STATE OF NEW JERSEY v. SHAWN M. LOGAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0716-O3T40716-O3T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN M. LOGAN,

Defendant-Appellant.

_________________________________

 

Submitted October 25, 2005 - Decided

Before Judges Coburn, Collester and

S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-09-1709.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief; Adam DeJohn, on the brief).

Shawn M. Logan filed a pro se supplemental brief.

PER CURIAM

Defendant, Shawn Logan, was indicted for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count one); first-degree carjacking, contrary to N.J.S.A. 2C:15-2a (count two); second-degree eluding, contrary to N.J.S.A. 2C:29-2b (count three); third-degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1b(5)(a) (count four); second-degree aggravated assault while eluding, contrary to N.J.S.A. 2C:29-2 and N.J.S.A. 2C:12-1b(6) (count five); third-degree burglary, contrary to N.J.S.A. 2C:18-2 (count six); and third-degree theft, contrary to N.J.S.A. 2C:20-3a (count seven).

Following a jury trial he was convicted of second-degree eluding a police officer while causing risk of injury to others, third-degree burglary, third-degree theft of movable property, two counts of simple assault, and unlawful taking of a motor vehicle. He received an aggregate sentence of fifteen years imprisonment with seven years parole ineligibility.

He appeals his conviction and sentence, raising the following issues:

POINT I: THE TRIAL JUDGE'S DECISION TO CONDUCT A VOIR DIRE OF MANY OF THE JURORS AT SIDEBAR WITHOUT THE DEFENDANT BEING ABLE TO SEE THE JURORS, OBSERVE THEIR DEMEANOR, OR HEAR THEIR ANSWERS TO THE COURT'S QUESTIONS, VIOLATED THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND TO THE CONFRONTATION CLAUSE GUARANTEE TO BE PRESENT IN THE COURTROOM AT EVERY CRITICAL STAGE OF THE PROCEEDINGS. U.S. CONST. AMENDS: V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10 (1947).

POINT II: NEW JERSEY'S SENTENCING STATUTES ARE UNCONSTITUTIONAL BECAUSE THEY ASSIGN TO JUDGES THE TASK OF FINDING AGGRAVATING FACTORS UNDER THE PREPONDERANCE-OF-THE-EVIDENCE STANDARD IN ORDER TO IMPOSE A SENTENCE HIGHER THAN THE ONE AUTHORIZED SOLELY BY THE JURY'S VERDICT.

A. N.J.S.A. 2C:44-1f(1) Is Unconstitutional Because It Mandates Imposition Of A Presumptive Term But Permits Judges To Impose A Higher Sentence Based On Judicial Fact-Finding Under The Preponderance Of The Evidence Burden Of Proof.

1. The Presumptive Sentence Specified In N.J.S.A. 2C:44-1f(1) Is The Only One Authorized By A Jury's Verdict.

2. The Legislature Clearly Intended Judges to Find, By A Preponderance Of The Evidence, The Statutory Aggravating Factors That Result In A Sentence Higher Than The Presumptive Term.

3. The State Might Argue that Blakely's Critical Holding Is Inapplicable Focusing On The Maximum Punishment Available After Additional Fact-Finding.

4. State v. Natale's Holding On This Position In Its Opinion And State v. Abdullah's Dicta Does Not Bind This Panel And Should Not Be Followed. Moreover, New Jersey Supreme Court or the United States Supreme Court May Overrule This Portion Of The Natale Holding.

B. N.J.S.A. 2C:43-6b Is Unconstitutional Because It Permits A Court To Impose A Period Of Parole Ineligibility Not Authorized By The Verdict Alone Based On Judge-Made Findings.

C. N.J.S.A. 2C:44-5 Is Unconstitutional Because It Permits A Court To Impose Consecutive Sentences Based On Judge-Made Findings.

POINT III: THIS COURT CANNOT REWRITE N.J.S.A. 2C:44-1f(1) TO REQUIRE JURY TRIALS ON AGGRAVATING FACTORS THAT OUR LEGISLATURE CLEARLY INTENDED JUDGES TO FIND. ONLY THE LEGISLATURE CAN REMEDY THE CONSTITUTIONAL FLAW PATENT IN THE STATUTE.

POINT IV: EVEN WERE THIS COURT INCLINED TO WRITE A JURY TRIAL REQUIREMENT INTO THE STATUTES AT ISSUE, DEFENDANT IS ENTITLED TO THE EXACT SAME REMEDY.

A. As A Matter Of Law, The Failure To Submit 2C:44-la's Aggravators To The Jury Can Never Be Considered Harmless Error.

B. This Court Cannot Order A Retrial Limited To The Three Statutory Aggravators Without Working A New Constitutional Violation.

1. Retrial Would Violate The

Right To Indictment.

2. Retrial Would Violate

Double Jeopardy Principles.

3. Conclusion.

POINT V: THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND SHOULD SHOCK THE CONSCIENCE OF THIS COURT.

Because defendant was not permitted to be present at sidebar for the questioning of jurors during jury selection, we are persuaded that his conviction must be reversed pursuant to the Supreme Court's decision in State v. W.A., 184 N.J. 45, 53 (2005). We therefore address only that issue.

I

In State v. W.A, the Supreme Court held that the guarantee set forth in R. 3:16, that the defendant has a right to be present during every stage of his trial, includes jury voir dire at sidebar. Id. at 59. Therefore, unless safety concerns militate against it, upon request, "defendant should be physically present at sidebar." Id. at 60. The Court further held that "a defendant who does not affirmatively request the right to participate in voir dire sidebars should be considered to have waived the right." Id. at 63. And the improper exclusion of defendant from sidebar is subject to a harmless error analysis. Id. at 64. Thus reversal is not mandated where the jurors examined at sidebar do not deliberate in the case, or where the examination at sidebar concerns matters such as family or work commitments or physical impairments, as opposed to issues that might bear upon juror bias. Ibid. However, "[t]he situation is different where the exchange that occurs at a sidebar from which defendant is excluded involves a matter of substance and the juror has been seated." Id. at 65.

In W.A., the trial judge had announced in advance of jury selection that he did not allow defendants to be present at sidebar. Id. at 65. The Court reasoned that "as a matter of common sense, that preemptive ruling by the judge rendered a further request for sidebar presence by defendant unnecessary." Ibid. While defense counsel should have objected to the judge's ruling to preserve the issue for appeal, R. 1:7-2, the trial court's ruling would be reviewed under the plain error rule, R. 2:10-2.

In W.A., the Court concluded that the trial court's refusal to permit defendant to be present at sidebar was "clearly capable of producing an unjust result," because one of the seated jurors, who was examined at sidebar, was a children's rights advocate and the defendant was on trial for molesting a nine year old child. Id. at 66. The juror's "view of herself as a child victims' advocate went to the heart of the issue in this case," and therefore defendant "may well have peremptorily challenged her had he heard her responses. Therefore, the process that led to her service was necessarily harmful error." Id. at 67.

We turn to the application of W.A. to this case. Jury selection began on June 17, 2003. The trial judge explained to the jury panel that the defendant was charged with aggravated assault, carjacking, eluding and assaulting police officers, as well as burglary and theft. The remainder of jury selection for this day was not transcribed. However, the following colloquy occurred after the jury panel was sent home for the day. After the court asked whether counsel had any other voir dire questions, defense counsel responded:

MR. COGHLAN: I don't have any Judge. I just would reiterate, I would respectfully ask the Court to, as you did right at the end there, to tell, make clear to the jurors that it's only when they have information that they think is embarrassing or private or something prejudicial . . . that they should come to sidebar.

THE COURT: I'm happy to do that.

MR. COGHLAN: I can't tell my client now what all the jurors have said at sidebar. He doesn't know, for example, what number 10 said. And I'm trying to tell him, and I will. But he's missed a lot. And that's why I would ask for that?

THE COURT: All right. Well, fortunately, almost everyone who said [sic] has been excused.

MR. COGHLAN: Well, that's true.

THE COURT: So, I fortunately don't believe that Mr. Logan is prejudiced because we've gotten rid of almost everybody who we had a sidebar with. But I'm happy to do that. And if I don't do it please remind me.

MR. COGHLAN: Yes, Judge.

THE COURT: So that we can have Mr. Logan fully participating, except for those occasions.

[emphasis added]

On the next day, counsel similarly objected that

MR. COGHLAN: Judge, I have a further issue.

Mr. Logan, as he should, is participating in the jury selection. He's advising me who he likes and doesn't like. He's missing out on everything that's going on here at sidebar. I don't have any time to tell him what's going on.

THE COURT: Okay. I'm going to take a break now. Should we do that?

MR. COGHLAN: What I'm asking in the future that only if [sic] the relevant potentially prejudicial information be at sidebar.

We infer from this colloquy that it was the practice of this trial judge not to allow defendants to be present at sidebar. Defense counsel repeatedly asked the judge to limit the use of sidebar conferences, because his client was being excluded from those conferences. We infer that, had the judge been willing to allow defendant to be present, trial counsel would have requested that he be permitted to come to sidebar.

Further, instead of limiting the use of sidebar to those situations where it was legitimately necessary, the trial judge repeatedly issued general invitations to jurors to come to sidebar. Each sidebar deprived the defendant of the opportunity to hear the jurors' responses and confer with his attorney on whether to use a peremptory challenge.

Were these the only problems presented by the proceedings here, we might conclude that reversal was not required. But, as in W.A., this process resulted in the seating of two jurors whom any reasonable person in defendant's position might have wanted his attorney to exclude. One juror had been the victim of several burglaries and had a brother-in-law who was the head of the Drug Enforcement Agency in Tennessee, and the other juror was related to one of the sheriff's officers who was assigned to work in the courtroom in which the trial was being conducted. This defendant was charged with burglary and with eluding and assaulting a police officer. As in W.A., "defendant may well have peremptorily challenged [these jurors] had he heard [their] responses" and hence "the process that led to [their] service was necessarily harmful error. R. 2:10-2." W.A., supra, 184 N.J. at 67.

 
Reversed and remanded.

(continued)

(continued)

9

A-0716-O3T4

November 14, 2005