STATE OF NEW JERSEY v. TERRY SCOTT SULLIVAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4042-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY SCOTT SULLIVAN,

Defendant-Appellant.

____________________________

November 18, 2010

Submitted October 20, 2010 - Decided

Before Judges Gilroy and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-10-0417.

Yvonne Smith Segars, Public Defender, attorney for appellant (Rasheedah Terry, Designated Counsel, of counsel and on the brief).

ThomasS. Ferguson, Warren County Prosecutor, attorney for respondent (Christine Engiles, Assistant Prosecutor, on the brief).

PER CURIAM

On October 17, 2007, a Warren County Grand Jury charged defendant Terry Sullivan with third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count one); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count four). The charges were tried to a jury on July 8 and 9, 2008; on the second day of trial, the court granted defendant's motion for a mistrial. Following the mistrial, defendant filed a motion seeking to bar the State from retrying him on the same charges based on the principle of double jeopardy, contending that prosecutorial misconduct had goaded defense counsel into moving for a mistrial. The court denied the motion on August 6, 2008.

On August 27, 2008, defendant entered into a plea agreement with the State, pleading guilty to count one in exchange for the State recommending dismissal of the remaining three counts, and that defendant be sentenced to two years of probation with time served. On November 14, 2008, the court sentenced defendant on count one in accordance with the terms of the plea agreement and dismissed the remaining three counts. The court also imposed all appropriate fines and penalties.

On appeal, defendant argues "[t]he trial court abused its discretion when it denied defense counsel's motion to bar retrial based on double jeopardy following a mistrial as the assistant[]prosecutor purposely provoked defense counsel's request for said mistrial." We affirm.

The charges against defendant stem from defendant having stabbed Kevin Burke1 in the abdomen during an altercation between them. On the day of the assault, Burke, together with his two acquaintances, Keno Prunto and Brandon Saunders, knocked on the front door of a home in Phillipsburg where defendant resided with his then-girlfriend Melissa Gill. At the men's requests, Gill left her home and walked outside with the men toward Burke's automobile, where Gill engaged in a conversation with Prunto. After about fifteen minutes, defendant exited the home, walked toward Gill, and angrily yelled at Gill demanding that she return home. Gill told defendant that she was not going to immediately return, and defendant punched her on the left side of her face. Burke and Prunto told defendant to stop yelling at Gill. A physical altercation ensued between defendant and Burke, during which Burke struck defendant and defendant "pulled a knife out of his pocket and stabbed [Burke]."

The State called Gill as its second witness. On direct examination, Gill testified that, although she knew Prunto for a couple of months prior to the incident, she was never romantically involved with him.

On cross-examination, when confronted with passages from her diary that referred to Prunto as her "honey," Gill admitted that she was more than a passing acquaintance of Prunto and that she had a sexual relationship with Prunto in the past year. Gill also testified on cross-examination that she had written in her diary that she "will make [defendant's] life a living hell, I [f_ _ king] hate him forever."

On re-direct, the prosecutor asked Gill whether her animus was caused by defendant beating her for seven years, and whether she had obtained a final restraining order against defendant. Defense counsel objected and moved for a mistrial. The court granted the motion, and the prosecutor indicated that the State intended to retry defendant. Defense counsel objected, arguing double jeopardy, asserting that the prosecutor had goaded him into moving for a mistrial knowing that the credibility of one of the State's primary witnesses had been placed into question. The court overruled defense counsel's objection to a retrial.

On August 6, 2008, the court again denied defendant's motion seeking to bar a retrial based on double jeopardy. The court found that the prosecutor had not deliberately asked the objectionable questions with the intent of goading defense counsel into moving for a mistrial, but rather had only acted in the heat of trial seeking to rehabilitate the witness by asking questions concerning a statement in her diary that she hated Sullivan. On August 27, 2008, defendant pled guilty to third-degree aggravated assault; and on November 14, 2008, the court sentenced defendant to two years of probation with time served.

On appeal, defendant's sole argument is that the trial court abused its discretion when it denied defendant's motion to bar the State from retrying him based on double jeopardy, contending that the prosecutor had purposely provoked defense counsel into requesting a mistrial. We reject this argument and affirm for several reasons.

Procedurally, defendant did not preserve his right to appeal the denial of his motion to prohibit the State from retrying him on the same charges that were before the court on his first trial. R. 3:9-3(f); see also State v. Knight, 183 N.J. 449, 470 (2005); State v. Crawley, 149 N.J. 310, 316 (1997); State v. Dively, 92 N.J. 573, 577-78 (1983).

Substantively, we conclude that the trial court did not err in denying defendant's motion seeking to bar the State from retrying him. "The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Widmaier, 157 N.J. 475, 489-90 (1999). "Although the language of the New Jersey Constitution simply provides that '[n]o person shall, after acquittal, be tried for the same offense,' N.J. Const. art. I, 11, this protection is at a minimum co-extensive with that of the United States Constitution." State v. Womack, 145 N.J. 576, 582, cert. denied, 519 U.S. 1011, 117 S. Ct. 517, 136 L. Ed. 2d 405 (1996).

In a jury trial, "jeopardy attaches to a defendant when he is put on trial in a court of competent jurisdiction upon a valid indictment and a jury is impaneled and sworn to determine the issue of his guilt or innocence of the crime charged." State v. Farmer, 48 N.J. 145, 169 (1966), cert. denied, 386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967). Put simply, "jeopardy attaches after the jury is impaneled and sworn." State v. Allah, 170 N.J. 269, 279 (2002).

Generally, the State is not prohibited from retrying a defendant when that case is mistried on motion of the defendant, State v. Gallegan, 117 N.J. 345, 357-58 (1989), because "the decision to abort the trial is within the [defendant's] power and control." State v. Torres, 328 N.J. Super. 77, 86 (App. Div. 2000). "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." Id. at 88 (quoting Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S. Ct. 2083, 2089, 72 L. Ed. 2d 416, 424 (1982)).

In determining whether a prosecutor has goaded a defendant's attorney into requesting a mistrial, the trial court should apply a four-prong test. The factors include: "(1) whether there was a sequence of overreaching or error prior to the error resulting in the mistrial, (2) whether the prosecutor resisted the motion for a mistrial, (3) whether the prosecutor testified, and the court below found, that there was no intent to cause a mistrial, and (4) the timing of the error." Id. at 88. The four-prong test weighs heavily against defendant's argument.

First, the record is devoid of any prosecutorial misconduct before the questioning that led to the mistrial. Second, the record shows that the prosecutor impliedly argued against the court granting a mistrial, contending that the court should have admitted the N.J.R.E. 404(b) evidence because defense counsel had opened the door for its admission during his cross-examination of Gill.

Third, although the court did not conduct an evidentiary hearing when ruling on the motion to bar the re-trial, the judge who presided over the trial determined that the prosecutor had not goaded anyone. Rather, the judge found that the prosecutor's questioning of Gill "was [an] emotional response to the question which needed to be answered, but it could have been answered in another way." The judge had the benefit of presiding over the trial and listening to the cross-examination and re-direct examination of Gill. Having had the benefit of the feel of the case, we find no good reason to disturb the trial court's conclusion that the prosecutor did not propound the objectionable questions on re-direct examination to goad defense counsel into moving for a mistrial.

Lastly, as to the fourth Torres factor, the mistrial occurred at the very beginning of the trial. The State anticipated calling approximately fifteen witnesses, and Gill was only the second witness. Because the Torres factors weigh heavily against defendant's argument on appeal, we affirm.

1 The trial transcript references the victim as "Kevin Berk." However, the indictment and briefs reference the victim as "Kevin Burke."