*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW RECHTSCHAFFER, RICHARD L. DEFENDANT-APPEL- LANT. Argued December June 1976. 1975 Decided *4 Mr. S. Weinstein Stephen the cause for argued appellant. Mr. Richard J. Engelhardt, General, Deputy Attorney argued Hyland, the cause William respondent F. (Mr. Attorney General of New Jersey, attorney). opinion Court was delivered by J. The defendant Richard L. Rechtschaffer
Schreiber, was indicted on counts, two possession of (1) more than 25 grams of marihuana in violation of N. J. A.S. 24:21-20 a(3) and (2) possession of marihuana with intent to distribute N. J. A. contrary to 24:21-19 a(l). trial, During the court declared a mistrial count, of the second and the pro continued. ceedings The jury found the defendant guilty of possession. After the defendant’s motion for dismissal of the second count on the ground double denied, he was guilty found possession with an intent distribute at second trial.
The defendant appealed from the denial of his motion for dismissal and the judgment of conviction on the second count. The Appellate Division affirmed the but judgment vacated the earlier possession conviction, that it had holding into merged the conviction with distributive *5 intent. We the defendant’s for certification. petition J.N. 144 (1975).
The facts were sub- adduced the State at both trials be sum- stantially same, may and the facts pertinent marized defendant, as Pairleigh follows: The student at Dickinson campus. in a on the University, dormitory lived He and fivе fellow which contained students suite occupied narcotics room, bathroom and Two living three bedrooms. office, investigators County the Morris prosecutor’s John and had been Dempsey operating Thomas Jennings, as undercover On November agents at the University. at- they visited defendant in his suite. Dempsey defendant, marihuana from the tempted purchase some who the marihuana which he on hand explained that had However, was unusable and because it wet green. marihuana offered to obtain and sell an ounce Dempsey $20. and the left the Dempsey apart- agreed ment presumably marihuana. acquire absence, Plorham Park officers
During police and armed with a search war- County Morris investigators rant all entered the and apartment placed occupants, there- Shortly the undercover under arrest. including agents, after and he the defendant returned to the too apartment under arrest. He placed gave police grams had marihuana which he on his disclosed person located in which was grams packaged bags parka hang- in his clothes and contained in a closet tin his bed- ing defendant, roommates, room. The three Dempsey were then incarcerated the Plorham Park Police Jennings jail. Department trial, initial of defendant’s part
At the cross-examination what after transpirad was directed to the arrest. Dempsey * * * n you Did talk to Q. Let’s take November 1972. the de- day? fendant on that Yes, I sir. did. A. you today? than the Q. Other conversations told us about here A. After he was arrested— After he was Q. arrested? *6 Yes, A. I talked him. to you? upset he Did seem to Q. Yes, A. sir. Very upset, Q. isn’t that fact? upset. you He, A. I don’t how know know— things you you, turn, things said Q. He certain to and in said him, to isn’t that correct? Yes, A. we had conversation. right. fact, you say antagonistic All In Q. would he was kind you? to time, A. At that no. Later, subsequent some Q. time? A. On 6th? Any MR. WEINSTEIN: time thereafter. Honor, MR. Your I PARMIGIANI: would him ask to be more specific. very It’s difficult to answer. course, you THE COURT: Of You were at the 6th. If are changing date, him. tell question MR. WEINSTEIN: This is as to the 6th. antagonistic THE He WITNESS: wasn’t toward me. On redirect examination the following question was asked and answer with given respect the conversation between and the Dempsey defendant after the on arrest November 1972: any DidQ. Mr. Rechtsehaffer ever make as comment he what person would do if he found out the who informed on him? Yes, A. sir. did. He He advised that if he found out who the hunting individual was that informed him on he would his take
knife and kill him. The defendant moved for a mistrial on both counts because of this statement.” “highly prejudicial The trial court statement agreed prejudicial but rationalized that defense had since counsel admitted defendant’s possession of more than 25 of marihuana in his grams state- opening ment, the defendant would not be prejudiced by continuing on count (possession). first Therefore the court mistrial, over declared both the objections defendant prosecutor, only respect and the to the second count with intent charged distribute. would constitute out “that The pointed prosecutor The Count.” to the trial of Second as jeopardy double * * * I think it will. Of course. “Of course court replied: here is-not for me to hut may jeopardy double confronted with double may The he decide.
subsequently can proceed [*] * * when you I will move grant this; it as to- the Second if you move it but Count, you on Eirst Count.” can only you proceed trial, de- with the When asked if wanted proceed then di- in the The court counsel replied negative. fense trial proceeded. him to ahead” “go rected evidence,1 no the stand and produced did not take was made summation prosecutor distinction Ho- charge grams court its between the or the trial and tin can and the grams marihuana the parka *7 the The found defendant person. jury the defendant’s marihuana, of more than 25 possession grams guilty on have found his person. included the may grams which for dismissal of count moved the second The defendant trial in a The court jeopardy. on the of double ground that prose- denied the motion. It found the letter opinion ex- faith that acted and stated good cutor had “[t]he of the mistrial motivation behind the declaration clusive interests, and for protecting was the concern apply.” the doctrine of double does not jeopardy therefore to The was thereafter on the intent dis- defendant tried pro- count. As indicated previously prosecution tribute the the the evidence it substantially duced same as had However, his own first trial. now the defendant testified in He in his possession behalf. admitted of the marihuana again moved on case State’s the 1At the close the apparent grounds case. a mistrial of the entire His same for the having trial court’s a mis with the at that time concurrence expressed simply that the count satisfaction on the second press direction, moving proper to but continued in the he was court position complained and entire case about of the for mistrial placed had him. which trial court’s action and on that none parka person, his but claimed marihuana that was for his entirely was sale and when sought use. He personal suspicious Dempsey became to and, to some marihuana time purchase wanting some he as a that situation, think about ruse suggested had to He took goods. to leave the obtain the apartment walk short his return encountered the upon police. The at all the SO grams defendant claimed that times marihuana which he surrendered to the had been police on use. flatly his for his own He denied person he sold or intended to marihuana. any sell
As SO found on noted above the his grams person may have found con- jury justify possession been viction and the SO constituted the marihuana grams same conviction of with intent dis- upon follows, It as tribute Di- predicated. Appellate evidence held, vision the same “was used to support both convictions.” Division held that the mistrial granted
The Appellate trial on sua the court did not the later sponte by preclude It with the trial court agreed double grounds. faith, answer acted in that Dempsey’s prosecutor good
resulted in which “far its prejudice outweighed” probative value, and that the exclusive motive of the trial court Division analo- defendant. Appellate protect an to one where there indictment is gized proceedings but cannot and the convicts on one charges two double jeopardy In that situation the other. agree it dis- Although second charge. on the retrial no bar *8 Ap- mistrial procedure, the partial approval claimed its use but merged sanctioned implicitly Division pellate the conviction for posses- into of possession conviction and vacated the conviction It to distribute. with intent sion that on the possession affirmed and on possession sentence distribute. intent to is that on appeal thrust primary The the court sua by improperly partial 404
sponte and that conviction barred possession necessarily on double trial second jeopardy grounds possession with an the same marihuana intent to distribute whose had led to his first conviction.
There are differences in the double language jeopardy I, Federal and State Constitutions. provisions Article 11 of the New par. Constitution that: Jersey provides person shall, acquittal, No after be tried for the same offense. Fifth Amendment of Federal Constitution states: * * * any person subject nor shall be for the same offence to be * * * put jeopardy limb; twice of life or the Fifth Amendment
Although
broader,
is facially
state and federal clauses
been held
have
coextensive in application.
Kleinwaks,
v.
te
68 N. J. 328
State
(1975);
Sta
Farmer,
48 N.
145,
J.
168
cert.
386
(1966),
den.
U. S.
87 S. Ct.
991,
1305,
It is basic that entitled to have normal conclusion. Subsumed in proceed its policy constitutional is protection protected Downum v. prosecutions, harassment successive States, 372 U. S. 83 S. Ct. 10 L. Ed. United 2d only receive one for an punishment (1963), a defendant Generally speaking, offense. is deemed sub a jury after jected impaneled sworn. Locklear, N. J. 232, 235, (1954). That *9 so, interdiction against being placed the constitutional being bar literally in for the offense would twice same con- trial in the absence the defendant’s any subsequent in an unconscionable result was rest put sent. Such Perez, 6 L. Ed. United States v. 22 U. S. (9 Wheat.) court had (1824), discharged jury where a verdict. The defendant after was unable to on agree jeopardy grounds. his retrial double sought prevent contention, in Mr. Justice the defendant’s Story, rejecting wrote: * * * legal opinion no constitute We are the facts prisoner ac bar to a quitted, has convicted or future trial. not been put upon may again think, and his defense. We justice nature,
in all cases of this the law has invested courts authority any discharge giving verdict, with the whenever, opinion, taking in their into con all the circumstances sideration, necessity act, there is a ends manifest for public justice They would otherwise be are to exercise defeated. subject; impossible sound discretion on the and it is to define all proper which would render it circumstances to interfere. To be sure, power ought greatest caution, to be used with the under urgent circumstances, very plain causes; and, and and for obvious capital especially, extremely cases courts should be careful how they any life, interfere with of the in favor chances of the prisoner. But, they right all, discharge; after have the to order the security public faithful, and the which the have for the sound discretion, rests, this, conscientious exercise of this as in other cases, upon responsibility judges, under their oaths of (9 Wheat.) 580; emphasis supplied]. [22 office. U. S.
“Manifest and “the necessity” ends of public jus tice” are whose definitive concepts outlines depend upon the' facts and circumstances singular of each case. State Farmer, 48 N. supra, J. at 177 Existence of these two criteria depends upon balancing two' factors: prime Public interest there is a fair seeing trial dеsigned in a to end just equitable judgment, and constitu tional protection to the defendant is entitled that shall not be harassed by subjection to two trials and two punishments essentially the same offense. Wade See *10 Hunter, v. 336 U. 684, 689, S. 69 L. 834, 974, S. Ct. 93 Ed. 978 (1949). in underlying hypothesis the Perez rule that
the trial once started should proceed to its conclusion. Un avoidable necessity obviously justifies the aborting proceed ings. of a Incapacity juror or the judge, of a inability jury a agree upon verdict fall into this State category. Romeo, v. 43 N. J. 188 cert. (1964), den. 379 U. S. 85 970, 668; S. Ct. 13 L. Ed. Roller, 2d 563 (1965), State v. 29 N. J. 339 (1959); Note, “Double Jeopardy: The Repros ecution Problem,” 77 L. Harv. Rev. 1272, 1277 (1964). Where the motion for the mistrial emanates from prose the cutor or the defendant because of impropriety committed one or the a other, mistrial may be appropriate. The ends
of public justice both for the defendant and the re state a trial, fair quire but whether second trial is permissible may on depend the character of the United impropriety. - Dinitz, v. States U. S. -, 96 Ct. 1075, S. 47 L. Ed. 267 2d (1976). It is well settled that if prosecutorial mis mistrial, behavior or causes manipulation the defendant should not be subjected to harassment of a second trial. Comment, “Twice Jeopardy,” Yale L. J. 262, 286 Locklear, v. (1965); supra, 16 N. J. at 236-237. Where, case, as in this trial court acts sua over sponte, of both objections parties, propriety the mistrial de sound pends upon the exercise of the discretion, court’s be utilized “only those situations which would otherwise DiRienzo, manifest injustice.” result State v. 53 N. J. Dinitz, 360, 383 United (1969); States supra. a trial
Unquestionably
court has a discretionary
within which it
range
may properly
operate
grant mis
trial
on
whether
its own motion or otherwise. Gori v.
States,
United
367 U. S.
Ct. 1523,
S.
6 L. Ed. 2d
Somerville,
Illinois
(1961);
U. S.
93 S. Ct.
1066,
In Downum v. United after a supra, was jury sworn, selected and moved prosecutor jury six to two witness essential key because discharged defendant’s request was unavailable. The counts on proceed and that first two counts be dismissed discharged. was four denied and remaining six all later tried and convicted The defendant was held that decision, 5-4 Court, in a The Supreme counts. no “im held because not have been the second trial should mis necessity” postponement had perious compelled Ct. 1033. Mr. Justice Clark trial. 372 U. S. at that a mistrial for the emphasized dissenters writing such neces manifested when the circumstances appropriate would have the trial and when failure discontinue sity de But he opined ends of justice. defeated the and that deprivation not rights fendant had suffered any *11 constitute merits would him without a trial on the to acquit Id. 743, at justice.” a defeat of the of “ends public S. Ct. 1033. Court reconsidered later the years Supreme
Some eight limits discretionary of outer the the trial court’s guidelines Jorn, 547, Ct. 470, U. 91 S. in United States v. S. been indicted L. Ed. 2d 543 defendant had of fraudulent fed for in the willfully assisting preparation trial, the pro tax returns. At the Government eral income as had five whom the defendant taxpayers allegedly duced judge The trial sisted in of these returns. preparation sua a the witnesses might declared mistrial so that sponte the their because of attorneys possibility consult with while tes admissions self-incriminating make they might A on the of was ground second trial tifying. precluded held Mr. affirmed. Justice jeopardy. double The Supreme 'Court in Harlan, Court, for writing plurality of the after com trial court’s initiative had been menting protect the defendant, the the witnesses and not held that the correc mistrial should not titude “motiva depend tion Id. underlying judge’s 483, trial action.” at Ct. at 556. He asserted that Perez “the doctrine stands necessity manifest to trial not judges as command to foreclose the option until a ex scrupulous ercise judicial discretion leads the conclusion that of public ends would justice not served by be a con tinuation of the Id. at proceedings.” 485, 91 S. 557. Ct. at He concluded that the trial court did not exercise sound discretion to assure that “there was a manifest necessity sua sponte declaration of this mistrial.” Id. at 558; 91 S. Ct. at (emphasis Stewart, Mr. added). Justice Downum, following logic of the in dissenters wrote on behalf dissenters, of the three that: * * * question The real “abuse” whether there has been an process by way resulting prejudice accused, in to the like, outweigh society’s harassment in interest such as to punishment [400 560]. at crime. U. S. at 91 S. Ct. He concluded the mistrial not have “could possibly injured the defendant” and that had the trial court not abused its Id. discretion. 8. Gt. at 561. Somerville,
In Illinois v. had been supra,, the defendant indicted for theft Illinois on the under law. A mistrial State’s motion and objection over the defendant’s because the defective fatally indictment could an at- not be rejected amended. The Supreme Court tack on the the defect second trial and conviction because indictment amendment could not corrected to end “ends of a fair trial public justice” designed dictated could be accom- completion just only judgment *12 a a of the plished by proceeding, declaration of mistrial However, Mr. and Justice new indictment a second trial. Court, out: Rehnquist, writing pointed for the by proceed- The determination the trial criminal court to abort a ing jeopardy lightly undertaken, has where attached not is one to be having by of the interest his since fate dеtermined impaneled weighty first itself a States v. one. United Jorn, supra. prejudice will Nor lack of demonstrable additional preclude jeopardy the defendant’s invocation of the double bar important countervailing proper absence of some of interest judicial U. S. [410 administration. at Ct. at 1073].2 The dissenting opinions of Mr. Justice White and Mr. Justice Marshall emphasized that the defendant’s to a right completed trial transcends the interest of the state. They — rationalized that the trial had an court alternative con- tinuance of the a conclusion. Since the defendant may have been and acquitted the error was the result of the State’s a negligence, proper balancing necessitated applica- of tion the double clause. Dinitz,
In United States v. the trial supra, excluded judge defendant’s trial counsel from The trial. advised court co-counsel of three choices: stay pending application (1) Court Appeals ouster, review the propriety continuation of (2) the trial counsel, or existing (3) mistrial. moved Defendant for a mistrial and the motion granted. Defendant moved to dismiss the subsequently indictment on would ground that retrial contravene the double jeopardy clause of the 'Constitution. The motion denied. by Court reversed a vote of 8-7. Appeals review, the Upon Court reinstated the District Supreme Court order. Stewart,
Mr. distin- Justice for the majority, writing between declared a court on own guished by mistrials its and There motion those request. be a sua necessity sponie. must manifest where the court acts when a judicial However defendant moves because some error, it is to run his choice either the risk prosecutional conviction, and a followed reversal second trial appeal, comparative 2For a discussion and dissonant elements Supreme Note, cases, the United States and Court see “Mistrial Jeopardy,” (1974) ; Comment, 49 N. Y. U. L. Rev. Double Jeopardy Appeals Dismissals,” “Double Government Criminal ; (1974) Note, 52 Texas L. Rev. “Illinois Somerville: Jeopardy Protection,” An Encroachment on the Double 27 Sw. L. J. *13 or abort a commence new proceedings trial. If the has defendant’s motion been mis- by prosecutorial triggered or “bad-faith” a conduct conduct then second judge, trial is Mr. because the foreclosed. Brennan dissented Justice “consensual trial removed judge’s effectually position a re- character” of the In he reasoned motion. that posture justified necessity trial was foreclosed because no manifest majority both the mistrial. is to note that important It court on its where the that dissenting opinions agree for that mistrial, necessity own motion manifest grants im- action must seems majority be shown. Further the mis- had if trial court pliedly concede that of public sua and the ends trial manifest sponte, necessity action and double justice have justified would not that have barred a second trial.3 would jeopardy principles through run Supreme The common threads of the trial about the propriety cases are centered Court its cause. Did mistrial and sponle sua court’s granting that a mis- discretion so its trial court exercise properly If have a viable alternative? Did it justified? trial was situation? created Was circumstances justified, what a second Will misconduct? or defense due to prosecutorial and with proper justice of public accord with the ends trial Justice, Assembly Jersey proposed Code Criminal New 3The prosecution a former (1975), provides is when barred Bill 3282 improperly It prosecution :1-9d. terminated. Section 2C bas been that: states following any is not im- circumstances of the under Termination proper : waives, by mo- (1) or to the termination The consents object right otherwise, his to the termination. tion or to dismiss necessary is be- (2) the termination court finds upon agree verdict after a cause of the failure has been allowed. for deliberation reasonable time required by (3) The trial court finds that termination overriding legal sufficient reason and manifest or absolute necessity. *14 defendant be prejudiced administration? Will the judicial v. See State trial, so, and if to what extent? by a second Hudson, 1976). Div. 139 N. 360 Super. (App. J. instant factors in the
An all the pertinent assessment of neces- neither manifest that ease leads conclusion only warranted the grant sity public justice nor the ends defendant prejudiced was the only mistrial. Not partial judicial with proper conflicted but the dual trial thereby, administration. nor the prosecutor that neither we observe
PreRminarily action. trial court’s in the counsel concurred the defense he both counts mistrial on had sought The defendant one count. only on a mistrial strenuously to objected granting he that direction express It was at the trial court’s only Eurther, no one questions count. proceeded on the possession the question in posing faith good prosecutor which answer defendant, the threat eliciting or mis- manipulation led No to the mistrial. prosecutorial behavior is charged. that the theory
In both trials the State proceeded him to sell the defendant agreed solicitation Dempsey’s defendant that some marihuana. Dempsey explained he some marihuana “knew where he could obtain an dollars ounce.” twenty would sell me for Dempsey, According marihuana. then procure left to minutes, when 10 returned in approximately the defendant 20 grams some and surrendered under arrest was placed that position It was the State’s his person. which were on that during trip. marihuana defendant acquired where the defendant had specific circumstances Under these marihuana when he obtained its possession, to sell the intent satisfied, Division, Appellate as was the pos we are same mari inseparable session Davis, v. it. State 68 N. J. -to distribute huana with intent Wilkinson, J. Super. v. N. State (1975); v. Fari- N. J. 562 State den. 63 Div.), certif. (1973); (App. ello, 114, 120 certif. Div.), N. J. Super. (App. Ruiz, J. Super. 350, 127 N.
68 N. J. 164 State (1975); J. 68 N. 1974), grounds aff'd on other Div. 353-354 (App. 54 (1975). indicted, been had Rechtsehaffer if
Undoubtedly, would conviction possession, and found guilty tried dis with intent for possession have barred a second in State observed As tribute the same marihuana.4 : 46 N. Wolf, J. (1966) lesser offense long where of this It has been the law principal part component or necessary ingredient
is a
transaction,
then con
greater
from the same
and emanates
offense
*15
prosecution
for
acquittal
further
bars
or
of the lesser
viction
;
(1963)
Wil
Dixon,
v.
greater
N. J. 180
40
crime. State
Labato,
;
(1957)
Mark,
liams, supra;
State v.
N. J. 162
State v.
23
(1951).
303].
N. J.
[Id.
7
137
at
element
Sincе
was an
of
possession
indispensable
case, the trial
with
to distribute in this
intent
if war
counts,
a mistrial
court should have
of both
Otherwise,
subjected
ranted
would be
at all.
the defendant
for which
same offense
second trial which embodies the
Even in
he
been tried and found
already
guilty.5
has
clear that
we have made it
bar,
absence of a constitutional
for
trials
offenses
subjected
separate
defendant is not to be
Gregory,
incident. State
out of the same criminal
arising
proposed
Jersey
:l-9a of
4Section 20
of
New
Code
Criminal
Justice, Assembly
provides
(1975),
prosecution
Bill 3282
is
finding
guilty
barred where there has been a
aof
lesser
included
offense.
Appellate
analogy
5The
Division’s
to a trial
con
where
hung
inapposite,
victs on one count and is
on the second count
is
Scott,
Forsberg
(D.
1972) ;
[United States v.
We are also satisfied that the prosecutor’s question The defendant on cross- appropriate proper. examination had undercover Dempsey, agent, opened had up of a subject Dempsey conversation 1972. The on November defendant after the arrest mat prosecutor subject on redirect examination pursued ter comments the witness to the defendant’s directing the scope that conversation. well within The redirect was ed. 1940), Evidence Wigmore, (3 defendant’s cross. See 1896 at 567. §
Eurthermore, the defendant’s response that if discovered the informer identity his he would kill him was admissible. See R. Evid. State v. 63(10); Thompson, 59 N. J. 408-409 State v. J. Kennedy, 135 N. (1971); 513, 518-525 Div. Super. (App. 1975). Declarations sub commission to the of the crime which indicate con sequent sciousness of or are inconsistent with innocence guilt, tend to establish intent are relevant and admissible. State *16 Allen, N. J. v. 53 250 the remarks (1969). may Although also be interpreted merely as at expressed dismay having incarcerated, an being unjustifiably they are consonant with inference anof admission of It was the guilt. properly jury’s function to determine inference and the the appropriate to it. Eurther of de weight to the value given probative fendant’s answer was not the substantially outweighed by risk that its admission would create of danger substantial undue Evid. R. 4. The comment the prejudice. contains Kuske, v. factors which establish State very admissibility. Cf. 414 N. Div.),
109 J. 575 certif. den. 56 N. J. 246 Super. (App. admissibility Judge upholding where Conford (1970), of wrote: by letters written the defendant they admissible, “in- were letters were fact Since the inconsequential. excerpts flammatory” de- from The the letters very inflammatory which are factors establish scribed as defendant, 588], competent [id. at documents as admissions at, a to, particular accompanied by gestures per- Threats to a defend- more son, would to be appear prejudicial from an distinguished assault as they ant constitute since In held evidential. here, been properly have expression Hill, Court v. 47 N. J. 490 sanctioned (1966) State to state wit- prevent a defendant’s threat of admissibility would killed one and already ness testifying. (“I wrote: another.”) kill The Court * * * ad- relevant was the statement The claimed that State guilt. defendant probative The of of consciousness missible as probative equally consciousness countered that the statement The inadmissible. it therefore innocence and that prejudicial highly statement nature
further claimed that made inadmissible. supports authority weight State’s contention stay him to with the intent to induce threats made to witness against away appear testify accused from a trial not any theory under conduct in evidence are admissible claim innocence is admissible accused inconsistent with his 500]. [Id. evidence. Annotation, “Evidence as threats See made generally, A. R. 62 L. 136 trial,” from criminal away keep witnesses be found in admissibility may Examples Howard, F. 942 Supp. 939, v. States 228 United following: act of the murder procuring Neb. 1964) (defendant’s (D. him); People witness against the chief murdering of or Cal. Rptr. (Ct. 2d Cal. App. Jaquette, to prosecutrix); threat (defendant’s App. 1967) (defendant P. Saiz, 2d Ariz. (1969) *17 415 Ms v. narcotics case beat cell-mate State np informer); Valenzuela, 1, Ariz. P. 950 949, 109 503 2d (1972) (threats Mason, a incarcerated against jointly co-defendant); 394 W. 344 343, 2d Ct. Sup. (Mo. 1965) (defendant’s Bloom, Ill. threat state’s 370 witness); People to “get” N. in 144, 197, E. 2d 199 (1938) attempted (“[A]ny a a con timidation of witness is attributable to properly and testimony sciousness of thereto is relevant guilt, relating State, Curtis v. 44 Ala. evidence.”); App. and admissible 170, So. 2d witness’ (1967) (threat shoot guts out). were di concededly, threats
Although unknown identity at a whose was and whose person rected these as witness was uncertain distinctions do not status diminish an They value. inferen probative represent their evidenced guilt expressed tial admission desire an informer and not justify as such do revenge against and answеr on exclusion of the of relevance question grounds We note that no was materiality. passing objection to the made question.6 mistrial was not partial justified. objection The answer not sound and have
to the should not been sus tained. At most viable alternative of precautionary to the jury Second, instruction could have been even given. answer if the witness’ had been so to war prejudicial as mistrial, rant the trial court’s should have granting to both where been as counts matter of subject each arose out of the same episode essentially was so circumstances, intertwined. Under these no or im manifest existed perious necessity triggered right trial court to mistrial sua grant sponte.
Furthermore, prejudiced by Even mistrial. partial though he was apparently willing object question preclude 6Failure to has often held been objection testimony. Kent, to the admitted Beam v. 3 N. J. Morse, (1949) ; 1904). Willett v. N. (Sup. J. L. 104 Ct. *18 trial, of subjected be the harassment he second should not have been to a exposed punishment second for the same The initial offense. defendant’s had been approach possession concede order to convince of jury his the veracity testifying that had no intention of selling the marihuana. By one permitting jury on the hand the concession accеpt possession on the count but pre- the defendant from venting that concession for utilizing his count, defense intent to distribute the defendant suffered the loss of substantial trial advantage. The partial for avowedly mistrial of purpose protecting the defendant had the opposite effect. quite
The mistrial been partial having improvidently granted been convicted of having of possession marihuana, the second trial for of that mari- possession huana with intent to distribute subjected him to double in contravention of the Federal and State Consti- tutions. of reversed; Division judgment Appellate is aside; of possession
conviction with intent to is set distribute and a of judgment directed be entered acquittal The initial of thereon. conviction and sentence judgment for which no taken possession appeal had been are directed to reinstated. P. D., J. A.
Conford, Temporarily (concur- Assigned the rather In set of circumstances ring). unique presented record, I find myself agreement with majority that final of the matter disposition should be the rein- conviction for statement possession drugs vacation of possession and the that for with intent to dis- with a tribute, direction for dismissal together of that charge with But I (or prejudice acquittal). cannot concur in the — reasoning that the supporting court partial trial was at the first “improvidently granted”, thereby acti- the double jeopardy protection of vating the defendant another against prosecution for with intent to dis- of the trial was well tbe action judge consider that I tribute. under the attendant cir- discretion of his within the range on one or the two the defendant Absolution of cumstances. theory but on the basis only is proper, charges either of trials, under principles in the two the evidence one only encompasses guilt jeopardy, or double merger herein I shall subsequently not both. charges, the two ultimately conclusion that my ground indicate the rather than be that of possession conviction should surviving intent. of possession before the the adduction In my judgment, thought told a man he the defendant had testimony *19 “if found out that, he charge on the co-suspect drug was him he would informed on individual who the reasonably him”, could knife and kill his hunting take motion for objection on by judge, have been deemed an aura of defendant, to created such by a mistrial have ill-will the defendant in the sense of bias and to prejudice whatever probative jury outweigh on the of the as to part to possess the evidence be might thought weight presented of The situation guilt. of consciousness theory Evid,. for R. 4(b) a classic one of аpplication if in to evidence his discretion exclude judge permits substantially outweighed as weight “its probative he regards * * * will create substantial risk that its admission by v. Deatore and undue See State prejudice”. of danger Malton, of 100, opinion N. J. 127 (1976) concurring 70 Clifford, Conford, D., assigned; P. J. A. temporarily J. and 440-441; Evidence State 1972) McCormick on ed. (2d pp. Hudson, 364, 38 N. J. 370 (1962).1 v. reported convictions decisions have sustained of tbe 1While most against admission of evidence of of in the error contentions as majority prejudicial, by see asserted to be defendant threats opinion, Cobb have been sustained. such contentions in two cases App. (1924), State, 3, Ala. cert. den. 211 So. 463 Ala. 100
v. 20 Marler, 803, 2d 320, 466; Idaho 498 P. 94 1276 State 100 So. majority present significance point is (1972). of But Nor can the trial be faulted con judge properly fining mistrial to grant charge intent as against defendant’s plea that the mistrial go both charges. is not we question whether appellate judges, would, from the if we were vantage hindsight, the trial have judge, acceded to motion. the defense It is rather, these, whether, circumstances like “where it that a clearly mistrial appears has been in the sole interest the defendant”, it must held that “its necessary bar all consequence Tetrial”. See Gori v. States, United 364, 369, U. S. 1523, U. Ct.
L. Ed. 2d In (1961). my view that here calls inquiry for a negative response.
The trial judge felt that in view of the conces outright sion in his to the opening statement was guilty of the charge simple possession the objectionable have no testimony could actual ef prejudicial to a fect relation trial of that alone. It charge seems me that this position was at least correct in re eolorably lation to an whether, assessment of the context of total retrial defendant on the fact-picture, posses sion-with-intent after such charge partial was vi olative double criterion of “law affording * * * justice defendant and to the public.” Farmer, 48 N. J. 171-172 cert. den. 386 (1966), U. S. S. Ct. L. 1305, 18 Ed. 2d 335 See *20 also the from by majority the of this court Jus- quotation holdings by not decisions are judge the exercise of discretion the trial way admissibility improper. the other would have been may rulings There have been in countless favor defendants on of reports questions appellate such not revealed in of decisions since appealing obviously an defendant in a criminal case would not challenge ruling. a favorable may general majority further in It be noted that run of the cases, (1929), during A. see Annot. 62 L. R. 136 the threat was against anticipation prospective or in of trial and a known witness (1966). also, g., Hill, for the State. See e. State v. N. J. weight present in Probаtive is less such a somewhat case as one lacking. when such elements are Jorn, United States v. opinion dissenting tice Stewart’s Ed. 547, 91 Ct. 27 L. 2d 470, 492, (1971) 400 U. S. S. 408-409). (pp. cases, under significance, It is of some apparent de on the motion was granted whether the mistrial sua or prosecution motion of the fendant rather than on Jorn, States stated in United the court. As sponte by re 485, recently 547), U. S. S. Ct. supra (400 Dinitz,- S.-,-, U. States iterated in United 4309, Ed. 44 U. L. W. Ct. 47 L. 2d S. 4311 (1976): right go particular valued, is be- “If is to a tribunal hy judge
cause, independent or conduct threat of bad-faith significant prosecutor, the defendant has interest decision from or to take the case when circumstances whether not thought might mistrial. a declaration occur which be to warrant prosecutorial develop Thus, not where circumstances attributable judicial overreaching, or for mistrial motion ordinarily any reprosecution, remove barrier even if assumed to by prosecutorial judicial the defendant’s motion is necessitated added). (emphasis error.” I am Eor rule application quoted purposes not the instant were (1) satisfied that: circumstances or judicial overreaching”; "attributable to prosecutorial be to the may fairly that the court’s action attributed (2) even motion motion was though e., in- as to the charge only part (i. conсede, no As the will there was majority prose- tent). testimony here. The controversial cutorial "overreaching” admissible, aside from colorably and thus probative Buie 4 what I have above Evidence considerations. And said judge the action of the char- any should absolve acterization of overreaching. remains to consider whether partial
It mistrial can as attributable to regarded properly defendant’s motion. asserts majority grant “over of defendant. objection” My scrutiny of the record con- *21 defendant of the objection strains disagree. me the the charge refusal to include only possession the with the trial to proceed mistrial and to being required that, defendant suggest on count. Nowhere did the for continuation of the ruling in the posture court’s to the mistrial of count, objected charge trial on that never articulated intent, for with as such. He tried, be if one must charge implied request Indeed, time. at a later should at the stage both be same of ar- counsel for defendant stated the course trial, “You already first count: have for dismissal gument Count a mistrial on that Second [possession declared I with what Honor wholeheartedly agree your and intent] did”. am impressed
In these circumstances I not by to him to have both important assertion that was present tried at the for the same time tactical charges advantage of innocence on the his ease intent promoting charge That possession charge. frank avowal of guilt not with or fortify consideration does demonstra- equate on these facts. tion double cases, line of Court Thus, Supreme United States has not made the motion for mis in which defendant that, trial, claim stressing necessity preclude trial must have jeopardy, prior double act, necessity from “a manifest or the arisen ends defeated”, would otherwise United States justice public Perez, 22 U. S. is not (9 Wheat.) (1824), here States, Downum v. United 372 U. See also S. applicable. L. Pd. 83 S. Ct 2d 100 734, 736, (1963), suggest Somerville, necessity”; Illinois v. “imperious a test of ing Ct. 35 L. Ed. 458, 93 2d 425 (1973). 410 U. S. “Double After Jeopardy Reprosecution Comment See Manifest Test Necessity Manifestly Is the Neces Mistrial: L. N. W. U. Rev. here, The test sary?”, motion, is, rather, did make the as where the Dinitz, Jorn stated in noted and as both cited already *22 were to the motion above, leading whether the circumstances Eor or judicial overreaching”. “attributable to prosecutorial has not I am that criterion stated, reasons clear that the case. by established been the defendant should all the foregoing, Notwithstanding impossible not stand of both It is charges. adjudged guilty have may which marijuаna jury the segregate upon the which rested verdict of in the first trial from guilt its in with led to the of of guilt possession could have verdict In second trial. summation tent to distribute no of first told it was prosecutor case the on the whether their determination they rested consequence returned when he of found on defendant drugs quantum in the closet. Since to the room or that taken from the coat no reason former, and since there is it could have been the more was of inference that such ably possession tenable of purely than the kind “fleeting shadowy” possession sale, not the evidence is alleged incidental intended per with a of theory possession consistent discrete clearly con justifying se and with intent to distribute Wilkinson, v. N. J. State 126 viction on both See charges. J. 63 N. 553, 556 certif. den. Super. (App. Div.) Booker, J. v. 86 N. Super. (App. State (1963); Davis, 68 N. J. v. (1975). Div. State 1965); should survive. The' difficult which conviction is question — n the deter- Does the case call for application merger — on the mination arrived at Division by Appellate per- looked at from the theory that the matter should be a joint as initiation of the prosecution of the spective viewed, the trial both If charges? possession-with- so Jamison, N. J. State v. intent conviction survives. be factor controlling Or should
379-380 (1974). intent for possession trial circumstance fact case, In that for simple possession? a conviction followed because later conviction bars the course, double State a lesser included offense. conviction of earlier Lobato, I would resolve dilemma J. 137 N. in favor of the latter choice. that de contretemps here cannot trial dereliction imputed any veloped motion for precipitated the defense. The as matter divided warranted litigation certainly mental defense. The defendant did in fact sustain That con burden and of a conviction of stigma possession. In that pos subsisting. valid and viction presumptively fictional, the sub ture, of a joint the notion of posses inclusive crime more prosecution sequent rationale double jeopardy with intent offended sion Labato, I would therefore supra. exemplified *23 original the permit charge strike the conviction on that the stand,2 modifying conviction simple possession of Division accordingly. of the judgment Appellate in this joins opinion. Justice Cliffobd the pro This case concerns (dissenting). ashman, P J. only a mistrial on court order granting of priety whether, It also asks indictment. one count of two-count on mistrial, a retrial subsequent after declaration clause of the the double by jeopardy that count is barred and federal constitutions.* cross-petition did much 2The State not for certification so Appellate judgment of as vacates conviction and Division’s the possession charge. been much the sentence on the It would have practice pursued. However, better had that been in view of course reach, only I focus result would anomalous part Appellate of Division’s determination which affirms ig possession-wtih-intent-to-distribute charge and the same time vacating possession nore that court’s of conviction. The latter underpinning legal forms the factual and for reversal of former inextricably and is intertwined therewith. 1The double clause the fifth amendment United of through applicable Constitution was States deemed to the states Maryland, fourteenth amendment in Benton v. 395 U. S. prohibition against S. Ct. L. Ed. 2d 707 multiple prosecutions for the same offense is also found in Article I, par. Jersey 11 of the New Constitution of 1947. L. Defendant Richard Reehtschaifer was arrested for pos- session of more than 25 grams marijuana. The Prose- cutor of Morris County, upon information acting provided by two undercover secured an agents, indictment against Reehtschaifer on counts J. possession marijuana (N. S. A. 24:21-20 a(3)) and possession with intent to dis- tribute J. (N. 24:21-19 A. a(l)).
During trial, course of John one Dempsey, the undercover with agents, testified as his conversations Reehtschaifer stated while were they jail. Specifically, that: He [Reehtschaifer] [me] that found out who the advised if he hunting
individual was that informed on him his he would take knife kill him.
Defendant on both counts promptly moved for mistrial because of the prejudicial Though this statement. effect conceding validity the trial arguments, court ordered what in effect was a de- partial a mistrial claring on the to distribute intent but charge In the trial on the lesser offense. continuing decision, defendant, reaching the trial noted judge his through attorney’s had opening remarks, admitted his possession of the marijuana. the defendant Reasoning *24 could not be as to a prejudiced crime which had already admitted, that judge concluded the trial on the charge of not simple possession would unduly by affected Over inflammatory statement. objections by both defense counsel and the prosecutor, the trial was re- resumed and sulted in defendant’s conviction.
Defendant thereafter moved for dismissal the possession with intent to distribute count on double jeopardy grounds. The motion was convicted of this was denied defendant offense at a subsequent trial.
On Division affirmed appeal, Appellate the conviction for with intent to distribute pоssession but vacated earlier The court held simple pos- for that possession.2
conviction with a lesser included offense of possession session represented into the latter charge intent to distribute and thus merged evidence. the same because both were grounded upon offenses earlier vacation While appeal the State did not conviction, filed a for certification defendant petition this Uourt 68 N. J. 144 granted. of the charge defendant majority today
The acquits the convic reinstates distribute but possession intent reasons Pirst, majority tion for simple possession. It the trial court. the mistrial was improvidently granted testimony by characterizing reaches this decision indicated because it relevant Agent clearly as Dempsey being with innocence inconsistent “consciousness of or guilt, [was] fur 413. The Court Ante at to establish intent.” tend[ed] were hearsay, remarks, though ther asserts that Dempsey’s Evid. R. interest under admissible as a declaration against for simple while the conviction then holds that 63(10). It for stand, posses conviction may subsequent double by principles with intent to distribute is barred sion I would vacate both con majority, to .the jeopardy. Contrary with prejudice. victions dismiss from my I would recommend derives be- disposition lief was a exercise of discretiоn for the trial it proper under case. I court to the facts grant nonetheless conclude court to improper order a mistrial on one of the .two counts in the indict- only ment. I am that because the persuaded prejudicial effect one to the effect on charge equivalent prejudicial second a mistrial should have been as to both charge, would, therefore, counts. I tainted conviction which vacate the resulted from trial. I would the first also set aside the verdict that, partial of the second trial on the because the grounds 2Apparently, appeal directly did not from the first con viction. *25 objection, over was improperly granted prohibi- constitutional barred by count is retrial of that as- these two I will examine jeopardy. double against tion in the case order. pects
I a Partial Mistrial Granting Propriety of I from what stems majority initial with the My difference im- mistrial was that the as its erroneous conclusion regard imply The seems majority providently granted. it and “probative,” “relevant” testimony because
simply however, Rule Evidence admitted into evidence. must be evidence relevant exclude otherwise trial judge permits value: its outweighs probative if its effect prejudicial judge may finds that if he evidence in his discretion exclude probative outweighed by substantially its risk that its value is prejudice danger undue . . . admission will substantial create misleading jury. confusing the issues or of for making This rule vests discretion in the judge Evidence, McCormick, 439- 185 at such determinations. § here the trial judge I do not believe (1971).3 in regard. abused his discretion com- post-arrest as to defendant’s testimony Dempsey’s and damaging its content inflammatory ment was both unrelated Moreover, was completely its implications. which defendant substantive offenses to the on defendant’s only bearing and thus had charged limited majority (ante cases cited iContrary to the guilt. Nor a violent crime. not involve this case does
414-415), 3Although until did become effective Rule 4 not Evidence Jersey principle cases is reflected New embodies which it Stoelting Hauck, preceded adoption. J. 32 N. See its Super. (App. Wimberly Paterson, (1960) ; B. J. Div. (bullet-ridden, (1962) 1962), blood-stained certif. den. 38 N. J. 340 prejudicial potential). clothing because of withheld *26 does it contain testimony threats aby defendant against a specific witness who expected testify is to him. against aAs result, the instant matter clearly distinguishable is similar, from those cases which hold testimony that damaging to that of Agent Dempsey is admissible to a demonstrate “consciousness of guilt.” trial, In the it can- context of not be said that the trial erroneously concluded judge that the prejudicial effect of testimony Dempsey’s substantially outweighed its probative value.
However, I while do not believe the trial court abused its discretion in on granting charge pos- session with distribute, intent I to find no rational basis for failure its to similarly grant mistrial as to the remaining By count. a mistrial in the court declaring place, the first that substantial acknowledged from prejudice might result Dempsey’s If is this testimony. conceded that testimony it could compromised a. jury’s ability have reach fair and dispassionate count,- as verdict to one it seems illogical that an argue intimately charge, grounded upon related same evidence, would somehow remain immune from such prejudice. This is so where the particularly allegedly prej- udicial testimony is unrelated either of the criminal equally charges.
The
remark
judge’s suggestion
by defense counsel
which conceded that Rechtschaffer did have
marijuana, somehow insulates the
offense
possessory
A
agent’s testimony
effects
is untenable.
damaging
comment made
counsel
course of his
during the
opening
never
as a plea
guilty. Despite
statement must
be treated
effect,
unlikely
to this
limiting instructions
it
highly
law would be able
differentiate be
jury
untrained
different
different
tween evidence offered for
purposes
Boone,
charges in the course of the same trial. State
Miller,
229,
N. J.
J.
38,
N.
(1974);
will,
J.,
and in
dissenting).
(1975)
(Pashman,
in
did, consider the prejudicial
probably
this case
decision.
reaching
its
flammatory testimony
In
I
find the
of the contested
respect,
impact
testi-
to be
harmful
off” effect which
mony
“rubbing
similar to the
J. Deatore,
70 N.
in State v.
I
described in
my dissent
358 A. 2d
J., dissent-
(Pashman,
(1976)
cross-ex-
ing). There, I criticized the effect of impermissible
ac-
non-testifying
amination of a
on his
testifying
be-
real distinction
case,
In the
I find
instant
no
complice.
on jury
tween
testimony
the prejudicial effect of the agent’s
ef-
identical
and the
deliberations on one possession charge
jointly-
have
of the other
fect
on consideration
might
*27
court
the trial
tried
once
possession charge. Consequently,
warranted,
should have
a
had determined that mistrial
it
therefore,
I,
counts, not one.
a
as
both
declared mistrial
on
first
from the
find that
the conviction resulting
un-
tainted
was both
of
charge
simple
aside.4
I
set it
and would therefore
duly prejudicial,
grounds
4Incidentally,
additional
I
are several
note that
there
partial
might
granting
propriety
falter.
a
mistrial
on
of
which the
First, by requiring separate
of the indict
for
count
trials
each
important
ment,
an
State
of
trial court contravened
the action
subjected
sepa
policy
provides
be
shall
which
no defendant
that
arising
episode.
criminal
of
same
for
out
rate trials
offenses
Labato,
;
Gregory,
(1975)
v.
7
J.
State
N.
v.
66 N. J.
State
510
proposed
(1951).
2C:1-9(d)
Jer
Neto
See also Section
137
sey
Legislature
Justice,
pending
as
before the
Code
Criminal
now
of
prosecution
provides
Assembly
(1975),
that
Bill
No. 3282
improperly
prosecution has been
barred
a former
terminated.
is
when
majority
concedes,
only which
“A
count
itself
mistrial
one
As the
inextricably
frustrate
with the second would
that
intertwined
policy.” Ante at 413.
very
partial
might
Second,
have
well
the declaration of a
merger.
regard,
majority
In this
states
the doctrine of
violated
simple possession
“in
under the circumstances
case
marijuana
separable”
possession of
with
from
the same
intent
supported
distribute
since both offenses were
the same evi
may
Therefore,
convicted and sen
Ante
dence.
at 403.
cf.,
Best,
only
v.
two
State
70
tenced
one
these
offenses.
69,
56,
;
Davis,
(1976)
J.
State v.
N.
77
N. J.
(1975)
In
I am course
cognizant
these
making
discre
to declare mistrial resides in
sound
power
Somerville,
v.
410
Illinois
U. S.
tion of the trial
judge.
States
458,
1066,
93 Ct.
without neither proscribes [48 171] N. J. at stitution such an order. Thus, have eschewed to delineate appellate attempts courts or utilize mechanistic formulae to determine declaration of a mis which would warrant circumstances Somerville, 410 U. S. at 463, 93 supra, Illinois v. trial. L. Ct. Ed. 2d at 430.5 ju represents at This leeway to accord sufficient the judgment dicial effort court, whose circum assessment attendant the trial interests. be to defendant’s may stances at trial most sensitive case, where the trial Within the context instant prejudice of undue already danger had recognized judge and the potential to one of the where charges with regard charge, “rub off” on second would clearly for prejudice supra: Farmer, stated As this Court cataloguing Obviously or conduct can no events there be require holding more, which, of double without will cir- without defendant’s consent. The a mistrial ordered when of the trial a mind consciоus be examined with must cumstances atmosphere, vagaries, emotional fact its milieu captured only rarely urgency in a can decision stimuli appellate They looked at an aware- record. must be also with cold person has no constitutional crime natural accused of ness that procedural exempted practices right which are from those to be necessary of the State to make sure that the effort deemed shall be in accordance with final of a conduct and result justice public. [48 all and to N. J. defendants law and 171-72] *29 failure of the a judge to declare mistrial as to both offenses
was error. clearly I would set Accordingly, aside the con- viction for simple and dismiss this charge with prejudice.
n Double as a Bar to Jeopardy Retrial a question remains whether retrial of the possession with intent to distribute count is after mistrial permissible re I previously granted on that count. that submit cent United States Court in United States Supreme decision Dinitz, U. Ct. L. Ed. 3d 367 S. (1976), such a prohibits retrial.
In ease, that defendant Dinitz indicted for distribution and of the conspiracy distribute LSD. the course During to statements, chief opening counsel for defendant committed several indiscretions, which caused the trial eventually judge him from expel the courtroom.6 After at removing this torney case, defendant judge presented options: three have the an stayed, (1) proceedings pending review the application Appeals Court propriety action; of his continue the trial with (3) representation by the expelled attorney’s cocounsel ill-prepared) (concededly have mistrial declared to (3) permit defendant time to retain new counsel. After de options, considering moved for mistrial which was granted fendant without ob jection by trial, Before his second prosecution. though, moved be dismissed on the charges a retrial would violate of double grounds principles 6Specifically, opening refused to confine defense counsel Ms state summary issues, ment facts instead insisted on conveying personal opinions. alleged Ms He also the State’s principal sought money defendant, witness to extort from the even though connecting prospective govern there was no evidence attempt. ment witness with the extortion
431 jeopardy. motion denied and defendant was con victed of the a original at trial. charges subsequent
In rejecting claim, defendant’s double jeopardy United States Supreme Court relied on be heavily the distinction tween cases where a defendant a mistrial and cases requests wherе a court a mistrial its own motion. Acknowl orders that the declaration of a edging mistrial necessarily implicates a have defendant’s “valued his trial right by completed particular tribunal” U. (424 606, 1079, S. at 96 47 S. Ct. at Jorn, Ed. 2d 273; L. see also at United States v. 400 supra, U. S. 484-485, 556-557, at 91 S. Ct. L. 556; at 27 2d at Ed. States, Bownum v. United U. 736, 372 at 83 Ct. supra, S. S. Hunter, 1034,
at
10
102-103;
L.
2d
Ed.
at
Wade v.
supra,
336 U.
689,
S. at
69
Ct.
L.
837,
S.
93
Ed.
at
at 978),
Court noted
ordinarily,
motion
mistrial will not pose any barrier
absent
reprosecution
prosecutorial or
judicial
v.
misconduct. United States
Dinitz,
supra,
U. S.
96 Ct
47 L. Ed.
606,
1079,
at
S.
at
Jorn,
273;
2d at
United States v.
485,
400 U.
at
supra,
S.
Ct.
S.
at
557,
hand,
L. Ed. 2d at 556. On the other
recognized that
where
court
a mistrial sua
declares
sponte,
there can be a new trial only if the mistrial was properly
on the
“manifest
ground
United
necessity.”
Dinitz,
States v.
606,
424 U.
Ct.
supra,
1079,
S. at
96 S.
at
273;
Somerville,
47 L. Ed. 2d
Illinois
at
v.
supra, 410 U. S.
461,
1069,
429;
at
“manifest
the expulsion
necessity”
required
counsel
available),
were
other
meаsures
(since
disciplinary
barred a
clause
court concluded
the double
Dinitz,
F. 2d 53
Cir.
second trial. United
(5
States
affd, 504
On
appeal,
F. 2d 854
Cir.
1974),
1974).
(5
been
mistrial had
Court
that the
Supreme
arguendo
assumed
Appeals,
but reversed the Court
improvidently granted,
had
fact
that the defendant
because
Court determined
of the case
per
retained sufficient control of
conduct
*31
Dinitz,
v.
424 U. S.
supra,
mit
United States
reprosecution.
L. Ed. 2d
In explaining
Ct.
47
at 275.
607,
1080,
96 S.
at
at
decision, the Court stated:
its
however,
obtain,
has
mistrial
when the
Different considerations
request.
dis
the
for
declared at
defendant’s
The reasons
been
the
plurality opinion in
Jorn case:
the
discussed in the
were
tinction
valued,
right
go
particular
it
is
is
to a
tribunal
If the
to
by judge
because, independent
of bad-faith conduct
of the threat
significant
de
prosecutor,
in the
has a
interest
or
defendant
jury
cir
when
or not to
the case from the
cision whether
take
thought
might
a declara
warrant
occur
to
cumstances
develop
Thus,
not at
circumstances
of mistrial.
where
tion
by
judicial
prosecutorial
overreaching, motion
a
to
or
tributable
any
ordinarily
to remove
for mistrial
is
assumed
the defendant
reprosecution,
if
motion is neces
the defendant’s
barrier to
even
prosecutorial
judicial
by
of such
error. In
absence
sitаted
or
necessity
motion,
as a
of manifest
stands
a
the Perea doctrine
option
judges
to trial
to
the defendant’s
command
not
foreclose
judicial
scrupulous
the con
discretion leads to
until
exercise
justice
by
public
would not be served
clusion that
ends of
Perez,
proceedings.
See United States
a continuation
485,
(footnote
S.,
Wheat.,
at
273-274; omitted] footnote reasons, For these the Court concluded that: (cid:127) consideration, purposes of the Double important . . . primary Clause, control over Jeopardy retains is that ¡7. $. [424 of such error. followed in the event to be course 275; omitted; 1081, L. Ed. 2d at footnote at S. Ct. - emphasis supplied] . . trial court in this case had the no doubt that I have to both a mistrial as counts motion for have bar reprose there would been no to indictment, In did not do so. contrast However, judge' cution. Dinitz, re here defendant presented circumstances fact, In when over the course of. events.
tained no.control had decided judge the trial to grant appeared count, other, on the on one but counsel for not Because .defendant objected only objected. the defendant mistrial, given opportunity, it is partial probable rather have the first jury” might preferred “go (cid:127) by occasioned “anxiety, expense, delay than suffer- the Dinitz, supra, See United States v. multiple prosecutions.” L. Ed..2d at 275. U. S. at Ct. at never- and defense However, this afforded opportunity de was directed the court to ahead.” The by “go counsel mistrial; such fendant never sought partial consequently, sua sponte. action taken the trial court clearly *32 am above, As noted I convinced 371). ante at 366 n. .(See case, a partial of this under the circumstances matter. It follows that resolution improper an court, on motion mistrial was declared because double jeopardy prohibits reprosecu against the guarantee with intent distribute defendant on tion of count. reasons, I would set aside the convic-
For the foregoing with distribute and further intent dis- for possession tion indictment prejudice. counts both miss D., J., concurring P. A. Cmjtokd, Contoed, J. - . . : result. .the Hughes, For reversal—Chief Justices Mountain, Justice Sullivan, Clifford and Schreiber and Judge Conford —6.
Dissenting Pashman —1. —Justice THE OF MATTER OF ESTATE
IN THE LEHNER. JENNY OLGA Argued April 1976. June 1976 Decided