On certification to the Superior Court, Appellate Division, whose opinion is reported at 334 N.J. Super. 516 (2000).
The opinion of the court was delivered by: LaVECCHIA, J.
In this appeal defendant claims he was denied the effective assistance of counsel because his attorney failed to raise a double jeopardy defense prior to defendant's trial on various drug offenses after the attorney had objected to an earlier grant of a mistrial on the same charges. The Appellate Division determined that defendant waived his double-jeopardy claim by failing to file a Rule 3:10-2 motion raising the defense. The panel also found that the consequences of the attorney's decision were not sufficient to establish the showing of prejudice necessary to sustain a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), because defendant's complaint was that he was subjected to a second trial, not that the second trial was conducted unfairly. We hold that on the facts in this record defendant was denied the effective assistance of counsel and is entitled, therefore, to reversal of his conviction.
In January 1997, police officers conducted a vehicular stop of the automobile in which defendant, Al-Muhhye Allah, and co- defendant, Geraldo Garcia, were traveling. Garcia, the driver, had failed to obey a stop sign. One of the officers noticed an open cardboard box containing envelopes of heroin on the floor of the passenger's side of the vehicle and brought that observation to the attention of defendant and Garcia. Defendant ran from the vehicle, but was caught and arrested. Garcia was prevented from fleeing.
Defendant and Garcia were indicted on four counts: (1) second degree conspiracy, contrary to N.J.S.A. 2C:5-2 (Count One); (2) third degree possession of a controlled dangerous substance (heroin), contrary to N.J.S.A. 2C:35-10a(1) (Count Two); (3) second degree possession with intent to distribute, contrary to N.J.S.A. 2C:35-5b(2) (Count Three); and (4) third degree possession with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7 (Count Four). Prior to defendant's trial, Garcia entered into a plea agreement with the State in accordance with which he pled guilty to Counts One, Three, and Four and agreed to testify at defendant's trial. When providing the factual basis for his plea, Garcia stated that he and defendant jointly purchased the heroin, which they intended to sell, and that at the time of the arrest the box with the heroin was under the driver's seat of the car. At the time of jury selection in defendant's trial, Garcia had not been sentenced.
Defendant's first trial ended mid-trial when the court granted a mistrial on motion by the State. The following facts are relevant to the trial court's finding of manifest necessity for the mistrial.
At trial, defendant's counsel subpoenaed Garcia as a defense witness. Notwithstanding the negotiated plea agreement that required Garcia to testify for the State, the State concluded its case without calling Garcia. Defense counsel then called Garcia to testify. During direct examination Garcia disclosed that he voluntarily pled guilty to the charges contained in the indictment and that as part of his plea agreement he agreed to testify at defendant's trial in exchange for a more lenient sentence. Concerning the charges against defendant, Garcia testified that on the evening of his arrest, he was driving an automobile with defendant as a passenger. Garcia stated that he placed a box containing small envelopes of heroin under the driver's seat. In addition to the location of the box, Garcia described the configuration of the box as it appeared on the car floor along with some newspapers, implying that the heroin could not be seen. Garcia's testimony suggested that defendant was innocent.
While Garcia's direct examination was in progress, his attorney entered the courtroom on an unrelated matter. When the trial court declared a recess, Garcia's attorney informed the court that she was not aware that her client was to testify that day. She requested an opportunity to speak to him because, although Garcia had previously entered a guilty plea, he had not been convicted and sentenced, and thus his case remained open. She argued that Garcia could assert his Fifth Amendment right against self-incrimination and refuse to testify. The trial court allowed the consultation with Garcia.
When the trial reconvened, defense counsel announced that he had no further questions for the witness. In response to the State's first question on cross-examination, Garcia asserted his Fifth Amendment right against self-incrimination and the State moved for a mistrial. Defense counsel immediately objected to the request for a mistrial, contending that the defense's actions did not cause the mistrial and that other options were available to the court:
The assertion that a mistrial in this case was caused by the [d]efense, I just do not understand. Because from the very beginning, with regard to my intention to call Mr. Garcia as a witness in this case, my intention was made known to everyone in this case from the very outset . .
This case was pled out Tuesday afternoon. I left here Tuesday afternoon with the expectation that Mr. Garcia was going to be a witness for the State; that he was going to testify against my client at his trial; that he was going to implicate my client as his co-defendant. That was a requirement of the plea. As painfully as he gave that factual basis, and had to be coerced through the factual basis, that was a requirement of his plea . . . .
Now, the next day Wednesday, February 4th, we come to this Court. And we don't really know for sure if Mr. Garcia is going to testify in behalf of the State . . . . But then we're told during the course of the [p]rosecutor's opening, that Mr. Garcia is not going to be called as a witness for the State. Before I said anything to the jury about Mr. Garcia perhaps testifying in behalf of [the] defense, I asked for a side bar. I told your Honor and [the prosecutor]. I just think I heard [the prosecutor] say he is not going to call Mr. Garcia. I intended to. I said I intended to because I'm going to tell that jury that Mr. Garcia pled guilty. We all agreed that I could tell the jury that he pled guilty, as long as I was making the representation that I intended to call him
Mr. Garcia is now called as a defense witness. . . .
I asked him a couple of questions about his plea. I ask him one question, totally consistent with what he said in his plea hearing that the box was found underneath the driver's seat. That is exactly what he said. That's exactly what he said in his plea hearing. And I asked him how is the box bound. Now defense counsel is causing a mistrial in this trial, in this case[?] Really, [the prosecutor] could guarantee no mistrial in this case right now. Because I just said I'm not going to ask this gentleman another question on direct. [The prosecutor] can cross examine this man to his heart's content [.] . . .
So I have a serious problem with a mistrial
. . . . I guess your Honor has to entertain a mistrial. But to say defense caused a mistrial in this case; I don't get it. I think that this case should be allowed to go to the jury. I think you should tell this jury to disregard that. Or better yet, . . . let [the prosecutor] cross examine Mr. Garcia to his heart's content.
The trial court granted the mistrial, stating that:
It is clear to me that the problem here is that at a point in direct examination of a co-defendant who had previously entered a plea of guilty, who hadn't been sentenced. So clearly, the Fifth Amendment privilege still attaches. He decides after consulting with counsel that he wishes to . . . [take] the Fifth Amendment. Defense counsel indicates that direct was concluded. [The] [p]rosecutor clearly has a right to cross- examination . . . . For whatever reason, the decision to take the Fifth is not made until after direct examination . . . . Clearly[,] the witness . . . after consulting with counsel[,] has a right to take the Fifth Amendment. Clearly[,] that results in creating a very unfair playing field. Can I tell the jury to disregard direct examination? I can tell them that . . . [but,] I don't think I can erase it from their minds . . . . I don't believe that the prejudice resulting from the error is of the nature which can be effectively cured by [a] cautionary instruction or any other curative step. I think I have no recourse other than to declare a mistrial . . . . That is without prejudice.
A second trial was held before another judge. At no time prior to or during trial did defense counsel move for dismissal of the indictment on double jeopardy grounds. Defendant was convicted of third degree possession of a controlled dangerous substance (Count Two) and acquitted on all other counts. He was sentenced on Count Two to a five-year term, with a two-year period of parole ineligibility. The trial court imposed the appropriate fines and penalties.
Defendant appealed and the Appellate Division affirmed the conviction and sentence. State v. Allah, 334 N.J. Super. 516 (2000). The panel determined that Garcia was not entitled to have relied on the privilege against self-incrimination after he testified on direct examination. Id. at 523. Therefore, the trial court had available other alternatives to a mistrial, such as requiring Garcia to respond to questioning on cross-examination. Id. at 523-24. Thus, there was no manifest necessity for the grant of a mistrial during defendant's first trial. Ibid. Nonetheless, the panel held that defendant waived his right to claim a double jeopardy defense because he failed to raise the defense prior to his second trial. Id. at 528. The panel also rejected defendant's contention that he was entitled to relief from the waiver of his double jeopardy claim because his attorney's failure to raise the defense prior to the retrial constituted ineffective assistance of counsel. Ibid. The panel did not agree with defendant's argument that he had demonstrated "good cause" for relief from the waiver of the defense under Rule 3:10-2(c). Ibid. Furthermore, it declined to review the double jeopardy claim as a matter of plain error. Ibid.
Finally, the panel held that defense counsel's failure to move to dismiss the indictment on double jeopardy grounds did not violate defendant's constitutional right to effective assistance of counsel. Id. at 529. The panel did determine that the deficiency prong of the test for ineffective assistance enunciated in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (1984), was satisfied because a reasonably competent attorney would have filed the motion to bar the second trial. Allah, supra, 334 N.J. Super. at 528. But the panel concluded that the prejudice prong of Strickland was not met. Id. at 528-29. The court stated:
There is no sense in which it can be said that his attorney's failure to file a timely motion to dismiss the indictment rendered the actual trial unfair. The conviction was not caused by ineffective representation during the trial; nor was the trial marred by the admission of constitutionally tainted evidence as a result of pretrial ineffectiveness. Recognition of the right to claim double jeopardy at this point would serve little purpose, other than permitting defendant to avoid a conviction fully supported by the evidence, since the defendant has already undergone the stress and expense of the second trial. [Ibid.]
We granted certification, 167 N.J. 633 (2001), to review defendant's claim that he did not waive his right to claim relief from double jeopardy, that ineffective assistance of counsel constitutes good cause for relief from the waiver provision of Rule 3:10-2, and that his conviction resulting from the second trial should be reversed because he was denied effective assistance of counsel.