STATE OF NEW JERSEY v. JEFFREY NEMES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0216-05T10216-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY NEMES,

Defendant-Appellant.

 

Argued: April 24, 2006 - Decided June 13, 2006

Before Judges Fall, Yannotti and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Number 03-12-0225-S.

Harold J. Ruvoldt, Jr. argued the cause for appellant (Edwards Angell Palmer & Dodge, attorneys; Mr. Ruvoldt and Savitha Keesari Masson, on the brief).

Paul Heinzel, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Lewis J. Korngut, Deputy Attorney General, and Mr. Heinzel, of counsel and on the brief).

PER CURIAM

Defendant Jeffrey Nemes appeals from an order issued on September 15, 2005, denying his motion to dismiss the indictment against him on double jeopardy grounds, following the grant of his application for a mistrial during his jury trial on bribery and conspiracy charges. On November 3, 2005, we entered an order denying the State's motion to dismiss the appeal as interlocutory and, to the extent necessary, granted defendant leave to appeal. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.

Defendant was charged in State Grand Jury Indictment Number 484-03-10, Law Division Docket Number 03-12-0225-S, with second-degree bribery in official and political matters, allegedly occurring on April 22, 1998, contrary to N.J.S.A. 2C:27-2c (count one); third-degree conspiracy to commit, between January 1, 1998 and June 24, 1998, the crimes of bribery in official and political matters, N.J.S.A. 2C:27-7c, criminal mischief, N.J.S.A. 2C:17-3a, and theft by deception, N.J.S.A. 2C:20-4a, contrary to N.J.S.A. 2C:5-2 (count two); and third-degree bribery in official and political matters, allegedly occurring on June 24, 1998, contrary to N.J.S.A. 2C:27-2c (count three).

The State contended that defendant, who was a Hamilton Township Police Sergeant, had participated in the offering of bribes to two Hamilton Township fire chiefs David Sabo of the Rusling Hose Fire Company, and William Kiernan of the Enterprise Fire Company. Co-defendant Marc Rossi was an insurance adjuster, who purportedly participated in the conspiracy. The allegations were that defendant and Rossi had attempted to gain the assistance of Chiefs Sabo and Kiernan in allowing additional, unwarranted fire damage to occur during their suppression of fires at properties in the Township, and for the chiefs to then permit Rossi and his employees special access to fire scenes that would allow Rossi to secure the damages-adjusting job from the property owners. The alleged objective was for Rossi to secure jobs for repair of the fire damage by defendant's construction company, to be paid for by the proceeds of the policies insuring against such fire damage. In return for their cooperation, the fire chiefs would then receive sums of money from Rossi and defendant.

The jury trial in this matter commenced on September 1, 2005, and continued for several days thereafter. On September 13, 2005, during his direct examination, Kiernan was asked whether he recalled having any other meetings with law enforcement personnel, to which he replied "Yes." When asked "where was it, what happened there?[,]" Kiernan replied, "That's where they had given me a polygraph test." Defense counsel objected, and moved for a mistrial, arguing as follows:

The introduction of polygraph by the Government in response to a question by it is so highly prejudicial and puts in the eyes of this jury that there is information in the form of a polygraph test, which I've listened to the Attorney General for weeks argue it is inadmissible, and to interject, especially after he told us that he prepared this witness, he interviewed this witness, to inject that, I submit is so highly prejudicial that the only appropriate remedy, I must reluctantly say, is a mistrial.

In reply, the prosecutor stated that he had specifically instructed Kiernan not to mention the polygraph and had "no idea why he did [so]." He argued, however, that the mere mention of the polygraph test should not be considered prejudicial because the jury would not be provided the results thereof. The prosecutor also explained to the court that the "next meeting" that he had been referring to in conjunction with his questioning of Kiernan related to Kiernan's appearance before the grand jury, and not to the occasion when Kiernan had taken the polygraph test. Therefore, the prosecutor asserted that he had not attempted to elicit information from Kiernan concerning the polygraph testing, that Kiernan's response had been unexpected, and that Kiernan had apparently forgotten the correct chronology of events.

Relying on State v. Clark, 128 N.J. Super. 120 (App. Div. 1974), aff'd, 66 N.J. 339 (1975), the trial judge granted the mistrial application. Following that ruling, Kiernan was questioned further by the court concerning the response that had led to the grant of the mistrial application:

THE COURT: Were you ever instructed by anyone not to mention a polygraph test during the course of your testimony?

KIERNAN: No, sir.

THE COURT: Did Investigator Stemmer ever mention it?

KIERNAN: No, sir.

THE COURT: Did [the prosecutor] ever tell you not to mention a lie detector test during the course of your testimony?

KIERNAN: No, sir.

THE COURT: At any time?

KIERNAN: Any time, no, sir.

Upon questioning by the prosecutor, Kiernan acknowledged that he had been confused concerning the correct sequence of events.

Defendant moved for dismissal of the indictment on double jeopardy grounds, contending that the State had goaded defendant into moving for a mistrial. Judge Delehey conducted a hearing on that motion on September 15, 2005.

Robert Stemmer, the State's investigator from the Division of Criminal Justice, testified that he and the prosecutor had met with Kiernan on two occasions to prepare him for his upcoming testimony. Stemmer stated the first meeting occurred on August 1, 2005. Stemmer recounted that they had reviewed the chronology of events with Kiernan, stating that "when we got to that point in the chronology with regards to the polygraph test, I told Mr. Kiernan that we won't be going into that, and we'll just go right into your statement." Stemmer also testified that during this session, the prosecutor had "advised [Kiernan] specifically not to mention the polygraph exam." The following additional exchange between the prosecutor and Stemmer occurred:

Q. And on how many occasions did I say that to Bill Kiernan?

A. On both occasions.

Q. Any doubt in your mind, sir?

A. No.

Q. And . . . what was his response during those statements to him?

A. On the first occasion he, he said something to the effect, those aren't allowed in court. And I said, yes.

Joseph Salvatore, an investigator in the State's Office of Insurance Fraud Investigations, also testified. Salvatore testified that shortly before Kiernan testified, he was present during a brief discussion between the prosecutor and Kiernan concerning the polygraph booklet in relation to the written statement that Kiernan had given. However, Salvatore stated that during that conversation the prosecutor did not instruct Kiernan not to mention the word "polygraph."

The prosecutor did not testify, and defense counsel declined to call the prosecutor as a witness. Defendant argued that, pursuant to State v. Clawans, 38 N.J. 162, 170-71 (1962), based on the failure of the prosecutor to testify to his conversations with Kiernan, the court should draw an adverse inference that such testimony would have been unfavorable to the State.

After considering the testimony and arguments of counsel, Judge Delehey stated in pertinent part:

The court did not hear testimony from [the prosecutor], although he was available to testify and was willing to testify if defense counsel wished to call him. Defense counsel did not call him to the stand and asks the court to draw an adverse inference from the fact that the [prosecutor] did not testify. While the court may do so, it declines to draw that inference.

New Jersey statute 2C:1-9(d) bars retrial if the former prosecution was improperly terminated. The term "improperly terminated" is not defined. Ordinarily, when the defendant makes application for a mistrial, there is no bar to retrial. United States v. Dinitz, 424 U.S. 600[, 96 S. Ct. 1075, 47 L. Ed. 2d 267] (1976).

The exception to that rule occurs when the prosecutor by his conduct induces or goads the defendant into moving for a mistrial. Absent such a showing, prosecutorial misconduct, even if it constitutes overreaching, will not bar a retrial. Oregon v. Kennedy, 456 U.S. 667[, 102 S. Ct. 2083, 72 L. Ed. 2d 416] (1982); State v. Cooper, 307 N.J. Super. 196 (App. Div. 1997); and State v. DeMarco, 211 N.J. Super. 421 (App. Div. 1986).

Here, without even reaching a resolution of the credibility issue based upon the difference of testimony between Kiernan and the State's prosecutor and investigator, the court concludes that there is no showing that the prosecutor intentionally induced the mistrial.

From the court's perspective, the trial was going well for the State. There was no advantage to be gained by the State from a mistrial. Thus, whether or not the witness was advised not to mention a polygraph is of no consequence. If the prosecutor did advise him, then the witness's comment was contrary to the [prosecutor's] instructions. If the witness was not advised about the polygraph, that does not demonstrate that the [prosecutor] sought to inject the polygraph issue into the trial.

Indeed, the defendant does not argue here that the prosecutor intended the witness should mention the polygraph tests, only that the prosecutor's mention of the polygraph examination so shortly before the witness taking the stand would lead to the inevitable disclosure of the polygraph test. Although the court's resolution of the double jeopardy motion does not rest on a credibility determination, vis- -vis the difference in testimony between Kiernan and the [prosecutor] and his investigator, the court, for the completion of the record, makes the following findings. [The prosecutor] and Investigator Stemmer both informed the witness, Mr. Kiernan, that there should be no mention of polygraphs during the course of the trial. The court accepts that testimony because it has inherent believability. Rhetorically, the court asks, what purpose would be served by the prosecutor in having the witness testify about a polygraph examination? Such conduct could only result in a mistrial or raise a blatantly obvious point of appeal.

The court further concludes that it is far more likely that [the prosecutor] with his experience, and Mr. Stemmer, with his experience, would have been [more] concerned about the non-disclosure of the polygraph test than would Mr. Kiernan, who is not versed in the law. The court concludes that Mr. Kiernan was not lying when he said the polygraph test had not been discussed; rather, the court concludes that among all of the things that it heard discussed by Kiernan with the [prosecutor] and his investigator, and given Kiernan's concerns about the factual aspects of the case and his involvement therein, that he simply did not recall the warning not to mention anything concerning the polygraph test.

Under all the circumstances, the court finds that the [prosecutor] did nothing to induce the mistrial and that the witness's statement was uninvited and unexpected and unfortunately requires a retrial.

The judge issued a written order on September 15, 2005, memorializing his grant of the mistrial application, denying the motion to dismiss, and rescheduling the new trial to commence on November 1, 2005.

On September 15, 2005, defendant filed a notice of appeal from the denial of his motion to dismiss the indictment. As noted, on November 3, 2005, we entered an order denying the State's motion to dismiss the appeal. "To the extent necessary," we granted leave to appeal.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON DOUBLE JEOPARDY GROUNDS FOLLOWING THE STATE'S GOADING THE DEFENDANT TO MOVE FOR A MISTRIAL.

POINT II

THE CONSTITUTIONAL RIGHTS OF DEFENDANT ARE VIOLATED IF A DENIAL OF HIS MOTION TO DISMISS ON DOUBLE JEOPARDY IS NOT TREATED AS A FINAL JUDGMENT.

POINT III

THE DENIAL OF A MOTION TO DISMISS ON DOUBLE JEOPARDY GROUNDS IS A FINAL JUDGMENT APPEALABLE AS OF RIGHT.

After analyzing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issue presented by defendant in Point I is without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons articulated by Judge Delehey in his oral decision delivered on September 15, 2005. The findings and conclusions of the judge are supported by substantial, credible evidence contained in the record. State v. Locurto, 157 N.J. 463, 469-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). We add the following.

During his testimony, Kiernan acknowledged that when the prosecutor asked the question that led to his "polygraph" response, Kiernan had been confused with the chronology of events. It is thereby evident that the prosecutor's question could not have been designed to elicit that improper response, as that question related to what had occurred at the grand jury proceedings, not to the occasion when Kiernan had submitted to polygraph testing.

We further find no basis for defendant's contention on appeal that the prosecutor attempted to induce a mistrial because he was dissatisfied with the trial judge's refusal to take judicial notice of certain statutes pertaining to the duties of volunteer firemen as they related to the question of whether Chief Sabo and Chief Kiernan were "public servants," as defined in N.J.S.A. 2C:27-1g. Our review of the record discloses that the trial judge had not conclusively ruled on that issue. Moreover, the evidence presented at trial was sufficient for the jury to have concluded that Sabo and Kiernan were "public servants."

We find no merit in the further contention that the prosecutor had embarked in a course of conduct in his opening statement, in his comments on objections made by defense counsel, and by picking up papers from the defense table and reading them designed to goad defendant into moving for a mistrial.

Our review of the opening statement does not support defendant's contentions that the prosecutor had engaged in "character assassination," and had made improper "references to prior consistent and inconsistent statements of witnesses that the State would call." Early in the prosecutor's opening statement, defense counsel did object to the characterization by the prosecutor of defendant as one "who believed he was above the law." At sidebar, defense counsel requested "the court to stop him from doing it and also instruct the jury that what he said during the course of his opening is not evidence." There was no application for a mistrial. Although he declined to give the jury the requested instruction, the judge informed the prosecutor not to make references to defendant's character during the balance of his opening statement. The opening statement continued without further objection.

Although some of the initial comments by the prosecutor during his opening statement were improvident, upon objection, the judge properly intervened. Viewing the record as a whole, we cannot conclude that the cited statements by the prosecutor were so egregious so as to have the capacity to have deprived defendant of his right to a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). There is nothing improper in that portion of the prosecutor's opening statement that outlined and explained the prior inconsistent statements that had been given by Sabo and Kiernan. Moreover, there was no objection to that portion of the opening statement.

We also find nothing in the record to support defendant's remaining contentions that the prosecutor attempted to induce defendant to move for a mistrial by improperly complaining about defense counsel's objections, or by reading papers at defense counsel's table.

 
In light of our grant of leave to appeal, we need not address the arguments presented in Points II and III, relating to the issue of whether defendant was entitled to appeal, as of right, from the denial of his motion to dismiss on double jeopardy grounds.

Affirmed.

(continued)

(continued)

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A-0216-05T1

June 13, 2006