On certification to the Superior Court, Appellate Division, whose opinion is reported at 226 N.J. Super. 412 (1988).
For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Stein, J.
The question in this appeal is whether the convictions of two defendants who knew the date, time, and place of their joint trial should be vacated because they left the courtroom before trial commenced. At issue is the application of Rule 3:16, which provides in relevant 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. * * *
Defendants had been released on bail, pending their trial. Both defendants were present in court on the morning of trial. The case, however, was adjourned until the afternoon, at which time defendants failed to appear. The trial court concluded that they had voluntarily absented themselves and ordered that jury selection begin. Defendants were tried and convicted in absentia.
The Appellate Division reversed both convictions, holding that "defendants disappeared before the trial commenced," and therefore "the 'voluntary absence' proviso of R. 3:16 [could not] be invoked." 226 N.J. Super. 412, 416, 544 A.2d 868 (1988).
A Camden County grand jury returned separate indictments against the defendants, charging each with three counts of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); one count of second-degree possession of a handgun with the purpose to use it unlawfully, contrary to N.J.S.A. 2C:39-4a; and one count of third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b. The charges arose from a shooting incident that occurred in November 1984.
The two cases were peremptorily listed for a joint trial on June 3, 1985. Both defendants appeared in court on June third. On that day, the court granted Hall's attorney a continuance so that he could review the grand jury transcript. The court informed both defendants that the new trial date was June 18, 1985, at 9:00 a.m.
The court called the matter for trial as scheduled on June 18th. Hudson and Hall were present in the courtroom at nine o'clock. The case was again delayed because Hall's attorney was involved in a different trial before another judge. The court informed the two defense attorneys to be ready for trial at 1:30 p.m. The attorneys met with their clients and told them to be in court at that time. Hall and Hudson remained in or near the courthouse for the rest of the morning.
At 1:30 p.m., Hall's attorney was granted an adjournment of his other trial. He then sought Hudson's attorney in order to finish preparing for Hall's defense. Counsel located Hall, Hudson, and Hudson's attorney in a conference room at the court-house. The attorneys left defendants, conferred briefly in another room, then proceeded to the court's chambers.
Shortly before 3:00 p.m., the trial court requested that a panel of sixty potential jurors be brought into the courtroom to begin jury selection. Neither defense attorney was present at that time; the record is unclear whether either defendant was in the courtroom.
A short time later, counsel for Hall arrived and sought another continuance for additional time to prepare his client's case. At that point, the absence of defendants became apparent to the court:
THE COURT: If you want to make a motion I suggest you make it right now.
MR. KRAMER: Yeah. They had been here all day. They may have just stepped out to get something to eat.
THE COURT: Fine, because the jury's on its way.
MR. KRAMER: I think they got a buck fifty for something to eat.
THE COURT: This matter was called for trial this morning at 9:00. Defendants have been here all day, the court has been ready to move the matter, in fact, the jury has been sent for. The defendants were in court, were they not, sir?
MR. KRAMER: Yes, your Honor.
THE COURT: Yes, they have absented themselves voluntarily, there is no question about that. The court did not excuse them or suggest to them that they shouldn't remain. You may, therefore, proceed with your motion in the absence of the defendants since they themselves have absented themselves.
The court then heard and denied the motion for a continuance.
Court officers unsuccessfully searched the courthouse for defendants. Shortly thereafter, the jury panel entered the courtroom. The court ordered that jury selection begin and that the trial proceed without defendants. The court determined that defendants had "voluntarily absented" themselves from the case:
THE COURT: The record should reflect that it's ten after three. This case was listed for trial this morning at 9:00, pre-emptorily [sic] listed. Counsel has known that all day long. I'm not faulting counsel at all. Mr. Kramer was engaged in another trial and Mr. Supnick was advised to come in at 1:30. Likewise Mr. Kramer was alerted to be here at 1:30. Defendants should have been here. In fact, defendants were here at some time during the course of the day.
It isn't that so [sic], Mr. Supnick?
MR. SUPNICK: That is correct.
MR. KRAMER: That is correct, your Honor.
THE COURT: They were here, nobody excused them, at least the court didn't excuse them, and nobody ever advised anybody in this case that it would not move. The jury is here ready to be selected, the defendants are not here and the court finds as a matter of fact they've absented themselves voluntarily from the proceedings and in that case the matter may proceed in their absence. And it will do just that unless the prosecutor has objection.
MS. SPADEA: No objection, your Honor.
MR. KRAMER: Your Honor, at this time I guess the proper time [sic] would be to make a motion to ask for a continuance and if the court wishes to issue a bench warrant to do ...