On appeal from Superior Court, Law Division, Essex County.
Lynch, Crane and Larner. The opinion of the court was delivered by Larner, J.A.D. Crane, J.A.D. (concurring).
We granted leave to the State to appeal a pretrial ruling which held that an oral and a written statement of defendant would not be admissible at trial. Pursuant to R. 2:11-2, the matter was expedited and considered by this court after briefs and oral argument addressed to the merits of the appeal.
Preliminarily, we find it necessary to discuss the procedural history below because of defendant's contention that the State has no right of appeal and that leave was improvidently granted.
With the consent of both sides the trial judge conducted a voir dire hearing on the admissibility of the statements on the day of trial, prior to the commencement of the actual trial and before the jury was selected. The hearing took place after an informal "stipulation" by counsel off the record to the effect that "jeopardy would attach."
We have been advised that a practice has developed in Essex County and perhaps in other counties whereby the court asks for such a stipulation as a device to circumvent the normal procedure requiring an evidentiary hearing on the admissibility of defendant's statements to be held during trial. See State v. Yough , 49 N.J. 587, 590 (1967). Manifestly, such a charade has no rational basis and should be discontinued forthwith.
In fact, the stipulation, though agreed upon by both parties, is of no legal consequence in the determination of the State's right to seek leave to appeal. Such a right is granted to the State from an adverse ruling on an interlocutory order entered before trial by R. 2:3-1(b) and R. 2:5-6(a).
Defendant contends, however, that the mouthing of the words "jeopardy attached" in the guise of a stipulation estops the State from taking an appeal with the same force and effect as if jeopardy had actually attached by the commencement of a trial on the merits. Compare State v. Rechtschaffer , 70 N.J. 395 (1976); State v. Lynch , 155 N.J. Super. 431 (App. Div. 1978); State v. Laganella , 144 N.J. Super. 268, 286-290 (App. Div. 1976), app. dism. 74 N.J. 256 (1977). This contention is clearly without merit.
Furthermore, fairness and justice dictate that we disregard a stipulation which not only contravenes applicable law but also represents a studied effort to circumvent normal practice.
Aside from the question of the alleged double jeopardy bar to an appeal, there is no impediment to the consideration of the merits of this case on the appeal of the State. It is true that in State v. Yough, supra , the Supreme Court stated that pretrial exclusionary motions addressed to confessions should not be entertained until and unless the rules of practice are amended through formal adoption by the Supreme Court. See also, State v. Green , 49 N.J. 244 (1967); State v. Travis , 49 N.J. 428, 431, n. 1 (1967).
Nevertheless, four years later, without new rules on the subject, Justice Jacobs in State v. Graham , 59 N.J. 366 (1971), pointed out:
No pertinent formal rules have been promulgated to date and accordingly the authorized practice still is to hear such applications at rather than before trial. We understand that trial judges, in the exercise of their discretion, have occasionally heard such applications on the trial date but before actual selection of the jury and that after making their determinations they have immediately proceeded with the trial without any fragmentation or interruption. On a broad view, that course may be justified as representing a determination at rather than before trial within the contemplation of Green, Travis and Yough; in any event, we do not now disapprove it since it does serve to avoid the waste and inconvenience of having the members of a jury confined while the trial judge, in their absence, conducts a preliminary Miranda hearing or the like. [at 372-373]
Significantly, in State v. Yough, supra; State v. Graham, supra and State v. Godfrey , 131 N.J. Super. 168 (App. Div. 1974), aff'd o.b. 67 N.J. 267 (1975), the court considered the merits of the State's appeal from the suppression of defendant's confession despite the procedural aberration from the requirement that ...