State v. LaganellaState v. Laganella
The individual defendant, Nicholas A. Laganella, and the corporate defendant, P.T. & L. Construction Co., Inc. (P.T.&L.), of which Laganella was president, were indicted for “bid rigging” conspiracy on a substantial highway construction project. The proofs on which the State‘s case was bottomed demonstrated that sometime prior to February 8, 1968 Laganella conspired with Sam Braen Construction Co. (Braen) and Braen Industries, Inc., to produce from the latter companies a bid on the project, but at a higher figure than the P.T.&L. bid, thereby insuring P.T.&L. of the contract. A consideration of $185,000 for this cooperation was offered by P.T.&L. to Braen, and ultimately sophisticated schemes of payment were devised. These arrangements were worked out in large part between Harry G. Evans, a graduate civil engineer, who was vice-president and manager of Braen, and Laganella.
Evans, obviously the head of operations for Braen under Sam Braen, Sr. and, from the proofs, the prime and probably only negotiator with Laganella, testified at length.
Sam Braen, Sr., described by Evans as the “owner” of Sam Braen Construction Co. and the several other affiliated Braen companies, was regularly consulted and made all the decisions. Sam Braen, Jr., the son of Sam Braen, Sr., was
The bidding worked out as planned. Only P.T.&L. and Braen submitted bids and the Braen bid was substantially higher than that of P.T.&L. The contract was awarded to P.T.&L.
At the trial Evans testified freely to the promises of immunity from prosecution which were given him by the office of the Attorney General in exchange for his “cooperation” in the matter. He was cross-examined extensively by defense counsel, not only with respect to the grant of immunity in this case (as was another State witness) but in connection with that promised in another matter as well.
The State offered the testimony of seven witnesses. In addition to Evans, whose preeminent role in the entire scheme is described above, the State produced the Chief of the Bureau of Contract Administration in the Department of Transportation and the following of Braen (or associated companies) personnel during the time in question: the bid estimator for the project involved; one who had risen from the accounts receivable section and pricing department to become office manager; the general sales manager; a clerical employee
The State then rested.
Defendants first argued, on motion, that the State had failed “to sustain its burden” of proof.1 Following this, a chain of events, almost bizarre in nature, occurred. Defense counsel charged that the State “deliberately, consciously and presumably upon mature consideration determined not to call as a witness upon its case the unindicted co-conspirator, Sam Braen, Jr.” Claiming that he had agreed “not to oppose the introduction of certain documentary evidence * * * upon the express representation by the Deputy Attorney General, the reliance thereon by me that Samuel Braen, Jr., be called as a State‘s witness” (a situation nowhere reflected in the record or even really inferable therefrom), and that the “general opening made by Counsel for the State, which to me indicated that the State had intended to produce these witnesses” (our review of the State‘s opening statement discloses neither such a representation nor any statements which might reasonably have been conceived to imply such a representation), defense counsel said that “that sort of risk voluntarily undertaken by the State * * * seems to me to entirely justify the Court in dismissing the Indictment.”
The trial judge called upon the deputy attorney general for an answer. He then interrupted her explanation to advise her, “Now, before you say anything that you might regret, please, for you to now suggest that this Defendant was not given the understanding that you were going to call Sam Braen, Jr., I frankly find incredible.”
[DEPUTY ATTORNEY GENERAL]: I‘m not going to say to this Court that I didn‘t, when I started working on this case, and when we even began it, think that Sam Braen, Jr., would probably be a witness.
THE COURT: Now, why is he not here? Tell me that. Is it because of his physical condition or because you made a decision not to call him?
[DEPUTY ATTORNEY GENERAL]: They‘re probably three reasons.
THE COURT: All right. Tell me all of them.
[DEPUTY ATTORNEY GENERAL]: One is his physical condition.
Two, the impending Crabiel trial, and his needing to be a witness there. The trial started today. The office had to make a decision as to which case he would testify in, and where they needed him more, and they decided that the Crabiel case was more important; coupled with three, my feeling that Harry Evans had produced a prima facie case; that the State had in essence passed the motion here. So, there were three reasons.
THE COURT: Let‘s go back to number one. What about his physical condition, what was it about his physical condition that prevented you from calling him here?
[DEPUTY ATTORNEY GENERAL]: His physical condition is such that the man cannot testify for 40 minutes. He can‘t talk to someone for 40 minutes, and keep his train of thought. I‘ve interviewed this man day in and day out, and he will sit there, and after 20 minutes, he‘s completely in space, and I represent that to the Court. I‘ve spent enough time with the man that I don‘t feel that I could put him on the stand and subject him to cross-examination. That‘s one. Two, I was led to believe that he‘s ill.
[DEFENSE COUNSEL]: Judge * * *, may I interrupt?
THE COURT: No, no, Mr. [Defense Counsel]. We‘ll have any further discussions about this in Chambers. We‘ll take a few moments first.
(Recess taken.)
[DEPUTY ATTORNEY GENERAL]: Your Honor, the State has an application to reopen the State‘s case to permit us to present Mr. Sam Braen, Jr. Because of the day and Mr. Braen‘s physical schedule, it will be impossible for us to produce him today. I would ask, however, that we be allowed to produce him Monday morning when Court reconvenes.
THE COURT: Mr. [Defense Counsel].
[DEFENSE COUNSEL]: I will object to the application as what has gone before your Honor, but I won‘t extend my remarks on that subject.
Promptly thereafter defense counsel, who, by his motion and with the aid of off-the-record “further discussions” in chambers about which we know nothing,2 had apparently provoked the State into offering Sam Braen, Jr. as a witness, moved to dismiss the indictment because he had — and had had from a time prior to the commencement of the trial — a copy of a taped interview between a different deputy attorney general and Sam Braen, Jr. containing “the details of the promise or hope of leniency stated by [the deputy attorney general] and Braen‘s attorney” at a conference attended by Sam Braen, Jr. This, argued defense counsel, was a violation of defendant‘s right to discovery, in which he had sought “a statement of all promises of leniency made by any representatives of the State of New Jersey to potential witnesses, including, but not limited to * * * Samuel Braen, Jr.”
Well, of course, that was the only basis for any decision of mine, Mr. [Defense Counsel], your application would get short shrifts because this is your choice. You did not have to bring this up at this moment in light of the status of the case, immediately prior to your motion. So, you can hardly, or I will not consider persuasive the argument that you have now limited or revealed an area of cross-examination, and consequently, of prejudice.
Nonetheless, the trial judge determined to grant the motion to dismiss the indictment. Analogizing with our policy of compelling the State to live up to its promises in plea bargains iterated in State v. Thomas, 61 N.J. 314 (1972), he said:
* * * So, we have a law which says that says the Prosecutor must decide what witnesses it‘s going to call, and we also have, if not law, at least to indicate that if a representation is made, that it should be lived up to. In this situation we have the matter compounded. The State rested its case without calling Samuel Braen, Jr., and only by a threat to the Court to dismiss the case that the motion to reopen was made and granted, but then I find that the State is in possession of other material relative to discovery about which I am sure [the trial Deputy Attorney General] knew nothing until this revelation this morning, and so again, we have the State engaging in tactics, which to me are completely unfair, improper, and I only use those words after lengthy consideration, and to some degree of soul searching because of the effect that any such decision or statement by me may have on the parties involved. I don‘t think in the handling of this matter that the State has dealt fairly with this Defendant. I don‘t find any case which says that a Defendant must prove prejudice by a reason of any failure of the State to comply with the rules. * * * So, the fact that the Defendant in this case became aware of the existence of these tapes eight days ago does not in my opinion excuse what I can only consider to be deliberate decision of the Attorney General not to reveal the existence of these tapes to the Defendant. Therefore, considering the entire matter in
At a motion for reconsideration heard by the trial judge the following day, and after reviewing two affidavits submitted by the State, as to one of which the affiant was the deputy attorney general who had procured the tape in question, the judge refused to alter his decision to dismiss the indictment. On the other hand, he did amend his findings of fact substantially, and we believe significantly. Of prime importance in this respect was his determination, most reasonably reached on the record (State v. Johnson, 42 N.J. 146 (1964)), that the failure to furnish the tape was “negligent” rather than “deliberate.” It appears that the tape was made in connection with a long, complicated, important investigation during the course of which Sam Braen, Jr. had been indicted, and firms and individuals other than Laganella and P.T.&L. were involved. It is said in the affidavit of the deputy attorney general involved that “all the information on the tape which was relevant to the P.T.&L. investigation was contained in the minutes of Braen, Jr.‘s testimony before the State Grand Jury.” The grand jury testimony was released to counsel for defendants in connection with discovery.
It should also be noted at this point that the State never denied promises of leniency to coconspirators who “cooperated.” In fact, in her opening the deputy attorney general who tried this case for the State candidly conceded this “fact of life.” It is also completely dispositive of the inadvertent nature of the State‘s failure to disclose the existence of the tape to defense counsel in this case that the tape was in fact among the discovery materials furnished to defendant Crabiel by the State in the matter of State v. Crabiel, which sprang from a related investigation in which Sam Braen, Jr. was evidently also implicated.
No one will argue with the observation of the trial judge that an intentional, misleading misrepresentation of the State as to the manner in which it proposes to present its prosecution of defendant, relied upon by defendant in the preparation of his defense, constitutes a basic unfairness easily sufficient to undergird a declaration of a fatal lack of due process. A public prosecutor “must consistently refrain from any conduct that is lacking in the essentials of fair play.” State v. D‘Ippolito, 19 N.J. 540, 550 (1955). But in the absence of express findings here, we have searched the record in vain to find that which the trial judge characterized as a clear representation of the State that it was going to call Sam Braen, Jr. as a witness. There is no doubt, as admitted by trial counsel for the State, that Sam Braen, Jr. was thought by all, at least during the discovery period, to be an important witness. But it was in fact defense counsel who kept advising the court of the importance of Sam Braen, Jr. to the State‘s case, and not the deputy attorney general. We are not so overwhelmed by these repeated suggestions
This conclusion eliminates any vice from the State‘s unwillingness to produce the witness, for it is an unfair representation that offends due process and not trial strategy. Clearly the prosecutor of a criminal indictment at trial has wide discretion with respect to the production of proofs. State v. Murphy, 36 N.J. 172, 178 (1961). In passing, it is to be observed that an absence of desire on the part of the State to call Sam Braen, Jr. as a witness is entirely consistent with the State‘s theory, announced in its opening and expounded by Evans’ testimony, that he “was little more than a spectator.”
The problem arose here because, in the words of the trial judge, defense counsel‘s “entire line of examination of the State‘s witnesses was based, at least to some significant extent, on the assumption that sooner or later as part of the State‘s case he was going to be able to cross-examine Samuel Braen, Jr.” As we have said, we find no support in the record for the statement of the trial judge that this was “not based on any assumption on his part that Mr. Braen was going to be called, but rather based on what I consider to be a rather firm statement by the Prosecution that he was going to be a witness.” This being so, defendants must bear their own responsibility, in misguessing the State‘s intentions, for any prejudice. Beyond this, we have trouble
* * * Litigation is no longer to be thought of as a battle of wits, or a trial as a sporting event conducted for the benefit of the spectators. The rules of pleading and the various pretrial procedures are directed to facilitating the establishment of truth, which is the ultimate aim in the administration of justice. * * * [Rutgers L. Rev., Special Number, 1948, at 69]
Accordingly, we test the exercise of judicial discretion employed by the judge in dismissing the indictment only in terms of the failure to disclose the tape, for under the final clause of
Unquestionably, the prosecutor has a duty to disclose to a defendant promises or agreements of leniency exchanged for cooperation by an accomplice, codefendant or coconspirator, at least upon proper inquiry. State v. Taylor, 49 N.J. 440, 447-448 (1967). Here there was such inquiry, and
We have acknowledged the unquestioned requirement of fair play by a prosecutor. State v. D‘Ippolito, supra. Were we to have reason to suspect chicane, even in a minor degree, we would not hesitate to affirm. Beyond this, it is clear that an unconstitutional deprivation of due process exists where the State, even in good faith, suppresses evidence favorable to an accused. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We do not doubt that the same offense might well occur upon the suppression of evidence which is reasonably calculated to lead to evidence impugning the credibility of the State‘s witnesses. State v. Taylor, supra; State v. Blue, 124 N.J. Super. 276 (App. Div. 1973).
But two distinguishing features mark the matter before us. First, the State did not conceal or suppress in the literal sense; in fact, it disclosed. Second, the fact that its disclosure, by sheer mistake, did not extend to the outer limits of its knowledge was neither a suppression nor a concealment in the legal sense. Before a dismissal of an indictment is warranted in such circumstances, we believe there must be a finding of intention inconsistent with fair play and therefore inconsistent with due process, or an egregious carelessness or prosecutorial excess tantamount to suppression. In the absence of these conditions, the right of the public to its day in court in the prosecution
Accordingly, we hold that the dismissal of the indictment below was a mistaken exercise of discretion on the part of the trial judge. This determination makes it necessary for us to consider the other aspect of this appeal: whether the State has a right to appeal such a wrongful dismissal. Our concern arises in three areas: (1) Rule 2:3-1; (2) fair play or due process of law, and (3) an unconstitutional double jeopardy.
Rule 2:3-1
We are not insensitive to an argument that since
Due Process of Law
Except as it arises again in connection with the double jeopardy problem discussed below, we do not tarry long with the alleged due process question said by defendants to compel an affirmance. Due process in its constitutional sense is little more than a metonym for fair play. State v. Haber, 132 N.J.L. 507, 512 (Sup. Ct. 1945). It connotes fundamental fairness. Due process is an element which, when missing, produces the reaction accorded to that which is “shocking to the universal sense of justice.” United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). But due process is no more than this. Our very proper reverence for this basic ingredient in the constitutional government of our nation and State must not be permitted to lead to such an indefinable expansion of the concept that its limitless bounds are in themselves unfair to a legitimate interest.
We perceive nothing fundamentally unfair about permitting the State review in a case where, inspired by defendants’ motion, a judge has erroneously aborted a trial and terminated the litigation wholly on a procedural ground. Cf. State v. Farmer, 48 N.J. 145 (1966), cert. den., 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967). Fortunately
* * * When the guilty go undetected, or, if detected, are nonetheless set free because plain evidence of guilt is suppressed, the price is exacted from what must be the first right of the individual, the right to be protected from criminal attack in his home, in his work, and in the streets. Government is constituted to provide law and order. The Bill of Rights must be understood in the light of that mission. [at 52]
We reach this conclusion without regard for a question which occurs respecting the fairness employed by the interests who now claim due process. The judge below commented directly and indirectly at least twice on defendants’ awareness of the existence of the tape before the trial began. It did not escape observation by the trial judge, nor does the fact elude us, that defense counsel waited to make his motion respecting the tape not only until the State rested but even thereafter, until the State had been persuaded (to say the least) to move to reopen its case. This particular lack of candor, while understandable from a gamesmanship approach, does not particularly inspire sympathy for one claiming to have been injured by the lack of candor in his adversary. However, we need not, and accordingly do not, decide the issue of due process in this case on the narrow ground of comparative unfairness.
At the outset we observe that the double jeopardy prohibition in the New Jersey Constitution varies from that in the United States Constitution. The former directs that “No person shall, after acquittal, be tried for the same offense.”
But the injunction against one‘s being put in jeopardy twice for the same offense preceded both constitutions, finding its place in the common law from the Magna Charta of King John in 1215. State v. Labato, 7 N.J. 137, 143 (1951). Despite the antiquity of the doctrine and the frequent occasion for its review, our courts are reluctant to set a hard and fast rule, likely at some time to be unjust to either the State or the defendant. As a consequence one
But while we have certain ground rules, and know, for instance, that (1) a mistrial may not invoke double jeopardy protection (Farmer, supra) although in certain
As we noted above, certain due process concerns isolated from those inherent in double jeopardy considerations become involved. We dispose of those at the outset in order that the uncluttered double jeopardy question may be dealt with as such. For instance, in the question posited immediately above we refer to the purported lack of fair play by the State. The adjective is intentional: if the State had in fact been unfair, the ruling of the judge would be left undisturbed and the double jeopardy question would be moot. We are convinced, for reasons set forth at length above, that while the State may have been mistaken, it did not operate unfairly. No one here questions the conduct of the judge as being other than completely in good faith. We would add also that it is clear the relief sought was granted on the motion of defendants.
It is upon these postulates we consider the double jeopardy question, which then reduces itself essentially to this: are there any considerations involved in a dismissal of an indictment (as contrasted with a judgment of acquittal; Kleinwaks and Kluber, both supra) during trial (as contrasted
We return to basics. The principle concern of the law, organic or otherwise, and the commendable moralistic basis for that concern, has to do with an unbending purpose “to shield the freeman from the oppressions and persecutions of arbitrary government.” State v. Labato, supra, 7 N.J. at 144. Consequently, we have outlawed prosecution or punishment twice for the same offense. United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975); but see, United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). We have additionally and as carefully guarded against an unreasonable harassment, declaring “that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense.” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). Neither of these principles is offended here, where it was the State rather than defendants which was frustrated in its effort to serve the ends of justice with dispatch.
It is that frustration, produced by the motion of defendants, that serves to distinguish the result in Jenkins, supra. In Jenkins the court pointedly noted that the terminated trial “could have resulted in a judgment of conviction.” 420 U.S. at 370, 95 S.Ct. at 1013 Not so in the matter before us; because at the point when defendants’ motion was erroneously granted on a procedural ground (as distinguished from a determination on the merits), defendants had not yet had an opportunity nor been called upon to present their defenses, and this despite the fact that
As basic as the protection for defendants is the “[p]ublic interest in seeing that there is a fair trial designed to end in a just and equitable judgment.” State v. Rechtschaffer, supra, 70 N.J. at 395; Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 93 L.Ed. 974 (1949), reh. den., 337 U.S. 921, 69 S.Ct. 1152, 93 L.Ed. 1730 (1949). To apply the bar of double jeopardy in the instant matter, absent compelling considerations of fairness to defendant or for the purpose of protection against governmental action found by us not to be arbitrary, would disserve that purpose, for there still has been no trial on the merits. Moreover, and as importantly, we find in the record “no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.” Wade v. Hunter, supra, 336 U.S. at 688-689, 69 S.Ct. at 837.
We reverse the judgment of dismissal of the indictment and remand for new trial.
Notes
* * * Miss [Deputy Attorney General], I agree with your suggestion or your intention that the Court should not, cannot tell the State what witnesses to call. I thought I had made that clear, and that that was the Court‘s understanding when I made my ruling last Thursday. The cases are clear that the Prosecutor has the authority, the discretion to decide what witnesses to call, and it‘s not up to the Court to direct that a Prosecutor call one witness or another, * * *.