STATE OF NEW JERSEY v. MICHAEL COLBERT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5638-02T45638-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

MICHAEL COLBERT,

Defendant-Appellant.

__________________________________

Submitted: November 17, 2004 - Decided: December 21, 2004

 
Remanded by the Supreme Court: July 7, 2005

Resubmitted: December 5, 2005 - Decided:

Before Judges Cuff and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County and on remand from the Supreme Court, Indictment No. 01-06-1746.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant is serving a nine-year term of imprisonment with a five-year period of parole ineligibility following his conviction of two counts of sexual assault. The victim was the ten year old daughter of defendant's girlfriend. In an unreported opinion, we affirmed his conviction. State v. Colbert, No. A-5638-02 (App. Div. Dec. 21, 2004). We specifically rejected defendant's contention that the trial court's denial of defendant's request to be present at sidebar conferences during jury voir dire denied him the right to a fair trial. Defendant filed a petition for certification.

On July 7, 2005, defendant's petition for certification was granted and the Supreme Court summarily remanded the matter to this court for reconsideration in light of State v. W.A., 184 N.J. 45 (2005). State v. Colbert, 185 N.J. 27 (2005). Defendant argues that the limited lawyer-shuttle system utilized at trial was inadequate to preserve defendant's right to be present at sidebar conferences held during voir dire. The State contends that any error was harmless.

In W.A., the Court held that a defendant's presence at sidebar conferences during jury voir dire is inextricably related to defendant's right to be present at trial. W.A., supra, 184 N.J. at 59. Thus, "if a defendant seeks to be present at sidebar during voir dire[,] he should be accommodated as far as security will allow." Id. at 60. If security concerns prevent defendant's physical presence at sidebar, the judge must place those concerns on the record and craft a procedure to guarantee defendant's meaningful participation in voir dire. Ibid. Those methods may include the use of technology, such as a wireless listening device, a modified use of the struck-jury system, or the lawyer-shuttle system. Id. at 60-61. The lawyer-shuttle system, however, is clearly not the preferable system. Justice Long wrote:

If all of those methods are unavailable (for example, when there are legitimate security concerns, no electronic means are immediately accessible, and the juror is unwilling to speak in open court), the judge may resort to the lawyer-shuttle system . . . . Because that method interposes the lawyer between the client and the juror, it is not as effective for peremptory challenge purposes as the direct observation-hearing methods. Nevertheless, it is a potential way to secure a defendant's "presence" and participation in voir dire when direct participation is impractical.

[Id. at 61.]

The Court emphasized that the right to be present at sidebar conferences during voir dire may be waived, id. at 62, and that each case in which a defendant is excluded from sidebar conferences is subject to a harmless error analysis. Id. at 64. As to whether the exclusion is harmless, the Court stated that when an exchange occurs at sidebar that involves a matter of substance and the juror is seated, the exclusion may not be considered harmless. Id. at 65. A matter of substance includes an issue implicated by the facts of the offense, such as a prospective juror's views on homosexuality when the charged offense is a hate crime against a homosexual or a prospective juror's views on child abuse when the charged offense is a physical or sexual assault involving a child. Ibid.

In W.A., the defendant was charged with sexual assault and endangering the welfare of a child. The victim was his nine year old daughter. Id. at 49. A seated juror was a former child welfare advocate, and she expressed the view that she still considered herself in that role. Id. at 66. Observing that the juror was a candidate for an excusal for cause, the Court found that, if defendant had known of the juror's responses to questions, he "would be loathe to allow her to serve on his jury," and held that the erroneous exclusion of defendant at sidebar was harmful error. Id. at 66-67.

Measured by this standard, we conclude that exclusion of defendant from sidebar conferences during jury empanelment coupled with the improvised lawyer-shuttle method utilized during jury voir dire cannot be considered harmless error. Our decision is grounded on the limitations of the method used and the substantive concerns raised by one of the seated jurors. Notably, the Court provided specific instructions when the disfavored lawyer-shuttle method is employed. Justice Long stated:

It bears repeating that when the lawyer-shuttle system is used, the lawyer must confer with his client after each sidebar interview that involves more than innocuous scheduling-type matters. In addition, if the lawyer-shuttle system is employed and a defendant so requests, the judge should take a recess before defendant's peremptory challenges are exercised to allow him to listen to the tape or review the court stenographer's notes of the sidebar colloquy with the non-excused jurors. By that approach, we balance the court's interest in security, the juror's in privacy, and the defendant's in presence.

[Id. at 61.]

Here, defendant expressly requested twice to be physically present at sidebar conferences during jury voir dire, and twice the request was denied. Although the courtroom was outfitted with sophisticated electronic equipment and the trial was videotaped, a makeshift lawyer-shuttle system was utilized. We surmise that the selected method was informed by the trial judge's failure to recognize the right to be present at sidebar conferences. In any event, the record reveals that consultation between defendant and his attorney was not extensive before peremptory challenges were exercised and defendant certainly did not have the opportunity to review videotape of the sidebar conferences with individual jurors before the exercise of peremptory challenges.

Furthermore, one of the seated jurors explained that his wife had been the victim of a sexual assault prior to their marriage. As in W.A., we are reasonably certain that defendant would have been reluctant to seat this juror if he knew of a juror's experience with a victim of sexual assault. Accordingly, we hold that the exclusion of defendant from sidebar conferences during jury selection was error, and that the makeshift lawyer-shuttle system did not adequately protect his right; therefore, we reverse and remand for a new trial.

Reversed and remanded for a new trial.

 

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A-5638-02T4

RECORD IMPOUNDED

December 22, 2005