State v. Thomas

• Decision Date: 24 July 1972
• Citation: 61 N.J. 314,294 A.2d 57
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lamont THOMAS, Defendant-Appellant. . Re
• Court: New Jersey Supreme Court

Page 314

61 N.J. 314

294 A.2d 57

STATE of New Jersey, Plaintiff-Respondent, v. Lamont THOMAS, Defendant-Appellant.

Supreme Court of New Jersey.

Reargued June 6, 1972.

Decided July 24, 1972.

Edward Weisslitz, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, attorney; Edward Weisslitz, Newark, of counsel, and on the brief).

Solomon Forman, Assistant Prosecutor, for respondent (Robert N. McAllister, Jr., Atlantic County Prosecutor, attorney; Ernest M. Curtis, Assistant Prosecutor, of counsel, and on the brief).

The opinion of the Court was delivered by

MOUNTAIN, J.

Defendant was indicted for murder under N.J.S.A. 2A:113--1 and 2A:113--2. Claiming double jeopardy, he moved to dismiss the indictment pursuant to R. 3:10--2. The trial court, in a written opinion reported at 114 N.J.Super. 360, 276 A.2d 391 (Law Div.1971) denied the motion but at the same time refused to permit the State to proceed upon the theory of a felonymurder, directing that 'the proofs shall be limited and directed towards the direct establishment of all the elements of a first degree Murder.' Defendant moved for leave to appeal to the Appellate Division from the denial of his motion to dismiss and the State moved for leave to appeal from so much of the order as precluded it from proceeding upon the theory of felony-murder. Leave to appeal was granted to both parties; we then certified both appeals before argument in the Appellate Division. R. 2:12--1.

On June 5, 1969, defendant approached Mrs. Fannie Murray, a 74-year-old woman, knocked her to the sidewalk and made off with her pocketbook. Following his apprehension he was indicted on July 29, 1969 for atrocious assault and battery, N.J.S.A. 2A:90--1, assault with intent to rob, N.J.S.A. 2A:90--2, and robbery, N.J.S.A. 2A:141--1. On August 5 he pleaded not guilty to all three counts of the indictment but on October 27 he retracted his plea as to the atrocious assault and battery count and pleaded guilty to that offense. This action was taken pursuant to a plea bargain entered into between the defendant and the prosecutor. When the guilty plea was entered both the court and the prosecutor indicated that in due course the remaining two counts of the indictment would be dismissed. On December 5, 1969, defendant was sentenced to an indeterminate term in the Youth Reception and Correctional Center at Yardville. At the time of sentencing the probation officer advised the court that the prosecutor had recommended dismissal of the remaining counts of the indictment.

On January 23, 1970, Mrs. Murray, the victim of the assault, died from injuries allegedly sustained as a result of the attack. About nine months later, on September 15, 1970, on motion of the prosecutor, the two remaining counts of the indictment, those charging assault with intent to rob and robbery, were dismissed. On October 29, 1970 defendant was indicted for the murder of Fannie Murray.

Following oral argument this Court remanded the matter to the Law Division to determine (1) whether at the time of the plea bargain the parties were aware of the possibility that Fannie Murray might die, and if so whether the plea bargain as intended to be a final disposition of the entire matter regardless of whether or not the victim survived, and (2) what was intended by the prosecutor and the court in dismissing the remaining two counts of the indictment on September 15, 1970.

From the record made on remand we are satisfied that the defendant, at the time of the plea bargain, had been made well aware by his then counsel that Mrs. Murray was likely to die. He was, in fact, advised by counsel that if he had committed the crime it would be to his advantage to plead guilty to a count in the indictment--assuming the prosecutor would agree--as this would probably preclude a later prosecution for murder. Defendant accepted this advice and his attorney accordingly conferred with an assistant prosecutor, with whom it was arranged that a guilty plea would be entered to the count charging atrocious assault and battery, with the understanding that the other two counts would then be dismissed. Nothing was said as to the possibility that Mrs. Murray might die. At the time the victim was being cared for in a nearby nursing home, and her state of health could have been readily ascertained by the prosecutor. This, however, was not done, and it is clear that at the time of the bargain and when defendant's guilty plea was accepted, neither the prosecutor nor the court was conscious of the fact that Mrs. Murray's condition was probably fatal.

It was also made clear from the record on remand that in September, 1970, when the court, upon the prosecutor's motion, dismissed the counts of the indictment charging robbery and assault with intent to rob, at least the prosecutor was fully aware that the victim had died the previous January; it is not certain whether the judge who granted the motion to dismiss did or did not know that this had occurred. The dismissal of these charges concededly represented an act on the part of the prosecutor to which he felt obliged by virtue of his agreement with defendant.

We first consider defendant's contention that having accepted his plea of guilty to the charge of atrocious assault and battery the State, under principles of double jeopardy, thereby rendered itself unable to indict and try defendant at some later time for the crime of murder. In his opinion below, Judge Rauffenbart carefully reviewed many of the pertinent authorities in this State that deal with the problem of double jeopardy. He noted that our courts have employed three different and distinct tests to determine whether a defendant is being twice placed in jeopardy. These may, for convenience, be referred to as the 'same transaction' test, the 'lesser included offense' test and the 'same evidence' test. After discussing each of these, the opinion goes on to point out that apparently no decision in this jurisdiction has squarely decided the question as to what test should be applied where the victim dies after a judicial determination as to the initial criminal act. 114 N.J.Super. at 365, 276 A.2d 391. It is noted, however, that

. . . the collected cases 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 jeopardy would not attach. (Citing authorities). (State v. Thomas, 114 N.J.Super. at 366, 276 A.2d at 394)

We entirely agree with this conclusion. In addition to the cases cited by the court below, see also People v. Harrison, 395 Ill. 463, 70 N.E.2d 596 (1946), cert. denied 334 U.S. 812, 68 S.Ct. 1013, 92 L.Ed. 1744 (1948); State v. Randolph, 61 Idaho 456, 102 P.2d 913 (1940); State v. Meadows, 272 N.C. 327, 158 S.E.2d 638 (1968); State v. Wilson, 85 Ariz. 213, 335 P.2d 613 (1959). In each of these cases the defendant was either convicted of assault and battery or pleaded guilty thereto and was thereafter indicted for murder, the victim having died following the initial conviction. In each case the defense of double jeopardy was raised and rejected. As the Supreme Court of Idaho put it,

Certainly the state need not on the one hand wait after every battery for a year and a day to determine whether the assaulted party dies and then proceed, or lose the right to prosecute for the greater offense. Nor on the other hand would it be just to hold an assaulting defendant for a year and a day as a potential murderer on the possibility of death ensuing within that time. (State v. Randolph, 102 P.2d at 914)

If defendant's case, therefore, rested solely upon the fact that he had pled guilty and been sentenced on the charge of atrocious assault and battery before the victim's death, it would deserve little countenance. The law is settled that where the chronology of events is (1) assault and battery, (2) conviction of that offense, (3) death of the victim, and (4) indictment for homicide, the defense of double jeopardy is not available.

Here, however, an additional factor invites careful consideration in the defendant's interest. In our view it has been clearly established that defendant entered into what we find to have been a perfectly valid plea bargain, to the full benefits of which he remains entitled.

In late October, 1969, defendant's trial was imminent. At that time, by investigation, his counsel had learned from doctors in the nursing home where Mrs. Murray was a patient, that there was little chance of her recovery and a good likelihood that she would soon die. He accordingly advised his client, as we have already indicated, that a guilty plea to a crime for which he...