STATE OF NEW JERSEY v. ANTWAN JOSEPH BOLDEN KEVIN HUNTER ROCK (2013)

Defendant Antwan Joseph Bolden appeals from an October 23, 2007 order, which denied his motion to dismiss the indictment charging him with first-degree robbery.   For the reasons that follow, we affirm.

I.

The facts as adduced from the trial record are as follows.   A Bergen County grand jury charged defendant with three counts of first-degree robbery, contrary to N.J.S.A. 2C:15–1.   On January 17, 2004, defendant committed two robberies in Paramus, one at the Ikea parking garage and the other at the Lord & Taylor shopping center.   On January 18, 2004, defendant committed a robbery at the Commerce Bank. There were two trials during which defendant acted as his own attorney with the assistance of standby counsel.   The first trial began on May 17, 2007, and lasted fourteen days.   Thirty witnesses testified.   The jury deliberated twice, lasting more than three hours in all.   Finally, the jury informed the court it was unable to reach a unanimous verdict.   The judge declared a mistrial.

On September 13, 2007, the second trial began and lasted nine days.   Twenty-four witnesses testified.   The State presented the same witnesses and evidence from the first trial;  however, several of defendant's original witnesses were not called.   The jury reported it was an impasse after more than nine hours of deliberation.   The court declared a second mistrial.

Before the third trial commenced, defendant, pro se with the assistance of standby counsel, filed a motion to dismiss the indictment with prejudice.   Invoking the Supreme Court's decision in State v. Abbati, 99 N.J. 418 (1985), defendant argued that a third trial would be inconsistent with the principles of fundamental fairness.   In an oral decision on October 23, 2007, the Honorable Harry G. Carroll, J.S.C., considered the relevant factors espoused in Abbati and found that dismissal of the indictment was not warranted under the circumstances.

On April 30, 2008, defendant pled guilty to all three counts of the indictment.   During the sentencing hearing on December 11, 2008, defendant moved to withdraw his guilty plea, stating, among other things, that the plea agreement did not include his right to appeal the trial court's denial of his motion to dismiss the indictment.   Judge Carroll denied defendant's motion to withdraw;  instead, he ordered that the plea agreement incorporate defendant's right to appeal.

Ultimately, defendant received a six-year imprisonment term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2, as well as mandatory fees and fines.

On appeal, defendant raises only one issue:

I.  FUNDAMENTAL FAIRNESS REQUIRED THE JUDGE TO DISMISS THE INDICTMENT AGAINST [DEFENDANT] AFTER TWO SUBSTANTIAL TRIALS RESULTED IN DEADLOCKED JURIES.

We are satisfied that the trial court appropriately considered the relevant Abbati factors and affirm substantially for the reasons stated by Judge Carroll in his thorough and comprehensive oral decision.

II.

In State v. Abbati, our Supreme Court considered “whether, and under what authority and standards, a trial court may dismiss an indictment with prejudice after a defendant has been twice tried for the same offense and each prosecution has ended in a mistrial due to a hung jury.”  Supra, 99 N.J. at 423.   The Court opined that

precepts of fundamental fairness, together with the judiciary's need to create appropriate and just remedies, and its general responsibility to assure the overall efficient administration of the criminal justice system, confirm an inherent power in a trial court to dismiss an indictment with prejudice following general mistrials attributable to repeated jury deadlocks.

[Id. at 427.]

Ultimately, the Court held that “a trial court may dismiss an indictment with prejudice after successive juries have failed to agree on a verdict when it determines that the chance of the State's obtaining a conviction upon further retrial is highly unlikely.”  Id. at 435.   In making this determination, the Court mandated that the trial court “carefully and expressly” consider the following factors:

(1) the number of prior mistrials and the outcome of the juries' deliberations, so far as is 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 own 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.

[Ibid.]

The trial court also must carefully weigh the prosecutor's decision to retry the defendant against the impact of retrial upon the defendant with respect to hardship and unfairness.  Ibid. In this balancing test, the court must take into account:  (1) the reasons for retrial;  (2) the gravity of the charges;  and (3) “the public's concern in the effective and definitive conclusion of criminal prosecutions.”  Ibid. While the Court did not elaborate upon the amount of weight allocated to each factor, “the decision is left to the sound judgment of a trial court to be exercised in the unique circumstances arising in such cases.”  Id. at 436.

III.

In the appeal now before us, defendant argues that the trial court erred by denying his motion to dismiss the indictment with prejudice.   He maintains that he was provided two complete trials, both of which ended in deadlocked juries.   He further maintains that none of the Abbati factors supported another retrial and the court's decision was based on an insufficiently rigorous analysis of those factors.   As such, defendant contends that it would be fundamentally unfair to permit the State another opportunity to convict him.   We are nevertheless convinced from our review of the record that the trial court “carefully and expressly” considered the Abbati factors.  Id. at 435.

First, the judge accepted the State's representations that the jury in the first trial deadlocked in a vote of ten to convict and two to acquit, and at either ten to two or eleven to one to convict in the second trial.   He concluded that there was “uncontroverted evidence” that the jury determinations in both trials were “heavily weighted toward a conviction of [defendant].”   The judge also added, “I do[ not] accept that both trials or juries were unable to find reasonable doubt.   It just appears that the jurors were not unanimous in their deliberations as to whether or not reasonable doubt existed.”

The court additionally observed that the two trials were not “overly complex in terms of duration.”   While the judge acknowledged that the evidence and testimony from both trials were similar, he noted that the State now had additional “substantial” evidence from its “ongoing investigation” that it could present in a subsequent trial.   In the two previous trials, the State had provided evidence that the green Acura that defendant allegedly used during the robberies matched only twenty-nine vehicles registered in New Jersey.   Defendant had challenged that the evidence was insufficient, as the police failed to determine whether the twenty-eight other green Acura owners matched the suspect's description.   Upon further investigation, the State had retrieved evidence of those vehicle registrations and detailed information for the individuals who may have had access to them, including the owners' ethnicities.   The State had also investigated defendant's financial information, e.g., student loans, grants, and employment status, and was prepared to present this evidence in the new trial to counter defendant's theme that he had no motive to commit the robberies because he allegedly was well-paid in the music industry.   The judge noted that this new evidence “would bear upon [defendant's] motive and intent vis-[à]-vis his [asserted] lack of need to resort to theft, which apparently was one of the bas[e]s of his defense.” ¹  Consequently, based on the proffered additional evidence, the court accepted the likelihood that there would be a substantial difference if another trial was permitted.   The court also found that the State had a strong case based upon “numerous eyewitness identifications made of [defendant] as the perpetrator of the robberies.”

Furthermore, Judge Carroll commended the conduct of the respective parties as “nothing less tha[n] professional in nature.”   Specifically, the judge noted that the State's counsel was not a “vindictive prosecutor who seeks to continue to retry [defendant].”   Rather, he stated that this was a “collective consultation” among the Prosecutor's Office staff to seek new charges against defendant.

The court further found that weight should be given to the strong public policy regarding defendant's alleged crimes.   The judge opined:

I do find that the nature of the charges, the gravity of those charges would certainly lead one to conclude that they are quite serious in nature.   [Defendant] is charged with committing three robberies, three armed robberies, I believe, all being first degree charges, all carrying with them potential sentences of ten to [twenty] years on each charge․

The judge concluded that “the gravity of the criminal charges, and also the public's concern in the effective and definitive conclusion of the criminal prosecution both weigh in favor of the State.”   Moreover, the judge recognized that defendant's incarceration since January 2004 has brought hardship in being “forced” into his third trial preparation;  however, the judge stated that this hardship was “balanced out” by the fact that the Office of the Public Defender would continue to provide defendant with standby counsel, as well as an investigator who would investigate the matter, speak with witnesses, and aid in his defense.

Like the trial court, we recognize the hardships that defendant has had to endure as a result of the two prior trials.   We cannot conclude, however, that the trial court erred by finding that it would not have been fundamentally unfair to allow the State to proceed with a third trial.  Abbati, supra, 99 N.J. at 435.   We are convinced that, upon the weighing of all the relevant factors under Abbati, dismissal of the indictment was not required.

Affirmed.

FOOTNOTES

FN1. We reject defendant's argument that the State's supplemental evidence would have been inadmissible proof of his poverty.   The evidence was not proffered to portray defendant generically as a poor man who is inclined to commit crimes, but rather to rebut defendant's own affirmative theme that he had no financial motive..  FN1. We reject defendant's argument that the State's supplemental evidence would have been inadmissible proof of his poverty.   The evidence was not proffered to portray defendant generically as a poor man who is inclined to commit crimes, but rather to rebut defendant's own affirmative theme that he had no financial motive.

PER CURIAM