On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
King, Landau and Humphreys (temporarily assigned). The opinion of the court was delivered by King, P.J.A.D.
This case presents a question of fundamental fairness arising under the Double Jeopardy Clauses of the State and federal constitutions. N.J. Const. art. I, para. 11; U.S. Const. amend. V; see N.J.S.A. 2C:1-9(d)(3). Defendant's first trial in 1989 ended in an acquittal on charges of attempted murder and terroristic threats. He was convicted on charges of aggravated assault and possession of a weapon for an unlawful purpose. We reversed these convictions in January 1991 because of trial error. His retrial in 1992 on the assault and weapons charges was aborted by a mistrial when the State's key witness went to jail for contempt, and eventually to a psychiatric ward, for refusing to testify against defendant under a grant of immunity. The 1992 trial started on January 14, was adjourned sine die on January 16 when the key witness refused to testify, and ended in a mistrial on April 10 when the Judge in frustration finally discharged the remnants of the jury.
The State again sought to retry defendant. The Judge denied defendant's motion to dismiss the indictment on double jeopardy grounds. On leave to appeal, we conclude that on the unique record presented, New Jersey's double jeopardy and fundamental fairness doctrine bars another trial of this defendant.
The case has an unusual procedural background which we recite in detail. In November 1988 the State obtained an indictment in Cumberland County charging defendant Dunns with attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a) (count one); terroristic threats, N.J.S.A. 2C:12-3(a) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five).
On June 29, 1989, during the first jury trial, the Judge granted defendant's motion for judgment of acquittal on count two, terroristic threats. The jury acquitted defendant on count one, attempted murder, but convicted him on the remaining counts, third- and fourth-degree aggravated assault and possession of a weapon for an unlawful purpose. The Judge then sentenced defendant to a five-year term with a three-year parole ineligibility term on count three; a concurrent 18-month term on count four; and a concurrent five-year term with a three-year parole ineligibility on count five. Defendant served 20 months of this sentence before the 1989 convictions were reversed and he raised bail pending retrial.
Before the 1989 trial, the Judge conducted an Evid.R. 8 hearing to determine whether the alleged victim, Lynn Elliott, would testify. She had been romantically involved with defendant at the time of the episode. She refused to answer the assistant prosecutor's questions at the Evid.R. 8 hearing and was found in contempt of court. During the course of trial, the Judge conducted another Evid.R. 8 hearing and concluded that certain statements made by Elliott to the police were admissible on the State's case under the "excited utterance" exception to the hearsay rule. Evid.R. 63(4). On January 30, 1991 we reversed defendant's 1989 convictions on the ground that the Judge erred in admitting Elliott's statement to police into evidence as an "excited utterance" and we remanded for a new trial. As noted, by this time defendant had served 20 months before he was released pending his new trial.
On January 13, 1992, a Monday, the jury selection process for the retrial began. On that date, the Judge conducted another Evid.R. 8 hearing to determine whether the victim, Elliott, would
testify for the State. Elliot said that she would not testify and invoked her Fifth Amendment privilege against self-incrimination.
On January 14 jury selection was completed, the jury was sworn, and the trial began. On Thursday, January 16, after Trooper Coffin had completed his testimony, the State announced that it had obtained a grant of statutory immunity for Elliott. On that date, the Judge signed an order compelling Elliott to testify pursuant to our "use immunity" statute, N.J.S.A. 2A:81-17.3. Elliott was called to the stand by the State, refused to answer the trial prosecutor's questions, and was held in contempt of court. The Judge ordered Elliott held in the Cumberland County jail without bail and adjourned the trial indefinitely. He did not discharge the jury.
The matter stagnated with the jury "on call" until February 21, when the Judge denied defendant's motion to enter a judgment of acquittal, to resume the trial, and to release Elliott from jail. Defendant sought leave to appeal the denial of these motions, which we denied on March 2.
On March 30 the Judge again denied defendant's motions to resume the trial, for judgment of acquittal and for dismissal on the ground of double jeopardy. Defendant again sought leave to appeal, which we denied on April 7. On April 10 the Judge declared a mistrial because of juror hardship. He ordered the release of Elliott from jail after granting the mistrial.
Defendant then filed a motion to dismiss the indictment on the grounds of double jeopardy pursuant to the State and federal constitutions and N.J.S.A. 2C:1-9(d). On August 10 the Judge denied the motion. On August 25 defendant filed a notice of motion for leave to appeal from the Judge's interlocutory order denying defendant's motion to dismiss the indictment on double jeopardy grounds. On September 24 we denied defendant's motion for leave to appeal from denial of that motion. On October 9 defendant moved for leave to appeal to our Supreme Court from our denial of interlocutory relief. On December 8 our Supreme
Court granted defendant's motion for leave to appeal and remanded to us to consider the matter on the merits.
The case involves the tortuous history of the State's prosecution of defendant, Damon Dunns, a State Corrections Officer, who allegedly shot at and slightly injured his "girlfriend" Lynn Elliott on June 30, 1988.*fn1 At the first trial in June 1989 Elliott refused to testify for the State. She recanted her prior statement to the State Police which had inculpated defendant Dunns and testified
on his behalf. She claimed that her prior statement inculpating Dunns was a spiteful lie, made because she was mad at him. The forensic evidence was inconclusive on Dunns's guilt. The State's use of Elliott's prior statement as an "excited utterance" hearsay exception at the first trial sparked the reversal of the aggravated assault and illegal use of a weapon convictions. The jury acquitted defendant of the attempted murder.
As noted, jury selection for the 1992 retrial began on January 13, 1992. On that date, at an Evid.R. 8 hearing, Elliott said that she still would not testify for the State, and for the first time in the case invoked her "Fifth Amendment right to remain silent." At that hearing, her counsel explained to her that if she testified as the State desired, she could subject herself to prosecution for perjury or false swearing because of her inconsistent sworn statement to the police and her testimony at the 1989 trial.
The Judge ruled that Elliott's fear of self-incrimination was genuine and that she could properly assert her right against self-incrimination. The Judge also commented that the State had known "full well" that Elliott, who had refused to testify at the first trial, might possibly invoke her constitutional right to remain silent and that an application for immunity should have been made before the start of the second trial. The State represented that it intended to embark on the "cumbersome process" of obtaining a grant of "use immunity" for Elliott. On January 14, the jury selection process was completed and the jury was sworn.
On January 16, the prosecutor informed the Judge that he had obtained a petition to compel testimony, pursuant to N.J.S.A. 2A:81-17.3,*fn2 granting Elliott immunity with regard to any potential
perjury or false swearing charges. Because the grant of immunity precluded Elliott's assertion of her Fifth Amendment rights, the Judge signed an order compelling her to testify. When called to the stand, Elliott refused to testify despite the grant of immunity. The State requested that the Judge hold her in "contempt of court." The Judge found Elliott in "contempt under R. 1:10" and committed her to the custody of the Sheriff without bail. He told her that she would be released from incarceration only when she communicated her willingness to testify. He then adjourned the trial until January 21, 1992 when he intended to provide Elliott another opportunity to testify. On January 21, 1992, five days after her incarceration, Elliott was brought back to court and again refused to testify. The Judge continued the contempt order and remanded Elliott to the custody of the Sheriff, again without bail.
On the following day, January 22, Elliott again refused to testify. The Judge told her that he planned on "simply putting Mr. Dunns's case on hold until you decide to testify." Defense counsel requested that the case go forward, claiming that it was clear Elliott would never testify, that the State had known prior to trial that this type of delay was likely, and that the resulting delay would deprive Dunns of a fair and speedy trial. Defense counsel also moved for dismissal, arguing that the success of the State's
case depended on Elliott's testimony. The State argued that it had been unaware before trial that Elliott would assert her right to remain silent and that the delay had not caused any prejudice to the defendant. The Judge ruled that he would adjourn the trial until Elliott testified, stating:
The State also has a right to call her and to present her testimony. The State has a right to compulsory process. If Ms. Elliott chooses for whatever reason, and I certainly don't understand it at this point, chooses not to comply with the subpoena and not to comply with the court orders, the contempt finding will continue. She may be remanded to the county jail. We're not going to [go forward with] the trial.
The State and the Judge tried again two weeks later on February 3, 1992, and again Elliott refused to testify. The Judge, emphasizing that Elliott had "the key to the jail in her hands," sent her back into custody, and again adjourned the trial until February 18.
On February 18 Elliott again refused to testify. This time she was represented by counsel, who argued that since one month in jail had failed to motivate her to testify, her incarceration had become penal in nature. The Judge ruled that the order of contempt would continue and that the imprisonment might still have the coercive effect of encouraging her to testify.
Also on February 18, 1992 the Judge stated that he planned to bring Elliott into court on a weekly basis "as long as I have twelve jurors who can continue in the case." The jurors were kept informed of the status of the case by taped messages left on the courthouse answering machine. Each week when jurors called to find out if they must return to court, the message on the answering machine gave the instruction to call back the following week and that if continued participation proved a hardship, a juror should notify the Judge's secretary. At that time, the Judge concluded that thirteen jurors were still available.
On February 24, after spending forty days in jail, Elliott again expressed her refusal to testify. On this occasion, defense counsel again requested that the Judge refuse to grant a continued adjournment; he also raised the issue of double jeopardy. The
Judge denied these motions and found that the imprisonment order might still be efficaciously coercive. By this date, the number of available jurors had dropped to twelve.
Elliott was brought to court on March 2, March 16, and March 30. On each occasion she stood by her refusal to testify. Each time she was sent back to county jail. The Judge still believed that the incarceration could have a possible coercive impact. Also, on each occasion, defense counsel reargued his motion for dismissal while the State continued to move for adjournment.
On April 1 about ten weeks after Elliott's imprisonment, the Judge on his initiative conducted an emergency hearing because of the deterioration of Elliott's mental health. The Judge ordered Elliott transferred to the Bridgeton Hospital's Psychiatric Unit on a furlough until the doctors there decided when she was ready for a medical discharge, at which time she would be returned to the county jail.
On April 10 Elliott was again brought before the Judge. On that date, the Judge informed the parties that three additional jurors had indicated that their continued participation would create a hardship and that he intended to excuse those jurors. This reduced the number of available jurors to nine. Defense counsel said that he would not consent to a jury panel of fewer than twelve members, R. 1:8-2. He also said that he was not seeking a ...