Meneses, 219 N.J. Super. 483 (App. Div. 1987), certif.
denied, 110 N.J. 156 (1988) (trial court’s improper
comment that a defendant “can go” to the grand jury if
he requests, made during defense counsel’s opening, was
harmless error).
E. Mistrial (See also, DOUBLE JEOPARDY, this Digest)
The standard for granting a mistrial is whether or not
the error is such that manifest injustice would result from
continuance of the trial. State v. Harvey, 151 N.J. 117,
205 (1995), cert. denied, 120 S.Ct. 811 (2000); State v.
DiRienzo, 53 N.J. 360, 383 (1969); State v. Ribalta, 277
N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139
N.J. 442 (1995). The decision on whether to grant a
mistrial is within the sound discretion of the trial judge.
State v. Winter, 96 N.J. 640, 646-647 (1984). “A
mistrial is an extraordinary remedy and should be
resorted to only to prevent an obvious failure of justice.”
State v. Ribalta, 277 N.J. Super. at 291. The trial court
should determine whether the error can be cured by a
cautionary instruction or other curative measures. Ibid.
See State v. LaPorte, 62 N.J. 312 (1973) (prosecutor’s
mention of defendant’s prior arrest did not warrant
mistrial in light of instructions to the jury).
If the court declares a mistrial without defendant’s
consent after the jury is sworn, a retrial is barred by
double jeopardy unless there was a “manifest necessity”
for the mistrial or the “ends of public justice” would be
defeated by an acquittal. State v. Loyal, 164 N.J. 198
(2000); State v. Barnes, 261 N.J. Super. 441, 445 (App.
Div. 1993); see also State v. Gallegan, 117 N.J. 345, 353
(1989); State v. Rechtschaffer, 70 N.J. 395 (1976); State
v. Love, 282 N.J. Super. 590 (App. Div. 1995), certif.
denied, 142 N.J. 572 (1995); State v. Dunns, 266 N.J.
Super. 349 (App. Div. 1993), certif. denied, 134 N.J. 567
(1993); State v. Leonard, 234 N.J. Super. 183 (App. Div.
1989); State in the Interest of D.P., 232 N.J. Super. 8 (App.
Div. 1989). Whether “manifest necessity” or the “ends
of justice” require declaration of a mistrial depends on the
unique facts of each case and the sound discretion of the
trial court. State v. Loyal, supra (defense counsel’s prior
representation of a material, recanting State’s witness on
drug charges constituted appearance of impropriety and
ends of public justice necessitated mistrial). A trial
court’s failure to consider less drastic alternatives to a
mistrial is a factor in the assessment of the propriety of the
trial judge’s declaration of a mistrial. State v. Love, 282
N.J. Super. at 598; State v. Barnes, 261 N.J. Super. at 444.
Note that the Code permits retrial following
termination if defendant consents to the termination or
waives the right to assert double jeopardy, N.J.S.A. 2C:1-
9d(1); or if retrial is the necessary result of a hung jury,
N.J.S.A. 2C:1-9d(2); or where there is “a sufficient legal
reason and a manifest or absolute or overriding necessity,”
N.J.S.A. 2C:1-9d(3). State v. Love, 282 N.J. Super. at
596-97.The considerations that guide the trial court’s
decision in deciding a motion to dismiss an indictment
following multiple hung juries are set forth in State v.
Abbati, 99 N.J. 418 (1985). Five factors must be carefully
considered by the court in making this decision: (1) the
number of prior mistrials and the outcome of the juries’
deliberations, if known; (2) the character of prior trials in
terms of length, complexity and similarity of evidence
presented; (3) the likelihood of any substantial difference
in a subsequent trial, if allowed; (4) the trial court’s
evaluation of the relative strength of each party’s case; and
(5) the professional conduct and diligence of respective
counsel, particularly of the prosecuting attorney. State v.
Abbati, 99 N.J. 418, 435 (1985). See also State v.
Simmons, 331 N.J. Super. 512 (App. Div. 2000).F. Motions for Judgment of Acquittal (See also,
APPEALS, DOUBLE JEOPARDY, this Digest)R. 3:18-1 governs motions for a judgment of
acquittal. The standard for reviewing a claim that the
evidence is insufficient to support the jury’s guilty verdict
for an appellate court and a trial court is “whether viewing
the State’s evidence in its entirety, be that evidence direct
or circumstantial, and giving the State the benefit of all
its favorable testimony as well as all of the favorable
inferences which reasonably could be drawn therefrom, a
reasonable jury could find guilt of the charge beyond a
reasonable doubt.” State v. Palacio, 111 N.J. 543, 550
(1988); State v. Reyes, 50 N.J. 454, 459 (1967); State v.
Scherzer, 301 N.J. Super. 363, 400 (App. Div.), certif.
denied, 151 N.J. 466 (1997). In applying the Reyes
standard, no consideration is given to evidence adduced
in defendant’s case. State v. Milton 255 N.J. Super. 514,
520 (App. Div. 1992). The approach is the same
whether the evidence is direct or circumstantial. State v.
Taccetta, 301 N.J. Super. 227, 240 (App. Div.), certif.
denied, 152 N.J. 187 (1997)“A jury may draw an inference from a fact whenever
it is more probable than not that the inference is true; the
veracity of each inference need not be established beyond
a reasonable doubt in order for the jury to draw the
inference.” State v. Martinez, 97 N.J. 567, 572 (1984);