SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1794-13T2

A-5857-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE TURNER,

Defendant-Appellant.

_________________________________________________

Submitted January 10, 2017 – Decided

Before Judges Espinosa and Guadagno.

On appeal from Superior Court of New Jersey, 

Law Division, Mercer County, Indictment No. 

04-02-0122.

Joseph E. Krakora, Public Defender, attorney 

for appellant in A-1794-13 (Andrew J. Shaw, 

Designated Counsel, on the brief).

Maurice Turner, appellant pro se in A-5857-

13.

Angelo J. Onofri, Mercer County Prosecutor, 

attorney for respondent (Scott J. Gershman, 

Assistant Prosecutor, of counsel and on the 

brief in A-1794-13; Laura Sunyak, Assistant 

Prosecutor, of counsel and on the brief in 

A-5857-13).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

September 7, 2017
2 A-1794-13T2

PER CURIAM

Tried to a jury, defendant Maurice Turner was convicted of 

first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count one); firstdegree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); and 

first-degree robbery, N.J.S.A. 2C:15-1 (count four). The 

sentencing judge merged count two with count one and imposed a 

life sentence on count one, subject to the eighty-five percent 

parole ineligibility term required by the No Early Release Act 

(NERA), N.J.S.A. 2C:43-7.2, and a concurrent twenty-year 

sentence on count four.

On appeal, defendant claimed a detective's testimony 

included inadmissible hearsay; the prosecutor's summation 

improperly relied on facts not in evidence and usurped the 

function of the jury; the jury charge on theft incorporated 

facts not in evidence; the written outline of the elements of 

the offenses, which was distributed to the jury, arranged the 

crimes in a sequence that emphasized the most serious charges, 

thereby increasing the likelihood of conviction; trial counsel 

provided ineffective assistance by failing to move for a new 

trial; and the sentence imposed was excessive, especially when 

compared to the sentence imposed on a co-defendant who was 

convicted of felony murder and robbery. We rejected these 

arguments and affirmed. State v. Turner, No. A-1227-07 (App. 
3 A-1794-13T2

Div. Oct. 13, 2009) (slip op. at 2). Defendant's petition for 

certification was denied. 201 N.J. 446 (2010).

In October 2010, defendant filed a pro se petition for 

post-conviction relief (PCR) alleging a laundry list of claims 

of ineffective assistance of trial and appellate counsel. PCR 

counsel was assigned and sought production of documents relating 

to a detective who testified at trial claiming the documents 

could have been used at trial to impeach the detective. The 

motion was denied after oral argument.

Before his first PCR petition was decided, defendant 

submitted a pro se supplemental letter brief raising additional 

claims of ineffective assistance of trial counsel including, 

failure to move to suppress data retrieved from cell phones, and 

failure to move to suppress a black shirt which contained 

defendant's DNA.

On August 13, 2013, the PCR judge issued an order declining

to consider defendant's pro se supplemental brief and denying

relief without a hearing on the remaining claims. Defendant 

filed a notice of appeal on December 12, 2013, which we accepted 

as filed within time.

While his appeal was pending, defendant filed a second PCR 

petition attempting to raise the claims he had advanced in his 

rejected pro se supplemental brief. On July 9, 2014, a 
4 A-1794-13T2

different PCR judge filed an order accompanied by a decision 

denying defendant's second petition as procedurally barred. 

Defendant now appeals from that order and the order of August 

13, 2013.

As to the first appeal (A-1794-13), defendant raises the 

following arguments:

POINT I

THE PCR COURT ERRED IN FAILING TO ISSUE 

FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO 

ALL OF THE DEFENDANT'S CLAIMS.

POINT II

THE PCR COURT ERRED IN DENYING AN EVIDENTIARY 

HEARING BECAUSE THE DEFENDANT HAD ESTABLISHED 

A REASONABLE LIKELIHOOD THAT HIS CLAIMS OF 

INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLANT 

COUNSEL WOULD ULTIMATELY SUCCEED ON THE 

MERITS.

A. TRIAL COUNSEL'S FAILURE TO 

CORRECTLY ADVISE THE DEFENDANT AS TO 

HIS SENTENCING EXPOSURE.

B. TRIAL COUNSEL'S FAILURE TO 

REQUEST A CLAWANS[1] CHARGE AND TO 

MOVE TO DISQUALIFY THE PROSECUTOR 

FOR TESTIFYING AS A WITNESS.

C. TRIAL COUNSEL'S FAILURE TO ATTACK 

THE CREDIBILITY OF DETECTIVE EDGAR 

RIOS.

D. TRIAL COUNSEL'S FAILURE TO OBJECT 

TO THE RACIAL COMPOSITION OF THE 

JURY.

 

1 State v. Clawans, 38 N.J. 162 (1962).
5 A-1794-13T2

E. TRIAL COUNSEL'S CUMULATIVE 

ERRORS.

POINT III

THE PCR COURT ERRED IN DENYING THE DEFENDANT'S 

MOTION TO COMPEL THE PRODUCTION OF RECORDS.

As to the second appeal (A-5857-13), defendant raises the 

following points:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW 

AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO 

THE UNITED STATES CONSTITUTION AND ART. I PART 

1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED 

BY THE PCR COURT'S REFUSAL TO HOLD A POSTCONVICTION RELIEF EVIDENTIARY HEARING TO

ADJUDICATE THE DEFENDANT'S CLAIM THAT HE WAS 

DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

A. DEFENDANT WAS DENIED THE 

EFFECTIVE ASSISTANCE OF TRIAL 

COUNSEL WHEN HIS LAWYER FAILED TO 

FILE A CLEARLY MERITORIOUS MOTION TO 

SUPPRESS THE CELL PHONES WHICH WERE 

ILLEGALLY SEIZED WITHOUT A SEARCH 

WARRANT AND CALL DETAIL RECORDS AS 

BEING THE FRUIT OF THE POISONOUS 

TREE.

B. DEFENDANT WAS DENIED THE 

EFFECTIVE ASSISTANCE OF TRIAL 

COUNSEL WHEN HIS LAWYER FAILED TO 

FILE A CLEARLY MERITORIOUS MOTION TO 

SUPPRESS THE BLACK STATE PROPERTY 

SHIRT WHICH WAS ILLEGALLY SEIZED 

WITHOUT A SEARCH WARRANT AND DNA 

MATCH AS BEING THE FRUIT OF THE 

POISONOUS TREE.
6 A-1794-13T2

C. TRIAL COUNSEL RENDERED 

INEFFECTIVE ASSISTANCE OF COUNSEL 

BY FAILING TO FILE A MOTION FOR 

DOUBLE JEOPARDY TO BAR RE-TRIAL ON 

COUNTS I, II, AND IV OF THE 

INDICTMENT.

D. APPELLANT['S] COUNSEL RENDERED 

INEFFECTIVE ASSISTANCE OF COUNSEL 

BY FAILING TO ORDER MARCH 6, 2006 

TRIAL TRANSCRIPTS AND RAISE ON 

DIRECT APPEAL TRIAL COUNSEL FAILED 

TO FILE A MOTION FOR DOUBLE JEOPARDY 

TO BAR RE-TRIAL ON COUNTS I, II, AND 

IV OF THE INDICTMENT.

POINT II

THE PROCEDURAL BAR TO RELIEF UNDER RULE 3:22-

4 SHOULD NOT APPLY TO APPELLANT'S CLAIMS UNDER 

POINTS C AND D.

We assume familiarity with the facts as related in our 2009 

opinion and do not repeat them here.

First PCR Petition

Defendant first argues that the PCR judge failed to issue 

findings of fact and conclusions of law. The judge noted that 

the twenty-five "miscellaneous arguments" raised in the initial 

petition lacked merit or were already addressed in our 2009 

opinion. The judge also observed that defendant "presents bare 

allegations without providing specific details on how, when, 

why, and where counsel made errors or omissions." The judge 

declined to consider the new claims raised in defendant's pro se 
7 A-1794-13T2

supplemental brief noting defendant had ample opportunity to 

raise the claims in his PCR petition.

We agree that defendant's claims amounted to nothing more 

than bald assertions of ineffective assistance and therefore 

warranted neither an evidentiary hearing nor any substantive 

relief.

Defendant's pro se supplemental submission did not raise 

new claims as much as it repeated the claim that trial counsel 

was ineffective for failure to file a motion to suppress 

unspecified evidence seized without a warrant. The court 

disposed of that claim, but did not reference defendant's pro se 

brief.

Although defendant abandons most of the ineffective 

assistance claims made before the PCR judge, he maintains on 

appeal that trial counsel was ineffective for failure to (1) 

adequately advise him as to his sentencing exposure, (2) request 

an adverse inference charge as to an uncalled witness, (3) move 

to disqualify the prosecutor for testifying as a witness, (4) 

attack the credibility of a detective who testified at trial, 

and (5) object to the racial composition of the jury.

A defendant claiming ineffective assistance of counsel must 

show both that counsel's performance was deficient, and that 

deficiency caused him or her prejudice. State v. Goodwin, 173 
8 A-1794-13T2

N.J. 583, 596 (2002) (quoting Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). 

The petitioner must demonstrate that counsel's performance fell 

outside "the wide range of reasonable professional assistance," 

and that there was a "reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding 

would have been different." Strickland, supra, 466 U.S. at 689, 

694, 104 S. Ct. at 2065, 2068, 80 L. Ed. 2d at 694, 698. 

Counsel's strategic choices are entitled to a presumption of 

competence, so long as they are made after an adequate factual 

and legal investigation. State v. Harris, 181 N.J. 391, 488 

(2003) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. 

Ct. at 2066, 80 L. Ed. 2d at 695)), cert. denied, 545 U.S. 1145, 

125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

To obtain a hearing on a PCR petition, a defendant must 

demonstrate a "reasonable likelihood" of relief. State v. 

Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. 

Ct. 140, 139 L. Ed. 2d 88 (1997). Bald assertions of 

ineffective assistance will not suffice. State v. Cummings, 321 

N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 

(1999).

Defendant claims that his trial counsel failed to correctly 

advise him as to his sentencing exposure, asserting that, had he 
9 A-1794-13T2

known he risked a sentence of life imprisonment subject to NERA, 

he would have accepted a favorable plea deal. Defendant claims 

that counsel advised him that, if convicted, he could be 

sentenced to a term of thirty years to life. While defendant 

submitted certifications from trial counsel in support of his 

petition, it does not corroborate his claim that he was 

misinformed as to his exposure.

The PCR judge noted defendant acknowledged his trial 

counsel had informed him of his exposure of thirty years to life 

in prison and concluded that defendant had failed to establish a 

prima facie case for ineffective assistance warranting either an 

evidentiary hearing or any substantive relief. We agree.

Defendant's acknowledgment that he was advised his exposure 

could extend to life in prison completely undermines his claim 

that he was misinformed by trial counsel.

Defendant next challenges his trial counsel's failure to 

request an adverse inference charge as to a police lieutenant 

who was not called by the State as a witness and counsel's 

failure to move to have the prosecutor removed for testifying as 

a witness.

When a party seeks an adverse inference charge, the 

following factors must be considered:
10 A-1794-13T2

(1) whether the "uncalled witness" was 

"peculiarly within" one party's control; (2) 

whether the witness was available "both 

practically and physically"; (3) whether the 

uncalled witness's testimony "will elucidate 

relevant and critical facts in issue"; and (4) 

whether "such testimony appears to be superior 

to that already utilized in respect to the 

fact to be proven."

[Washington v. Perez, 430 N.J. Super. 121, 

128-29 (App. Div. 2013) (quoting State v. 

Hill, 199 N.J. 545, 569 (2009)).]

A decision to give or decline to give an adverse inference 

charge is reviewable only for an abuse of discretion. Bradford 

v. Kupper Assocs., 283 N.J. Super. 556, 580 (App. Div. 1995), 

certif. denied, 144 N.J. 586 (1996).

Defendant's claim arises from an exchange during trial 

counsel's cross-examination of Detective Timothy Thomas as to 

whether a set of keys were removed from the crime scene prior to 

the issuance of a search warrant:

Q: Do you know if it's noted anywhere 

in Detective Osvai's handwritten logs as to 

whether these keys were taken from the scene 

prior to the search warrant being issued?

A: It's probably not noted.

Q: Is the Trenton Police Department and 

officials from the Mercer County Prosecutor's 

Office prone to take items from scenes prior 

to getting search warrants?

[PROSECUTOR]: Objection to the form of 

the question.
11 A-1794-13T2

THE COURT: Well, are they prone --

[PROSECUTOR]: It's overbroad.

THE COURT: Well, did they in this 

case?

[PROSECUTOR]: Yes.

THE COURT: It's what happened in 

this case. Did that happen here?

THE WITNESS: It happened here, it was 

ordered by my Lieutenant. Lieutenant Parrey 

ordered Detective Osvai to get the keys to try 

to identify the victim. It was a critical 

part in the investigation. We had to find out 

who the victim was to backtrack how he got 

there, and that's why he did it.

Defendant claims that his "[t]rial counsel heard a 

conversation between the prosecuting attorney and . . . 

Thomas[,] in which . . . Thomas was advised to attribute 

statements to his Lieutenant in order to avoid the Lieutenant 

from being cross-examined." Trial counsel's certifications are 

silent on the issue.

Defendant argued before the PCR judge and maintains now 

that trial counsel should have requested a Clawans2 charge, 

informing the jury that it may draw an adverse inference from 

 

2 Clawans, supra, permits a negative inference to be drawn from 

the non-production of a witness within the party's control when 

the witness's testimony would have exposed facts in issue and 

would have been superior to evidence used by the party. 38 N.J.

at 171.
12 A-1794-13T2

the State's failure to call the lieutenant as his testimony 

would have been unfavorable to the State. Defendant also argues 

that trial counsel should have moved to have the prosecutor 

removed for testifying as a witness, presumably because the 

prosecutor answered in the affirmative to a single clarifying 

question from the judge during the course of Thomas's crossexamination.

The PCR judge rejected both arguments, reasoning that 

defendant's certification was the only support for his 

contention that Thomas was ever advised to testify on the 

lieutenant's behalf so he could avoid cross-examination. The 

judge concluded that a Clawans charge was not warranted.

Defendant fails to explain why the lieutenant's testimony 

would have been superior to the detective's testimony as to 

render an adverse inference charge clearly appropriate. 

Defendant suggests that the State feared subjecting the 

lieutenant to cross-examination, but does not identify what 

would have resulted from that cross-examination or how it would 

have changed the outcome of the case. Defendant alleged his 

trial counsel overheard the discussion between the prosecutor 

and the lead detective, but tellingly, counsel's certification 

does not support that claim and makes no mention of the 

incident. The prosecutor's response to the judge's question 
13 A-1794-13T2

during Thomas's cross-examination was plainly meant to clarify 

his objection, not to offer substantive testimony, and, in any 

event, Thomas testified with greater elaboration to the same 

substance thereafter.

The court's conclusion that counsel was not ineffective for 

failing to request the Clawans charge or to move for the 

prosecutor's removal finds ample support in the record.

Defendant next argues his trial counsel was ineffective in 

failing to impeach the credibility of Detective Edgar Rios with 

evidence that he was transferred out of the homicide unit for 

committing several administrative infractions. Defendant also 

challenges the PCR judge's denial of his motion to compel 

production of the police personnel records necessary to 

substantiate those infractions.

A court's determination whether to require disclosure of 

such records must depend on a balancing between the public 

interest in maintaining their confidentiality and an accused's 

constitutional right to confrontation of adverse witnesses at 

trial. State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div. 

1998). A party seeking production for in camera inspection need 

not definitively "establish that the personnel file actually 

contains relevant information," but must show at least "'some 

factual predicate which would make it reasonably likely that the 
14 A-1794-13T2

file will bear such fruit and that the quest for its contents is 

not merely a desperate grasping at a straw.'" State v. 

Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980) (quoting 

People v. Gissendanner, 399 N.E.2d 924, 928 (N.Y. 1979)).

Defendant relied on a newspaper article quoting an 

unidentified source who stated that twenty-eight administrative 

charges had been filed against Rios, including making a false 

statement, and that he was being transferred out of the homicide 

unit. The article also stated Rios was "long acknowledged as 

one of the department's best homicide detectives" and indicated 

other officers and detectives were being transferred out of the 

homicide unit.

In his written decision, the PCR judge noted that Detective

Rios had very little involvement in this homicide investigation 

and his investigative charges had no connection with his work on 

this case. Rather, the violations were related to Detective 

Rios' failure to notify the family of a homicide victim in an 

unrelated case of the status of the investigation.

Defendant includes a copy of the newspaper article 

reporting the charges against Rios in his appendix but does not 

indicate when that article was published or in what publication 

it appeared. Detective Rios testified on July 26, 2007. The 

undated article in defendant's appendix was actually published 
15 A-1794-13T2

on April 16, 2008, nine months after Rios testified. See Joe 

D'Aquila, Half of Homicide Detectives Charged, Transferred in 

Wake of Ramsey Case, The Trentonian (April 16, 2008), 

http://www.trentonian.com/article/20080416/TMP01/304169956.

Defendant argues trial counsel was ineffective by failing 

to attack Rios' credibility "by showing he was issued 28 

administrative charges including making a false statement and 

transferred out of the homicide unit." Defendant has failed to 

show how his trial counsel could have confronted Rios with 

administrative charges which were not filed until long after the 

trial ended. While we require attorneys to provide effective 

assistance to their criminal clients, we do not expect them to 

be clairvoyant.

Defendant next claims that trial counsel was ineffective 

for failure to object to the State's use of a peremptory 

challenge to strike the only African-American from the jury.

A defendant challenging a prosecutor's use of peremptory 

challenges must satisfy an initial burden of rebutting the 

presumption in favor of the constitutionality of a peremptory 

challenge by "'producing evidence sufficient to . . . draw an 

inference that discrimination has occurred.'" State v. Osorio, 

199 N.J. 486, 502 (2009) (quoting Johnson v. California, 545 

U.S. 162, 170, 125 S. Ct. 2410, 2417, 162 L. Ed. 2d 129, 139
16 A-1794-13T2

(2005)). In State v. Watkins, the Court suggested that trial 

courts consider the following factors:

(1) that the prosecutor struck most or all of 

the members of the identified group from the 

venire; (2) that the prosecutor used a 

disproportionate number of his or her 

peremptories against the group; (3) that the 

prosecutor failed to ask or propose questions 

to the challenged jurors; (4) that other than 

their race, the challenged jurors are as 

heterogeneous as the community as a whole; and 

(5) that the challenged jurors, unlike the 

victims, are the same race as defendant. 

[114 N.J. 259, 266 (1989).]

However, where a single peremptory challenge used to 

"excuse the only qualified member of a cognizable group in the 

jury panel," and the defendant or victim belongs to the same 

group, the defendant may establish a prima facie case so long as 

the rest of the factors of the above standard are met. State v. 

Pruitt, 430 N.J. Super. 261, 272 (App. Div. 2013). Once a 

defendant establishes a prima facie case, "[t]he burden shifts 

to the prosecutor to come forward with evidence that the 

peremptory challenges under review are justifiable on the basis 

of concerns about situation-specific bias." State v. Gilmore,

103 N.J. 508, 537 (1986). The prosecution must then "articulate 

'clear and reasonably specific' explanations of its 'legitimate 

reasons' for exercising each of the peremptory challenges."

Ibid. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.
17 A-1794-13T2

248, 258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207, 218 (1981)).

The PCR judge determined that defendant's trial counsel had 

no basis to raise a Pruitt challenge to the State's use of a 

peremptory challenge, as the State presented a "cognizable, nondiscriminatory reason" to challenge the juror, explaining:

The record of the jury selection 

discloses that Juror 4 had two siblings who 

had previously been incarcerated for 

convictions on drug charges. . . . One of her 

brothers was incarcerated in a federal prison 

in Pennsylvania, while the other had served 

time in Mercer County before being transferred 

to Atlantic County. . . . At the time the 

State exercised its peremptory challenge 

excusing Juror 4, there was no indication that 

she was the last remaining African-American 

Juror on the panel. . . . Indeed, prior to 

Juror 4's excusal, the trial court informed 

both the State and defense counsel that a new 

jury panel was on its way for voir dire. . . 

. A new jury panel was, in fact, introduced 

and voir dire commenced thereafter.

We are satisfied that trial counsel would have been unable 

to make a threshold showing that the State exercised its 

peremptory challenge in a constitutionally impermissible fashion 

sufficient to draw an inference that discrimination had 

occurred. Thus, trial counsel's failure to object to the 

State's use of this peremptory challenge did not amount to 

ineffective assistance.

The remaining arguments raised by defendant in this appeal 

lack sufficient merit to warrant further discussion in our 
18 A-1794-13T2

opinion. R. 2:11-3(e)(2).

Second PCR Petition

Defendant argues that his second PCR petition, which raised 

various claims of ineffective assistance of trial and appellate 

counsel should not have been procedurally barred. The PCR judge 

found the claims barred by Rule 3:22-4(b). The Rule provides:

A second or subsequent petition for postconviction relief shall be dismissed unless:

(1) it is timely under R. 3:22-12(a)(2); 

and

(2) it alleges on its face either:

(A) that the petition relies on a 

new rule of constitutional law, made 

retroactive to defendant's petition by 

the United States Supreme Court or the 

Supreme Court of New Jersey, that was 

unavailable during the pendency of any 

prior proceedings; or

(B) that the factual predicate for 

the relief sought could not have been 

discovered earlier through the exercise 

of reasonable diligence, and the facts 

underlying the ground for relief, if 

proven and viewed in light of the

evidence as a whole, would raise a 

reasonable probability that the relief 

sought would be granted; or

(C) that the petition alleges a 

prima facie case of ineffective 

assistance of counsel that represented 

the defendant on the first or subsequent 

application for post-conviction relief.

[R. 3:22-4(b).]
19 A-1794-13T2

The claims raised by defendant in his second PCR petition 

alleging ineffective assistance of trial and appellate counsel 

do not fall into any of the three narrow categories permitting 

relief. Even if we were to consider his claims, they lack 

merit.

Defendant presented two arguments: (1) trial counsel 

should have moved to suppress the cell phones recovered at the 

scene of the murder and a shirt bearing defendant's DNA 

recovered from his residence; and (2) trial counsel should have 

moved for dismissal on double jeopardy grounds after the 

mistrial, and appellate counsel should have raised that issue on 

appeal.

The record clearly establishes that search warrants were 

obtained for both the murder scene and defendant's residence. 

Defendant's claim that items were seized before the warrants 

were actually obtained is not supported by the record.

Defendant next argues that trial counsel was ineffective 

for failure to move for dismissal of his indictment on double 

jeopardy grounds after the first mistrial, and that appellate 

counsel was ineffective for failure to raise the same argument 

or order the necessary supporting transcript on appeal.

The mistrial came about after a detective unexpectedly 
20 A-1794-13T2

volunteered on cross-examination that co-defendant Karla Freeman 

provided investigators with defendant's cell phone number, which 

corresponded with the phone that was recovered at the scene of 

the crime. Defendant's counsel promptly moved for a mistrial 

pursuant to United States v. Bruton, 391 U.S. 123, 126, 88 S. 

Ct. 1620, 1622, 20 L. Ed. 2d 476, 479 (1968), on the ground that 

he could not cross-examine Freeman, the source of the 

incriminating information. On further questioning, the 

detective acknowledged that he had never interviewed Freeman and 

had no personal knowledge of her incriminating statement. The 

court ultimately granted the mistrial.

3

Here, defendant's trial counsel moved for the mistrial and 

has not alleged before the trial judge, the PCR judge, or us, 

that the mistrial was brought about by bad faith on the State's 

part. State v. Farmer, 48 N.J. 145, 174 (1966), cert. denied, 

386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967). A 

retrial after a mistrial is permissible if there was "sufficient 

legal reason and manifest necessity to terminate the trial,"

State v. Loyal, 164 N.J. 418, 435 (2000), or the defendant 

 

3 Co-defendant, Karla Freeman raised an identical claim of 

ineffective assistance based on her trial counsel's failure to 

argue for dismissal based on double jeopardy. Both appeals were 

calendared together before us and, in separate opinions filed 

today, we reject both claims. See State v. Freeman, No. A-3386-

14 (App. Div. September 7, 2017).
21 A-1794-13T2

consents to the termination, United States v. Dinitz, 424 U.S.

600, 607, 611, 96 S. Ct. 1075, 1079-81, 47 L. Ed. 2d 267, 274, 

276 (1976). Both circumstances were present here.

The remaining arguments raised by defendant in this appeal 

lack sufficient merit to warrant further discussion in our 

opinion. R. 2:11-3(e)(2).

Affirmed.