On appeal from the Superior Court, Appellate Division, whose opinion is reported at 155 N.J. Super. 431 (1978).
For affirmance -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler. For reversal -- None. The opinion of the court was delivered by Schreiber, J.
[79 NJ Page 331] The issues in this case concern the State's right to appeal from a judgment of dismissal, the propriety of granting a motion for judgment at the conclusion of the State's opening to the jury, and the application of the
Double Jeopardy Clause when a judgment of dismissal has been improvidently entered.
Defendant Clarence E. Lynch was indicted in Middlesex County as an accessory after the fact in violation of N.J.S.A. 2A:85-2. The indictment alleged that he, knowing that Carrie Speight had committed a high misdemeanor by distributing narcotics, provided her with transportation in the Borough of South River on December 19, 1974 for the purpose of preventing and hindering her apprehension. Defendant moved to dismiss the indictment on grounds of double jeopardy and fundamental fairness because he had been indicted, tried and acquitted in Burlington County of aiding and assisting Carrie Speight to escape apprehension in Bordentown on September 5, 1974. The motion was withdrawn when defense counsel learned that defendant had objected to a consolidation of the Middlesex and Burlington County indictments.
Before the trial started, the trial court advised defendant that Carrie Speight, who was confined to Clinton Correctional Institution for Women, was unavailable as a witness since she was scheduled for pre-surgery testing the next morning. Defendant stated that he could probably do without her testimony and desired to proceed. The assistant prosecutor remained silent during this colloquy and presumably was also willing to proceed in her absence.
The jury having been sworn, the prosecutor made his opening statement. He charged that defendant had been told by police officers that there was an outstanding warrant for the arrest of Carrie Speight for having committed a high misdemeanor, that defendant aided and assisted her by providing her with transportation to avoid arrest, and that the South River Police apprehended Speight and defendant in an automobile. In defense counsel's opening he conceded that Speight and defendant were in a car together in South River when apprehended, but contended that they had not been driving away to avoid arrest.
Before recessing until the State's first witness would be available, the trial court sua sponte questioned whether there was a problem at the heart of the case concerning proof of defendant's awareness of the outstanding warrant. Thereupon defense counsel moved to dismiss the action because the prosecutor had failed to make out a prima facie case in his opening.
Defense counsel's argument was bottomed on the prosecutor's failure to assert that defendant had actual knowledge that Speight was guilty of the particular high misdemeanor. After further colloquy with defense counsel, the court declared a recess during which defense counsel had an opportunity to locate legal precedents for his position. After the recess defense counsel presented some authority which he suggested supported his premise. In response, the prosecutor contended that the State need not prove that an accessory after the fact had personal knowledge of the crime which had allegedly been committed. Furthermore, the prosecutor stated that the State was prepared to prove that defendant was seated in an automobile nearby when Speight sold narcotics to an undercover agent, immediately after which she went to the car and handed the proceeds of the sale to defendant.
Defense counsel commented that this information concerning defendant's knowledge of the crime was a surprise and he requested that the prosecutor be restrained from offering such evidence. The prosecutor explained that he first became aware of this information during the recess. The trial court in an oral opinion held that it would not permit the State to prove defendant had personal knowledge of Speight's commission of the crime, that it would limit the State's proofs to show only that defendant knew of the warrant, and that it would be unfair to put defendant to a trial. It then concluded:
I hold that the State's proofs as represented by Mr. Graves [the prosecutor] would lack an essential element, namely the element of
proof of commission of a crime, that therefore a motion to dismiss at the end of the State's case would have to be granted. Assuming that the outside limits of the State's proofs would be as represented by Mr. Graves and as limited just a minute ago by me, I see no point in going through the charade and I would enter a motion, an order dismissing the indictment at this time. The indictment is dismissed, the defendant is discharged, the case is over.
The trial court entered a judgment dismissing the indictment and also signed an order of dismissal which stated a "judgment of acquittal" was granted and the indictment dismissed.
The State appealed. A divided Appellate Division affirmed. 155 N.J. Super. 431 (App. Div. 1978). The majority concluded that the State could not appeal because, if successful, a new trial would violate the federal and state protections against twice being placed in jeopardy for the same offense. The dissenting judge, however, reasoned that the trial court's judgment was not an acquittal and that therefore the Double Jeopardy Clause was not a bar. The case is before us by virtue of the State's appeal. R. 2:2-1(a).
A preliminary matter concerns whether the State's right to appeal is foreclosed because R. 2:3-1 does not provide for appeals by the State when a judgment is entered during trial. The Appellate Division held that the intent of R. 2:3-1 was to limit the State's right to appeal coextensively with new trial preclusions due to the federal and state constitutional Double Jeopardy Clauses. 155 N.J. Super. at 442. Accord, State v. Laganella, 144 N.J. Super. ...