NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1375-11T4 A-2154-11T4
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, September 5, 2014 v. APPELLATE DIVISION
SALADIN THOMPSON,
Defendant-Appellant. _________________________________
Submitted November 14, 2013 – Decided September 5, 2014
Before Judges Sapp-Peterson, Lihotz and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 06-01-0162.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
SAPP-PETERSON, P.J.A.D.
In these matters, calendared back-to-back as ordered by
this court on August 8, 2012 and consolidated for purposes of opinion, defendant appeals from the May 13, 2011 ruling in which
the court found the State "did not engage in impermissible
discrimination in exercising its peremptory challenges."1 The
determination was rendered following a remand proceeding ordered
by this court. Defendant also appeals from the sentence imposed
following the remand hearing and from the September 30, 2011
order denying his petition for post-conviction relief (PCR).
Following our review, we are unable to determine from the
record of the remand proceeding whether the State's exercise of
seven of its nine peremptory challenges to excuse African-
Americans was the product of impermissible discrimination as
opposed to situation-specific bias because the court failed to
engage in the requisite "third-step" analysis established in
State v. Gilmore, 103 N.J. 508, 538 (1986). We conclude the
record of the remand hearing was too deficient to enable
meaningful appellate review and a further remand would serve no
useful purpose. Further, in light of this determination, we
deem it unnecessary to consider defendant's challenge to the
1 The court entered one order, the September 30, 2011 order, which it characterized as being "opened to the [c]ourt by way of Remand from the Appellate Division from a denial of his petition for Post-Conviction Relief[.]" The remand from the Appellate Division, however, was unrelated to defendant's PCR petition. The appendix does not include a separate order from the May 13, 2011 remand hearing beyond the amended judgment of conviction.
2 A-1375-11T4 sentence imposed on remand and his PCR petition. Accordingly,
we vacate the judgment of conviction and remand for a new trial.
I.
The salient facts pertinent to this appeal are taken from
our previously unpublished opinion in State v. Thompson, No. A-
5366-06 (App. Div. March 25, 2010) (Thompson I):
Defendant's convictions arose out of events unfolding during the late evening of July 8, 2005. The evidence before the jury disclosed that Andrews was on the porch of 265 21st Street in Irvington at 10:30 p.m. when two African-American males arrived. One of the males was tall with a "big automatic gun, and the other was short with a "small revolver." Andrews heard four or five shots and then realized that he had been shot. The shorter man approached him and attempted to shoot him in the face, but shot the cap on his head instead. After his assailants left, Andrews heard more shooting further down the street.
Officers LaCosta and Love were dispatched to a shots-fired call at Andrews' location just after 10:30 p.m. They found Andrews lying down in the hallway, bleeding from the right shoulder. Once an ambulance transported Andrews away from the scene, Officer LaCosta secured the crime scene and found four forty-caliber shell casings.
Not far from the scene of Andrews' shooting that evening, in the 300 block of 21st Street, Zhou and a female employee were working at the Lily Chinese Restaurant located at 353 21st Street. Green, who was a regular customer, entered the restaurant around 10:30 p.m. and ordered food. Zhou testified that he was not that busy and recalls observing two men arrive shortly
3 A-1375-11T4 after Green, with one of the men entering the restaurant briefly to purchase cigarettes while the other waited outside the front door.
As the customer who purchased cigarettes was leaving the restaurant, Zhou noticed him drawing his gun. Once outside, this customer began firing his gun. The male who had accompanied him to the restaurant but remained outside also started to fire shots from a gun. Zhou heard four gunshots and realized that he had been shot in the leg. He also saw bloodstains on the floor of the restaurant. Green had hurriedly left the restaurant. Later, police recovered blood evidence and bullets, as well as spent shell casings outside of the restaurant. They also photographed the wall damaged from bullet strikes inside of the restaurant.
After Zhou was treated for his leg injury, he was eventually taken to the police station, where police showed him a twelve-person photo array. Zhou identified defendant as one of the shooters. Zhou testified that he was ninety-percent certain that he had correctly identified the person in the photograph as the shooter who had remained outside, although he acknowledged that in his grand jury testimony, he had testified that he was unable to see the male who had remained outside "very good."
Defendant was apprehended later that evening following a car pursuit and foot pursuit. As defendant was fleeing from police, one officer observed defendant throw a gun that he had been carrying during the flight. Police recovered the weapon, and at trial a ballistics expert testified that all the bullets and casings the officers retrieved from the scenes of both shootings had been fired from the weapon police recovered from underneath the dumpster.
4 A-1375-11T4 Green died from his bullet wounds four days after the shootings.
[Id. at slip op. 2-5.]
The jury convicted defendant of first-degree conspiracy to
murder, N.J.S.A. 2C:5-2 and 2C:11-3(a); first-degree attempted
murder, N.J.S.A. 2C:5-1 and 2C:11-3(a); first-degree conspiracy
to murder, N.J.S.A. 2C:5-2 and 2C:11-3; first-degree murder,
N.J.S.A. 2C:11-3(a)(1) and (2); third-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); simple
assault, N.J.S.A. 2C:12-1(a)(1); and fourth-degree resisting
arrest, N.J.S.A. 2C:29-(a)(2). At sentencing, the court imposed
an aggregate sixty-seven-year custodial sentence.
Defendant appealed his conviction, raising the following
issues for our consideration: the court failed to engage in the
three-step analysis mandated in Gilmore, 103 N.J. at 535-38,
notwithstanding that the prosecution exercised seven of its nine
peremptory challenges to exclude African-American jurors (Point
I); the court erred in its jury instruction on identification
(Point II); and the court subjected him to disparate treatment
when it imposed a custodial sentence greater than the sentences
received by his co-defendant (Point III). Thompson I, supra,
slip op. at 5-6.
5 A-1375-11T4 In that prior decision, we found no merit to defendant's
Point II. As to Point I, we agreed that defendant had
established that a cognizable class of prospective jurors had
been excused and remanded the matter
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.
[Thompson I, supra, slip op. at 15-16.]
Finally, as to Point III, we agreed the court failed to
articulate any applicable aggravating and mitigating factors
prior to imposing defendant's sentence, which we found required
a remand to address that issue as well, if defendant's
conviction otherwise stood. The Supreme Court denied
defendant's petition for certification. State v. Thompson, 203
N.J. 439 (2010).
In January 2011, prior to the remand hearing, defendant
filed a pro se PCR petition. The PCR petition was not
adjudicated until September 2011, several months following
completion of the remand proceedings.
6 A-1375-11T4 On May 13, 2011, the court conducted the remand hearing.
Defendant was represented by new counsel because his former
trial counsel was practicing law in Colorado. Because defense
counsel was new to the case, had only the trial transcripts of
the jury selection, and because the trial had taken place three
years earlier, defense counsel requested copies of the
prosecutor's notes made contemporaneously at trial with the
prosecutor's exercise of the State's peremptory challenges. In
support of this request, defense counsel relied upon State v.
Osorio, 199 N.J. 486 (2009). The State objected, arguing that
Osorio does not support the proposition that the notes were
discoverable and maintaining that the notes were privileged
attorney work product. The court offered to turn over its
notes, which it indicated were limited, for the most part, to
gender and race, but disagreed that Osorio mandates that a
prosecutor's notes taken during jury selection be turned over
where there is a challenge to the prosecution's exercise of
peremptory challenges. The court agreed the notes were attorney
work product and denied the application.
The prosecutor at the remand hearing, who was the same
prosecutor who tried the case against defendant on behalf of the
State, then proceeded to provide the court with explanations for
the State's exercise of peremptory challenges to excuse seven
7 A-1375-11T4 prospective African-American jurors. She first addressed the
peremptory excusal of Juror B.2 Although the prosecutor did not
explain why she excused this juror, she represented that Juror B
initially asked to be excused from the jury because of her
probationary work status and had expressed concern that serving
on the jury may affect her employment. The juror also indicated
that she was familiar with the address where the crime occurred.
The juror further indicated she had a family member accused of
drug possession. Finally, Juror B stated she had been
dissatisfied with the prosecution in a prior case in which a
member of her family had been killed.
Next, the prosecutor stated she excused Juror G because the
juror indicated her boyfriend, who is also the father of her
child, had been convicted of a weapons offense and was currently
on probation. Although the juror expressed that she believed
the outcome was fair, the prosecutor told the court she excused
Juror G because the boyfriend's prosecution was undertaken by
the same office now prosecuting defendant, the Essex County
Prosecutor's Office.
The next juror, Juror Gr, stated she had been the victim of
domestic violence, which had been prosecuted by the Essex County
2 To protect the privacy of the jurors at issue, we utilize initials.
8 A-1375-11T4 Prosecutor's Office and ultimately dismissed. She also reported
that, as part of her personal life, she hosted what she referred
to as "passion parties," where she presented "adult" items. The
prosecutor stated "the aggregate effect of those statements on
[Juror Gr's] part cause[d] me to have a reaction that she would
not be a juror who would be equally open to the State's evidence
in this murder case." As such, that juror was excused.
The prosecutor discussed the exercise of the State's
peremptory challenge to excuse Juror H, whose brother had been
convicted of murdering his wife. Although subpoenaed as a
witness, the juror did not testify in that trial. In light of
the juror's brother's status and the juror's close connection to
a homicide as a subpoenaed witness, the prosecutor did not
"think that [the juror] would be an appropriate juror able to be
single-mindedly focused on the evidence in this case."
As for Juror Go, the prosecutor explained the State elected
to excuse him because he had been prosecuted in connection with
a case where his son was reportedly the victim. Juror Go
indicated the case was "'thrown out.'" Because he had been
accused and prosecuted by the Essex County Prosecutor's Office,
the prosecutor believed he too would be unable to "focus his
attention single-mindedly on the facts that would be before this
jury."
9 A-1375-11T4 Juror Mk expressed that she was very religious, read daily
meditations and indicated that it was very important for her to
make meetings. The prosecutor explained to the court that she
did not know the significance of the meetings and, therefore,
attempted follow-up questioning, which the court denied. In
view of the very religious nature of her answers, the prosecutor
expressed that the "State chose to peremptorily excuse her from
the case because we felt that she might, in fact, be disturbed
in sitting in judgment upon another individual, particularly in
something as serious as a murder case."
Finally, the prosecutor explained that the State used a
peremptory challenge to excuse Juror Jn. During the voir dire,
Juror Jn stated that neither he nor any member of his family had
ever been charged with an offense. The prosecutor, however, was
aware that Juror Jn was a defendant in a matter pending in Essex
County. The prosecutor expressed that she believed Juror Jn's
response was deliberately misleading. She therefore decided to
peremptorily excuse him.
The prosecutor concluded her presentation by noting that
the "final composition of the jury included five African-
American jurors and nine who were not African-American," but
whom the prosecutor believed could be visually identified as
"white individuals, Asian or Hispanic." In response to the
10 A-1375-11T4 prosecutor's presentation, defense counsel agreed that "much of
the information that the Prosecutor has indicated today is, of
course, and naturally available on . . . the transcript of the
jury selection." Nonetheless, he maintained that without the
prosecutor's notes, to which the prosecutor made reference — at
least three times – in giving her explanations, he was at a
disadvantage because he had "no means whatsoever of rebutting or
responding to what she said."
The trial court denied defense counsel's renewed
application for the prosecutor's notes for the reasons
previously expressed, namely, the notes were subject to the work
product privilege. The court then found defendant failed to
meet his ultimate burden of establishing impermissible
discrimination in the jury selection, because the defense had no
other evidence to present to the court beyond "the use of seven
-- almost 80% of the challenges against African Americans." The
court credited the explanations provided by the prosecutor and
found no basis to set aside defendant's conviction and to order
a new trial.
After reaching this decision, the court then proceeded to
address the separate point of our remand to articulate the
aggravating and mitigating factors influencing the court's
sentencing decision. The court identified the aggravating
11 A-1375-11T4 factors, found no mitigating factors and re-sentenced defendant,
imposing the sentence it originally imposed.
In August 2011, defendant filed an amended verified PCR
petition and an accompanying brief filed on his behalf by
assigned counsel. In seeking PCR, defendant urged his petition
was not procedurally barred and that he had been denied
effective assistance of counsel. Specifically, he claimed trial
counsel coerced him into not testifying, failed to conduct an
adequate pre-trial investigation, failed to mount a meaningful
defense, and failed to seek a Wade3 hearing concerning
identification. Defendant additionally alleged the cumulative
errors of defense counsel had the overall impact of denying him
effective assistance of counsel.
The court conducted oral argument on the PCR application on
September 30, 2011, and upon its conclusion, denied the
petition. The court concluded defendant's claims were too
vague, conclusory, and speculative. The present appeals
followed.
On direct appeal, defendant raises the following points:
POINT I
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO THE PROSECUTOR'S IMPERMISSIBLE AND
3 United States v. Wade, 388 U.S. 218, 230, 87 S. Ct. 1926, 1932, 18 L. Ed. 2d 1149, 1158 (1967).
12 A-1375-11T4 UNCONSTITUTIONAL PEREMPTORY JUROR CHALLENGES AND/OR THE INSUFFICIENT RECORD BELOW REGARDING THE PROSECUTOR'S PEREMPTORY JUROR CHALLENGES.
POINT II
DEFENDANT MUST BE RESENTENCED BECAUSE THE TRIAL COURT DOUBLE-COUNTED AGGRAVATING FACTORS (NOT RAISED BELOW).
Defendant's separate PCR appeal raises one point:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION AND LOCATE PROSPECTIVE WITNESSES
B. TRIAL COUNSEL COERCED DEFENDANT NOT TO TESTIFY
II.
In challenging the State's allegedly impermissible use of
preemptory challenges, defendant contends the court erred in
determining the prosecutor's notes were not subject to
disclosure because they were protected by the attorney work
product privilege. The trial judge indicated that it did not
read Osorio as requiring that such notes be turned over.
13 A-1375-11T4 Rule 3:13-3(d),4 entitled "Documents Not Subject to
Discovery[,]" states that "[t]his rule does not require
discovery of a party's work product consisting of internal
reports, memoranda or documents made by that party or his
attorney or agents, in connection with the investigation,
prosecution or defense of the matter[.]" "[P]rivileges stand in
what we have declared to be a 'disfavored status' because they
have an effect on the truth-seeking function." State v. Mauti,
208 N.J. 519, 531 (2012) (citing Payton v. N.J. Turnpike, 148
N.J. 524, 539 (1997)). Thus, "[t]he work product privilege is
not absolute and can be disregarded 'upon a showing that the
party seeking discovery has substantial need of the materials in
the preparation of the case and is unable without undue hardship
to obtain the substantial equivalent of the materials by other
means.'" Rivard v. Am. Home Prods., Inc., 391 N.J. Super. 129,
155 (App. Div. 2007) (quoting R. 4:10-2(c)).
No reported New Jersey decision has addressed the limits of
attorney work product as it pertains to counsel's notes created
during jury selection. The Georgia Supreme Court, however,
found that a trial court properly denied defendant's motion for
an in-camera review of the state's jury selection notes because
4 In effect at the time of the remand hearing was Rule 3:13-3(e). Rule amendments in 2014 re-designated this rule as Rule 3:13- 3(d).
14 A-1375-11T4 attorney work product does not become discoverable where there
is no exculpatory information and the defense might find the
information strategically helpful. Foster v. State, 374 S.E. 2d
188, 192 (Ga. 1988), cert. denied, 490 U.S. 1085, 109 S. Ct.
2110, 104 L. Ed. 2d 671 (1989).
Our Supreme Court, in Osorio, while summarizing the factual
record presented to the trial court in the remand proceeding,
noted that the "trial court accepted without qualification the
State's explanations" for excusing prospective African-American
and Hispanic jurors. Osorio, supra, 199 N.J. at 496.
Ultimately, the Court concluded that, the limited record, the
passage of more than seven years since jury selection, "the
absence of searching judicial review" were all factors that
militated against any remedy other than vacating the defendant's
conviction and remanding the matter for a new trial. Id. at
509.
Here, at the inception of the remand hearing, defense
counsel informed the court that defendant's prior trial counsel
was practicing law in Colorado. The judge, in responding to
defense counsel's request for the prosecutor's notes,
acknowledged that his own notes were "limited to -- in most
cases to merely an indication as to what peremptory challenges
were exercised and the male [sic] -- and the sex and race of the
15 A-1375-11T4 person who was excused. I didn't at all indicate whether or not
there was some other basis that the court could observe."
As in Osorio, by the time of the remand hearing, a
substantial period of time (here four years) had passed since
the trial, and a different attorney was appearing on behalf of
defendant. See Osorio, supra, 199 N.J. at 496 n.3. Therefore,
a close and timely examination of the reasons proffered for
utilizing seven of nine peremptory challenges to excuse
prospective African-American jurors had not occurred. In
addition, the trial court here, as it did in Osorio, "accepted
without qualification the State's explanations." Id. at 496.
The responses to the relevant questions, by the seven
jurors peremptorily excused, are largely borne out by the trial
transcript, with the exception of Juror H. In the brief
submitted in support of this appeal, defendant contends "the
record below is devoid as to [Juror H's] brother having been
tried and convicted for 'homicide[.]'" While the record does
not state the nature of the conviction, the record does reflect
that Juror H's brother was prosecuted for some offense involving
his wife, Juror H had been subpoenaed as a witness. He believed
the outcome was fair for "what he did."
Notwithstanding the fact that the transcripts of the jury
selection confirmed the prosecutor accurately reported the
16 A-1375-11T4 responses to the voir dire questions by the seven African-
American jurors who were peremptorily excused, defense counsel,
at the remand hearing, referenced that defendant remained at a
"substantial disadvantage" because without the prosecutor's
notes, the defense had "no means whatsoever of rebutting or
responding." The prosecutor explained that her decisions as to
each of the seven African-Americans were informed by their
situation-specific responses to the voir dire questions.
Insomuch as reversal is required for other reasons, we need
not resolve whether the State may successfully assert attorney
work product privilege to prevent disclosure of its jury
selection notes, where a defendant has established a prima facie
showing of purposeful group discrimination in the jury selection
process. We agree, however, generally, there would be no need
for such disclosure where a claim of group bias is addressed
during the course of jury selection. See Osorio, supra, 199
N.J. at 507-08 (stating because a clear pattern of group bias
has been established with the State's first six peremptory
challenges, it "behooved both the State and the trial court to
[have made] make a contemporaneous record of the whys and
wherefores on which the State's peremptory challenges were
based"). Moreover, the demand for the prosecutor's notes
presumes that in addition to making notes of a prospective
17 A-1375-11T4 juror's responses to questions, a prosecutor routinely will also
take the time to record his or her mental impressions about the
response. We suspect this is not a likely scenario, which
illustrates the importance of the third step under the Gilmore
analysis.5 Gilmore, supra, 103 N.J. at 539.
In Gilmore, the Court set forth the procedures for
addressing a challenge to jury selection based upon group bias.
Gilmore, supra, 103 N.J. at 535-38. The Court instructed that a
defendant must first make a prima facie showing that the
prosecution exercised its peremptory challenges to exclude
jurors on constitutionally-impermissible grounds. Id. at 535-
36. Second, if a defendant is able to satisfy this threshold
showing, the prosecution then must present evidence that the
challenged peremptory excusals were justified on the basis of
"situation specific bias" rather than impermissible group bias.
5 Nonetheless, in unique circumstances, where there has been a considerable passage of time, a new defense attorney, and an apparent absence of notes from the original trial counsel, a trial court may elect to conduct an in-camera review of the prosecutor's notes, if they exist, to determine whether the notes reflect the prosecution's representations. See Gaines v. State, 811 S.W.2d 245, 250 (Tex. Crim. App. 1991) (noting that the judge conducted an in-camera review where the prosecution objected to the production of its jury selection notes); U.S. v. Barnette, 644 F.3d 192, 199 (4th Cir. 2011) (discussing a remand hearing where the prosecutor's juror questionnaires were subjected to an in-camera review to determine the use of unconstitutional peremptory challenges).
18 A-1375-11T4 Id. at 537. Third, if the prosecution provides such evidence of
permissible situation-specific bias, then the court must
evaluate the defendant's prima facie case of impermissible bias
against the prosecution's rebuttal evidence of situation-
specific bias to determine whether the defendant has satisfied
his or her "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.
It is this third critical step in the Gilmore analysis that
was not advanced by the court in the remand hearing. The Court
in Osorio, supra, 199 N.J. at 506, noted that "the
considerations relevant to this final step of the Gilmore
analysis were comprehensively summarized in [Clark, supra, 316
N.J. Super. at 473-74]," and the Court adopted those
considerations, stating, "[w]e cannot improve on that
summary[.]" Osorio, supra, 199 N.J. at 506. Thus, a trial
court's analysis under the third step must include: (1)
separate findings [by the court] as to the proffered reasons for
peremptorily excusing the juror "'with respect to each disputed
challenge'"; (2) whether the proffered reason has been evenly
applied; the overall pattern of the use of peremptory
challenges, notwithstanding that the proffered explanation as to
19 A-1375-11T4 each individual juror excused, may appear "'genuine and
reasonable'"; and (3) the "'composition of the jury ultimately
selected to try the case.'" Osorio, supra, 199 N.J. at 506-07
(quoting Clark, supra, 316 N.J. Super. at 473-74).
Here, the trial court did not include in its findings any
of the third-step considerations outlined in Clark, supra, 316
N.J. Super. at 473-74. Instead, the court credited the
prosecutor's explanation wholesale and then mistakenly observed
that defense counsel made "a point of saying -- that he could
see those things as grounds just by reading the transcript."
Defense counsel made no such concession. Rather, defense
counsel acknowledged that "much of the information that the
Prosecutor has indicated today is, of course, and naturally
available on the . . . transcript of the jury selection. I
reviewed those . . . transcripts. I noted many of the things
that the Prosecutor has indicated here today." (Emphasis
added). Defense counsel followed that statement by indicating
to the court that his client was nonetheless at a "substantial
disadvantage now because so much time has passed" and then
renewed his request for the prosecutor's notes, once again
urging that without the notes "we have no means whatsoever of
rebutting or responding to what [the prosecutor] said."
20 A-1375-11T4 Perhaps the court's omission of the necessary third-step
analysis was influenced by its mistaken characterization of
defense counsel's comments about what was contained in the trial
transcript. In any event, the absence of 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 [party exercising the peremptory challenge] has excused
are members of a cognizable group." See Osorio, supra, 199 N.J.
at 506 (quoting Clark, supra, 316 N.J. Super. at 474).
The transcript of the jury selection process suggests that
the State's proffered explanations may not have been evenly
applied. For example, the prosecutor stated Juror B was
excused, in part, because she was familiar with the address
where the crime occurred, that a family member had been accused
of drug possession, and she expressed dissatisfaction with the
prosecution in a criminal case involving a family member.
However, Juror Ch stated she has a family member who was accused
of rape and drug possession, she, personally, had been held up
twice, and remained dissatisfied that no one was arrested.
Juror Ch, however, was not excused. Her race is not disclosed
in the record because, other than those jurors peremptorily
21 A-1375-11T4 excused by both sides, as reflected in the trial judge's notes,
the record is devoid of the race of the prospective jurors other
than the race of the jurors ultimately seated, as represented by
the prosecutor during the remand hearing.
It 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. A note from the
transcriber, which appears on the cover page of the jury
selection transcript states: "Due to the positioning of the
microphones at sidebar and in the jury box, some portions of the
transcript were difficult to hear."
In short, 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." Osorio, supra, 199
N.J. at 509. The failure to engage in the requisite third-step
analysis mandated by the Supreme Court necessitates reversal.
At the time of our original remand in Thompson I, more than
three years had passed since defendant's trial in 2007.
Thompson I, supra, slip op. at 14. More than seven years has
now elapsed. In the remand hearing, the judge stated that he
22 A-1375-11T4 had "some vague recollection of the incidents as described." As
noted earlier, the transcript of the proceedings is silent on
juror responses to key questions and is limited as to the racial
background of jurors, other than those peremptorily excused. We
acknowledge the prosecutor represented, without challenge, the
jury ultimately empaneled included "five African-American jurors
and nine jurors who were not African-American." In a proper
third-step analysis, the final composition of the empaneled jury
is highly probative of the "ultimate question whether the . . .
proffered nondiscriminatory reasons for exercising peremptory
challenges are genuine and reasonable." Osorio, supra, 199 N.J.
at 506-07 (quoting Clark, supra, 316 N.J. Super. at 474). That
composition is, however, not dispositive.
"Given the precious constitutional rights at stake, we
eschew any [further] intermediate measures" with a second
remand. Ibid. We therefore are constrained to vacate
defendant's conviction and remand for a new trial.
One final aspect of the record bears mentioning. It was
represented to the court that defendant's former trial counsel
was practicing law in Colorado at the time of the remand
hearing, which was conducted several months after our decision
in Thompson I. A defendant challenging the State's exercise of
its peremptory challenges based upon impermissible
23 A-1375-11T4 discrimination, through the appeal process, must be cognizant
that the time between conviction and exhaustion of the appellate
process may take years; and, therefore, it is foreseeable that a
defendant's trial counsel in a remand proceeding may change.
Nonetheless, the defendant bears the ultimate burden, by a
preponderance of the evidence, to prove "that the contested
peremptory challenge was exercised on unconstitutionally
impermissible grounds of presumed group bias." Osorio, supra,
199 N.J. at 492.
A trial counsel's recollection of the jury selection
process is undoubtedly critical to the court's third-step
analysis. Thus, a defendant's failure to demonstrate, to the
court's satisfaction, efforts to produce prior trial counsel, is
also a factor relevant to the court's third-step analysis where
new counsel appears. A trial court conducting such proceedings
should not accept such representations of unavailability without
more. See N.J.S.A. 2A:81-18 to 23 (providing a statutory means
to compel the attendance of out-of-state witnesses in criminal
proceedings); see also State v. Maben, 132 N.J. 487 (1993)
(finding unacceptable the State's failure to secure forwarding
address of crucial witness who left the state prior to the case
being presented to the grand jury although fully aware of the
family's plan to leave New Jersey); State v. Williams, 226 N.J.
24 A-1375-11T4 Super. 94, 101, 103 (App. Div. 1988) (noting the impropriety of
permitting prosecutor's reference to hearsay statement of
witness the State failed to produce at trial and who the State
failed to establish was unavailable within the meaning of
N.J.R.E. 62(6)).6 This failure to present evidence of due
diligence to secure prior trial counsel's attendance at the
remand hearing in this instance is not fatal, given the trial
court's failure to engage in the third-step analysis.
In light of our decision vacating defendant's conviction,
we need not address defendant's remaining point that the court
double-counted the aggravating factors during the re-sentencing
hearing. Nor need we address the points raised in defendant's
separate appeal of the denial of his PCR petition.
Judgment of conviction vacated and remanded for a new
trial. We do not retain jurisdiction.
6 N.J.R.E. 62(6), which addressed the concepts of declarant unavailability under the hearsay rules, has been replaced by N.J.R.E. 804.
25 A-1375-11T4