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a4042-08.opn.html
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. "> Original Wordprocessor
Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is .)
NOT FOR PUBLICATION WITHOUT THE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.
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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).
Thomas S. 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
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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.
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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
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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.
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Affirmed.
1 The trial transcript references the victim as "Kevin Berk." However, the indictment and briefs reference the
victim as "Kevin Burke."
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