State v. Colbert

*17Justice LONG

delivered the opinion of the Court.

At issue in this appeal is the retroactivity of our decision in State v. W.A., 184 N.J. 45, 875 A.2d 882 (2005). In particular, defendant, Michael Colbert, who fully participated in voir dire sidebars through the use of the lawyer-shuttle system,1 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.

I.

During the jury voir dire at his trial for two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, 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 *18excused 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 had “the unabridged constitutional right to be present at all phases of his trial, including jury selection____”

The trial judge again disagreed:

*19Both attorneys were present during the sidebar. And I asked [defendant’s] attorney to relay any information told [to] him by the jurors.
[Defendant] was in the courtroom during the questioning, and was able to observe potential jurors. There was nothing blocking [defendant] from the jurors at the sidebar, and he was probably less than twenty feet away. He was able to see the jurors’ expressions and demeanor.
This ease is not like the Dishon or Lomax case[s]. Here, [defendant] was present during the sidebar questioning. The attorneys were allowed to listen to the conference. After the conference took place, [defendant’s] attorney relayed the information to him.
Unlike Dishon, ... where the jurors were questioned in the Judge’s chambers, and the defendant could not evaluate their demeanor, [defendant] in this case was able to see the jurors’ expressions. In addition, [defendant’s] attorney was present during the sidebar, unlike the defendant’s attorney in Lomax. Thus, the defendant had the ability to judge the jurors and remove them, if necessary.
Although the State has to prove harmless error beyond a reasonable doubt, this Court did not find any error. The attorneys were present during the sidebar, and [defendant] was in the courtroom. He was able to observe and hear any information relayed.

The judge noted that “there were no jurors that I recall that I did not excuse myself if there was any even hint that they could not be fair and impartial”; that “there were no jurors that were kept on this jury on the opposition of defense counsel”; and that “constitutional rights were not violated.”

On appeal, defendant again contended that his right to a fair trial was abridged “because the trial judge denied him the right to be present during sidebar conferences with potential jurors.” The Appellate Division rejected that argument and affirmed defendant’s convictions:

[Defendant was in the courtroom and could observe the gestures and expressions of the juror[s]. Defense counsel was instructed by the trial judge to discuss the juror[s’] response[s] with defendant. Additionally, the sidebars were conducted before any peremptory challenges were exercised, not after they had all been exhausted as in Dishon.

The panel concluded:

A defendant enjoys a constitutional right to be present at all stages of the trial, including the selection of the jury, and in this case, he was effectively present during the entire jury selection process. The procedure employed here did not deny defendant the right to participate in the exercise of his peremptory challenges. Defendant had the opportunity to consult with counsel before the defense exercised any challenge. There is no showing that any potential juror which [defendant] challenged peremptorily was not excused by the court. Under the *20circumstances, we discern no constitutional error by questioning certain potential jurors at sidebar without defendant present.

Defendant filed a petition for certification. While that petition was pending, W.A. was decided. We granted the petition and summarily remanded the matter to the Appellate Division for reconsideration in light of W.A. State v. Colbert, 185 N.J. 27, 878 A.2d 846 (2005).

On remand, defendant argued that, under W.A., the lawyer-shuttle system was inadequate to preserve his right to be present at sidebar conferences. The State countered that any error was harmless. The Appellate Division held that “exclusion of defendant from sidebar conferences during jury selection was error, and that the makeshift lawyer-shuttle system did not adequately protect his right” under W.A. The panel, therefore, reversed and remanded the matter for a new trial. We granted the State’s petition for certification. 186 N.J. 603, 897 A.2d 1058 (2006).

II.

The State advances two arguments on appeal: that W.A. should be given purely prospective application; and that, even if W.A. is applied retroactively, any error that arose was harmless.

In response, defendant argues: that W.A. did not establish a “new rule of law” and, thus, applies to his ease; and that, even if it did set forth a new rule, he is entitled to its benefits. Finally, defendant argues that the error in his trial cannot be considered harmless.

III.

In W.A., supra, we addressed a situation in which a defendant was excluded from sidebar voir dire; had no real opportunity to consult with his lawyer; was not made aware -of what transpired during sidebar; exercised his peremptory challenges without full information; and ultimately claimed that, had he been fully in*21formed, he would have challenged a particular juror. 184 N.J. at 67, 875 A.2d 882.

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,2 and the lawyer-shuttle system. Id. at 60, 875 A.2d 882 (citing State v. Davenport, 177 N.J. 288, 309-10, 827 A.2d 1063 (2003)).

Because W.A. received none of those substitutes and thus was denied the basic constitutional right of presence, we went on to engage in a harmless error analysis. Id. at 66-67, 875 A.2d 882. Turning to the merits of W.A.’s claim, we concluded that the error was not harmless because “a defendant ... who knew of [the juror’s] background and of the answers she gave, would be loath to allow her to serve on his jury” and because “defendant may well have peremptorily challenged [the juror] had he heard her responses.” Ibid, (emphasis added).

In W.A., we also recognized that all methods of securing a defendant’s presence during voir dire sidebars are not equal. Identifying physical presence in the absence of security concerns as optimal, we also approved electronic methods; struck-jury; and finally, the lawyer-shuttle system. Id. at 59, 875 A.2d 882. Regarding the lawyer-shuttle system, we stated:

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. lid. at 61, 875 A.2d 882.]

Importantly, in WA. we explicitly held that “presence at sidebar need not always mean physical presence”; that each of the substituted methods could satisfy the imperative of presence, *22depending on the circumstances; and that, in the future, courts should consider the hierarchy of substitutes in sequential order. Id. at 59-62, 875 A.2d 882. Thus, for example, where there are no security concerns in a courtroom, actual presence should be considered first. However, even in the absence of security concerns, where electronic methods are available and defendant can see the potential jurors’ faces and expressions and hear their voices, the judge may substitute that method because it provides everything that actual presence would afford. 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. Those elements of W.A. require separate analyses for retroactivity purposes.

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. See State v. Whaley, 168 N.J. 94, 99, 773 A.2d 61 (2001); State v. Smith, 346 N.J.Super. 233, 236-37, 787 A.2d 276 (App.Div.2002) (citing State v. Dishon, 297 N.J.Super. 254, 267, 687 A.2d 1074 (App.Div.), certif. denied, 149 N.J. 144, 693 A.2d 112 (1997)); see also R. 3:16(b) (stating defendant shall be present at every stage of trial, including impaneling of jury). Thus, as defendant argues, a retroactivity analysis is unnecessary. State v. Burstein, 85 N.J. 394, 403, 427 A.2d 525 (1981). Indeed, we have no warrant to consider hmiting the retroactive effect of such a decision. Ibid.

On the contrary, W.A. ’s imposition of a new approach to the established methods for securing voir dire presence 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, applying it only to cases whose operative facts arise after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case announcing the new rule, while applying *23the old rule to all other pending and past litigation; (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, applying it to all cases, even those where final judgments have been entered and all avenues of direct review exhaust/ ed.
[Burstein, supra, 85 N.J. at 402-03, 427 A.2d 525 (citing State v. Nash, 64 N.J. 464, 468-70, 317 A.2d 689 (1974)).]

In choosing among those options, we consider three factors: “(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.” State v. Fortin, 178 N.J. 540, 647, 843 A.2d 974 (2004) (quoting State v. Knight, 145 N.J. 233, 251, 678 A.2d 642 (1996)).

Applying those factors, 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. See Davenport, supra, 177 N.J. at 309, 827 A.2d 1063; State v. Cook, 330 N.J.Super. 395, 415, 750 A.2d 91 (App.Div.), certif. denied, 165 N.J. 468, 757 A.2d 309 (2000). It was only when none of those methods were made available that convictions were overturned. See State v. Lomax, 311 N.J.Super. 48, 56-57, 709 A.2d 277 (App.Div.1998); Dishon, supra, 297 N.J.Super. at 269-70, 687 A.2d 1074. Further, no hierarchical distinctions between those methods were ever formally recognized.

Under the earlier scheme, what was critical was that defendant had a real opportunity to participate in decision-making at the voir dire stage of his trial. Importantly, when we established the new template in W.A, we did not declare that the entrenched prior scheme had denied defendants the constitutional right of presence. See W.A, supra, 184 N.J. at 60-62, 875 A.2d 882 (holding various extant methods for defendant’s presence during sidebar voir dire appropriate under certain circumstances). Rather, we approved the use of each of the substituted methods, recognizing that some *24are better than others and, therefore, should be resorted to first. Ibid.

In that context, we see no reason to give the unanticipated rule of W.A anything other than full prospective application. To apply it retroactively would punish the justifiable reliance of the judicial system on the old rule, which we did not declare unconstitutional, and would upend settled expectations and force reconsideration of long resolved matters. See State v. Abronski, 145 N.J. 265, 267-68, 678 A.2d 659 (1996). There is simply no counterweight to those negatives that would justify retroactivity.

That is neither to detract from the continuing force of W.A nor to suggest that judges are now free to disregard it. We view it as the proper template for securing a defendant’s right of presence. 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 defendant received his constitutional entitlement. He had an unobstructed view of the prospective jurors; consulted with his lawyer after each sidebar; admitted that he was “very actively involved in jury selection,” that “not a single juror was selected here without [his] input,” and that “he himself chose certain jurors to be selected off the panel or requested other jurors to stay”; and, most importantly, to this day has never asserted that he did not know or understand the substance of what had occurred at sidebar. In other words, defendant was as fully present during voir dire as the Constitution requires and no error occurred.

IV.

For those reasons, we reverse the judgment of the Appellate Division and reinstate defendant’s convictions.

Under that system, the lawyer attends each sidebar and thereafter confers with his client regarding what has transpired.

When a jury is "struck” a defendant can remain in his seat during individual voir dire because it takes place in open court with all other jurors outside the courtroom. W.A., supra, 184 N.J. at 60-61, 875 A.2d 882.