On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-10-0417.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2010
Before Judges Gilroy and Ashrafi.
On October 17, 2007, a Warren County Grand Jury charged defendant Terry Sullivan with third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count one); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count four). The charges were tried to a jury on July 8 and 9, 2008; on the second day of trial, the court granted defendant's motion for a mistrial. Following the mistrial, defendant filed a motion seeking to bar the State from retrying him on the same charges based on the principle of double jeopardy, contending that prosecutorial misconduct had goaded defense counsel into moving for a mistrial. The court denied the motion on August 6, 2008.
On August 27, 2008, defendant entered into a plea agreement with the State, pleading guilty to count one in exchange for the State recommending dismissal of the remaining three counts, and that defendant be sentenced to two years of probation with time served. On November 14, 2008, the court sentenced defendant on count one in accordance with the terms of the plea agreement and dismissed the remaining three counts. The court also imposed all appropriate fines and penalties.
On appeal, defendant argues "[t]he trial court abused its discretion when it denied defense counsel's motion to bar retrial based on double jeopardy following a mistrial as the assistantprosecutor purposely provoked defense counsel's request for said mistrial." We affirm.
The charges against defendant stem from defendant having stabbed Kevin Burke*fn1 in the abdomen during an altercation between them. On the day of the assault, Burke, together with his two acquaintances, Keno Prunto and Brandon Saunders, knocked on the front door of a home in Phillipsburg where defendant resided with his then-girlfriend Melissa Gill. At the men's requests, Gill left her home and walked outside with the men toward Burke's automobile, where Gill engaged in a conversation with Prunto. After about fifteen minutes, defendant exited the home, walked toward Gill, and angrily yelled at Gill demanding that she return home. Gill told defendant that she was not going to immediately return, and defendant punched her on the left side of her face. Burke and Prunto told defendant to stop yelling at Gill. A physical altercation ensued between defendant and Burke, during which Burke struck defendant and defendant "pulled a knife out of his pocket and stabbed [Burke]."
The State called Gill as its second witness. On direct examination, Gill testified that, although she knew Prunto for a couple of months prior to the incident, she was never romantically involved with him.
On cross-examination, when confronted with passages from her diary that referred to Prunto as her "honey," Gill admitted that she was more than a passing acquaintance of Prunto and that she had a sexual relationship with Prunto in the past year. Gill also testified on cross-examination that she had written in her diary that she "will make [defendant's] life a living hell, I [f_ _ king] hate him forever."
On re-direct, the prosecutor asked Gill whether her animus was caused by defendant beating her for seven years, and whether she had obtained a final restraining order against defendant. Defense counsel objected and moved for a mistrial. The court granted the motion, and the prosecutor indicated that the State intended to retry defendant. Defense counsel objected, arguing double jeopardy, asserting that the prosecutor had goaded him into moving for a mistrial knowing that the credibility of one of the State's primary witnesses had been placed into question. The court overruled defense counsel's objection to a retrial.
On August 6, 2008, the court again denied defendant's motion seeking to bar a retrial based on double jeopardy. The court found that the prosecutor had not deliberately asked the objectionable questions with the intent of goading defense counsel into moving for a mistrial, but rather had only acted in the heat of trial seeking to rehabilitate the witness by asking questions concerning a statement in her diary that she hated Sullivan. On August 27, 2008, defendant pled guilty to third-degree aggravated assault; and on November 14, 2008, the court sentenced defendant to two years of probation with time served.
On appeal, defendant's sole argument is that the trial court abused its discretion when it denied defendant's motion to bar the State from retrying him based on double jeopardy, contending that the prosecutor had purposely provoked defense counsel into requesting a mistrial. We reject this argument and affirm for several reasons.
Procedurally, defendant did not preserve his right to appeal the denial of his motion to prohibit the State from retrying him on the same charges that were before the court on his first trial. R. 3:9-3(f); see also State v. Knight, 183 N.J. 449, 470 (2005); State v. Crawley, ...