defendant failed to
make out a prima facie case of purposeful discrimination, we
cannot condone the trial court’s decision to summarily end the
inquiry at this stage.
We acknowledge that, under Gilmore, the analysis ends if
the trial court finds that defendant failed to meet his initial
burden of establishing a prima facie case of purposeful
discrimination. However, as a practical matter, the better
practice is to allow the State to make a record of its reasons
for exercising its peremptory challenges, especially where, as
here, the prosecutor offers to do so. Because this did not
occur there was sufficient support for the initial remand
ordered by the Appellate Division. Of course, given what
occurred on remand and the extreme remedy imposed by the
Appellate Division thereafter, our analysis does not end here.
On remand, the prosecutor presented race-neutral reasons
for excusing each African-American prospective juror, reminded
25
the court that the final composition of the empaneled jury
included a higher percentage of African Americans than the
venire, and explained that the State’s trial strategy benefited
from having African-American jurors because two of the three
victims in this case were also African American. When asked to
respond, defense counsel replied by acknowledging the general
accuracy of the prosecutor’s representations based on the trial
record, and that it had nothing more to add, emphasizing that it
was disadvantaged by the lapse in time and lack of notes from
defendant’s trial counsel.11 Balancing the State’s
representations, which the court found to be credible and
reasonable, against defense counsel’s failure to point to any
facts to support his argument of purposeful discrimination, the
trial court determined that defendant did not carry his ultimate
burden under Gilmore and denied defendant’s application.
Nevertheless, on appeal from the remand hearing, the
Appellate Division found that the trial court failed to advance
the “third critical step in the Gilmore analysis” and,
furthermore, that “[t]he transcript of the jury selection
11Defense counsel’s contention that he was at a disadvantage
because of the passage of time and the lack of notes from
defendant’s trial counsel who certified that he had no notes or
recollection of the jury selection process, does not excuse
defendant’s responsibility to demonstrate, by a preponderance of
the evidence, that the prosecution “exercised its peremptory
challenges on constitutionally-impermissible grounds of presumed
group bias.” Gilmore, supra, 103 N.J. at 539.
26
process suggests that the State’s proffered explanations may not
have been evenly applied.” Based on those purported failures,
and relying on our prior decision in Osorio, the panel reversed
defendant’s convictions and remanded for a new trial.
In Osorio, we held that a proper Gilmore analysis must
include a careful weighing of whether the reasons proffered for
the challenges were applied even-handedly to all prospective
jurors, against a consideration of the overall pattern of the
State’s use of peremptory challenges and the composition of the
jury ultimately empaneled. 199 N.J. at 506-07. This analysis
presumes that a defendant will present information beyond the
racial makeup of the excused jurors. The Appellate Division
found in Osorio, and we agreed, that the seven years since jury
selection made remand useless to resolve the factual issues
raised by defense counsel –- namely, that the prosecutor’s
representations about the jurors peremptorily stricken were
inaccurate. Id. at 508. Consequently, our focus in Osorio was
on the failure of the trial court to address the challenges
during the jury selection process while each party’s
recollection was fresh. Id. at 507-08.
In this case, in order to justify vacating defendant’s
conviction and remanding the matter for a new trial, the
Appellate Division ignored the trial court’s credibility
findings, canvassed the record to find an “example” of the
27
prosecutor’s supposed uneven application of peremptory
challenges, and misread and misapplied Osorio’s requirement that
a defendant carry the ultimate burden of persuasion under
Gilmore. Like Osorio, several years have elapsed between
defendant’s trial and remand by the Appellate Division, and
several more have gone by since defendant’s second appeal.
However, unlike in Osorio, defendant failed to present to the
remand court, the Appellate Division, or this Court any factual
contentions concerning any of the prospective jurors.
Additionally, the reasons given by the prosecutor for exercising
her peremptory challenges against seven African-American
prospective jurors did not involve disputed facts that could not
be resolved by the record.
The present case differs from Osorio in two additional
respects. First, the remand court here compared the racial
composition of the venire to the empaneled jury. Second, the
remand court in this case gave defendant an opportunity, in
response to the State’s explanations, to provide information
beyond the fact that seven of the nine peremptory challenges
were against African-American prospective jurors. That
defendant was unable to do so supports the court’s conclusion
that defendant failed to carry his ultimate burden and, under
our deferential standard of review, militates against the
Appellate Division’s reversal.
28
In light of defense counsel’s responses, the remand court
here would have had to conduct an independent, unassisted
investigation of the record in order to undertake the analysis
required by Osorio because defendant did not present any
information or point to any part of the record that would
facilitate such an analysis. Nothing in Gilmore or Osorio
placed the onus on the court to comb the record for instances
where a juror selected provided answers similar to the reasons
the State proffered for its use of a peremptory challenge; it is
the defendant’s obligation to do so.
The perils of such a belated review of the record are
highlighted here, where the Appellate Division accused the State
of administering its challenges unevenly. To support this
accusation, the panel culled through the record and located a
single instance in which it found the prosecutor may have
dismissed an African American from the venire while choosing not
to remove a similarly situated prospective juror whose race was
not reflected in the record. Setting aside our reservations
about this practice, the panel’s underlying assumption that the
juror in question was not a member of a cognizable group appears
to have been incorrect. As the State noted in its supplemental
petition to this Court, that juror who was seated was, in fact,
also African American. Moreover, the acknowledged failure of
defendant to counter any of the prosecutor’s suggestions or
29
raise an “uneven application” argument made it impossible for
the court to “include in its findings any of the third-step
considerations” outlined in Osorio. Indeed, such an analysis of
the parties’ contentions would have provided no more information
than is contained in the trial and remand records.
As we stated in Osorio, the emphasis must be on properly
resolving this issue in a timely manner -- ideally during the
course of the jury-selection process. Osorio, supra, 199 N.J.
at 508-09. Accordingly, a contemporaneous review is most
conducive to resolution of those challenges because a detailed
record and the parties’ own recollections are vital to a proper
Gilmore analysis. The development of such a record requires
that all strikes by the State and defendant be documented in
sufficient detail to facilitate appellate review; it is the
trial court’s burden to see that this is done.
Here, however, no facts were at issue that could have been
resolved by a timely resolution of defendant’s Gilmore
challenge. Moreover, the prosecutor’s race-neutral reasons for
striking the jurors were found by the court to be credible and
were supported by the record. In light of the remand record,
and pursuant to our deferential standard of review, we conclude
that the court conducted an adequate Gilmore third-step
analysis, and its findings were not erroneous. Therefore,
reversal and remand for a new trial was not appropriate.
30
IV.
For the reasons set forth above, the judgment of the
Appellate Division is reversed, and the matter is remanded for
the Appellate Division to consider defendant’s sentencing claim.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
SOLOMON’s opinion. JUSTICE FERNANDEZ-VINA did not participate.
31
SUPREME COURT OF NEW JERSEY
NO. A-47 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SALADIN THOMPSON,
Defendant-Respondent.
DECIDED March 8, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
CHECKLIST REINSTATE/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA ---------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6