STATE OF NEW JERSEY v. ROY W. HERMALYN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1669-09T41669-09T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ROY W. HERMALYN,

Defendant-Respondent.

__________________________

 

Argued April 12, 2010 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1109-05.

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief; John J. Scaliti, Senior Assistant Prosecutor, on the brief).

Eric Tunis argued the cause for respondent (Greenbaum, Rowe, Smith & Davis, L.L.P. and Brickfield & Donahue, attorneys; Mr. Tunis and Paul B. Brickfield, of counsel and on the brief).

PER CURIAM

We granted the State's motion for leave to appeal from an October 29, 2009 order in favor of defendant Roy W. Hermalyn, dismissing two counts of an indictment on double jeopardy and collateral estoppel grounds. See U.S. Const. amend. V; N.J. Const. Art. 1, par. 11. We remand this matter to the trial court for reconsideration and a more detailed analysis required by Yeager v. United States, 129 S. Ct. 2360, 2367 (2009).

I

This appeal concerns the State's attempt to retry defendant, a school official, for alleged sexual misconduct with a student, following defendant's acquittal on fourteen of sixteen counts of an indictment, and our reversal of his conviction on the first two counts of the indictment. The record presented to us on this appeal can charitably be described as sparse. The State did not provide us with the transcripts of the first trial, and neither party's brief described for us in any detail what evidence was presented at the first trial, or even what the State alleged, beyond a skeletal outline. Our summary of the record is therefore necessarily brief.

In the first trial, the jury convicted defendant on the first two counts, charging him with official misconduct with respect to a student known as J.P., and with endangering J.P.'s welfare. However, the jury acquitted defendant on all of the next fourteen counts, each of which charged defendant with committing specific sexual acts with respect to J.P. Those sexual acts included allegedly engaging in fellatio with the student, touching the student's penis, chest, inner thigh and buttocks, touching defendant's own penis in the student's presence, and attempting to engage the student in prostitution.

We reversed the convictions on the first two counts, because a sheriff's officer had made improper comments to the jury, which at least one juror construed as meaning that the jury had to return a verdict of guilty or not guilty and was not allowed to deadlock. State v. Hermalyn, Nos. A-2700-07 and A-4003-07 (App. Div. Jan. 9, 2009) (slip op. at 21). We found that those comments "clearly had the 'capacity' to influence the final verdict." Ibid. (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)). We remanded the case for a retrial on those two counts, based solely on the issue before us on that appeal, namely the prejudicial impact of the sheriff's officer's comments. Ibid.

On remand, defendant moved to dismiss the indictment on those two counts, contending that in light of the acquittals on counts three through sixteen, a retrial would violate the Double Jeopardy Clause. The trial judge held that the State could not retry defendant on those two counts by introducing evidence of the sexual acts alleged in the counts on which the jury had acquitted defendant. Because the State admitted that it intended to rely only on the same evidence of the sexual acts it had relied on in the first trial, the judge dismissed the indictment with prejudice.

II

In Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the United States Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment includes the bar of collateral estoppel:

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . As a rule of federal law, . . . "it is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case. . . ."

[Id. at 443, 90 S. Ct. at 1194 (citations omitted).]

Our Supreme Court has likewise applied collateral estoppel to bar a subsequent prosecution where the jury's acquittal in the first case necessarily evinced its rejection of the essential facts on which the State later sought to base a second prosecution. See State v. Cormier, 46 N.J. 494, 507-09 (1966).

In Yeager v. United States, 129 S. Ct. 2360 (2009), the United States Supreme Court held that the collateral estoppel determination requires a close look at the record of the first trial to see what was actually put in issue and necessarily decided by the jury:

In Ashe, we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial. In that case, six poker players were robbed by a group of masked men. Ashe was charged with -- and acquitted of -- robbing Donald Knight, one of the six players. The State sought to retry Ashe for the robbery of another poker player only weeks after the first jury had acquitted him. The second prosecution was successful: Facing "substantially stronger" testimony from "witnesses [who] were for the most part the same," id. at 439-440, 90 S. Ct. 1189, 25 L. Ed. 2d 469, Ashe was convicted and sentenced to a 35-year prison term. We concluded that the subsequent prosecution was constitutionally prohibited. Because the only contested issue at the first trial was whether Ashe was one of the robbers, we held that the jury's verdict of acquittal collaterally estopped the State from trying him for robbing a different player during the same criminal episode. Id. at 446, 90 S. Ct. 1189, 25 L. Ed. 2d 469. We explained that "when an issue of ultimate fact has once been determined by a valid and final judgment" of acquittal, it "cannot again be litigated" in a second trial for a separate offense. Id. at 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469. To decipher what a jury has necessarily decided, we held that courts should "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Id. at 444, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (internal quotation marks omitted). We explained that the inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings."

[Id. at 2366-67 (emphasis added).]

In Yeager, the defendant was charged with stock fraud and insider trading in connection with the Enron scandal. He was acquitted on the fraud counts, but the jury deadlocked on the insider trading counts. In holding that the defendant was entitled to invoke collateral estoppel, the Court stated: "[I]f the possession of insider information was a critical issue of ultimate fact in all of the charges against petitioner, a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element." Id. at 2368-69.

In his oral opinion placed on the record on October 19, 2009, the trial judge in this case did not engage in the detailed analysis required by Yeager. In particular, he did not determine whether, in the context of the first trial, the jury's acquittals on counts three through sixteen must have been premised on the jury's ultimate findings of fact that defendant did not engage in the sexual acts alleged in those counts. On this appeal, we could not answer the key question ourselves without reviewing the transcript of the first trial to see how the case was presented to the jury and what the real issues were. For example, we do not know whether the critical issue was whether defendant had any sexual relationship with the minor, as opposed to whether he had a consensual or non-consensual relationship. We are in no position to make the Yeager analysis, because the State has not provided us with the trial transcripts.

In Yeager, the Court declined to engage in the first instance in the kind of intense record review that its decision required, and it remanded the case for that review and analysis to occur. Id. at 2370. We reach the same result here. Because the trial judge's oral opinion does not contain the kind of detailed analysis called for by Yeager, we remand for the court to engage in that analysis. See also State v. DeLuca, 108 N.J. 98, 109, cert. denied, 484 U.S. 944 (1987).

In remanding this case, we make the following additional observations, which we believe are important to put the remand in context. We agree with the State that the Double Jeopardy Clause does not generally bar the State from retrying a defendant after a mistrial is declared due to a hung jury, or after a conviction is reversed on appeal due to trial errors, but that is not the issue here. See Richardson v. United States, 468 U.S. 317, 324, 104 S. Ct. 3081, 3085-86, 82 L. Ed. 2d 242 (1984); State v. Koedatich, 118 N.J. 513, 519 (1990). We further understand the State's argument that under U.S. v. Powell, 469 U.S. 57, 64-67, 105 S. Ct. 471, 476-77, 83 L. Ed. 2d 461 (1984), inconsistent verdicts of acquittal on some counts and guilty on others will not support a finding of either collateral estoppel or double jeopardy. See also State v. Banko, 182 N.J. 44, 53 (2004); cf. State v. Grey, 147 N.J. 4, 9-11 (1996). However, based on our reading of Yeager, it is questionable whether this should be treated as an "inconsistent verdict" case, because the inconsistent guilty verdict was reversed on appeal.

In Yeager, the Court characterized the issue before it as follows:

The question presented in this case is whether an apparent inconsistency between a jury's verdict of acquittal on some counts and its failure to return a verdict on other counts affects the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment. We hold that it does not.

[Yeager, supra, 129 S. Ct. at 2362-63.]

The Court held that it was improper to speculate about the jury's thought processes underlying its inability to return a verdict on certain counts. Therefore, in conducting a Double Jeopardy analysis, "the jury's inability to reach a verdict on the insider trading counts was a nonevent and the acquittals on the fraud counts are entitled to the same effect as Ashe's acquittal." Id. at 2367. Hence, the defendant was entitled to assert the bar of collateral estoppel to preclude the government from retrying him on the "hung" counts.

In his dissent, Justice Scalia observed that "today the Court bars retrial on hung counts after what was not, under this Court's theory of 'continuing jeopardy,' a prior proceeding but simply an earlier stage of the same proceeding." Id. at 2372 (Scalia, J., dissenting) (citation omitted). The majority did not disagree with Justice Scalia's characterization, reasoning instead that the Powell and Richardson line of cases, concerning inconsistent verdicts and retrials after mistrials, were not controlling on the issue of Fifth Amendment preclusion by collateral estoppel:

While the case before us involves a mistrial on the insider trading counts, the question presented cannot be resolved by asking whether the Government should be given one complete opportunity to convict petitioner on those charges. Rather, the case turns on the second interest at the core of the Clause. We must determine whether the interest in preserving the finality of the jury's judgment on the fraud counts, including the jury's finding that petitioner did not possess insider information, bars a retrial on the insider trading counts. This requires us to look beyond the Clause's prohibition on being put in jeopardy "twice"; the jury's acquittals unquestionably terminated petitioner's jeopardy with respect to the issues finally decided in those counts. The proper question, under the Clause's text, is whether it is appropriate to treat the insider trading charges as the "same offence" as the fraud charges. Our opinion in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), provides the basis for our answer.

[Id. at 2366.]

We are inclined to conclude that the Yeager majority's analysis applies to counts on which we have reversed a conviction due to jury taint that occurred through no fault of defendant. Here, in particular, where we reversed defendant's convictions on the first two counts based on a sheriff's officer's improper comments, which had the "clear capacity" to prevent a hung jury, it seems to follow from Yeager that those convictions are not entitled to the respect accorded an otherwise unassailable conviction that is part of an inconsistent verdict. See Powell, supra, 469 U.S. at 64-67, 105 S. Ct. at 476-77; Banko, supra, 182 N.J. at 53.

However, we decline to decide this novel issue in the absence of a proper record. As we have previously recognized, in making the collateral estoppel analysis "a court must be practical, realistic and rational." Kelly, supra, 406 N.J. Super. at 345. That approach requires a complete record. In this case, the State did not even provide us with the trial transcripts, and the trial judge did not make the detailed findings based on that record which would allow us to determine whether the Yeager standard was satisfied.

Accordingly, we remand this matter to the trial court for reconsideration and the detailed, record-based findings Yeager requires. In conducting the Yeager collateral estoppel analysis, the court should consider whether the acquitted counts involved different elements than the child endangerment and official misconduct counts. In that context, the court should consider whether in light of the way the first trial was presented to the jury, it could have acquitted defendant because the State did not prove elements of those offenses other than the commission of the sexual acts alleged, or whether based on the way the case was actually presented the jury must necessarily have decided that the defendant simply did not engage in the sexual acts charged. See State v. DeLuca, supra, 108 N.J. at 110 (In applying the "same evidence" test to determine whether an acquittal on one charge precludes a trial on a second charge, the double jeopardy analysis requires the court to focus on how the prosecution actually tried the first case.).

If either party seeks appellate review of the trial court's decision on remand, that party must file with this court the transcripts from the first trial. We do not retain jurisdiction.

Remanded.

 

The twenty-seven count indictment charged defendant with offenses against three students. The following counts concerned the victim in this appeal: official misconduct by committing sexual conduct, N.J.S.A. 2C:30-2 (count 1); endangering the welfare of a child, N.J.S.A. 2C:24-4a (count 2); sexual assault (fellatio), N.J.S.A. 2C:14-2c(1) (count 3); sexual assault (fellatio), N.J.S.A. 2C:14-2c(3) (count 4); criminal sexual contact (touching victim's penis), N.J.S.A. 2C:14-3b (count 5); criminal sexual contact (touching victim's inner thigh), N.J.S.A. 2C:14-3b (count six); criminal sexual contact (touching victim's chest), N.J.S.A. 2C:14-3b (count 7); criminal sexual contact (touching victim's buttocks), N.J.S.A. 2C:14-3b (count 8); criminal sexual contact (touching actor's own penis), N.J.S.A. 2C:14-3b (count 9); criminal sexual contact (touching victim's penis), N.J.S.A. 2C:14-3b (count 10); criminal sexual contact (touching victim's inner thigh), N.J.S.A. 2C:14-3b (count 11); criminal sexual contact (touching victim's chest), N.J.S.A. 2C:14-3b (count 12); criminal sexual contact (touching victim's buttocks), N.J.S.A. 2C:14-3b (count 13); criminal sexual contact (touching actor's own penis), N.J.S.A. 2C:14-3b (count 14); promoting prostitution of the victim, N.J.S.A. 2C:34-1b(3) (count 15); engaging in prostitution with the victim, N.J.S.A. 2C:34-1b(7) (count 16). Many of the counts recite the same sexual acts, but counts 3, 10, 11, 12, 13 and 14 were based on allegations that defendant used force or coercion. Counts 4, 5, 6, 7, 8, and 9 were based on the victim's age and defendant's supervisory or disciplinary power over the victim.

In other words, the misconduct may have deprived defendant of a hung jury on the first two counts.

We also reversed defendant's conviction on two other counts concerning a different student. Those counts are not at issue in this appeal.

This is not a case such as State v. Kelly, 406 N.J. Super. 332 (App. Div.), certif. granted, 200 N.J. 371 (2009), where defendant obtained the benefit of perjured testimony which probably resulted in his acquittal on gun possession charges, but also required that his murder conviction be overturned. Id. at 346-47. In Kelly, the Court granted certification to address the issue of "whether, under the Double Jeopardy Clause of the United States and New Jersey Constitutions, defendant's second prosecution [for murder] should have been barred by application of the doctrine of issue preclusion." 200 N.J. at 371.

For example, in several counts, defendant was charged with committing sexual acts by using coercion or physical force. If the State did not prove coercion or physical force, the jury theoretically could have acquitted defendant on those counts if it concluded that the sexual activity occurred but was consensual (albeit illegal). A consensual relationship, however, might have been enough to sustain convictions on child endangerment and official misconduct. But we do not know if the first jury was presented with the issue of whether the alleged sexual activity was consensual, as opposed to whether it occurred at all. In addition, the jury acquitted the defendant of multiple other permutations of the sexual misconduct charges, including committing the misconduct while in a position of supervisory or disciplinary authority over the student. In offering these comments, we intimate no view as to how the trial court should decide the merits of the motion on remand.

(continued)

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A-1669-09T4

RECORD IMPOUNDED

April 28, 2010