On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Michels, O'Brien and Havey. The opinion of the court was delivered by Michels, P.J.A.D.
Following two mistrials due to a hung jury, defendant Travis Paige was convicted by a jury of first degree robbery of Hyman Margolius (Margolius) in violation of N.J.S.A. 2C:15-1 (Count 1); aggravated assault in violation of N.J.S.A. 2C:12-1b(1) (Count 2), and possession of a weapon with a purpose to use it unlawfully against the person of another in violation of N.J.S.A. 2C:39-4d (Count 4). Defendant's motion for a new trial was denied. The trial court merged defendant's convictions for aggravated assault under Count 2 and for possession of a weapon with a purpose to use it unlawfully against the person of another under Count 4 with his conviction for first degree robbery under Count 1 and thereupon committed defendant
to the custody of the Commissioner of the Department of Corrections for 20 years with a 10-year period of parole ineligibility and assessed a Violent Crimes Compensation Board penalty of $30 for the first degree robbery. Defendant appeals.
According to the State's proofs, Margolius was the owner of Karlin Jewelers which was located at 70 Lexington Avenue in Passaic, New Jersey. On September 14, 1987, Margolius left his store at about 5:30 p.m. and walked to his car, which was parked about one and one-half blocks away, behind Tri-Lex Cleaners. As per his normal routine, Margolius intended to get his car and drive back to the store to pick up his wife. When Margolius reached his car, he began putting his key in the door lock. Sensing the presence of someone behind him, Margolius turned around quickly and was struck in the face with a hammer. Margolius was struck a number of times in the head and was knocked off his feet, falling against his car. As he lay on the ground, Margolius' head and back were resting against his car and he was on his right side.
When the assailant attempted to strike him again, Margolius kicked at him and the assailant backed off momentarily. The assailant then approached Margolius' right side, knelt down and ripped open Margolius' front right shirt pocket, taking approximately $20 in single dollar bills in that pocket. The assailant then fled. According to Margolius, he and his assailant were face-to-face when the money was taken.
Mark Hooks was walking home from work and was in the area at the time the attack occurred. Hooks heard a woman scream and saw her looking at something. Looking under a van, Hooks saw a man lying on the ground and another person kneeling over him. He could only see this other person from his foot to his knee. Hooks yelled and walked around the back of the van and saw Margolius lying on the ground bleeding. Hooks saw the back of a black man running away from the scene down Jackson Street. This man was wearing a black hat with a white band around it.
At approximately 6:00 p.m. on the day of the incident, Passaic Police Officer Ronnie Stephens arrived at the area in response to a radio call about someone being attacked. Upon arrival at the scene, Officer Stephens saw Margolius slumped over and blood pouring from the top of his head and face. Officer Stephens called for an ambulance and Margolius said that he had been attacked by a black man about five feet ten inches tall and wearing a khaki shirt and pants and a sweater top and a hat. Because the ambulance was taking a long time to arrive at the scene, Officer Stephens drove Margolius to the hospital in his patrol vehicle. At that time, Margolius indicated that he could identify his assailant.
Margolius was hospitalized about one week. He needed 12 stitches to close his head wounds and also suffered a broken nose. Due to the attack, Margolius also lost 40% of hearing in his right ear and suffered dizziness in the morning, which he had never experienced prior to the incident in question. While he was in the hospital, on several occasions police investigators showed Margolius photographs of black males. On the first such occasion, Margolius looked through five books, each containing about 200 photographs, but did not see his attacker's photograph. On the second occasion, Margolius picked out defendant's photograph and identified him as the assailant.
Defendant was arrested on September 18, 1987. After being transported to police headquarters and being informed of the offense he was being charged with and the date of its occurrence, defendant contended that he was working on that day and that the police had arrested the wrong person. Despite being advised that he did not have to do so, defendant demanded a "one-on-one confrontation" with his accuser and signed a form waiving his right to a group line-up. On September 22, 1987, about eight days after the incident in question, Margolius viewed defendant at police headquarters. Margolius positively identified defendant as the man who had attacked him. Later, Margolius made an in-court identification of defendant as his attacker.
Defendant seeks a reversal of his convictions on the following grounds set forth in his brief:
I. FUNDAMENTAL FAIRNESS REQUIRED THAT THE TRIAL COURT DISMISS THE INDICTMENT AFTER TWO JURIES WERE UNABLE TO REACH A VERDICT.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS EVIDENCE OF A PRIOR CONVICTION.
III. THIS COURT MUST ORDER A HEARING ON THE ISSUE OF WHETHER BLACK-AMERICANS WERE UNDERREPRESENTED IN THE VENIRE JUDGES FROM WHICH DEFENDANT-APPELLANT'S JURY WAS SELECTED.
IV. DEFENDANT-APPELLANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL, THUS THIS COURT MUST REMAND THE MATTER FOR A NEW HEARING.
Defendant further asserts the following grounds for reversal in his supplemental brief:
I. THE TRIAL COURT IMPROPERLY TERMINATED DEFENDANT'S SECOND TRIAL BY DECLARING A MISTRIAL ABSENT APPROPRIATE NECESSITY. CONSEQUENTLY THE THIRD TRIAL ON THE SAME CHARGES VIOLATED CONSTITUTIONAL PROTECTIONS AGAINST DOUBLE JEOPARDY. (U.S. CONST., AMEND. 5; N.J. CONST. (1947), art. I, para. 11).
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THE FACT THAT THE PROSECUTION WITHHELD MATERIAL EVIDENCE FAVORABLE TO THE DEFENSE IN VIOLATION OF THE RULE OF BRADY v. MARYLAND, 373 U.S. 83, 83 S. Ct. 1194 (1964).
We have carefully considered these contentions and all the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). However, further comment is appropriate with respect to some of these contentions.
Defendant contends for the first time on appeal that the indictment should have been dismissed prior to his third trial. In defendant's view, a third trial after two juries could not reach a verdict and there was no new evidence or other circumstances warranting a new trial violated concepts of fundamental
fairness. Defendant, relying on State v. Abbati, 99 N.J. 418, 493 A.2d 513 (1985), claims that "three bites at the apple are simply too many and it is therefore incumbent upon this Court to vacate the conviction." We disagree.
Preliminarily, our thorough review of the record confirms the State's argument that defendant's Abbati claim was not raised before the third trial. R. 3:10-2 provides that a defense objection based on defects in the institution of the prosecution or the indictment must be raised by motion before trial. Here, defendant apparently never raised an Abbati claim before this third trial and, therefore, he is deemed to have waived such a claim.
Notwithstanding the fact that this claim has not been timely raised, we are satisfied that defendant's third trial violated none of the principles enunciated by the Supreme Court in State v. Abbati, supra. There, our Supreme Court addressed the issue of whether, and under what circumstances, a trial court was empowered to dismiss an indictment after a defendant has been subjected to two trials that ended in mistrial due to a hung jury. After noting that such successive prosecutions are not barred by constitutional prohibitions of double jeopardy, the Court stated that a trial court is authorized to dismiss an indictment with prejudice where there is a violation of fundamental fairness, which is an integral component of the right to due process. The Court found that "[t]he anxiety, vexation, embarrassment, and expense to the defendant of continual prosecution where no new evidence exists is a proper subject for the application of traditional notions of fundamental fairness and substantial Justice." Id. at 430, 493 A.2d 513. Having found authority for the trial court to do so, the Court set forth the guidelines for dismissing an indictment as follows:
We hold that a trial court may dismiss an indictment with prejudice after successive juries have failed to agree on a verdict when it determines that the chance of the State's obtaining a conviction upon further retrial is highly unlikely. The trial court must carefully and expressly consider the following factors, ...