State v. PortockState v. Portock
- Reporters:
- ,
- Before:
- King, O'Brien, Scalera
The opinion of the court was delivered by KING, P.J.A.D.
In this case the State appeals by leave granted from a dismissal of certain counts of this multi-count indictment following the prosecutor‘s opening statements.
This is the procedural background. On May 17, 1984 a state grand jury returned an indictment charging Jack Portock, Peter Bellizzie, Ebb Grover, Anthony Grover, Frank Kenny, Martin Stone, Nancy Desposito, Diane Shedlock, Joseph Brew and Benny Langford with: (1) conspiracy, contrary to
On August 6, 1985 the judge granted defendants’ Stone, Shedlock and Grover‘s motions to dismiss the indictment, granted defendant Portock‘s motion to dismiss the indictment as to Counts Four and Five, but denied the motion as to the remaining counts, and denied defendants’ Kenny and Desposito‘s motions. He also denied the State‘s motion for a stay of the trial, but recessed until August 12, 1985.
The State moved for leave to take an interlocutory appeal. This motion was granted on August 9, 1985. In the order granting the State‘s motion, we stayed the trial proceedings and ordered that the jury not be officially discharged but the trial be adjourned without date. On August 12, 1985 the trial judge advised the jury that the trial would be adjourned without date.
Defendant Kenny moved for leave to appeal the denial of his motion to have the indictment dismissed. That motion was denied on August 9, 1985. Kenny then moved before the New Jersey Supreme Court for leave to appeal. Leave was denied on September 20, 1985. Jack Portock moved for leave to cross-appeal from the trial judge‘s denial of his motion to dismiss count three of the indictment; leave was denied on September 20, 1985.
This is the factual background from which the dismissals following the opening emanated. On August 5, 1985 when the
On August 6, 1985 the trial judge determined that
After argument, the judge set forth some possible responses to a deficient opening. He decided against declaring a mistrial because of potential double jeopardy questions. He also decided against denying all the motions on the merits because he felt there were serious deficiencies in the State‘s opening statement. But he refused to allow the State to reopen to cure the alleged deficiencies. In addition, he considered the “complicated” nature of the offense charged, and the considerable expense of private counsel for the defendants. As noted, he then
I
In hearing defendants’ motion to dismiss the indictments because of deficiencies in the State‘s opening, the judge undertook the task of defining what the law demands of a prosecutor‘s opening remarks. After noting that
The judge was correct that
Justice Schreiber writing for a unanimous Court noted that trial judges have been cautioned to be most reluctant in granting dismissals on openings of counsel. Id. at 336 citing Passaic Valley Sewerage Comm‘rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 606-607 (1960). He stated that “[t]his precaution exists because an opening statement should set forth only a succinct statement of what a party proposes to prove. The jury, having been given an overview of the State‘s and defendant‘s positions, will understand the nature of the action and be able to follow the evidence more intelligently.” Id. citing Farkas v. Middlesex County Board of Chosen Freeholders, 49 N.J. Super. 363, 367-368 (App.Div. 1958).
We agree that Lynch does not provide the “bright line” test for the sufficiency of an opening that the trial judge here was seeking. But we conclude that the prosecutor‘s opening should be part of orderly trial procedure provided for the benefit of the jury, not the defendant. The judge‘s standard is more in keeping with a notion of the opening as a device by which the State confronts the defendant with the charges he faces and informs him of the course the case against him will take. Annot. “Power of trial court to dismiss prosecution or direct acquittal on basis of prosecutor‘s opening statement” 75 A.L.R.3d
The Annotation suggests that the courts allowing summary termination at the close of the prosecutor‘s opening do so only upon an affirmative showing that the prosecution is not entitled to a conviction. Id. at 665. United States v. Dietrich, 126 Fed. 676 (1904), cited as the leading case in this area, held that termination upon the opening would be proper where, after full opportunity was permitted for the correction of any ambiguity, error, or omission in the opening statement, a fact was clearly admitted which must necessarily prevent a conviction and require an acquittal. The defendant in Dietrich was charged with violating a statute making it unlawful for a “member of Congress” to accept a bribe. In his opening, the prosecutor acknowledged that the Senator had committed the act prior to being sworn to Congress. The judge dismissed the case after the prosecutor opened since the defendant was not a “member of Congress” at the time he allegedly committed the act. Although passing on the test used by the judge in the case before us for the sufficiency of the prosecutor‘s opening is not crucial to the resolution of the issues on this appeal, the Annotation (cited by the Supreme Court in Lynch) provides examples of alternative formulations the judge had available to him, some of which appear more in keeping with Lynch than the one the judge chose here. See 75 A.L.R.3d at 673-675 on “propriety of amending opening statement.”
Implicit in the Supreme Court‘s opinion in Lynch is the acknowledgment that trial judges may, in their discretion, dismiss a case based on the prosecutor‘s opening. But the Court could not have been clearer in urging trial judges to resist deciding cases prematurely, counselling instead that they hear the attorney‘s proofs. 79 N.J. at 336. The Court warned that “[a]dherence to this policy in criminal trials is even more compelling in view of the double jeopardy factor.” Id. at 337. Pressler, Current N.J. Court Rules, Comment
The judge observed that this was “a complicated, legally landtrapped case.” He was clearly concerned with potential prejudice to the defendants if the prosecutor was allowed to reopen. He feared that defendants might have had to change their openings in response to the prosecutor‘s remarks, a tactic they would be unable to explain to the jury. While acknowledging case law holding that counsel should be allowed to reopen, the judge stated that “[t]here are cases where that is inappropriate and this is one of them.”
The Supreme Court‘s holding in Lynch that the trial judge mistakenly exercised his discretion in not allowing the defendant to reopen was rendered independently of the trial judge‘s erroneous view of the law. Id. at 337. In the case before us, the judge refused a reopening to the State because of potential prejudice to the defendants. He rejected the option of a mistrial, but this possibly may have been the more prudent course. See State v. Rechtschaffer, 70 N.J. 395, 406-411 (1976). We fail to see why a reopening was any more legally problematic on the facts before us than it would have been in Lynch. Counsel for Lynch had also opened before moving to dismiss. Allowing the prosecutor to reopen there would have subjected Lynch to the same potential prejudice these defendants would face in meeting the prosecutor‘s reopening. Nonetheless, the Supreme Court suggested that a reopening was in order. Nor do we see any increased risk because of the multiplicity of defendants. The better course would have been to permit the State to reopen and allow defendants to assert on the record any actual prejudice they may have suffered for consideration on future appeal. This action would allow defendants to preserve their grounds for appeal and afford a reviewing court an
II
An inquiry into the character of the trial judge‘s ruling here is necessary to determine whether double jeopardy considerations are implicated in this appeal. The judge characterized his ruling as an order granting defendants’ motion to dismiss the indictments. Yet, what constitutes an acquittal by a trial judge is not controlled by the form of the judge‘s action. State v. Barnes, 84 N.J. 362 (1980). In Barnes, our Supreme Court relied upon the test for acquittal established by the United States Supreme Court in United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), “we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id. at 571, 97 S.Ct. at 1354, 51 L.Ed.2d at 651 quoted in State v. Barnes, 84 N.J. at 371.
The State contends that the trial judge ruled on interlocutory matters of law in dismissing the indictments. This argument is premised on the judge‘s test requiring that the State‘s opening both state a cause of action and be such that the court can see that there will be proofs sufficient to result in a jury having something to consider in determining guilt. The State maintains that the judge intended to create a standard by which, as a matter of law, a court could determine whether to dismiss an indictment on the basis of the prosecutor‘s opening remarks. Utilization of this standard, so the State contends, involves no factual determinations. The focus is on the prosecutor‘s opening remarks which are obviously not evidence.
This impression finds confirmation in the record. Argument on the motion to dismiss consisted largely of requiring the prosecutor to go through his case against each of the defendants. Initially, the judge appeared to limit the prosecutor‘s remarks to the case that was made out in the opening. As argument on the motion continued, the focus shifted from what the prosecutor had alleged in his opening to what he in fact could prove at trial.
For example
THE COURT: Stone and Grover, what you have said to me is that you said Stone or Grover, because that is what the witness is going to say. Do you have a witness that‘s going to come in here and say Marty Stone did, he was there, he‘s the one, or do you have a witness that‘s going to say Tony Grover, he‘s the one, someone that‘s going to get away from the disjunctive?
MR. GRINNELL [the prosecutor]: Yes, sir. I have a witness that will get on the stand and testify that all — he personally instructed all of the subjects on their duty, the sergeants that were involved, and this would relate to Mr. Marty Stone, he was a sergeant at that time, and I laid that out in my opening, that he specifically instructed them on the equipment and he gave them orders which they, in turn, were to give to their subordinates, and one of the subordinates that I have as a witness will be able to testify that at least one of those sergeants carried through with —
THE COURT: Which one? How about Martin Stone, do you have one that says Martin Stone carried through, or do you get back to this point where, when we get to the carried through, it was either Stone or Grover, I‘m not sure. MR. GRINNELL: John Rush put each of these defendants in the room. He will tell you that they were monitors on that equipment, that he personally observed them as monitors on the equipment, it was their responsibility to be monitors on the equipment, and what their job was is to take down everything that they heard on the tape recorder and write it down. Each of these witnesses will be placed in the room operating that equipment.
THE COURT: Operating equipment. In other words, you can get rid of the or?
MR. GRINNELL: Yes, Sir, I can.
The State contends that although the prosecutor proffered evidence, the judge ignored it and considered only the opening in determining whether to dismiss the indictments. The State assigns this fact great weight, in attempting to distinguish this case from Lynch. The State argues that Lynch turned on the “erroneous evidentiary ruling” which prohibited the State from presenting evidence the trial judge thought necessary for conviction. It was this erroneous ruling that led to Lynch‘s acquittal for insufficient evidence. Reasoning that since no limitation was placed on the evidence to be presented and relying on the prosecutor‘s rejected proffer, the State here urges that the judge ruled the opening and not the evidence insufficient. This argument to us amounts to a distinction without a difference. The limitation imposed in Lynch was important to its disposition but more because of the fact that it resulted in the conclusion that the allowable proofs would be insufficient to support a conviction rather than any independent significance it possessed. Whether the judge here decided that the facts alleged in the opening were not enough to go to the jury or considered the State‘s proffer to be legally insufficient is immaterial. His conclusion in either situation is the same — that the jury ultimately would not have had any factual basis for determining guilt or innocence. Right or wrong, he made that determination.
Although the trial judge considered Lynch inapposite, we think it directly on point and controlling. If anything, Lynch is
We find this language from Lynch controlling.
The trial court did not select what undoubtedly would have been a wiser or more judicious avenue to resolve the problem with which it was confronted. It chose instead to consider the only proofs which it would permit the State to produce and to measure those proofs against its concept of the statutory requirement. This action was equivalent to the granting of a motion to dismiss at the end of the State‘s case. It saw no need to proceed formally through a trial. The jury having been impaneled and sworn, jeopardy had attached. The trial court‘s dismissal reflected an adjudication on the merits. The case was “over“. The dismissal was a judgment of acquittal. The trial court‘s interpretation of the statute, though erroneous, led to prohibiting the admission of certain evidence — a ruling which may be “characterized as an erroneous evidentiary ruling,” which in turn caused the acquittal for insufficient evidence. “That judgment of acquittal, however erroneous, bars further prosecution on any aspect of the [case] * * *.” Sanabria v. United States, supra, 437 U.S. [54] at 68-69, 98 S.Ct. [2170] at 2181, 57 L.Ed.2d [43] at 56-57 [(1978)]. [State v. Lynch, 79 N.J. at 343.]
III
Thus the ultimate issue before us is whether the State‘s appeal is barred by double jeopardy under
The State argues that none of the principles underlying double jeopardy are offended in this case. Specifically, the State contends that correcting the trial court would not subject the defendants to a second trial. The State says that “no judgment has been entered, the jury has not been dismissed, nor has there been any indication to the jury of a ruling that could prejudice the defendants with regard to the dismissed indictments and counts if those are reinstated.” In essence, the State is contending that since the judge ruled on matters of law only, retrial is not prohibited and even if the defendants technically were acquitted, since the jury was not discharged, no retrial is required.
In support of the first point, the State relies upon United States v. Maker, 751 F.2d 614 (3rd Cir.1984), cert. den. ___ U.S. ___, 105 S.Ct. 3479, 87 L.Ed.2d 614 (1984), where the Third Circuit allowed the government to appeal the dismissal of an indictment where the trial judge engaged in what the Circuit Court characterized as arguably factual determinations. The trial judge, after the jury was impaneled and sworn, had granted a defense motion to dismiss a conspiracy indictment because the government‘s proofs would not establish a single conspiratorial scheme. On appeal, defendant argued that the appeal was untenable because the dismissal order represented a “factual” determination based upon counsel‘s opening statements and a review during argument of some of the government‘s proposed evidence. The government contended that the trial judge made a legal determination and that double jeopardy was thus not implicated.
The Third Circuit concluded that the government‘s appeal would be barred only if the trial judge‘s legal determination
a case in which the district court, as the result of a legal error, determined that the government could not prove a fact that is not necessary to support a conviction. To preclude an appeal in this case would deprive the public “of its valued right to `one complete opportunity to convict those who have violated its laws.‘” [Id., citing United States v. Scott, 437 U.S. 82 at 100, 98 S.Ct. 2187 at 2198, 57 L.Ed.2d 65 (1978) (quoting Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1975))].
The State distinguishes the result in Lynch based on the trial court‘s limitation on the State‘s proofs. The State reads Lynch too narrowly. As noted, the last lines of that opinion state:
The dismissal was a judgment of acquittal. The trial court‘s interpretation of the statute, though erroneous, led to prohibiting the admission of certain evidence — a ruling which may be “characterized as an erroneous evidentiary ruling,” which in turn caused the acquittal for insufficient evidence. “That judgment of acquittal, however erroneous, bars further prosecution on any aspect of the [case] * * *.” Sanabria v. United States, supra, 437 U.S. at 68-69, 98 S.Ct. at 2181, 57 L.Ed.2d at 56-57.
We conclude that Lynch is apposite and Maker, as well, is on point as the State argues, but our Supreme Court seemingly has parted company with the Third Circuit on this issue.
A similar split also has occurred between our court and certain federal courts which have considered the issue of whether the continued impanelment of the jury precludes the operation of the double jeopardy bar. In United States v. Lorusso, 695 F.2d 45, 53-54 (2 Cir.1982), the Second Circuit allowed a trial court to substitute a lesser-included offense for a greater offense in a three-count indictment after the trial court had orally dismissed the count including the greater offense. In that case, at the close of the State‘s evidence, the defendants moved for a judgment of acquittal on the ground of insufficient evidence to convict on the count of the indictment
Utilizing the above analysis, the Second Circuit affirmed the trial court‘s actions ruling that there was no constitutional impediment to the trial court‘s modification of its decision to dismiss the original count where no judgment had been entered, the jury had not been dismissed, and the jury was unaware of a ruling which could prejudice the defendant. 695 F.2d at 54. The key to the court‘s ruling was that the continuity of the trial had not been broken. Id. See Rowe v. Grizzard, 591 F. Supp. 389, 400-401 (E.D.Va. 1984) (“Prompt reinstatement during the course of a single trial, in which the original jury had not been discharged, does not constitute a `second trial‘“), citing United States v. Lorusso; see also United States v. Ellison, 684 F.2d 664 (10th Cir.1982) (2-1 decision granting stay of trial court‘s judgment of acquittal by use of mandamus); Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 cert. granted sub nom Smalis v. Pennsylvania, ___ U.S. ___, 106 S.Ct. 307, 88 L.Ed.2d 285 (1985) (jeopardy does not attach where dismissal entered at the end of the State‘s case — nonjury trial).
Our court has recently reached the opposite result, on analogous facts. In State v. Ortiz, 202 N.J. Super. 233 (App.Div. 1985), two co-defendants were tried in a joint proceeding. One defendant, after the State had rested, made a successful motion for acquittal. The trial judge rejected the State‘s application
In our view, defendants’ “absolute shield” from retrial attached immediately to each count upon which the trial judge entered the judgment of acquittal. [Cite omitted]. 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. [202 N.J. Super. at 241].
While the judge here may have possibly misstated the law concerning what is required of a prosecutor‘s opening and mistakenly exercised his discretion in not allowing the State to reopen, the dismissals of the indictments operated to acquit the defendants of those charges. The jury having been impaneled and sworn, jeopardy had attached. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Ortiz, in our opinion, represents the better rule and the State is barred from appealing the judgments even though the jury officially has not been discharged. Because the State‘s right to appeal is coextensive with new trial preclusions due to the Federal and State Double Jeopardy Clauses, see State v. Lynch, 79 N.J. at 334, we dismiss the appeal.