On appeal from the Superior Court of New Jersey, Law Division, Union County.
Ard, King and McElroy. The opinion of the court was delivered by King, J.A.D.
The issue here is whether the doctrine of manifest necessity permits a second criminal trial despite a plea of double jeopardy where the trial judge sua sponte declared a mistrial during the first trial to protect the ends of public justice.
Defendant was indicted for armed robbery, N.J.S.A. 2C:15-1, and possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). In February 1982 defendant went to trial before Judge Long and a jury. Sua sponte, and over defendant's objection, the judge declared a mistrial during the presentation of the defendant's case. After denial of his motion to dismiss on double jeopardy grounds, defendant was retried, convicted on both counts, and sentenced to state prison for 15 years with a five-year mandatory minimum term.
The criminal charges evolved from a gunpoint robbery by two men of the bartender at Ryan's Lounge in Elizabeth on July 19, 1981 at about 2 a.m. Defendant and Steven Robinson were apprehended promptly in the vicinity shortly after the robbery and both were identified as the culprits by the bartender, Loftus. Robinson was tried first, by a jury, and found not guilty of the armed robbery charge. His defense was that he was caught that night while fleeing from a street-corner gambling scene and he had nothing to do with the robbery at Ryan's Lounge. Robinson's jury acquitted on the ground of misidentification.
At defendant's first trial, Robinson, now acquitted of these charges, testified that the first time he saw defendant on the night of the robbery was after he had fled from the corner of Jefferson and Dickson Streets, the gambling scene. Robinson denied being at Ryan's Lounge at any time that night. On Robinson's redirect by defense counsel Harris this exchange occurred:
Q: Mr. Robinson, how many times have you testified in Court?
A: I guess maybe three times. I don't -- counting my trial? One, two, three, four times.
Q: And you were tried for this matter?
A: I was found -- yes, I was found not guilty.
MS. DUPUIS [Prosecutor]: Objection, Your Honor. We've clearly discussed that in depth prior to --
THE COURT: Okay. Ladies and gentlemen, would you recess into the jury room.
After the jury was excused, the State took the position that the judge should grant a mistrial sua sponte. The prosecutor emphasized that she had personally warned Robinson, with defense counsel's knowledge, not to volunteer his prior acquittal in the jury's presence. Defense counsel opposed a mistrial and urged that a curative instruction was adequate.
Judge Long granted the motion, saying:
I've thought about this matter over the lunch hour, and when I indicated that Mr. Robinson said "I was found not guilty in another trial" not in response to a question, what I meant to say for the record is that I did not believe in any sense that Mr. Harris was eliciting or attempting to get that kind of a response from the witness.
On the other hand, I believe that that was not the first time that Mr. Robinson tried to get that piece of information before the jury.
I felt during his testimony that it was only the fact that he was being cut off by the next question that that was not said before the jury prior to the time it actually was blurted out.
And the question that I have before me in terms of a mistrial, and that's a pretty extraordinary, pretty extreme remedy, there's no question about that, is whether or not there is any other alternative that is available to me. Any other means, if you will, alternative which would secure the fact that justice is going to be done.
This is not a case in which co-defendant or two persons charged with a crime have participated in it or alleged to have ...