NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5045-16T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. EILEEN LEONE, Defendant-Appellant. ______________________________ Argued March 27, 2019 – Decided June 23, 2020 Before Judges Fuentes, Vernoia and Moynihan. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 14-09-2731. Lauren Stephanie Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Jennifer K. Kmieciak, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jennifer K. Kmieciak, of counsel and on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D. Defendant Eileen Leone was tried before a jury and convicted for the murder of Darius Smith. N.J.S.A. 2C:11-3a(1), (2). On March 3, 2017, the trial judge sentenced defendant to serve a term of thirty years imprisonment without parole. This was the second time defendant stood trial on this charge. The first time, the judge declared a mistrial sua sponte in response to certain irregularities that, although unrelated to the charge against defendant, had the capacity to undermine the jury's ability to remain fair and impartial. Defendant argues the trial judge erred in declaring a mistrial in the first trial. Consequently, defendant argues the State was constitutionally barred from trying her a second time on these same offenses under the Fifth Amendment double jeopardy clause. Furthermore, even if this court were to reject this argument, defendant argues the trial judge committed reversible error by denying defense counsel's and the prosecutor's joint application for a mistrial in the second trial based on the misconduct of one of the deliberating jurors. Based on our review of the record and mindful of prevailing legal standards, we affirm. We derive the following facts from the record developed before the trial court. A-5045-16T4 2 I The First Trial On September 9, 2014, an Atlantic County grand jury indicted defendant for the murder of Darius Smith. The trial was originally scheduled to start on January 25, 2016. After several postponements, it began on August 8, 2016. Jury selection ended on August 10, 2016. The jury was sworn and the attorneys presented their opening statements that same day. After the attorneys' opening remarks, the trial judge excused the jury to conduct a N.J.R.E. 104 hearing to determine the admissibility of a statement made by defendant to a police officer. During this interlude, an assistant in the jury management office informed the trial judge that four members of the jury in the Leone case saw an unknown individual taking photographs of license plate numbers of cars parked in the courthouse parking ...
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