On appeal from Superior Court of New Jersey, Law Division, Gloucester County.
King, Brody and Ashbey. The opinion of the court was delivered by Brody, J.A.D.
[235 NJSuper Page 245] We granted defendant leave to appeal an order denying his motion to dismiss this murder indictment on the ground of double jeopardy. The trial judge had granted the State's motion
for a mistrial, made during defendant's attorney's opening statement. Shortly thereafter the judge denied defendant's motion and discharged the jury. The issues are whether defendant had consented or waived objection to the mistrial and if not, whether there was a "sufficient legal reason and a manifest or absolute or overriding necessity" for the judge to have declared the mistrial. N.J.S.A. 2C:1-9d(1) and (3). We conclude that defendant had not consented to the mistrial, that there was no necessity at all to declare the mistrial, and that the order denying defendant's motion for dismissal of the indictment must therefore be reversed.
The unusual history of this case caused the problems that led the judge to declare the mistrial. The victim, a young woman, was killed in her home in December 1975 when defendant was 16 years old. He was immediately taken into custody by the police, but not indicted until 1984 and not tried until 1988. The delay between indictment and trial was caused by legal proceedings, including a prior appeal, in which defendant challenged the State's right to proceed to trial. He argued in those proceedings that the lengthy delay between the crime and the indictment denied him due process because an alleged alibi witness had died in the interim. He also argued that the State should be barred from introducing the results of a test that purported to establish that blood stains on his underwear were the same blood type as the victim's, whose blood was a different type from defendant's.*fn1 He complained that he could not confirm the test results because the State had destroyed the stains in the test.
The State's key witness was the victim's son Sam who allegedly saw the homicide and immediately identified defendant to the police as the killer. Sam was only 5 years old when his mother was killed, thereby raising a question as to his competence to testify. That issue was tried in the Juvenile and
Domestic Relations Court shortly after defendant was taken into custody, when the State moved to have him tried as an adult. The judge who conducted the referral hearing in January 1976 ruled that Sam was not competent to testify. After the boy had testified and identified defendant in court, the judge found:
The judge nevertheless referred the matter to the Law Division so that criminal proceedings could be brought against defendant as an adult.
The matter was presented to a grand jury without Sam's testimony or statements, which the State considered barred by the court's ruling that Sam was incompetent to testify. The grand jury declined to indict and defendant was released. Defendant contended in the later proceedings that the State intentionally withheld evidence of guilt from the grand jury to assure a no bill in order to keep the matter open until Sam became old enough to qualify as a witness. The State responded that it revived the matter years later because of the continuing interest in the case of a detective who had been assigned to other matters in the intervening years.
In any event, these circumstances produced evidence questions that were bound to be raised at the 1988 trial. Defendant wanted the jury to know that the State's key witness had been ruled incompetent to testify in 1976 and that the State had used the device of waiting for the boy to age in an attempt to overcome his allegedly inherent lack of credibility. The State,
on the other hand, considered the prior ruling respecting Sam's competence to testify to be irrelevant.
The trial judge ruled that he had to grant the State's motion for a mistrial because the jury had become unfairly prejudiced by the cumulative effect of four events that occurred during trial. One of those events occurred during jury selection, one after the jury had been sworn and before opening statements, one during defendant's attorney's opening statement and the last during a colloquy with counsel outside the presence of the jury.
The first event occurred on a Friday morning while the last three members of the jury were being selected from a new panel. Although we have been given a transcript of only that day's proceedings, we infer from statements in that transcript that earlier during the jury selection defendant had expressed concern that prospective jurors would erroneously speculate that defendant had delayed the trial for over a decade by being a fugitive. On the other hand, the State had expressed concern that prospective jurors would erroneously speculate that the State had unfairly kept defendant in jail all that time.
To allay both concerns, the judge told the prospective jurors Friday morning:
So, I'll tell you that, and during the trial, during the testimony it will develop -- probably it will develop, and you will be satisfied as to the explanation of the delay. So, I want to let you know, though, that the defendant hasn't been out of the state. He hasn't been a fugitive. He hasn't fled. He's been available at all times. Also, and he's been available not because he has been in jail. He has not been in jail. He's not been incarcerated. He's not been confined, okay? All right.
The assistant prosecutor, anticipating defendant's attorney's efforts to blame the State for the delay, objected at sidebar to the judge's comment that the prospective jurors would "be satisfied as to the explanation of the delay." He complained that the remark unfairly burdened the State with an obligation to account to the jury for the delay.
The judge satisfied the objection by immediately addressing the jury as follows:
I will repeat that the event is supposed to have occurred -- the murder was supposed to have occurred December 30, 1975, and that is 13, almost 13 years ago, and let me ask, would the delay or the time that it is alleged that this happened, December, 1975 to today, the time of trial, would that 13-year delay -- and I don't use delay to indicate that someone was responsible and has to prove or disprove what they have done or have not done to bring the case to trial, but would that period of time, the lapse from the time it is supposed to have happened to the present time, would that influence anyone here? Would that cause you to be unable to fairly judge the defendant and the State in this matter, the fact that it's been 13 years? All right I see no hands raised.
I want to make certain that in that delay the Prosecutor need not justify that delay. The defendant need not justify that delay either. If it develops during the trial, fine. By fine I mean it will be evidential if it comes out at trial, but you are not at this moment to consider that period of time, that 13-year period of time. You are not to consider that. Only in respects that I asked you, would it influence you in this case? And I didn't see any hands raised.
I think that covers it, counsel?
[ASSISTANT PROSECUTOR]: Thank you, ...