In re Harris

671 A.2d 1278, 164 Vt. 628, 1995 Vt. LEXIS 138

• Court: Supreme Court of Vermont
• Decided: December 22, 1995
• Docket: No. 94-658
• Status: Published

Opinions

Petitioner appeals the Chittenden Superior Court’s denial of his petition for post-conviction relief, arguing that the court erred in concluding that he waived his right to be present for jury voir dire. We affirm.

Petitioner was charged with sexual assault upon, and lewd and lascivious conduct with, a minor. He was convicted, and the conviction was affirmed. He then filed this petition for post-conviction relief alleging that he was absent from a portion of the jury voir dire at his trial.

On the first day of petitioner’s trial, jury voir dire was conducted in open court with petitioner present. On the following morning, petitioner’s attorney moved for a mistrial, asserting as grounds media reports that an investigator for defense counsel had threatened or intimidated a witness. The trial court heard arguments on the motion at an in-chambers hearing. The transcript of the in-chambers proceeding is missing, but petitioner’s attorney testified that the court then proceeded to conduct individual voir dire concerning the media reports.

Petitioner had informed his attorney of his desire to be present at all stages of his trial whenever permissible but understood that such involvement did not include chambers conferences involving strictly legal matters. He indicated his desire to be present at the hearing on the motion for a mistrial but was told by his attorney to wait in the hallway. When the court proceeded to conduct individual voir dire, petitioner’s attorney did not ask the court if petitioner could be present, or object because of his absence, or inform petitioner that the voir dire would be conducted. Although the transcripts are ambiguous, petitioner’s attorney testified that she exercised petitioner’s peremptory challenges in open court after first discussing them with him.

We do not address whether petitioner waived his right to be present for jury voir dire because the facts of this case do not support post-conviction relief. To obtain post-conviction relief, the petitioner must establish by a preponderance of the evidence that fundamental errors rendered his conviction defective. State v. Bristol, 159 Vt. 334, 337, 618 A.2d 1290, 1291 (1992). We have also said that petitioner must prove he was prejudiced by the trial court’s action. In re Kivela, 145 Vt. 454, 458, 494 A.2d 126, 129 (1985). We conclude that petitioner’s absence from the in-chambers voir dire did not render his conviction defective or result in prejudice against him.

A defendant’s right to be present during jury von- dire facilitates his statutory right, under 12 VS.A. § 1941, to exercise peremptory challenges. It is also an essential element of his right to a jury trial. State v. Mercier, 98 Vt. 368, 371, 127 A. 715, 716 (1925). Here, petitioner’s absence from in-chambers voir dire did not impair his right to exercise peremptory challenges.

The in-ehambers voir dire involved questioning venire members about exposure to the media reports that appeared the morning of May 25. Later, in open court and in petitioner’s presence, the court and petitioner’s attorney again questioned the same venire members about their exposure to media reports. In petitioner’s presence, they were asked:

Do any of you people of your own knowledge know anything at all about the facts of this case? ... Do you remember having read or heard or seen anything about this case? . . . Did anyone read the newspaper today of [sic] this new group of witnesses? . . . Did anyone else see the Burlington Free Press or listen to any news there might have been about this case on your way into court?

Further, petitioner’s attorney took notes during the in-chambers voir dire, and reviewed those notes with petitioner prior to exercising any of his peremptory challenges. Petitioner was not prejudiced by his absence from the in-chamber voir dire, and the superior court’s denial of his motion for post-conviction relief was not error.

Affirmed.