On appeal from the Superior Court, Chancery Division, Family Part, Monmouth County.
King and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.
The primary question raised in this juvenile delinquency appeal is whether a declaration of a mistrial barred a second trial for juvenile delinquency because of double jeopardy. We conclude that it did not and accordingly affirm.
Juveniles, D.P. and S.H., were charged with various offenses stemming from an incident in which a group of juveniles significantly damaged a house and frightened its inhabitants by throwing rocks, bricks and wood, breaking windows and depositing debris inside. After a mistrial was declared, and following
a second trial, respondent was found to have committed acts, which, if he were an adult, would have constituted simple assault, N.J.S.A. 2C:12-1a; fourth degree criminal mischief, N.J.S.A. 2C:17-3; and criminal trespass, N.J.S.A. 2C:18-3. He received a two-year probationary disposition. He was also ordered to pay restitution in the amount of $228 at the rate of $25 a week, and to pay $45 to the Violent Crimes Compensation Board.
The existence of the vandalism, the damage and that it was done by a group of juveniles, was undisputed.*fn1 D.P. claimed that he had not been there, and the primary factual dispute at trial was identification. The circumstances prompting the mistrial occurred when the prosecutor put on his fourth witness. It is a fair reading of the testimony that John,*fn2 a juvenile co-defendant who had pleaded guilty, was the first witness to involve D.P. in the vandalism. John said he had talked into a tape recorder to the police which had resulted in his giving a statement to them concerning his involvement and the involvement of others in the incident. When the prosecutor asked him about this statement, John said that he could not remember if he had mentioned D.P. as one of the vandals.
The prosecutor then asked John,
Q. When did you first indicate or remember that [D.] P. was involved?
A. When I was talking to you.
Q. Okay, and at that point did you have an opportunity to tell me that he was involved?
Defense attorneys stopped the questioning by objecting, saying that the prosecutor would be called as a witness for the defense. D.P.'s counsel represented that on the same day John had spoken to the prosecutor, he had earlier pleaded guilty but that in giving a factual statement in support of his plea, he had not mentioned D.P. Given the clear implication that this witness had been influenced by the State in his identification testimony, counsel asserted that the prosecutor was a crucial witness. The trial judge was clearly surprised. He declared a recess and a mistrial, saying,
There is now clear testimony where the, by question and answer, that the Prosecutor suggested to the witness that you told me something. That thereby makes him a potential witness.
And it doesn't do any good for Mr. Shapiro and Mr. Woods, which they might be willing to do, to say, well, we won't call Mr. Clarke. That's fine, but in an attempt to straighten out the matter, but should I find against their clients, their clients might fairly say and certainly I wouldn't angry [sic] with them if they said it. You know, we should have made Clarke testify too.
Following the mistrial declaration and termination of this first trial, three days later, there was a second hearing on D.P.'s claim that he could not be retried because a retrial would put him twice in jeopardy. The court concluded that a retrial was not barred, despite his acknowledgment that defense counsel had indicated opposition to the court's sua sponte declaration. The trial judge indicated that he was hearing the motion on his last day, and that if he had granted an adjournment, the trial would have to be continued by another judge.
D.P. was ultimately tried a second time before another judge. This appeal followed the ensuing adjudication of delinquency.
We are first clear that the same double jeopardy principles of the U.S. Const., Amend. V and XIV and the N.J. Const. (1947) Art. I, par. 11, apply to delinquency trials. Breed v. Jones, 421 U.S. 519, 529, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346, 355 (1975) (delinquency adjudication bars retrial as an adult); State in Interest of C.K., 198 N.J. ...