SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
State v. Stephen A. Zadroga (A-22-22) (087156)
Argued April 25, 2023 -- Decided August 9, 2023
WAINER APTER, J., writing for a unanimous Court.
The Court considers whether double jeopardy bars the retrial of defendant Stephen A. Zadroga under the circumstances of this case.
In November 2017, two cars collided head-on in Jersey City. Defendant was driving 85-88 miles per hour 3 seconds before the crash; the posted speed limit was 25. In addition to witnesses’ statements about the speed at which defendant was driving, there was evidence that his car was over the yellow lines, into opposing traffic, at the time of the collision. Defendant’s best friend died in the crash.
Pursuant to a warrant, the State seized and tested what they thought was defendant’s blood. The blood alcohol content (BAC) came back as 0.376%, more than four times the legal limit. Relying on that evidence, the grand jury charged defendant with aggravated manslaughter, death by auto, and three counts of driving while intoxicated.
After the nurse who drew defendant’s blood testified for the State at trial, the State realized that the blood they believed to be defendant’s had actually come from a person who had died seven months before the accident. After the State discovered the error, defendant moved to dismiss the indictment with prejudice because the grand jury had relied on false testimony to indict him.
The trial court granted defendant’s motion as to the counts of driving while intoxicated but denied the motion as to counts one and two, aggravated manslaughter and death by auto. The court found that allowing defendant to be retried on the counts unrelated to intoxication would not violate his rights under the Double Jeopardy Clause both because he consented to the trial’s termination and because there was a manifest necessity to terminate the trial. The Appellate Division affirmed on manifest necessity grounds, adding that while the State could present counts one and two to a new grand jury, it could not present any evidence that defendant was under the influence of alcohol at the time of the collision. 472 N.J. Super. 1, 8 (App. Div. 2022). The Court granted certification. 252 N.J. 325 (2022).
1 HELD: The trial court did not abuse its discretion in finding manifest necessity justified a mistrial here. As the Appellate Division held, the State can present the counts of aggravated manslaughter and death by auto to a new grand jury based solely on the reckless driving evidence, without any evidence on intoxication.
1. Both the United States and the New Jersey Constitutions protect defendants from repeated prosecutions for the same offense. Jeopardy attaches after a jury is impaneled and sworn, and double jeopardy protects the right of the defendant to have his trial completed before the first jury impaneled to try him. However, termination of a trial after jeopardy attaches does not necessarily prohibit subsequent re-prosecution. Only the improper termination of proceedings bars retrial. Termination can be proper, and a retrial not barred by double jeopardy principles, in two circumstances. First, termination is proper and there is no bar to retrial if there is a “manifest necessity” to terminate the proceedings. State v. Loyal, 164 N.J. 418, 435 (2000). The manifest necessity standard protects “the defendant’s interests in having his case finally decided by the jury first selected while at the same time maintaining ‘the public’s interest in fair trials designed to end in just judgements.’” Oregon v. Kennedy, 456 U.S. 667, 672 (1982). There are no rigid rules as to what constitutes a manifest necessity. Instead, the Court has set forth several considerations for courts to use in determining whether a manifest necessity requires a mistrial. Loyal, 164 N.J. at 437. Second, when the defendant requests or otherwise consents to a mistrial, manifest necessity need not be shown. Instead, termination is not improper and there is no bar to retrial as long as the prosecutor did not “‘goad’ the defendant into moving for a mistrial.” Kennedy, 456 U.S. at 673, 676. The Court adopted the Kennedy standard in State v. Gallegan, 117 N.J. 345, 357-58 (1989). In 1978, the Legislature chose to codify constitutional double jeopardy protections. See N.J.S.A. 2C:1-9(d). (pp. 19-24)
2. Here, the trial court did not abuse its discretion in finding that termination of the trial was supported by a manifest necessity. The Court disagrees with defendant’s reading of State v. Farmer, 48 N.J. 145 (1966), to preclude a finding of manifest necessity if the State acted in bad faith or was guilty of inexcusable neglect. Four features of Farmer make clear that it did not categorically bar retrial even if there is a finding that the State’s conduct reflected bad faith or inexcusable neglect. First, Farmer acknowledges that “there is no over-all formula, no hard and fast rule for determining when an order of mistrial will cause the jeopardy bar to spring into being, [and so] each case must depend upon its own facts and the urgency of its circumstances.” Id. at 177. Second, Farmer emphasizes the “wide range of discretion” in finding a manifest necessity “recognized in the trial judge, who has his finger on the pulse of the proceedings.” Id. at 171. Third, Farmer twice explains that appellate courts should not find an abuse of discretion where the trial court declares a mistrial to protect a defendant’s interests. Fourth, the Farmer Court acknowledged that a declaration of manifest necessity must balance “the right of the 2 accused to be prosecuted fairly and not oppressively” against “the societal right to have the accused tried and punished if found guilty.” Id. at 175. The Court does not read Farmer to establish a per se rule that, whenever a mistrial follows the State’s bad faith or inexcusable neglect, retrial is barred on all counts. The Court also declines defendant’s invitation to create such a rule. Application of the fact-specific balancing tests set forth in Farmer and Loyal, which weigh all circumstances and consider both the public’s interest and the defendant’s rights, is the best course when the State’s non-intentional misconduct leads to a mistrial. (pp. 24-28)
3. The trial court did not abuse its discretion in balancing those interests here. First, once the trial judge held that the grand jury relied heavily on defendant’s 0.376% BAC level, he did not abuse his discretion in finding “no viable alternative to a mistrial.” Second, the trial judge based his decision not on a concern that the State would be prejudiced by continuing with the trial, but by a desire to avoid prejudicing the defendant by forcing him to continue with a trial when the grand jury may have based its decision to indict on false testimony, and when defendant therefore may not have been indicted at all without the BAC evidence. See Farmer, 48 N.J. at 171. Third, the Court disagrees that allowing a retrial here would confer any unfair advantage on the State. The “essence to the doctrine of jeopardy” is “that the State may not retreat from the field when its case turns sour and then be permitted to sally forth on a future day before a new jury when its case is refreshed and reinforced.” Gallegan, 117 N.J. at 346. The State did no such thing here. Fourth, defendant will not suffer any substantial prejudice beyond what is inherent in any trial or retrial after appeal. Fifth, although the trial court found that the State’s handling of the blood evidence reflected bad faith and inexcusable neglect, it did not find that the State’s conduct was intentional, and defendant concedes that the State did not engage in any intentional misconduct. Finally, as the trial court found, the nature of the crime weighs strongly in favor of retrial on counts one and two. Prohibiting the State from putting forth any evidence or argument that defendant was intoxicated acknowledges the harm the State caused defendant by grossly mishandling the blood evidence. And allowing the State to present the charges of aggravated manslaughter and death by auto to a new grand jury, without evidence of intoxication, recognizes that a human being died in this crash. (pp. 28-33)
4. Because there was no abuse of discretion in finding the mistrial was supported by manifest necessity, the Court does not reach whether defendant consented to the mistrial or his request to depart from the Kennedy standard in cases of consent. (p. 34)
AFFIRMED and REMANDED to the trial court.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, and FASCIALE join in JUSTICE WAINER APTER’s opinion. JUDGE SABATINO (temporarily assigned) did not participate.
3 SUPREME COURT OF NEW JERSEY A-22 September Term 2022 087156
State of New Jersey,
Plaintiff-Respondent,
v.
Stephen A. Zadroga,
Defendant-Appellant.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 472 N.J. Super. 1 (App. Div. 2022).
Argued Decided April 25, 2023 August 9, 2023
Scott M. Welfel, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Scott M. Welfel, of counsel and on the briefs).
Leonardo Rinaldi, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Colleen Kristan Signorelli, Assistant Prosecutor, on the briefs).
Oleg Nekritin argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Law Offices of Robert J. De Groot, and Ziegler Law Group, attorneys; Oleg Nekritin and Jason LeBoeuf, on the brief).
1 William P. Cooper-Daub, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; William P. Cooper-Daub, of counsel and on the brief).
JUSTICE WAINER APTER delivered the opinion of the Court.
This case arises from a head-on collision on Paterson Plank Road in
Jersey City. Defendant was driving 85 to 88 miles per hour three seconds
before the crash; the posted speed limit was 25 miles per hour. The winding
road had one lane in each direction. There was evidence that defendant’s car
was over the yellow lines, into opposing traffic, at the time of the collision.
Defendant’s best friend died in the crash.
Pursuant to a warrant, the State seized and tested what they thought was
defendant’s blood. The blood alcohol content (BAC) came back as 0.376%,
more than four times the legal limit. Relying on that evidence, the grand jury
charged defendant with aggravated manslaughter, death by auto, and three
counts that explicitly accused defendant of driving while intoxicated in
violation of N.J.S.A. 39:4-50.
After the nurse who drew defendant’s blood testified for the State at
trial, the State realized that the blood they believed to be defendant’s had
actually come from a person who had died seven months before the accident.
2 Apparently, no detective, prosecutor, or investigator had ever inspected the
date of collection or patient number written on the blood vials, both of which
demonstrated that it could not have been defendant’s blood.
After the State discovered the error, defendant moved to dismiss the
indictment with prejudice because the grand jury had relied on false testimony
to indict him. The trial court granted defendant’s motion as to counts three
through five, which were dependent on his driving while intoxicated, but
denied the motion as to counts one and two, aggravated manslaughter and
death by auto. The court found that although the State’s handling of the blood
evidence constituted bad faith and inexcusable neglect, allowing defendant to
be retried on the counts unrelated to intoxication would not violate his rights
under the Double Jeopardy Clause both because defendant consented to the
trial’s termination and because there was a manifest necessity to terminate the
trial. The Appellate Division affirmed on manifest necessity grounds. The
Appellate Division added that while the State could present counts one and
two to a new grand jury, it could not present any evidence that defendant was
under the influence of alcohol at the time of the collision.
Defendant argues that a retrial, even on the counts unrelated to
intoxication, is barred by our State Constitution’s Double Jeopardy Clause.
According to defendant, he did not consent to the mistrial and a manifest
3 necessity to terminate the trial would therefore be required. Yet there can be
no manifest necessity, defendant contends, when the State has acted in bad
faith or is guilty of inexcusable neglect. In the alternative, defendant
maintains that if we find he did consent to the mistrial, we should hold that our
State Constitution affords greater protection against double jeopardy than the
Federal Constitution and adopt the test articulated by the Pennsylvania
Supreme Court in Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020), rather
than the test we have previously applied from Oregon v. Kennedy, 456 U.S.
667 (1982).
Because we conclude that the trial court did not abuse its discretion in
finding manifest necessity justified the mistrial here, we affirm. As the
Appellate Division held, the State can present the counts of aggravated
manslaughter and death by auto to a new grand jury, without any evidence on
intoxication. We do not reach defendant’s alternative argument.
I.
A.
Because this case was aborted mid-trial, this factual summary is based
primarily on the presentation to the grand jury rather than testimony elicited at
trial.
4 In the early morning hours of Thursday, November 16, 2017, defendant
Stephen Zadroga was driving northbound on Paterson Plank Road in Jersey
City after a night out with friends. With him were Evadne Figueroa in the
front passenger seat and Matthew Nierstedt, his best friend, in the back seat.
As defendant drove northbound, Steven Carvache was driving southbound.
Carvache was accompanied by Nicole Krygoski in the passenger seat. The
posted speed limit was 25 miles per hour. That section of Paterson Plank Road
becomes one lane in each direction with “a lot of curves,” divided by a double
yellow line.
Detective Tony Espaillat of the Hudson County Prosecutor’s Office
(HCPO) testified before the grand jury regarding statements he took from
various witnesses. According to Espaillat, Figueroa told him that she saw
defendant drink two or three beers and two shots of a dark-colored alcohol but
did not believe he was intoxicated when she got into his car. She said,
however, that she felt “scared” during the ride because defendant was
“speeding,” and that defendant and Nierstedt “just laughed at her” when she
asked defendant to slow down.
Espaillat testified that Venicio Rojas, a driver for a charter bus company,
said that he was stopped at a light facing north on Paterson Plank Road at
about 1:50 a.m. on November 16, with a Port Authority pickup truck in front
5 of him, and a black Mazda -- defendant’s car -- behind him. When the light
turned green, the Mazda accelerated past Rojas, passing him on the left side
“at a high rate of speed.” Leon Sergeant, who was riding in the passenger seat
of the Port Authority truck, told Espaillat that defendant tried to pass their
vehicle on the right “before the [two] lanes merged into one.”
Krygoski told Espaillat that she worked at the Corkscrew Bar in Jersey
City and had served Carvache two or three 12-ounce cans of beer before
Carvache offered to drive her home. She also stated that she remembered
(1) the headlights of another vehicle coming toward them on Paterson Plank
Road “really, really fast,” (2) Carvache trying to swerve out of the way, and
(3) the other car being over the yellow line at the time of the crash.
Detective Joe Bisone, also of the HCPO, testified before the grand jury
that computer data from the “black box” 1 of defendant’s vehicle showed the
vehicle traveling at “85 to 88” miles per hour three seconds before the crash,
68 miles per hour one-and-a-half seconds before the crash, and 43 miles per
hour at the moment of impact. Detective Bisone said that black box data was
1 A car’s “black box” is a device called the Event Data Recorder, which “records certain technical information about a vehicle’s operational performance for a few seconds immediately prior to and during a crash.” Bill Canis & David Randall Peterman, Cong. Rsch. Serv., R43651, “Black Boxes” in Passenger Vehicles: Policy Issues 1 (2014), available at https://sgp.fas.org/crs/misc/R43651.pdf. 6 not available for Carvache’s car. However, based on physical evidence from
the site and collision reconstruction, Detective Bisone concluded that (1)
Carvache’s car was traveling at approximately 27 to 33 miles per hour on
impact; (2) the collision occurred “predominantly in the southbound lane” --
i.e., Carvache’s lane; and (3) before impact, defendant’s car had been
“straddling the double yellow lines with the front of the Mazda halfway over
the line.”
Detective Espaillat testified about video evidence showing defendant
being served two 12-ounce bottles of beer at the first bar he visited. He also
testified that the bartender from the second bar defendant visited said
defendant drank about three or four 16-ounce beers and two shots of whiskey.
Video footage at the Corkscrew Bar showed Carvache being served four beers
between 1:09 and 1:45 a.m. The New Jersey State Police Forensic Lab,
Espaillat testified, analyzed blood samples from both defendant and Carvache.
According to Espaillat, Carvache’s blood alcohol content (BAC) was 0.131%
and defendant’s was 0.376%.
Nonetheless, no law enforcement or emergency personnel who
responded to the crash reported observing any signs that defendant was
intoxicated, seeing any alcohol in defendant’s car, or smelling alcohol on
defendant’s breath. No one administered any field sobriety tests to defendant.
7 After the crash, Carvache, Krygoski, Figueroa, and Nierstedt were
transported to medical facilities, including Jersey City Medical Center
(JCMC), for treatment. Defendant was not arrested. He was released to the
custody of his parents, who later brought him to JCMC to be treated for
injuries sustained in the crash. JCMC staff took a blood sample from
defendant. On November 17, 2017, police obtained a warrant and seized what
they thought was defendant’s blood from JCMC.
Matthew Nierstedt was pronounced dead at approximately 3 a.m. on
November 16, 2017. He was 29 years old.
B.
Defendant was indicted on five counts: first-degree aggravated
manslaughter; second-degree death by auto; and three counts of victim-specific
third-degree assault by auto, for injuries sustained by Carvache, Krygoski, and
Figueroa. The three assault-by-auto counts explicitly charged defendant with
driving while intoxicated in violation of N.J.S.A. 39:4-50. Carvache was not
criminally charged.
C.
Trial began in July of 2019. During opening statements, counsel for
defendant told the jury it would hear that defendant’s BAC had been 0.376%
on the night of the crash. Counsel for the State did not mention defendant’s
8 specific BAC but did argue that defendant had been drinking. The jury then
heard testimony from Figueroa that defendant had been drinking and watched
video footage of defendant being served alcohol at the first bar.
On July 11, 2019, during the second day of witness testimony, the State
called Melissa Rosario, the nurse who had drawn defendant’s blood at JCMC.
She testified during cross examination, based on the blood draw orders, that
she drew two vials of defendant’s blood on November 16, 2017. Yet the
prosecutor realized he had five vials of what he believed to be defendant’s
blood in evidence.
Upon inspection, the State noticed that the five vials of blood were
labeled “John Doe,” with a collection date of April 4, 2017, and a patient
number that did not match any of the patient identification numbers on
defendant’s JCMC medical records. The State sent detectives to the hospital
on July 12, 2019. The investigation revealed that the five vials of blood the
State collected from JCMC on November 17, 2017, had come from a patient
who was admitted to the hospital in April of 2017 and died shortly thereafter.
Defendant’s blood sample had been irretrievably lost.
Apparently, throughout the entire process of the Hudson County
Prosecutor’s Office seizing the five vials of blood from JCMC, transferring
them to the State Lab for analysis, and then collecting them from the lab and
9 maintaining possession of them for more than one year before trial, no
detective, prosecutor, or investigator ever inspected the date of collection or
patient number written on the vials and realized the discrepancy. This is true
despite the incongruity between the lab’s report that defendant’s BAC was
0.376% -- more than four times the legal limit -- and the fact that no law
enforcement officer who responded to the crash reported observing any signs
that defendant was intoxicated.
The State reported the results of its investigation to the trial court and to
defense counsel on July 12.
D.
On Sunday, July 14, defendant moved to dismiss the indictment with
prejudice “because the state presented false testimony to the grand jurors.”
During oral argument the next day, the State emphasized that it had not
yet presented evidence of defendant’s BAC to the jury, and it was prepared to
proceed with trial “without the toxicology testimony,” subjecting its witnesses
to cross examination on its error. However, the State conceded that the
indictment was “palpably defective” because the grand jury had heard that
defendant’s BAC was 0.376%, and admitted that it did not know of a “curative
instruction or limiting instruction . . . that would allow th[e] trial to proceed”
under those circumstances. The State specifically argued that by moving to
10 dismiss the indictment, defendant was “not objecting to termination of the
trial” under N.J.S.A. 2C:1-9(d)(1), and there was also a “manifest necessity to
declare a mistrial” under N.J.S.A. 2C:1-9(d)(3).
Defense counsel responded that the “case needs to be dismissed.” He
maintained that his client should not be forced to endure a retrial because
defendant’s parents had already paid more than $100,000 “to defend their
son.” The State was “negligent in the way they handled this case,” defense
counsel urged, and what the prosecutor had admitted was “an outrage.”
The trial court reserved decision until later that day. On the record, the
court then held that because “defendant . . . consented to the mistrial,” a retrial
would only be barred if the prosecutor “intended to provoke a mistrial .” There
was “no evidence,” the court concluded, that the State “intended to provoke a
mistrial.” The court acknowledged that the manifest necessity standard
applied only “in a situation where the defendant does not consent” to a
mistrial, and again specifically found that defendant had consented, but went
on to reach manifest necessity anyway. Correctly detailing the factors set forth
in State v. Farmer, 48 N.J. 145 (1966), and State v. Loyal, 164 N.J. 418
(2000), the court held there was a manifest necessity to declare a mistrial
because the grand jury testimony relied heavily on defendant’s 0.376% BAC
level, and there was no “viable alternative to a mistrial.”
11 The judge then informed counsel that the jury would be discharged. The
trial was thus terminated before defense counsel introduced any witnesses or
evidence.
Three weeks later, defendant moved for reconsideration, again asking
the court to dismiss the indictment with prejudice. Defendant argued that the
State’s “reckless conduct shocks the conscience and rises to the level of willful
conduct which denied [his] constitutional right of ‘fundamental fairness.’”
Defendant also contended that the State violated his due process rights under
Brady v. Maryland, 373 U.S. 83 (1963), by not preserving his blood sample
and by sending another person’s blood to be tested.
The trial court held oral argument and raised the issue of double
jeopardy. Defendant then submitted a supplemental brief arguing that because
“the State goaded” him into moving to dismiss the indictment, his motion to
“bar the State from further prosecution should be granted.” The State filed an
opposition brief, arguing that it had not intended to provoke a mistrial or goad
defendant into moving to dismiss the indictment.
After a second oral argument, the trial court issued a written opinion.
The court held that the State violated defendant’s due process rights under
Brady. In support of that holding, the court found that the State’s “handling of
12 the blood vial evidence” was not only “negligent and inept,” but also
supported a finding of bad faith and inexcusable neglect:
Here, the State failed to execute the search warrant and secure the probative evidence and later relied upon non probative evidence to prosecute the defendant. The detectives here cannot be said to have followed their protocols or policies in good faith, and their failure to do so warrants a finding of bad faith. The neglect that occurred here is inexcusable. The State’s conduct amounted to a complete abrogation of the sworn duty of the State . . . .
[(emphasis added).]
As to double jeopardy, the trial court explained that “in order to
safeguard the Defendant’s rights,” it had “granted a mistrial and the dismissal,
without prejudice, of the indictment upon the application of the Defendant.”
(emphases added). Reiterating that the State’s handling of the blood evidence
was “inexcusable,” the trial court found the State nonetheless did not intend
“to ‘goad’ the Defendant into moving for a mistrial.” (quoting State v.
Gallegan, 117 N.J. 345, 358 (1989)).
The trial court also held that termination of the trial was supported by a
“manifest necessity.” According to the trial court, the State did not engage in
“the ‘oppressive’ conduct contemplated by” Farmer, 48 N.J. at 174-75,
because it was willing to continue the trial and subject its witnesses to cross
examination about the error, and because the same evidence through which the
13 State could have discovered the error prior to trial “was also available to the
Defendant.” The court noted that, under Farmer, it was required to consider
not only the rights of defendant, but also “the public right to have the accused
tried and punished if found guilty,” which was particularly important here
given the “seriousness of the crime charged.”
Because the State’s “inexcusable conduct” directly impacted the three
counts of the indictment that were “predicated upon a finding of the
Defendant’s BAC level,” the trial court dismissed counts three, four, and five
with prejudice. However, because defendant had not been “subjected to the
quantum of oppression, harassment, or egregious deprivation necessary to
warrant a dismissal” of counts one and two with prejudice, the trial court
denied defendant’s motion for reconsideration as to those two counts.
E.
Defendant appealed, arguing that the State’s conduct was so
“outrageous” that “due process principles absolutely bar[red]” a retrial. The
State did not cross-appeal the dismissal of counts three, four, and five with
prejudice. The Appellate Division invited the Office of the Public Defender to
participate as amicus curiae. The Public Defender asserted that the trial court
erred in concluding that defendant had consented to the mistrial in this case.
14 The Appellate Division held that retrial on counts one and two would not
violate double jeopardy because “the mistrial was justified on the grounds of
manifest necessity.” State v. Zadroga, 472 N.J. Super. 1, 8 (App. Div. 2022).
The Appellate Division acknowledged that it did not have access to the trial
transcripts, but “presume[d]”2 that the State had emphasized, during its
opening, “that defendant was heavily intoxicated at the time of the collision,”
and that witnesses had testified to the same. Id. at 22. “[O]nce the sudden
bombshell about the mistaken blood sample was revealed,”3 the Appellate
Division concluded, “there was no realistic way for the jurors to ignore that
enormous mistake. A limiting instruction would not have sufficed to cure the
massive prejudice to the State that defense counsel would surely exploit.” Id.
at 22-23 (emphasis added).
However, the court found that there was “ample non-alcohol-related
evidence” of defendant’s “criminally reckless driving to justify his re-
2 We consider it problematic that neither defendant nor the State provided the Appellate Division with trial transcripts, leaving the court to “presume” critical elements of the record. 3 Because the Appellate Division did not have the trial transcripts, it did not know that there was no “bombshell” revelation to the jury. Rather, the State discovered the error after the conclusion of Rosario’s testimony, and the motions that followed were argued outside the presence of the jury. The jury was discharged before learning anything about the mistaken identification of the blood samples as defendant’s. 15 prosecution on counts one and two.” Id. at 25. It therefore concluded that the
proper remedy was to permit the State to re-present counts one and two “to a
new grand jury, solely based on the reckless driving evidence without proof or
contentions of defendant’s intoxication or impairment.” Id. at 8 (emphasis
added); accord id. at 26 (barring the State, before a new grand jury or at trial,
from “offer[ing] proof of any kind to show that defendant was under the
influence of alcohol at the time of the collision”).
F.
Defendant, now represented by the Public Defender, petitioned for
certification, framing the question presented as: “When an unanticipated
problem with the State’s evidence causes prejudice to the State’s case midtrial
-- a problem that was in no way caused by Defendant -- can this ‘prejudice to
the State’ constitute a ‘manifest necessity’ to declare a mistrial without
triggering the double jeopardy bar to a re-trial?” The State did not file a cross-
petition.
We granted certification. 252 N.J. 325 (2022). We also granted leave to
the Attorney General and the Association of Criminal Defense Lawyers of
New Jersey (ACDL) to appear as amici curiae.
16 II.
Defendant advances several reasons why retrial should be barred. First,
defendant maintains, his double jeopardy claim must be analyzed under
Farmer, 48 N.J. 145, and not Kennedy, 456 U.S. 667, because he “did not
consent to the mistrial in any meaningful way.” Second, defendant contends
that under Farmer, “where the State’s inexcusable neglect created the need for
a mistrial,” there cannot be a manifest necessity and “double jeopardy
categorially bars retrial.” Third, if this Court disagrees and finds defendant
consented to the mistrial, it should “hold that our State constitutional double
jeopardy clause affords great[er] protection” than the Federal Constitution, and
“adopt the recklessness test articulated in” Johnson instead of Kennedy’s
intent-based test.
The State argues that double jeopardy does not bar retrial for two
independent reasons. First, it asserts that under Farmer, “termination of the
trial was proper because there was a manifest necessity.” Second, the State
urges that the less burdensome Kennedy standard, and not Farmer, should
apply because defendant consented to the mistrial. In the State’s view,
defendant’s motion to dismiss the indictment, even with prejudice, constituted
a clear waiver of his right “to have that particular trial completed by that
17 particular tribunal.” Because, under Kennedy, “the State did not goad
defendant into moving for a mistrial,” termination was proper.
The Attorney General maintains that, as to manifest necessity, there was
no alternative to granting a mistrial because the indictment itself was
defective, and no “curative instruction or evidentiary limit before the petit
jury” could fix that defect. The Attorney General also asserts that Farmer
should not apply because defendant consented to the mistrial. According to
the Attorney General, “[a] midtrial motion to dismiss an indictment,” even
with prejudice, “is intrinsically a motion to terminate the trial as a trial cannot
possibly continue if a judge dismisses the indictment.” The question is not
“whether the defendant is consenting to retrial,” the Attorney General alleges;
it is “whether the defendant is consenting to not get a verdict from the jury
that’s been impaneled.” Because defendant so consented, the Kennedy
standard should apply. Finally, the Attorney General urges this Court not to
adopt the standard articulated in Johnson.
The ACDL submits that “Double Jeopardy is the ‘stick’ that acts as a
deterrent against the State violating the Defendant’s due process rights at
trial,” and therefore must “bar the State from prosecuting the Defendant, a
second time, after its bad faith and inexcusable neglect caused the trial court to
declare a mistrial, so as not to prejudice the State.”
18 III.
A decision to dismiss an indictment is generally left to the sound
discretion of the trial court and is reviewed only for abuse of discretion. See
State v. Twiggs, 233 N.J. 513, 544 (2018). The decision to declare a mistrial
is similarly “entrusted to the sound discretion of the trial court,” and will be
reversed only when it constitutes “an abuse of discretion that results in a
manifest injustice.” State v. Harvey, 151 N.J. 117, 205 (1997). “Whether
‘manifest necessity’ or ‘the ends of public justice’ require declaration of a
mistrial depends on the unique facts of the case and the sound discretion of the
trial court.” Loyal, 164 N.J. at 435.
The Fifth Amendment to the United States Constitution, applicable to
the states through the Fourteenth Amendment, protects defendants from
repeated prosecutions for the same offense by guaranteeing that no person
shall “be subject for the same offence to be twice put in jeopardy of life or
limb.” Our Constitution provides that “[n]o person shall, after acquittal, be
tried for the same offense.” N.J. Const. art. I, ¶ 11.
Despite the arguably narrower language in our State Constitution, we
have “consistently interpreted the State Constitution’s double-jeopardy
19 protection as coextensive with the guarantee of the federal Constitution.”
State v. Miles, 229 N.J. 83, 92 (2017). This is perhaps because the protection
against double jeopardy has been long venerated in our state’s common law.
See Farmer, 48 N.J. at 168 (explaining that the difference in language between
the federal and state constitutional provisions was “without distinction in
meaning” in light of the “historical evolution and treatment” of the protections
against double jeopardy in our state).
Even before double jeopardy was explicitly prohibited in our state’s
1844 Constitution, courts in our state “recognized it, and acted upon it, as one
of the most valuable principles of the common law.” State v. Cooper, 13
N.J.L. 361, 370 (Sup. Ct. 1833). The framers of our 1844 Constitution then
codified the already “well settled principle of the common law, that no person
shall twice have his life or property endangered for the same offense.”
Proceedings of the New Jersey State Constitutional Convention of 1844 152
(1942); see also State v. Labato, 7 N.J. 137, 143-44 (1951) (“Immunity from
repeated jeopardy was one of the cherished basic liberties of the early common
law” and “constitutional guaranties against double jeopardy are [therefore]
merely declaratory of the common law.”).
Jeopardy “attaches after the jury is impaneled and sworn.” State v.
Allah, 170 N.J. 269, 279 (2002). At that point, the defendant has the right to
20 have the impaneled jury proceed to a verdict. Id. at 280. Double jeopardy
therefore protects “the right of the defendant to have his trial completed before
the first jury empaneled to try him.” Kennedy, 456 U.S. at 673 (emphasis
added); see also Wade v. Hunter, 336 U.S. 684, 689 (1949) (holding that the
federal Double Jeopardy Clause protects a criminal defendant’s “valued right
to have his trial completed by a particular tribunal”).
“However, termination of a trial after jeopardy attaches does not
necessarily prohibit subsequent re-prosecution. Only the improper termination
of proceedings bars retrial.” Allah, 170 N.J. at 280 (emphasis added) (citation
omitted).
Termination can be proper, and a retrial not barred by double jeopardy
principles, in two circumstances. First, where the defendant does not request
or otherwise consent to a mistrial, termination is proper and there is no bar to
retrial only if there is a “manifest necessity” to terminate the proceedings.
Loyal, 164 N.J. at 435. The manifest necessity standard protects “the
defendant’s interests in having his case finally decided by the jury first
selected while at the same time maintaining ‘the public’s interest in fair trials
designed to end in just judgements.’” Kennedy, 456 U.S. at 672 (quoting
Wade, 336 U.S. at 689). That is so because “[w]here the court finds a
sufficient legal reason and manifest necessity to terminate a trial, the
21 defendant’s right to have his initial trial completed is subordinated to the
public’s interest in fair trials and reliable judgments.” Loyal, 164 N.J. at 435.
Although “manifest necessity requires a ‘high degree of necessity,’
making that judgment call is ‘reserved to the broad discretion of the trial
judge.’” State v. Smith, 465 N.J. Super. 515, 536 (App. Div. 2020) (quoting
Orie v. Sec’y Pa. Dep’t of Corr., 940 F.3d 845, 851 (3d Cir. 2019)). “[T]here
are no rigid rules as to what constitutes” a manifest necessity. Ibid. Instead,
we have previously set forth the following considerations: (1) “Did the trial
court properly exercise its discretion so that a mistrial was justified?” (2) Did
the trial court “have a viable alternative” to granting a mistrial? (3) “[W]hat
circumstances created the situation” that justified the mistrial, e.g., “[w]as it
due to prosecutorial or defense misconduct?” (4) “Will a second trial accord
with the ends of public justice and with proper judicial administration?”
(5) “Will the defendant be prejudiced by a second trial, and if so, to what
extent?” Loyal, 164 N.J. at 437 (quoting State v. Rechtschaffer, 70 N.J. 395,
410-11 (1976)).
Second, when the defendant requests or otherwise consents to a mistrial,
manifest necessity need not be shown. Instead, under the federal Due Process
Clause, termination is not improper and there is no bar to retrial as long as the
prosecutor did not “‘goad’ the defendant into moving for a mistrial.”
22 Kennedy, 456 U.S. at 673, 676. In other words, when the defendant
successfully moves for a mistrial, retrial is barred only if the State “intended to
provoke the defendant into moving for a mistrial.” Id. at 673, 679 (emphasis
added); see also id. at 676 (“Only 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 to a second trial after having succeeded in
aborting the first on his own motion.”).
We adopted the Kennedy standard in Gallegan, 117 N.J. at 357-58
(discussing Kennedy and assessing “whether the prosecution intended to
subvert [the] defendants’ protection against double jeopardy by prosecutorial
misconduct”), and have continued to apply it since, see, e.g., State v. Brown,
236 N.J. 497, 527-28 (2019) (“[T]he bar of double jeopardy is limited to ‘those
cases in which the conduct giving rise to the successful motion for a mistrial
was intended to provoke the defendant into moving for a mistrial .’” (quoting
Kennedy, 456 U.S. at 679)).
In 1978, our Legislature chose to codify constitutional double jeopardy
protections. Under N.J.S.A. 2C:1-9(d), “[a] prosecution of a defendant for a
violation of the same provision of the statutes based upon the same facts as a
former prosecution is barred” if the first trial “was improperly terminated.”
The statute specifically provides that
23 [t]ermination under any of the following circumstances is not improper:
(1) The defendant consents to the termination or waives, by motion to dismiss or otherwise, his right to object to the termination.
....
(3) The trial court finds that the termination is required by a sufficient legal reason and a manifest or absolute or overriding necessity.
[N.J.S.A. 2C:1-9(d).]
IV.
We hold that the trial court did not abuse its discretion in finding that
termination of the trial was supported by a manifest necessity. We therefore
affirm.
In defendant’s view, under Farmer, “a manifest necessity permits retrial
only where the need for the mistrial was not created by the State’s bad faith or
inexcusable neglect.” (emphasis added). Where there is a finding of bad faith
or inexcusable neglect on the part of the State, defendant maintains, retrial is
categorically barred by Farmer. We disagree.
24 Defendant’s argument is based on two passages from Farmer that,
considered in isolation, could be read to preclude a finding of manifest
necessity if the State acted in bad faith or was guilty of inexcusable neglect .
The first reads:
If in [the trial court’s] judgment emergent conditions come into being which persuade him that the ends of justice for the defendant and the State cannot be achieved without aborting the trial, neither the Federal nor the State Constitution proscribes such an order. This is particularly true where the circumstances which to him compel the order do not bespeak bad faith or oppressive conduct by the prosecution or a desire or effort to improve the chances of conviction at a subsequent trial . . . .
[48 N.J. at 171 (emphasis added) (citation omitted).]
The second is similar:
If some unexpected, untoward and undesigned incident or circumstance arises which does not bespeak bad faith, inexcusable neglect or inadvertence or oppressive conduct on the part of the State, but which in the considered judgment of the trial court creates an urgent need to discontinue the trial in order to safeguard the defendant against real or apparent prejudice stemming therefrom, the Federal and State Constitutions do not stand in the way of declaration of a mistrial.
[Id. at 174 (emphasis added).]
However, four features of Farmer make clear that it did not categorically
bar retrial even if there is a finding that the State’s conduct reflected bad faith
or inexcusable neglect. 25 First, Farmer acknowledges that “there is no over-all formula, no hard
and fast rule for determining when an order of mistrial will cause the jeopardy
bar to spring into being, [and so] each case must depend upon its own facts and
the urgency of its circumstances.” Id. at 177. No “hard and fast rule” for
determining when double jeopardy bars a retrial means that even a finding of
bad faith or inexcusable neglect will not always bar a second trial.
Second, Farmer emphasizes the “wide range of discretion” in finding a
manifest necessity “recognized in the trial judge, who has his finger on the
pulse of the proceedings.” Id. at 171 (explaining further that, “[i]n this
sensitive area[,] appellate courts must realize that under our system the
conduct of a trial is committed to the trial judge, and that in appraising the
exercise of his discretionary action a wise and tolerant restraint must be
practiced if the separate levels of the judicial process are to be maintained”).
Placing a wide range of discretion in the trial judge is not consistent with
forbidding the judge from finding a manifest necessity if he also finds the
State’s conduct demonstrated bad faith or inexcusable neglect.
Third, Farmer twice explains that appellate courts should not find an
abuse of discretion where the trial court declares a mistrial to protect a
defendant’s interests. See ibid. (“[A]ppellate reluctance to interfere with a sua
sponte declaration of a mistrial should be even more pronounced where it is
26 plain that a primary motive for the trial judge’s course was solicitude for the
defendant’s interests.”); id. at 175 (observing that if a court declares a mistrial
“to safeguard the right of the defendant to a full and fair trial . . . there is even
less basis for a claim of trespass upon the privilege against double jeopardy ”).
As we discuss further below, a trial court can find the State’s conduct
consistent with bad faith and inexcusable neglect and still find a mistrial
necessary to protect the defendant’s rights.
Fourth, the Farmer Court acknowledged that a declaration of manifest
necessity must balance “the right of the accused to be prosecuted fairly and not
oppressively” against “the societal right to have the accused tried and punished
if found guilty.” Id. at 175 (recognizing “the right of society to have its trial
processes applied fully and fairly in the due administration of the criminal
law”). Society’s right to prosecute those who commit crimes can exist even
when the trial court determines that a particular action of the State reflected
bad faith or inexcusable neglect.
We therefore do not read Farmer to establish a per se rule that, whenever
a mistrial follows the State’s bad faith or inexcusable neglect, retrial is barred
on all counts.
We also decline defendant’s invitation to create such a rule. We instead
find that application of the fact-specific balancing tests set forth in Farmer and
27 Loyal, which weigh all circumstances and consider both the public’s interest
and the defendant’s rights, is the best course when the State’s non-intentional
misconduct leads to a mistrial.
The trial court did not abuse its discretion in balancing those interests
here. Several points bear mentioning.
First, the ACDL argues that “[i]nstead of declaring a mistrial, the court
should have issued a corrective or limiting instruction regarding the State’s
incorrect assertions about the Defendant’s B.A.C.” It is true that a trial court
abuses its discretion in finding a manifest necessity “if the court has an
appropriate alternative course of action.” Allah, 170 N.J. at 280-81. As we
have observed, “a curative instruction, a short adjournment or continuance, or
some other remedy, may provide a viable alternative to a mistrial, depending
on the facts of the case.” State v. Smith, 224 N.J. 36, 47 (2016).
The trial court did not abuse its discretion in finding there was no viable
alternative to a mistrial here. Defendant moved to dismiss the indictment
“because the state presented false testimony to the grand jurors.” There is no
curative instruction for that, no adjournment that can cure an indictment that
was based on false testimony. And although the State indicated it was ready to
proceed with trial without the toxicology evidence, submitting its witnesses to
28 cross examination on its error, defense counsel insisted that the “case need[ed]
to be dismissed.” The “unique circumstances of the case” must guide the
decision as to whether an alternative to a mistrial exists. Ibid. Once the trial
judge held that the grand jury relied heavily on defendant’s 0.376% BAC
level, he did not abuse his discretion in finding “no viable alternative to a
mistrial.”
Second, defendant frames the question presented as whether “prejudice
to the State” can “constitute a ‘manifest necessity’ to declare a mistrial without
triggering the double jeopardy bar to a re-trial.” (emphasis added.) Defendant
is correct that the Appellate Division stated “once the sudden bombshell about
the mistaken blood sample was revealed . . . [a] limiting instruction would not
have sufficed to cure the massive prejudice to the State that defense counsel
would surely exploit.” Zadroga, 472 N.J. Super. at 22-23 (emphasis added).
However, the Appellate Division did not have access to the trial transcripts,
and thus was without a record of what actually happened at trial. And the
“wide range of discretion” in finding a manifest necessity is recognized not in
the Appellate Division, but “in the trial judge, who has his finger on the pulse
of the proceedings.” Farmer, 48 N.J. at 171.
Here, the trial judge based his decision not on a concern that the State
would be prejudiced by continuing with the trial, but by a desire to avoid
29 prejudicing the defendant by forcing him to continue with a trial when the
grand jury may have based its decision to indict on false testimony, and when
defendant therefore may not have been indicted at all without the BAC
evidence. The trial court explicitly noted that it granted a mistrial “in order to
safeguard the Defendant’s rights.” (emphasis added). We have no basis to
upset that finding. Like in Farmer, notwithstanding that sentence in the
Appellate Division’s opinion, the trial court’s primary motive for granting the
mistral “was solicitude for the defendant’s interests.” 48 N.J. at 171.
Third, defendant contends that “allowing a retrial in this situation would
allow the State to benefit from its own misconduct.” The ACDL goes further,
arguing that allowing a retrial would allow the State to “adjust its own strategy
and tactics” in response to defendant’s strategy during the first trial and also to
fix “[m]istakes in jury selection, unfavorable evidentiary rulings, poor
feedback from the jury, lack of witness availability, etc.”
We disagree that allowing a retrial here would confer any unfair
advantage on the State. Trial ended before defendant called a single witness or
introduced a single piece of evidence. Defendant conceded at oral argument
that the State did not intentionally goad a mistrial, and there was no “mistake
in jury selection, unfavorable evidentiary ruling, or poor feedback from the
jury” that the State sought to escape. We have previously held that the
30 “essence to the doctrine of jeopardy” is “that the State may not retreat from the
field when its case turns sour and then be permitted to sally forth on a future
day before a new jury when its case is refreshed and reinforced.” Gallegan,
117 N.J. at 346 (quoting State v. Stani, 197 N.J. Super. 146, 151 (App. Div.
1984)). The State did no such thing here.
Fourth, we do not discount the “embarrassment, expense and ordeal and
. . . continuing state of anxiety and insecurity” that any trial places upon a
defendant. See Green v. United States, 355 U.S. 184, 187 (1957). But
defendant will not suffer any substantial prejudice beyond what is inherent in
any trial or retrial after appeal. For example, defendant does not contend that
his witnesses or evidence are no longer available, and we do not find that he
will otherwise be prejudiced in putting forth a defense in any materi al way.4
Like in Farmer, “defendant has not suffered any substantial prejudice” and
“the mistrial was not caused by any intention of the prosecution to take an
undue advantage, or to oppress [defendant] in his effort to defend himself.”
See 48 N.J. at 184.
Fifth, although the trial court found that the State’s handling of the blood
evidence reflected bad faith and inexcusable neglect, it did not find that the
4 Defense counsel conceded at argument before this Court that funds defendant’s family spent on the first trial do not suffice to show prejudice for purposes of the Double Jeopardy Clause. 31 State’s conduct was intentional, and defendant concedes that the State did not
engage in any intentional misconduct. The trial judge held that the State did
not engage in “the ‘oppressive’ conduct contemplated by” Farmer because it
was willing to continue the trial and subject its witnesses to cross examination
about its error.
Defendant contends that the “core purpose” of the Double Jeopardy
Clause is to protect “defendants against the harassment of unfair, repeated
prosecutions.” But the trial court explicitly found that defendant had not been
“subjected to the quantum of oppression, harassment, or egregious deprivation
necessary to warrant a dismissal” of counts one and two with prejudice. We
see no basis to disturb that finding. See, e.g., Brown, 236 N.J. at 528 (holding
that “the bar of double jeopardy [did] not apply” because there was no
evidence or allegation that the State acted willfully “and no evidence of
prosecutorial provocation or other willful misconduct”).
Finally, as the trial court found, the nature of the crime weighs strongly
in favor of retrial on counts one and two. The black box on defendant’s car
showed it travelling 85 to 88 miles per hour three seconds before the crash, on
a road that was one lane in each direction and had “a lot of curves.” Zadroga,
472 N.J. Super. at 11. The posted speed limit was 25 miles per hour. There
32 was evidence that defendant’s car was over the yellow lines, in Carvache’s
lane, at the time of the collision. And a person died in the crash.
Dismissal of charges “and a permanent bar to retrial” is “strong
medicine” in any case. People v. Batts, 68 P.3d 357, 370 (Cal. 2003). “[B]y
denying courts power” to try a defendant for a crime, “the purpose of law to
protect society from those guilty of crimes” is frustrated. Kennedy, 456 U.S.
at 672 (quoting Wade, 336 U.S. at 689).
Here, the trial court did not abuse its discretion in holding that the State
should be permitted to retry defendant on those counts that did not depend on
intoxication. And the Appellate Division did not err in permitting the State to
re-present counts one and two “to a new grand jury, solely based on the
reckless driving evidence without proof or contentions of defendant’s
intoxication or impairment,” a determination the State does not challenge.
Zadroga, 472 N.J. Super. at 8.
Prohibiting the State from putting forth any evidence or argument that
defendant was intoxicated acknowledges the harm the State caused defendant
by grossly mishandling the blood evidence. And allowing the State to present
the charges of aggravated manslaughter and death by auto to a new grand jury ,
without evidence of intoxication, recognizes that a human being died in this
crash.
33 C.
Because we conclude that the trial court did not abuse its discretion in
finding that the mistrial was supported by manifest necessity, we need not
reach whether defendant consented to the mistrial. Cf. Smith, 465 N.J. Super.
at 532 n.14 (holding that the mistrial was supported by manifest necessity and
declining to address whether defendants waived their right to object to the
termination).
We also need not decide whether, when a defendant consents to a
mistrial, we should continue to follow our precedent and apply Kennedy’s
prosecutorial-misconduct-that-intended-to-provoke-a-mistrial standard or
instead hold that our State Constitution’s Double Jeopardy Clause provides
some greater protection than the Federal Double Jeopardy Clause. We decline
to comment on defendant’s request that we adopt Pennsylvania’s rule, set forth
in Johnson, that when a defendant consents to a mistrial, retrial should be
barred if prosecutorial misconduct is “undertaken recklessly, that is, with a
conscious disregard for a substantial risk that [denial of a fair trial] will be the
result.” 231 A.3d at 826.
The judgment of the Appellate Division is affirmed, and the case is
remanded to the trial court for further proceedings.
34 CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, and FASCIALE join in JUSTICE WAINER APTER’s opinion. JUDGE SABATINO (temporarily assigned) did not participate.