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State v. Abbati

Decided: June 5, 1985.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 195 N.J. Super. 218 (1984).

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Handler, J.


This appeal presents the issue whether, and under what authority and standards, a trial court may dismiss an indictment with prejudice after a defendant has been twice tried for the same offense and each prosecution has ended in a mistrial due to a hung jury.


The defendant, Vincent Abbati, Jr., was indicted and charged in four counts with 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)). Defendant went to trial in June 1982. The complainant testified that on January 17, 1982 the defendant abducted her at knifepoint at approximately 7 a.m. from a bus stop where she was waiting, drove her to a vacant lot, and forced her to engage in sexual intercourse. He then took her to his apartment where defendant's room-mate and the latter's girlfriend were present. When defendant left the room, the complainant fled and sought assistance.

The defendant offered a different version. He testified that he offered the complainant a ride because of the cold weather, which she voluntarily accepted, that they smoked marijuana together and engaged in consensual sexual intercourse. Afterward, they returned to his apartment where she met his room-mate and his room-mate's girlfriend. She left the apartment when Abbati momentarily went to his bedroom.

The jury deliberated approximately two days before they declared themselves hopelessly deadlocked. This conclusion

came after the court requested that they continue to deliberate. The court then declared a mistrial.

In November 1982 defendant's second trial began before a different trial judge and jury. The State relied upon the same fact witnesses, and their testimony was substantially identical to the first trial. The only noteworthy differences between the two trials were an automobile demonstration of the alleged kidnapping conducted by defense counsel and that the defendant called different character witnesses in his second trial. The jury deliberations in this trial lasted approximately one full day. At one point the jury informed the court of a deadlock; the court instructed the jury to continue deliberating. It soon became apparent that this jury was also hopelessly deadlocked. Another mistrial was declared.

Excluding the relatively minor differences in the defense's case, the trials were virtual duplicates of each other. The State and the defendant were represented by the same attorneys in both trials. No demonstrative evidence presented in either trial definitely corroborated either the State's or the defendant's version of the events. Thus, the jury's determination of guilt vel non in each case depended on its evaluation of the credibility of the complainant and defendant on the issue of consent to both asportation and intercourse.

After the second mistrial, Abbati moved for dismissal of the indictment with prejudice. The State argued that the trial court had no power to dismiss an indictment, absent a constitutional violation of the defendant's rights, unless explicitly authorized by statute or court rule, and that there was no such authority in New Jersey. The trial court granted defendant's motion and dismissed the indictment. Relying on State v. Moriwake, 65 Hawaii 47, 647 P. 2d 705 (1982), the court determined that a trial court has inherent power to dismiss an indictment, and that after two juries had been unable to reach a verdict, it was appropriate under the circumstances for the

court that had presided over the second trial to exercise that power.

In a split decision, the Appellate Division reversed, 195 N.J. Super. 218 (1984), and held that although a trial court has inherent power to dismiss an indictment, it may be exercised only when the court finds a "patent and gross abuse of [prosecutorial] discretion . . . ." Id. at 223. The Appellate Division required the trial court to balance the factors favoring and disfavoring dismissal and further found that the trial court gave no apparent deference to the prosecutor's decision to reprosecute. Id. Judge Matthews, dissenting, reasoned that the trial court did not abuse its discretion in dismissing the indictment, and concluded that to allow "retrial ad infinitum provided successive juries cannot agree on a verdict is fundamentally unfair, if not bad organic law." Id. at 226. The case is before the Court on appeal as of right under R. 2:2-1(a)(2). We reverse.


The State asserts that absent statutory authority, a court may dismiss an indictment with prejudice only when the defendant's constitutional rights have been violated. We therefore consider whether constitutional principles, including double jeopardy, due process, and fundamental fairness, constitute a basis for implying judicial authority to dismiss an indictment following several mistrials.

It is, of course, true that a trial court must dismiss an indictment if prosecution would violate the defendant's constitutional rights. See, e.g., Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Szima, 70 N.J. 196, cert. den., 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976) (right to speedy trial); State v. Barnes, 84 N.J. 362 (1980) (freedom from double jeopardy); State v. Sutton, 80 N.J. 110 (1979) (freedom from selective prosecution); State v. Jones, 183 N.J. Super. 172 (App.Div.1982) (right to due process). The double jeopardy

clauses of the federal and state Constitutions, however do not prohibit retrial of a defendant when a prior prosecution for the same offense has ended in mistrial attributable to ...

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