State of New Jersey v. Saladin Thompson

On a single evening in July 2005, defendant committed a series of shootings in Irvington, killing one man and injuring

two others. Defendant, who is African American, was charged with first-degree murder and related offenses.

During jury selection, the State exercised nine of its twelve peremptory challenges; seven of the nine were used to

strike African-American prospective jurors. On the eve of trial, but before the jury was sworn, defendant’s trial counsel raised a challenge pursuant to State v. Gilmore, 103 N.J. 508 (1986), alleging racial discrimination in the jury selection process. Because counsel was unable to substantiate the allegation beyond noting that the majority of the prosecutor’s challenges targeted African Americans, the trial court dismissed the challenge and the case proceeded to trial. Following trial, a jury convicted defendant of various

offenses, including first-degree murder and attempted murder.

Thereafter, the court sentenced defendant to an aggregate term

of sixty-seven years of imprisonment subject to an eighty-five

percent period of parole ineligibility. On appeal, the

Appellate Division determined that defendant made a prima facie

showing of discrimination with respect to the prosecutor’s use

of peremptory challenges, and remanded for the trial court to

conduct an inquiry into the jury-selection process.

At the remand hearing, the State provided explanations for

its use of the peremptory challenges. Defense counsel, who did

not represent defendant at trial, acknowledged that the

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information provided by the prosecutor was supported by the

transcripts of jury selection, and offered nothing further.

Instead, counsel claimed he was at a disadvantage due to the

passage of time and because defendant’s trial counsel, who had

moved to Colorado, was unavailable for the hearing. The court

then credited the State’s explanations, indicating that they

were supported by the record, and dismissed defendant’s Gilmore

challenge.

Defendant again appealed, and the Appellate Division

reversed his convictions and remanded for a new trial because

the trial court failed to assess whether the State’s

explanations were genuine and applied evenhandedly.

We granted the State’s petition for certification, 221 N.J.

219 (2015), and now reverse the judgment of the Appellate

Division and reinstate defendant’s convictions.

I.

A.

For context, we recount briefly the facts of the underlying

incident which led to defendant’s indictment.

Tony Andrews was on his porch when two African-American

males fired four or five gunshots, wounding him. After firing

the initial rounds of bullets, one of the two men approached

Andrews and attempted to shoot him in the face but narrowly

missed. When officers arrived on the scene, they found Andrews

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lying in the hallway of the residence, bleeding from his right

shoulder.

On the same evening, two men approached a restaurant

located near the scene of the Andrews’ shooting. One of the men

waited outside while the other entered briefly to purchase

cigarettes. As he exited the restaurant, an employee later

identified as Leno Zhou, noticed the man drawing a gun. Once

outside, both men began firing. Zhou heard four gunshots and

realized that he had been shot in the leg and that a patron,

Nibal Green, had been shot and killed.

After receiving treatment for his leg, Zhou was taken to

the police station where he identified defendant from a photo

array as one of the shooters. Defendant was apprehended later

that evening following a car and foot pursuit. One of the

pursuing officers recovered a gun discarded by defendant as he

attempted to flee. Ballistics confirmed that bullets and

casings found at the scene of both shootings had been fired from

that weapon.

An Essex County grand jury indicted defendant on two counts

of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:11-3(a); two counts of first-degree attempted

murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a); first-degree

murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2);

third-degree unlawful possession of a weapon, N.J.S.A. 2C:39

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5(b); second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a); second-degree aggravated assault,

N.J.S.A. 2C:12-1(b); third-degree receipt of stolen property,

N.J.S.A. 2C:20-7; and third-degree resisting arrest, N.J.S.A.

2C:29-2.

B.

In anticipation of trial, a pool of prospective jurors

consisting of thirty African Americans and sixty-five non

African Americans was brought to the courtroom. During jury

selection, the State used seven of its nine peremptory

challenges1 to strike African Americans from the jury venire.

The final jury panel was comprised of five African-American and

nine non-African-American jurors.

On the first day of trial, five days after the jury was

selected but before it was sworn, defense counsel raised a

Gilmore challenge, alleging that the State exercised its

peremptory challenges in a discriminatory manner. To support

his challenge, defense counsel cited only the prosecutor’s use

of seven of her nine challenges to strike African Americans.

The trial judge asked defense counsel, “Got anything else[,]”

and counsel replied, “I think that’s it.” The prosecutor

“vigorously oppose[d]” counsel’s Gilmore challenge, asserting

1 The prosecutor was entitled to a total of twelve peremptory challenges pursuant to Rule 1:8-3(d).

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that defendant failed to establish a prima facie case of

discrimination and denying that the State used its “p[er]emptory

challenges to systematically exclude members of . . . any group,

whether it be racial, gender, or otherwise.” The State further

pointed out that there were “a significant number of individuals

of African-American descent seated on the current jury, which we

expect to be sworn.”

The prosecutor then offered to explain her use of

peremptory challenges, but submitted that “since no prima facie

case has been made of a systematic exclusion of individuals . .

. there has been no grounds put forward for going any further in

the procedure set forth in the Gilmore case.” Without asking

for further explanation from the prosecutor or additional

argument from defense counsel, the trial court summarily

dismissed defendant’s Gilmore challenge, stating that “[t]here

being no prima facie case being made with regard to a

discriminatory pattern of jury selection on behalf of the State,

no further inquiry of this Court is necessary. The issue is

over.”

Thereafter, the jury, which included five African

Americans, was sworn and the trial proceeded to conclusion.

Defendant was convicted of two counts of first-degree conspiracy

to commit murder, first-degree attempted murder, first-degree

murder, third-degree unlawful possession of a weapon, second

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degree possession of a weapon for an unlawful purpose, simple

assault, and fourth-degree resisting arrest. The court

sentenced defendant to an aggregate sixty-seven-year prison term

subject to an eighty-five percent parole disqualifier pursuant

to the No Early Release Act, N.J.S.A. 2C:43-7.2.

C.

Defendant appealed his conviction. He argued, among other

things,2 that the trial court failed to engage in the three-step

analysis mandated by Gilmore, supra, 103 N.J. at 537-38.

The Appellate Division remanded,3

to afford the prosecution the opportunity to articulate its reasons for excusing the seven African-American prospective jurors and for the court to then weigh those reasons against defendant’s prima facie case in order to determine whether defendant has met his ultimate burden of proving by the preponderance of the evidence that the prosecution engaged in impermissible discrimination in exercising its peremptory challenges.

This Court denied defendant’s petition for certification. State

v. Thompson, 203 N.J. 439 (2010).

2 Defendant also claimed the trial court: (1) erred in its jury instruction on identification; and (2) subjected defendant to disparate treatment when it imposed a custodial sentence greater than the sentence received by his co-defendant.

3 Prior to the remand hearing, defendant filed a pro se petition for post-conviction relief (PCR). The PCR proceeding was not adjudicated until several months after the remand hearing and is not relevant for the purposes of this appeal.

8

D.

At the remand hearing, defendant was represented by new

counsel, who had to rely on trial transcripts of the jury

selection process because defendant’s trial counsel had since

moved to and was practicing law in Colorado; trial counsel

certified that he had no notes, files, or significant

recollection of the jury selection. As such, remand counsel

requested copies of the prosecutor’s notes from jury selection,

citing State v. Osorio, 199 N.J. 486 (2009). The court denied

defendant’s application, concluding that Osorio did not require

such notes to be turned over, but offered to provide counsel

with its own notes which were limited, for the most part, to

gender and race. It is unclear from the record whether defense

counsel accepted this offer.

The prosecutor, who also represented the State at trial,

then provided the court with the following explanations for the

State’s exercise of peremptory challenges to excuse seven

African-American prospective jurors:4

Juror B, who initially asked to be excused out of concern that serving on the jury may affect her probationary work status, was excused because she was familiar with the address where the crime occurred, had a family member previously accused of drug possession, and had been dissatisfied with the prosecution in a prior case in which a family member was the victim of a hit-and-run accident.

4 In the interest of privacy, the jurors are referred to by initials.

9

Juror G was excused because her boyfriend, who is also the father of her child, had been convicted of and was on probation for weapons charges, and his prosecution was undertaken by Essex County, the same office prosecuting defendant’s case.

Juror Gr, who indicated that she hosted adult-themed “passion parties,” was dismissed because she had been involved in a domestic violence case which had been initially prosecuted and subsequently dismissed by the Essex County Prosecutor’s Office and “the aggregate effect of those statements . . . cause[d] [the prosecutor] to have a reaction that she would not be a juror who would be equally open to the State’s evidence in this matter.”

Juror H, who worked in a half-way house and had a daughter who had been laid off from her job as a Corrections Officer, was excused because she was once subpoenaed as a witness, but did not ultimately testify, in a trial where her brother was convicted of homicide.

Juror Go was excused because he had been previously prosecuted by the Essex County Prosecutor’s Office in connection with a case that was eventually “thrown out” in which his son was the alleged victim.

Juror Mk, who expressed that she was very religious and indicated that she read daily meditations and regularly attended “meetings” of a possible religious nature, was excused because, after being denied an opportunity to ask follow-up questions, the prosecutor “felt that she might, in fact, be disturbed in sitting in judgment upon another individual, particularly in something as serious as a murder case.”

Juror Jn was dismissed because during voir dire he provided a “deliberately misleading” statement that neither he nor any member of his family had ever been charged with an offense. In actuality, the prosecutor was aware, and the juror subsequently admitted, that he and his brothers were facing assault charges in Essex County at the time of trial.

The prosecutor also noted that thirty of the ninety-five

potential jurors in defendant’s case, or approximately 31.5%,

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“appeared to be African-American.” By comparison, the final

jury was 35.7% African American –- five of the fourteen jurors5

were African American. Finally, the prosecutor explained that

with two African-American victims, one of whom was murdered and one of whom was only saved by the fact that one of the guns did not fire initially against his head . . . there was no intention on the part of the State to exclude African-Americans from this jury. It would not be, in my view, sound trial strategy and the exercise of peremptory challenges was done for situations, specific reasons, and without any intent to exclude a particular race, without any intent to exclude African- Americans.

Following the prosecutor’s presentation, the court asked

defense counsel, “you have anything?” Defense counsel

acknowledged that much of the information provided by the

prosecutor was supported by the transcript of jury selection,

but insisted that the defense was “at a substantial disadvantage

now because so much time has past [sic] and because Mr. Rosen,

the trial attorney, is not here.” Defense counsel also renewed

his application to review the prosecutor’s notes from jury

selection, which the court, once again, denied. The court then

held that defendant failed to carry his ultimate burden of

proving that the State’s use of peremptory challenges was

constitutionally impermissible. In making this determination,

5 Twelve jurors deliberate on a verdict and two serve as alternates in the event that a juror is unable to continue serving to verdict.

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the court found that the prosecutor’s stated reasons for

excusing the seven African-American prospective jurors were

credible and that the State “did not engage in impermissible

discrimination in exercising its peremptory challenges.”

Defendant appealed for a second time, arguing, among other

things,6 that his convictions must be reversed because the

prosecutor’s peremptory challenges were impermissible and

unconstitutional, and the record below regarding the challenges

was insufficient.

In a published opinion, the Appellate Division vacated the

judgment of conviction and remanded for a new trial. State v.

Thompson, 437 N.J. Super. 266 (App. Div. 2014). Relying on

Osorio, supra, the panel concluded that the failure of the court

to conduct “a Gilmore third-step analysis left open the question

whether the prosecutor’s ‘nondiscriminatory reason for

exercising a peremptory challenge which appear[ed] genuine and

reasonable on its face [was] suspect if the only prospective

jurors with that characteristic who the [prosecutor] has excused

are members of a cognizable group.’” Id. at 280 (quoting

Osorio, supra, 199 N.J. at 506) (citation omitted).

6 Defendant also claimed that the court impermissibly doublecounted aggravating factors during the re-sentencing hearing. This contention was not reached by the Appellate Division.

12

The panel then engaged in its own review of the jury

selection transcript and found that “the State’s proffered

explanations may not have been evenly applied.” Ibid.

Specifically, the panel claimed that although the prosecutor

excused Juror B, who was African American, she did not excuse

Juror Ch even though her answers to questions during voir dire

were similar to Juror B’s responses. Ibid. The panel

acknowledged that the race of Juror Ch was not recorded.7 Ibid.

The panel continued, “[i]t is also important to note that

the record, unfortunately, is silent with respect to responses

by many prospective jurors on key questions, such as whether

they were familiar with the crime area, and whether they or

members of their family had been crime victims.” Id. at 280-81.

Thus, it stated that

as in Osorio, the ‘scant record before us’ in this case ‘does not instill confidence that the trial [judge] properly exercised [his] discretion in assessing the propriety of the contested peremptory challenges.’ The failure to engage in the requisite third-step analysis mandated by the Supreme Court necessitates reversal.

[Id. at 281 (internal citation and quotation marks omitted).]

7 In its supplemental brief to this Court, the State represented that Ch was, in fact, African-American. This assertion has not been contested by defendant. We reiterate that on remand the trial court offered to hand over its own notes, which consisted of the sex and race of prospective jurors. It is unclear from the record whether defense counsel accepted this offer.

13

The Appellate Division did not reach the issue of disclosure of

the prosecutor’s jury selection notes, and this question is not

addressed here.8

II.

A.

We begin with a review of the basic principles governing a

challenge to the State’s use of peremptory challenges to excuse

minority jurors.

In Batson v. Kentucky, the United States Supreme Court held

that the Equal Protection Clause of the Fourteenth Amendment

“forbids the prosecutor to challenge potential jurors solely on

account of their race.” 476 U.S. 79, 89, 106 S. Ct. 1712, 1719,

90 L. Ed. 2d 69, 83 (1986). A defendant asserting the State’s

improper use of peremptory challenges under Batson must first

“make a prima facie showing that a peremptory challenge has been

exercised on the basis of race.” Snyder v. Louisiana, 552 U.S.

472, 476, 128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175, 180 (2008)

(citations and quotation marks omitted). Once this burden has

been met, the prosecutor “must offer a race-neutral basis for

striking the juror in question.” Id. at 477, 128 S. Ct. at

1207, 170 L. Ed. 2d at 180. Thereafter, the trial court is

8 Defendant now “agrees with the State that a criminal defendant is not entitled to a prosecutor’s notes by virtue of establishing a prime facie case under Gilmore.”

14

tasked with determining whether the defendant has established

intentional discrimination, “in light of the parties’

submissions.” Id. at 477, 128 S. Ct. at 1207, 170 L. Ed. 2d at

181.

Batson’s first two steps “govern the production of evidence

that allows the trial court to determine the persuasiveness of

the defendant’s constitutional claim.” Johnson v. California,

545 U.S. 162, 171, 125 S. Ct. 2410, 2417-18, 162 L. Ed. 2d 129,

140 (2005). “It is not until the third step that the

persuasiveness of the justification becomes relevant -- the step

in which the trial court determines whether the opponent of the

strike has carried his burden of proving purposeful

discrimination.” Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct.

1769, 1771, 131 L. Ed. 2d 834, 839 (1995) (citations omitted).

Under the Batson framework, the defendant shoulders the

ultimate “burden of persuasion” to “prove the existence of

purposeful discrimination.” Batson, supra, 476 U.S. at 93, 106

S. Ct. at 1721, 90 L. Ed. 2d at 85 (internal quotation marks and

citations omitted). This burden “rests with, and never shifts

from, the opponent of the strike.” Purkett, supra, 514 U.S. at

768, 115 S. Ct. at 1771, 131 L. Ed. 2d at 839. Discriminatory

intent “may be proven by systematic exclusion of eligible

jurymen of the proscribed race or by unequal application of the

law to such an extent as to show intentional discrimination.”

15

Hernandez v. New York, 500 U.S. 352, 373, 111 S. Ct. 1859, 1873,

114 L. Ed. 2d 395, 415 (1991) (O’Connor, J., concurring)

(citations and quotation marks omitted). However, the United

States Supreme Court has cautioned that “[t]he inherent

uncertainty present in inquiries of discriminatory purpose

counsels against engaging in needless and imperfect speculation

when a direct answer can be obtained by asking a simple

question.” Johnson, supra, 545 U.S. at 172, 125 S. Ct. at 2418,

162 L. Ed. 2d at 140-41. Thus, “if . . . the trial court

believes the prosecutor’s nonracial justification, and that

finding is not clearly erroneous, that is the end of the

matter.” Hernandez, supra, 500 U.S. at 375, 111 S. Ct. at 1875,

114 L. Ed. 2d at 416 (O’Connor, J., concurring).

Less than three months after Batson was handed down, this

Court, in Gilmore, supra, determined that the provisions of the

New Jersey Constitution, Article I, Paragraphs five, nine, and

ten, likewise prohibited a prosecutor from exercising peremptory

challenges on the basis of religious principles, race, color,

ancestry, national origin, or sex. 103 N.J. at 524-29.

Building on the principles articulated in Batson, the Gilmore

Court outlined a similar three-step analysis for trial courts to

follow when adjudicating a claim of unconstitutional

discrimination in the use of peremptory challenges. Id. at 533

39.

16

That analysis begins with the “rebuttable presumption that

the prosecution has exercised its peremptory challenges on”

constitutionally permissible grounds. Id. at 535. From there,

the Gilmore Court instructed that, as the first step, “[t]his

presumption may be rebutted . . . upon a defendant’s prima facie

showing that the prosecution exercised its peremptory challenges

on constitutionally-impermissible grounds.” Ibid. To make out

a prima facie claim, Gilmore required a defendant to “initially

. . . establish that the potential jurors wholly or

disproportionally excluded were members of a cognizable group,”

and then that “there is a substantial likelihood that the

peremptory challenges resulting in the exclusion were based on

assumptions about group bias rather than any indication of

situation-specific bias.” Id. at 535-36.

Once the trial court is satisfied that the defendant has

made this prima facie showing, “[t]he burden shifts to the

prosecution to come forward with evidence that the peremptory

challenges under review are justifiable on the basis of concerns

about situation-specific bias.” Id. at 537. This is

accomplished by the prosecutor “articulat[ing] ‘clear and

reasonably specific’ explanations of its ‘legitimate reasons’

for exercising each of the peremptory challenges.” Ibid.

(quoting Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248,

258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207, 218 (1981)). The

17

State’s explanations, “if they appear to be genuine, should be

accepted by the court, which will bear the responsibility of

assessing the genuineness of the prosecutor’s response and of

being alert to reasons that are pretextual.” Id. at 538

(quoting McCray v. Abrams, 750 F.2d 1113, 1132 (2d Cir. 1984)).

After the defendant has rebutted the presumption of

constitutionality by making a prima facie showing (step one) and

the prosecutor has proffered an explanation based on permissible

grounds (step two), Gilmore’s third step is applied. In this

last step of the analysis, “the trial court must judge the

defendant’s prima facie case against the prosecution’s rebuttal

to determine whether the defendant has carried the ultimate

burden of proving, by a preponderance of the evidence, that the

prosecution exercised its peremptory challenges on

constitutionally-impermissible grounds of presumed group bias.”

Id. at 539.

We revisited the trial court’s obligation to conduct a

three-step analysis when considering a challenge to the

prosecutor’s use of peremptory challenges in Osorio. In that

case, defendant, a Hispanic male, was arrested and charged with

various drug-related offenses. Osorio, supra, 199 N.J. at 493.

During jury selection, the prosecutor used her first six

peremptory challenges to strike African-American and Hispanic

jurors. Ibid. Defense counsel raised a Gilmore challenge, but

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the trial court summarily rejected the objection without

requiring an explanation from the State. Ibid. After the

prosecutor used her next challenge to dismiss an African

American juror, the court asked for an explanation. Id. at 493

94. The prosecutor claimed that the juror appeared to be

sleeping, and the court stated that it was “satisfied” without

inviting the prosecutor’s justification for the first six

peremptory challenges or any response from defense counsel. Id.

at 494.

On appeal, the Appellate Division affirmed defendant’s

convictions, but remanded to the trial court for the prosecutor

to justify her reasons for striking the minority jurors. Ibid.

At the remand hearing, the prosecutor stated, “Juror Number 9,

from Newark, and Juror Number 10, from East Orange, both

Hispanic females seated next to each other, were excused because

they were ‘giggling [and] high[-]fiving when a juror in the back

row was excused’ and were ‘making faces[.]’” Id. at 495.

Without the benefit of its own trial notes or “separate

recollection of the jury selection process,” the trial court

accepted the prosecutor’s representations, did not allow defense

counsel to respond and, once again, rejected the defendant’s

Gilmore challenge. Id. at 496.

Defense counsel later sought to supplement the remand

record, claiming that the prosecutor’s representations regarding

19

Jurors 9 and 10 did not “conform to his recollection, [and] . .

. that he ‘remember[ed] those two people very well,’” and they

did not engage in any of the gesturing described by the

prosecutor. Ibid. In light of this factual dispute, the delay

in time, and the prosecutor’s “failure to apply the purported

reason[s] for the excusal” even-handedly,9 the Appellate Division

reversed and remanded for a new trial. Id. at 498.

We affirmed the Appellate Division’s grant of a new trial.

In doing so, we reexamined the rule established in Gilmore and

refined its three-step analysis. First, we modified the

“substantial likelihood” standard set forth in the first step of

the Gilmore analysis in light of Johnson, supra, which “ma[de]

clear that the burden to overcome the presumption of

constitutionality of a peremptory challenge exercise is far less

exacting than was originally stated in Gilmore.” 103 N.J. at

502. Thus, we reduced Gilmore’s “substantial likelihood”

9 Apparently, four out of the twenty-one prospective jurors who indicated that either they, a relative, or a friend had been a crime-victim were seated on the jury. State v. Osorio, 402 N.J. Super. 93, 107-08 (App. Div. 2008). However, the prosecutor excused an African-American juror, who was the only prospective juror to state that the perpetrator “got off,” even though others who reported that the perpetrator was never apprehended were not subject to peremptory excusal by the State. Id. at 108. The Appellate Division had “difficulty understanding how a prosecutor could [conclude] that a prospective juror who felt that the perpetrator of a crime against a family member ‘got off’ would be biased against the State, but that prospective jurors who had been informed the perpetrator had not been apprehended would not have such bias.” Ibid.

20

standard to the less-onerous “inference” standard set forth in

Johnson. Ibid.; see Johnson, supra, 545 U.S. at 170, 125 S. Ct.

at 2417, 162 L. Ed. 2d at 139 (clarifying that “a defendant

satisfies the requirements of Batson’s first step by producing

evidence sufficient to permit the trial judge to draw an

inference that discrimination has occurred”).

Next, we reiterated that the third step of the Gilmore

analysis requires the trial court to “weigh the proofs . . . and

determine whether, by a preponderance of the evidence, the party

contesting the exercise of a peremptory challenge has proven

that the contested peremptory challenge was exercised on

unconstitutionally impermissible grounds of presumed group

bias.” Osorio, supra, 199 N.J. at 492-93. In conducting this

last phase of the analysis, the court must assess, among other

things, whether the State has applied the proffered reasons

“even-handedly to all prospective jurors”; the “overall pattern”

of the use of peremptory challenges; and “the composition of the

jury ultimately selected to try the case.” Id. at 506 (quoting

State v. Clark, 316 N.J. Super. 462, 473-74 (App. Div. 1998),

appeal after remand, 324 N.J. Super. 558 (App. Div. 1999),

certif. denied, 163 N.J. 10 (2000)). In the end, we concluded

that a second remand seven years after jury selection would have

been futile, and that a new trial was required because there

were irreconcilable factual issues regarding two of the

21

peremptorily challenged jurors that could not be resolved by the

“scant record before us.” Id. at 509.

B.

Guided by these principles, we turn to the applicable

standard of review. To begin, we note that in the instant case

the Appellate Division did not articulate the standard it

employed when reviewing the trial court’s determinations on

remand. In addition, our review of this Court’s jurisprudence

reveals that we have not enunciated the standard to be applied

to a trial court’s findings under the Gilmore analysis.

In Clark, supra, the Appellate Division noted that “[a]n

Appellate Court will extend substantial deference to a trial

court’s findings relating to whether the prosecution has

exercised its peremptory challenges on constitutionally

impermissible grounds.” 316 N.J. Super. at 473. This

deferential standard is similar to that applied by the federal

courts where, “[t]he opponent of the strike bears the burden of

persuasion regarding racial motivation, and a trial court

finding regarding the credibility of an attorney’s explanation

of the ground for a peremptory challenge is entitled to great

deference.” Davis v. Ayala, __ U.S. __, __, 135 S. Ct. 2187,

2199, 192 L. Ed. 2d 323, 335 (2015) (internal citations and

quotation marks omitted). Thus, under federal law, “[o]n

appeal, a trial court’s ruling on the issue of discriminatory

22

intent must be sustained unless it is clearly erroneous.”

Snyder, supra, 552 U.S. at 477, 128 S. Ct. at 1207-08, 170 L.

Ed. 2d at 181 (citations omitted).

We find the federal standard of review for a trial court’s

factual determinations regarding a Batson claim to be

appropriate under Gilmore and in line with our own well-settled

body of law directing appellate courts to “‘give deference to

those findings of the trial judge which are substantially

influenced by his opportunity to hear and see the witnesses and

to have the “feel” of the case, which a reviewing court cannot

enjoy.’” State v. Elders, 192 N.J. 224, 243 (2007) (quoting

State v. Johnson, 42 N.J. 146, 161 (1964)). Indeed, “[a]n

appellate court should not disturb the trial court’s findings

merely because ‘it might have reached a different conclusion

were it the trial tribunal’ or because ‘the trial court decided

all evidence or inference conflicts in favor of one side’ in a

close case.” Id. at 244 (quoting Johnson, supra, 42 N.J. at

162). Therefore, “[a] trial court’s findings should be

disturbed only if they are so clearly mistaken ‘that the

interests of justice demand intervention and correction.’”

Ibid. (quoting Johnson, supra, 42 N.J. at 162). This standard,

we note, necessarily applies to the trial court’s assessment of

the prosecutor’s candor and sincerity in the presentation of

reasons for exercising peremptory challenges. See State v.

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Williams, 113 N.J. 393, 411 (1988) (acknowledging that appellate

courts are “‘perhaps too far removed’ from the realities of the

voir dire to appreciate the nuances concealed by a ‘bloodless

record’; therefore deference to the trial court is usually

prudent”) (quoting Gilmore, supra, 103 N.J. at 547 (Clifford,

J., dissenting)).

III.

With this deferential standard in mind, we apply the law

applicable to defendant’s challenge of the prosecutor’s use of

peremptory challenges. In doing so, we must resolve whether

defendant is entitled to a new trial owing to the remand court’s

purported failure to balance defendant’s prima facie case

against the prosecution’s rebuttal evidence to determine whether

defendant carried the ultimate burden of proving, by a

preponderance of the evidence, that the prosecution “exercised

its peremptory challenges on constitutionally-impermissible

grounds.” Gilmore, supra, 103 N.J. at 539.

At the outset, we note that defendant’s Gilmore objection,

while timely, was made five days into jury selection on the

scheduled first day of trial, after challenges had been

exercised and prospective jurors excused, but before the jury

was sworn. Furthermore, in support of his objection, defense

counsel presented only that the prosecutor used seven of her

nine peremptory challenges to excuse African-American

24

prospective jurors. When the trial court asked counsel to

elaborate further, he was unable to do so.

The prosecutor then argued that defendant failed to

establish a prima facie case, but nonetheless offered that “[i]f

the Court wishes, I can with a few moments make a record clearly

about the current composition as the State sees it of the

sitting jury.” The court responded by saying merely that

defendant had failed to establish a “prima facie case . . . with

regard to a discriminatory pattern of jury selection on behalf

of the State, [and that] no further inquiry of this Court is

necessary.” This conclusion by the court was incorrect because

defendant established a prima facie claim by pointing out that

the prosecutor exercised seven of the nine peremptory challenges

to strike African Americans. See Osorio, supra, 199 N.J. at 503

(noting that a defendant meets his burden under the first step

of the Gilmore analysis by showing that the State “has used a

disproportionate number of [its] peremptories against [a

cognizable] group”) (citations and quotation marks omitted).

As emphasized in Gilmore, supra, we require a defendant’s

timely10 objection to the prosecution’s use of peremptory

challenges in order to “facilitate the development of as

10 A Gilmore challenge is timely so long as it is raised “during or at the end of the jury selection, but before the petit jury is sworn.” Gilmore, supra, 103 N.J. at 535.

25

complete a record of the circumstances as is feasible, as well

as enabling the trial court to make a fairer determination.”

103 N.J. at 535. Here, the trial court failed to allow

development of as complete a record as possible when it did not

require the prosecutor to justify, before the jury was sworn,

her use of seven out of nine peremptory challenges to remove

African Americans. Although, in this instance, the prosecutor

argued, and the trial court agreed, that defendant failed to

make out a prima facie case of purposeful discrimination, we

cannot condone the trial court’s decision to summarily end the

inquiry at this stage.

We acknowledge that, under Gilmore, the analysis ends if

the trial court finds that defendant failed to meet his initial

burden of establishing a prima facie case of purposeful

discrimination. However, as a practical matter, the better

practice is to allow the State to make a record of its reasons

for exercising its peremptory challenges, especially where, as

here, the prosecutor offers to do so. Because this did not

occur there was sufficient support for the initial remand

ordered by the Appellate Division. Of course, given what

occurred on remand and the extreme remedy imposed by the

Appellate Division thereafter, our analysis does not end here.

On remand, the prosecutor presented race-neutral reasons

for excusing each African-American prospective juror, reminded

26

the court that the final composition of the empaneled jury

included a higher percentage of African Americans than the

venire, and explained that the State’s trial strategy benefited

from having African-American jurors because two of the three

victims in this case were also African American. When asked to

respond, defense counsel replied by acknowledging the general

accuracy of the prosecutor’s representations based on the trial

record, and that it had nothing more to add, emphasizing that it

was disadvantaged by the lapse in time and lack of notes from

defendant’s trial counsel.11 Balancing the State’s

representations, which the court found to be credible and

reasonable, against defense counsel’s failure to point to any

facts to support his argument of purposeful discrimination, the

trial court determined that defendant did not carry his ultimate

burden under Gilmore and denied defendant’s application.

Nevertheless, on appeal from the remand hearing, the

Appellate Division found that the trial court failed to advance

the “third critical step in the Gilmore analysis” and,

furthermore, that “[t]he transcript of the jury selection

11 Defense counsel’s contention that he was at a disadvantage because of the passage of time and the lack of notes from defendant’s trial counsel who certified that he had no notes or recollection of the jury selection process, does not excuse defendant’s responsibility to demonstrate, by a preponderance of the evidence, that the prosecution “exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias.” Gilmore, supra, 103 N.J. at 539.

27

process suggests that the State’s proffered explanations may not

have been evenly applied.” Based on those purported failures,

and relying on our prior decision in Osorio, the panel reversed

defendant’s convictions and remanded for a new trial.

In Osorio, we held that a proper Gilmore analysis must

include a careful weighing of whether the reasons proffered for

the challenges were applied even-handedly to all prospective

jurors, against a consideration of the overall pattern of the

State’s use of peremptory challenges and the composition of the

jury ultimately empaneled. 199 N.J. at 506-07. This analysis

presumes that a defendant will present information beyond the

racial makeup of the excused jurors. The Appellate Division

found in Osorio, and we agreed, that the seven years since jury

selection made remand useless to resolve the factual issues

raised by defense counsel –- namely, that the prosecutor’s

representations about the jurors peremptorily stricken were

inaccurate. Id. at 508. Consequently, our focus in Osorio was

on the failure of the trial court to address the challenges

during the jury selection process while each party’s

recollection was fresh. Id. at 507-08.

In this case, in order to justify vacating defendant’s

conviction and remanding the matter for a new trial, the

Appellate Division ignored the trial court’s credibility

findings, canvassed the record to find an “example” of the

28

prosecutor’s supposed uneven application of peremptory

challenges, and misread and misapplied Osorio’s requirement that

a defendant carry the ultimate burden of persuasion under

Gilmore. Like Osorio, several years have elapsed between

defendant’s trial and remand by the Appellate Division, and

several more have gone by since defendant’s second appeal.

However, unlike in Osorio, defendant failed to present to the

remand court, the Appellate Division, or this Court any factual

contentions concerning any of the prospective jurors.

Additionally, the reasons given by the prosecutor for exercising

her peremptory challenges against seven African-American

prospective jurors did not involve disputed facts that could not

be resolved by the record.

The present case differs from Osorio in two additional

respects. First, the remand court here compared the racial

composition of the venire to the empaneled jury. Second, the

remand court in this case gave defendant an opportunity, in

response to the State’s explanations, to provide information

beyond the fact that seven of the nine peremptory challenges

were against African-American prospective jurors. That

defendant was unable to do so supports the court’s conclusion

that defendant failed to carry his ultimate burden and, under

our deferential standard of review, militates against the

Appellate Division’s reversal.

29

In light of defense counsel’s responses, the remand court

here would have had to conduct an independent, unassisted

investigation of the record in order to undertake the analysis

required by Osorio because defendant did not present any

information or point to any part of the record that would

facilitate such an analysis. Nothing in Gilmore or Osorio

placed the onus on the court to comb the record for instances

where a juror selected provided answers similar to the reasons

the State proffered for its use of a peremptory challenge; it is

the defendant’s obligation to do so.

The perils of such a belated review of the record are

highlighted here, where the Appellate Division accused the State

of administering its challenges unevenly. To support this

accusation, the panel culled through the record and located a

single instance in which it found the prosecutor may have

dismissed an African American from the venire while choosing not

to remove a similarly situated prospective juror whose race was

not reflected in the record. Setting aside our reservations

about this practice, the panel’s underlying assumption that the

juror in question was not a member of a cognizable group appears

to have been incorrect. As the State noted in its supplemental

petition to this Court, that juror who was seated was, in fact,

also African American. Moreover, the acknowledged failure of

defendant to counter any of the prosecutor’s suggestions or

30

raise an “uneven application” argument made it impossible for

the court to “include in its findings any of the third-step

considerations” outlined in Osorio. Indeed, such an analysis of

the parties’ contentions would have provided no more information

than is contained in the trial and remand records.

As we stated in Osorio, the emphasis must be on properly

resolving this issue in a timely manner -- ideally during the

course of the jury-selection process. Osorio, supra, 199 N.J.

at 508-09. Accordingly, a contemporaneous review is most

conducive to resolution of those challenges because a detailed

record and the parties’ own recollections are vital to a proper

Gilmore analysis. The development of such a record requires

that all strikes by the State and defendant be documented in

sufficient detail to facilitate appellate review; it is the

trial court’s burden to see that this is done.

Here, however, no facts were at issue that could have been

resolved by a timely resolution of defendant’s Gilmore

challenge. Moreover, the prosecutor’s race-neutral reasons for

striking the jurors were found by the court to be credible and

were supported by the record. In light of the remand record,

and pursuant to our deferential standard of review, we conclude

that the court conducted an adequate Gilmore third-step

analysis, and its findings were not erroneous. Therefore,

reversal and remand for a new trial was not appropriate.

For the reasons set forth above, the judgment of the

Appellate Division is reversed, and the matter is remanded for

the Appellate Division to consider defendant’s sentencing claim.