On appeal from the Superior Court, Law Division, Essex County.
Antell and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
Defendant-appellant Thomas DeMarco was convicted by a jury of possessing gambling records (N.J.S.A. 2C:37-3) and was sentenced to three years of probation with the condition that he serve 60 days in the county jail and was fined $1,500.
At the first trial, defendant's motion for mistrial was granted because the prosecutor in his opening statement to the jury stated that his office had received "certain information with regard to gambling activity going on . . ." Defendant's motion for dismissal on double jeopardy grounds was denied and a new trial commenced the next day resulting in defendant's conviction
on one count and acquittal on four others. Defendant appeals the judge's denial of his motion for dismissal.
In moving for a dismissal of the indictment on the grounds of double jeopardy at trial, defendant contended that the prosecutor intentionally referred to the hearsay in his opening statement even though he knew that he could not get the evidence in during the trial. The trial judge in denying defendant's motion stated he was satisfied the prosecutor did not intend to cause a mistrial.
The double jeopardy clause of the fifth amendment to the United States Constitution is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969). This clause protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S. Ct. 1075, 1078, 47 L. Ed. 2d 267, 273 (1976).
When a mistrial has been declared over defendant's objection, a new trial is permitted under the double jeopardy clause only when the mistrial was required by manifest necessity and the ends of justice would have been defeated by allowing the trial to continue. Illinois v. Somerville, 410 U.S. 458, 459, 93 S. Ct. 1066, 1068, 35 L. Ed. 2d 425, 428 (1973).
However, different principles apply when a mistrial has been declared at the defendant's request. Dinitz, 424 U.S. at 607, 96 S. Ct. at 1079, 47 L. Ed. 2d at 273-274. In Dinitz the United States Supreme Court held that the double jeopardy clause protects a defendant against governmental actions that are intended to provoke mistrial requests and thereby subject defendant to the substantial burdens imposed by multiple prosecutions. 424 U.S. at 611, 96 S. Ct. at 1081, 47 L. Ed. 2d at 276. The Court further held that the double jeopardy clause bars retrials where bad-faith conduct by the judge or prosecutor threatens the harassment of an accused by successive prosecutions or declarations of a mistrial so as to afford the prosecution
a more favorable opportunity to convict the defendant. Ibid.
In 1982 the United States Supreme Court narrowed the grounds upon which a new trial is barred. Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982). The previous standard, which merely required "bad faith conduct" or "harassment" by the judge or prosecutor, was rejected because it offered virtually no standards for its application. Ibid. 456 U.S. at 674, 102 S. Ct. at 2088, 72 L. Ed. at 424. The Court decided that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." 456 U.S. at 676, 102 S. Ct. at 2089, 72 L. Ed. 2d at 425. The Court limited the circumstances under which a defendant may invoke double jeopardy to "those cases in which the conduct giving rise to the successful motion for a mistrial ...