On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-00030.
The opinion of the court was delivered by: Fasciale, J.S.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued May 25, 2010
Before Judges Cuff, Payne and Fasciale.
Defendant, Tamesha Campbell, appeals from an interlocutory order denying her motion for a jury trial after a mistrial. We granted leave to appeal to address whether the mistrial nullifies defendant's prior waiver of her constitutional right to a trial by jury. We reverse and remand.
This case arose from an elaborate conspiracy to commit health care claims fraud and tax fraud. The State alleged that numerous defendants participated in staging, or creating on paper, fictitious automobile accidents. Two lawyers were initially charged with paying several individuals to solicit clients. The State alleged that false reports of the accidents were made to law enforcement and insurance companies, and that certain individuals fraudulently received medical treatment for non-existent injuries.
On November 15, 2005, a superseding indictment was handed down against thirty individuals. Defendant was charged with second-degree conspiracy to commit racketeering, second-degree racketeering, five counts of second-degree health care fraud, four counts of third-degree tax fraud, and second-degree theft by deception.
Defendant was scheduled to be tried, along with five co-defendants, in June 2008. Jury selection, initially scheduled for June 3, 2008, was adjourned to June 13 and continued on June 20 and 24. As the result of its slow pace and to avoid further delay, in early September, all six defendants waived their right to a jury trial. On September 3, 2008, defendant signed a written waiver that stated: "Tamesha Campbell . . . who has been indicted . . . for racketeering - ins[urance] fraud -consp[iracy] . . . being advised of the nature of the charge[s] against [her] and of [her] right to indictment and trial by jury, hereby waives [trial] by jury and requests that [she] be tried before this court."
The court accepted the waivers and proceeded to conduct a bench trial on October 8, 2008. The parties' determination to waive a jury did not measurably speed up the pace of the trial. On November 12 and 13 and December 4, 2008, the judge stopped the bench trial and participated actively in plea negotiations with the State and co-defendants. Following the breakdown of those negotiations, one co-defendant, joined by the remainder, moved to reassert his right to a jury trial, arguing that the trial judge could no longer remain impartial as the result of the knowledge obtained while plea negotiations were underway. The judge denied the motion, and the bench trial resumed sporadically in February and March 2009. However, on March 31, 2009, the trial judge declared a mistrial as to defendant only after learning that her attorney had suffered life-threatening double brain aneurysms. Although trial of the remaining co-defendants continued, all pled guilty prior to the trial's conclusion.
New counsel was appointed to represent defendant in June 2009. Thereafter, defendant rejected all plea offers and moved to reassert her Sixth Amendment right to a jury trial. Defendant argued that the mistrial nullified the previous bench trial proceedings and restored her right to trial by jury. Alternatively, defendant argued that her prior waiver did not extend to the present trial because she did not anticipate that a second trial, conducted under changed circumstances, would take place, and thus she did not knowingly or voluntarily relinquish her rights in that connection. By the time of the second trial, co-defendants had pled guilty, the case was no longer as factually and legally complex, there were no scheduling conflicts, and defendant had new counsel. On November 4, 2009, the trial judge denied defendant's motion. Leave to appeal was granted on December 21, 2009.
On appeal, defendant raises the following points:
THE MISTRIAL DECLARED IN THE PREVIOUS BENCH TRIAL NULLIFIED DEFENDANT'S PRIOR WAIVER OF A TRIAL BY JURY THEREBY ALLOWING HER TO REASSERT HER RIGHT ...