On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Approved for Publication July 11, 1995.
Before Judges Stern, Keefe and Humphreys.
The defendant, a convicted murderer of an elderly woman, was arrested for armed robbery while on parole. His victim was a Canadian woman who was touring the United States with a friend. The evidence disclosed that he attacked the female victim in her car. He struck her in the head with his gun causing a bloody gash which required eight stitches. During the attack, he tried to strangle her. The evidence of his guilt was overwhelming.
Defendant was indicted for robbery, N.J.S.A. 2C:15-1 (count one) and armed robbery, N.J.S.A. 2C:15-1 (count two). After conviction by a jury on June 21, 1993, defendant was sentenced on count two to the custody of the Commissioner of the Department of Corrections for thirty years, with fifteen years to be served before parole eligibility. The first count was merged into the second. The sentence was made consecutive to a parole violation defendant was then serving.
On this appeal, defendant argues, through counsel, that because he was convicted at a second trial, "held following declaration of a mistrial" at the first trial, his Federal and State "constitutional protections against twice being placed in jeopardy" were violated, and the indictment must be dismissed. Defense counsel also argues that "the reasonable doubt charge was fatally flawed."
In a pro se supplementary brief, defendant further argues:
Point I: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF A SPEEDY TRIAL.
Point II: POLICE AND PROSECUTOR MISCONDUCT AT THE GRAND JURY DEMANDS A DISMISSAL OF THE INDICTMENT.
Point III: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND IT MUST BE SET ASIDE AND THE INDICTMENT MUST BE DISMISSED.
Point IV: THE TRIAL COURT ABUSED ITS DISCRETION IN DECLARING A MISTRIAL WITHOUT CONSIDERING THE ALTERNATIVES.
The principal question raised by this appeal is whether the sua sponte declaration of mistrial by the trial Judge during the first day of trial, without any expressed consent from defendant, bars the retrial commenced the very next day, requires reversal of this conviction and precludes any further prosecution of the defendant.
After a thorough review of the record and consideration of all pertinent factors including the great importance of public Justice, we conclude that the defendant's interest in avoiding multiple and oppressive prosecutions was not subverted. We, therefore, affirm the conviction. We also outline ...