On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
At issue in this appeal is the retroactivity of our decision in State v. W.A., 184 N.J. 45 (2005). In particular, defendant, Michael Colbert, who fully participated in voir dire sidebars through the use of the lawyer-shuttle system, 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.
During the jury voir dire at his trial for two counts of second-degree sexual assault and one count of third-degree endangering the welfare of a child, Colbert asked to be present at sidebar questioning of potential jurors. The trial judge denied the request and directed that Colbert's counsel engage in the lawyer-shuttle system. Under that system, the lawyer attends each sidebar and thereafter confers with his client regarding what has transpired.
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, Colbert reiterated his earlier objection to the proceedings. The judge took a short recess, at which point Colbert had a chance to discuss with his counsel the three remaining jurors who had been questioned individually at sidebar but not excused. When trial reconvened, neither the prosecution nor the defense peremptorily challenged any of the three potential jurors who where examined at sidebar. Two of the three jurors subsequently served on the jury. The third was an alternate. In all, Colbert exercised only nine of his twenty peremptory challenges.
The jury found Colbert guilty of both counts of sexual assault and not guilty of endangering the welfare of a child. He was sentenced to concurrent custodial terms of nine years, each with a five-year period of parole ineligibility. Colbert unsuccessfully moved for a new trial and appealed. The Appellate Division affirmed the trial court. Colbert filed a petition for certification. While that petition was pending, W.A. was decided. The Supreme Court granted Colbert's petition and summarily remanded the matter to the Appellate Division for reconsideration in light of W.A. The Appellate Division reversed and remanded the matter for a new trial, finding that Colbert's exclusion from sidebar was error and that "the makeshift lawyer-shuttle system did not adequately protect his right" under W.A.
The Supreme Court granted the State's petition for certification.
HELD: The procedural methodology recognized in State v. W.A. was intended for purely prospective application. The Court is satisfied that defendant received his constitutional entitlement as he was fully present during voir dire and no error occurred.
1. In declaring that a constitutional violation occurred in W.A., we reaffirmed a defendant's right of presence at his own trial, including voir dire, and recognized the many ways in which sidebar participation had been secured in the past -- including physical presence, electronic devices, the struck-jury system (defendant remains in his seat during individual voir dire because it takes place in open court with all other jurors outside the courtroom), and the lawyer-shuttle system. The Court recognized in W.A. that all methods of securing a defendant's presence during voir dire sidebars are not equal. Importantly, the Court explicitly held that "presence at sidebar need not always mean physical presence"; that each of the substituted methods could satisfy the imperative of presence, depending on the circumstances; and that, in the future, courts should consider the hierarchy of substitutes in sequential order. In short, the circumstances will dictate the procedure. At its core, then, W.A. is made up of two distinct parts: (1) a restatement of a defendant's right of presence during voir dire, including the methods used to secure such presence; and (2) a new template for the implementation of the various methods. (Pp. 7-10)
2. Because the right of presence, securable by various means, is a well-settled principle of constitutional jurisprudence, it follows that it is not a new rule of law but one that has always applied, thus not requiring a retroactivity analysis. W.A.'s imposition of a new approach to the established methods for securing voir dire presence, however, constituted a break with past practice and thus a "new rule." Where a new rule is concerned, four possible options are available: (1) make the new rule of law purely prospective; (2) apply the new rule to future cases and to the parties in the cases announcing the new rule; (3) grant the new rule limited retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and, finally, (4) give the new rule complete retroactive effect. We emphasize that before W.A., the judicial system long relied on methods other than physical presence at sidebar to afford a defendant effective voir dire participation. It was only when none of those methods were made available that convictions were overturned. Furthermore, no hierarchical distinctions between those methods were ever formally recognized. What was critical was that defendant had a real opportunity to participate in decision-making at the voir dire stage of his trial. In W.A., we approved the use of each of the substituted methods, recognizing that some are better than others and, therefore, should be resorted to first. In that context, we see no reason to give the unanticipated rule of W.A. anything other than full prospective application. That is neither to detract from the continuing force of W.A. nor to suggest that judges are now free to disregard it. We hold here only that the procedural methodology recognized in W.A. was intended for purely prospective application. Accordingly, so long as a defendant who was tried prior to W.A. was afforded an effective opportunity to participate in voir dire (albeit not in strict conformity with the hierarchical procedure set forth in W.A.), his constitutional right of presence was not impaired. By that measure, we are satisfied that Colbert received his constitutional entitlement. Colbert was as fully present during voir dire as the Constitution requires and no error occurred. (Pp. 10-13)
The judgment of the Appellate Division is REVERSED and the judgment of the trial court is REINSTATED.
JUSTICE RIVERA-SOTO filed a separate opinion, CONCURRING IN THE RESULT, stating that the substantive and procedural portions of the rule adopted in W.A. was a new rule of law that should be given "pipeline retroactivity" effect and applied in this appeal. However, although defendant had a right to be present during these sidebars and he was denied that right, defendant has failed to show how that denial was clearly capable of producing an unjust result and defendant's exclusion from the sidebar examinations was harmless.
CHIEF JUSTICE ZAZZALI and JUSTICES LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE LONG's opinion. JUSTICE RIVERA-SOTO filed a separate opinion, concurring in the result.
The opinion of the court was delivered by: Justice Long
At issue in this appeal is the retroactivity of our decision in State v. W.A., 184 N.J. 45 (2005). In particular, defendant, Michael Colbert, who fully participated in voir dire sidebars through the use of the lawyer-shuttle system,*fn1 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.
During the jury voir dire at his trial for two counts of second-degree sexual assault, N.J.S.A. 2C:14-26, 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 excused 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 ...