State v. ThomasState v. Thomas
This matter is before the court on defendant‘s motion to dismiss an indictment charging murder.
On or about June 5, 1969 Fannie Murray was the victim of a robbery and physical wounds apparently inflicted during the commission of that robbery. The defendant was subsequently indicted for the crimes arising out of that incident.
Our Constitution provides that “no person shall, after acquittal be tried for the same offense.”
The courts of this State have employed three distinct tests to determine whether a defendant is threatened with prosеcution for the same offense. The “same transaction” test determines what are same offenses by viewing the underlying act of the wrongdoer and ascribing all the results naturally flowing therefrom to the underlying act. State v. Cooper, 13 N.J.L. 361 (Sup. Ct. 1833); State v. Rosa, 72 N.J.L. 462 (E. & A. 1905); State v. Mowser, 92 N.J.L. 474 (E. & A. 1919); see also State v. Fitzsimmons, 60 N.J. Super. 230 (Cty. Ct. 1960) and State v. Hoag, 21 N.J. 496 (1956), aff‘d 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1957).
The “lesser included” offense test holds that the finding of same offense is satisfied when there has been an acquittal or conviction uрon a necessary ingredient of a criminal act which is presently threatening the accused with prosecution. State v. Midgeley, 15 N.J. 574 (1954); State v. Greely, 30 N.J. Super. 180 (Cty. Ct. 1954), aff‘d 31 N.J. Super. 542 (App. Div. 1954); State v. Fitzsimmons, 60 N.J. Super. 230 (Cty. Ct. 1960); State v. Dixon, 40 N.J. 180 (1963); State v. Wolf, 46 N.J. 301 (1966).
Holding that two acts are the same offenses by the use of the “same evidence” test requires a determination whether the evidence necessary to sustain the second prosecution would have been sufficient to secure a legal conviction on the first prosecution. State v. Midgeley, 15 N.J. 574 (1954); State v. DiGiosia, 3 N.J. 413 (1950); State v. War, 38 N.J. Super. 201 (Cty. Ct. 1955); State v. Hoag, 21 N.J. 496 (1956), aff‘d 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1957); State v. Leibowitz, 22 N.J. 102 (1956); State v. Francis, 67 N.J. Super. 377 (1961).
Our courts have not had occasion to decide what test is to be applied where the victim dies after judicial determination with regard to the initial criminal act, but cases from other jurisdictions are unanimous in holding that where the victim dies after a conviction for the underlying wrong-doing, double jeopardy principles will not bar prosecution for the homicide. Carmody v. Seventh Judicial Dist. Court, 81 Nev. 83, 398 P. 2d 706 (Nev. Sup. Ct. 1965); see 11 A.L.R.3d 828.
The most cited case is Commonwealth v. Roby, 12 Pick. 496 (Mass. Sup. Jud. Ct. 1832), where defendant wounded his victim and was indicted for felonious assault with intent to kill. After disposition of the assault indictment the victim died. A plea of autrefois convict to bar the homicide indictment was rejected, the court holding that defendant had not previously been in jeopardy for the crime of murder:
The indictment for murder necessarily charges the fact of killing, as the essential and most material fact, which gives its legal character to the offense. If the party assaulted, after a felonious assault, dies within the year and day, the same act, which till the death was an assault and misdemeanor only, though aggravated, is by that event shown to have been a mortal wound. The event, strictly speaking, does not change the character of the act, but is related back to the time of the assault, and the same act, which might be a felonious assault only had the party not died is in truth shown by that event to have been a mortal wound; and the crime, which would otherwise have been an aggravated misdemeanor, is thus shown to be a capital felony. The facts are essentially different, and the legal character of the crime essentially different. [at 504-505]
The difficulty in Roby is determining on what basis the Court determined that the assault and murder were not “same offenses” within the purview of the double jeopardy clause. Application of any and all of the traditional tests would have necessitated a finding that the assault and murder
Not departing from the approach in Roby, the collected сases indicate that where the victim dies subsequent to a disposition of an earlier indictment charging the crime which is the efficient cause of the victim‘s death, a new crime legally and factually distinct has been committed. And although the murder resulted from the same act which constituted the basis of the previous indictment, double jeopаrdy would not attach. Commonwealth v. Evans, 101 Mass. 25 (Sup. Jud. Ct. 1809); State v. Littlefield, 70 Me. 452 (Sup. Jud. Ct. 1880); Southworth v. State, 98 Fla. 1184, 125 So. 345 (Fla. Sup. Ct. 1929); Medlock v. Commonwealth, 216 Ky. 718, 288 S.W. 670 (Ct. App. 1926); Centers v. Commonwealth, 318 S.W.2d 57 (Ky. Ct. App. 1958); Carmody v. Seventh Judicial Dist. Court, 81 Nev. 83, 398 P.2d 706 (Nev. Sup. Ct. 1965); Commonwealth v. Vanetzian, 350 Mass. 491, 215 N.E.2d 658 (Sup. Jud. Ct. 1966).
The leading federal case is in accord, and not inconsistent with, the rational enunciated in the state decisions. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1911). In Diaz, defendant wounded his victim; after sentence upon a charge of assault and battery the victim died. The United States Supreme Court, citing as authority Roby and Littlefield, held that defendant should face prosecution for murder:
The homicide charged against the accused in the Court of First Instance was assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and fact. The death of the injured person was the principal element of the homicide, but was no part of
the assault and battery. At the time of the triаl for the latter, the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense. [at 448-449, 32 S.Ct. at 251.]
In the present case defendant pleaded guilty to atrocious assault and battery before the victim died. In this situation what test is this court bound to emplоy in determining “same offenses“? Defendant maintains that the court is bound by the Fifth Amendment to the United States Constitution to employ the same evidence test. Applying this test, evidence necessary to sustain a murder conviction would also sustain a conviction for atrocious assault and battery — prosecution for the murder indictment would then be barred. I do not agree. In 1969 the Fifth Amendment guarantee against double jeopardy was held applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed. 2d 707 (1969). Subsequent to the Benton decision, the United States Supreme Court held that the same evidence test was the proper test in determining what are same offenses. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). But where, as here, defendant pleaded guilty tо atrocious assault and battery before the victim died, I do not feel bound to employ the same evidence test in determining same offenses. Rather, I rely on the “hybrid” or exception rationale expressed in Roby, Diaz and the other cases collected above. This departure from the same evidence test is not inconsistent with the holding in Ashe. Even the justices ascribing to the same transaction test, which more than any other test protects the accused from piecemeal prosecution, noted that there would be an exception in fact situations not unlike the one before me.2 I
But the “hybrid” or exception rationale is not the proper test of same offenses when the two remaining counts of the first indictment are considered. Pursuant to the “bargain” entered into between defendant and the prosecutor, the prosecutor successfully moved, after the victim‘s death, to dismiss the counts charging assault with intent to rob and robbery. There is no doubt that the prosecutor knew of the supervening fact when the motion was made; the only intelligible reason for such action is that he felt bound by the bargain he had made with defendant. Plea bargaining is not unwholesome and the prosecutor cannot be criticized for this action, but whatever the motive for the dismissal, the State is bound by such dismissal and its effects upon the disposition of this motion. Because the counts charging assault with intent to rob and robbery were dismissed after the victim‘s death, the precedent established in Ashe requires that I employ the same evidence test vis a vis those two counts.
Defendant has been indicted under
Defendant also contends that trial upon the murder indictment is barred by the doctrine of collateral estoppel. Collateral estoppel is an “awkward phrase“; as an element of the general doctrine of res judicata, its roots are found in civil litigation. In such a perspective the doctrine of collateral estoppel is that “where a quantum of fact essential to the judgment is actually litigated and determined by a valid and final judgment; the determination is conclusive between the parties in a subsequent action on a different cause оf action.” Restatement, Judgments, § 68(1). Its application in federal criminal law is certainly not novel, United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161, 3 A.L.R. 516 (1916), Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948); United States v. Kramer, 289 F.2d 909 (2 Cir.1961); and its liberal application in this State cannot be doubted. State v. Cormier, 46 N.J. 494 (1966); cf. State v. Hoag, 21 N.J. 496 (1956). See also “Collateral Estoppel in Criminal Cases — A Supplement to the Double Jeopardy Protection,” 21 Rutgers L. Rev. 274 (1956). In Cormier, defendant was acquitted on a conspiracy chargе that he and another had unlawfully agreed to obtain loans from banks through false statements regarding his company‘s financial condition. He was later tried and convicted on the substantive charge of unlawfully having obtained loans from the same
The doctrine‘s application necessitatеs a record of a previous trial in order that a court can determine whether a rational jury has already determined an issue which is also present in the second trial. If the examining court can, from the record, discover what issues have already been determined, those issues cannot be litigated again. But the prohibition agаinst an issue‘s relitigation in criminal law is cognizable only where there has been a determination in defendant‘s favor at the previous trial, for unlike the doctrine in civil litigation, collateral estoppel‘s application in criminal cases inures to the benefit of defendant only. The State cannot
But there has been a finding favorable to defendant on the previous charges of assault with intent to rob and robbery. The dismissal of the two counts must be treated as a general verdict of acquittal; there have been no proofs advanced and there has been no jury determination. This court is unable to examine a record and determine in which way certain issues have been decided. Consequently, only two issues can be deemed already litigated and decided — defendant did not assault Fannie Murray with intent to rob her nor did he rob her. Collateral estoppel prohibits the relitigation of these issues. The effect of this prohibition upon the present case is coincidentally the same as that demanded by the doctrine of same offenses, i.e., preclusion of conviction upon the theory of felony-murder. Defendant‘s contention that collateral estoppel bars prosecutiоn for the murder indictment, beyond that already indicated, is therefore without merit.