State v. Amir Andrews (069594)

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 v. Amir A. Andrews (A-105-11) (069594)
Argued April 30, 2013 -- Decided October 28, 2013
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court revisits the bright-line rule established in State v. Gilmore, 103 N.J. 508 (1986) for
remedying the use of constitutionally impermissible peremptory challenges and considers whether trial judges
should be given more flexibility in fashioning a remedy.
During jury selection in the criminal prosecution of defendant Amir A. Andrews, the prosecutor
complained that defendant was impermissibly striking jurors based on their race. The prosecutor stated that he did
not want to lose the whole panel and that he was satisfied with the panel, but felt compelled to object. The trial
court found that the State established a prima facie case of exclusion based on race and informed defense counsel
that he must articulate some rational, articulable reason for excluding jurors. When defense counsel could not
provide a sufficient reason for his subsequent use of a peremptory challenge, the judge seated the challenged juror.
The court completed jury selection, the trial proceeded, and the jury found defendant guilty. Defendant appealed,
arguing, among other things, that that the trial court resorted to an improper remedy for the unconstitutional
exclusion of a potential juror. The Appellate Division agreed, reversed the jury’s verdict and remanded for a new
trial. The panel determined that reseating the impermissibly struck juror was in direct contravention of Gilmore, in
which the Court determined that once a judge finds an impermissible basis for a peremptory challenge, the judge is
obligated to discharge the entire jury panel and begin the jury selection process anew. The Court granted the State’s
petition for certification. 210 N.J. 109 (2012).
HELD: Gilmore’s single, bright-line remedy has proven ineffective to fully and fairly respond to the use of
constitutionally impermissible peremptory challenges. The Court modifies Gilmore and hereby permits trial judges to
choose from a broader set of remedies to address the impermissible use of peremptory challenges.
1. In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that it is unconstitutional for a
prosecutor to peremptorily challenge potential jurors on account of their race. The Supreme Court gave state and
federal courts the discretion to fashion their own remedies for the use of constitutionally impermissible peremptory
challenges. In State v. Gilmore, 103 N.J. 508 (1986), the Court held that the New Jersey Constitution prohibits
peremptory challenges based on religious principles, race, color, ancestry, national origin, or sex. The Court recognized
that preventing discrimination during jury selection protects the impartiality of the jury’s deliberation and the right of
each citizen to serve on a jury. Informed by the remedy established in People v. Wheeler, 583 P.2d 748, 761 (Cal.
1978), the Gilmore Court elected to establish a single, bright-line remedy to redress the unconstitutional exclusion of a
potential juror. That remedy is to dismiss the already selected jurors, quash any remaining venire, and start the jury
selection process anew. (pp. 11-14)
2. Other jurisdictions and some commentators have observed that the Gilmore remedy tends to reward the offending
party’s bad conduct and wastes judicial resources. Two appellate decisions suggest that New Jersey’s adherence to a
single remedy has made it difficult for trial courts to fairly and effectively respond to Batson/Gilmore challenges. In
State v. Scott, 309 N.J. Super. 140 (App. Div. 1998), although defense counsel believed that the State was using
peremptory challenges to strike jurors based on race, because defense counsel did want to lose the already seated jurors
or have the remaining venire quashed, and the trial and appellate courts found that no other remedy was available
pursuant to Gilmore, the Gilmore rule ultimately permitted the taint of discrimination to permeate the jury. In State v.
Chevalier, 340 N.J. Super. 339 (App. Div. 2001), the trial court reseated three jurors that were improperly excluded
based on gender and the Appellate Division reversed, finding that the trial court’s remedy was improper because it
failed to follow the Gilmore rule. These cases demonstrate that dismissing the venire and restarting jury selection may,
in some instances, neither vindicate the rights of the wrongfully excluded jurors nor achieve a fair result. (pp. 14-18)
3. Virtually all other jurisdictions allow trial judges broader discretion in fashioning remedies for Batson violations
than permitted in New Jersey. For example, the New York Court of Appeals has held that trial judges can seat
improperly stricken jurors and force offending parties to forfeit their improperly executed peremptory challenges.
People v. Luciano, 890 N.E.2d 214 (N.Y. 2008). Moreover, Wheeler, the opinion that informed Gilmore’s single
remedy, has been modified by People v. Willis, 43 P.3d 130 (Cal. 2002). Willis discussed several permissibly remedies
to Batson violations, including assessment of sanctions against counsel, reseating improperly discharged jurors if they
are available to serve, and allowing the innocent party additional peremptory challenges if the improperly struck jurors
have left. Willis also emphasized that an alternate remedy must be preceded by the complaining party’s waiver of the
traditional remedy and identified entertaining challenges at sidebar as a means of minimizing the possibility of juror
bias. Furthermore, Gilmore’s single, bright-line remedy does not necessarily deter unconstitutional behavior.
Impermissible challenges may persist with a new jury panel. In addition, by starting the jury selection process anew,
the offending party will be placed in the same or better situation than before the improper conduct. (pp. 18-27)
4. A confluence of factors counsels departure from Gilmore’s single, bright-line remedy. Those factors include that
the Gilmore rule has impeded New Jersey courts from responding fairly and effectively to Batson/Gilmore
challenges, that most jurisdictions have adopted a more flexible approach, that the California decision that informed
Gilmore has been modified, and that the Gilmore remedy does not necessarily deter unconstitutional conduct. Trial
courts may now employ other remedies to address the use of constitutionally impermissible peremptory challenges.
A trial court may reseat the juror(s) with the consent of the aggrieved party and require the offending party to forfeit
his or her improper peremptory challenge(s). That remedy vindicates the rights of the improperly excluded juror,
deters misconduct, and sends a message that discriminatory conduct will not be tolerated. Before implementing that
remedy, however, the trial court should ensure that the juror is available for reseating, should determine whether any
inquiry of the juror is needed to ensure that he or she will be able to participate fairly, and should consider whether a
cautionary instruction should be given. The trial court may also require that juror challenges occur outside of the
jurors’ presence at the first suggestion of improper use of peremptory challenges. That remedy will avoid
prejudicing parties making challenges in open court without imposing the undue burden of requiring that all
challenges occur at sidebar. The trial court may also award additional peremptory challenges to the aggrieved party,
particularly when wrongfully dismissed jurors are no longer available. Although awarding more peremptory
challenges will not vindicate the rights of the wrongfully excluded jurors, it will disincentivize counsel’s improper
use of peremptory challenges. Finally, the Gilmore remedy remains available. (pp. 28-31)
5. The Court modifies Gilmore and hereby permit trial judges to choose from the following remedies to address
Batson/Gilmore violations on a case-by-case basis: dismissing the empaneled jury member(s) and the venire and
beginning jury selection anew; reseating the wrongfully excused juror(s); reseating the wrongfully excused juror(s)
and ordering forfeiture by the offending party of his or her improperly exercised peremptory challenge(s); permitting
trial courts to require challenges to prospective jurors outside the presence of the jury; granting additional
peremptory challenges to the aggrieved party; or a combination of these remedies as the individual case requires.
Every decision to invoke a remedy must assure a fair trial to all and elimination of the taint of discrimination.
Because the remedy chosen by the trial judge in this case was contrary to the governing law at the time, and the trial
judge failed to explain why the remedy would redress the impermissible challenge, defendant is entitled to a new
trial. (pp. 31-33)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED
for a new trial.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-105 September Term 2011
069594
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
AMIR A. ANDREWS,
Defendant-Respondent.
Argued April 30, 2013 – Decided October 28, 2013
On certification to the Superior Court,
Appellate Division.
Stephen A. Pogany, Special Deputy Attorney
General Acting Assistant Prosecutor, argued
the cause for appellant (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney).
Lon Taylor, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
Frank J. Ducoat, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Jeffrey S. Chiesa,
Attorney General, attorney).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
In 1986, the United States Supreme Court held that a
prosecutor could not peremptorily challenge potential jurors
solely on account of their race. Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Subsequently, the
1
Court held that it is also unconstitutional for the defendant in
a criminal case to utilize peremptory challenges to remove
jurors on the basis of race, Georgia v. McCollum, 505 U.S. 42,
112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), or on the basis of
gender, J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 114 S. Ct.
1419, 128 L. Ed. 2d 89 (1994). The same prohibition applies to
all parties in civil cases. Edmonson v. Leesville Concrete Co.,
500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991).
In 1986, this Court determined that a prosecutor may not
exercise a peremptory challenge to remove members of a
cognizable group based on a presumed group bias. State v.
Gilmore, 103 N.J. 508 (1986). The prohibition also applies to
peremptory challenges by defendants, State v. Johnson, 325 N.J.
Super. 78 (App. Div. 1999), certif. denied, 163 N.J. 12 (2000),
and extends to all parties in civil cases, Russell v. Rutgers
Cmty. Health Plan, Inc., 280 N.J. Super. 445 (App. Div.),
certif. denied, 142 N.J. 452 (1995). The remedy for such
conduct is to dismiss the already selected jurors, quash any
remaining venire, and start the jury selection process anew.
Here, we revisit that single, bright-line remedy
established by Gilmore and determine that trial judges should be
given more flexibility in fashioning a remedy to address the
constitutionally impermissible use of peremptory challenges
condemned by the United States Supreme Court in Batson and by
2
this Court in Gilmore. In addressing a Batson/Gilmore
violation, trial judges may choose from a broader set of
remedies fashioned to respond to the circumstances of the
individual case. The choice of remedy must be guided by the
twin goals of assuring a fair trial and redressing the
constitutionally impermissible behavior.
I.
On October 3, 2006, two women were shot at a local market
in Newark. An Essex County grand jury returned an indictment
charging defendant Amir A. Andrews with nine offenses, including
conspiracy to commit attempted murder1 and aggravated assault,
two counts of attempted murder, two counts of second degree
aggravated assault, various weapons offenses, and witness
tampering. Following trial, a jury found defendant guilty of
witness tampering but failed to reach a verdict on the remaining
counts.
A second trial commenced several months later. During jury
selection, defendant exercised a peremptory challenge to exclude
a white juror. The prosecutor approached the bench and in a
sidebar conference with the trial judge and defense counsel
complained that defendant was impermissibly striking jurors
based on their race. The prosecutor also stated that “the last
1
The State later amended the indictment to conspiracy to commit
murder.
3
time we picked a jury we had this issue.” Noting that defendant
had struck seven white jurors and two African-American jurors,
the trial judge found that the State had established a prima
facie case of using peremptory challenges to excuse jurors based
on their race. The prosecutor stated that he did not want to
“lose the whole panel,” that he was satisfied with the panel,
but felt compelled to object.
Defendant’s attorney stated that there was a valid reason
for excusing the seven white jurors and started to explain why
he had excused a particular juror when the trial judge
interrupted. The judge stated that he was satisfied that “there
is a pattern” and that the State established “a prima facie case
of exclusion based on race.” He informed defense counsel that
he must articulate “some rational, articulable reason for
excluding those jurors that does not relate to their race.”
When defense counsel did not provide a reason other than “my
ambivalence” towards the last excused juror, the trial judge
asked the juror to remain.
Defense counsel promptly objected. He argued that the
reseated juror might be biased against defendant on account of
the failed attempt to exercise a peremptory challenge. The
prosecutor proposed that the juror be excused, but defendant
must explain the reason for using any other peremptory
challenge. The trial judge accepted that proposal.
4
Moments later, defendant exercised a peremptory challenge
to excuse a Hispanic juror. At a sidebar conference, defense
counsel stated that defendant wanted to excuse the juror because
defendant did not believe the prospective juror would be fair
because of “what [the prospective juror] does in his spare
time.” When defendant could not identify those spare time
activities, the trial judge stated that defendant could not
excuse the juror. The judge seated the juror over the objection
of defense counsel and completed jury selection.
Out of the presence of the jury, defendant explained his
reason for seeking to excuse the Hispanic juror. He explained a
person who lived in the juror’s town “do[es]n’t know what goes
on.” Defendant eventually accepted the decision to seat the
last juror he had sought to excuse but asked the trial judge to
question the juror whether the failed attempt to excuse him
would influence his evaluation of the evidence. Explaining that
such an inquiry would draw attention to the issue, the trial
judge denied the request.
The trial proceeded and on October 23, 2008, the jury found
defendant guilty of all charges: second degree conspiracy to
commit murder and aggravated assault, two counts of first degree
attempted murder, two counts of second degree aggravated
assault, third degree unlawful possession of a weapon (a
handgun), and two counts of second degree possession of a weapon
5
for an unlawful purpose. Defendant is serving an extended term
of life in prison subject to a No Early Release Act2 period of
parole ineligibility.
II.
Defendant appealed to the Appellate Division. He argued
that the trial court improperly found that defendant had
exercised race-based peremptory challenges and erred by
requiring defendant to provide a race neutral reason for
excluding subsequent white jurors. Further, defendant
maintained that the trial court resorted to a remedy that was
contrary to law. Defendant also asserted that other trial
errors required a new trial and argued that the sentence was
excessive.
In an unpublished opinion, the Appellate Division reversed
the jury’s verdict and remanded for a new trial. The Appellate
Division determined that the trial court “neglected to make
adequate findings with respect to the defense attorney’s alleged
discriminatory use of peremptory challenges” and “failed to
conform to the then-extant Osorio[3] paradigm.” The appellate
panel reasoned the trial court’s determination that the State
presented a prima facie case of exclusion based on race was
premature because the court did not allow defendant to present
2
N.J.S.A. 2C:43-7.2.
3
State v. Osorio, 199 N.J. 486 (2009).
6
individual-by-individual, race-neutral justifications for all of
his peremptory challenges. Addressing the remedy selected by
the trial court, the panel determined that reseating the
Hispanic juror was in direct contravention of this Court’s
holding in Gilmore, supra, 103 N.J. at 539, in which this Court
determined that once a judge finds an impermissible basis for a
peremptory challenge, the judge is obligated to discharge the
entire jury panel and begin the jury selection process anew.
The panel also commented that any alteration of the remedy for
the constitutionally impermissible use of peremptory challenges
was “best left” to the Supreme Court. The Appellate Division
reversed defendant’s conviction and remanded for a new trial.
This Court granted the State’s petition for certification. 210
N.J. 109 (2012).
III.
A.
The State contends that this Court should re-evaluate the
remedy set forth in Gilmore. The State argues that the bright-
line rule set forth in Gilmore is too inflexible, improperly
rewards unconstitutional behavior, and wastes judicial
resources. The State emphasizes that most jurisdictions have
adopted more flexible remedies for Batson violations and argues
that this Court should follow suit. The State concedes that the
trial judge’s actions in this case contravene Gilmore’s bright-
7
line rule, but contends that the judge’s response to the
discriminatory challenges –- acquiescing to the prosecutor’s
request to preserve the then-seated jurors but requiring
defendant to provide race-neutral reasons for excusing future
jurors –- was “far more reasonable under the circumstances and
best exemplified the reasoning behind the United States Supreme
Court’s decision in Batson.”
The State also argues that the Gilmore remedy improperly
rewards unconstitutional behavior, as it allows offending
parties to manipulate proceedings to their advantage, while
wasting judicial resources and eroding public confidence in the
justice system. The State also asserts that consent or waiver
from the aggrieved party should be a necessary prerequisite to
dismissing the entire venire.
B.
The Attorney General, appearing as amicus curiae, similarly
argues that this Court should overrule Gilmore’s single remedy
and provide more flexibility to trial judges. The Attorney
General notes that nearly all other jurisdictions have granted
trial judges discretion to remedy unconstitutional use of
peremptory challenges. Furthermore, the Attorney General
contends that New Jersey courts have repeatedly recognized the
inherent difficulties of enforcing a single, bright-line remedy.
Accordingly, the Attorney General recommends alternative
8
remedies that should be made available to trial courts in the
future, such as allowing improperly removed jurors to be
reseated and requiring offending parties to forfeit their
improperly used peremptory challenges; granting trial judges
discretion to require challenges to be made at sidebar to avoid
prejudicing parties making unsuccessful challenges in court; and
permitting courts to grant additional peremptory challenges to
aggrieved parties.
C.
Defendant argues that neither the State nor the Attorney
General provided sufficient “special justification” to allow
this Court to depart from its binding precedent. Defendant
argues that trial judges risk tainting the jury with bias toward
violating parties by reseating improperly excused jurors.
Defendant acknowledges that safeguards discussed by the
Attorney General, such as instructing the jury after reseating
an improperly excused juror, could prevent bias, but he notes
that no such instruction was given in this case. Defendant
asserts the possibility that the reseated juror exhibited animus
toward him is particularly likely in this case since the court
interjected after defendant excluded eight white jurors.
Accordingly, defendant contends, even if this Court adopted the
State’s and the Attorney General’s recommendations to expand
trial judges’ discretion in fashioning remedies to Batson
9
violations, the improperly excused juror should not have been
reseated in this particular case due to the likely bias.
Assuming an alternative remedy is appropriate, defendant
asserts that two minimum requirements should be met: 1) notice
to the offending party of precisely what sanctions will be
imposed should the violative behavior continue; and 2) the
unequivocal waiver or consent to the use of an alternative
remedy by the aggrieved party. Additionally, defendant urges
that even if the Gilmore remedy is expanded, courts should be
required to start anew, at least once, prior to employment of
alternative remedies.
Defendant notes that the trial judge here gave no
forewarning of the “bizarre remedy” that defendant provide race-
neutral justification for subsequently excluding white jurors or
risk reseating improperly excluded jurors, and he argues that
such remedy was unduly punitive. Defendant also notes that the
prosecutor did not unequivocally consent to the alternative
remedy in this case.
Defendant next argues that even if this Court finds it
necessary to expand the remedies, it should affirm the Appellate
Division’s decision to grant a new trial based on the panel’s
determination that there was an insufficient basis to find a
prima facie case of discrimination. Defendant argues that the
trial judge found a “pattern” of discrimination based solely on
10
the number of white jurors that were excluded and that the judge
erred by not permitting defense counsel to provide race-neutral
reasons for any of the seven uncontested peremptory challenges
previously used to exclude white jurors. As such, according to
defendant, this Court should at least affirm the portion of the
Appellate Division’s decision holding that the trial court erred
by failing to adhere to the Gilmore/Osorio three-step analysis
to identify Batson violations.4
IV.
In Batson, supra, the United States Supreme Court
determined that it is unconstitutional for a prosecutor to
exercise peremptory challenges in a manner that discriminates on
the basis of race “or on the assumption that black jurors as a
group will be unable impartially to consider the State’s case
against a black defendant.” 476 U.S. at 88, 106 S. Ct. at 1719,
90 L. Ed. 2d. at 83.
In Gilmore, supra, this Court held that Article I,
paragraphs 5, 9, and 105 of the New Jersey Constitution prohibit
4
The issue before this Court concerns the remedy for
Batson/Gilmore violations, not the three-step analysis to
identify whether a violation occurred. Osorio, supra, 199 N.J.
at 492-93.
5
Article I, paragraph 5 provides that “[n]o person shall be
denied the enjoyment of any civil . . . right, nor be
discriminated against in the exercise of any civil . . . right,
. . . because of religious principles, race, color, ancestry or
national origin.” N.J. Const. art. I, ¶ 5. Paragraph 9 asserts
that “[t]he right to trial by jury shall remain inviolate . . .”
11
prosecutors from exercising peremptory challenges to
discriminate against potential jurors on the basis of religious
principles, race, color, ancestry, national origin, or sex. 103
N.J. at 524. We reasoned that “[the] right to a trial by an
impartial jury, in our heterogeneous society where a defendant’s
‘peers’ include members of many diverse groups, entails the
right to trial by a jury drawn from a representative cross-
section of the community.” Ibid. Adopting the California
Supreme Court’s justification for the representative cross-
section rule, as set forth in People v. Wheeler, we held that
the jury system seeks “‘to achieve an overall impartiality by
allowing the interaction of diverse beliefs and values the
jurors bring from their group experiences.’” Gilmore, supra,103 N.J. at 525 (quoting People v. Wheeler, 583 P.2d 748, 761
(Cal. 1978), overruled in part by People v. Willis, 43 P.3d 130(Cal. 2002)). Furthermore, we recognized that preventing race-
based discrimination during the jury selection process protects
not only the integrity and impartiality of the jury’s
deliberation but also the right of each citizen to serve on a
jury. Ibid. Justice Garibaldi stated, “Article I, paragraph 5
implicates not only the defendant’s civil rights but also those
N.J. Const. art. I, ¶ 9. Finally, paragraph 10 provides that
“[i]n all criminal prosecutions the accused shall have the right
to a speedy and public trial by an impartial jury.” N.J. Const.
art. I, ¶ 10.
12
of citizens generally –- and, historically, one of the rights
and obligations of citizenship has been to participate in the
administration of justice by serving on grand and petit juries.”
Ibid.In Batson, supra, the Supreme Court did not prescribe a
remedy. In fact, it gave state and federal courts the
discretion to fashion their own remedies:
In light of the variety of jury selection
practices followed in our state and federal
trial courts, we make no attempt to instruct
these courts how best to implement our
holding today. For the same reason, we
express no view on whether it is more
appropriate in a particular case . . . for
the trial court to discharge the venire and
select a new jury from a panel not
previously associated with the case or to
disallow the discriminatory challenges and
resume selection with the improperly
challenged jurors reinstated on the venire.
[476 U.S. at 99 n.24, 106 S. Ct. at 1725
n.24, 90 L. Ed. 2d. at 90 n.24. (internal
citations omitted).]
State courts have interpreted this in different ways.6
6
Some state courts have read this language to permit only the
two identified remedies and permit the trial judge to choose
between the two remedies. See, e.g., Coleman v. Hogan, 486
S.E.2d 548, 549-50 (Va. 1997) (holding either remedy is
appropriate depending on circumstances of each case); Ezell v.
State, 909 P.2d 68, 72 (Okla. Crim. App. 1995) (same). Some
state courts permit only one of the remedies identified in
Batson. See, e.g., State v. McCollum, 433 S.E.2d 144, 159 (N.C.
1993) (holding venire is discharged and jury selection resumes
with new panel when there is Batson violation), cert. denied,
512 U.S. 1254, 114 S. Ct. 2784, 129 L. Ed. 2d 895 (1994); State
v. Grim, 854 S.W.2d 403, 416 (Mo.) (directing improperly
13
In Gilmore, this Court elected to establish a single,
bright-line remedy to redress improper exclusion of potential
jurors following a Batson challenge. 103 N.J. at 539. Where an
aggrieved party demonstrates that opposing counsel improperly
exercised peremptory challenges on constitutionally
impermissible grounds of presumed group bias,
the court must then conclude that the jury
as constituted fails to comply with the
representative cross-section requirement and
it must dismiss the jurors thus far
selected. So too it must quash any
remaining venire . . . . Upon such
dismissal a different venire shall be drawn
and the jury selection process may begin
anew.
[Ibid. (quoting Wheeler, supra, 588 P.2d at
765).]
Based on our research, it appears that New Jersey is the only
jurisdiction that adheres to the single remedy of striking the
venire and starting anew.
stricken juror should be reseated), cert. denied, 510 U.S. 997,
114 S. Ct. 562, 126 L. Ed. 2d 462 (1993).
The remedy has been addressed by statute in Texas and court
rule in Minnesota. In Texas, the entire venire must be
discharged whenever the trial court finds that the prosecutor
improperly challenged jurors on the basis of race. Tex. Code
Crim. Proc. art. 35.261(b) (2013). The Minnesota Supreme Court
adopted a rule that permits the trial judge to reseat the
impermissibly challenged juror or to dismiss the venire and
resume with a new venire “based upon its determination of what
the interests of justice and a fair trial to all parties in the
case require.” Minn. R. Crim. P. 26.02, subd. (7)(4) (2013).
14
This remedy is not free from criticism. Other
jurisdictions and some commentators have observed that the
Gilmore remedy tends to reward bad conduct by the offending
party and contributes to a waste of judicial resources. See,
e.g., Jason Mazzone, Batson at Twenty-Five: Perspectives on the
Landmark, Reflections on its Legacy, 97 Iowa L. Rev. 1613, 1619-
20 (2012); Emily C. Jeffcott and Mikal C. Watts, What’s Required
to Remedy Juror Discrimination? A Brief Discussion on Batson
and its Available Remedies, 13 Scholar 615, 626 n.56 (2011).
Undoubtedly, excusing an entire jury panel and starting over
with a new panel takes additional time, which intrudes on the
ability of the trial court and counsel to address other matters.
A party’s reluctance to lose a satisfactorily composed panel may
inhibit an objection to constitutionally impermissible conduct
by another and permit a tainted panel to decide a case. Two
appellate decisions suggest that our adherence to a single
remedy has made it difficult for trial courts in this state to
fairly and effectively respond to Batson/Gilmore challenges.
In State v. Scott, 309 N.J. Super. 140, 148-49 (App. Div.)
certif. denied, 154 N.J. 610 (1998), defense counsel asked the
trial judge to compel the State to provide non-race-based
rationales for the State’s use of peremptory challenges striking
four African-American jurors from the venire. Defense counsel
explained that he did not wish to make a formal Gilmore
15
challenge because he did not want to risk losing the already
seated jurors, nor did he want the remaining venire quashed.
Id. at 149. The trial court, however, denied the defendant’s
request, holding that the court could only compel the State to
disclose its reasoning for the contended exclusions after a
formal Gilmore challenge had been lodged, in which case the
defendant would be required to suffer the consequence of
starting jury selection anew if the State’s reasons were found
unsatisfactory. Ibid. On appeal, the Appellate Division
recognized that other jurisdictions endow judges with more
flexibility; however, the panel explained that it was limited by
this Court’s decision in Gilmore. Id. at 151-52.
In Scott, the inflexibility of the Gilmore rule ultimately
permitted the taint of discrimination to permeate the jury.
Because the complaining party, the defendant, did not want to
lose the jurors he had already chosen to try the case, he could
do nothing despite disputing the state’s discriminatory use of
peremptory challenges. As discussed by the Attorney General in
this case, another remedy, such as reseating those found to have
been improperly struck, would have both vindicated the rights of
the potential juror and would have furthered defendant’s right
to be tried by a fair and impartial jury free of discriminatory
taint.
16
In State v. Chevalier, 340 N.J. Super. 339, 345 (App.
Div.), certif. denied, 170 N.J. 386 (2001), the trial court
found that defense counsel had improperly excluded jurors on the
basis of their gender. At the defendant’s second trial,
following a mistrial in which the defendant had improperly used
peremptory challenges, the judge found that once again defense
counsel impermissibly excluded three jurors on the basis of
gender. Ibid. Although the trial court acknowledged the single
remedy available as set forth in Gilmore –- starting the jury
selection anew with a different venire –- the judge declined to
take that course. Ibid. Instead, he reseated the three
impermissibly excluded jurors. Ibid. The judge explained that
he imposed that remedy due to various time constraints and
provided an instruction to the jurors to disregard the fact that
he had reseated the three jurors when deciding the outcome of
the case. Ibid. Subsequently, the empanelled jury convicted
the defendant. Id. at 346. The Appellate Division reversed,
finding that, as in Scott, despite the fact that the majority of
other jurisdictions grant trial courts discretion to impose
remedies short of starting jury selection anew, the court was
bound by this Court’s holding in Gilmore. Id. at 353.
Chevalier, like Scott and this case, demonstrates that
reseating improperly stricken jurors may, in certain
circumstances, better address concerns of fairness and judicial
17
economy. Dismissing the entire venire and resuming jury
selection with an entirely new venire may, in some instances,
neither vindicate the rights of the wrongfully excluded jurors
nor achieve a fair result. Instead, this may actually encourage
discriminatory behavior and do nothing to deter future abuses.
Over time, various remedies have been identified and
utilized by courts in other jurisdictions. In South Carolina, a
trial judge must first strike the venire and commence jury
selection with a new panel. State v. Jones, 358 S.E.2d 701, 704
n.3 (S.C. 1987), overruled in part by State v. Adams, 470 S.E.2d
366 (S.C. 1996) (modifying third step of Batson methodology to
determine whether party has exercised peremptory challenges in
constitutionally impermissible manner in accordance with Purkett
v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834(1995)). If a party continues to improperly exercise peremptory
challenges, the trial court may reseat the improperly excluded
jurors if the circumstances of the case warrant this remedy.
State v. Franklin, 456 S.E.2d 357, 360 (S.C.), cert. denied, 516
U.S. 856, 116 S. Ct. 160, 133 L. Ed. 2d 103 (1995).
Trial judges in New York and Pennsylvania may give
additional peremptory challenges to the party against whom the
peremptory challenges have been misused. People v. Perez, 829
N.Y.S.2d 61, 64 (App. Div. 2007); People v. Chin, 771 N.Y.S.2d
158, 159 (App. Div.), appeal denied, 778 N.Y.S.2d 780 (2004);
18
Commonwealth v. Hill, 727 A.2d 578 (Pa. Super. Ct.), appeal
denied, 747 A.2d 898 (1999). This remedy is appropriate if the
wrongly removed juror has been excused and cannot be reseated.
A trial court may also order forfeiture of peremptory challenges
in addition to reseating the wrongfully excused juror. People
v. Luciano, 890 N.E.2d 214, 216-19 (N.Y. 2008). In
Massachusetts, a trial judge may simply overrule the
constitutionally impermissible challenge. Commonwealth v.
Fruchtman, 633 N.E.2d 369, 371 (Mass.), cert. denied, 513 U.S.
951, 115 S. Ct. 366, 130 L. Ed. 2d 319 (1994). Sanctions, such
as a monetary fine, have been imposed for repeated violations.
Willis, supra, 43 P.3d at 137. Declaration of a mistrial may be
an appropriate remedy when the Batson violation is established
on a post-trial motion. Minniefield v. State, 539 N.E.2d 464,
466 (Ind. 1989). On the other hand, neither dismissing the
criminal charges, cf. Commonwealth v. Burke, 781 A.2d 1136, 1144
(Pa. 2001) (“dismissal of charges is an extreme sanction that
should be imposed sparingly or only in cases of blatant
prosecutorial misconduct”), nor permitting a white juror to be
struck as a remedy to the improper discharge of five black
jurors, State v. Hampton, 163 S.W.3d 903, 904 (Mo. 2005), were
permitted as appropriate remedies. In addition, giving the
improperly excluded juror the choice of serving on the jury or
19
being excused is not an acceptable remedy. Woodson v. Porter
Brown Limestone Co., 916 S.W.2d 896, 905-06 (Tenn. 1996).
The 2008 New York Court of Appeals decision in People v.
Luciano is particularly instructive on the principles that
should inform the application of an alternate remedy. In
Luciano, supra, the court held it was appropriate to allow trial
judges to seat improperly stricken jurors and force offending
parties to forfeit their improperly executed peremptory
challenges. 890 N.E.2d at 217. In doing so, the court
considered the harm to the rights of jurors by unconstitutional
exclusions and the harm to society “by impairing the integrity
of the criminal justice process.” Id. at 218. The court
determined that forfeiture furthers the prevention of such harms
through deterrence and reasoned that disallowing forfeiture of
challenges puts the offending party in the same position as
before the Batson violation. Ibid. Furthermore, the court held
that “[f]orfeiture promotes the spirit of Batson, signaling to
litigants –- and to the jury –- that discrimination will not be
tolerated.” Id. at 219.
Several federal appellate courts have similarly granted
trial judges more flexibility in fashioning remedies to Batson
challenges or recognized the discretion afforded by state courts
to trial judges fashioning an appropriate remedy. See Rice v.
White, 660 F.3d 242, 258 (6th Cir. 2011) (recognizing judicial
20
discretion, but disapproving subsequent selection of African-
American juror to cure taint caused by prior purposeful
discrimination), cert. denied, ___ U.S. ___, 132 S. Ct. 2751,
183 L. Ed. 2d 630 (2012); United States v. Walker, 490 F.3d
1282, 1294-95, 1295 n.14 (11th Cir. 2007) (approving
reinstatement of four improperly struck jurors and declining to
award additional peremptory challenges to replace “lost”
challenges), cert. denied, 552 U.S. 1257, 128 S. Ct. 1649, 170
L. Ed. 2d 354 (2008); United States v. Ramirez-Martinez, 273
F.3d 903, 910 (9th Cir. 2001) (approving reseating improperly
excused jurors and returning peremptory strikes to offending
party, finding remedy appropriate to redress nature and scope of
constitutional violation), cert. denied, 537 U.S. 930, 123 S.
Ct. 330, 154 L. Ed. 2d 226 (2002), overruled in part by United
States v. Lopez, 484 F.3d 1186 (9th Cir. 2007).
These alternate remedies are not beyond criticism. There
is always the possibility that a juror who is reseated after
being wrongfully excluded may harbor bias against the offending
party. See, e.g., McCollum, supra, 433 S.E.2d at 159 (finding
it would be “extremely difficult” to ask improperly excluded
jurors to return to jury and render impartial verdict without
prejudice). Other selected jurors may be aware of the
constitutionally impermissible challenges of one party and
develop a bias towards the offending party. A vigilant trial
21
judge may obviate or minimize any possibility of taint by
conducting objections to a peremptory challenge at sidebar.
In each situation in which a trial judge is permitted to
choose among several remedies to redress the use of peremptory
challenges in a constitutionally impermissible manner, the judge
must fashion a remedy that best suits the individual case. In
every situation, the selected remedy must assure a jury free
from the taint of discrimination and a trial that is fair to all
parties.
V.
Both parties and the Attorney General urge the Court to re-
examine the use of the single, bright-line remedy announced in
Gilmore. Each refers to the passage of time, the decision by
the Supreme Court of California to modify People v. Wheeler, and
the actions of many other state and federal courts to identify
alternate remedies and leave the choice of a remedy to the
discretion of the trial judge. The relief requested, however,
requires this Court to alter binding precedent.
We must acknowledge that Wheeler, supra, 585 P.2d 748, the
opinion that informed Gilmore, has been modified by Willis,
supra, 43 P.3d 130. In Willis, the California Supreme Court
confronted facts similar to this case. There, a trial judge
determined that the defendant had systematically used peremptory
challenges to exclude a specific class, namely white males, from
22
the jury. Id. at 133. As in this case, with the State’s
consent, the judge did not dismiss the entire venire. Id. at
133, 137. Rather, the judge kept the seated jurors and imposed
a monetary sanction, which was lifted after trial, on defense
counsel. Id. at 133. The California Supreme Court
distinguished Wheeler, stating that Wheeler did not involve a
situation where the improper group bias was exhibited by the
same party seeking dismissal and that it left open the question
of possible alternative remedies. Id. at 138. The court
overruled Wheeler to the extent it seemingly permitted a single
remedy and upheld the remedy fashioned by the trial judge. Id.
at 137-39. Justice Chin, writing for a unanimous court,
justified granting judges more discretion to remedy Batson
violations and noted several permissible remedies:
As the present case demonstrates, situations
can arise in which the remedy of mistrial
and dismissal of the venire accomplish
nothing more than to reward improper voir
dire challenges and postpone trial. Under
such circumstances and with the assent of
the complaining party, the trial court
should have the discretion to issue
appropriate orders short of outright
dismissal of the remaining jury, including
assessment of sanctions against counsel
whose challenges exhibit group bias and
reseating any improperly discharged jurors
if they are available to serve. In the
event improperly challenged jurors have been
discharged, some cases have suggested that
the court might allow the innocent party
additional peremptory challenges.
23
[Id. at 137.]
The Willis court emphasized that resort to an alternate
remedy must be preceded by a waiver by the complaining party of
“the usual remedy of outright dismissal of the remaining
venire.” Id. at 138. In addition, the Willis court identified
entertaining all challenges, for cause or peremptory, at sidebar
as a means of preventing or minimizing taint of the venire. Id.
at 137-38. Post-Willis, judges in California have been allowed
to choose between dismissing the entire venire and reseating the
improperly discharged juror in certain situations. See People
v. Mata, 302 P.3d 1039, 1040 (Cal. 2013); People v. Overby, 22
Cal. Rptr. 3d 233, 236-37 (Cal. Ct. App. 2004).
We also acknowledge the discretion afforded to trial judges
in most jurisdictions to redress exclusion of potential jurors
through the constitutionally impermissible use of peremptory
challenges. Virtually all states have granted trial judges
discretion to design remedies for Batson violations, even if the
choice of remedies is limited to striking the venire and
resuming jury selection with a new venire or reseating an
improperly stricken juror.
Many states have also granted trial courts considerably
more leeway than the two remedies identified in Batson to
fashion remedies to those challenges. See, e.g., Haschke v.
Uniflow Mfg. Co., 645 N.E.2d 392, 396 (Ill. App. Ct. 1994)
24
(vesting trial court with discretion to fashion appropriate
remedy, including mistrial); Fruchtman, supra, 633 N.E.2d at 373
(permitting judge to overrule constitutionally impermissible
challenge rather than strike venire and recommence jury
selection); State v. Holloway, 719 N.E.2d 70, 74 (Ohio Ct. App.
1998) (suggesting allocation of additional peremptory challenge
to party is permissible but only if court finds other party used
challenges in constitutionally impermissible manner), appeal
denied, 704 N.E.2d 579 (Ohio 1999); see also State v. Mooney,
105 P.3d 149, 152-53 (Alaska Ct. App. 2005) (emphasizing need to
challenge improper peremptory challenges to preserve ability to
fashion an appropriate remedy); State v. Morales, 804 A.2d 902,
920 n.27 (Conn. App. Ct.) (declaring state law does not mandate
that court must begin jury selection process anew when Batson
challenge is sustained), appeal denied, 810 A.2d 270 (Conn.
2002); Epps v. United States, 683 A.2d 749, 754-55 (D.C. 1996)
(observing trial judge in unique position to determine
credibility of explanations for challenges and this finding is
one that appellate court cannot make); Holmes v. State, 543
S.E.2d 688, 690-91 (Ga. 2001) (recognizing constitutional and
statutory authority of trial court to reinstate one juror and
remove another); Foster v. State, 111 P.3d 1083, 1088-89 (Nev.
2005) (acknowledging that majority of courts have delegated
determination of appropriate remedy for Batson violation to
25
discretion of trial judge); Woodson, supra, 916 S.W.2d at 906-07(recognizing trial court may decide what remedy to apply
depending on circumstances of case); Peetz v. State, 180 S.W.3d
755, 759-61 (Tex. App. 2005) (noting trial court may fashion an
appropriate remedy according to its discretion); State v. Velez,
140 P.3d 1219, 1233 (Utah 2006) (noting trial court can fashion
remedy if violation did occur); State v. Walker, 453 N.W.2d 127,
134-35 n.12 (Wis.) (declaring trial court should consider
factors in selecting whether proper remedy is to either
discharge venire and select new jury or reinstate juror), cert.
denied, 498 U.S. 962, 111 S. Ct. 397, 112 L. Ed. 2d 406 (1990),
abrogated in part by State v. Felix, 811 N.W.2d 775 (Wis. 2012).
As with all discretionary decisions, this authority is not
unbounded. In Jones v. State, the Maryland Supreme Court held
that judges have discretion to adopt a remedy but in doing so
should consider several factors in fashioning an appropriate
remedy, reasoning that:
Among the circumstances relevant to
determining what remedy is appropriate is
the fact that “a criminal defendant [has]
the constitutional right to have a jury
whose members are selected pursuant to
nondiscriminatory criteria . . . ‘and an
individual juror has the right not to be
excluded from a jury on account of race.’”
Ellerbee[ v. State], 450 S.E.2d [443,] at
448 [(Ga. Ct. App. 1994)] (quoting Lewis v.
State, [] 424 S.E.2d 626, 628 ([Ga.] 1993)).
This need to consider conflicting
constitutional rights, as, for example the
26
equal protection rights of the defendant and
the excluded juror, Batson, [supra,] 476
U.S. at 86-87, 106 S. Ct. at 1718, 90 L. Ed.
2d at 81, militates in favor of permitting
the trial court to tailor the remedy so as
to protect the rights of all the parties
concerned.
[683 A.2d 520, 529 (Md. 1996).]
Among the remedies identified in Jones to address
constitutionally impermissible use of peremptory challenges are
reseating an improperly stricken juror and/or disallowing an
unconstitutional challenge, or striking the entire venire and
resuming jury selection with a new panel. Id. at 528.
We must also recognize that the single, bright-line remedy
set forth in Gilmore does not necessarily deter unconstitutional
behavior. Batson’s purpose was to eliminate discrimination from
the jury selection process. See Luciano, supra, 890 N.E.2d at
218. As illustrated in Chevalier, supra, constitutionally
impermissible challenges may persist with a new panel or in
successive trials. 340 N.J. Super. at 345. Further, by
starting the jury selection process anew, the offending party is
generally placed in the same position as if there had been no
Batson/Gilmore violation. Ibid. In fact, Gilmore’s remedy may
place an offending party in a better situation than before he
improperly exercised his peremptory challenges, effectively
rewarding unconstitutional behavior. Moreover, mandating that
trial judges quash the entire venire and start jury selection
27
anew every time a party violates Batson/Gilmore places an
unreasonable burden upon the judicial system and can easily
waste judicial resources.
A confluence of factors counsels departure at this time
from the single, bright-line remedy imposed by Gilmore. Those
factors include modification of the California decision that
informed our holding in Gilmore, and the approach adopted by
most jurisdictions. Virtually all other jurisdictions allow
trial judges broader discretion in fashioning remedies for
Batson violations than permitted in New Jersey. In addition,
the Gilmore single remedy has impeded New Jersey’s courts from
responding fairly and effectively to Batson challenges.
Permitting additional remedies to address Batson/Gilmore
violations will permit the judicial system to respond more
effectively to the concerns implicated by discriminatory use of
peremptory challenges –- including making the prejudiced juror
whole, removing the taint of bias from the jury pool, avoiding
animus against the offending party, maintaining public
confidence in the justice system, deterring future impermissible
conduct, and preserving judicial resources.
Among the remedies that a trial court may employ is
reseating the juror(s) with the consent of the aggrieved party
and forfeiture by the offending party of their improper
peremptory challenge(s). Luciano, supra, 890 N.E.2d at 215; see
28
also Willis, supra, 43 P.3d at 137; State v. Nelson, 85 So. 3d
21, 36 (La. 2012). That remedy addresses the damage caused by
Batson/Gilmore violations in ways that the single, bright-line
Gilmore remedy often does not. It vindicates the rights of the
juror as a victim of the unconstitutional conduct. Also,
reseating jurors and forcing offending parties to forfeit their
peremptory challenge(s) sends an important message to the public
that our judicial system will not allow discriminatory conduct
in the courtroom. Forfeiture should deter the unconstitutional
behavior condemned in Batson and Gilmore.
Several factors, however, should be considered before
implementing the remedy of reseating wrongfully challenged
jurors because reseating a juror presents a unique set of
challenges. First, before reseating an improperly excused
juror, the trial court should ensure that the juror is available
for reseating. For example, in most instances, neither the
court nor the aggrieved party nor the excluded juror will
recognize discrimination against the first aggrieved juror
because it is almost impossible to make a prima facie case of
discrimination after just one use of a peremptory challenge to
strike a prospective juror. In that case, the juror may be sent
home or exposed to media influences, making it impracticable to
reseat him or her. Second, if the juror is available to be
reseated, the court should consult with counsel to determine
29
whether any inquiry of the juror is appropriate and, if so, the
nature of the inquiry. The judge must ensure that the reseated
juror will be able to participate fairly and impartially in the
trial. The judge must also consider whether a cautionary
instruction should be given to the reseated juror and the panel
as a whole concerning the need not to hold any animus against
the party that unsuccessfully attempted to excuse that juror or
the party that resisted that effort. Once again, any
instruction must be preceded by consultation with counsel.
Another remedy within the discretion of the trial court is
to alter the procedure for exercising challenges so that the
challenges occur outside of the jurors’ presence at the first
suggestion of improper use of peremptory challenges. Such a
modification to the jury selection process would avoid
prejudicing parties making unsuccessful challenges in open court
without imposing an undue burden by requiring that all
challenges occur at sidebar. Furthermore, that alteration would
limit the extent to which the public confidence in the justice
system is undermined by Batson/Gilmore violations because
wrongfully excused jurors would not be aware of the grounds upon
which they were removed.
Awarding additional peremptory challenges to the aggrieved
party upon a finding of improper use of peremptory challenges,
particularly when wrongfully dismissed jurors are no longer
30
available, would similarly alleviate the concerns discussed in
Batson. Although awarding more peremptory challenges would not
vindicate the rights of the wrongfully excluded jurors, the
availability of such an option to trial courts would certainly
disincentivize counsel’s improper use of peremptory challenges.
Finally, the remedy mandated by Gilmore, in which a trial
judge may, in his or her discretion, dismiss the empaneled jury
and begin the process anew upon a determination that counsel has
improperly excluded jurors, remains available.7
The remedy or remedies selected to redress a Batson/Gilmore
violation must never be informed solely by the desire to
expedite a trial. Rather, every decision to invoke a remedy
other than the single Gilmore remedy and the remedy actually
selected must assure a fair trial to all and elimination of the
taint of discrimination.
VI.
The Court concludes that the various circumstances
identified and discussed in this opinion warrant modification of
the single, bright-line remedy set forth in Gilmore. As
evidenced by the Appellate Division panels’ respective struggles
7
Imposition of only a monetary sanction against the attorney for
the offending party does nothing to address the constitutionally
impermissible conduct. In rare circumstances it may be a
suitable supplemental remedy to address egregious conduct and
serve as a disincentive to future improper behavior. See also
R. 1:10-1. The decision to invoke this supplemental remedy
rests in the discretion of the trial judge.
31
in Scott and Chevalier, the bright-line remedy has proven
ineffective to fully and fairly respond to the wrong.
Additionally, the California Supreme Court’s departure from the
single remedy announced in Wheeler further supports the
proposition that a broader approach is necessary. Most
importantly, the bright-line remedy does not necessarily deter
the unconstitutional behavior condemned in Batson and Gilmore.
Accordingly, we modify Gilmore to the extent it imposed a
single remedy to respond to the constitutionally impermissible
uses of peremptory challenges by any party, and hereby permit
trial judges to choose from a broader set of remedies to address
Batson/Gilmore violations on a case-by-case basis. Those
remedies include dismissing the empaneled jury member(s) and the
venire and beginning jury selection anew; reseating the
wrongfully excused juror(s); reseating the wrongfully excused
juror(s) and ordering forfeiture by the offending party of his
or her improperly exercised peremptory challenge(s); permitting
trial courts to require challenges to prospective jurors outside
the presence of the jury; granting additional peremptory
challenges to the aggrieved party, particularly when wrongfully
dismissed jurors are no longer available; or a combination of
these remedies as the individual case requires.
32
VII.
In this case, the Appellate Division found the trial court
erred by finding a prima facie case of discrimination against
white jurors. The panel noted that the prosecutor obliquely
raised his objection to defendant’s conduct and never
unequivocally asked the trial judge to invoke the Gilmore
remedy. In addition, the Appellate Division correctly held that
the trial judge did not follow the three-part Osorio test before
finding a prima facie case of discrimination against white
jurors by defendant. For those reasons alone, we affirm the
Appellate Division judgment reversing the judgment of conviction
and remanding the matter for a new trial. We further hold that
the remedy chosen by the trial judge, although utilizing one of
the permissible remedies identified in this opinion, was
contrary to the governing law at the time of trial, and the
trial judge failed to explain why the remedy would redress the
impermissible challenge. Under these circumstances, defendant
is entitled to a new trial.
VIII.
The judgment of the Appellate Division is affirmed as
modified, and the matter is remanded for a new trial.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGE RODRÍGUEZ (temporarily assigned) join in
JUDGE CUFF’s opinion.
33
SUPREME COURT OF NEW JERSEY
NO. A-105 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
AMIR A. ANDREWS,
Defendant-Respondent.
DECIDED October 28, 2013
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRM AS
CHECKLIST
MODIFIED/REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6
1