On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Pressler, Scalera and Stern. The opinion of the court was delivered by Stern, J.A.D.
[234 NJSuper Page 184] Defendant was convicted in the Municipal Court of Peapack-Gladstone of driving while intoxicated, N.J.S.A. 39:4-50, and was again convicted on trial de novo in the Law Division. He was fined $500.00, surcharged $100.00, required to attend the Intoxicated Driving Resource Center for 48 hours of treatment, and his license was suspended for two years. On this appeal defendant contends, among other things, that "the defendant's retrial was barred by double jeopardy principles" and "the municipal court and Superior Court Law Division committed plain error by declaring [a] mistrial and allowing the second trial to stand." We agree that the second trial was precluded by the mistrial at the first, and reverse the conviction.
The trial commenced in the municipal court on October 6, 1987. On that date the State presented the testimony of its primary witness, Larry Seymour, a former municipal police officer, who had responded to the scene of the accident of May 12, 1986 which resulted in the charges. It appears uncontested that at the conclusion of Seymour's direct and cross-examination the trial was adjourned, with Seymour subject to recall by the State for continued testimony.
Proceedings resumed before the same judge on February 4, 1988,*fn1 whereupon the court clerk indicated that there had been a malfunction of the taping system on the evening of October 6, 1987, and that substantial portions of Seymour's testimony had not been preserved on tape. Noting that Seymour had not appeared that evening, the court on its own motion declared a mistrial over the objections of defendant's counsel. The judge noted at the outset of the February 8, 1988 proceedings that, because of "the fact four months have passed since that hearing date," the mistrial was required, and thereafter stated:
It's hard to believe, but true. That being the case, I indicated to counsel in chambers that it was my reluctant but it seemed inevitable conclusion that this case should mistry and that would be on the Court's motion. It being obvious that the record is incomplete and that the . . . well both parties, the state and the defendant would be prejudiced by an absence of the record . . . a complete record, complete and accurate record of what occurred on October sixth. I suppose if Mr. Seymour were here tonight, we could with the consent of the parties retake his testimony and start over again. But it seems to me that the case has to mistry in light of that and I'll ask for comments of [defense counsel] and [the prosecutor] on that.
Defendant objected to the mistrial, stating
Your Honor, I would oppose a mistrial. We're prepared to go ahead, with the exception of the records affecting Mr. Seymour. It would seem to me that if we had a defective tape, the fact the tape is defective may not be germane if the case is successfully concluded on behalf of my client. Because then there is no need for the tape. I don't believe the state has a right to appeal. On the
other hand, if the state was successful, I might appeal and I would need that transcript, the Court is correct. I'm not sure how defective that tape is. I'm not sure whether just counsel's arguments are lost or the actual testimony of Mr. Seymour is lost. I would submit to the Court, though, that I have an understanding of the court ruling and that unless the testimony itself is lost, I think it would be improper to declare a mistrial.
Thereafter, the following colloquy occurred:
[PROSECUTOR]: Well Judge, my review was cursory at best, and I was . . . as I indicated, I was looking for some specific information which I couldn't find. In looking for that, I noticed that there was some portions of the tape that were missing. What was missing, I don't know. And as I said, it was a cursory review. If [defense counsel] would like to review the tape to see if there is actual testimony missing, that's fine, but in the absence of that, I don't want to go ahead with this case with the hope that no testimony is missing. I think it would be a waste of everyone's time. And I think that if a mistrial is to be declared that either we should listen to the tape and find out if it's necessary or declare a mistrial.
[DEFENSE COUNSEL]: Well Judge, I don't think that I consent to a mistrial ...