State v. Lynch

• Decision Date: 03 January 1978
• Citation: 155 N.J.Super. 431,382 A.2d 1130
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Clarence E. LYNCH, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 431

155 N.J.Super. 431

382 A.2d 1130

STATE of New Jersey, Plaintiff-Appellant, v. Clarence E. LYNCH, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued July 19, 1977.

Resubmitted Aug. 12, 1977.

Decided Jan. 3, 1978.

Frank H. Graves, Asst. Prosecutor, for plaintiff-appellant (C. Judson Hamlin, Middlesex County Prosecutor, attorneys).

Mark H. Friedman, Asst. Deputy Public Defender, for defendant-respondent (Stanley C. Van Ness, Public Defender, attorney).

Before Judges LYNCH, MORGAN and ARD.

The opinion of the court was delivered by

MORGAN, J. A. D.

The State appeals from the order granting defendant's motion to dismiss the indictment made after the State's opening statement to the jury on the ground that the State failed to assert an essential element of the charge against defendant.

Defendant was indicted as an accessory after the fact (N.J.S.A. 2A:85-2) for allegedly aiding and assisting one Carrie Speight in avoiding apprehension by the police by providing her with transportation.

In his opening statement to the jury at trial the prosecutor stated that the State would prove that after Speight's indictment defendant, who had been living with Carrie Speight and her husband, had been told by the Mercer County Prosecutor's office that Speight was wanted on a warrant for her arrest, and that she had been indicted for a high misdemeanor and warned defendant that he should not assist or aid her in avoiding apprehension. According to the prosecutor, the State also intended to prove that defendant knew Speight was a fugitive from justice when he and Speight were arrested together in an automobile in South River, New Jersey.

Defendant moved to dismiss the indictment on the ground that the State had failed to state a case on opening in not asserting that defendant had actual knowledge that Speight was guilty of a high misdemeanor at the time he committed the acts described in the indictment. Although admitting that the State did not intend to prove defendant's actual knowledge of Speight's guilt of the crime charged against her, the prosecutor argued that such an allegation was unnecessary. The essential allegation, argues the State, is defendant's knowledge of an outstanding charge provided by law enforcement authorities and warrant for arrest on account of the commission of a high misdemeanor or any of the other offenses set forth in N.J.S.A. 2A:85-2 not actual knowledge of guilt thereof.

The judge deferred ruling on defendant's motion to dismiss until after the luncheon recess. When court reconvened the prosecutor announced to the court that during the luncheon interval he learned of the availability of testimony that defendant was present on the date and in the vicinity of Speight's offense and hence had actual knowledge of her guilt of the crime charged to her. As explained by the prosecutor:

* * * her charge, the incident that she plead guilty to was an undercover buy, that officers from Mercer County were present when the buy was made and they are prepared to testify that immediately after the transaction was made with an undercover officer that Miss Speight went back to a car in which the defendant Lynch was seated and handed him the money.

The trial judge declined, however, to permit the prosecutor to reopen using these additional facts to eliminate the objection upon which defendant's motion to dismiss was based on the ground that to use such information at the last minute before trial and without affording defendant discovery with respect to such information would be unfair to the defense. Instead of continuing the trial to permit discovery, the judge opted to rule on the motion based upon the State's opening as it was originally given, excluding from its consideration the proffered testimony described after the luncheon recess. Defendant's motion to dismiss the indictment was granted, the judge holding that "in order to prove guilt under (N.J.S.A.) 2A:85-2 one of the essential elements required of the State is to prove actual knowledge of (the) commission of the crime and that mere knowledge that a charge is outstanding against * * * the person aided is insufficient." The State appeals, alleging error in this determination.

During oral argument this court, on its own motion, questioned the State's right to appeal the order dismissing the indictment after the jury had been empaneled and sworn. Briefs on the matter were solicited and received. We conclude that the State cannot appeal this order.

The permissibility of State appeals from orders affecting the disposition of criminal cases depends, to a large extent, on whether such an appeal, if successful, would require defendant's retrial in violation of federal and state guarantees against twice being placed in jeopardy for the same offense. Hence, apart from court rules governing the matter, about which more later, inquiries concerning the State's power to appeal orders in criminal cases require consideration as to whether required proceedings subsequent to consideration of the appeal will offend that constitutional guarantee. State v. Sims, 65 N.J. 359, 370, 322 A.2d 809 (1974).

We are not unmindful of the recent redefinition of the parameters of double jeopardy protection by a trilogy of federal cases, United States v. Wilson, 420 U.S. 332, 95 S.Ct 1013, 43 L.Ed.2d 232 (1975); United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), and Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), and the New Jersey cases which anticipated the foregoing or followed in their wake: State v. Sims, supra; State v. Kleinwaks, 68 N.J. 328, 345 A.2d 793 (1975); State v. Kluber, 130 N.J.Super. 336, 327 A.2d 232 (App.Div.1974), certif. den. 67 N.J. 72, 335 A.2d 25 (1975); State v. Laganella, 144 N.J.Super. 268, 286, 365 A.2d 224 (App.Div.1976). Basic to the holdings in Wilson-Jenkins-Serfass was the view that double jeopardy considerations are not offended where a successful State's appeal would not result in a retrial of defendant's guilt.

For example, in United States v. Wilson, a post-trial order of the trial court, which set aside the jury verdict of guilt and dismissed the indictment on the ground of delay between the offenses and indictment, was appealable by the State since appellate correction of the asserted error would not subject defendant to the harassment traditionally associated with multiple prosecutions. United States v. Wilson, 420 U.S. at 352, 95 S.Ct. at 1026, 43 L.Ed.2d at 247. On the other hand, in United States v. Jenkins, the trial court order dismissing defendant and discharging the indictment following a bench (a nonjury) trial was held not appealable by the State since a successful appeal would necessitate further proceedings resolving the factual issues pertinent to the elements of the offense charged. In Serfass v. United States, however, a pretrial order dismissing the indictment on the basis of affidavits submitted and oral stipulations of counsel was held appealable by the State since jeopardy had not attached at the time the challenged ruling was made. Nothing in any of these cases suggests that a trial error favoring a defendant could be corrected on the State's appeal if the successful result of the appeal would be defendant's retrial.

New Jersey cases followed suit. State v. Kleinwaks, supra, permitted a State's appeal from a judgment of acquittal following vacation of a jury verdict of guilt. Correction of the challenged trial court action of vacating the guilty verdict would not be attended by defendant's retrial; the appeal could either result in an affirmance or reinstatement of the jury verdict. State v. Sims, supra, which preceded the Wilson-Jenkins-Serfass trilogy, is to the same effect. There, however, in issue was the appealability of a trial court order vacating a jury verdict of guilty with an accompanying order for a new trial. The ordered retrial, at defendant's request, would clearly not violate double jeopardy guarantees, and reinstatement of the jury's verdict with the attendant conviction thereon, at the request of the State on appeal, would not result in a retrial at all.

Again, the common ground of all of these pronouncements, state and federal, was that the permitted state appeal, if successful, would not result in a retrial. In Sims a retrial would be avoided by state success; the retrial which had been sought by defendant would result only from the State's failure. In Kleinwaks an appeal, successful or not, would result in no subsequent trial. In Serfass there was no first trial since jeopardy had not attached when the challenged order was made and hence any resulting trial would not constitute a second attempt by the State to secure conviction. The appeal in Jenkins was rejected because its success would necessitate further proceedings; Wilson is almost identical in its procedural underpinnings with our own Kleinwaks.

Since that trilogy, however, issues concerning the state's right to appeal trial court orders in criminal cases have continued unabated. In Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), defense counsel moved, in the bench trial, after the State's opening, for a dismissal of the information charging theft on the ground that it failed to allege all of the requisite elements thereof under the state statute. Here, it should be noted that the motion was made before jeopardy attached. The motion was "denied at this time," with the judge indicating that on research he would "give consideration as appears * * * warranted." Id., 432 U.S. at 26, 97 S.Ct. at 2144, 53 L.Ed.2d at 84. The two-hour trial proceeded to conclusion, after which defendant moved for an acquittal on the ground of insufficient government proofs. That motion was denied, with the judge noting that it bordered on the frivolous. "Your client has been proven (sic ) beyond any reasonable doubt in the world, there...