September 4, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
CHARLES J. CROOK, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-06-0137.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 18, 2012
Before Judges Lihotz, Waugh and St. John.
The State appeals from the May 9, 2011 order of the Law Division dismissing the indictment against defendant Charles J. Crook, with prejudice. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we reverse.
Middlesex County Indictment No. 08-06-1037 charged defendant with third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a). Defendant successfully moved for a change of venue to Union County because the victim was a Middlesex County Sheriff's Officer, and employees of the Middlesex Vicinage court system, including a sitting Criminal Part judge, were witnesses to the incident.
Defendant was prosecuted before a jury by a Union County Assistant Prosecutor (AP), who had not been cross-designated as a Special Deputy Attorney General (Special DAG). The jury failed to reach a verdict, and a mistrial was declared on December 17, 2010.
On May 9, 2011, before defendant's scheduled retrial, a different judge considered the AP's non-designation as a Special DAG, and any effect it may have on the first and subsequent trials.*fn1 The judge reasoned that because the AP was not designated as a Special DAG during the first trial, "The State was not ready, [and] did not have an authorized representative to represent itself at that proceeding." The judge also determined that "a county prosecutor only has jurisdiction to prosecute those cases in its own county." Further, the judge stated, "[the AP] brought this case to trial without jurisdiction and I believe that jeopardy attached when that jury was selected." As a result, the judge ultimately determined that without the proper designation as a Special DAG, "there was in effect prosecutorial misconduct . . . [and] this case was tried without jurisdiction."
The judge dismissed the indictment with prejudice, and the order memorializing his decision stated: "[T]he Prosecutor of Union County having no jurisdiction to represent the State in said matter interfered with the Defendant's right to a trial by jury . . . ."
The State raises the following argument for our consideration on appeal:
THERE WAS NO BASIS TO DISMISS THE INDICTMENT WITH PREJUDICE; THE FAILURE TO PROPERLY DEPUTIZE THE ASSISTANT PROSECUTOR WAS THE EQUIVALENT OF A TECHNIAL ERROR.
Because the issue before this court challenges the authority of the AP, we extended to the Attorney General the opportunity to file an amicus curiae brief. On appeal, the Attorney General argues:
THE TECHNICAL FAILURE TO DESIGNATE THE UNION COUNTY ASSISTANT PROSECUTOR AS A SPECIAL DEPUTY ATTORNEY GENERAL DID NOT CREATE A JURISDICTIONAL ISSUE WHICH PRECLUDED DEFENDANT'S RETRIAL, NOR DID IT WARRANT THE DISMISSAL OF THE MIDDLESEX INDICTMENT WITH PREJUDICE.
At the outset, we acknowledge that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides, in relevant part: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. The clause is also made applicable to the states through the due process clause of the Fourteenth Amendment. U.S. Const. amend XIV, § 1; Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264, 65 L. Ed. 2d 228, 235 (1980). Our State Constitution contains a parallel provision, which provides: "No person shall, after acquittal, be tried for the same offense." N.J. Const. art. 1, ¶ 11. See also State v. De Luca, 108 N.J. 98, 102, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987). Although the language of the New Jersey Constitution references "acquittal," our Supreme Court has "consistently interpreted the state constitutional double jeopardy protection as coextensive with the guarantee of the federal Constitution." Id. at 102 (citing State v. Dively, 92 N.J. 573, 578 (1983); State v. Barnes, 84 N.J. 362, 370 (1980); State v. Rechtschaffer, 70 N.J. 395, 404 (1976); State v. Wolf, 46 N.J. 301, 303 (1966)).
The defense of double jeopardy must be raised by way of motion before trial; failure to present the defense in this manner constitutes a "waiver," but relief from the waiver may be granted upon "good cause shown." R. 3:10-2(c). Our Supreme Court has noted:
Requiring defense counsel to file a timely motion to preclude a second trial on double jeopardy grounds promotes judicial economy and efficiency by preventing the waste of time and resources of judges, counsel, and juries. Asserting the double jeopardy defense before trial promotes order in the judicial process . . . and saves both the State and the defendant the expense of a trial. [State v. Allah, 170 N.J. 269, 282 (2002) (citations omitted).]
As noted above, the record does not contain a motion by defense counsel to dismiss the indictment on double jeopardy grounds. In any event, while defendant is constitutionally protected by both the United States and New Jersey Constitutions, as well as by statute, from being tried twice for the same offense, id. at 279, double jeopardy does not apply where the first trial ended in a hung jury, State v. Cruz, 171 N.J. 419, 426 (2002); State v. D'Amato, 218 N.J. Super. 595, 602 (App. Div. 1987), certif. denied, 110 N.J. 170 (1988); N.J.S.A. 2C:1-9d(2). Here, there is no dispute the jury in the first trial could not reach a verdict on the count the State sought to prosecute at a second trial. Therefore, the double jeopardy principle is inapplicable.
The same result would ensue if the trial had ended in a mistrial sought by defendant. See N.J.S.A. 2C:1-9(d)(1); United States v. Dinitz, 424 U.S. 600, 607 96 S. Ct. 1075, 1080-81, 47 L. Ed. 2d 267, 274 (1976). However, there is a "narrow exception" to the rule that a mistrial sought by the defendant cannot violate the double jeopardy clause. Oregon v. Kennedy, 456 U.S. 667, 673, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982). See also State v. Gallegan, 117 N.J. 345, 357 (1989). The State may not bring a second prosecution where, in the first trial, "the prosecutor's actions giving rise to the motion for mistrial were done 'in order to goad the [defendant] into requesting a mistrial.'" Kennedy, supra, 456 U.S. at 673, 102 S. Ct. at 2088, 72 L. Ed. 2d at 423 (quoting Dinitz, supra, 424 U.S. at 611, 96 S. Ct. at 1081, 47 L. Ed. 2d at 276). The test here is one of prosecutorial intent, and "[o]nly where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy[.]" Id. at 676, 102 S. Ct. at 2090, 72 L. Ed. 2d at 425.
In United States v. Williams, 472 F.3d 81, 85-86 (3d Cir. 2007), the Third Circuit noted that post-Kennedy case law "has consistently emphasized that application of the double jeopardy bar is dependent on a showing of the prosecutor's subjective intent to cause a mistrial in order to retry the case." In that case, the Government argued that the prosecutor had mistakenly, and not intentionally, triggered a mistrial with his questioning. Id. at 86. The court concluded that evidence in the record did not show that the prosecutor intended to provoke the defendant into seeking a mistrial. Id. at 87. In so doing, the court adopted the Tenth Circuit's conclusion that a prosecutor's knowledge of the "natural and probable" causes of his actions did not supply the intent required for the double jeopardy exception to apply. Id. at 88. See also United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992) ("Carelessness or mistake on the part of the prosecution, as opposed to a calculated move aimed at forcing the defendant to request a mistrial, is not sufficient to bar retrial under the Double Jeopardy Clause."), cert. denied, 508 U.S. 917, 113 S. Ct. 2361, 124 L. Ed. 2d 268 (1993). Accordingly, even if defendant's prosecution by an AP who was not designated as a Special DAG was determined to be prosecutorial misconduct, the mistake on the part of the prosecution is not sufficient to bar retrial under the Double Jeopardy Clause.
The Attorney General contends that "[t]he delineation of authority in criminal matters is one of venue not jurisdiction, because county prosecutors, like the Attorney General, share the responsibility to prosecute criminal offenses on behalf of the State, not an individual county." N.J.S.A. 2A:158-4 provides "The criminal business of the State shall be prosecuted by the Attorney General and the county prosecutors." In the context of the facts in this case, the AP was acting as an agent of the State and not the county. See Wright v. State, 169 N.J. 422, 439 (2001) (reiterating that a county cannot be held liable for the tortious conduct of a county prosecutor arising from the investigation of criminal activity when the prosecutor is considered an agent of the State); Cashen v. Spann, 66 N.J. 541, 552, cert. denied, 423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975) (same).
Finally, we also note that venue is not a matter of jurisdiction, nor is it of constitutional dimension. See State v. DiPaolo, 34 N.J. 279, 287-88, cert. denied, 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961). As such, it must not bow to circumstances which no longer exist. In DiPaolo, the Court said:
Although a rule developed at early common law that a prosecution be instituted in the county in which the crime was committed, the reasons seem unrelated to the stated aim of the guarantee. Rather the rule reflected a practice made necessary by circumstances which no longer exist. Communities were scattered and travel difficult. Petit jurors decided causes upon their personal knowledge rather than upon the testimony of witnesses and probably grand jurors as well relied upon what they knew or learned from their neighbors. That the concept of venue was not thought to be an essential attribute of the procedural guarantee is evidenced by the fact that when changing circumstances made the then concept of venue a fortuitous haven for the guilty, Parliament enacted numerous exceptions to the common law rule and did so long before the separation of the American colonies. [Id. at 285-86.]
The Superior Court has original general jurisdiction throughout the State in all causes, N.J. Const. art. VI, § III, ¶ 2; State v. Barr, 110 N.J. Super. 365, 369 (App. Div. 1970), rev'd on other grounds, State v. Clark, 58 N.J. 72 (1971), and but for the exceptions listed in Rule 3:14-1, venue in every case could be laid in any county.
We disagree with the judge that the first trial "was tried without jurisdiction," and conclude that the Double Jeopardy Clause does not bar defendant's retrial.
Reversed and remanded.