STATE OF NEW JERSEY v. RONELD L. LOGORY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3582-04T33582-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONELD L. LOGORY,

Defendant-Appellant.

_____________________________________________________

 

Submitted September 26, 2006 - Decided October 19, 2006

Before Judges Lisa and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, MON-2001-745.

Matthew W. Reisig, attorneys for appellant (James P. Brady, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Roneld L. Logory, appeals the Law Division's February 4, 2005 decision on de novo review of the record of the Neptune City Municipal Court. The record consisted of the December 13, 2000 and January 10, 2001 transcripts of the trial of defendant on charges of violation of N.J.S.A. 39:4-50, driving while under the influence of alcohol (DUI), and N.J.S.A. 39:4-88(b), improper lane change. Judge DeStefano found that the retrial of defendant on July 12, 2004, as a result of Municipal Judge Apostolou's sua sponte declaration of a mistrial on January 10, 2001, did not constitute a double-jeopardy violation. We affirm.

The trial of defendant's charges began before Judge Apostolou on December 13, 2000, with testimony being given by arresting Trooper Carpanito and Susan Hewitson, an administrative assistant with the Neptune City Police Department. One joint exhibit, a police video, was marked into evidence. Trial continued on January 10, 2001. Trooper Carpanito's testimony was completed. David M. Ditze, a defense breathalyzer consultant, testified and the direct testimony of defendant began. Eight exhibits produced by the State were admitted into evidence.

The trial record of January 10, 2001 is replete with contentious argument by defense counsel with Judge Apostolou over evidence rulings, counsel ignoring the judge's rulings, trial interruptions, counsel's harassment of Trooper Carpanito, and unprofessional exchanges between defense counsel and the judge. As an example, during the cross-examination of Trooper Carpanito, in response to Judge Apostolou sustaining the prosecutor's objection to a question posed by defense counsel, counsel responded by saying, "that's absurd." On numerous occasions, counsel also refused to abide by the judge's request, after making his ruling, that counsel should continue with the trial.

On January 10, 2001, during the direct examination of defendant by defense counsel, the judge became so upset by counsel's actions that the following exchange took place between the judge and counsel.

MR. REISIG: And you've just raised your voice on the record. I want the --

THE COURT: Yes, I have Mr. Reisig.

MR. REISIG: I want the record to reflect that.

THE COURT: Because I'm tired of your antics all day long. I have been trying to be respectful of you. I've tried to deal with you in a respectful manner as an officer of the court. I haven't jumped on you before with regards to the many, many multitude of objectionable materials that you are going through with regards to it. Your demeanor in the courtroom.

Let's stick to it. I've ruled as such. Move on please.

MR. REISIG: My demeanor in the courtroom has never been --

THE COURT: Move on next, Mr. Reisig. Move on next.

MR. REISIG: My demeanor in the courtroom has never --

THE COURT: Call an officer up. You move on or I'm having you arrested on the spot. This is about the 10th time in my court that you're doing these things to me. I will not stand for it.

MR. REISIG: I'm not doing anything to you.

THE COURT: You in fact move on with regards this, or I will have you arrested for contempt in the face of the court.

MR. REISIG: But I'm allowed to make a record.

THE COURT: Mr. Reisig, do as I say please. Move on to the next question.

MR. REISIG: You're foreclosing me from making a full record.

THE COURT: Move on to the next question. Bring an officer up. Move on to the next question.

Shortly, thereafter, the final exchange took place between counsel and the judge.

MR. REISIG: And just let the record reflect that there is now an officer that has been summoned to the courtroom.

THE COURT: Yes, there is. I requested it, and I want the officer to remain in the courtroom. And you can state all you want, Mr. Reisig, about that. And he will remain in the courtroom. You're absolutely right.

MR. REISIG: Oh, so I can make a record now?

THE COURT: If you want to be a wise guy, Mr. Reisig, I'm going to explain something to you. I will be filing ethics complaints against you myself if you don't watch yourself. Do you understand that, sir?

MR. REISIG: Well, I understand that you've just threatened me in open court, yes.

THE COURT: I have threatened to file ethics complaints against you, which is my right and privilege. Because in this Court's opinion, you are being rude and arrogant in front of me, being antagonistic beyond the scope of what an attorney should do zealously on behalf of their client. That is my comment to you, Mr. Reisig. You may take it as any way you like. Proceed please with regards to your direct --

MR. REISIG: Can I respond to what the Court just stated?

THE COURT: No, you may not. You may not.

MR. REISIG: So, you won't let me respond.

THE COURT: No sir, I will not. You may now continue on with the trial please.

MR. REISIG: Because you've said I had antics in this courtroom.

THE COURT: The case is over. I'm leaving today. I'm going to declare a mistrial at this time because I'm going to be filing ethics complaints against Mr. Reisig. And I'm stating that on the record.

Mr. Reisig, do not take any other cases in front of me in any of my other courts please with regards this particular situation.

MR. REISIG: Oh, I'll take cases, Judge. You'll have to disqualify yourself. I'll take the cases.

THE COURT: No, sir.

MR. REISIG: Well, you can't tell me what I can and cannot do with regard to clients.

THE COURT: I'm declaring a mistrial because I cannot be neutral and detached at this point in time with regards this particular situation. I'm done with Mr. Reisig.

Ultimately, the charges were transferred to the Neptune
Township Municipal Court for retrial. The retrial did not take place until July 12, 2004, because of an involved procedural history not relevant to this appeal. Judge Wernick found defendant guilty of both charges, based on the testimony contained in the December 13 and January 10 transcripts of the trial before Judge Apostolou, the exhibits admitted in evidence, and defendant's additional testimony at the retrial.

Defendant appealed his conviction to the Law Division on double-jeopardy and substantive grounds. On February 4, 2005, Judge DeStefano rejected defendant's claim of double-jeopardy and convicted defendant anew on both charges after de novo review of the record before Judge Apostolou and Judge Wernick.

On appeal, the sole issue raised by defendant is whether the municipal court judge's declaration of a mistrial should have barred the retrial of defendant, because defendant's retrial violated the constitutional proscription against double-jeopardy.

The Fifth Amendment of the United States Constitution provides in pertinent part, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The New Jersey Constitution embodies the doctrine of double-jeopardy in narrower terms. Paragraph 11 states that "no person shall, after acquittal, be tried for the same offense." N.J. Const. art. 1, P 11. The purpose of the proscription against double-jeopardy is to ensure that a person is not tried twice for the same offense. State v. Currie, 41 N.J. 531, 535 (1964).

N.J.S.A. 2C:1-9 sets forth those situations in which subsequent prosecutions are barred by former prosecutions for the same offense. Subsection d. provides in applicable part:

The former prosecution was improperly terminated. Except as provided in this subsection, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and . . . in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts. Termination under any of the following circumstances is not improper:

(3) The trial court finds that the termination is required by a sufficient legal reason and a manifest or absolute or overriding necessity.

The basic tenet of subsection d. is that double-jeopardy bars a subsequent prosecution if there was an "improper termination" of the former prosecution after jeopardy attached. Ibid. In a bench trial where the judge is both the trier of fact and the finder of law, jeopardy attaches when the judge begins to hear the evidence. Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 1062, 43 L. Ed. 2d 265, 274 (1975).

The applicable exception to the basic premise barring retrial requires an examination of subparagraph (3). This statutory language codifies the 'manifest necessity' and 'ends of public justice' tests expressed in United States v. Perez, 22 U.S. 579, 580, 6 L. Ed. 165, 9 Wheat. 579 (1824). See State v. Loyal, 164 N.J. 418, 435-37 (2000). Therefore, a retrial remains consistent with the Fifth Amendment when the trial judge deems that "substantial justice cannot be attained without discontinuing the trial." Interest of D.P., 232 N.J. Super. 8, 14 (App. Div. 1989) (quoting Gori v. United States, 367 U.S. 364, 368 81 S. Ct. 1523, 1526, 6 L. Ed. 2d 901, 904 reh'g. denied 368 U.S. 870 82 S. Ct. 25 L. Ed. 2d 70 (1961)). Further, a judge may recuse himself from presiding over the case when he feels that he is no longer capable of being neutral and detached. State v. Utsch, 184 N.J. Super. 575, 581 (App. Div. 1982. Additionally, Rule 1:12-1(f) provides that "the judge of any court shall be disqualified on the court's own motion and shall not sit in any matter . . . where there is any . . . reason which might preclude a fair and unbiased hearing and judgment." Ibid.

The declaration of a mistrial and the availability of double-jeopardy is determined on a case-by-case basis. State v. Hudson, 139 N.J. Super. 360, 363 (App. Div. 1976). (citations omitted). In reviewing the declaration of a mistrial, an appellate court will consider a number of factors, including whether viable alternatives existed, what circumstances created the mistrial, will a second trial accord with the ends of public justice, and "will the defendant be prejudiced by a second trial, and if so, to what extent." Id. at 410-11. State v. Rechtschaffer, 70 N.J. 395, 410-11 (1976).

Defendant contends that because Judge Apostolou could have exercised reasonable alternatives to declaring a mistrial as a result of counsel's perceived transgressions, double-jeopardy barred defendant's subsequent prosecution before Judge Wernick. We disagree.

Our decision in Utsch is applicable here. In Utsch, the defendant was charged on January 24, 1981 with DUI. The prosecutor failed to comply with defendant's written request for discovery made several days after defendant was charged. Id. at 577. After trial began on March 11, 1981, the prosecutor called the arresting officer to testify. Id. at 578. Defense counsel then moved for an order prohibiting the officer's testimony because of the prosecutor's failure to answer defendant's discovery request and for failure of the prosecutor to furnish him with the police sobriety testing reports. Ibid. During argument on these motions, defense counsel, without provocation, accused the judge of bias and prejudice and was abrasive toward and accusatory of the judge. Ibid. The judge adjourned the trial so further discovery could be given, finding defendant was entitled to the discovery, but that the failure to furnish was inadvertent. Ibid.

At the end of March 1981, defense counsel received a letter from the municipal court clerk, advising that the matter would be heard de novo on April 16, 1981. Ibid. The matter was rescheduled to June 26, 1981 before a different municipal court judge, because the original judge had disqualified himself because of accusations made by defense counsel against him at the initial hearing. Id. at 578-79. Defense counsel contended that such a new hearing violated the defendant's constitutional right against double-jeopardy. Id. at 579. The judge reviewed the tapes of the first hearing and concluded that the adjourned date constituted a continuation of the original hearing and the defendant would not be prejudiced. The judge also found there was no constitutional impediment to the trial proceeding. Ibid.

On trial de novo before the Law Division, the judge found there was no violation of defendant's constitutional guarantee against double-jeopardy. Id. at 579. On appeal, we found that the initial judge's disqualification did not produce a double-jeopardy consequence and that the continued proceeding did not constitute a new hearing. Id. at 581. We stated:

Clearly, a trial judge not only has the right but, moreover, has the obligation to recuse himself on his own motion if he is satisfied that there is good cause for believing that his not doing so "might preclude a fair and unbiased hearing and judgment, or . . . might reasonably lead counsel or the parties to believe so." See R. 1:12-1(f). The unwarranted personal attack made by defendant's attorney on the municipal court judge at the initial hearing . . . justified his decision to recuse himself. That recusal, however, did not prevent the original trial from proceeding.

[Ibid.]

In declaring a mistrial sua sponte, Judge Apostolou stated that he was unable to remain neutral and detached due to the behavior of defense counsel. Judge DeStefano found counsel's behavior in front of Judge Apostolou to be unprofessional. Our review of the record substantiates numerous instances of defense counsel's obstructive and unprofessional conduct.

Defendant argues that the declaration of mistrial was improper because Judge Apostolou did not find counsel in contempt in the presence of the court (Rule 1:10-3), did not fine him, did not have an attorney ethics complaint filed against him, and did not bar counsel from appearing before him in the future. While sanctions against defense counsel were not imposed by Judge Apostolou, the record clearly shows that Judge Apostolou considered taking such action. The application of any of these remedies, however, would not have addressed the basis for the judge's declaring a mistrial.

Defendant contends the judge should have declared a brief recess or adjourned the trial. However, the declaration of a brief recess or an adjournment would also not have satisfied the judge's inability to remain fair and unbiased. Additionally, defendant was not unfairly prejudiced by any additional legal fees he may have been required to pay counsel to properly defend the charges in a second prosecution. Even had the judge declared an adjournment, an additional court appearance would have been necessary.

Trial judges are granted broad discretion in recusal decisions and in decisions to grant or deny a mistrial. See State v. Winters, 96 N.J. 640, 646-47 (1984); State v. DiRienzo, 53 N.J. 360, 383 (1969); Greenberg v. Stanley, 30 N.J. 485, 503 (1959). Our thorough review of the record clearly supports Judge DeStefano's finding on de novo review that defendant's constitutional right against double-jeopardy was not violated by his retrial before Judge Wernick. We are convinced that "manifest necessity" and the "ends of public justice" required that the judge recuse himself when he could no longer remain fair and impartial as a result of defense counsel's actions and, therefore, necessitated his sua sponte declaration of a mistrial.

Accordingly, Judge DeStefano's February 4, 2005 decision finding defendant's double-jeopardy rights were not violated is affirmed.

Affirmed.

 

The sufficiency of the evidence, from which Judge Wernick in the Municipal Court and Judge DeStefano, after a de novo trial in the Law Division found defendant guilty of these charges, is not challenged on this appeal.

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A-3582-04T3

October 19, 2006