NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5716-12T4
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, November 26, 2014 v. APPELLATE DIVISION
MARKEES PRUITT,
Defendant-Appellant. ___________________________
Argued November 12, 2014 – Decided November 26, 2014
Before Judges Reisner, Koblitz1 and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-08-0662.
Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the brief).
Gretchen A. Pickering, Assistant Prosecutor, argued the cause for respondent (Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, of counsel and on the brief).
1 Judge Koblitz did not participate in oral argument. However, with consent of counsel she has joined in this opinion. R. 2:13-2(b). The opinion of the court was delivered by
REISNER, P.J.A.D.
Following a remand from this court, State v. Pruitt, 430
N.J. Super. 261 (App. Div. 2013), the Law Division held a
hearing and determined that during jury selection at defendant's
criminal trial, the prosecutor's use of a peremptory challenge
to remove the only African-American juror did not "disclose a
constitutional violation." Defendant Markees Pruitt appeals
from the remand order dated July 9, 2013. After reviewing the
record in light of the applicable legal standards, we affirm.
I
The background is set forth at length in our prior opinion
and need not be repeated here. In brief, defendant was on trial
for multiple counts of illegal drug distribution, and the
State's case was based on evidence of a series of drug purchases
from defendant by undercover police officers. Defendant is
African-American, and there were only two African-Americans in
the jury pool. One African-American juror was excused for
cause, and the prosecutor later excused the other, who was Juror
Thirteen, using a peremptory challenge. As soon as the
prosecutor used the peremptory challenge, defense counsel asked
the trial judge to conduct a hearing pursuant to State v.
Gilmore, 103 N.J. 508, 535-39 (1986). See also Batson v.
2 A-5716-12T4 Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 1723-24, 90 L.
Ed. 2d 69, 87-89 (1986). The judge denied the request because
the prosecutor had only excused one African-American juror.
On appeal, we concluded that the judge's decision was
contrary to the principles set forth in State v. Osorio, 199
N.J. 486 (2009), which stated the following standards for
determining whether a defendant has presented a prima facie case
in mounting a Gilmore challenge:
In determining whether a defendant has produced evidence sufficient "to draw an inference that discrimination has occurred[,]" the Court directed trial courts to consider the following factors:
(1) that the prosecutor struck most or all of the members of the identified group from the venire; (2) that the prosecutor used a disproportionate number of his or her peremptories against the group; (3) that the prosecutor failed to ask or propose questions to the challenged jurors; (4) that other than their race, the challenged jurors are as heterogeneous as the community[.]
[Pruitt, supra, 430 N.J. Super. at 270-71 (first alteration in original) (quoting Osorio, supra, 199 N.J. at 504).]
Applying those standards to the circumstances presented by
this case, we determined that a remand was required:
[B]ecause there was only one qualified member of the cognizable group in the jury panel; the defendant was also a member of
3 A-5716-12T4 that same group; the prosecutor failed to ask the juror any follow-up questions; and, other than her race, the juror was as heterogeneous as the community as a whole, the trial judge should have required the prosecutor to explain his non-discriminatory reason for the challenge.
[Id. at 264.]2
Since the original trial judge was no longer sitting in the
Criminal Division, the remand was conducted by a second judge.
At the remand hearing, the second judge required the prosecutor
to explain his reasons for striking Juror Thirteen. The
2 The "heterogeneous" standard warrants a brief clarification. It is drawn from People v. Wheeler, 583 P.2d 748 (Cal. 1978), where the court noted that in establishing a prima facie case, a defendant may show that the prosecutor excused jurors who "share only this one characteristic -- their membership in the group -- and that in all other respects they are as heterogeneous as the community as a whole." Id. at 764 (quoted in Gilmore, supra, 103 N.J. at 536). In a footnote, illustrating what "heterogeneous" meant in that context, Wheeler explained: "For example . . . it may be significant if the persons challenged, although all black, include both men and women and are of a variety of ages, occupations, and social or economic conditions." Id. at 764 n.27. Obviously, that example cannot be applied where the prosecutor has only excused one minority juror. However, it is still relevant whether that one juror has characteristics in common with other jurors whom the prosecutor did not excuse; whether the juror has characteristics similar to other excused jurors; or whether the juror has a unique characteristic, other than his or her race, that could warrant the use of a peremptory challenge. By analogy with the employment discrimination cases cited in Gilmore and Osorio, it is relevant whether the prosecutor treated similarly situated minority and non-minority jurors the same or differently. See Gilmore, supra, 103 N.J. at 533-34 & n.7; Osorio, supra, 199 N.J. at 500-01.
4 A-5716-12T4 prosecutor stated that he asked that she be excused because she
worked at the Woodbine Developmental Center (Center), a
residential facility for men with developmental disabilities.
The prosecutor recalled that, during voir dire, the juror told
the court that she took care of the men at the Center. The
prosecutor told the second judge that he typically would use
peremptory challenges to excuse social workers, because he felt
they were too likely to be sympathetic to the accused, and he
perceived Juror Thirteen's job to be akin to that of a social
worker. The prosecutor also stated that over the years his
office had prosecuted a number of both residents and employees
from the Center for drug offenses and other crimes, and as a
result, he always struck jurors who worked there.
In his argument, defense counsel did not compare Juror
Thirteen to any of the other jurors whom the prosecutor excused
or did not excuse. In other words, he did not offer any
specific evidence that the prosecutor's explanation was
unreasonable, not genuine, or a pretext for discrimination.
Rather, he argued that, without the presence of Juror Thirteen,
the remand placed the defense in the unfair position of being
unable to ask the court to direct further questions to the
juror, designed to address the prosecutor's expressed concerns
about her possible bias.
5 A-5716-12T4 In rejecting the defendant's position, the judge noted that
recalling Juror Thirteen was not within the scope of the remand.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5716-12T4
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, November 26, 2014 v. APPELLATE DIVISION
MARKEES PRUITT,
Defendant-Appellant. ___________________________
Argued November 12, 2014 – Decided November 26, 2014
Before Judges Reisner, Koblitz1 and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-08-0662.
Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the brief).
Gretchen A. Pickering, Assistant Prosecutor, argued the cause for respondent (Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, of counsel and on the brief).
1 Judge Koblitz did not participate in oral argument. However, with consent of counsel she has joined in this opinion. R. 2:13-2(b). The opinion of the court was delivered by
REISNER, P.J.A.D.
Following a remand from this court, State v. Pruitt, 430
N.J. Super. 261 (App. Div. 2013), the Law Division held a
hearing and determined that during jury selection at defendant's
criminal trial, the prosecutor's use of a peremptory challenge
to remove the only African-American juror did not "disclose a
constitutional violation." Defendant Markees Pruitt appeals
from the remand order dated July 9, 2013. After reviewing the
record in light of the applicable legal standards, we affirm.
I
The background is set forth at length in our prior opinion
and need not be repeated here. In brief, defendant was on trial
for multiple counts of illegal drug distribution, and the
State's case was based on evidence of a series of drug purchases
from defendant by undercover police officers. Defendant is
African-American, and there were only two African-Americans in
the jury pool. One African-American juror was excused for
cause, and the prosecutor later excused the other, who was Juror
Thirteen, using a peremptory challenge. As soon as the
prosecutor used the peremptory challenge, defense counsel asked
the trial judge to conduct a hearing pursuant to State v.
Gilmore, 103 N.J. 508, 535-39 (1986). See also Batson v.
2 A-5716-12T4 Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 1723-24, 90 L.
Ed. 2d 69, 87-89 (1986). The judge denied the request because
the prosecutor had only excused one African-American juror.
On appeal, we concluded that the judge's decision was
contrary to the principles set forth in State v. Osorio, 199
N.J. 486 (2009), which stated the following standards for
determining whether a defendant has presented a prima facie case
in mounting a Gilmore challenge:
In determining whether a defendant has produced evidence sufficient "to draw an inference that discrimination has occurred[,]" the Court directed trial courts to consider the following factors:
(1) that the prosecutor struck most or all of the members of the identified group from the venire; (2) that the prosecutor used a disproportionate number of his or her peremptories against the group; (3) that the prosecutor failed to ask or propose questions to the challenged jurors; (4) that other than their race, the challenged jurors are as heterogeneous as the community[.]
[Pruitt, supra, 430 N.J. Super. at 270-71 (first alteration in original) (quoting Osorio, supra, 199 N.J. at 504).]
Applying those standards to the circumstances presented by
this case, we determined that a remand was required:
[B]ecause there was only one qualified member of the cognizable group in the jury panel; the defendant was also a member of
3 A-5716-12T4 that same group; the prosecutor failed to ask the juror any follow-up questions; and, other than her race, the juror was as heterogeneous as the community as a whole, the trial judge should have required the prosecutor to explain his non-discriminatory reason for the challenge.
[Id. at 264.]2
Since the original trial judge was no longer sitting in the
Criminal Division, the remand was conducted by a second judge.
At the remand hearing, the second judge required the prosecutor
to explain his reasons for striking Juror Thirteen. The
2 The "heterogeneous" standard warrants a brief clarification. It is drawn from People v. Wheeler, 583 P.2d 748 (Cal. 1978), where the court noted that in establishing a prima facie case, a defendant may show that the prosecutor excused jurors who "share only this one characteristic -- their membership in the group -- and that in all other respects they are as heterogeneous as the community as a whole." Id. at 764 (quoted in Gilmore, supra, 103 N.J. at 536). In a footnote, illustrating what "heterogeneous" meant in that context, Wheeler explained: "For example . . . it may be significant if the persons challenged, although all black, include both men and women and are of a variety of ages, occupations, and social or economic conditions." Id. at 764 n.27. Obviously, that example cannot be applied where the prosecutor has only excused one minority juror. However, it is still relevant whether that one juror has characteristics in common with other jurors whom the prosecutor did not excuse; whether the juror has characteristics similar to other excused jurors; or whether the juror has a unique characteristic, other than his or her race, that could warrant the use of a peremptory challenge. By analogy with the employment discrimination cases cited in Gilmore and Osorio, it is relevant whether the prosecutor treated similarly situated minority and non-minority jurors the same or differently. See Gilmore, supra, 103 N.J. at 533-34 & n.7; Osorio, supra, 199 N.J. at 500-01.
4 A-5716-12T4 prosecutor stated that he asked that she be excused because she
worked at the Woodbine Developmental Center (Center), a
residential facility for men with developmental disabilities.
The prosecutor recalled that, during voir dire, the juror told
the court that she took care of the men at the Center. The
prosecutor told the second judge that he typically would use
peremptory challenges to excuse social workers, because he felt
they were too likely to be sympathetic to the accused, and he
perceived Juror Thirteen's job to be akin to that of a social
worker. The prosecutor also stated that over the years his
office had prosecuted a number of both residents and employees
from the Center for drug offenses and other crimes, and as a
result, he always struck jurors who worked there.
In his argument, defense counsel did not compare Juror
Thirteen to any of the other jurors whom the prosecutor excused
or did not excuse. In other words, he did not offer any
specific evidence that the prosecutor's explanation was
unreasonable, not genuine, or a pretext for discrimination.
Rather, he argued that, without the presence of Juror Thirteen,
the remand placed the defense in the unfair position of being
unable to ask the court to direct further questions to the
juror, designed to address the prosecutor's expressed concerns
about her possible bias.
5 A-5716-12T4 In rejecting the defendant's position, the judge noted that
recalling Juror Thirteen was not within the scope of the remand.
He also evaluated the prosecutor's explanation and found that it
was neutral, plausible, case specific, and not "a ruse" to cover
up discrimination. He therefore concluded that the defense had
not carried its burden of demonstrating a Gilmore violation.
II
As the Court held in Osorio, once a defendant presents a
prima facie case that the prosecutor made discriminatory use of
a peremptory challenge, the prosecutor must present a clear and
specific explanation justifying the peremptory challenge "'on
the basis of concerns about situation-specific bias.'" Osorio,
supra, 199 N.J. at 504 (quoting Gilmore, supra, 103 N.J. at
537).
In gauging whether the party exercising the peremptory challenge has met its burden, the trial court must engage in a balancing process: it must determine whether the proffered explanations are genuine and reasonable grounds for believing that potential jurors might have situation- specific biases that would make excusing them reasonable and desirable, given the aim of empanelling a fair and impartial petit jury, or, on the other hand, sham excuses belatedly contrived to avoid admitting acts of group discrimination.
[Id. at 504-05 (internal quotation marks omitted) (quoting Gilmore, supra, 103 N.J. at 537-38).]
6 A-5716-12T4 The trial court must make specific findings as to each
allegedly improper challenge, to determine whether the State's
explanation is relevant to the specific case, and whether there
is any evidence that the explanation is nonetheless apparently
pretextual. For example, the court should consider whether the
prosecutor was even-handed in excusing non-minority jurors with
that same allegedly disqualifying characteristic. Id. at 506
(citing State v. Clark, 316 N.J. Super. 462, 473-74 (App. Div.
1998)).
On this appeal, we review the trial court's decision for
abuse of discretion, so long as the judge properly applied the
legal standards set forth in Osorio. See id. at 509. Because
the second judge had the opportunity to hear the prosecutor's
explanation first-hand, we also owe some deference to his
ability to gauge the credibility of the explanation. See State
v. Locurto, 157 N.J. 463, 474 (1999).
Having reviewed the entire voir dire transcript, we find no
abuse of the judge's discretion in reaching his conclusion. We
agree with the second judge that the prosecutor's explanation
was reasonable, related to the case, and not obviously
pretextual.3 We cannot say it was unreasonable for the
3 Some of the trial judge's language was ill-chosen, for example, in stating that the prosecutor's reason was not "ridiculous." (continued)
7 A-5716-12T4 prosecutor to excuse a juror whose job he perceived as being
akin to social work, and some of whose clients may have been
prosecuted by his office.4 The judge did not specifically
compare Juror Thirteen to any other jurors, but on the other
hand, defense counsel did not argue that there were any other
allegedly similarly situated jurors whom the prosecutor did not
excuse. Based on our own review of the record, we note that the
court excused for cause a juror who worked at a drug treatment
facility and who expressed "empathy" for defendant.
On this appeal, defendant argues for the first time that
the prosecutor did not strike a number of jurors who themselves
had drug or alcohol problems in the past or who had relatives
with drug problems. We conclude those issues were waived,
because the judge had no opportunity to consider them and the
(continued) That is not the standard for judging the legitimacy of the prosecutor's stated reason. See Clark, supra, 316 N.J. Super. at 469-70. However, viewing that language in the context of the judge's entire oral opinion we conclude he applied the correct standard. Nonetheless, we have carefully scrutinized the record ourselves and agree with his ultimate conclusion. 4 There was no evidence as to the racial composition of the workforce at the Center, and hence no basis to infer that a prosecutor's invariable habit of striking Center employees from juries was more likely to be a proxy for racial discrimination. We note with disapproval defendant's citation of other facts about the Center that are not in the record. We decline to consider factual assertions that are not of record.
8 A-5716-12T4 prosecutor had no opportunity to respond to them. See State v.
Robinson, 200 N.J. 1, 20-22 (2009). However, even if we
consider the issues, we find the argument unpersuasive.
Defendant was accused of being a drug dealer, and a prosecutor
could rationally believe that jurors who had drug problems in
the past, or had family members with drug problems, would not
necessarily be sympathetic to a drug dealer. Further, several
jurors with family members who had drug problems also had
relatives who were police officers.
Defendant also points out, for the first time on appeal,
that the prosecutor did not excuse a juror (Juror One) with past
experience caring for the elderly. However, that juror had only
a few years as a direct caregiver before she was "promoted to
[working in] the office." By contrast, Juror Thirteen had spent
twenty years caring for the residents at the Center. There also
was no evidence that any of the employees or clients of Juror
One's elder care agency had been criminally prosecuted, and
early in the voir dire she stated that she was related to a
police officer.
In thus reviewing the evidence de novo, because these
issues were not presented to the trial court, we nonetheless
emphasize that it was defendant's burden to prove a Gilmore
violation by a preponderance of the evidence. Osorio, supra,
9 A-5716-12T4 199 N.J. at 503-04. This means that it was defendant's burden
to specify for the trial court, at the time of the remand
hearing, which allegedly comparable jurors the prosecutor failed
to strike. Further, as noted above, in failing to raise these
issues during the remand hearing, defendant deprived the
prosecutor of the opportunity to explain why he did not strike
the allegedly comparable jurors. Defendant's additional
appellate arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
In summary, we find no abuse of discretion or other error
in the remand court's decision. Thus, defendant's conviction
stands.
Affirmed.
10 A-5716-12T4