July 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
ROY HERMALYN, DEFENDANT-RESPONDENT
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-11-2085.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 30, 2012 --
Before Judges Reisner and Simonelli.
By leave granted, the State appeals from a September 1, 2011 order of the trial court, dismissing with prejudice count twenty-three of a multi-count indictment against defendant Roy Hermalyn. This count charged defendant with second-degree official misconduct by engaging in sexual conduct with the victim while defendant was a public servant. N.J.S.A. 2C:30-2a.*fn1
The trial court held that the State's attempt to re-try defendant on this count violated the Double Jeopardy Clause. We agree, and affirm.
The history of this case was described at length in our two prior opinions, State v. Hermalyn, Docket Nos. A-2700-07, A-4003-07 (App. Div. Jan. 9, 2009) (Hermalyn I), and State v. Hermalyn, A-1669-09 (April 28, 2010) (Hermalyn II). To summarize, in a twenty-seven-count indictment, the State charged defendant, an assistant school superintendent, with committing a litany of sexual offenses against three students, J.P., E.P., and J.M.G.
After a trial, the jury acquitted defendant of all counts relating to E.P. With respect to J.P, the jury acquitted defendant of every count of the indictment that accused him of committing a specific sexual act with J.P, but convicted him of "official misconduct by sexual conduct with [J.P.]" and "endangering the welfare of [a] child." The jury convicted defendant of "official misconduct by sexual conduct" with J.M.G and "criminal sexual contact by force by touching [J.M.G.'s] chest." The jury acquitted defendant of the other specific sexual allegations - allegedly touching J.M.G.'s penis, touching J.M.G.'s inner thigh, and touching his own penis "in the view of [J.M.G.]."
On defendant's direct appeal, we reversed his conviction and remanded for a re-trial on the counts concerning J.P. and J.M.G. on which defendant was convicted (the "convicted counts"). We based our decision on the following facts. During jury deliberations a sheriff's officer improperly advised jurors that they had to render a unanimous verdict on all counts. At a hearing held after the verdict, one of the jurors confirmed that, but for the sheriff's officer's comment, she would have voted to acquit defendant on at least count twenty-six, which accused him of touching J.M.G.'s chest, and possibly on the other count as well. The State conceded that the officer's remark was improper. We concluded that at least one, and possibly several, jurors construed the remark as meaning that the jury was not allowed to deadlock; found that the taint extended to all of the convicted counts; and ordered a retrial as to those counts. The Supreme Court denied the State's motion for leave to appeal from our decision. State v. Hermalyn, M-837 (March 19, 2009).
On remand, the defense moved before the trial court to dismiss the remaining counts concerning J.P., on grounds of double jeopardy and collateral estoppel. The trial court granted the motion, but in an unreported opinion, we remanded the matter to the trial court for further consideration. Notably, our opinion indicated our inclination to regard the counts on which we had reversed defendant's conviction (the "vacated counts") as a nullity, analogous to a situation in which there is a hung jury on certain counts. See Yeager v. United States, 557 U.S. 110, 120, 129 S. Ct. 2360, 2367, 174 L. Ed. 2d 78, 88 (2009).
We directed the trial judge on remand to focus on the counts on which the first jury had acquitted defendant (the "acquitted counts") and to apply the analysis set forth in Yeager. In particular, we directed the judge to decide whether "based on the way the case was actually presented," the first jury had necessarily decided that defendant did not commit the predicate sexual acts on which the vacated counts were based. Hermalyn II, supra, slip op. at 12. We indicated that we could not perform that analysis, because the State had not provided us with the transcripts from the first trial.*fn2 Id. at 3, 7-8.
On remand, by order dated October 27, 2010, the judge dismissed the charges relating to J.P., on the grounds that "the sexual conduct involving J.P. alleged in counts one and two [the vacated counts] was identical to the sexual conduct alleged in counts three through sixteen [the acquitted counts]." The judge further found that the "matters put in issue and necessarily decided by the jury were whether" defendant committed the sexual conduct specified in the acquitted counts. And he found that the jury's verdict on the acquitted counts "determined that the sexual conduct did not take place." He therefore concluded that a re-trial on the first two counts was barred by "principles of double jeopardy and collateral estoppel." By order dated January 25, 2011, we denied the State's motion for leave to appeal.
With respect to J.M.G., the defense filed a motion to require the State to file a bill of particulars concerning counts twenty-three and twenty-six, and to dismiss count twenty-three. Count twenty-six alleged that on some unspecified dates between December 1, 2002 and February 1, 2004, defendant "intentionally" touched J.M.G.'s chest for sexual purposes. Count twenty-three alleged in general terms that on some unspecified dates during that same time period, defendant "with purpose to obtain a benefit for himself and/or injure J.M.G.," committed official misconduct "by sexual conduct."
Rather than filing a bill of particulars, the State filed a brief in opposition to the motion, setting forth the evidence it intended to present on a re-trial. However, the State failed to specify the dates of the alleged crimes. Further, the State's brief indicated that, with the exception of the specific acts of touching J.M.G.'s penis and inner thigh and masturbating, it intended to present essentially all of the same evidence it presented in the first trial, including all of the incidents during which those specific acts were alleged to have occurred.
In an oral opinion, the motion judge, who had also presided over the original trial and all of the prior proceedings on remand, determined that count twenty-three must be dismissed.*fn3
He first noted that, according to the State, J.M.G. withdrew from the local public school system in July of 2003. He further considered that the State had not provided "specific times" concerning "the allegations of count twenty-six [touching J.M.G.'s chest] which forms the basis of [the] misconduct in count [twenty-three]." He also recognized that "for count [twenty-three] to stand" the court "need[ed] to be sure . . . that it relates to something that was not part of the jury's mind set in the acquittal." He further noted the lack of specificity in J.M.G.'s trial testimony.
Based on these considerations, the judge found that the State's proofs were too nebulous to establish that the alleged misconduct occurred while J.M.G. was a student, and after reviewing the trial record, he could not be certain that the charged acts were not those on which the jury acquitted defendant. He emphasized "that's the real problem . . . how do I know that those circumstances [the alleged sexual conduct committed while J.M.G. was a student] were not the circumstances that enabled this jury to find Mr. Hermalyn not guilty on a whole number of counts. I can't."
Because it is relevant to the double jeopardy issue, we next consider how the State presented the charges on the first trial and how the defense responded. In her opening statement, the prosecutor told the jury that defendant targeted three teenage students who were undocumented aliens and spoke little English. She asserted that defendant groomed the young men by offering them help with school work and small gifts, and then eventually made sexual overtures to them. And she explained that the victims were reluctant to come forward because they were embarrassed, and they were also afraid to complain due to their illegal immigration status.
In his opening statement, defense counsel contended that defendant's offers of assistance to the young men were entirely benign, and that the charges were completely false and were "driven by motive[s] of money and revenge." He pointed out that the alleged victims had filed a civil lawsuit seeking millions of dollars, and that the guidance counselor who had encouraged them to pursue the accusations and file the civil lawsuit was someone defendant had demoted. He pointed out that there were no corroborating witnesses, and that the secretaries who sat outside defendant's office, where the young men claimed some of the abuse took place, had never seen any of them enter the office.
J.M.G. testified through an interpreter. He came to the United States when he was seventeen. When he started school in New Jersey he did not speak English. He testified that he met defendant in the school cafeteria, in 2001. At that time, they communicated through an interpreter because defendant spoke very little Spanish. Starting in December 2002, defendant began making sexual overtures. J.M.G. described an incident that occurred in defendant's office, which was in a different school than the one J.M.G. attended. In that incident, defendant gave him a massage. In another incident, defendant came to J.M.G.'s home, took J.M.G. into his bedroom and insisted on giving him a massage and touching his penis. He also testified that on some unspecified date, defendant gave him a ride to the mall. According to J.M.G., while defendant was driving the car, he asked J.M.G. about his girlfriend, touched J.M.G.'s legs and penis, and tried to masturbate him. He testified that this also happened on another occasion when defendant drove him home after paying him to do some work at defendant's house. On yet another occasion, defendant asked him to do work at defendant's home, and then showed him a pornographic movie, touched J.M.G.'s penis and asked him to masturbate. While J.M.G. was masturbating, defendant was also masturbating. On another occasion, J.M.G claimed that defendant had him do some work at defendant's father's house. After that work, defendant massaged J.M.G. and touched his penis.
According to J.M.G., in June 2003, defendant encouraged him to drop out of high school and get a job. Defendant told J.M.G. that he should "work and save money to buy an apartment" so that defendant could visit J.M.G. at the apartment without anyone interrupting them. J.M.G. testified that in September 2003, he enrolled at Paramus Technical School, where he attended half the day at the technical school and half the day at the regular high school, until November 2003. At some point, he alleged that he was "kicked out" of the high school, and he went to talk to the guidance counselor, Luis Sanchez. He told Sanchez that defendant had molested him. Sanchez assisted him to tell several teachers and principals at the high school, and then helped him to find an attorney to file a lawsuit to help him get re-enrolled in the high school. J.M.G. claimed he did not know that the lawyer, who specialized in personal injury cases, had also filed a suit for money damages on his behalf. J.M.G. testified that he re-enrolled at Paramus Technical School in February 2004.
On re-direct examination, J.M.G. described an incident in which defendant forcefully put his knee on J.M.G.'s chest, told him to defend himself, and then said he was only joking and kissed him on the cheek. J.M.G. did not indicate when this incident occurred.
School employee Florence Eddings, who was called as the State's witness, testified on cross-examination that J.M.G. was "exited" from the high school on July 1, 2003, with her assistance and that of a guidance counselor other than Sanchez, for legitimate educational reasons. She explained that J.M.G. needed to get into a GED program, because at age nineteen he was still only in ninth grade, he did not have enough credits to graduate, and there was no chance that he would earn sufficient credits to graduate by the time he turned twenty-one. Regarding the allegation that defendant gave J.M.G. clothing and other gifts, Eddings testified on cross-examination that many of the school's students were living in poverty and it was not at all unusual for teachers and other school employees to donate clothing and other necessities to the students.
Sanchez, who was J.M.G.'s guidance counselor during the regular school year, testified that he strongly disagreed with the decision to transfer J.M.G. out of the high school, although he conceded that he was on vacation in July 2003 and was therefore unavailable for consultation. On cross-examination, he admitted referring J.M.G. and the other two students to an attorney who specialized in personal injury lawsuits. He insisted that he harbored no resentment over his own transfer to an elementary school, and further insisted that he had nothing to do with the outpouring of community protest that followed the transfer and that resulted in his return to the high school six months thereafter.
In his closing argument, defense counsel once again contended that the charges were entirely false, were filed at Sanchez's behest as revenge, and were pursued in order to allow the accusers to win a civil lawsuit. He argued that the accusers were uniformly incredible in their testimony. He pointed out that J.M.G. testified that he met with defendant at the school in October 2001, although the record reflected that defendant had not even been hired to work for the school district at that time.
In her summation, the prosecutor emphasized the incident in which J.M.G. testified that defendant encouraged J.M.G. to masturbate in front of him. She also alleged that asking J.M.G. to "discuss the details of his relationship with women" was "sexual conduct, part of the official misconduct charge." She also referred to the incident in which defendant placed his knees on J.M.G.'s chest.
She summarized her case as follows:
The defendant used his office literally and figuratively to gain access to students, to ply them with gifts, to bring them closer, to call them at home, all for one goal: To molest them. Because these are secret crimes, because these are crimes that make the victims feel ashamed and culpable . . . The judge charged the jury that
Proof of a criminal act is not required to find Roy Hermalyn guilty of [official misconduct]. But proof beyond a reasonable doubt of sexual conduct is required to return a conviction of official misconduct.
As you know, Roy Hermalyn is charged with other criminal offenses. The State alleges that these other offenses constitute the basis for the charge of official misconduct. You must consider each charge separately based on the evidence produced in support of that charge. The defendant may be found guilty of official misconduct even where he is acquitted of the underlying criminal charge if the State has proven his guilt of official misconduct beyond a reasonable doubt.
. . . . Here, the State alleges that the benefit to Roy Hermalyn is sexual conduct with . . . [J.M.G.] . . . and that the harm to . . . [J.M.G.] . . . is being subjected to sexual conduct.
. . . Mere gift giving or meeting with students is not sufficient to return a verdict of guilt. To convict Mr. Hermalyn of official misconduct, there must be proof beyond a reasonable doubt of sexual conduct.
In defining criminal sexual contact, the judge explained to the jury that the State was alleging that defendant used physical force to commit sexual contact, and defined physical force as committing a sexual contact without the victim's freely-given, affirmative consent.
Although an indictment is not to be dismissed except on the clearest grounds, we will not disturb a trial judge's decision to dismiss an indictment unless we find a manifest abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). We find no abuse of discretion here.
We conclude that the judge's decision was consistent with applicable double jeopardy principles. As the United States Supreme Court held in Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S. Ct. 1189, 1195, 25 L. Ed. 2d 469, 476-77 (1970), the Double Jeopardy Clause includes the bar of collateral estoppel. See U.S. Const. Amend. V; N.J. Const. art. I, ¶ 11; State v. Salter, 425 N.J. Super. 504, 518 (App. Div. 2012). As the Court defined it - "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit" - collateral estoppel applies "'to a former judgment in a criminal case.'"
Ashe, supra, 397 U.S. at 443, 90 S. Ct. at 1194, 25 L. Ed. 2d at 475 (quoting United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961)). Collateral estoppel may bar a later prosecution where the jury's acquittal in a prior case necessarily demonstrated its rejection of the essential facts on which the State sought to base the second prosecution. See State v. Cormier, 46 N.J. 494, 509 (1966).
In Yeager, the Court held that when a defendant is acquitted on some charges and obtains a hung jury on others, collateral estoppel principles may apply to the State's attempt to retry the defendant on the "hung counts." Yeager, supra, 557 U.S. at 121-23, 129 S. Ct. at 2368-69, 174 L. Ed. 2d at 90. In deciding a collateral estoppel argument, the jury's failure to return a verdict on the hung counts must be treated as a "nonevent." Id. at 120, 129 S. Ct. at 2367, 174 L. Ed. 2d at 88. That is, the trial court must not speculate on the jury's reasons for being unable to return a verdict on some counts, and instead should focus on the significance of the acquittal. Id. at 119-23, 129 S. Ct. at 2367-68, 174 L. Ed. 2d at 88-90.
This focus should not be mechanical or technical, but practical, in light of the way the first case was actually tried. Id. at 119-20, 129 S. Ct. at 2367, 174 L. Ed. 2d at 88. Thus, a court hearing a double jeopardy motion based on collateral estoppel must closely scrutinize the record of the first trial to determine what was actually put in issue and necessarily decided by the jury:
In Ashe, we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial. In that case, six poker players were robbed by a group of masked men. Ashe was charged with--and acquitted of--robbing Donald Knight, one of the six players. The State sought to retry Ashe for the robbery of another poker player only weeks after the first jury had acquitted him. The second prosecution was successful: Facing "substantially stronger" testimony from "witnesses [who] were for the most part the same," Ashe was convicted and sentenced to a 35-year prison term. We concluded that the subsequent prosecution was constitutionally prohibited. Because the only contested issue at the first trial was whether Ashe was one of the robbers, we held that the jury's verdict of acquittal collaterally estopped the State from trying him for robbing a different player during the same criminal episode. We explained that "when an issue of ultimate fact has once been determined by a valid and final judgment" of acquittal, it "cannot again be litigated" in a second trial for a separate offense. To decipher what a jury has necessarily decided, we held that courts should "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." We explained that the inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." [Id. at 119-20, 129 S. Ct. at 2366-67, 174 L. Ed. 2d at 87-88 (internal citations omitted).]
Here, where misconduct by a sheriff's officer connected with the trial deprived defendant of a hung jury on counts twenty-three and twenty-six, we find it appropriate to treat those vacated counts as a "nonevent," the way the Yeager Court treated the hung counts in that case. Thus, we focus only on the significance of the acquitted counts, viewed through the lens of the trial record.
It is clear to us from the record presented on this appeal that both sides presented the case as an "all or nothing" proposition. In other words, the State portrayed defendant as a molester who committed all of the crimes charged, with no fall-back position. The defense portrayed the charges as complete falsehoods, motivated by the victims' desire to win a civil money judgment and by Sanchez's desire for revenge against defendant. Unlike some cases, in which a defendant admits to minor sexual contact with a victim but denies penetration or other serious wrongdoing, in this case the defense denied all wrongdoing. Moreover, unlike State v. Parker, 124 N.J. 628, 632 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992), the victim did not recant any of his initial allegations.
We agree with the State that defendant could have been convicted of official misconduct based on sexual conduct that was not criminal. Id. at 640-41; see State v. Stevens, 115 N.J. 289, 304-05 (1989). The problem in this case, however, is that the non-criminal and criminal sexual allegations were inextricably intertwined in each incident. As this case was tried, there was no basis for the jury to parse out the sexual conduct alleged in each incident and decide that some conduct happened and other conduct did not. The incidents either happened as J.M.G. alleged or they did not happen. See Ashe, supra, 397 U.S. at 445-46, 90 S. Ct. 1195-96, 25 L. Ed. 2d at 476.
Further, as in State v. Salter, supra, the State in this case failed to provide specifics, either through J.M.G.'s testimony, or on the verdict sheet, pinpointing precisely which incidents counts twenty-two, twenty-four and twenty-five (the acquitted counts) related to or when those incidents allegedly occurred. See Salter, supra, 425 N.J. Super. at 522. J.M.G. testified about several incidents in which defendant allegedly touched his penis, or touched J.M.G.'s inner thigh. He described a number of incidents in which defendant allegedly gave him a massage, which culminated in defendant touching J.M.G.'s penis. He also described at least two incidents that occurred in defendant's car, when defendant both asked him to talk about sex with his girlfriend and touched J.M.G. on various parts of his body including his penis - all while defendant was allegedly driving the car. The prosecutor did not ask J.M.G. to specify dates for any of these incidents.
Given the way this case was tried, we conclude that the jury's not guilty verdict on the acquitted counts represented their conclusion that those entire incidents simply did not happen. We share the motion judge's concern that if the State is permitted to retry defendant on count twenty-three, it will use the same evidence that the jury already rejected in acquitting defendant. We find no basis to second-guess the trial judge, who sat through the entire trial, heard all the testimony, and had a better feel for the case than we do. See Jastram v. Kruse, 197 N.J. 216, 230-31 (2008); State v. Locurto, 157 N.J. 463, 471 (1999).
The State's proffer of the evidence it wishes to use on the re-trial only reaffirms our faith in the trial judge's conclusion. The State avers that it will, for example, introduce evidence of all the alleged sexual conversations, massages and gropings - but will simply leave out the details that defendant allegedly touched J.M.G.'s penis and inner thigh, or touched his own penis, during those incidents. In other words, it will just re-package the same evidence and re-present it. On this record, such a re-prosecution is prohibited by double jeopardy and collateral estoppel principles.
Moreover, because the State failed to specify or to elicit from J.M.G. a date, or even a general time-frame, when the forcible chest-touching incident occurred, we cannot find any abuse of discretion in the motion judge's determination that a re-trial of count twenty-three based on that incident is barred. Indeed, in the transcript, the incident, which J.M.G. only testified about briefly on re-direct, appeared almost as an afterthought with no context provided. There is no evidence that the incident occurred while he was a student or while he was under defendant's authority as a school employee.*fn4
While we do not take this step lightly, in large part the result here stems from the State's litigation strategy in this case. As we observed in Salter, "it has long been recognized that 'the language of [the indictment] must be sufficiently detailed to avoid the risk of double jeopardy, successive prosecutions for the same transgression.'" Salter, supra, 425 N.J. Super. at 522 (citation omitted). In this case, the State presented vague and general allegations in the indictment, with no specific dates. The State presented the trial evidence in similar fashion, with no meaningful effort to establish time-frames, and it did not propose verdict questions distinguishing among the various incidents on which the charges were based. The State's trial court motion brief, which apparently also contained its response to the demand for particulars, was equally vague. We will not disturb the trial judge's conclusion that a retrial would violate double jeopardy principles.