State v. DeLuca

• Citation: 108 N.J. 98,527 A.2d 1355
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Linda DeLUCA, Defendant-Respondent.
• Decision Date: 21 July 1987
• Court: United States State Supreme Court (New Jersey)

Page 98

108 N.J. 98

527 A.2d 1355

STATE of New Jersey, Plaintiff-Appellant, v. Linda DeLUCA, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 6, 1987.

Decided July 21, 1987.

Larry R. Etzweiler, Deputy Atty. Gen., for plaintiff-appellant (W. Cary Edwards, Atty. Gen., attorney).

Christopher J. LaMonica, Brick, for defendant-respondent (Wilbert & Montenegro, attorneys).

The opinion of the Court was delivered by

POLLOCK, J.

The primary question on this appeal is whether an acquittal of death by auto, N.J.S.A. 2C:11-5, should bar a subsequent prosecution for driving while under the influence (the DWI charge), N.J.S.A. 39:4-50.

After a jury trial in the Law Division, defendant was acquitted of causing death by auto. Thereafter she moved in the Dover Township Municipal Court to dismiss the DWI charge, but the court denied the motion. On appeal, however, the Law Division granted the motion to dismiss. The Appellate Division affirmed, 208 N.J.Super. 422, 506 A.2d 55 (1986), stating that the prosecution had conceded that its only evidence of recklessness to support the death-by-auto charge was defendant's alleged intoxication. Id. at 426, 506 A.2d 55. Before us, the Attorney General challenges that statement and contends that various facts, including the weather, road, and lighting conditions, were such that the happening of the accident raises an inference of recklessness apart from evidence of defendant's intoxication. We granted certification, 104 N.J. 468, 517 A.2d 450 (1986), and now reverse and remand to the Law Division.

I

At approximately 1:00 a.m. on January 29, 1984, a car operated by defendant, Linda DeLuca, on Clifton Avenue, Dover Township, Ocean County, struck and killed a pedestrian. DeLuca had spent the evening at the home of Sharon Peet, where she had consumed alcoholic beverages. Defendant offered to drive Miss Peet to a store to purchase cigarettes, and on the return trip, defendant's vehicle struck the pedestrian. The weather was clear, and the road was dry and well lighted. Defendant's vehicle left no skid marks, and no other vehicle was involved in the accident. The breathalyzer test revealed defendant's blood alcohol content as .21%.

Initially, defendant was charged in the Dover Township Municipal Court with DWI and reckless driving. Thereafter she was indicted by the Ocean County Grand Jury for causing death by auto. After her acquittal following a jury trial on that indictment, defendant moved in the Municipal Court to dismiss the DWI and reckless driving charges. The State agreed to dismiss the reckless driving charge because of double jeopardy; the Municipal Court, however, denied defendant's motion to dismiss the DWI charge.

Relying on State v. Dively, 92 N.J. 573, 458 A.2d 502 (1983), however, the Law Division reversed. The court found that the DWI prosecution was barred by double jeopardy because the State intended to rely on the same evidence used to prove recklessness in the death-by-auto prosecution, namely, intoxication.

In affirming, the Appellate Division found that the charges of death by auto and DWI each required proof of elements not required by the other. The court, nonetheless, agreed with the Law Division that because the State would rely on the same proofs in both prosecutions, the DWI prosecution was barred.

In light of the State's representation that evidence other than intoxication was adduced in the trial of the death-by-auto indictment, we are constrained to remand the matter to the Law Division to determine whether such proof was adduced or whether intoxication was offered as the sole proof of defendant's recklessness in that prosecution.

II

Our analysis begins with the double jeopardy clause of the fifth amendment of the United States Constitution, which provides: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *." Through the due process clause of the fourteenth amendment, this constitutional guarantee applies against the states. Illinois v. Vitale 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228, 235 (1980); Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969). The parallel provision in the State Constitution is article I, paragraph 11, which provides: "No person shall, after acquittal, be tried for the same offense." We have consistently interpreted the state constitutional double jeopardy protection as co-extensive with the guarantee of the federal Constitution. State v. Dively, supra, 92 N.J. at 573, 578, 458 A.2d 502; State v. Barnes, 84 N.J. 362, 370, 420 A.2d 303 (1980); State v. Rechtschaffer, 70 N.J. 395, 404, 360 A.2d 362 (1976); State v. Wolf, 46 N.J. 301, 303, 216 A.2d 586 (1966).

The United States Supreme Court has stated that the double jeopardy clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969) (footnotes omitted). The present case involves the protection accorded by the clause against a second prosecution for the same offense after acquittal. Nonetheless, underlying all the protections provided by the clause is the principle

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, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. [Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199, 204 (1957).]

In determining whether to apply the double jeopardy bar, the primary concern is whether the second prosecution is for the "same offense" involved in the first. See Thomas, The Prohibition of Successive Prosecutions for the Same Offense: In Search of a Definition, 71 Iowa L.Rev. 323 (1986) (Prohibition of Successive Prosecutions ). The United States Supreme Court outlined a frequently applied federal test in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See also Prohibition of Successive Prosecutions, supra, 71 Iowa L.Rev. at 330-35 (discussing potential tests for defining "same offense"). There, the defendant was charged with several offenses stemming from the same course of conduct, all of which were prosecuted together. The Court stated that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309; accord State v. Dively, supra, 92 N.J. at 579, 458 A.2d 502.

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the High Court extended the Blockburger test to apply to successive prosecutions. The defendant in Brown had pleaded guilty to a charge of joyriding, and was later indicted for auto theft, which was defined as "joyriding with the intent permanently to deprive the owner of possession." Id. at 167, 97 S.Ct. at 2226, 53 L.Ed.2d at 195. Applying the Blockburger test, the Court held that because the offense of joyriding required no proof beyond that necessary to convict the defendant of auto theft, the prosecution for theft was barred by the prior joyriding conviction. The Court iterated that the test depended on an analysis of the statutory elements of the offense, rather than the proofs actually offered at trial. Id. at 166, 97 S.Ct. at 2225, 53 L.Ed.2d at 194; see also Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616, 627 n. 17 (1975) (Blockburger test is satisfied if each offense requires proof of fact the other does not, notwithstanding substantial overlap in proof offered).

The apparent clarity of the Blockburger test has become clouded, however, by the Court's interpretation of double jeopardy in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). In Vitale, the defendant was charged with involuntary manslaughter. He had previously been convicted of failure to slow his car in order to avoid an accident, a charge arising from the same incident as the manslaughter charge. Thus, the question presented to the Court was whether failure to slow was the "same offense" for double jeopardy purposes as involuntary manslaughter. The Court determined that the record did not contain sufficient information under Illinois law to answer that question under the Blockburger test. Id. at 419, 100 S.Ct. at 2266, 65 L.Ed.2d at 237. The Court continued,

if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the "same" under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution. [Id., 447 U.S. at 419, 100 S.Ct. at 2266, 65 L.Ed.2d at 237.]

Therefore, the Court remanded for additional information regarding the relationship between the two charges and the determination of whether a careless failure to slow is always a necessary element of manslaughter by automobile.

The Court, however, went on to examine another of its double-jeopardy opinions, Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). In Harris, the Court held that a felony murder conviction barred a subsequent robbery prosecution when robbery was the felony underlying the first prosecution. Although the traditional Blockburger test was not satisfied because each offense required proof of...