On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Fritz, Polow and Joelson. The opinion of the court was delivered by Polow, J.A.D.
[177 NJSuper Page 110] On Monday afternoon, September 11, 1978, appellant and his co-defendant Sanders, were present in the courtroom for trial of an indictment charging them jointly with armed robbery. After 14 prospective jurors had been seated in the jury box, the judge took some time to explain the jury selection process and the nature of the trial for which a panel was to be selected. Addressing his comments to all prospective jurors in the courtroom, he introduced the prosecutor and counsel representing each defendant. The judge then inquired whether any of the panelists were acquainted with or knew of any of the participants including prospective witnesses then identified. The usual,
appropriate general interrogation took place following which pertinent personal inquiries were made of the 14 jurors seated in the jury box.
Having reached the point at which counsel's right to exercise challenges would be recognized, the judge noting that it was then 3:45 p.m., declared a recess until 9 a.m. Tuesday morning. He excused all participants and jury panelists with instructions to return promptly the following morning to the courtroom to continue the proceedings. Appellant having failed to appear the following morning as instructed, the jury was temporarily excused and a bench warrant issued. Efforts by sheriff's officers having failed to locate Lynch, the trial judge determined that defendant had been present at the commencement of the proceedings and had then voluntarily absented himself. Thus, it was ordered that pursuant to R. 3:16 the trial would be continued. Appellant's counsel participated throughout the nine day trial which resulted in guilty verdicts against both defendants for armed robbery. Appellant was apprehended several months later in connection with charges related to other allegations against him. He has offered no explanation for his disappearance.
Defendant Lynch now asserts error by the trial judge in continuing the trial in absentia , in giving the standard "election not to testify" charge and in several trial rulings. Trial tactics of the prosecutor are also attacked.
R. 3:16 provides in pertinent part:
The defendant shall be present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by rule, but the defendant's voluntary absence after trial has commenced in his presence shall not prevent its continuing to and including the return of the verdict.
Defendant does not contest the discretionary power of the court to order continuance of a trial despite defendant's voluntary absence where he was present at the commencement thereof. However, he insists that for this purpose, the trial has not commenced until "jeopardy attaches" after the jury has been
impaneled and sworn. Furthermore, he would impose upon the State the burden of proof that defendant's absence from the courtroom was voluntary. In the absence of any such evidence, he insists that there can be no basis for "relinquishment of . . . [his] constitutional right" to be present throughout the trial. Neither of the foregoing issues has been directly addressed in this jurisdiction previously. Our analysis of the rule, its constitutional purposes and our survey of rulings by courts in sister states leads us to conclude that the trial judge exercised his discretion properly.
In a very similar set of circumstances, an Illinois appellate court approved continuation of a trial in defendant's absence since he had been present the previous day when prospective jurors received their preliminary instructions in the courtroom. People v. Pace , 34 Ill.App. 3d 440, 339 N.E. 2d 785, 789 (App.Ct.1975). Similarly, the Supreme Court of New Hampshire held that a trial had commenced for a defendant who was present during the pretrial suppression hearing and the selection of five jurors although they had not yet been sworn. State v. Lister , 406 A.2d 967, 968-969 (Sup.Ct.N.H.1979). See also People v. Aiken , 54 A.D. 2d 937, 388 N.Y.S. 2d 260, 261 (App.Div.1976).
We are fully content that defendant's presence with counsel when jury panels were summoned for his trial, in itself, satisfies the requirement of R. 3:16 that "trial has commenced in his presence." Whether presence at and participation in pretrial procedures would also equate with presence at commencement of trial for this purpose need not be resolved here and we thus reserve that question for another day. Here, defendant remained in the courtroom for some time after the jury panels arrived, during the preliminary interrogation process when fourteen panelists were tentatively seated in the jury box and questioned by the court, until they were all excused for the day. Hence, ...