State v. Abbati

• Decision Date: 05 June 1985
• Citation: 99 N.J. 418,493 A.2d 513
• Parties: STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Vincent M. ABBATI, Jr., Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Supreme Court

Page 418

99 N.J. 418

493 A.2d 513

STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Vincent M. ABBATI, Jr., Defendant-Appellant and Cross-Respondent.

Supreme Court of New Jersey.

Argued Feb. 20, 1985.

Decided June 5, 1985.

Mark E. Roddy, Atlantic City, for defendant-appellant and cross-respondent (Goldenberg, Mackler & Sayegh, Atlantic City, attorneys).

Linda K. Calloway, Deputy Atty. Gen., for plaintiff-respondent and cross-appellant (Irwin I. Kimmelman, Atty. Gen., attorney).

The opinion of the Court was delivered by

HANDLER, J.

This appeal presents the issue whether, and under what authority and standards, a trial court may dismiss an indictment with prejudice after a defendant has been twice tried for the same offense and each prosecution has ended in a mistrial due to a hung jury.

I.

The defendant, Vincent Abbati, Jr., was indicted and charged in four counts with first degree kidnapping ( N.J.S.A. 2C:13-1(b)(1)), first degree aggravated sexual assault ( N.J.S.A. 2C:14-2(a)(3) and (4)), fourth degree unlawful possession of knives ( N.J.S.A. 2C:39-5(d)), and third degree possession of a knife for an unlawful purpose ( N.J.S.A. 2C:39-4(d)). Defendant went to trial in June 1982. The complainant testified that on January 17, 1982 the defendant abducted her at knifepoint at approximately 7 a.m. from a bus stop where she was waiting, drove her to a vacant lot, and forced her to engage in sexual intercourse. He then took her to his apartment where defendant's room-mate and the latter's girlfriend were present. When defendant left the room, the complainant fled and sought assistance.

The defendant offered a different version. He testified that he offered the complainant a ride because of the cold weather, which she voluntarily accepted, that they smoked marijuana together and engaged in consensual sexual intercourse. Afterward, they returned to his apartment where she met his room-mate and his room-mate's girlfriend. She left the apartment when Abbati momentarily went to his bedroom.

The jury deliberated approximately two days before they declared themselves hopelessly deadlocked. This conclusion came after the court requested that they continue to deliberate. The court then declared a mistrial.

In November 1982 defendant's second trial began before a different trial judge and jury. The State relied upon the same fact witnesses, and their testimony was substantially identical to the first trial. The only noteworthy differences between the two trials were an automobile demonstration of the alleged kidnapping conducted by defense counsel and that the defendant called different character witnesses in his second trial. The jury deliberations in this trial lasted approximately one full day. At one point the jury informed the court of a deadlock; the court instructed the jury to continue deliberating. It soon became apparent that this jury was also hopelessly deadlocked. Another mistrial was declared.

Excluding the relatively minor differences in the defense's case, the trials were virtual duplicates of each other. The State and the defendant were represented by the same attorneys in both trials. No demonstrative evidence presented in either trial definitely corroborated either the State's or the defendant's version of the events. Thus, the jury's determination of guilt vel non in each case depended on its evaluation of the credibility of the complainant and defendant on the issue of consent to both asportation and intercourse.

After the second mistrial, Abbati moved for dismissal of the indictment with prejudice. The State argued that the trial court had no power to dismiss an indictment, absent a constitutional violation of the defendant's rights, unless explicitly authorized by statute or court rule, and that there was no such authority in New Jersey. The trial court granted defendant's motion and dismissed the indictment. Relying on State v. Moriwake, 65 Hawaii 47, 647 P.2d 705 (1982), the court determined that a trial court has inherent power to dismiss an indictment, and that after two juries had been unable to reach a verdict, it was appropriate under the circumstances for the court that had presided over the second trial to exercise that power.

In a split decision, the Appellate Division reversed, 195 N.J.Super. 218, 478 A.2d 1212 (1984), and held that although a trial court has inherent power to dismiss an indictment, it may be exercised only when the court finds a "patent and gross abuse of [prosecutorial] discretion ...." Id. at 223, 478 A.2d 1212. The Appellate Division required the trial court to balance the factors favoring and disfavoring dismissal and further found that the trial court gave no apparent deference to the prosecutor's decision to reprosecute. Id. Judge Matthews, dissenting, reasoned that the trial court did not abuse its discretion in dismissing the indictment, and concluded that to allow "retrial ad infinitum provided successive juries cannot agree on a verdict is fundamentally unfair, if not bad organic law." Id. at 226, 478 A.2d 1212. The case is before the Court on appeal as of right under R. 2:2-1(a)(2). We reverse.

II.

The State asserts that absent statutory authority, a court may dismiss an indictment with prejudice only when the defendant's constitutional rights have been violated. We therefore consider whether constitutional principles, including double jeopardy, due process, and fundamental fairness, constitute a basis for implying judicial authority to dismiss an indictment following several mistrials.

It is, of course, true that a trial court must dismiss an indictment if prosecution would violate the defendant's constitutional rights. See, e.g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Szima, 70 N.J. 196, 358 A.2d 773, cert. den., 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180 (1976) (right to speedy trial); State v. Barnes, 84 N.J. 362, 420 A.2d 303 (1980) (freedom from double jeopardy); State v. Sutton, 80 N.J. 110, 402 A.2d 230 (1979) (freedom from selective prosecution); State v. Jones, 183 N.J.Super. 172, 443 A.2d 738 (App.Div.1982) (right to due process). The double jeopardy clauses of the federal and state Constitutions, however do not prohibit retrial of a defendant when a prior prosecution for the same offense has ended in mistrial attributable to the inability of the jury to agree on a verdict.

In some sense a defendant is in jeopardy when required to be retried following a mistrial because of a deadlocked jury. However, the jeopardy to which the defendant is exposed is considered a continuation of original jeopardy, which was not terminated by the mistrial. See Richardson v. United States, --- U.S. ----, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1924); State v. Rechtschaffer, 70 N.J. 395, 360 A.2d 362 (1976); State v. Romeo, 43 N.J. 188, 203 A.2d 23 (1964), cert. den. Romeo v. New Jersey, 379 U.S. 970, 85 S.Ct. 668, 13 L.Ed.2d 563 (1965); State v. Roller, 29 N.J. 339, 149 A.2d 238 (1959).

The seminal decision construing the federal double jeopardy clause, U.S. Const. amend. 5, in the context of a mistrial due to the failure of the jury to agree on a verdict is United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). The Supreme Court ruled that courts have the authority to discharge juries "whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." Id. at 580, 6 L.Ed. at 165. The Court concluded that "manifest necessity" justified the discharge of a jury unable to reach a verdict, and therefore retrial did not offend the Constitution. ¹ See also Wade v. Hunter, supra, 336 U.S. 684, 688-89, 69 S.Ct 834, 836-37, 93 L.Ed. 974, 978 (1949), (allowing a defendant to go free whenever the trial failed to end in a final judgment "would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed....").

Our State Constitution's prohibition on double jeopardy is no less clear in allowing retrial after a mistrial due to a deadlocked jury. See N.J. Const. (1947) art. I, para. 11 ("No person shall, after acquittal, be tried for the same offense."); City of Newark v. Pulverman, 12 N.J. 105, 110, 95 A.2d 889 (1953). It would therefore be misleading to suggest that the State or federal double jeopardy clauses would bar retrial in this case. Consequently, constitutional double jeopardy principles do not constitute the basis for implying judicial authority to dismiss an indictment following two mistrials in the circumstances presented.

In considering whether constitutional precepts of due process or fundamental fairness may be the basis for an implied judicial authority to dismiss an indictment after several mistrials, we are brought immediately to a concomitant consideration of other policy concerns that bear materially upon the existence and nature of such judicial authority. We are satisfied that precepts of fundamental fairness, together with the judiciary's need to create appropriate and just remedies, and its general responsibility to assure the overall efficient administration of the criminal justice system, confirm an inherent power in a trial court to dismiss an indictment with prejudice following general mistrials attributable to repeated jury deadlocks.

This analysis requires an examination of the scope and nature of the judicial power. The New Jersey Constitution vests judicial power in the Supreme Court and all inferior courts. See N.J. Const. (1947) art. VI, § 1, para. 1. The constitutional judicial power embraces ancillary inherent powers. The inherent powers of our courts are not defined by the judicial ar...