For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. Dissenting -- Justice Pashman. The opinion of the Court was delivered by Schreiber, J. Conford, P.J.A.D., Temporarily Assigned (concurring). Justice Clifford joins in this opinion. Pashman, J. (dissenting). Conford, P.J.A.D., and Clifford, J., concurring in the result.
The defendant Richard L. Rechtschaffer was indicted on two counts, (1) possession of more than 25 grams of marihuana in violation of N.J.S.A. 24:21-20 a(3) and (2) possession of marihuana with intent to distribute contrary to N.J.S.A. 24:21-19 a(1). During the trial, the court declared a mistrial of the second count, and the proceedings continued. The jury found the defendant guilty of possession. After the defendant's motion for dismissal of the second count on the ground of double jeopardy was denied, he was found guilty of possession with an intent to distribute at a second trial.
The defendant appealed from the denial of his motion for dismissal and the judgment of conviction on the second count. The Appellate Division affirmed the judgment but vacated the earlier possession conviction, holding that it had merged into the conviction of possession with distributive
intent. We granted the defendant's petition for certification. 68 N.J. 144 (1975).
The facts adduced by the State at both trials were substantially the same, and the pertinent facts may be summarized as follows: The defendant, a student at Fairleigh Dickinson University, lived in a dormitory on the campus. He and five fellow students occupied a suite which contained a living room, bathroom and three bedrooms. Two narcotics investigators from the Morris County prosecutor's office, John Dempsey and Thomas Jennings, had been operating as undercover agents at the University. On November 6, 1972 they visited the defendant in his suite. Dempsey attempted to purchase some marihuana from the defendant, who explained that the marihuana which he had on hand was unusable because it was wet and green. However, he offered to obtain and sell Dempsey an ounce of marihuana for $20. Dempsey agreed and the defendant left the apartment presumably to acquire the marihuana.
During defendant's absence, Florham Park police officers and Morris County investigators armed with a search warrant entered the apartment and placed all the occupants, including the undercover agents, under arrest. Shortly thereafter the defendant returned to the apartment and he too was placed under arrest. He gave the police 20 grams of marihuana which he had on his person and disclosed 118 grams packaged in bags located in a parka which was hanging in his clothes closet and contained in a tin in his bedroom. The defendant, three roommates, Dempsey and Jennings were then incarcerated in the Florham Park Police Department jail.
At the initial trial, part of defendant's cross-examination of Dempsey was directed to what transpired after the arrest.
Q. * * * Let's take November 6, 1972. Did you talk to the defendant on that day?
Q. Other than the conversations you told us about here today?
A. After he was arrested --
Q. After he was arrested?
Q. Did he seem upset to you?
Q. Very upset, isn't that a fact?
A. I don't know how upset. He, you know --
Q. He said certain things to you and you, in turn, said things to him, isn't that correct?
A. Yes, we had a conversation.
Q. All right. In fact, would you say he was kind of antagonistic to you?
Q. Later, some subsequent time?
MR. WEINSTEIN: Any time thereafter.
MR. PARMIGIANI: Your Honor, I would ask him to be more specific. It's very difficult to answer.
THE COURT: Of course, You were at the 6th. If you are changing that date, tell him.
MR. WEINSTEIN: This question is as to the 6th.
THE WITNESS: He wasn't antagonistic toward me.
On redirect examination the following question was asked and answer given with respect to the conversation between Dempsey and the defendant after the arrest on November 6, 1972:
Q. Did Mr. Rechtschaffer ever make any comment as to what he would do if he found out the person who informed on him?
A. Yes, sir. He did. He advised that if he found out who the individual was that informed on him he would take his hunting knife and kill him.
The defendant moved for a mistrial on both counts because of this "highly prejudicial statement." The trial court agreed the statement was prejudicial but rationalized that since defense counsel had admitted defendant's possession of more than 25 grams of marihuana in his opening statement, the defendant would not be prejudiced by continuing the trial on the first count (possession). Therefore the court declared a mistrial, over the objections of both the defendant and the prosecutor, only with respect to the second count which charged possession with intent to distribute.
The prosecutor pointed out that "that would constitute double jeopardy as to the trial of the Second Count." The court replied: "Of course it will. Of course. * * * I think double jeopardy may be here but that is not for me to decide. The State may be confronted with double jeopardy subsequently when you move this; if you move it but you can proceed * * * I will grant it as to the Second Count, only and you can proceed on the First Count."
When asked if he wanted to proceed with the trial, defense counsel replied in the negative. The court then directed him to "go ahead" and the trial proceeded. The defendant did not take the stand and produced no evidence.*fn1 No distinction was made by the prosecutor in summation or the trial court in its charge between the 118 grams of marihuana in the parka and tin can and the 20 grams on the defendant's person. The jury found the defendant guilty of possession of more than 25 grams of marihuana, which may have included the 20 grams found on his person.
The defendant moved for dismissal of the second count on the ground of double jeopardy. The trial court in a letter opinion denied the motion. It found that the prosecutor had acted in good faith and stated that "[t]he exclusive motivation behind the declaration of the mistrial was the concern for protecting defendant's interests, and therefore the doctrine of double jeopardy does not apply."
The defendant was thereafter tried on the intent to distribute count. As previously indicated the prosecution produced substantially the same evidence as it had at the first trial. However, now the defendant testified in his own behalf. He admitted possession of the marihuana in his
parka and on his person, but claimed that none of the marihuana was for sale and that it was entirely for his personal use. He became suspicious when Dempsey sought to purchase some marihuana and, wanting some time to think about the situation, as a ruse he suggested that he had to leave the apartment to obtain the goods. He took a short walk and upon his return encountered the police. The defendant claimed that at all times the 20 grams of marihuana which he surrendered to the police had been on his person and for his own use. He flatly denied that he sold or intended to sell any of the marihuana.
As noted above the 20 grams found on his person may have been found by the jury to justify the possession conviction and the same 20 grams constituted the marihuana upon which the conviction of possession with intent to distribute was predicated. It follows, as the Appellate Division held, that the same evidence "was used to support both convictions."
The Appellate Division held that the mistrial granted sua sponte by the court did not preclude the later trial on double jeopardy grounds. It agreed with the trial court that the prosecutor acted in good faith, that Dempsey's answer resulted in prejudice which "far outweighed" its probative value, and that the exclusive motive of the trial court was to protect the defendant. The Appellate Division analogized the proceedings to one where there is an indictment with two charges and the jury convicts on one but cannot agree on the other. In that situation double jeopardy is no bar to retrial on the second charge. Although it disclaimed approval of the partial mistrial procedure, the Appellate Division implicitly sanctioned its use but merged the conviction of possession into the conviction for possession with intent to distribute. It vacated the conviction and sentence on possession and affirmed that on the possession with intent to distribute.
The defendant's primary thrust on appeal is that the partial mistrial was improperly granted by the court sua
sponte and that the possession conviction necessarily barred on double jeopardy grounds a second trial for possession with an intent to distribute the same marihuana whose possession had led to his first conviction.
There are language differences in the double jeopardy provisions in the Federal and State Constitutions. Article I, par. 11 of the New Jersey Constitution provides that:
No person shall, after acquittal, be tried for the same offense.
The Fifth Amendment of the Federal Constitution states:
Although the Fifth Amendment is facially broader, the state and federal clauses have been held coextensive in application. State v. Kleinwaks, 68 N.J. 328 (1975); State v. Farmer, 48 N.J. 145, 168 (1966), cert. den. 386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967); State v. Williams, 30 N.J. 105, 122 (1959). Furthermore, the proscription in the Fifth Amendment is applicable to the states by virtue of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), and accordingly the more restrictive proscription of the Federal Constitution is binding upon us as a matter of minimum protection. It is therefore appropriate that we consider the double jeopardy issue in the light of the federal cases.
It is basic that a defendant is entitled to have a trial proceed to its normal conclusion. Subsumed in this constitutional protection is the policy to be protected from the harassment of successive prosecutions, Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963), and to receive only one punishment for an offense. Generally speaking, a defendant is deemed subjected to jeopardy after a jury is impaneled and sworn. State v. Locklear, 16 N.J. 232, 235, 243 (1954). That
being so, the constitutional interdiction against being placed twice in jeopardy for the same offense would literally bar any subsequent trial in the absence of the defendant's consent. Such an unconscionable result was put to rest in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824), where the trial court had discharged a jury after it was unable to agree on a verdict. The defendant sought to ...