Collester, Lynch and Michels. The opinion of the court was delivered by Michels, J.s.c., Temporarily Assigned.
Defendant appeals his conviction on an indictment charging him with robbery in violation of N.J.S.A. 2A:141-1 and possession of a firearm while committing robbery in violation of N.J.S.A. 2A:151-5. Defendant's sole ground of appeal is that the trial court erred in admitting into evidence a confession which the court had previously ruled to be inadmissible at the first trial.
At the first trial the court, after conducting a Miranda hearing, excluded the confession because the State had failed to satisfy the court beyond a reasonable doubt that the statement was given voluntarily. The first trial ended in a mistrial
by virtue of the inability of the jury to agree upon a verdict, thus necessitating a second trial. At the second trial the court again conducted a Miranda hearing over objection of defendant, who argued that the question had already been determined at the first trial adversely to the State. The court overruled the objection and after hearing testimony from the State, which was more extensive than that presented at the first trial, found that the statement was voluntary and admitted the confession into evidence. Defendant contends that the court's ruling at the first trial that his statement was inadmissible became the "law of the case" and could not be relitigated at the second trial. We disagree.
It has been generally stated that the "law of the case" doctrine "applies to the principle that where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit." Wilson v. Ohio River Company, 236 F. Supp. 96, 98 (S.D.W. Va. 1964), aff'd 375 F. 2d 775 (4 Cir. 1967). This rule is based upon the sound policy that when an issue is once litigated and decided during the course of a particular case, that decision should be the end of the matter. United States v. U.S. Smelting Refin. & M. Co., 339 U.S. 186, 198, 70 S. Ct. 537, 94 L. Ed. 750 (1950). "Law of the case" most commonly applies to the binding nature of appellate decisions upon a trial court if the matter is remanded for further proceedings, or upon a different appellate panel which may be asked to reconsider the same issue in a subsequent appeal. 5 Am. Jur. 2d, Appeal and Error, § 744 at 188-189 (1962); Scamahorne v. Commonwealth, 376 S.W. 2d 686 (Ky. Ct. App. 1964). A final judgment is required in order to sustain an application of the rule, just as it is for the kindred rule of res judicata. United States v. U.S. Smelting Refin. & M. Co., supra, 339 U.S. at 199, 70 S. Ct. at 544.
The doctrine of "law of the case" is also applied to the question of whether or not a decision made by a trial court during one stage of the litigation is binding throughout
the course of the action. 5 Am. Jur. 2d, supra at 189. The use of the doctrine in this situation avoids repetitious litigation of the same issue during the course of a single trial. With respect to this aspect of "law of the case" it has been generally stated that "the 'law of the case' concept is merely a non-binding decisional guide addressed to the good sense of the court in the form of 'a cautionary admonition' against relitigation 'when the occasion demands it.'" Ross Products, Inc. v. N.Y. Merchandise Co., 242 F. Supp. 878, 879 (S.D.N.Y. 1965). The distinction between the doctrine of "law of the case" and res judicata is readily apparent: "one directs discretion: the other supersedes it and compels judgment. In other words, in one it is a question of power, in the other of submission." Southern Ry. Co. v. Clift, 260 U.S. 316, 319, 43 S. Ct. 126, 127, 67 L. Ed. 283 (1922). "Law of the case" therefore operates as a discretionary rule of practice and not one of law. United States v. U.S. Smelting Refin. & M. Co., supra, 339 U.S. at 199, 70 S. Ct. at 544. See 5 Am. Jur. 2d, supra at 189, wherein it is stated:
The doctrine of the law of the case has certain affinities with, but is clearly distinguishable from, the doctrines of res judicata and stare decisis, principally on the ground that the rule of the law of the case operates only in the particular case and only as a rule of policy and not as one of law.
See also West Point Island Savings Ass'n v. Dover Tp. Comm., 54 N.J. 339, 344 (1969); United States v. U.S. Smelting Refin. & M. Co., supra.
Thus, "law of the case" may be applied in a situation where one judge decides a pretrial motion to suppress, but another judge conducts the trial. In such a case, the decision rendered at the pretrial hearing may be said to be the "law of the case" during the subsequent trial. See State v. Bell, 89 N.J. Super. 437, 440 (App. Div. 1965), State v. Contursi, 44 N.J. 422, 425 (1965); State v. Fioravanti, ...