noting that “[tjhreats to, accompanied by gestures at, a particular person which would appear to be more prejudicial to a defendant since they constitute an assault as distinguished from the expression here, have been held properly evidential ]”
How later courts described this case
- noting that “[tjhreats to, accompanied by gestures at, a particular person which would appear to be more prejudicial to a defendant since they constitute an assault as distinguished from the expression here, have been held properly evidential ]”
- recognizing that a defendant's threats to witnesses intending to influence testimony are admissible as inconsistent with innocence
- stating that defendant’s statement that he would kill person who informed against him was admissible as statement against interest
- noting that while a defendant's threat to kill an informant could convey his "dismay at being unjustifiably incarcerated," it also was "consonant with an inference of an A-0527-20 30 admission of guilt."
Written by the judges who cited it.
The opinion
Conford, P. J. A. D.,
Temporarily Assigned (concurring). In the rather unique set of circumstances presented by this record, I find myself in agreement with the majority that the final disposition of the matter should be the reinstatement of defendant’s conviction for possession of drugs and the vacation of that for possession with intent to distribute, together with a direction for dismissal of that charge with prejudice (or acquittal). But I cannot concur in the supporting reasoning of the court — that the partial mistrial at the first trial was “improvidently granted”, thereby activating the double jeopardy protection of the defendant against another prosecution for possession with intent to dis *417 tribute. I consider that tbe action of the trial judge was well within the range of his discretion under the attendant circumstances. Absolution of the defendant on one or the two charges is proper, but only on the basis of the theory that the evidence in the two trials, under principles either of merger or double jeopardy, encompasses guilt of only one of the two charges, not both. I shall subsequently herein indicate the ground for my conclusion that the ultimately surviving conviction should be that of possession rather than that of possession with intent.
In my judgment, the adduction before the jury of the testimony that the defendant had told a man he thought was a co-suspect on the drug charge that, “if he found out who the individual was that informed on him he would take his hunting knife and kill him”, could reasonably have been deemed by the judge, on objection and motion for a mistrial by defendant, to have created such an aura of prejudice in the sense of bias and ill-will to the defendant on the part of the jury as to outweigh whatever probative weight the evidence might be thought to possess on the theory of consciousness of guilt. The situation presented was a classic one for application of Evid,. R. 4(b) which permits the judge in his discretion to exclude evidence if he regards “its probative weight as substantially outweighed by the risk that its admission will * * * create substantial danger of undue prejudice”. See State v. Deatore and Malton, 70 N. J. 100, at 127 (1976) concurring opinion of Clifford, J. and Conford, P. J. A. D., temporarily assigned; McCormick on Evidence (2d ed. 1972) pp. 440-441; State v. Hudson, 38 N. J. 364, 370 (1962). 1
*418 Nor can the trial judge properly be faulted for confining the grant of mistrial to the charge of possession with intent as against defendant’s plea that the mistrial go to both charges. The question is not whether we appellate judges, from the vantage of hindsight, would, if we were the trial judge, have acceded to the defense motion. It is rather, in circumstances like these, whether, “where it clearly appears that a mistrial has been granted in the sole interest of the defendant”, it must be held that “its necessary consequence is to bar all Tetrial”. See Gori v. United States, 367 U. S. 364, 369 , 81 U. Ct. 1523, 1527, 6 L. Ed. 2d 901 (1961). In my view that inquiry here calls for a negative response.
The trial judge felt that in view of the outright concession by defendant in his opening statement to the jury that he was guilty of the charge of simple possession the objectionable testimony could have no actual prejudicial effect in relation to a trial of that charge alone. It seems to me that this position was at least eolorably correct in relation to an assessment of whether, in the context of the total fact-picture, a retrial of the defendant on the possession-with-intent charge after such a partial mistrial was violative of the double jeopardy criterion of affording “law and justice to * * * defendant and to the public.” State v. Farmer, 48 N. J. 145, 171-172 (1966), cert. den. 386 U. S. 991 , 87 S. Ct. 1305 , 18 L. Ed. 2d 335 (1967). See also the quotation by the majority of this court from Jus *419 tice Stewart’s dissenting opinion in United States v. Jorn, 400 U. S. 470, 492 , 91 S. Ct. 547 , 27 L. Ed. 2d 543 (1971) (pp. 408-409).
It is of some apparent significance, under the cases, whether the mistrial was granted on the motion of the defendant rather than on motion of the prosecution or sua sponte by the court. As stated in United States v. Jorn, supra ( 400 U. S. at 485 , 91 S. Ct. 547 ), and recently reiterated in United States v. Dinitz,- U. S.-,-, 96 S. Ct. 1075, 1080 , 47 L. Ed. 2d 267 , 44 U. S. L. W. 4309, 4311 (1976):
“If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct hy judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” (emphasis added).
Eor purposes of application of the quoted rule I am satisfied that: (1) the instant circumstances were not "attributable to prosecutorial or judicial overreaching”; and (2) that the court’s action may fairly be attributed to the defendant’s motion even though that motion was granted only in part (i. e., as to the charge of possession with intent). As the majority will concede, there was no prosecutorial "overreaching” here. The controversial testimony was colorably probative and thus admissible, aside from Evidence Buie 4 considerations. And what I have said above should absolve the action of the trial judge from any characterization of overreaching.
It remains to consider whether the partial mistrial can properly be regarded as attributable to defendant’s motion. The majority asserts the grant of mistrial was “over the objection” of defendant. My scrutiny of the record con *420 strains me to disagree. The objection of the defendant was only to the refusal to include the possession charge in the mistrial and to being required to proceed with the trial on that count. Nowhere did the defendant suggest that, in the posture of the court’s ruling for continuation of the trial on that count, he objected to the mistrial of the charge for possession with intent, as such. He never articulated or implied a request that if the one charge must be tried, both should be at the same time. Indeed, at a later stage of the trial, counsel for defendant stated in the course of argument for a dismissal of the first count: “You have already declared a mistrial on that Second Count [possession with intent] and I wholeheartedly agree with what your Honor did”.
In these circumstances I am not impressed by defendant’s present assertion that it was important to him to have both charges tried at the same time for the tactical advantage of promoting his ease of innocence on the intent charge by frank avowal of guilt on the possession charge. That consideration does not equate with or fortify a demonstration of double jeopardy on these facts.
Thus, the line of United States Supreme Court cases, in which the defendant has not made the motion for mistrial, stressing the necessity that, to preclude a claim of double jeopardy, the mistrial in the prior trial must have arisen from “a manifest necessity for the act, or the ends of public justice would otherwise be defeated”, United States v. Perez, 22 U. S. (9 Wheat.) 579 , (1824), is not here applicable. See also Downum v. United States, 372 U. S. 734, 736 , 83 S. Ct 1033 , 10 L. Pd. 2d 100 (1963), suggesting a test of “imperious necessity”; Illinois v. Somerville, 410 U. S. 458 , 93 S. Ct. 1066 , 35 L. Ed. 2d 425 (1973). See Comment “Double Jeopardy and Reprosecution After Mistrial: Is the Manifest Necessity Test Manifestly Necessary?”, 69 N. W. U. L. Rev. 887 (1975). The test here, where the defendant did make the motion, is, rather, as already noted and as stated in Jorn and Dinitz, both cited *421 above, whether the circumstances leading to the motion were “attributable to prosecutorial or judicial overreaching”. Eor the reasons stated, I am clear that that criterion has not been established by defendant in this case.
Notwithstanding all the foregoing, the defendant should not stand adjudged guilty of both charges. It is impossible to segregate the marijuana upon which the jury may have rested its verdict of guilt in the first trial from that which could have led to the verdict of guilt of possession with intent to distribute in the second trial. In summation on the first case the prosecutor told the jury it was of no consequence whether they rested their determination on the quantum of drugs found on defendant when he returned to the room or that taken from the coat in the closet. Since it could have been the former, and since there is no reasonably tenable inference that such possession was of more than the “fleeting and shadowy” kind of possession purely incidental to the alleged intended sale, the evidence is not clearly consistent with a theory of discrete possession per se and possession with intent to distribute justifying conviction on both charges. See State v. Wilkinson, 126 N. J. Super. 553, 556 (App. Div.) certif. den. 63 N. J. 562 (1963); State v. Booker, 86 N. J. Super. 175, 178 (App. Div. 1965); State v. Davis, 68 N. J. 69, 83 (1975).
The' difficult question is which conviction should survive. Does the case call for application of merger —■ the determination arrived at by the Appellate Division — on the theory that the matter should be looked at from the perspective of the initiation of the prosecution as a joint trial of both charges? If so viewed, the possession-with-intent conviction survives. State v. Jamison, 64 N. J. 363, 379-380 (1974). Or should the controlling factor be the circumstance that in fact a trial for possession with intent followed a conviction for simple possession? In that case, of course, double jeopardy bars the later conviction because of earlier conviction of a lesser included offense. State v. Lobato, 7 N. J. 137 (1951). I would resolve the dilemma *422 in favor of the latter choice. The contretemps that developed here cannot be imputed to any trial dereliction of the defense. The motion for mistrial which precipitated the divided litigation was certainly warranted as a matter of defense. The defendant did in fact sustain the mental burden and stigma of a conviction of possession. That conviction was presumptively valid and subsisting. In that posture, the notion of a joint trial is fictional, and the subsequent prosecution of the more inclusive crime of possession with intent offended the double jeopardy rationale exemplified by State v. Labato, supra. I would therefore strike the conviction on that charge and permit the original conviction of simple possession to stand, 2 modifying the judgment of the Appellate Division accordingly.
Justice Cliffobd joins in this opinion.
While most of tbe reported decisions have sustained convictions as against contentions of error in the admission of evidence of threats by the defendant asserted to be prejudicial, see majority opinion, in two cases such contentions have been sustained. Cobb v. State, 20 Ala. App. 3, 100 So. 463 (1924), cert. den. 211 Ala. 320 , 100 So. 466 ; State v. Marler, 94 Idaho 803 , 498 P. 2d 1276 (1972). But the point of present significance is that the majority *418 decisions are not holdings that the exercise of discretion by the trial judge the other way on admissibility would have been improper. There may have been countless rulings in favor of defendants on such questions not revealed in reports of appellate decisions since an appealing defendant in a criminal case would obviously not challenge a favorable ruling.
It may be further noted that in the general run of the majority cases, see Annot. 62 A. L. R. 136 (1929), the threat was during or in anticipation of trial and against a known prospective witness for the State. See also, e. g., State v. Hill, 47 N. J. 490 (1966). Probative weight is somewhat less in such a case as the present one when such elements are lacking.
The State did not cross-petition for certification from so much of the Appellate Division’s judgment as vacates the conviction and sentence on the possession charge. It would have been much the better practice had that course been pursued. However, in view of the result I reach, it would be anomalous to focus only on that part of the Appellate Division’s determination which affirms the possession-wtih-intent-to-distribute charge and at the same time ignore that court’s vacating of the possession conviction. The latter forms the factual and legal underpinning for reversal of the former and is inextricably intertwined therewith.