Fritz, Seidman and Milmed. The opinion of the court was delivered by Fritz, P.J.A.D.
Two important questions present themselves in this appeal by the State from the dismissal of the indictment by the trial judge during the State's case. These involve (1) the considerations which should affect the exercise of discretion by a trial judge in dealing with discovery problems in the criminal trial, and (2) double jeopardy. We address ourselves to the problems in that order, for if the trial judge was correct in the sanction he applied, we need not reach the second problem.
The individual defendant, Nicholas A. Laganella, and the corporate defendant, P.T. & L. Construction Co., Inc. (P.T.&L.), of which Laganella was president, were indicted for "bid rigging" conspiracy on a substantial highway construction project. The proofs on which the State's case was bottomed demonstrated that sometime prior to February 8, 1968 Laganella conspired with Sam Braen Construction Co. (Braen) and Braen Industries, Inc., to produce from the latter companies a bid on the project, but at a higher figure than the P.T.&L. bid, thereby insuring P.T.&L. of the contract. A consideration of $185,000 for this cooperation was offered by P.T.&L. to Braen, and ultimately sophisticated schemes of payment were devised. These arrangements were worked out in large part between Harry G. Evans, a graduate civil engineer, who was vicepresident and manager of Braen, and Laganella.
Evans, obviously the head of operations for Braen under Sam Braen, Sr. and, from the proofs, the prime and probably only negotiator with Laganella, testified at length.
Sam Braen, Sr., described by Evans as the "owner" of Sam Braen Construction Co. and the several other affiliated Braen companies, was regularly consulted and made all the decisions. Sam Braen, Jr., the son of Sam Braen, Sr., was
said to be "gradually assuming control of all the companies," and the State's proof indicated that he was present at a meeting between Evans and Laganella. His participation at that meeting was said to be limited to his being a "witness to the conversation." While the testimony of one witness indicated Sam Braen, Jr. was in fact "actively involved" in the day-to-day activities of Braen, the proof from Evans and others also indicated, both expressly and implicitly, that at the time of this conspiracy, while he was an officer in Braen, his authority, participation and perhaps interest, at least in the day-to-day operations, was limited. Evans said Sam Braen, Jr. "had no operative role" and more than once described his officership as one "on paper." Testimony from Evans indicated that at least until Evans left Braen in the latter part of February 1969, Sam Braen Jr. had had nothing at all to do with the pay-off scheme.
The bidding worked out as planned. Only P.T.&L. and Braen submitted bids and the Braen bid was substantially higher than that of P.T.&L. The contract was awarded to P.T.&L.
At the trial Evans testified freely to the promises of immunity from prosecution which were given him by the office of the Attorney General in exchange for his "cooperation" in the matter. He was cross-examined extensively by defense counsel, not only with respect to the grant of immunity in this case (as was another State witness) but in connection with that promised in another matter as well.
The State offered the testimony of seven witnesses. In addition to Evans, whose preeminent role in the entire scheme is described above, the State produced the Chief of the Bureau of Contract Administration in the Department of Transportation and the following of Braen (or associated companies) personnel during the time in question: the bid estimator for the project involved; one who had risen from the accounts receivable section and pricing department to become office manager; the general sales manager; a clerical employee
who had typed certain of the exhibits, and the credit manager and assistant treasurer.
Defendants first argued, on motion, that the State had failed "to sustain its burden" of proof.*fn1 Following this, a chain of events, almost bizarre in nature, occurred. Defense counsel charged that the State "deliberately, consciously and presumably upon mature consideration determined not to call as a witness upon its case the unindicted co-conspirator, Sam Braen, Jr." Claiming that he had agreed "not to oppose the introduction of certain documentary evidence * * * upon the express representation by the Deputy Attorney General, the reliance thereon by me that Samuel Braen, Jr., be called as a State's witness" (a situation nowhere reflected in the record or even really inferable therefrom), and that the "general opening made by Counsel for the State, which to me indicated that the State had intended to produce these witnesses" (our review of the State's opening statement discloses neither such a representation nor any statements which might reasonably have been conceived to imply such a representation), defense counsel said that "that sort of risk voluntarily undertaken by the State * * * seems to me to entirely justify the Court in dismissing the Indictment."
The trial judge called upon the deputy attorney general for an answer. He then interrupted her explanation to advise her, "Now, before you say anything that you might regret, please, for you to now suggest that this Defendant was not given the understanding that you were going to call Sam Braen, Jr., I frankly find incredible."
Her response was candid. The following occurred immediately thereafter:
[DEPUTY ATTORNEY GENERAL]: I'm not going to say to this Court that I didn't, when I started working on this case, and when we even began it, think that Sam Braen, Jr., would probably be a witness.
THE COURT: Now, why is he not here? Tell me that. Is it because of his physical condition or because you made a decision not to call him?
[DEPUTY ATTORNEY GENERAL]: They're probably three reasons.
THE COURT: All right. Tell me all of them.
[DEPUTY ATTORNEY GENERAL]: One is his physical condition.
Two, the impending Crabiel trial, and his needing to be a witness there. The trial started today. The office had to make a decision as to which case he would testify in, and where they needed him more, and they decided that the Crabiel case was more important; coupled with three, my feeling that Harry Evans had produced a prima facie case; that the State had in essence passed the motion here. So, there were three reasons.
THE COURT: Let's go back to number one. What about his physical condition, what was it about his physical condition that prevented you from calling him here?
[DEPUTY ATTORNEY GENERAL]: His physical condition is such that the man cannot testify for 40 minutes. He can't talk to someone for 40 minutes, and keep his train of thought. I've interviewed this man day in and day out, and he will sit there, and after 20 minutes, he's completely in space, and I represent that to the Court. I've spent enough time with the man that I don't feel that I could put him ...