On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
King and Deighan. The opinion of the court was delivered by King, J.A.D.
[197 NJSuper Page 148] In this case the State appeals the dismissal of a robbery and assault indictment by the Law Division judge. The judge concluded that further prosecution was barred by statutory and constitutional principles of double jeopardy. We affirm.
Trial began on January 3, 1984 when a jury was impaneled and sworn. Opening statements were made and testimony by Detective Black was given on that day. On January 4 the State was unable to proceed because the victim, Hayes, who had been subpoenaed, did not appear to testify. The record strongly suggests that the victim was not inclined to cooperate with the State for his own personal reasons. At the judge's request the defense moved for a mistrial which was granted. The precise colloquy was
So, Mr. Iaria [Defense Counsel] I'm going to grant a mistrial, if you are going to move for a mistrial at the present time.
THE COURT: I will grant it. I recognize that it's obviously a very drastic course of action. I think for all intents and purposes it probably means this case is over with. It means the jury would not have had to evaluate the charges and fairly and impartially decide what happened. It means there are potentially serious offenses; but for the reasons I expressed already, I think that the State, and the public represented by the State, has been given a fair and reasonable opportunity to bring Mr. Hayes in.
And -- you know -- it's not only been this morning and the rest -- the remainder of yesterday afternoon; but, Mr. Smith [prosecutor], I think you indicated in the very beginning yesterday morning that you had some inclination that Mr. Hayes wasn't going to show up. You have also indicated today that he, apparently, went under cover at some earlier time.
So, I'm not suggesting that you have done anything wrong yourself. All I'm suggesting is that the time that I have given the State and the public to bring in Mr. Hayes is not quite as short as might appear if you're just looking at the half-day continuance I gave today.
So, in any event, I'm granting the mistrial.
The jury was then discharged and the judge signed an order on the same day stating "said indictment be dismissed because of the State's inability to continue with the prosecution and prove the charges."
The next day, January 5, the judge met with counsel, on the record, concerning the events of the previous day. The judge said that she "was a bit remiss yesterday in calling upon Mr. Iaria [defense counsel] to move for a mistrial because it was quite apparent all along he objected to any adjournment." She then made a specific finding that neither ...