State v. Salter
425 N.J. Super. 504
| N.J. Super. Ct. App. Div. | 2012Background
- Salter was indicted on seven counts for alleged offenses against 12-year-old T.B. occurring in September 2006, with counts 1-2 for aggravated sexual assault by anal penetration, counts 3-4 for aggravated sexual assault by oral penetration, counts 5-6 for criminal sexual contact, and count 7 for endangering welfare.
- At trial, TB testified to multiple separate acts; the jury was not given a specific conduct basis for counts 1-6, and a verdict sheet initially asked about acts tied to the dates in counts 3-4, not distinguishing separate incidents.
- Following a bench discussion, the court removed references to “first event/second event” from the verdict sheet; the jury ultimately found not guilty on counts 1-2, guilty on count 4 (oral penetration), guilty on counts 5-6 (criminal sexual contact), and count 7 (endangering).
- Salter was sentenced to 15 years with 85% to be served on count 4, with concurrent sentences on counts 5-6 and merger of count 7 into count 4.
- An Appellate Division unpublished opinion reversed on grounds unrelated to the instant appeal and remanded for a new trial; on remand, the trial judge dismissed counts 4 and 6 as defective for double jeopardy and potential multiplicity.
- The State appealed the dismissal of counts 4 and 6; Salter cross-appealed by challenging retrial on count 4 as barred by double jeopardy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was count six properly dismissed as double jeopardy defective? | State contends two identical acts charged in counts five and six could be separately tried. | Salter contends double jeopardy and unfair notice prohibit charging two identical counts based on same conduct. | Count six dismissal reversed; fair notice supported two distinct charges. |
| Does retrial on count four violate double jeopardy given acquittal on count three? | Counts 3 and 4 refer to different acts; retrial on 4 is permissible. | Retrial risks double jeopardy because the evidence could be identical and the jury did not distinguish acts. | Retrial on count four potentially violates double jeopardy; remand for State to show prosecuting count four would not offend double jeopardy. |
| Is invited-error doctrine applicable to bar Salter’s double jeopardy claim? | State argues Salter invited error by urging the court to adopt a verdict sheet favorable to his position. | Salter did not raise trial error on the record; invited-error doctrine is inapplicable in this retrial context. | Invited-error doctrine does not govern; the State bears the burden to avoid double jeopardy in retrial. |
| What governing test applies to double jeopardy in this retrial context? | Blockburger/Evidence tests support separate offenses for counts 3 and 4; different conduct is alleged. | The lack of trial differentiation risks retrial for the same offense; the state must prove different offenses or different conduct. | Blockburger/Evidence framework applied; the evidence could be identical; retrial on count four may violate double jeopardy and requires dismissal/remand. |
Key Cases Cited
- State v. Hogan, 144 N.J. 216 (1996) (indictment validity and notice; discretion to dismiss indictment subject to abuse-of-discretion review)
- Wein v. State, 80 N.J. 491 (1979) (indictment sufficiency; required elements and notice to defendant)
- In re K.A.W., 104 N.J. 112 (1986) (notice factors for sexual offenses against a minor; time period and number of acts)
- State v. Hass, 218 N.J. Super. 133 (1987) (fair notice and K.A.W. factor guidance for continuing abuse cases)
- State v. Widmaier, 157 N.J. 475 (1999) (double jeopardy; tests for same offense and evidence-based concerns)
- State v. DeLuca, 108 N.J. 98 (1987) (same offense: elements and evidence tests; Blockburger framework)
- State v. Capak, 271 N.J. Super. 397 (App. Div. 1994) (alternative approach to double jeopardy and multiple offenses)
- Yoskowitz v. State, 116 N.J. 679 (1989) (flexible double jeopardy analysis; underlying fairness and policy considerations)
- Ebron v. State, 61 N.J. 207 (1972) (burden on defendant to demonstrate double jeopardy; proving first prosecution encompassed second)
- State v. Handy, 421 N.J. Super. 559 (2011) (double jeopardy when retrial follows successful appeal; State bears burden to demonstrate different offenses)