On appeal from the Superior Court of New Jersey,Law Division, Essex County, Indictment Number 2000-01-160
Before Judges Stern, Collester and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2001
We granted leave for defendant to appeal and granted a stay pending our determination of whether the trial judge's sua sponte declaration of a mistrial was improper resulting in a double jeopardy bar to defendant's retrial.*fn1 We conclude that under the circumstances of this case, the double jeopardy bar applies. Defendants were charged in an Essex County indictment with three counts of drug offenses and three counts of weapons offenses. Jury selection for defendants' joint trial began on October 24, 2000. Fourteen jurors were seated after two days and testimony began on October 26. The trial continued on October 27, 30 and 31. On October 31, defense counsel completed their summations late in the afternoon, and the prosecutor's summation was scheduled for the next day, November 1.
Before adjourning on October 31, one juror was excused because she was starting a new job the next day, reducing the jury to thirteen. Another juror indicated he was ill with an ear and throat infection and would have to leave at noon on November 1 for a doctor's appointment. On November 1, two additional jurors failed to appear, reducing the jury to eleven. One juror's parent died overnight and the other's parent was gravely ill in the hospital. This juror's parent died a few days later. The defense was willing to proceed with eleven jurors but the State was not. After discussion with counsel, the court scheduled the trial to continue on November 9 because defense counsel were unable to proceed at an earlier date.
On November 9, defense counsel appeared but the prosecutor who had been trying the case did not. She had notified the court she had a Florida vacation scheduled to begin on November 7.*fn2 The prosecutor attempted to re-schedule the vacation but would have suffered significant financial penalties for doing so. The trial judge, therefore, advised defense counsel on November 9 that she was declaring a mistrial:
Under those circumstances, it would not be possible to proceed with this trial until, at the very earliest, November 13th. I was unwilling to delay the trial for that length of time since that would have, in fact, been fourteen days, a full two weeks after any testimony had been given in the matter.
As a result, I had my secretary call the jury panel and tell them the trial would not be continued.
I will, at this point, declare a mistrial in this case and schedule the case again for trial. I understand there are objections to this procedure. Nonetheless, I find it a matter of manifest necessity governed by the unfortunate deaths of two jurors' parents, the excusal of another juror, and the schedules of both defense and prosecuting attorneys in this matter.
Defense counsel objected and the trial judge responded:
I think the appropriate forum in which to hear those objections would be in connection with a motion to dismiss on the grounds of double jeopardy.
In my view this is a case where mistrial was governed by manifest necessity, and I will be happy to consider any arguments that need to be made at that time. Nonetheless, the mistrial has been declared and at this point I am unwilling to reschedule the existing trial, finding that the lapse of time between the last appearance of counsel in this matter and the next available date, which would be at the earliest November 14th [sic], is simply too great to permit the jury to fairly remember and evaluate the testimony in this case.
Defense counsel continued to object:
MR. CARUSO: Judge, I view this case in a nutshell as one of a situation where a prosecutor is on a vacation, and that's why there's a mistrial being declared. When this Court said that this jury was coming – first of all, this jury wanted to come back. I remember, and I specifically remember juror number 6 nodded her head and wanted to come back today to settle this case. This jury can – did not want – this jury wanted to be back, Judge.
THE COURT: Mr. Caruso, I do not think it appropriate to make a record one way or the other as to the opinions of the jury. We do not have those jurors present, but what their feelings are is irrelevant to the proceeding.
MR. CARUSO: What I'm saying, judge – can I finish, please?
THE COURT: My determination is based on the length of time that would intervene before – between the taking of testimony and the conclusion of the trial. In my view waiting to Thursday was as close to the limit as it was possible to get without causing a ...