State v. Rechtschaffer

Pashman, J.

(dissenting). This case concerns the propriety of a trial court order granting a mistrial on only one count of a two-count indictment. It also asks whether, after declaration of the mistrial, a subsequent retrial on that count is barred by the double jeopardy clause of the State and federal constitutions.* 1

*423 Defendant Richard L. Reehtschaifer was arrested for possession of more than 25 grams of marijuana. The Prosecutor of Morris County, acting upon information provided by two undercover agents, secured an indictment against Reehtschaifer on counts of possession of marijuana (N. J. S. A. 24:21-20 a(3)) and possession with intent to distribute (N. J. S. A. 24:21-19 a(l)).

During the course of the trial, John Dempsey, one of the undercover agents, testified as to his conversations with Reehtschaifer while they were in jail. Specifically, he stated that:

He [Reehtschaifer] advised [me] that if he found out who the individual was that informed on him he would take his hunting knife and kill him.

Defendant promptly moved for a mistrial on both counts because of the prejudicial effect of this statement. Though conceding the validity of defendant’s arguments, the trial court ordered what in effect was a partial mistrial by declaring a mistrial on the possession with intent to distribute charge but continuing the trial on the lesser offense. In reaching this decision, the trial judge noted that defendant, through his attorney’s opening remarks, had admitted his possession of the marijuana. Reasoning that the defendant could not be prejudiced as to a crime which he had already admitted, the judge concluded that the trial on the charge of simple possession would not be unduly affected by the inflammatory statement. Over objections by both defense counsel and the prosecutor, the trial was resumed and resulted in defendant’s conviction.

Defendant thereafter moved for dismissal of the possession with intent to distribute count on double jeopardy grounds. The motion was denied and defendant was convicted of this offense at a subsequent trial.

On appeal, the Appellate Division affirmed the conviction for possession with intent to distribute but vacated the earlier *424 conviction for possession. 2 The court held that simple possession represented a lesser included offense of possession with intent to distribute and thus merged into the latter charge because both offenses were grounded upon the same evidence. While the State did not appeal from vacation of the earlier conviction, defendant filed a petition for certification which this Uourt granted. 68 N. J. 144 (1975).

The majority today acquits defendant of the charge of possession with intent to distribute but reinstates the conviction for simple possession. Pirst, the majority reasons that the mistrial was improvidently granted by the trial court. It reaches this decision by characterizing the testimony of Agent Dempsey as being clearly relevant because it indicated “consciousness of guilt, or [was] inconsistent with innocence or tend[ed] to establish intent.” Ante at 413. The Court further asserts that Dempsey’s remarks, though hearsay, were admissible as a declaration against interest under Evid. R. 63(10). It then holds that while the conviction for simple possession may stand, the subsequent conviction for possession with intent to distribute is barred by principles of double jeopardy. Contrary to .the majority, I would vacate both convictions and dismiss with prejudice.

The disposition I would recommend derives from my belief that it was a proper exercise of discretion for the trial court to grant a mistrial under the facts of this case. I nonetheless conclude that it was improper for the court to order a mistrial on only one of the .two counts in the indictment. I am persuaded that because the prejudicial effect on one charge was equivalent to the prejudicial effect on the second charge, a mistrial should have been granted as to both counts. I would, therefore, vacate the tainted conviction which resulted from the first trial. I would also set aside the verdict of the second trial on the grounds that, because the partial *425 mistrial was improperly granted over defendant’s objection, a retrial of that count is barred by the constitutional prohibition against double jeopardy. I will examine these two aspects of the case in order.

I

Propriety of Granting a Partial Mistrial

My initial difference with the majority stems from what I regard as its erroneous conclusion that the mistrial was improvidently granted. The majority seems to imply that simply because testimony is “relevant” and “probative,” it must be admitted into evidence. Evidence Rule 4, however, permits a trial judge to exclude otherwise relevant evidence if its prejudicial effect outweighs its probative value:

The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will . . . create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.

This rule vests discretion in the trial judge for making such determinations. McCormick, Evidence, § 185 at 439-440 (1971). 3 I do not believe that the trial judge here abused his discretion in this regard.

Dempsey’s testimony as to defendant’s post-arrest comment was both inflammatory in its content and damaging in its implications. Moreover, it was completely unrelated to the substantive offenses with which defendant was charged and thus had only limited bearing on defendant’s guilt. iContrary to the cases cited by the majority (ante at 414-415), this case does not involve a violent crime. Nor *426 does it contain testimony of threats by a defendant against a specific witness who is expected to testify against him. As a result, the instant matter is clearly distinguishable from those cases which hold that damaging testimony similar, to that of Agent Dempsey is admissible to demonstrate a “consciousness of guilt.” In the context of the trial, it cannot be said that the trial judge erroneously concluded that the prejudicial effect of Dempsey’s testimony substantially outweighed its probative value.

However, while I do not believe that the trial court abused its discretion in granting a mistrial on the charge of possession with intent to distribute, I find no rational basis for its failure to similarly grant a mistrial as to the remaining count. By declaring a mistrial in the first place, the court acknowledged that substantial prejudice might result from Dempsey’s testimony. If it is conceded that this testimony could have compromised the jury’s ability to reach a. fair and dispassionate verdict as to one count,- it seems illogical to argue that an intimately related charge, grounded upon the same evidence, would somehow remain immune from such prejudice. This is particularly so where the allegedly prejudicial testimony is equally unrelated to either of the criminal charges.

The judge’s suggestion that a remark by defense counsel which conceded that Rechtschaffer did have possession of marijuana, somehow insulates the possessory offense from the damaging effects of the agent’s testimony is untenable. A comment made by counsel during the course of his opening statement must never be treated as a plea of guilty. Despite limiting instructions to this effect, it is highly unlikely that a jury untrained in the law would be able to differentiate between evidence offered for different purposes and on different charges in the course of the same trial. State v. Boone, 66 N. J. 38, 48 (1974); State v. Miller, 67 N. J. 229, 240 (1975) (Pashman, J., dissenting). The jury will, and in this case probably did, consider the prejudicial and inflammatory testimony in reaching its decision.

*427 In this respect, I find the impact of the contested testimony to be similar to the harmful “rubbing off” effect which I described in my dissent in State v. Deatore, 70 N. J. 100, 121, 358 A. 2d 163, 175 (1976) (Pashman, J., dissenting). There, I criticized the effect of impermissible cross-examination of a testifying defendant on his non-testifying accomplice. In the instant case, I find no real distinction between the prejudicial effect of the agent’s testimony on jury deliberations on one possession charge and the identical effect which it might have on consideration of the other jointly-tried possession charge. Consequently, once the trial court had determined that a mistrial was warranted, it should have declared a mistrial as to both counts, not one. I, therefore, find that the conviction resulting from the first trial on the charge of simple possession was both tainted and unduly prejudicial, and I would therefore set it aside. 4

*428 In making these observations, I am of course cognizant that the power to declare a mistrial resides in the sound discretion of the trial judge. Illinois v. Somerville, 410 U. S. 458 , 93 S. Ct. 1066 , 35 L. Ed. 2d 425 (1973); United States v. Jorn, 400 U. S. 470 , 91 S. Ct. 547 , 27 L. Ed. 2d 543 (1971); Gori v. United States, 367 U. S. 364 , 81 S. Ct. 1523 , 6 L. Ed. 2d 901 (1961); Brock v. North Carolina, 344 U. S. 424 , 73 S. Ct. 349 , 97 L. Ed. 456 (1953); State v. DiRienzo, 53 N. J. 360, 383 (1969); State v. Farmer, 48 N. J. 145, 170 (1966) cert. den. 386 U. S. 991 , 87 S. Ct. 1305 , 18 L. Ed. 2d 335 (1967); State v. O’Leary, 25 N. J. 104, 116 (1957); State v. Witte, 13 N. J. 598, 611 (1953). This power should be reluctantly invoked and exercised, State v. Locklear, 16 N. J. 232, 239 (1954); State v. Farmer, supra, 48 N. J. at 171; but, when necessary, it should be employed in a manner consistent with a standard, whose classic -definition is that of Justice Story in United States v. Perez, 22 U. S. (9 Wheat.) 579 , 6 L. Ed. 165 (1824) :

We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice mould otherwise he defeated. [ 22 U. S. (9 Wheat.) at 579 , 6 L. Ed. at 1651

While this standard has been susceptible to a variety of restatements on both the federal and state levels, Wade v. Hunter, 336 U. S. 684 , 69 S. Ct. 834 , 93 L. Ed. 974 (1949) (“ ‘imperious’ or ‘urgent necessity’ ”); Downum v. United States, 372 U. S. 734 , 83 S. Ct. 1033 , 10 L. Ed. 2d 100 *429 (1963) (“imperious necessity”); State v. Locklear, supra (“absolute or an overriding necessity”), courts -which have resorted to this procedural device have endeavored to protect the same basic interest. The role of the trial court in protecting this interest was outlined by this Court in State v. Farmer, supra:

A wide range of discretion is recognized in the trial judge, who has his finger on the pulse of the proceedings. If in his judgment emergent conditions come into being which persuade him that the ends of justice for the defendant and the State cannot be achieved without aborting the trial, neither the Federal nor the State Constitution proscribes such an order. [48 N. J. at 171]

Thus, appellate courts have eschewed attempts to delineate or utilize mechanistic formulae by which to determine the circumstances which would warrant the declaration of a mistrial. Illinois v. Somerville, supra, 410 U. S. at 463 , 93 S. Ct. at 1070 , 35 L. Ed. 2d at 430 . 5 This represents a judicial effort to accord sufficient leeway to the judgment of the trial court, whose assessment of the attendant circumstances at trial may be most sensitive to defendant’s interests.

Within the context of the instant case, where the trial judge had already recognized the danger of undue prejudice with regard to one of the charges and where the potential for prejudice would clearly “rub off” on a second charge, the *430 failure of the judge to declare a mistrial as to both offenses was clearly error. Accordingly, I would set aside the conviction for simple possession and dismiss this charge with prejudice.

n

Double Jeopardy as a Bar to Retrial

The question remains whether a retrial of the possession with intent to distribute count is permissible after a mistrial was previously granted on that count. I submit that the recent United States Supreme Court decision in United States v. Dinitz, 424 U. S. 600 , 96 S. Ct. 1075 , 47 L. Ed. 3d 367 (1976), prohibits such a retrial.

In that ease, defendant Dinitz was indicted for distribution and conspiracy to distribute LSD. During the course of the opening statements, chief counsel for defendant committed several indiscretions, which eventually caused the trial judge to expel him from the courtroom. 6 After removing this attorney from the case, the judge presented defendant with three options: (1) have the proceedings stayed, pending an application to the Court of Appeals to review the propriety of his action; (3) continue the trial with representation by the expelled attorney’s (concededly ill-prepared) cocounsel or (3) have a mistrial declared to permit the defendant time to retain new counsel. After considering the options, defendant moved for a mistrial which was granted without objection by the prosecution. Before his second trial, though, the defendant moved that the charges be dismissed on the grounds that a retrial would violate principles of double *431 jeopardy. The motion was denied and defendant was convicted of the original charges at a subsequent trial.

In rejecting defendant’s double jeopardy claim, the United States Supreme Court relied heavily on the distinction between cases where a defendant requests a mistrial and cases where a court orders a mistrial on its own motion. Acknowledging that the declaration of a mistrial necessarily implicates a defendant’s “valued right to have his trial completed by a particular tribunal” ( 424 U. S. at 606 , 96 S. Ct. at 1079 , 47 L. Ed. 2d at 273 ; see also United States v. Jorn, supra, 400 U. S. at 484-485 , 91 S. Ct. at 556-557 , 27 L. Ed. 2d at 556 ; Bownum v. United States, supra, 372 U. S. at 736 , 83 S. Ct. at 1034 , 10 L. Ed. 2d at 102-103 ; Wade v. Hunter, supra, 336 U. S. at 689 , 69 S. Ct. at 837 , 93 L. Ed. at 978 ), the Court noted that ordinarily, a motion by the defendant for mistrial will not pose any barrier to reprosecution absent prosecutorial or judicial misconduct. United States v. Dinitz, supra, 424 U. S. at 606 , 96 S. Ct at 1079 , 47 L. Ed. 2d at 273 ; United States v. Jorn, supra, 400 U. S. at 485 , 91 S. Ct. at 557 , 27 L. Ed. 2d at 556 . On the other hand, it recognized that where a court declares a mistrial sua sponte, there can be a new trial only if the mistrial was properly granted on the ground of “manifest necessity.” United States v. Dinitz, supra, 424 U. S. at 606 , 96 S. Ct. at 1079 , 47 L. Ed. 2d at 273 ; Illinois v. Somerville, supra, 410 U. S. at 461 , 93 S. Ct. at 1069 , 35 L. Ed. 2d at 429 ; United States v. Jorn, supra, 400 U. S. at 481 , 91 S. Ct. at 555 , 27 L. Ed. 2d at 554 ; Gori v. United States, supra, 367 U. S. at 368-369 , 81 S. Ct. at 1526 , 6 L. Ed. 2d at 904-905 ; United States v. Perez, supra, 22 U. S. (9 Wheat.) at 579 , 6 L. Ed. at 165 .

In the Dinitz ease itself, the Eifth Circuit Court of Appeals found that the actions of the trial judge left the defendant “no choice but to move for or accept a mistrial” 492 F. 2d at 59. It therefore discounted his request for a mistrial and treated the case as though the trial judge had declared a mistrial sua sponte. Because it also found that there was no *432 “manifest necessity” which required the expulsion of defense counsel (since other disciplinary measures were available), the court concluded that the double jeopardy clause barred a second trial. United States v. Dinitz, 492 F. 2d 53 (5 Cir. 1974), affd, 504 F. 2d 854 (5 Cir. 1974). On appeal, the Supreme Court assumed arguendo that the mistrial had been improvidently granted, but reversed the Court of Appeals, because the Court determined that the defendant had in fact retained sufficient control of the conduct of the case to permit reprosecution. United States v. Dinitz, supra, 424 U. S. at 607 , 96 S. Ct. at 1080 , 47 L. Ed. 2d at 275 . In explaining its decision, the Court stated:

Different considerations obtain, however, when the mistrial has been declared at the defendant’s request. The reasons for the distinction were discussed in the plurality opinion in the Jorn case:

If the right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by 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. In the absence of such a motion, the Perea doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Perez, 9 Wheat., at 580 . 400 U. S., at 485 , 91 S. Ct. 547 (footnote omitted).

The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant’s request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant’s prospects of securing an acquittal, he may nonetheless desire “to go to the first jury and, perhaps, end the dispute then and there with an acquittal.” United States v. Jorn, supra, at 484, 91 S. Ct. 547 . [ 424 U. S. at 607 , 96 S. Ct. at 1080 , 47 L. Ed. 2d at 273-274 ; footnote omitted]

For these reasons, the Court concluded that:

*433 • . . . The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retains primary control over the course to be followed in the event of such error. [424 ¡7. $. at 608, 96 S. Ct. at 1081 , 47 L. Ed. 2d at 275 ; footnote omitted; emphasis supplied] . . -

I have no doubt that had the trial court in this case granted defendant’s motion for a mistrial as to both counts of the indictment, there would have been no bar to reprosecution. However, the judge' did not do so. In contrast to the circumstances presented in Dinitz, here defendant retained no.control over the course of. events. In fact, when it appeared that the trial judge had decided to grant a mistrial on one count, but not on the other, counsel for the defendant objected. Because .defendant objected only to a partial mistrial, it is probable that given the opportunity, he might have preferred to “go to the first jury” rather than suffer- the • “anxiety, expense, and delay occasioned by multiple prosecutions.” See United States v. Dinitz, supra, 424 U. S. at 608 , 96 S. Ct. at 1081 , 47 L. Ed..2d at 275. However, this opportunity was never- afforded and defense counsel was directed by the court to “go ahead.” The defendant never sought a partial mistrial; consequently, such action was clearly taken by the trial court sua sponte. .(See ante at 366 n. 1, 371). As noted above, I am convinced that under the circumstances of this case, a partial mistrial was an improper resolution of the matter. It follows that because the mistrial was declared on motion by the court, the guarantee against double jeopardy prohibits reprosecution of defendant on the possession with intent to distribute count.

For the foregoing reasons, I would set aside the conviction for possession with intent to distribute and further dismiss both counts of this indictment with prejudice.

Contoed, P. J. A. D., and Cmjtokd, J., concurring in .the result. - . . :

*434 For reversal — Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford — 6.

Dissenting — Justice Pashman — 1.

The double jeopardy clause of the fifth amendment to the United States Constitution was deemed applicable to the states through the fourteenth amendment in Benton v. Maryland, 395 U. S. 784 , 89 S. Ct. 2056 , 23 L. Ed. 2d 707 (1969). The prohibition against multiple prosecutions for the same offense is also found in Article I, par. 11 of the New Jersey Constitution of 1947.

Apparently, defendant did not appeal directly from the first conviction.

Although Evidence Rule 4 did not become effective until 1967, the principle which it embodies is reflected in New Jersey cases which preceded its adoption. See Stoelting v. Hauck, 32 N. J. 87 (1960) ; Wimberly v. Paterson, 75 B. J. Super. 584 (App. Div. 1962), certif. den. 38 N. J. 340 (1962) (bullet-ridden, blood-stained clothing withheld from jury because of prejudicial potential).

Incidentally, I note that there are several additional grounds on which the propriety of granting a partial mistrial might falter.

First, by requiring separate trials for each count of the indictment, the action of the trial court contravened an important State policy which provides that no defendant shall be subjected to separate trials for offenses arising out of the same criminal episode. State v. Gregory, 66 N. J. 510 (1975) ; State v. Labato, 7 N. J. 137 (1951). See also Section 2C:1-9(d) of the proposed Neto Jersey Code of Criminal Justice, now pending before the Legislature as Assembly Bill No. 3282 (1975), which provides that prosecution is barred when a former prosecution has been improperly terminated. As the majority itself concedes, “A mistrial of one count only which is inextricably intertwined with the second would frustrate that policy.” Ante at 413.

Second, the declaration of a partial mistrial might very well have violated the doctrine of merger. In this regard, the majority states that under the circumstances of this case simple possession was “inseparable” from possession of the same marijuana with intent to distribute since both offenses were supported by the same evidence. Ante at 403. Therefore, defendant may be convicted and sentenced on only one of these two offenses. cf., State v. Best, 70 N. J. 56, 356 A. 2d 385 (1976) ; State v. Davis, 68 N. J. 69, 77 (1975) ; State v. Jamison, 64 N. J. 363, 380 (1974) ; State v. Fariello, 133 N. J. Super. 114, 120 (App. Div. 1975), certif. den. 68 N. J. 164 (1975) ; State v. Wilkinson, 126 N. J. Super. 553, *428 556 (App. Div. 1973), certif. den. 63 N. J. 562 (1973). While the majority reaches this conclusion because the evidence indicates that defendant’s possession may have been “fleeting and shadowy,” (State v. Davis, supra, 68 -N. J. at 84 n. 8; see opinion of Conford, P. J. A. D. t/a at 421), I would also find a merger of these offenses for the additional reasons set forth in my dissenting opinion in State v. Ruiz, 68 N. J. 54 (1975), the companion case to State v. Davis, supra.

As this Court stated in State v. Farmer, supra:

Obviously there can be no cataloguing of events or conduct which, without more, will require a holding of double jeopardy when a mistrial is ordered without defendant’s consent. The circumstances must be examined with a mind conscious of the trial milieu and the fact that its atmosphere, vagaries, emotional stimuli and urgency of decision only rarely can be captured in a cold appellate record. They must be looked at also with an awareness that a person accused of crime has no natural constitutional right to be exempted from those procedural practices which are deemed necessary in the effort of the State to make sure that the conduct and final result of a trial shall be in accordance with law and justice to all defendants and to the public. [48 N. J. at 171-72]

Specifically, defense counsel refused to confine Ms opening statement to a summary of the facts and issues, and instead insisted on conveying Ms personal opinions. He also alleged that the State’s principal witness sought to extort money from the defendant, even though there was no evidence connecting the prospective government witness with the extortion attempt.