On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Antell, Dreier and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was indicted for attempted burglary of an automobile, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2a, and aggravated assault upon a law enforcement officer, in violation of N.J.S.A. 2C:12-1b(5).
A jury was empaneled on Tuesday, October 22, 1991, and the parties were directed to be ready to proceed the following morning. On the morning of October 23, 1991, the assistant prosecutor assigned to the case advised the court that her office was having difficulty locating the victim of the alleged attempted burglary. The prosecutor told the court that police officers had been sent to the victim's home but that she was not there, and that a prosecutor's representative had called her place of employment but that she was not there either. The prosecutor also stated that there were no reports of automobile accidents or hospital admissions which might explain the witness's absence. The prosecutor then requested the court to continue the trial for one day so that the whereabouts of this victim could be determined. However, the court denied the prosecutor's application. At 10:35 a.m. the court discharged
the jury and declared a mistrial. Defendant preserved his right to make an appropriate motion regarding the declaration of a mistrial.*fn1
Defendant made a motion to dismiss the indictment on the ground that a retrial was barred by double jeopardy. The trial court denied the motion. We granted defendant's motion for leave to appeal and now reverse.
The Double Jeopardy Clause of the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const.Amend. V. The New Jersey Constitution provides that "no person shall, after acquittal, be tried for the same offense." N.J. Const. art. 1, para. 11. The protection against double jeopardy provided by these federal and state constitutional provisions "have been held coextensive in application." State v. Rechtschaffer, 70 N.J. 395, 404, 360 A.2d 362 (1976).
It is firmly established that jeopardy attaches when a jury is selected and sworn. Crist v. Bretz, 437 U.S. 28, 98 S. Ct. 2156, 57 L. Ed.2d 24 (1978); State v. Lynch, 79 N.J. 327, 341, 399 A.2d 629 (1979). Therefore, if the court declares a mistrial without the defendant's consent after a jury is sworn, a retrial is barred by double jeopardy unless there was a "manifest necessity" for the mistrial or the "ends of public Justice" would be defeated by an acquittal. United States v. Dinitz, 424 U.S. 600, 606-07, 96 S. Ct. 1075, 1079, 47 L. Ed.2d 267, 273 (1976); State v. Rechtschaffer, supra, 70 N.J. at 405, 360 A.2d 362. "The underlying hypothesis" of this rule is that "the trial once started should proceed to its Conclusion." Id. at 406, 360 A.2d 362. A trial court's failure to consider less drastic alternatives than the declaration of a mistrial is one circumstance which has led reviewing courts to conclude that there was an absence of "manifest necessity" for a mistrial. See, e.g., United States v. Jorn, 400 U.S. 470, 485-87, 91 S. Ct. 547, 556-58, 27 L. Ed.2d 543, 556-68 (1971); United States v. Bates, 917 F.2d 388, 396 (9th Cir.1990); United States v. McKoy, 591 F.2d 218, 222 (3d Cir.1979); State v. Rechtschaffer, supra, 70 N.J. at 415, 360 A.2d 362.
Although the sudden serious illness or unexpected disappearance of a critical witness could create a "manifest necessity" for the declaration of a mistrial which would allow the State to retry a defendant, see State v. Modell, 260 N.J. Super. 227, 244, 615 A.2d 1264 (App.Div.1992), the temporary absence of a witness is an insufficient basis. See Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed.2d 100 (1963); Mizell v. Attorney General of New York, 586 F.2d 942 (2d Cir.1978), cert. denied, 440 U.S. 967, 99 S. Ct. 1519, 59 L. Ed.2d 783 (1979); State v. Stani, 197 N.J. Super. 146, 484 A.2d 341 (App.Div.1984).
Thus, in State v. Stani, supra, the victim of the alleged offense, who apparently was disinclined to cooperate with the State for personal reasons, ...