State v. Colbert

918 A.2d 14, 190 N.J. 14, 2007 N.J. LEXIS 340
CourtSupreme Court of New Jersey
DecidedApril 4, 2007
StatusPublished
Cited by19 cases

This text of 918 A.2d 14 (State v. Colbert) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Colbert, 918 A.2d 14, 190 N.J. 14, 2007 N.J. LEXIS 340 (N.J. 2007).

Opinions

[17]*17Justice LONG

delivered the opinion of the Court.

At issue in this appeal is the retroactivity of our decision in State v. W.A., 184 N.J. 45, 875 A.2d 882 (2005). In particular, defendant, Michael Colbert, who fully participated in voir dire sidebars through the use of the lawyer-shuttle system,1 contends that the rule announced in W.A. requires nothing less than physical presence at sidebar and that his constitutional right to be present at all stages of his trial was violated. The Appellate Division agreed and invalidated defendant’s convictions. For the reasons that follow, and specifically because we part company with the Appellate Division in connection with retroactivity, we reverse and reinstate the judgment of the trial court.

I.

During the jury voir dire at his trial for two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, and one count of third-degree endangering the welfare of a child, N.J.S.A 2C:24-4a, defendant asked to be present at sidebar questioning of potential jurors. The trial judge denied the request and directed that defendant’s counsel engage in the lawyer-shuttle system. ..

Twenty-eight potential jurors were examined at sidebar. Of those, twenty-five were excused for cause, leaving, in the box, only three jurors who had been questioned at sidebar. At that, point, defendant reiterated his earlier objection to the proceedings:

[DEFENSE COUNSEL]: Judge ... [a]s you know, my client requested the right to be at sidebar conference with each individual juror. And the Court indicated it was uncomfortable with that procedure and asked me to be a go-between.
My client’s position is that unless he’s there and hears the inflection in their voice, sees their face, that he’s not able to adequately participate in the jury selection. But that’s already been decided by this Court.

Again the judge disagreed:

THE COURT: Well, for the record, I’ve excused almost’ every juror who might have had a concern or felt [he] would not be fair and impartial----So I have [18]*18excused quite a few from sidebars. And the few that I’ve kept that might have been a concern [ — ] you expressed to me what your concern was.
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: [Defendant], nothing personal. Just ... my procedure of doing the trial. I never have allowed sidebars with the defendants. So nothing personal to you. It’s just the way I do it.

Immediately following that colloquy, the judge took a short recess, at which point defendant had the chance to discuss with his counsel the three remaining jurors who had been questioned individually at sidebar but not excused. Although there is no record of the conversations between defendant and his counsel, we note that defendant has never claimed and does not now contend that he did not discuss with his lawyer, as part of the lawyer-shuttle process, the substance of what was disclosed during the sidebars.

When the trial reconvened, neither the prosecution nor the defense peremptorily challenged any of the three potential jurors who were examined at sidebar, despite the fact that defendant had earlier unsuccessfully challenged one of those jurors for cause. Two of the three jurors subsequently served on the jury. The third was an alternate. In all, defendant exercised only nine of his twenty peremptory challenges.

The jury found defendant guilty of both counts of sexual assault and not guilty of endangering the welfare of a child. He was later sentenced to concurrent custodial terms of nine years, each with a five-year period of parole ineligibility.

On his motion for a new trial, defendant advanced, among other issues, his right of presence at the voir dire sidebars. During the motion, defense counsel stated that “my client was very actively involved in jury selection; in fact, not a single juror was selected here without the input of my client; in fact, he himself chose certain jurors to be selected off the panel or requested other jurors to stay.” Nevertheless, counsel asserted that his client had “the unabridged constitutional right to be present at all phases of his trial, including jury selection____”

The trial judge again disagreed:

[19]*19Both attorneys were present during the sidebar. And I asked [defendant’s] attorney to relay any information told [to] him by the jurors.
[Defendant] was in the courtroom during the questioning, and was able to observe potential jurors. There was nothing blocking [defendant] from the jurors at the sidebar, and he was probably less than twenty feet away. He was able to see the jurors’ expressions and demeanor.
This ease is not like the Dishon or Lomax case[s]. Here, [defendant] was present during the sidebar questioning. The attorneys were allowed to listen to the conference. After the conference took place, [defendant’s] attorney relayed the information to him.
Unlike Dishon, ... where the jurors were questioned in the Judge’s chambers, and the defendant could not evaluate their demeanor, [defendant] in this case was able to see the jurors’ expressions. In addition, [defendant’s] attorney was present during the sidebar, unlike the defendant’s attorney in Lomax. Thus, the defendant had the ability to judge the jurors and remove them, if necessary.
Although the State has to prove harmless error beyond a reasonable doubt, this Court did not find any error. The attorneys were present during the sidebar, and [defendant] was in the courtroom. He was able to observe and hear any information relayed.

The judge noted that “there were no jurors that I recall that I did not excuse myself if there was any even hint that they could not be fair and impartial”; that “there were no jurors that were kept on this jury on the opposition of defense counsel”; and that “constitutional rights were not violated.”

On appeal, defendant again contended that his right to a fair trial was abridged “because the trial judge denied him the right to be present during sidebar conferences with potential jurors.” The Appellate Division rejected that argument and affirmed defendant’s convictions:

[Defendant was in the courtroom and could observe the gestures and expressions of the juror[s]. Defense counsel was instructed by the trial judge to discuss the juror[s’] response[s] with defendant. Additionally, the sidebars were conducted before any peremptory challenges were exercised, not after they had all been exhausted as in Dishon.

The panel concluded:

A defendant enjoys a constitutional right to be present at all stages of the trial, including the selection of the jury, and in this case, he was effectively present during the entire jury selection process. The procedure employed here did not deny defendant the right to participate in the exercise of his peremptory challenges. Defendant had the opportunity to consult with counsel before the defense exercised any challenge. There is no showing that any potential juror which [defendant] challenged peremptorily was not excused by the court. Under the

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Bluebook (online)
918 A.2d 14, 190 N.J. 14, 2007 N.J. LEXIS 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-colbert-nj-2007.