State v. GregoryState v. Gregory
On December 27, 1971 an undercover officer of the Newark Police Department visited a Newark apartment and purchased a small quantity of heroin which was delivered to him in a single glassine envelope by the defendant. He saw the defendant go into the apartment‘s bathroom and remove the glassine envelope from a stack of similar envelopes in the medicine cabinet. After his purchase he left the apartment and within moments notified other Newark police officers who returned immediately with him to the apartment and seized the remaining envelopes. They contained enough to yield between four and five hundred decks of heroin.
On April 20, 1972 the defendant was indicted for the single sale to the undercover officer. Hе was not indicted at that time for possession or possession with intent to distribute the large quantity of heroin taken from the medicine cabinet. Whether this was a deliberate or inadvertent withholding by the Prosecutor does not appear from the record and at oral argument the Assistant Prosecutor said that he was not in
On December 6, 1972 the Essex County Grand Jury returned two indictments against the defendant, one for possession and the other for possession with intent to distribute the heroin seized on December 27, 1971. At the trial on these indictments the trial judge displayed his wonderment about the State‘s procedure and expressed the thought that, in fairness to the defendant, all of the charges should have been joined for prosecution in a single proceeding. Nevertheless he permitted the prosecution to continue though he carefully excludеd evidence relating to the sale and confined the trial to the heroin seized from the cabinet. On May 24, 1973 verdicts of guilty were returned on both indictments. On June 26, 1973 the defendant received concurrent State prison sentences to run consecutively to the sentence imposed on January 3, 1973 for the sale.
The defendant appealed to the Appellate Division which, with the State‘s consent, set aside the conviction for possession. However it affirmed the conviction for possession with intent to distribute. In its per curiam it found no meritorious basis for the defendant‘s contention that the second prosecution was barred under principles of double jeopardy and collateral estoppel; it also found that the defendant was procedurally precluded from advancing these principles since he had not made an appropriate objection before trial as required by
The common law was properly concerned with the protection of the defendant from governmental harassment and oppression by multiple prosecution for the same wrongful conduct. It embodied the principle cherished by all free men that no person may be twice put in jeopardy for the same offense, a principle which fortunately continues undiminished in force and is firmly embodied in our federal constitution. See Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Though the language in our State constitution is somewhat more limited (State v. Roller, 29 N.J. 339, 344 (1959)), our cases have broadly embraced the common lаw principle (State v. Labato, 7 N.J. 137, 143 (1951)) and we of course recognize that the federal constitution‘s specific guarantee against double jeopardy, along with its collateral estoppel ingredient, is fully applicable in our State. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Ashe v. Swenson, supra, 397 U.S. at 445, 90 S.Ct. at 1195, 25 L.Ed.2d at 476.
Though no one currently questions the great worth of the federal constitutional safeguard against double jeopardy, difficulties arise in determining just when multiple prosecution concerns the “same offense” within its contemplation. Several offense-defining tests (Comment, “Twice in Jeopardy,” 75 Yale L.J. 262, 269 (1965)) have been formulated in the cases but none has proved to be entirely satisfactory. See State v. Currie, supra, 41 N.J. at 538; State v. Roller, supra, 29 N.J. at 346; cf. State v. Thomas, 61 N.J. 314, 319 (1972); see also Caraway, “Pervasive Multiple Offense Problems — A Policy Analysis,” 1971 Utah L. Rev. 105; Comment, “The Double Jeopardy Clause: Refining the Constitutional Proscription Against Successive Criminal Prosecutions,” 19 U.C.L.A.L. Rev. 804 (1972). In State v. Hoag, 21 N.J. 496 (1956), aff‘d, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), the majоrity opinion noted that the test then most widely employed in New Jersey was the “same evidence” test; under this, if the evidence necessary to sustain the second charge would have been sufficient to sustain a conviction on the first, then the second charge is barred. 21 N.J. at 502; see State v. Labato, supra, 7 N.J. at 144; State v. Leibowitz, 22 N.J. 102, 108 (1956).
The same evidence test would not bar the second trial here for the evidence relating to the sale differed from the evidence relating to the possession of the heroin seized from the medicine cabinet.1 See State v. Morales, 127 N.J. Super. 1, 4 (App. Div. 1974); cf. State v. Booker, 86 N.J. Super. 175, 177-178 (App. Div. 1965); State v. Ruiz, 127 N.J. Super. 350, 356 (App. Div. 1974); State v. Williams, 129 N.J. Super. 84, 86 (App. Div. 1974).2 And the subject of collateral estoppel would not arise since the determination at the first trial that the defendant sold the heroin in a single glassine envelope did not bear on the determination that the defendant possessed the heroin seized from the cabinet. Cf. State v. Cormier, supra, 46 N.J. 494; Ashe v. Swenson, supra, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. However inquiries, which may perhaps be viewed as more troublesome, may arise if instead of the same evidence test, the “same transaction” test found in some of our cases is invoked. See State v. Currie, supra, 41 N.J. at 537; State v. Roller, supra, 29 N.J. at 345; cf. Brennan, J. in Ashe v. Swenson, supra, 397 U.S. at 453-454, 90 S.Ct. at 1199-1200, 25 L.Ed.2d at 481 (concurring opinion); Brennan, J. in Robinson v. Neil, 409 U.S. 505, 511, 93 S.Ct. 876, 879, 35 L.Ed.2d 29, 35 (1973) (concurring opinion).
The same transaction test was designed to suggest that double jeopardy principles should preclude fractionalization where the charged misconduct is all part of the “same criminal transaction“. State v. Roller, supra, 29 N.J. at 345. But in operation it has not been fully acceptable since, as noted in 75 Yale L.J., supra at 277, “transaction” is a shapeless term and its utility depends on the way it is defined and applied. See Lugar, “Criminal Law, Double Jeopardy and Res Judicata,” 39 Iowa L. Rev. 317, 323-329 (1954); Note, “Double Jeopardy and the Concept of Identity of Offenses, 7 Brooklyn L. Rev. 79, 83-87 (1937); see also State v. Louden, 21 N.J. Super. 497 (App. Div. 1952); State v. Boening, 63 N.J. Super. 588 (App. Div. 1960); State v. Cox, 101 N.J. Super. 470 (App. Div. 1968), certif. denied, 53 N.J. 510 (1969).
In State v. Roller, supra, the defendant was brought to trial on various false pretense charges. The trial judge dismissed
Here the heroin that was possessed by the defendant both before and after the sale of the single envelope was independent of the sale, and the possession would not be the same transaction as the sale within the holdings in State v. Cox, supra, 101 N.J. Super. 470; State v. Boening, supra, 63 N.J. Super. 588; State v. Louden, supra, 21 N.J. Super. 497. Cf. State v. Booker, supra, 86 N.J. Super. 175; State v. Ruiz, supra, 127 N.J. Super. 350; State v. Williams, supra, 129 N.J. Super. 84. The defendant may find little support from the same transaction tеst as narrowly applied
When the defendant was originally indicted both he and the State were fully aware that on December 27 there had been a sale by the defendant of the small quantity of heroin and possession by him of the larger quantity. When he was arrested on December 27 and was thereafter brought to trial on October 30 his reasonable expectations were that there would be no further prosecution on the basis of his possession and sale on December 27. Fairness dictated that if the State contemplated any additional prosecution based on the December 27 possession and sale it would join it with the original prosecution rather than withhold mention of it until after completion of the trial. Such withholding and later prosecution smacks of harassment and oppression and should be barred.
For present purposes we need not rest on constitutional grounds for the just result we seek may readily be attained by our exercise of the broad administrative and procedural powers vested in us by our State Constitution.
Section 1.07(2) of the American Law Institute‘s Model Penal Code provides that a defendant shall not be subject to separate trials for multiple offenses “based on the same conduct or arising from the same criminal episode” where the prosecuting attorney knows of the offenses when he begins the first trial and the offenses are within the jurisdiction of the court.4 Section 1.07(3) of the Code provides that when “justice so requires” the court may on application by the prosecuting attorney or the defendant, order that any charge be tried separately. The proposed New Jersey Penal Code embodies provisions which are largely patterned after those contained in the Model Penal Code. See § 2C:1-7(b) and commentary thereon at 20-26. Legislation proposed by the National Commission on Reform of Federal Criminal Laws provides that, unless otherwise ordered by the court to promote justice, the dеfendant shall not be subject to separate trials for multiple offenses known to the prosecuting attorney and
Although the Model Penal Code cautiously refrains from any inflexible definition of the “same criminal episode” it leaves no room for doubt that it contemplates compulsory joinder in situations such as those presented in the cited cases, namely, State v. Cox, supra, 101 N.J. Super. 470; State v. Boening, supra, 63 N.J. Super. 588; State v. Louden, supra, 21 N.J. Super. 497, wherе multiple offenses joined at a single trial were viewed as separate acts rather than as part and parcel of the “same transaction.” In Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, 438-439, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), aff‘d, 455 Pa. 622, 314 A.2d 854 (1974), Justice Roberts, while describing the compulsory joinder requirement in § 1.07(2) of the Model Penal Code as “[b]y far the most efficient and enthusiastically received proposal for preventing successive prosecutions“, also cited the broad understanding of “the same criminаl episode” expressed in the commentary appended to § 1.3(a) of the ABA Project on Minimum Standards for Criminal Justice, supra. There “episode” is defined (at 20-21) to mean “an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.” 304 A.2d at 439; 1974 Annual Survey of American Law 429; New Jersey Penal Code, supra, commentary at 21.
In State v. Cormier, supra, 46 N.J. 494 the defendant wаs acquitted on a conspiracy charge but was later tried and convicted on the substantive charges. We determined that the crucial factual issue had been found adversely to the State
In State v. Bell, supra, 55 N.J. 239, a tavern was broken into and within forty minutes the defendants were arrested while in possession of articles stolen from the tavern. They were convicted of receiving stolen goods and were latеr tried and convicted of breaking and entering the tavern with intent to steal. This Court entertained the view that the later conviction indicating that they had themselves committed the theft was inconsistent with the earlier one establishing that they had merely received the stolen goods from someone else and that therefore the later conviction could not stand. In his opinion for the Court Justice Proctor pоinted out that the problems in the case could readily have been avoided in practical fashion if the State had tried all the related offenses at one trial as it should have; and citing § 1.07(2) of the Model Penal Code he expressed the thought that many of the difficulties in the double jeopardy field “would be eliminated if all charges against a defendant were disposed of in a single trial rather than by piecemeal litigation.” 55 N.J. at 243.
This Court in State v. Cormier, supra, 46 N.J. 494, noted that our Court rules “thus far” omit provision for compulsory joinder of known offenses based on the same conduct or arising from the same criminal episode. 46 N.J. at 504. We are satisfied that the time for the adoption of such provision is well due and that this case is an appropriate vehicle for such action. Cf. State v. Kunz, supra, 55 N.J. at 144; State v. Wingler, 25 N.J. 161, 179 (1957). Compulsory joinder, with power in the court to sever when justice so requires, will not only tend to satisfy the considerations of fairness and reasonable expectations stressed in State v. Currie, supra, 41 N.J. at 539 (cf. Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960)), but will also promote the considerations of “justice, economy, and convenience” stressed by Brennan, J. in Ashe v. Swenson, supra, 397 U.S. at 454, 90 S.Ct. at 1199, 25 L.Ed.2d at 481. It has been suggested that, in addition, it will tend to promote “consistent and rational sentencing” since one sentencing judge will evaluate all the relevant conduct. See Comment, supra, 75 Yale L.J. at 296 n. 144; cf. Benton v. Maryland, supra, 395 U.S. at 788-791, 89 S.Ct. at 2059-2061, 23 L.Ed.2d at 712-714; State v. Mills, 51 N.J. 277, 289-290, cert. denied, 393 U.S. 832, 89 S.Ct. 105, 21 L.Ed.2d 104 (1968).
The preparation оf the precise contours and details of the compulsory joinder rule may well be left to our Criminal Practice Committee for ultimate consideration and promulgation by us in regular course. In the meantime sections 1.07 (2) and 1.07(3) of the Model Penal Code may be considered in full force and effect in our State. Under those sections the State was barred from subjecting the defendant Gregory to the second separate triаl. Upon any fair view of the circumstances the defendant‘s multiple offenses of (1) distribution and (2) possession with intent to distribute were based on the same conduct or arose from the same criminal episode within the contemplation of section 1.07(2). On December 27 the defendant had possession of all of the heroin in the bathroom cabinet when the undercover officer came to his apartment. The officer saw the heroin in the cabinet and purchased a small quantity in a glassine envelope which was taken therefrom. Though he then left the apartment he returned almost immediately with other officers to seize the remaining heroin. While the sale of the small quantity and the continuing possession of the larger quantity may under our case law be viewed here as separate offenses, surely the оccurrences in their entirety at the defendant‘s apartment on December 27 involved the same conduct or the same criminal episode for purposes of procedural joinder.
Reversed.
For reversal — Chief Justice HUGHES, Justices JACOBS, MOUNTAIN, SULLIVAN, PASHMAN and CLIFFORD and Judge COLLESTER — 7.
For affirmance — None.