On appeal from the Superior Court, Law Division, Atlantic County.
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D. Matthews, P.J.A.D., dissenting.
Defendant was tried twice on charges of first-degree kidnapping (N.J.S.A. 2C:13-1(b)(1)), first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(3) and (4)), fourth-degree unlawful possession of knives (N.J.S.A. 2C:39-5(d)) and third-degree possession of a knife for an unlawful purpose (N.J.S.A. 2C:39-4(d)). Each prosecution ended in a mistrial when the jury reported itself deadlocked. On defendant's subsequent motion, and over the objection of the prosecutor, the trial judge dismissed the indictment with prejudice. Relying on State v. Moriwake, 65 Hawaii 47, 647 P. 2d 705 (1982), the judge concluded that he had "inherent power to dismiss the indictment" and that a weighing of the relevant criteria justified invocation of "that awesome power." The State appeals, arguing that "absent statutory authority or a demonstrated showing of a violation of defendant's constitutional rights, the court was without power to dismiss the prosecution."
Judicial authority to oversee prosecutorial decision-making is not so limited as the State urges. The court surely has the right to exercise statutory authority to dismiss an indictment upon a proper showing. See, e.g., N.J.S.A. 2C:2-11 (de minimis infractions). And it has the obligation to terminate a criminal prosecution which is constitutionally infirm. See, e.g., State v. Merlino, 153 N.J. Super. 12 (App.Div.1977)
(dismissal of indictment on speedy trial ground). But the court is not powerless to act in the absence of statutory authority or constitutional compulsion. As Justice Handler said in State v. Gaffey, 92 N.J. 374, 382-383 (1983), the "supervisory authority" of the courts with respect to enforcement of the criminal law "extends to the continued maintenance of criminal charges." Accordingly, the prosecutor may not dismiss an indictment without permission of the court. State v. Kavanaugh, 52 N.J. 7, 21 (1968), cert. den. sub nom. Matzner v. New Jersey, 393 U.S. 924, 89 S. Ct. 254, 21 L. Ed. 2d 259 (1968). Nor may the prosecutor terminate an appeal without court approval. State v. Gaffey, supra, 92 N.J. at 383. We have recognized as well "the trial judge's right . . . to dismiss an indictment for failure of the State to comply with rules of discovery." State v. Laganella, 144 N.J. Super. 268, 281 (App.Div.1976), app. dism. 74 N.J. 256 (1976); R. 3:13-3(f). Even before the Legislature specifically granted courts the authority to oversee pretrial intervention decisions (N.J.S.A. 2C:43-12 et seq.), our caselaw permitted judicial review. See State v. Leonardis, 73 N.J. 360 (1977). Justice Jacobs capsulized judicial oversight of prosecutorial discretion in In re Ringwood Fact Finding Comm., 65 N.J. 512, 516-517 (1974):
As recognized in State v. Laws, 51 N.J. 494, 510-511, cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968), the prosecutor has broad discretion in selecting matters for prosecution. While his discretion is broad, it "is not unregulated or absolute" (State v. Winne, 12 N.J. 152, 172 (1953)) and it may, in appropriate circumstances, be reviewed for arbitrariness or abuse. See State v. LeVien, 44 N.J. 323, 327 (1965); cf. State v. Conyers, 58 N.J. 123, 146-147 (1971); State v. Ashby, 43 N.J. 273, 276 (1964). * In our State, such review is readily available within the extraordinarily comprehensive prerogative writ jurisdiction which New Jersey's judicial system inherited from the King's Bench and which the 1947 State Constitution preserves. See Monks v. N.J. State Parole Board, 58 N.J. 238, 248-249 (1971); In re Senior Appeals Examiners, 60 N.J. 356, 369-370 (1972); cf. Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 93 (1973).
Based on these precedents, we conclude that the court has inherent authority to review a prosecutorial decision to retry a defendant following one or more mistrials declared upon jury deadlock. See United States v. Ingram, 412 F. Supp. 384, 386
(D.D.C.1976); State v. Moriwake, supra, 647 P. 2d at 712; People v. Kirby, 92 A.D. 2d 848, 460 N.Y.S. 2d 572 (1983); State v. Witt, 572 S.W. 2d 913, 917 (Tenn.1978); cf. State v. Lundeen 297 N.W. 2d 232 (Iowa Ct.App.1980).
Judicial review of such a decision, of course, must be conducted in accordance with established standards. Those standards have been articulated differently over the years. Justice Jacobs found the prosecutor's "discretion in selecting matters for prosecution" to be reviewable "for arbitrariness or abuse." In re Ringwood Fact Finding Comm., supra, 65 N.J. at 516. But in Leonardis, supra, 73 N.J. at 376, Justice Pashman found "ample authority . . . to review prosecutorial decisions where there is a showing of patent and gross abuse." Judge Conford, concurring in Leonardis, noted the distinction between these two formulations and pointed out that Justice Pashman's standard of review restricted "judicial interference with the exercise of prosecutorial discretion considerably more tightly than under the conventional concept of judicial review of administrative action for arbitrariness." Id. at 392. Judge Conford endorsed the stricter standard for reasons which are equally relevant here:
In my judgment, the range of considerations which can legitimately motivate a prosecutor to opt for prosecution of a particular offender is almost too broad for articulation in a set of guidelines and certainly transcends in breadth the standards commonly controlling exercises of discretion by the typical executive administrative agency. (Ibid.)
The same considerations of policy and practicality are equally persuasive here. As with a pretrial intervention decision, the decision whether or not to continue prosecution following mistrial is entrusted to the prosecutor in the first instance. Both decisions require the prosecutor to determine whether the needs of law enforcement justify burdening a defendant with a continuing prosecution. Both decisions involve the same broad range of considerations which can legitimately motivate the prosecutor. Both decisions should be given the same "great deference." Id. at 381.
We therefore hold that a defendant must establish that the prosecutor's decision to proceed to retrial is a patent and gross abuse of discretion before a court may properly overturn that decision and dismiss the indictment. A "patent and gross abuse of discretion" means, in this setting, that "the prosecutor's decision either failed to account for all the relevant factors, was based on irrelevant or inappropriate factors or constituted a 'clear error of judgment.'" State v. Humphreys, 89 N.J. 4, 13 (1982); see also State v. Roth, 95 N.J. 334, 364 (1984).
The decision whether to proceed to retrial calls for a balancing of the interest of the State in obtaining a determination on the merits and the interest of a defendant in being free from the burdens of a repetitive, and perhaps inconclusive, prosecution. Some of the factors to be considered in that balance were recited in State v. Moriwake, supra, 647 P. 2d at 712-713:
(1) the severity of the offense charged; (2) the number of prior mistrials and the circumstances of the jury deliberation therein, so far as is known; (3) the character of prior trials in terms of length, complexity and similarity of evidence presented; (4) the likelihood of any substantial difference in a subsequent trial, if allowed; (5) the trial court's own evaluation of relative case strength; and (6) the professional conduct and diligence of respective counsel, particularly that of the prosecuting attorney.
In State v. Lundeen, supra, 297 N.W. 2d at 236, the court found the relevant considerations "should include, but are not limited to," the following:
(1) weight of the evidence of guilt or innocence; (2) nature of the crime involved; (3) whether defendant is or has been incarcerated awaiting trial; (4) whether defendant has been sentenced in a related or similar case; (5) length of such incarceration; (6) possibility of harassment; (7) likelihood of new or additional evidence at trial; (8) effect on the protection to society in case the defendant should actually be guilty; (9) probability of greater incarceration upon conviction of another offense; (10) defendant's prior record; (11) the purpose and effect of further punishment; and (12) any prejudice resulting to defendant by the passage of time.
The trial judge here gave specific consideration to such criteria in reaching his conclusion that the prosecution should be terminated. But he gave no apparent deference at all to the prosecutor's ...