Lynch, Morgan and Ard. The opinion of the court was delivered by Morgan, J.A.D. Lynch, P.J.A.D. (dissenting).
The State appeals from the order granting defendant's motion to dismiss the indictment made after the State's opening statement to the jury on the ground that the State failed to assert an essential element of the charge against defendant.
Defendant was indicted as an accessory after the fact (N.J.S.A. 2A:85-2) for allegedly aiding and assisting one Carrie Speight in avoiding apprehension by the police by providing her with transportation.
In his opening statement to the jury at trial the prosecutor stated that the State would prove that after Speight's indictment,
defendant, who had been living with Carrie Speight and her husband, had been told by the Mercer County Prosecutor's office that Speight was wanted on a warrant for her arrest, and that she had been indicted for a high misdemeanor and warned defendant that he should not assist or aid her in avoiding apprehension. According to the prosecutor, the State also intended to prove that defendant knew Speight was a fugitive from justice when he and Speight were arrested together in an automobile in South River, New Jersey.
Defendant moved to dismiss the indictment on the ground that the State had failed to state a case on opening in not asserting that defendant had actual knowledge that Speight was guilty of a high misdemeanor at the time he committed the acts described in the indictment. Although admitting that the State did not intend to prove defendant's actual knowledge of Speight's guilt of the crime charged against her, the prosecutor argued that such an allegation was unnecessary. The essential allegation, argues the State, is defendant's knowledge of an outstanding charge provided by law enforcement authorities and warrant for arrest on account of the commission of a high misdemeanor or any of the other offenses set forth in N.J.S.A. 2A:85-2 -- not actual knowledge of guilt thereof.
The judge deferred ruling on defendant's motion to dismiss until after the luncheon recess. When court reconvened the prosecutor announced to the court that during the luncheon interval he learned of the availability of testimony that defendant was present on the date and in the vicinity of Speight's offense and hence had actual knowledge of her guilt of the crime charged to her. As explained by the prosecutor:
During oral argument this court, on its own motion, questioned the State's right to appeal the order dismissing the indictment after the jury had been empaneled and sworn. Briefs on the matter were solicited and received. We conclude that the State cannot appeal this order.
The permissibility of State appeals from orders affecting the disposition of criminal cases depends, to a large extent, on whether such an appeal, if successful, would require defendant's retrial in violation of federal and state guarantees against twice being placed in jeopardy for the same offense. Hence, apart from court rules governing the matter, about which more later, inquiries concerning the State's power to appeal orders in criminal cases require consideration as to whether required proceedings subsequent to consideration of the appeal will offend that constitutional guarantee. State v. Sims , 65 N.J. 359, 370 (1974).
We are not unmindful of the recent redefinition of the parameters of double jeopardy protection by a trilogy of federal cases, 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), and the New Jersey cases which anticipated the foregoing or followed in their wake: State v. Sims, supra; State v. Kleinwaks , 68 N.J. 328 (1975); State v. Kluber , 130 N.J. Super. 336 (App. Div. 1974), certif. den. 67 N.J. 72 (1975); State v. Laganella , 144 N.J. Super. 268, 286 (App. Div. 1976). Basic to the holdings in Wilson-Jenkins-Serfass was the view that double jeopardy considerations are not offended where a successful State's appeal would not result in a retrial of defendant's guilt.
For example, in United States v. Wilson , a post-trial order of the trial court, which set aside the jury verdict of guilt and dismissed the indictment on the ground of delay between the offenses and indictment, was appealable by the State since appellate correction of the asserted error would not subject defendant to the harassment traditionally associated with multiple prosecutions. United States v. Wilson , 420 U.S. at 352, 95 S. Ct. 1026, 43 L. Ed. 2d at 247. On the other hand, in United States v. Jenkins , the trial court order dismissing defendant and discharging the indictment following a bench (a nonjury) trial was held not appealable by the State since a successful appeal would necessitate further proceedings resolving the factual issues pertinent to the elements of the offense charged. In Serfass v. United States , however, a pretrial order dismissing the indictment on the basis of affidavits submitted and oral stipulations of counsel was held appealable by the State since jeopardy had not attached at the time the challenged ruling was made. Nothing in any of these cases suggests that a trial error favoring a defendant could be corrected on the State's appeal if the successful result of the appeal would be defendant's retrial.
New Jersey cases followed suit. State v. Kleinwaks, supra , permitted a State's appeal from a judgment of acquittal
following vacation of a jury verdict of guilt. Correction of the challenged trial court action of vacating the guilty verdict would not be attended by defendant's retrial; the appeal could either result in an affirmance or reinstatement of the jury verdict. State v. Sims, supra , which preceded the Wilson-Jenkins-Serfass trilogy, is to the same effect. There, however, in issue was the appealability of a trial court order vacating a jury verdict of guilty with an accompanying order for a new trial. The ordered retrial, at defendant's request, would clearly not violate double jeopardy guarantees, and reinstatement of the jury's verdict with the attendant conviction thereon, at the request of the State on appeal, would not result in a retrial at all.
Again, the common ground of all of these pronouncements, state and federal, was that the permitted state appeal, if successful, would not result in a retrial. In Sims a retrial would be avoided by state success; the retrial which had been sought by defendant would result only from the State's failure. In Kleinwaks an appeal, successful or not, would result in no subsequent trial. In Serfass there was no first trial since jeopardy had not attached when the challenged order was made and hence any resulting trial would not constitute a second attempt by the State to secure conviction. The appeal in Jenkins was rejected because its success would necessitate further proceedings; Wilson is almost identical in its procedural underpinnings with our own Kleinwaks.
Since that trilogy, however, issues concerning the state's right to appeal trial court orders in criminal cases have continued unabated. In Lee v. United States , 432 U.S. 23, 97 S. Ct. 2141, 53 L. Ed. 2d 80 (1977), defense counsel moved, in the bench trial, after the State's opening, for a dismissal of the information charging theft on the ground that it failed to allege all of the requisite elements thereof under the state statute. Here, it should be noted that the motion was made before jeopardy attached. The motion was "denied at this time," with the judge indicating that on research [155 NJSuper Page 439] he would "give consideration as appears * * * warranted." Id. , 432 U.S. at 26, 97 S. Ct. 2144, 53 L. Ed. 2d at 84. The two-hour trial proceeded to conclusion, after which defendant moved for an acquittal on the ground of insufficient government proofs. That motion was denied, with the judge noting that it bordered on the frivolous. "Your client has been proven [sic] beyond any reasonable doubt in the world, there is no question about his guilt; none whatsoever." Id. , 432 U.S. at 26, 97 S. Ct. at 2144, 53 L. Ed. 2d at 85. Without presenting any evidence, the defense then renewed its motion, made earlier, concerning the sufficiency of the information. The trial judge reluctantly granted the motion and dismissed the charge. Thereafter, defendant was again charged with the same offense and, on substantially the same evidence as was adduced at the first trial, was convicted. His claim that the second trial was barred by the Double Jeopardy Clause was rejected by the Seventh Circuit, 539 F.2d 612 (1976), and again by the Supreme Court in Lee v. United States, supra. The court identified the critical inquiry as being "whether the order contemplates an end to all prosecution of the defendant for the offense charged." Id. , 432 U.S. at 30, 97 S. Ct. at 2146, 53 L. Ed. 2d at 87. Answering that inquiry from the record in that case, the court noted that "there can be little doubt that the court granted the motion to dismiss in this case in contemplation of just such a second prosecution." Id. Lee notes that the proceedings were terminated at defendant's request and with his consent notwithstanding the trial judge's announcement of his views concerning defendant's guilt of the charge on the proofs adduced. The original motion, made at the eleventh hour before trial and without any warning to the court or the government, was made before jeopardy attached. Although originally denied, "the court's remarks left little doubt that the denial was subject to further consideration at an available opportunity in the proceedings * * *." Id. , 432 U.S. at 33, 97 S. Ct. at 2147, 53 L. Ed. 2d at 89. Hence, although the motion was made before jeopardy attached,
it was decided after only because the lateness of the motion made a considered earlier ruling difficult. In these circumstances the court treated the dismissal as tantamount to a declaration of a mistrial and held the second trial not offensive to double jeopardy guarantees. Justice Brennan's concurring opinion stressed the element of lateness in the defense motion as virtually guaranteeing that the trial judge would delay a final ruling thereon until jeopardy had attached; had defense counsel afforded the trial judge opportunity to rule on the motion prior to trial, and had the judge failed to avail himself of this opportunity, the belated ruling, after attachment of jeopardy, would have foreclosed the second trial.
And finally, in United States v. Martin Linen Supply Co. , 430 U.S. 564, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977), the court held that a judgment of acquittal, being a disposition on the merits, entered after a jury had been discharged for failure to agree, barred defendant's retrial.*fn1 United States v. Sanford , 429 U.S. 14, 97 S. Ct. 20, 50 L. Ed. 2d 17 (1976), was distinguished on the ground that there the jury trial ended in a mistrial without a judgment of acquittal having been entered. The second trial was aborted by way of a pretrial order. Retrial, in Sanford , was not barred since an acquittal had not been granted after jeopardy attached and a jury never resolved the meritorious issue of guilt or innocence.
With this background in mind, we note that in the present matter the trial judge dismissed the indictment, after
jeopardy attached,*fn2 on the ground that the proofs the State announced it would produce during trial were, as a matter of law, insufficient for conviction. Nothing in the record suggests, even obliquely, that the trial judge contemplated a second trial of defendant, a consideration deemed critical in Lee, supra. Presentation of the proofs consistent with the State's representation, on opening and in colloquy of what they would be, was deemed a "charade"; the judge ruled that "the indictment is dismissed, the defendant discharged, the case is over." He advised counsel that he intended to tell the jury "merely that the State lacked an essential element and so I had to get rid of the case * * *." The order of dismissal reflected that "defendants [ sic ] motion for judgment of acquittal be granted * * *." We have no doubt from this record that when the trial judge dismissed the indictment, and indeed entered a judgment of acquittal, he regarded his disposition as a final one, favoring defendant, and no further proceedings were being contemplated. The decision was one on the merits. The ruling did not concern a technical insufficiency in the indictment made in the face of overwhelming actual proofs of guilt as in Jenkins. The indictment in the present matter went without challenge; rather, it was the perceived insufficiency of the proffered proofs which underlay the challenged order. We have no doubt but that entry of the order granting defendant's motion for an acquittal precluded retrial, and hence the State's appeal.
Moreover, the dismissal of this indictment, occurring during trial, is nonappealable by reason of R. 2:3-1 which permits an appeal by the State or, when appropriate, an application of leave to appeal, from a dismissal of an indictment only when such judgment is entered before or after
trial; by its express terms, the State is prohibited from appealing the dismissal of an indictment during trial. Although we agree with the comment in State v. Laganella , 144 N.J. Super. 268, 283 (App. Div. 1976), that R. 2:3-1 intended a limitation on the State's right to appeal no broader than the one imposed by the requirements of double jeopardy, we have no doubt that the reason for the broad language insulating dismissals of indictments during trial from appellate review stemmed from recognition that such dismissals almost invariably trigger double jeopardy concerns. The only exception to the rule proscribing second trials after a meritorious disposition of a first one on the merits can be found in United States v. Lee, supra. In Lee the judge dismissed the indictment for a technical insufficiency in circumstances where, it was found, he contemplated further proceedings. Because such was found to have been the trial judge's intentions, his dismissal was viewed as the functional equivalent of a mistrial declared at defendant's request and, at its best, touching only a technical matter despite proofs which established defendant's guilt to the satisfaction of the trial judge. In the present case, as we have noted, the trial judge clearly expressed the finality of his order which, on this record and in light of the meritorious nature of his ruling (right or wrong), cannot with any justification be regarded as the equivalent of a declaration of mistrial.
Laganella, supra , also involving a dismissal of an indictment during trial from which the State was permitted an appeal, is, in our view, clearly distinguishable therefrom even were we to agree with its essential holding. The trial judge in Laganella never intended to pass on the essential merits of the State's case; rather, the dismissal was based upon his perception of the impropriety of the State's trial strategy. Here, of course, no impropriety on the part of the State played any role in the dismissal; rather, the dismissal was based simply upon the trial judge's view that the announced State's proofs were insufficient as a matter of law. [155 NJSuper Page 443] We are not, however, unmindful of the procedural overlay to the trial court disposition which stemmed from the State's efforts, before the order dismissing the indictment, to overcome the perceived deficiency of the announced proofs. The refusal of the trial judge to permit the State to supplement its opening statement cannot, and for reasons already given, convert what was clearly intended to be a final disposition of the case on the merits as they were perceived to be, into a mistrial based upon procedural grounds of fairness. Indeed, even were we to view the failure of the trial judge, on his own motion, to mistry the case in order to permit defendant discovery of the State's newly discovered evidence as a mistaken exercise of his discretion, double jeopardy problems would nonetheless exist. Defendant did not seek a mistrial. Any such declaration would not have been with his consent. All defendant wanted was what he obtained -- dismissal of the charges and discharge from custody. In Downum v. United States , 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963), after a jury was selected and sworn, the trial judge granted the prosecutor's motion that the jury be discharged because a key witness essential to two of six counts was unavailable. Downum , in a 5-4 decision, held that the second trial, in which defendant was convicted of all counts, should not have been held because no "imperious necessity" had compelled the postponement and mistrial. 372 U.S. at 736, 83 S. Ct. 1034, 10 L. Ed. 2d 102. In this case defendant made no motion for a mistrial. If the judge's action in dismissing the indictment be viewed as a declaration of mistrial (which we submit it cannot be on the record), then it was done by the judge on his own motion, without defendant's request or consent, and, we would conclude, would not have been compelled by any "manifest necessity." United States v. Perez , 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824). Defendant was not consulted as to his wishes in the matter; he was not asked whether he would prefer to try the case to a conclusion on the State's supplemental proofs rather than being granted a mistrial.
He never expressed a preference for a mistrial without being asked. His only motion was for a dismissal, i.e. , an acquittal, based upon his assertion that the State's proposed proofs were inadequate for a conviction.
"It is basic that a defendant is entitled to have a trial proceed to its normal conclusion." State v. Rechtschaffer , 70 N.J. at 404. This fundamental right cannot be abridged, without a defendant's consent, by a trial judge's solicitude for a perceived unfairness to a defendant which defendant may not share. In any event, the propriety of a mistrial, insofar as it may bear on the possibility of a retrial thereafter, should not depend on the "motivation underlying the trial judge's action." United States v. Jorn , 400 U.S. 470, 483, 91 S. Ct. 547, 556, 27 L. Ed. 2d 543, 555 (1971). Justice Harlan, speaking for the plurality in Jorn , stressed that "the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings." 400 U.S. at 485, 91 S. Ct. 557, 27 L. Ed. 2d at 557.
The foregoing discussion is based upon the dissenter's view that the dismissal from which appeal is here being sought was tantamount to a mistrial. We stress our view that the record supports no such conclusion. We only point out that were we not correct in that view, nothing would be changed since manifest necessity for the aborting of the trial was not shown.
Laganella points, in justification of its conclusion, to the "public interest in seeing that there is a fair trial designed to end in a just and equitable judgment." State v. Laganella , 144 N.J. Super. at 290. This observation, indisputably true, however, begs the issue. The highest statement of where the public's interest lies in regard to retrials of defendants in criminal matters is found in the protection afforded them by the federal and state constitutional guarantees against twice being put in jeopardy for the same offense.
The honoring of such guarantees necessarily contemplates instances where a first trial may not have been a fair or equitable one and one in which the ultimate judgment does not fairly reflect the merits. The public's interest, as defined by these constitutional guarantees, is served by one trial of an accused's guilt on a charge -- no more. Once a defendant has been placed in jeopardy and there follows a disposition on the merits, fair or unfair, right or wrong, double jeopardy precludes a retrial against a defendant's wishes. That is the essence of the rights, state and federal, being asserted here which fully reflect the public interest they were designed to serve; diluting them by fine distinctions dependent upon the subjective evaluation of a reviewing court as to the correctness of the ruling which resulted in the premature termination of a first trial, or a trial judge's alleged abuse of his discretion in mistrying a case, or the correctness of his conclusions, factual or legal, perhaps serves one interest of the public, but at utter sacrifice of the predominant one, that embedded in our organic law as a protection against twice being placed in jeopardy for the same offense.
Since we conclude that the present appeal, if successful, would require defendant's retrial of a charge of which he was previously acquitted, it cannot be maintained. There exists, therefore, no necessity for ...