STATE OF NEW JERSEY v. DEWIGHT GREER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DEWIGHT GREER,

Defendant-Respondent.

______________________________

April 7, 2016

Argued February 22, 2016 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-07-1900.

Courtney M. Cittadini, Assistant Prosecutor, argued the cause for appellant (James P. McClain, Atlantic County Prosecutor, attorney; Ms. Cittadini, of counsel and on the brief).

Jill R. Cohen argued the cause for respondent.

PER CURIAM

The question presented on this unusual appeal, which we consider on leave granted, is whether the trial court retained jurisdiction to sua sponte enter a judgment of acquittal on a count of an indictment three months after its declaration of a mistrial or whether double jeopardy principles bar the State's challenge to that order. Although we disapprove of the procedure employed here, we conclude double jeopardy principles apply and dismiss the State's appeal.

Because the facts are irrelevant to our disposition of this matter, we dispense with them. We summarize only the critical aspects of the procedural history.

Defendant was charged in Indictment No. 13-07-1900 with human trafficking, N.J.S.A. 2C:13-8a(1); and three counts of promoting prostitution, N.J.S.A. 2C:34-1b(6); and in Indictment No. 14-05-1059 with strict liability drug induced death, N.J.S.A. 2C:35-9; two counts of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); two counts of distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); theft by deception, N.J.S.A. 2C:2-4; conspiracy to commit theft, N.J.S.A. 2C:5-2; and two counts of witness tampering, N.J.S.A. 2C:28-5a.

The court granted the State's motion to join the indictments, and the case went to trial in February 2015. After the State rested, defendant moved for judgment of acquittal on all counts pursuant to Rule 3:18-1. The court granted the motion as to all but one count of promoting prostitution and human trafficking on Indictment No. 13-07-1900 and conspiracy to commit theft on Indictment No. 14-05-1059. Following the prosecutor's summation, the court granted defendant's motion for a mistrial, apparently based on the prosecutor's perceived over-reliance on prior bad act evidence in urging defendant's conviction on the remaining counts.

Thereafter, the State charged defendant in a third indictment with two counts of witness tampering. At a hearing over three months later on the State's motion to join the new indictment to the surviving counts of the earlier two indictments and defendant's motion to dismiss the new indictment and sever the indictments previously joined, the court told the lawyers he "was going to take a bit of a left turn on you here."

With no more warning than that, and without allowing the State any opportunity to address the court's concerns, the judge dismissed the human trafficking count of Indictment No. 13-07-1900. Finding "a significant structural problem with the case as to human trafficking," the judge concluded he had erred in denying defendant's motion at trial for acquittal on that count, as "no reasonable fact finder could find guilt beyond a reasonable doubt . . . even giving the State the benefit of all reasonable inferences." The judge entered an order the same day, vacating his earlier denial of defendant's Rule 3:18-1 motion as to the human trafficking charge and entering a judgment of acquittal on that count.

The parties appeared again before the court a week later on defendant's motion for a reduction of bail based on his recent acquittal of the most serious charge against him. The State opposed the motion, advising it was seeking leave to appeal the procedural irregularity of the court having granted a motion for acquittal based on the insufficiency of the evidence months after having declared a mistrial. The judge reduced defendant's bail and entered yet another order on its own motion to reconsider the order granting the mistrial. This new order recites that

[I]n order to neutralize the State's concerns regarding the Court's authority to direct a judgment of acquittal after a mistrial is declared; and the Court having determined that the decision to mistry Count 9 [the human trafficking count] was improvident and incorrect because, in retrospect, the Court should have granted the defense motion for a judgment of acquittal on Count 9 for the reasons articulated on the record on June 18, 2015; and for good cause shown;

It is ordered on this 23rd day of June, 2015, as follows

The order granting the defense motion to mistry Count 9 of the within indictment [No. 13-07-1900] is hereby vacated retroactive to June 18, 2015 and effective as of the moment just prior to the order directing a judgment of acquittal on Count 9 on that same date.

The trial judge retired the following week. The judge assuming the case granted the State's motion for a stay pending appeal. We thereafter granted the State's motion for leave and now dismiss its appeal.

It is a fundamental tenet of the criminal law that an acquittal cannot "'be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.'" United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354, 51 L. Ed. 2d 642, 651 (1977) (quoting United States v. Ball, 163 U.S. 662, 671, 16 S. Ct. 1192, 1195 41 L. Ed. 300, 303 (1896)). Defendant relies on this principle in arguing that, while admittedly unusual, nothing precluded the judge from reconsidering a trial motion for acquittal after mistrial. And because the ruling was based on the insufficiency of the evidence, no review of such reconsideration is permitted. See State v. Ortiz, 202 N.J. Super. 233, 239 (App. Div.), certif. denied, 102 N.J. 300 (1985).

The State contends that defendant's argument overlooks the equally well-established principle that "[a] mistrial is not a judgment or order in favor of any of the parties. It lacks the finality of a judgment, and means that the trial itself was a nullity." State v. Hale, 127 N.J. Super. 407, 412 (App. Div. 1974). The State asserts, relying on our holding in Hale, that "[t]he declaration of mistrial rendered nugatory all of the proceedings during the first trial," id. at 413, thus allowing it to introduce new and different evidence in a second trial. It claims that once the court declared the mistrial, the prior proceedings "were stripped of any legal effect or consequence, and the parties were returned to their original positions," thereby precluding the court from considering, much less granting, "a motion for a directed verdict that was based upon evidence presented at the mistrial."

Although we agree, as a general proposition, that the declaration of a mistrial has the effect of "render[ing] nugatory all trial proceedings with the same result as if there had been no trial at all,"1 id. at 412 (quoting United States v. Mischlich, 310 F. Supp. 669, 672-73 (D.N.J. 1970), aff'd sub nom. United States v. Pappas, 445 F.2d 1194 (3d Cir. 1971), cert. denied, 404 U.S. 984, 92 S. Ct. 449, 30 L. Ed. 2d 368 (1971)), we think the State goes too far in asserting that the declaration of mistrial stripped the court of jurisdiction to act.

Rule 3:18-2, expressly provides

If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made, even if not earlier made pursuant to R. 3:18-1 or it may be renewed within 10 days after the jury is discharged or within such further time as the court fixes during the 10-day period. The court on such motion may set aside a verdict of guilty and order the entry of a judgment of acquittal and may so order if no verdict has been returned.

The Rule makes plain the trial court's continuing jurisdiction after a mistrial to consider a defendant's motion for acquittal based on the facts presented at that trial, made within ten days of the jury's discharge, even where the defendant failed to make a motion for acquittal before a mistrial was declared. So the State is obviously incorrect that the declaration of mistrial deprived the court of the ability thereafter to grant defendant an acquittal based upon evidence presented before the court declared the mistrial. The question thus presented is whether jurisdiction continued in the court three months after the jury's discharge to reconsider its denial of defendant's motion for acquittal on the human trafficking count.

Our research has not uncovered any New Jersey authority that addresses this question. Counsel at oral argument represented that they likewise had found no case on point. There appears little doubt that defendant could not have sought reconsideration of the trial court's ruling so long after the time limit imposed by Rule 3:18-2, as Rule 1:3-4(c) expressly prohibits enlargement of the time for making a motion under Rule 3:18-2. We do not, however, find that dispositive of the court's inherent jurisdiction to act sua sponte in this circumstance.2 The Third Circuit has similarly refused to construe the time limits under Fed. R. Crim. P. 29(c), the federal analog to Rule 3:18-2, as limiting a district court's inherent power to grant a judgment of acquittal after discharge of the jury. See United States v. Giampa, 758 F.2d 928, 936 n.1 (3d Cir. 1985).

Certainly, the trial judge had jurisdiction to preside over defendant's trial on these two indictments and to direct the acquittals ordered prior to his declaration of a mistrial. Further, because the trial terminated prior to the entry of judgment on the three counts remaining, the court retained jurisdiction over the indictments and defendant. Thus, were this a civil and not a criminal case, we would have no hesitation in concluding that "'the trial court has the inherent power to be exercised in its sound discretion, to review, revise, reconsider, and modify its interlocutory orders at any time prior to the entry of final judgment.'" Lombardi v. Masso, 207 N.J. 517, 534 (2011) (quoting with emphasis added Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 101 N.J. 196 (1988)).

Our Supreme Court has observed that a trial court's power over its own interlocutory orders is rooted in the common law and "derives from the fact that cases continue to develop after orders have been entered and that judges likewise continue to think about them." Id. at 534, 536. A trial judge who becomes convinced that a prior interlocutory ruling

is not consonant with the interests of justice, . . . is not required to sit idly by and permit injustice to prevail. In such an exceptional case, the judge is empowered to revisit the prior ruling and right the proverbial ship. That entitlement to change a prior ruling in the interests of justice is what distinguishes an interlocutory order from a final judgment.

[Id. at 537 (footnote omitted).]

We have elsewhere noted that there is no express authorization for motions for reconsideration in the rules governing practice in the criminal part. State v. Wilson, 442 N.J. Super. 224, 233 n.3 (App. Div. 2015), certif. granted on other grounds, 224 N.J. 119 (2016); State v. Fitzsimmons, 286 N.J. Super. 141, 147 (App. Div. 1995), certif. granted and remanded, 143 N.J. 482 (1996); but see R. 3:18-2 (permitting renewal of a previously denied motion for acquittal). This, of course, did not involve a motion for reconsideration but a judge's sua sponte determination to revisit a prior order. Nevertheless, we are mindful of the absence of any specific authorization for motions for reconsideration generally in the criminal practice rules and of the ways in which such motions are not so well suited to practice in the criminal courts.

Logically speaking, there must be an end to the time when a trial court can reconsider a decision to deny a defendant's motion for acquittal based on the evidence adduced at the mistrial, which might come before final judgment. It seems clear, for example, that the court could not do so after swearing a new jury on re-trial, see Hale, supra, 127 N.J. Super. at 413, or our grant of a motion for leave to appeal, see Rule 2:9-1(a). The State, however, has failed to identify any similar intervening act that would have deprived this trial judge of the power to have reconsidered his prior ruling in the interests of justice, and we are not convinced the mere passage of time would suffice to do so, at least in this instance.

That is not to say that we approve of the manner in which the trial court proceeded to reconsider its prior ruling. The parties were provided no notice of the court's intention to reconsider its prior order and no opportunity to file papers or make argument before the judge entered the first judgment of acquittal on the human trafficking count. Fairness dictated that they be provided both notice and an opportunity to be heard before the court acted. See Lombardi, supra, 207 N.J. at 537-38 (outlining the critical procedural steps a court must take in reconsidering a prior interlocutory ruling). The second order, which the court entered to avoid the State's procedural objections to the first order, we consider inappropriate.

We have no idea of whether the court was correct that defendant's motion for acquittal should have been granted in the first instance. We have not been provided with the trial transcripts to allow us to form our own opinion on the point. But even were we to conclude the judge was dead wrong, the result of this proceeding would not be different. The salient point is that the judge entered a judgment of acquittal on the human trafficking count having jurisdiction to do so. The State has not demonstrated otherwise.

As the Supreme Court has recently reminded, "the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is 'based upon an egregiously erroneous foundation.'" Evans v. Michigan, ___ U.S. ___, ___, 133 S. Ct. 1069, 1074, 185 L. Ed. 2d 124, 133 (2013) (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 672, 7 L. Ed. 2d 629, 631 (1962)). Because the trial court acquitted defendant of human trafficking based on its determination that the State's proof was insufficient to establish his guilt of the offense, that judgment is unreviewable in accordance with double jeopardy principles. See id. at ___, 133 S. Ct. at 1075-76, 185 L. Ed. 2d at 133; Ortiz, supra, 202 N.J. Super. at 239. Accordingly, the State's appeal must be dismissed.

Appeal dismissed.

1 There is no doubt, of course, that the proposition does not extend to judgments of acquittal on particular counts entered before the declaration of mistrial. See Ortiz, supra, 202 N.J. Super. at 241 (noting "defendants' 'absolute shield' from retrial attached immediately to each count upon which the trial judge entered the judgment of acquittal," notwithstanding the "happenstance that there were other charges which required a continuation of the trial").

2 Rule 3:18-2 itself suggests as much by providing that the court could fix, within the ten-day period for the filing or renewal of the motion, a time for hearing the motion beyond that period.