For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Clifford and Schreiber. For reversal -- Justice Pashman and Judge Conford. The opinion of the Court was delivered by Sullivan, J. Conford, P.J.A.D., Temporarily Assigned (dissenting). Justice Pashman joins in this opinion.
This case presents the question whether a defendant in a criminal case is subjected to double jeopardy by the State appealing a judgment of acquittal entered by the trial court after a trial in which the jury has returned a verdict of guilty. We conclude that such an appeal does not subject a defendant to double jeopardy under either our Federal or State Constitutions.
Defendant Julian Kleinwaks was tried by jury and found guilty of conspiracy to operate a lottery, working as a clerk-copyist in a business of lottery and possession of lottery slips. Subsequent to the entry of judgment of conviction, defendant filed a timely motion for a judgment of acquittal*fn1 (R. 3:18-2). Following a hearing on the motion the trial court vacated the judgment of conviction, and ordered that a judgment of acquittal be entered on all three charges on the ground that there was insufficient evidence in the case to present a jury issue as to defendant's guilt.
The State appealed to the Appellate Division which held that the trial court had erred in its ruling, as there was sufficent evidence, direct and circumstantial, to convict. However, the Appellate Division agreed with defendant's appellate contention that the prosecutor had committed reversible error in certain comments made during summation.
Although the trial court had charged the jury to disregard the comments, the Appellate Division felt it was highly prejudicial to defendant, considering the circumstantial nature of the proofs. Therefore, while the judgment of acquittal n.o.v. entered by the trial court was reversed, the judgment of conviction was not reinstated. Instead, the matter was remanded for a new trial.*fn2
The Appellate Division found no merit in defendant's contention that R. 2:3-1(b)(3), which permits the State to appeal a judgment of acquittal entered in accordance with R. 3:18-2 (judgment n.o.v.) violates the double jeopardy clause of the Fifth Amendment of the United States Constitution.
We granted defendant's petition for certification, 67 N.J. 76 (1975), principally to consider his Fifth Amendment argument. Following the grant of certification, the United States Supreme Court decided United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975); United States v. Jenkins, 420 U.S. 358, 95 S. Ct. 1006, 43 L. Ed. 2d 250 (1975) and Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975) which have a direct bearing on the Fifth Amendment issue.
First we consider defendant's argument that, aside from his Fifth Amendment contention, the evidence presented at trial was insufficient to present a jury issue as to his guilt and the trial judge was correct in granting a judgment of acquittal n.o.v.
It is unnecessary to detail all of the evidence. We have reviewed it and conclude that the State's proofs, including the inferences that could reasonably be drawn therefrom not only were sufficient to present a jury question as to defendant's guilt, but also were adequate to sustain defendant's conviction of the charges presented.
As heretofore noted, defendant's basic contention is that the double jeopardy clause of the Fifth Amendment of the United States Constitution bars the State from appealing a judgment of acquittal entered n.o.v. by a trial judge after a jury verdict of guilty, and that R. 2:3-1(b)(3) which allows such an appeal by the State is unconstitutional for that reason.
The constitutionality of R. 2:3-1(b)(3) was considered in State v. Kluber, 130 N.J. Super. 336 (App. Div. 1974).
In that case the defendant was tried on charges of breaking and entering with intent to steal, and larceny. At the
trial, the jury was unable to agree on a verdict and was discharged by the trial judge. Subsequently, defendant moved under R. 3:18-2 for a judgment of acquittal after discharge of jury. The motion was granted by the trial judge. The State appealed pursuant to R. 2:3-1(b)(3) and defendant raised the contention that the State could not appeal in such a situation; that R. 2:3-1(b)(3) violates the prohibition against double jeopardy embodied in the Fifth Amendment of the United States Constitution and Article I, paragraph 11 of our State Constitution.*fn3
The Appellate Division found no merit in defendant's contention. It held that R. 2:3-1(b)(3) was constitutional and that the State could appeal from a judgment of acquittal n.o.v. entered under R. 3:18-2 without violating the constitutional provision against double jeopardy. In reaching its decision the Appellate Division relied on the rationale of State v. Sims, 65 N.J. 359 (1974) in which this Court upheld the right of the State, upon leave granted, to appeal from an order of the trial court granting defendant a new trial after the trial jury had returned a verdict of guilty.
In United States v. Wilson, supra, the defendant was tried in the Federal District Court on a charge of converting union funds to his own use. However, following a jury verdict of guilty, the trial judge granted a motion to dismiss the indictment on the ground of prejudicial delay between the offense and the indictment. The Government sought to appeal the dismissal but the Third Circuit held that the double jeopardy clause of the Fifth Amendment barred review of the District Court's ruling. 492 F.2d 1345.
The United States Supreme Court granted certiorari and, in an opinion written by Justice Marshall, held that when a trial judge dismisses an indictment after a verdict of guilty has been entered by the trier of fact, the Government may
appeal from that ruling without running afoul of the double jeopardy clause of the Fifth Amendment. The opinion noted that the appeal, if successful, would not subject defendant to a second prosecution, but would merely reinstate the jury's verdict.
In a companion case, United States v. Jenkins, supra, 420 U.S. at 365, 95 S. Ct. at 1011, 43 L. Ed. 2d at 256-257, the same issue was summarized as follows:
When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal. United States v. Wilson, 420 U.S. at 344-345, 352-353, 95 S. Ct. at 1022, 1026, [43 L. Ed. 2d 242, 246-247.] When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict. To be sure, the defendant would prefer that the Government not be permitted to appeal or that the judgment of conviction not be entered, but this interest of the defendant is not one that the Double Jeopardy Clause was designed to protect.
Wilson and Jenkins stand for the proposition that the double jeopardy clause of the Fifth Amendment is directed at the threat of multiple prosecutions for the same offense and not at those government appeals which, if successful, would not require a new trial. In Serfass, supra, 420 U.S. at 392, 95 S. Ct. at 1064, 43 L. Ed. 2d at 276, Chief Justice Burger speaking for an almost unanimous court stated that the word "acquittal" has no talismanic quality for purposes of the double jeopardy clause and that prior pronouncements of the court that there can be no appeal after an acquittal, "cannot be divorced from the procedural context in which the action so characterized was taken."
These decisions are controlling on the several states insofar as interpretation and application of the federal constitutional provision against double jeopardy is concerned and are dispositive of defendant's Fifth Amendment argument.
However, a state is free as a matter of its own law to afford an individual greater protection than is ...