July 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
TERRANCE L. MARTIN, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-04-0378.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2011 -- Before Judges Grall and LeWinn.
The State appeals from an order dismissing an indictment with prejudice after the judge granted defendant's request for a mistrial. The State contends reversal is required because the judge applied the wrong legal standard. We agree.
The dismissed indictment includes two charges - possession of a controlled dangerous substance, cocaine, and possession of that cocaine with intent to distribute. N.J.S.A. 2C:35-5a(1), b(3); N.J.S.A. 2C:35-10a(1). The drugs were found in a car defendant Terrance L. Martin was driving on November 2, 2008. A state trooper, Steven Swift, stopped that car after seeing defendant speed and not come to a full stop at a stop sign. Defendant did not have a driver's license but gave Swift a registration. He told Swift that an Alfonso Chandler owned the car, but the registration he produced bore a different name. By checking the motor vehicle database, Swift learned that the vehicle was unregistered.
Swift told defendant and his passenger that the car would be towed, and after they left, Swift had the car's exterior examined by a dog that signaled drugs were present. Subsequently, a judge issued a warrant that authorized a search of the car, and the cocaine was discovered in its trunk.
We recount the pre-trial and trial motions in some detail because the judge considered them in dismissing the indictment. The grand jurors indicted defendant in April 2009, but the trial did not commence until August 2010. There were several reasons for delay, including the court's and attorneys' schedules, discovery issues and pre-trial motions. After receiving the registration, which the State Police failed to produce when the prosecutor first asked, defense counsel moved to dismiss the indictment. On July 23, 2010, the judge denied the motion to dismiss, finding no violation of defendant's rights to discovery or a speedy trial warranting that relief.
When trial commenced on August 12, 2010, the prosecutor opened by telling the jurors that he would try to convince them beyond a reasonable doubt that defendant is a "drug dealer" and intended to distribute the cocaine found in the trunk of his car. The prosecutor concluded his opening with a prediction - "when you're done listening to the State's case, . . . you will, as do I, hold a firm belief that the defendant is guilty beyond a reasonable doubt of possession of CDS, and possessed that CDS with intent to distribute the same."
At sidebar, defense counsel objected to the prosecutor's use of the moniker "drug dealer" and his expression of personal belief in defendant's guilt. She requested a mistrial. The prosecutor explained that he was required to prove that defendant intended to distribute the cocaine, which means being a drug dealer, but he acknowledged that his "slip of the tongue" reference to his belief in defendant's guilt was improper andwarranted a curative instruction. The judge denied a mistrial and delivered a curative instruction.
In her opening, defense counsel outlined the theory of her client's case. She explained that defendant did not know the drugs were in the trunk of the car because he did not own it on November 2, 2008.
Before the first witness testified, defense counsel moved for a ruling barring any reference to her client's other contacts with the police. The judge directed the assistant prosecutor to tell his witnesses, in responding to his questions, not to refer to any other contact they had with defendant. He further instructed the prosecutor to direct the officers not to mention such contacts when responding to defense counsel's questions before the judge had an opportunity to address the issue at sidebar.
Swift was the State's first witness. After Swift recounted the circumstances of the stop and the discovery of the cocaine, the prosecutor asked, "[D]id you have any other interaction with [defendant] until today?" Defense counsel objected, and Swift asked "Since today?" The prosecutor clarified, "No, regarding this matter." Swift responded, "Regarding this matter, no." The prosecutor said, "Okay," but before he moved on Swift interrupted and said, "Oh, actually that's incorrect."
At that point, the judge sustained defense counsel's objection and called the attorneys to sidebar. The prosecutor offered to withdraw the question and claimed that he had forgotten about the in limine ruling. Defense counsel again requested a mistrial. From what we can discern from the transcript, defense counsel suggested the assistant prosecutor ask another question to stress that Swift had subsequent contact with defendant in connection with this prosecution. The prosecutor then asked, "All right, Trooper, you've - any interaction that you've had with [defendant] since the - you seized the CDS, has solely to do with this proceeding and the court procedure; is that correct?" Swift responded, "Yes.
Since that proceeding [sic], there was interaction after that."
During cross-examination, defense counsel questioned Swift about the prior convictions of Alfonso Chandler, the person defendant identified when Swift stopped him as the owner of the car. Defense counsel asked Swift about Chandler's convictions on four separate dates. Each time, Swift indicated that he was not aware of the conviction. The fourth time, Swift elaborated. He volunteered, "If you want to ask any questions about your client, I'm aware of his criminal history though. I don't know Mr. Chandler's."
That was the last question asked. On defense counsel's objection, the judge confirmed defense counsel's intention to seek a mistrial and asked the prosecutor why there should not be a mistrial. The assistant prosecutor said he wished he had an argument to make but admitted he did not.
Stressing that he was "not suggesting" that the assistant prosecutor had any direct control over the officer, the judge noted that the officer was the prosecutor's agent. The judge found that the prejudice from Swift's non-responsive answer was incurable and granted defendant's request for a mistrial.
Prior to defendant's second trial on the indictment, defense counsel moved for dismissal with prejudice. No witnesses were called at the hearing on that motion. The judge's findings were based on the record, his observations of the pre-trial and trial proceedings and his feel of the case.
The judge found that neither the assistant prosecutor nor Swift intended to goad or provoke defense counsel to request a mistrial. He explained that the prosecutor had no control over Swift's answer to defense counsel's questions and Swift's "only purpose" in referencing defendant's criminal history was to "cast negative [as]persions upon this defendant in front of the jury." He stressed that Swift had "no other purpose" but to prejudice defendant.
Relying on the State Police's delay of discovery and Swift's testimony on cross-examination, the judge found the prosecutor's agents' behavior was prosecutorial misconduct. Focusing on principles of fundamental fairness, the judge considered the impact of the mistrial on defendant's trial rights and found irremediable prejudice precluding a fair second trial - the disadvantage to the defense as a result of defense counsel's disclosure of her trial strategy in her opening. On that ground, the judge dismissed the indictment with prejudice.
The law governing dismissal of an indictment following a mistrial granted at a defendant's request is grounded in principles of double jeopardy embodied in the Fifth Amendment of the Federal Constitution and paragraph 11, article I, of the New Jersey Constitution. State v. Torres, 328 N.J. Super. 77, 85-89, 90-92 (App. Div. 2000). Our courts consistently follow the "principles of the federal Double Jeopardy Clause" in construing the parallel, but narrower, provision of State Constitution. State v. Roth, 95 N.J. 334, 344 (1984).
The Double Jeopardy Clause, among other protections, "affords a criminal defendant a valued right to have his trial completed by a particular tribunal." Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S. Ct. 2083, 2087, 72 L. Ed. 2d 416, 422 (1982) (internal quotations omitted). It does not, however,guarantee vindication of that right in one trial. Id. at 672, 102 S. Ct. at 2087, 72 L. Ed. 2d at 422. Thus, "[w]here prosecutorial error even of a degree sufficient to warrant a mistrial has occurred," the right is honored if "the defendant retain[s] primary control over the course to be followed in the event of such error." Id. at 676, 102 S. Ct. at 2090, 72 L. Ed. 2d at 425 (internal quotations omitted).
A defendant faced with such prosecutorial error has two options. One is to proceed to verdict, appeal and then, if successful, face retrial. See id. at 676-77, 102 S. Ct. at 2089-90, 72 L. Ed. 2d at 425-26. The other is to request a mistrial and thereby retain "some of the advantages secured to [a defendant] by the Double Jeopardy Clause - the freedom from extended anxiety, and the necessity to confront the government's case only once - [that] would be to a large extent lost in the process of trial to verdict, reversal on appeal, and subsequent retrial." Id. at 676-77, 102 S. Ct. at 2090, 72 L. Ed. 2d at 425-26.
Thus, when a defendant opts to request and succeeds in obtaining a mistrial, retrial is not barred unless "the governmental conduct in question [was] intended to 'goad' the defendant into moving for a mistrial." Id. at 676, 102 S. Ct. at 2089, 72 L. Ed. 2d at 425. In short, only goading is sufficient to deprive defendant of primary control over the course to be followed in the event of prosecutorial error. Ibid.
Our courts apply the Oregon v. Kennedy standard under the Federal and State Constitutions. Torres, supra, 328 N.J. Super. at 92 (applying Oregon v. Kennedy and discussing standards more favorable to defendants adopted in other states but not by our courts); see also State v. Gallegan, 117 N.J. 345, 358 (1989) (quoting Oregon v. Kennedy and relying on its rationale in resolving a case not involving a defense request for mistrial); State v. Cooper, 307 N.J. Super. 196, 202-03 (App. Div. 1997); State v. DeMarco, 211 N.J. Super. 421, 424 (App. Div. 1986); State v. Andrial, 203 N.J. Super. 1, 8-9 (App. Div.), certif. denied, 102 N.J. 370 (1985).
Under Oregon v. Kennedy's test, direct evidence of the government's intent to "goad" is not required. It may be inferred from the "objective facts and circumstances" of the case. Kennedy, supra, 456 U.S. at 675, 102 S. Ct. at 2089, 72 L. Ed. 2d at 424. In Torres, we identified objective factors to be considered in "determining whether or not a prosecutor's misconduct was intended to provoke a mistrial." 328 N.J. Super. at 88. In our view, those factors, which are drawn from the facts Justice Powell addressed in his concurring opinion in Oregon v. Kennedy and deemed relevant in that case, are illustrative and not exhaustive. See ibid. (citing Kennedy, supra, 456 U.S. at 680, 102 S. Ct. at 2092, 72 L. Ed. 2d at 427 (Powell, J., concurring)). Not all of them are necessarily implicated or probative in every case.*fn1 The necessary inquiry is whether the objective facts and circumstances of the case tend to support or negate an inference that the State provoked a defense request for mistrial.
In this case, the trial judge found that neither the prosecutor nor the trooper intended to provoke a mistrial.*fn2
Because that finding could reasonably be reached on this record, we accept it. Andrial, supra, 203 N.J. Super. at 8-9.
Once the judge found no intent to provoke a mistrial request, he was required to deny the motion to dismiss theindictment. "Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, . . . does not bar retrial absent" intent to deprive the defendant of his right to decide whether the charges will be adjudicated in one proceeding. Kennedy, supra, 456 U.S. at 675-76, 102 S. Ct. at 2090, 72 L. Ed. 2d at 424.
The trial court's reliance on this State's doctrines of fundamental justice and fairness was improper. This court has held that those doctrines have no relevance to dismissal of an indictment following a mistrial at defendant's request. Torres, supra, 328 N.J. Super. at 93-94; cf. State v. Abbati, 99 N.J. 418, 423, 427-36 (1985) (holding that considerations of fundamental justice and fairness may warrant dismissal with prejudice after multiple mistrials resulting from the jury's inability to reach a verdict and establishing standards). Furthermore, the prejudice perceived by the judge in this case - disclosure of trial strategy - cannot be legally adequate to preclude a second trial. That prejudice is present whenever a conviction is reversed because of error made after opening statements. The notion that a second trial is fundamentally unfair in that circumstance is at odds with the well-established and permissible practice of retrial following reversal for trialerror unrelated to the adequacy of the prosecution's evidence. See United States v. DiFrancesco, 449 U.S. 117, 130-31, 101 S. Ct. 426, 433-34, 66 L. Ed. 2d 328, 341 (1980); see State v. Hawk, 327 N.J. Super. 276, 285 (App. Div. 2000) (remanding for a new trial after reversal based on prosecutorial misconduct).
While the trial judge disavowed any intention to punish prosecutorial misconduct, punishing the State is the only ground on which dismissal of this indictment could be defended. That option, however, is foreclosed by Torres. 328 N.J. Super. at 93-94; see also Kennedy, supra, 456 U.S. at 672, 102 S. Ct. at 2088, 72 L. Ed. 2d at 422 (discussing the public interest in protection against criminal acts and fair trials ending in just judgments).
Defendant urges us to distinguish Torres on the ground that prosecutors are lawyers subject to discipline by the Supreme Court but law enforcement officers are not. In Torres, we mentioned attorney discipline as one means of addressing prosecutors who lose sight of their obligation to do justice, but we "commend[ed]" problematic behavior to the attention of the Attorney General in his capacity as chief law enforcement officer. 328 N.J. Super. at 95-96; see N.J.S.A. 52:17B-98. We have no reason to assume or believe that the Attorney General fails to take appropriate action to address trial conduct of prosecutors and police officers that deprives a defendant of a fair trial, whether by action against an individual or through training and directives precluding such conduct.
For the foregoing reasons, we reverse the order dismissing the indictment.