STATE OF NEW JERSEY v. BARRIS SIMPSON

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. BARRIS G. SIMPSON, Defendant–Appellant.

DOCKET NO. A–3385–11T2

Decided: March 24, 2014

Before Judges Fisher, Espinosa and Koblitz. Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney;  Ms. Jarit, of counsel and on the briefs). Elizabeth R. Rebein, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney;  Ms. Rebein, of counsel and on the brief).

An accused has the right to be present at every stage of his trial.   N.J. Const., art.   I, ¶ 10;  R. 3:16(b).  In State v. W.A., 184 N.J. 45 (2005), the Supreme Court held that this right guarantees a defendant “who requests it” the right to be present “at voir dire sidebar conferences.”  Id. at 48.   Further, defendants may only be excluded from sidebar conferences “for extraordinary reasons that must be articulated on the record.”  State v. Byrd, 198 N.J. 319, 351 (2009);  see also W.A., supra, 184 N.J. at 60.   We reverse defendant's conviction for second-degree robbery because we conclude that the procedure followed here failed to adequately protect defendant's right to be present at sidebar conferences.

Defendant was nineteen years old when he and a codefendant stopped a sixteen-year-old boy, threatened him with an apparent weapon, and demanded his newly purchased sneakers, his jacket, and the twelve dollars he had in his possession.   Defendant was acquitted of first-degree robbery, but convicted of second-degree robbery and sentenced to five years imprisonment, eighty-five percent of which had to be served before he would be eligible for parole.

After filing a notice of appeal, defendant filed a motion to supplement the record.   We denied the motion but remanded, retaining jurisdiction, for a hearing “to determine the facts concerning defendant's ability to participate in the intelligent exercise of peremptory challenges on the first day of jury selection.”   The judge who presided over the first day of jury selection conducted a hearing, taking testimony from defendant and his trial counsel, and set forth reasons for the procedure followed.

In this appeal, defendant argues that the procedure followed by the court deprived him of his right to participate in sidebar conferences because he was not advised of his right to be present and his counsel did not “shuttle” between the conferences and counsel table.   Because we find merit in this argument and find none in defendant's remaining arguments,1 we confine our discussion of the facts to those relevant to this issue.   R. 2:11–3(e)(2).

I.

Jury selection was conducted by two successive judges.   When the process began on May 10, 2011, the first judge addressed defense counsel and stated,

[Y]our client needs to sit at the table.   If you need at any ․ point in time to go discuss something with him, just let us know, and we'll break.

Although the judge told counsel they would “break” if she “need[ed]” to speak to defendant at any time, the judge did not elaborate, and therefore, there was no explicit statement that would alert defendant to the fact that his counsel could “shuttle” between sidebar and counsel table, without interrupting the trial, to keep him advised of what transpired at sidebar.   His counsel also failed to advise him of this alternative procedure.   Neither the court nor defense counsel advised defendant that he could have headphones to listen to sidebar conferences.

After excusing jurors for legal and medical reasons, jurors were called individually and questioned regarding their jury questionnaire answers.   Thirty-six individuals were questioned at sidebar on that day.

Defendant was seated at counsel table during this process, without headphones and unable to hear either the questions asked or the answers given by prospective jurors.   At the remand hearing, defense counsel testified she was aware of the trial judge's procedures and understood she would be permitted to shuttle between sidebar and counsel table to discuss jurors' answers with defendant and obtain his input.   However, counsel admitted that she never “shuttled” to review jurors' answers with defendant during the course of jury selection.

One of the jurors questioned at sidebar on the first day of jury selection was Juror No. 10.2  In the transcript of her questioning at sidebar, every answer she gave was described as “[i]ndiscernible.”   However, it is undisputed that, during the course of her answers, she stated she had been a victim of a crime.   We surmise that this information was divulged during the following exchange:

THE COURT:  If a police officer took the

stand would you give them more or less weight or would you just (Indiscernible)?

[JUROR]:  (Indiscernible).

THE COURT:  Somebody who has been a

victim.

[JUROR]:  (Indiscernible).

THE COURT:  You have?

[JUROR]:  (Indiscernible).

THE COURT:  You have.   Okay.

[JUROR]:  (Indiscernible).

THE COURT:  And is there anything about

that experience that would affect your ability to be fair and impartial here as well?

[JUROR]:  (Indiscernible).

THE COURT:  You understand that that's a

separate incident and has nothing to do with this?

[JUROR]:  (Indiscernible).

THE COURT:  You could be fair and

impartial?

[JUROR]:  (Indiscernible).

THE COURT:  (Indiscernible).   That's

exactly what we expect.   Okay. Have a seat.   That's Seat No. 10 please.

As the transcript reflects, defense counsel did not request any additional questioning of this juror or an opportunity to discuss her answers with defendant.

At the remand hearing, defense counsel stated she took Juror No. 10's status as a crime victim into consideration in making decisions regarding jury selection.   However, when asked if she told defendant this fact, she testified, “I can't tell you that.   I can't tell you that, as I sit here, that I told him that.”   Defendant testified his counsel did not tell him Juror No. 10 had been the victim of a burglary and that, if he had been so advised, he would have asked that she be removed.

Jury selection resumed before a second judge on May 11, 2011.   Defendant was provided with headphones to enable him to listen to sidebar conferences.   At least one exchange between defendant and counsel can be credited to his ability to hear the conferences.   After a prospective juror expressed discomfort at serving because her family knew defendant's family, defense counsel asked to consult with him, explaining, “Judge, because Mr. Simpson is listening to this, and because he's made himself a part of this process, I just want to ask him a question.”

However, after a while, defense counsel alerted the court that the headphones were not functioning properly;  that “the hearing piece goes in and out, and [defendant] wants the proceedings stopped until he can hear what's going on.”   Observing that defendant “certainly has the right to hear,” the judge took a brief recess, excused everyone for lunch, and later decided to resume jury selection the following day.

Before jury selection proceeded on the following day, defense counsel addressed the court regarding defendant's exclusion from the jury selection process on the first day and conveyed his request that jury selection be started anew:

There's an issue raised by my client about jury selection.   He wants to start over.   The reason he wants to start over is because when the process first started in another courtroom he did not have headphones․  His position is I didn't hear everything I'm entitled to hear, and had I known, and I'm just putting it on because I briefly mentioned this to the prosecutor, had I known I would have been involved in the process, and now the are here [sic] and maybe they would have sat or not sat, et cetera, and therefore, they shouldn't count.

[ (Emphasis added).]

The judge asked, “So you're saying when the jury selection process began with [the first judge] she didn't use headphones?”   Counsel replied that the first judge used a different process;  that each side had exercised two peremptory challenges and stated, “I can say that I controlled that, he didn't really participate in.”   She did not advise the second judge that she failed to shuttle between sidebar and counsel to keep defendant informed and obtain his input.

Although the second judge directed that defendant be provided with headphones for the remainder of the jury selection process, the headphones were not working.   He advised defense counsel he would give her an opportunity to review her notes with defendant as to the jurors who were seated in the jury box and arranged for defendant to sit behind counsel so he could be physically present for the remainder of jury selection.   Later, after conferring with the judge who presided over the first day of jury selection, the judge denied defendant's request to begin selection anew:

[The first judge] indicated that it was discussed, that you can go back and forth, discuss whatever it is with your client, and shuttled, if you wish, with regard to the Court's challenges.   The others were done in open court.   Certainly I'm not going to begin anew.   I think it appears from your comments, and also discussing the matter with her, that he had certainly access to all information yesterday.   He certainly was privy to all the information in his presence.   If you want to just renew your objection, you can do that at some point after we pick the jury, but just so the record's clear, I'm denying that request.

Then, as the headphones were still malfunctioning, defendant was permitted to sit behind defense counsel, where he could hear everything said at sidebar.

At the remand hearing, the first judge noted that, at the time of jury selection in defendant's trial, problems with the headphones were experienced in more than one criminal court, including that of the second judge.   She also observed that defense counsel was an experienced attorney who had been assigned to the judge's court “for a long, long period of time and ․ does know about the jury protocol.”   The judge stated she observed defense counsel taking notes during the selection process, having discussions with defendant and that there were various breaks during the day that afforded counsel the opportunity to discuss the case with defendant.   Although she found the testimony of defense counsel at the remand hearing credible as to the fact she spoke with her client, the judge stated,

I don't believe for a second, based on what I observed here in court, that she made these decisions to challenge or not challenge jurors just on her own prerogative without discussing it with the defendant, not based on what I saw.   I saw her actively engaged in speaking with the defendant throughout the course of the time that they were here on May 10th of 2011.

The judge also stated she was “well aware” of the holding in W.A. and described the procedure followed here and her reasons as follows:

[B]efore jury selection began, [defense counsel] acknowledged that in fact—that because I was aware of the defendant's record;  he had multiple cases pending here in Bergen County, and based on his prior record,[3] for the safety of everyone involved;  the Sheriff Officers also required that he sit at the table for safety reasons;  and also is the fact that I find, just generally, that jurors are more candid about their experiences and about their past when they are only with the attorneys and the Judge.   So, I think it actually serves to protect the defendants' rights.

II.

A defendant's right to presence at a sidebar conference during jury selection is not absolute.  W.A., supra, 184 N.J. at 48.   The Court 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 63–64.   And, “where security issues are implicated, a court may utilize other methods to secure a defendant's meaningful participation in voir dire, including technology, the modified struck-jury system, and, as a last resort, the ‘lawyer-shuttle’ process.”  Id. at 48;  see also Byrd, supra, 198 N.J. at 351.

A.

Defendant did not affirmatively request the right to participate in voir dire sidebars until jury selection was underway.   Our determination as to whether the delay in his request constituted a waiver of his participation in voir dire sidebars before then is guided by Rule 3:16(b).  See State v. Dellisanti, 203 N.J. 444, 460–61 (2010).   The Rule provides that a defendant may waive his right to be present at trial, including during jury selection, and that:

waiver may be found either from

(a) the defendant's express written or oral

waiver placed on the record, or

(b) the defendant's conduct evidencing a

knowing, voluntary, and unjustified absence after ․ trial has commenced in defendant's presence.

As defendant did not place any waiver on the record, the question becomes whether his conduct “evidenc[ed] a knowing, voluntary” lack of participation in the jury selection process.

It is clear from the record that defendant did not show any sign of disinterest in the proceeding.   Indeed, the State argues he was “an active participant in jury selection.”   The record, which includes the remand hearing, shows he was not advised of his right to participate in voir dire sidebars by either the court or his counsel.   To the contrary, the only information on the record regarding his right to participate was that provided by the first judge as to the procedure she followed.   That defense counsel accepted this protocol without objection 4 undoubtedly conveyed to defendant that this was the full measure of participation to which he was entitled.   Under similar circumstances, the Supreme Court found a defendant's failure to make a specific request to be present at sidebar did not constitute a waiver after “the trial judge peremptorily declared, at the inception of the case, that under procedures applicable in his court, defendant would not be allowed at sidebar.”  W.A., supra, 184 N.J. at 65.   Here, the case is even stronger for a conclusion that defendant did not knowingly waive his right to participate.   After defendant became aware of his right and was able to experience what he had lost by listening to sidebars through headphones, he affirmatively requested that jury selection begin anew so that he could listen to the entire proceeding.   Therefore, we conclude there was no waiver here.

B.

Presence at sidebar, however, “need not always mean physical presence.”   Id. at 59.   We therefore consider whether the procedure followed comported with the Supreme Court's mandate in W.A.

The Court stated that, if a defendant requests to be present at voir dire sidebar conferences, “he should be accommodated as far as security will allow.”  Id. at 60.   If the judge deems safety to be an issue, “the judge should clearly state his or her concerns for the record.”  Ibid. (citing State v. Davenport, 177 N.J. 288, 309–10 (2003)).

At the remand hearing, the first judge stated defendant was not permitted to be physically present at sidebar conferences due to security concerns.   The better practice would be to set forth these reasons at the time of jury selection.   Although the factual support for the stated safety issue was less than compelling and, indeed, would apply to many defendants, we find no abuse of discretion in the judge's decision that defendant should not be allowed to be physically present at sidebar.   See State v. Cook, 330 N.J.Super. 395, 415 (App.Div.) (“A trial judge is given wide discretion in determining proper security measures within the courtroom and is obliged to act to protect the jury, counsel, witnesses, and members of the public.”), certif. denied, 165 N.J. 486 (2000).

When a defendant cannot be physically present at sidebar, the court may use wireless listening devices;  a “struck-jury” system, in which defendant remains at counsel table while jurors are questioned individually and all other jurors are outside the courtroom;  or the “lawyer-shuttle system.”

At the remand hearing, the first judge alluded to problems experienced with listening devices by various judges at the time of defendant's trial.   However, the record fails to reflect any attempt to equip defendant with headphones during the first day of jury selection, and the State does not contend that any attempt was made.   Instead, the State argues that defendant was not deprived of his right to be present at sidebar conferences because the lawyer-shuttle system was used.

In W.A., the Court established clear guidelines for the manner in which the shuttle system is to be employed:

Under that system, the lawyer who attends each sidebar thereafter consults with his client regarding what has transpired, thus allowing the client to seek further probing or to acquiesce in the lawyer's recommendation․

It bears repeating that when the lawyer-shuttle system is used, the lawyer must confer with his client after each sidebar interview that involves more than innocuous scheduling-type matters.   In addition, if the lawyer-shuttle system is employed and a defendant so requests, the judge should take a recess before defendant's peremptory challenges are exercised to allow him to listen to the tape or review the court stenographer's notes of the sidebar colloquy with the non-excused jurors.   By that approach, we balance the court's interest in security, the juror's in privacy, and the defendant's in presence.

[W.A., supra, 184 N.J. at 61 (emphasis added).]

The protocol described by the first trial judge did not include such a detailed interaction between defendant and counsel.   We do not suggest that the first judge would not have permitted a “lawyer-shuttle system” as required by the Supreme Court.   But, despite the State's contention that the shuttle system was employed, it is clear that the procedure outlined by the Supreme Court did not occur here.

The record therefore shows that, for the first day of jury selection, defendant was not physically present at sidebar conferences;  he was not provided a wireless listening device;  there was no struck-jury system and the “lawyer-shuttle system,” as defined by the Supreme Court, was not employed.   We are therefore constrained to conclude that he was deprived of his right to be present at voir dire sidebar conferences for the first day of jury selection.

C.

We next consider whether defendant's effective exclusion from sidebar for the first day of jury selection was harmless error.   See id. at 64.   In W.A., the Supreme Court found it likely that the defendant accused of sexual crimes against a child would exercise a peremptory challenge against a juror who identified herself as a child victims' advocate and deliberated.  Id. at 67.   The Court concluded that “the process that led to her service was necessarily harmful error.”  Ibid.

There is no need for speculation here because defendant testified at the remand hearing that he would have peremptorily challenged Juror No. 10 if he had known she was the victim of a burglary.   It is undisputed that there were adequate challenges available to do so.   The question that arises is whether the curative action taken by the second judge and the opportunities available to defendant after he was made aware of his right extinguished any prejudice created by the procedure followed on the first day.

The second judge advised counsel she would have an opportunity to review her notes with defendant as to the jurors who were seated in the jury box.   However, the record fails to show that defendant was ever advised that Juror No. 10 was a crime victim before the jury was sworn.   Defendant testified at the remand hearing he was not so advised and, as we have noted, defense counsel was unable to testify to the contrary.   The end result is that, despite his request to participate in voir dire sidebars, defendant was deprived of information regarding a juror who deliberated that, he stated, would have caused him to exercise one of the peremptory challenges still available to him.   The process that led to this result was “necessarily harmful error.”   Ibid.;  R. 2:10–2.5

To be sure, the failure to adequately safeguard defendant's right through the shuttle system is at least partially attributable to the fact that defense counsel never conferred with defendant after any of the sidebar conferences on the first day or advised him that Juror No. 10 was a crime victim thereafter.   The State argues that defendant's allegations that counsel failed to advise him of his right to be present, her failure to shuttle and failure to advise the second judge she had not done so are all matters that should be addressed in the context of a petition for post-conviction relief.   However, because we have the benefit of the remand hearing and the record before the second judge, these matters can be assessed without the need to go beyond the record.   Defense counsel admitted she did not advise defendant of his right to be present and did not shuttle to confer with defendant at any time during the first day of jury selection.   The record shows she did not advise the second judge of this failure.   Moreover, counsel admitted she considered Juror No. 10's status as a crime victim in making decisions as to exercising challenges, but was unable to recall whether she discussed that fact with defendant.   It is unlikely that she would be able to explain these failures as tactical decisions on her part at another evidentiary hearing.   We are therefore left with the conclusion that defendant suffered harmful error as a result of his exclusion from the first day of the jury selection process.

Reversed.

FOOTNOTES

1.  FN1. Defendant also argues that the trial court erred in denying his motion to suppress a statement he made to police;  that it was plain error for the prosecution to elicit testimony about an identification made by a non-testifying witness;  that a witness was permitted to testify about matters within the sole province of the jury;  that he should have been sentenced as a third-degree offender;  and, as plain error, that cumulative errors deprived him of a fair trial.

2.  FN2. The other two jurors, who were questioned at sidebar on this day and selected, ultimately served as alternates.

3.  FN3. Defendant's presentence report (PSR) reveals an extensive juvenile record.   The instant offense represented his third adult arrest and first indictable conviction.   The PSR also states that the National Crime Information Center reported that defendant is “a criminal gang member:  Bloods Nine Tre.” Defendant “adamantly” denied gang membership at sentencing.

4.  FN4. Defense counsel should have objected to this procedure at trial.   W.A., supra, 184 N.J. at 65;  R. 1:7–2.

5.  FN5. We do not conclude that the second judge was required to begin selection anew.   The error here could have been made harmless if additional steps had been taken to ensure defendant had adequate information about each of the jurors seated on the first day of deliberation to form an opinion regarding peremptory challenges.   This could have been accomplished by playing the tapes of sidebar conferences to defendant, by repeating the questioning of the three jurors who were seated, or other reasonable means.

PER CURIAM

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