State v. OrtizState v. Ortiz
The State appeals the entry of judgments of acquittal n.o.v. following the convictions of Maria Ortiz and Wilfredo Rodriguez on charges of conspiracy to murder Maria‘s husband, Alfredo Ortiz, (
Maria appeals her convictions for hindering apprehension and tampering with a witness. We have consolidated these two appeals. Wilfredo has also appealed his convictions in a separate direct appeal however his brief has not yet been filed.
Defendants’ joint trial proceeded before a jury. After the State rested its case the trial judge granted Maria‘s motion for acquittal on the conspiracy and murder counts and dismissed the conspiracy count against Wilfredo. The judge denied the
The trial was thereafter completed and the jury returned guilty verdicts against defendants on all counts of the indictment. The trial judge later granted the motions of both defendants for judgments of acquittal n.o.v. on the conspiracy convictions and he granted Maria the same relief on the murder count while denying alternative motions for new trials. The State sought unsuccessfully at both the trial and appellate levels to stay the judgments n.o.v., however, its motion for leave to appeal was granted. Defendants moved before this court to dismiss or to summarily dispose of the State‘s appeal; this relief was denied.
I
Defendants again seek dismissal of the State‘s appeal asserting that there is no authority for appellate review of a judgment of acquittal entered on grounds of insufficient evidence at the end of the State‘s case either under R. 2:3-1 or any statute or other authority. They also contend that such appellate review would constitute a violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution as well as Article 1, paragraph 11 of the New Jersey Constitution. We agree on both grounds and are constrained to dismiss the State‘s appeal despite our disagreement with the trial judge‘s initial granting of judgments of acquittal at the
R. 2:3-1, entitled “Appeal by the State in Criminal Actions,” provides:
In any criminal action the State may appeal or, where appropriate, seek leave to appeal pursuant to R. 2:5-6(a):
(a) to the Supreme Court from a final judgment or from an order of the Appellate Division, pursuant to R. 2:2-2(b) or 2:2-3;
(b) to the appropriate appellate court from: (1) a judgment of the trial court dismissing an indictment, accusation or complaint, where not precluded by the constitution of the United States or of New Jersey; (2) an order of the trial court entered before trial in accordance with R. 3:5 (search warrants); (3) a judgment of acquittal entered in accordance with R. 3:18-2 (judgment n.o.v.) following a jury verdict of guilty; (4) a judgment in a post-conviction proceeding collaterally attacking a conviction or sentence; (5) an interlocutory order entered before, during or after trial, or, (6) as otherwise provided by law. [(emphasis ours)]
This rule does not specifically provide for appeals by the State of judgments of acquittal entered by the trial judge at the end of the State‘s case. The rule recognizes that even where the judgment dismisses charges, an appeal may be precluded by the United States or New Jersey constitutions in certain circumstances. R. 2:3-1(b)(1). Appeals from judgments of acquittal are constitutionally permissible only where the acquittal is unrelated to a factual determination of defendant‘s guilt or innocence. See United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); State v. Barnes, 84 N.J. 362 (1980); State v. Barcheski, 181 N.J. Super. 34 (App.Div. 1981). Moreover, R. 2:3-1(b)(3) does specifically authorize appeals of judgments of acquittal entered in accordance with R. 3:18-2 where the court has entered judgment n.o.v. following a jury verdict of guilty. If the rule contemplated appeals by the State from judgments of acquittal at the end of the State‘s case we see no reason why specific provision would not have been made.
The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution is applicable to the States. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). It provides that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.”
The Federal double jeopardy prohibition has been held not to preclude the ordering of a new trial where the jury verdict of guilty has been set aside as against the weight of the evidence. Tibbs v. Florida, 457 U.S. 31, 32, 102 S.Ct. 2211, 2213, 72 L.Ed.2d 652, 655 (1982). However, as the Court pointed out in Tibbs:
[T]he Double Jeopardy Clause attaches special weight to judgments of acquittal. A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial. A reversal based on the insufficiency of the evidence has the same effect because it means that no rational factfinder could have voted to convict the defendant. [457 U.S. at 41, 102 S.Ct. at 2217, 72 L.Ed.2d at 661 (footnotes omitted) (emphasis ours)]
Earlier the United States Supreme Court in Scott noted that one of the “venerable principles of double jeopardy jurisprudence” is that
... [a] judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal. [437 U.S. at 90-91, 98 S.Ct. at 2194, 57 L.Ed.2d at 74]
On the same day that Scott was handed down the Court pronounced in Sanabria that even where the trial court‘s ruling “led to an erroneous resolution in the defendant‘s favor on the merits of the charge” the Double Jeopardy Clause absolutely bars a second trial. 437 U.S. at 78, 98 S.Ct. at 2186, 57 L.Ed.2d at 63. See also Burks v. United States, 437 U.S. 1, 10-11, 98 S.Ct. 2141, 2146, 57 L.Ed.2d 1, 9 (1978).
Recently, in State in Interest of C.K., 198 N.J. Super. 290, 294-95 (App.Div. 1984) we reversed the juvenile‘s conviction and stated:
We are convinced that the trial judge‘s adjudication of delinquency constituted a clear violation of the double jeopardy prohibition. We view the instant matter to be governed by the principles enunciated in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), and State v. Lynch, 79 N.J. 327 (1979). The common threa[d] of these decisions is that a “judgment of acquittal [or finding of not guilty], however erroneous, bars further prosecution....” Sanabria v. United States, supra, 437 U.S. at 69, 98 S.Ct. at 2172, 57 L.Ed.2d at 57. It is now abundantly clear that an acquittal due to insufficient proofs brought about by erroneous evidentiary rulings does not justify reopening the case. See Lee v. United States, 432 U.S. 23, 30 n. 8, 97 S.Ct. 2141, 2146 n. 8, 53 L.Ed.2d 80, 87 n. 8 (1977); United States v. Martin Linen Co., supra, 430 U.S. at 571, 97 S.Ct. at 1354, 51 L.Ed.2d at 651. “Once the acquittal resolves, correctly or not, the factual elements of the offense charged,” double jeopardy prevents reconsideration. State v. Lynch, supra, 79 N.J. at 343.
The State alleges, notwithstanding the clear authority cited above, that the appeal to the Appellate Division of the judgment of acquittal at the end of the State‘s case was proper because the jury had not been discharged and the trial would have continued even if the judgments of acquittal were not reversed as the remaining charges against the defendants needed to be tried to a conclusion. In our view, defendants’ “absolute shield” from retrial attached immediately to each count upon which the trial judge entered the judgment of acquittal. See 198 N.J. Super. at 294-95. The mere happenstance that there were other charges which required a continuation of the trial in our judgment does not affect the special weight that attached to the acquittals as it was determined factually that the State had failed to provide sufficient proof to sustain the charges. The bar of double jeopardy should not be affected because the Appellate Division almost instantly summarily reversed the judgment of acquittal or because the jury had not been discharged. See id.
The State suggests that we are barred from dismissing its appeal on the grounds of double jeopardy because the earlier decision of another part of this court constitutes the “law of the case.” The State has failed to demonstrate to our satisfaction that the double jeopardy issue was previously considered either by the appellate panel or the Supreme Court justice. We reject the argument that the prior order of the Appellate Division,
The “law of the case” doctrine “most commonly applies to the binding nature of appellate decisions upon a trial court if the matter is remanded for further proceedings, or upon a different appellate panel which may be asked to reconsider the same issue in a subsequent appeal.” State v. Hale, 127 N.J. Super. 407, 410 (App.Div. 1974). With respect to the application of the doctrine to the question of whether or not a decision made during one stage of litigation is binding throughout the course of the action on a court of equal jurisdiction it was stated in Ross Products, Inc. v. New York Merchandise Co., 242 F. Supp. 878, 879 (S.D.N.Y. 1965) (footnotes omitted) that:
... the “law of the case” concept is merely a non-binding decisional guide addressed to the good sense of the court in the form of “a cautionary admonition” against relitigation “when the occasion demands it.”
We cited this general principle with approval as it pertains to decisions of trial courts in Hale, 127 N.J. Super. at 411. Fundamental fairness requires that a similar view of the doctrine be taken in the circumstances presented here as the issue was excusably not raised during interlocutory review and is now put directly in issue on final appeal. Cf. State v. Stewart, 196 N.J. Super. 138, 143 (App.Div. 1984); State v. Tomaras, 184 N.J. Super. 551, 553 (App.Div. 1982). We find equally unpersuasive the State‘s suggestion that our decision not to dismiss its appeal on a summary basis pursuant to R. 2:8-2 and R. 2:8-3(b) established the “law of the case.” The decision to give fuller consideration to the issues presented did not constitute an adjudication on the merits of those issues. Thus we hold that both Constitutions require that the State‘s appeal be dismissed.
II
Maria Ortiz claims that the trial evidence on the conspiracy and murder counts was improperly admitted in view of the finding that the evidence was insufficient to establish those
Maria asserts that the trial court improperly limited her attempts on cross-examination to demonstrate the animosity of decedent‘s son, Luis Ortiz, towards her. We find no merit to this claim. Although a party has the right to show bias, including hostility of an adverse witness, the trial court has discretion to determine the extent to which the details may be brought out. State v. Smith, 101 N.J. Super. 10, 13-14 (App. Div. 1968), certif. den. 53 N.J. 577 (1969); see
We find no merit to defendant‘s contention that the trial court erred in refusing to read back testimony as requested by the jury. Defendant demonstrates no prejudice or unfairness by the procedure followed by the court and we find no abuse of discretion by the trial judge. State v. Wolf, 44 N.J. 176, 185-86 (1965).
Lastly, defendant maintains that the guilty verdicts on the hindering and tampering charges were against the weight of the evidence. The trial judge considered Maria‘s application for a new trial on these two charges and denied relief. He indicated that the credibility of the witnesses was within the jury‘s province and that he could not say “there was clearly and convincingly any manifest denial of justice under the law.” R. 2:10-1 provides that on appeal such ruling “shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.” We find no basis for reversal on this holding.
The appeal of the State is dismissed and Maria Ortiz‘s judgment of conviction is affirmed.