State v. Rodney J. Miles a/k/a Jamal D. Allen (077035) (Camden County and Statewide) , 229 N.J. 83 ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Rodney J. Miles (A-72-15) (077035)
Argued January 4, 2017 -- Decided May 16, 2017
Timpone, J., writing for a majority of the Court.
In this appeal, the Court clarifies the methodology to be used in analyzing whether two offenses are the “same
offense” for double jeopardy purposes. Since the 1980s, New Jersey courts have applied both the same-evidence test
and the same-elements test articulated in Blockburger v. United States, 284 U.S. 299 (1932), in double jeopardy
determinations. A finding that offenses met either test resulted in double jeopardy protection for the defendant.
In October 2010, the Camden County police arrested defendant for selling marijuana to an undercover
police officer. Defendant was charged in a warrant complaint with possession of marijuana with intent to distribute
and possession of a controlled dangerous substance (CDS) with intent to distribute on or within 1000 feet of a school
property. In a separate municipal summons, defendant was charged with the disorderly-persons offense of
possession of fifty grams or less of marijuana. Those charges arose from the same attempted sale.
A grand jury returned an indictment charging defendant with the offenses in the warrant complaint.
Defendant then appeared pro se in municipal court to resolve the disorderly-persons offense. At some point before
that video proceeding, the original municipal charge was amended to a different disorderly-persons offense—
loitering to possess marijuana. Defendant asked the municipal court judge, “why they got me going to Superior
Court for this, Your Honor?” The judge then responded that defendant was “not going to Superior Court for this,”
but rather for an unrelated child support issue. Defendant then pled guilty to loitering to possess marijuana.
Thereafter, defendant moved to dismiss the Superior Court indictment on double-jeopardy grounds, arguing
that prosecution on the possession charges was barred because he had already pled guilty to an offense that arose
from the same conduct. The Superior Court denied defendant’s motion to dismiss, reasoning that prosecution on the
indicted charges was not barred because it required proof of an additional element—proximity to a school.
Defendant pled guilty to possession of CDS with intent to distribute within 1000 feet of a school (the school-zone
charge), but preserved his right to appeal the denial of the motion to dismiss.
On appeal, the Appellate Division remanded for a finding on the circumstances surrounding the amendment
of the disorderly-persons offense. The panel noted that a plea to the original municipal charge, instead of the
amended one, could have led to a different result after applying the double-jeopardy analysis.
On remand, the Superior Court found no direct evidence as to the circumstances surrounding the
amendment, and the prosecutor represented that his office was not informed of defendant’s municipal court
proceedings. Despite defendant’s expressed confusion during the municipal court plea hearing, the Superior Court
concluded that the school-zone prosecution was not precluded by notions of fundamental fairness.
Defendant appealed again, arguing that double jeopardy barred prosecution on the school-zone charge. The
Appellate Division agreed, finding that, although the second prosecution was not barred under the same-elements
test, it was barred under the same-evidence test. 443 N.J. Super. 212, 220, 225-27 (App. Div. 2015).
The Court granted the State’s petition for certification. 225 N.J. 339 (2016).
HELD: New Jersey now joins the majority of jurisdictions in returning to the Blockburger same-elements test as the
sole test for determining what constitutes the “same offense” for purposes of double jeopardy. In the interest of justice,
the Court applied both the same-elements test and the now-replaced same-evidence test in this case; going forward, for
offenses committed after the issuance of this opinion, the same-elements test will serve as the singular framework for
determining whether two charges are the same offense for purposes of double-jeopardy analysis.
1
1. Here, the municipal court had jurisdiction to resolve defendant’s disorderly-persons charge pursuant to N.J.S.A.
2B:12-17, and failure to join does not automatically bar subsequent prosecution. For judicial efficiency and fairness to
defendants, the Court urges careful coordination between the municipal courts and county prosecutors. (pp. 8-10)
2. The Court has consistently interpreted the State Constitution’s double-jeopardy protection as coextensive with
the guarantee of the federal Constitution. A prime concern when reviewing a double-jeopardy claim is whether the
second prosecution is for the same offense involved in the first. (pp. 10-11)
3. The United States Supreme Court first announced its test for determining whether a second prosecution is for the
same offense in Blockburger, supra, 284 U.S. at 304: If each statute at issue requires proof of an element that the
other does not, they do not constitute the same offense and a second prosecution may proceed. This has come to be
known as the same-elements test. (pp. 11-12)
4. The Court read the language in Illinois v. Vitale, 447 U.S. 410, 421 (1980), as creating an alternative to
Blockburger’s same-elements test—the same-evidence test. The United States Supreme Court reached the same
conclusion in Grady v. Corbin, 495 U.S. 508, 510 (1990), but revised its position in United States v. Dixon, 509
U.S. 688, 704, 708-09 (1993), in which it deemed the same-evidence test unworkable and reinstated the Blockburger
same-elements test as the sole measure of whether two offenses constitute the same offense. (pp. 12-14)
5. Since Dixon, the majority of states have similarly ruled that the Blockburger same-elements test sets forth the
proper test for determining whether two charges are the same offense. Until this case, the Court has not had
occasion to reevaluate double-jeopardy jurisprudence in light of Dixon’s return to the same-elements test. As a
result, appellate panels have split over whether the same-evidence test still applies in New Jersey. (pp. 14-16)
6. The Court now adopts the same-elements test as the sole double-jeopardy analysis, thereby realigning New
Jersey law with federal law. The same-elements test is effortlessly applied at early stages of prosecution; it is
capable of producing uniform, predictable results; and it aids defendants by reducing multiple court appearances.
Rule 3:15-1(b) bars subsequent prosecutions for indictable offenses, and failure by the prosecution to properly join
indictable offenses bars a subsequent prosecution. State v. Williams, 172 N.J. 361, 368 (2002). The Court
recognizes a narrow circumstance where it is possible that neither the same-elements test nor the rule in Williams
would prevent a second prosecution; if those unlikely events unfolded, the second prosecution might well be barred
on joinder or fundamental fairness grounds. As a further safeguard, the Court invites the Supreme Court Committee
on Criminal Practice to review the joinder rule and consider adding non-indictable offenses to it. (pp. 16-21)
7. Because the decision establishes a new rule of law, the Court applies the new singular same-elements standard
prospectively to offenses committed after the date of this opinion. In fairness to defendant, the Court conducts
double-jeopardy analysis using both the same-elements test and the now-removed same-evidence test. Application
of the Blockburger same-elements test would lead to the conclusion that loitering to possess marijuana is not the
same offense as possession within a school zone. Each offense contains at least one element not required to prove
the other. Under the same-evidence test, however, successive prosecution for the school-zone offense is prohibited
because it is based on the same evidence that supported the plea and conviction on the loitering offense. (pp. 21-23)
8. For offenses committed after the issuance of this opinion, the same-elements test will serve as the singular
framework for determining whether two charges are the same offense for double-jeopardy analysis. (p. 23)
The judgment of the Appellate Division is AFFIRMED. Defendant’s conviction and sentence on the
school-zone offense are vacated.
JUSTICE ALBIN, DISSENTING, expresses the view that majority’s new rule cannot be squared with the
principles of fairness that previously animated New Jersey’s double-jeopardy jurisprudence. According to Justice
Albin, the majority’s reversion to the same-elements test will allow the State to pursue repeated prosecutions for the
same offense despite an earlier conviction or acquittal.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, and SOLOMON
join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which
JUSTICE LaVECCHIA joins.
2
SUPREME COURT OF NEW JERSEY
A-72 September Term 2015
077035
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RODNEY J. MILES (a/k/a JAMAL
D. ALLEN),
Defendant-Respondent.
Argued January 4, 2017 – Decided May 16, 2017
On appeal from and certification to the
Superior Court, Appellate Division, whose
opinion is reported at 443 N.J. Super. 212
(App. Div. 2015).
Joseph A. Glyn, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General of New Jersey,
attorney).
Brian P. Keenan, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
JUSTICE TIMPONE delivered the opinion of the Court.
In this appeal, we clarify the methodology to be used in
analyzing whether two offenses are the “same offense” for double
jeopardy purposes. Since the 1980s, we have applied both the
same-evidence test and the same-elements test in double jeopardy
determinations. A finding that offenses met either test
resulted in double jeopardy protection for the defendant. In
1
contrast, the federal courts and most state jurisdictions apply
only the same-elements test, as articulated by the United States
Supreme Court in Blockburger v. United States, 284 U.S. 299, 52
S. Ct. 180, 76 L. Ed. 306 (1932).
We now join the majority of jurisdictions in returning to
the Blockburger same-elements test as the sole test for
determining what constitutes the “same offense” for purposes of
double jeopardy. Here, because we are changing course, we
examine the facts through the additional lens of the now-
replaced same-evidence test as a matter of fairness to defendant
Rodney Miles.
I.
In October 2010, the Camden County police arrested
defendant for selling marijuana to an undercover police officer
on the corner of 27th and Washington Streets in Camden, New
Jersey. Defendant was charged in a warrant complaint with
possession of marijuana with intent to distribute, in violation
of N.J.S.A. 2C:35-5(b)(12), and possession of a controlled
dangerous substance (CDS) with intent to distribute on or within
1000 feet of a school property, in violation of N.J.S.A. 2C:35-
7. In a separate municipal summons, defendant was charged with
the disorderly-persons offense of possession of fifty grams or
less of marijuana, in violation of N.J.S.A. 2C:35-10(a)(4).
Those charges arose from the same attempted sale.
2
A Camden County grand jury returned an indictment charging
defendant with the offenses in the warrant complaint. Defendant
then appeared pro se in municipal court to resolve the
disorderly-persons offense charged in the municipal summons.
Defendant appeared via video conference from the county jail,
where he was being held on an unrelated child-support charge.
At some point before that video proceeding, the original
municipal charge was amended to a different disorderly-persons
offense -- loitering to possess marijuana, in violation of
N.J.S.A. 2C:33-2.1(b)(1). Confusion ensued as evidenced by the
following colloquy between the judge and defendant at the
municipal court proceeding:
Q. All right. You’re charged on October 15,
2010, with loitering to possess marijuana at
27th and Washington Street in Camden.
A. Yes, sir.
Q. Do you wish to have an attorney in this
matter?
A. No, sir. What -- they got me -- can I ask
you something? This is a municipal charge,
right, Your Honor?
Q. Yes.
A. Well, why they got me going to Superior
Court for this, Your Honor? That’s why I said
I don’t understand.
Q. No, no, you’re not going to Superior Court
for this. You’re going to Superior Court for
child support, sir.
3
A. No, no, no, they had me --
Q. Sir.
A. Okay.
Q. Trust me. I am not going to argue with
you.
A. No, I’m not arguing.
Q. I’m not going to argue with you.
A. Oh, okay.
Q. You’re charged with loitering to possess
marijuana in Camden, October 15, 2010. It’ll
be a $500 fine plus mandatory costs. Do you
understand the penalties?
A. Yes, sir.
Defendant then pled guilty to the charge of loitering to possess
marijuana.
Thereafter, defendant moved to dismiss the Superior Court
indictment on double-jeopardy grounds, arguing that prosecution
on the possession charges was barred because he had already pled
guilty to an offense that arose from the same conduct. Despite
some puzzlement as to why the municipal court had amended the
disorderly-persons offense, the Superior Court denied
defendant’s motion to dismiss. The Superior Court reasoned that
prosecution on the indicted charges was not barred because it
required proof of an additional element -- proximity to a
school. Defendant pled guilty to possession of CDS with intent
to distribute within 1000 feet of a school (the school-zone
4
charge), but preserved his right to appeal the denial of the
motion to dismiss.
On appeal, the Appellate Division remanded for a finding on
the circumstances surrounding the amendment on the disorderly-
persons offense, specifically focusing on whether the prosecutor
was involved in amending the charge. The panel noted that a
plea to the original municipal charge, instead of the amended
one, could have led to a different result after applying the
double-jeopardy analysis.
On remand, the Superior Court found no direct evidence as
to the circumstances surrounding the amendment, but learned that
it was typical in municipal court to amend charges where
appropriate to help defendants avoid more serious penalties and
fines. During the remand hearing, the prosecutor represented
that his office was not informed of defendant’s municipal court
proceedings. The court, having determined that the prosecutor
played no role in the amendment of the municipal court charge,
found nothing atypical in the amendment process.
Despite defendant’s expressed confusion during the
municipal court plea hearing, the Superior Court found him to be
“fully cognizant” of the pending Superior Court prosecution
because he previously appeared in that court on four separate
occasions for pretrial conferences on the indicted charges. The
5
court concluded that the school-zone prosecution was not
precluded by notions of fundamental fairness.
Defendant appealed again, arguing that because the remand
hearing revealed no definitive information on the circumstances
of the amendment, the municipal court had jurisdiction over the
disorderly-persons offense and, as a result, double jeopardy
barred prosecution on the school-zone charge. The Appellate
Division agreed. State v. Miles, 443 N.J. Super. 212, 220, 227
(App. Div. 2015). The panel recognized, however, that the
Appellate Division was divided as to how to determine whether
two offenses are the same offense for double-jeopardy purposes.
Id. at 226-27. It explained that some panels have adhered to
current New Jersey law, under which subsequent prosecutions are
barred under either of two tests -- the same-elements test or
the same-evidence test -- and other panels have adopted the
United States Supreme Court’s exclusive use of the same-elements
test. Ibid. Having analyzed the facts under both tests, the
Appellate Division found that, although the second prosecution
was not barred under the same-elements test, it was barred under
the same-evidence test. Id. at 225-27.
The State filed a petition for certification, which we
granted. 225 N.J. 339 (2016).
II.
6
The State’s arguments are threefold: (1) the municipal
court lacked jurisdiction to unilaterally adjudicate defendant’s
disorderly-persons offense after the grand jury returned the
indictment on the other charges; (2) the municipal court’s
action was beyond its jurisdiction and is thus a legal nullity
which may not serve as the basis for defendant’s double jeopardy
claim; and (3) in the alternative, if the municipal court is
found to have had jurisdiction, the State urges this Court to
eliminate the same-evidence test. Under the same-elements test
then, the State advocates that the school-zone prosecution is
not barred by double jeopardy because both statutes at issue
require proof of an element that the other does not.
Defendant, in turn, contends that: (1) the municipal court
had statutory jurisdiction over the disorderly-persons offense,
thereby validating his claim that the school-zone prosecution
constituted double jeopardy; and (2) even under a flexible
application of the same-elements test, it is clear that the
loitering offense does not require any more proof than the
school-zone offense.
III.
Because the issue presented is purely a question of law, we
review this case de novo. Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995). When an appellate court
reviews a trial court’s analysis of a legal issue, it does not
7
owe any special deference to the trial court’s legal
interpretation. Ibid. “When a question of law is at stake, the
appellate court must apply the law as it understands it.” State
v. Mann, 203 N.J. 328, 337 (2010).
IV.
The threshold issue in this case is whether the municipal
court had jurisdiction to resolve the disorderly-persons
offense. Without jurisdiction, its adjudication of the
disorderly-persons offense is a “legal nullity” and may not
serve as the basis for defendant’s double-jeopardy claim. See
State v. Le Jambre, 42 N.J. 315, 319 (1964). If it is a legal
nullity, the State’s prosecution of the school-zone charge would
automatically be permitted, and there would be no need to reach
the double-jeopardy issue. If the municipal court did have
jurisdiction over the disorderly-persons offense, however,
prosecution on the school-zone offense would be permitted only
if it would not place defendant in double jeopardy.
Municipal courts have limited jurisdiction over criminal
cases; they may only conduct proceedings in a criminal case
before indictment. N.J.S.A. 2B:12-19(a). Once an indictment is
returned, “[a] municipal court shall not discharge a person
charged with an indictable offense without first giving the
county prosecutor notice and an opportunity to be heard.”
N.J.S.A. 2B:12-19(b).
8
On the other hand, municipal courts have unlimited
jurisdiction over disorderly-persons offenses, N.J.S.A. 2B:12-
17(c), which “are not crimes within the meaning of the
Constitution of this State,” N.J.S.A. 2C:1-4(b). Rule 7.1
delineates the scope of municipal court jurisdiction. That rule
also provides that disorderly-persons offenses are within the
statutory jurisdiction of municipal courts.
Rule 3:15-3(a)(1), a companion rule to Rule 7.1, directs
municipal courts to “join any pending non-indictable complaint
for trial with a criminal offense based on the same conduct or
arising from the same episode.” Subsection (c) of that rule,
however, explicitly provides that failure to join does not bar a
subsequent prosecution on an indictable offense, unless that
prosecution is barred by constitutional protections, such as
double jeopardy. R. 3:15-3(c). Nothing in the rule dictates
that failure to join when joinder is appropriate strips a
municipal court of its statutorily granted authority over
disorderly-persons offenses.
Here, defendant was charged in municipal court with a
disorderly-persons offense, not with a criminal offense.
N.J.S.A. 2B:12-19’s requirements therefore do not apply in the
present case. The municipal court had jurisdiction to resolve
defendant’s disorderly-persons charge pursuant to N.J.S.A.
2B:12-17. Because Rule 3:15-3(c) limits the consequences for a
9
municipal court’s failure to join non-indictable offenses,
moreover, failure to join does not automatically bar subsequent
prosecution on the indictable offense so long as double-jeopardy
concerns are allayed.
For judicial efficiency and fairness to defendants, we urge
careful coordination between the municipal courts and county
prosecutors. There will always be outlier situations when
unintentional events get the better of the system. Here,
confusion bred more confusion, causing a failure to join the
municipal charge with the indictable offenses. Nevertheless, we
have said before that a “breakdown in communications between
state and municipal officials forms no justification for
depriving an accused person of his right to plead double
jeopardy.” State v. Dively, 92 N.J. 573, 589 (1983) (quoting
Robinson v. Neil, 366 F. Supp. 924, 929 (E.D. Tenn. 1973)).
Having determined that the municipal court had
jurisdiction, we next review whether the subsequent prosecution
on the school-zone charge placed defendant in double jeopardy.
V.
A.
The Double Jeopardy Clause of the Fifth Amendment provides
that no person shall “be subject for the same offense to be
twice put in jeopardy of life or limb.” U.S. Const. amend. V.
The New Jersey Constitution contains a similar provision: “No
10
person shall, after acquittal, be tried for the same offense.”
N.J. Const. art. I, ¶ 11. This Court has consistently
interpreted the State Constitution’s double-jeopardy protection
as coextensive with the guarantee of the federal Constitution.
State v. Schubert, 212 N.J. 295, 304 (2012); Dively, supra, 92
N.J. at 578; State v. Barnes, 84 N.J. 362, 370 (1980).
The Double Jeopardy Clause contains three protections for
defendants. It protects against (1) “a second prosecution for
the same offense after acquittal,” (2)“a second prosecution for
the same offense after conviction,” and (3) “multiple
punishments for the same offense.” North Carolina v. Pearce,
395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-
65 (1969). Common to all three protections is the concept of
“same offense.” Accordingly, a prime concern when reviewing a
double-jeopardy claim is “whether the second prosecution is for
the same offense involved in the first.” State v. Yoskowitz,
116 N.J. 679, 689 (1989) (quoting State v. De Luca, 108 N.J. 98,
102, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d
358 (1987)).
The United States Supreme Court first announced its test
for determining whether a second prosecution is for the same
offense in Blockburger, supra, 284 U.S. at 304, 52 S. Ct. at
182, 76 L. Ed. at 309. The Court stated that “where the same
act or transaction constitutes a violation of two distinct
11
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.”
Ibid. In other words, if each statute at issue requires proof
of an element that the other does not, they do not constitute
the same offense and a second prosecution may proceed. Ibid.
This test has come to be known as the same-elements test.
The Blockburger same-elements test was the exclusive test
for same-offense determinations until the United States Supreme
Court decided Illinois v. Vitale, 447 U.S. 410, 421, 100 S. Ct.
2260, 2267, 65 L. Ed. 2d 228, 238 (1980). There, the United
States Supreme Court indicated that facts could possibly require
more than a mechanical analysis of the elements of the two
statutes. Ibid. The United States Supreme Court contemplated
that a second prosecution could be barred if it relied on the
same evidence used to prove an earlier charge. Ibid. This
language “created controversy among state and federal courts
over whether the traditional Blockburger test ha[d] been
expanded.” Yoskowitz, supra, 116 N.J. at 690.
This Court read the language in Vitale as creating an
alternative to Blockburger’s same-elements test -- the same-
evidence test. See De Luca, supra, 108 N.J. at 107; Dively,
supra, 92 N.J. at 581-83. The United States Supreme Court
reached the same conclusion a few years later and officially
12
adopted the suggestion it set forth in Vitale. Grady v. Corbin,
495 U.S. 508, 510, 110 S. Ct. 2084, 2087, 109 L. Ed. 2d 548, 557
(1990).
Soon thereafter, the United States Supreme Court
reevaluated and revised its position, holding that the same-
evidence test was “wholly inconsistent with earlier Supreme
Court precedent and with the clear common-law understanding of
double jeopardy.” United States v. Dixon, 509 U.S. 688, 704,
113 S. Ct. 2849, 2860, 125 L. Ed. 2d 556, 573 (1993). Deeming
the same-evidence test unworkable, the Court reinstated the
Blockburger same-elements test as the sole measure of whether
two offenses constitute the same offense for double jeopardy
purposes. Id. at 708-09, 113 S. Ct. at 2864, 125 L. Ed. 2d at
577. The Court specifically rejected its dicta in Vitale, which
suggested a same-evidence test, stating “[n]o Justice, the
Vitale dissenters included, has ever construed this passage as
answering, rather than simply raising, the question on which we
later granted certiorari in Grady.” Id. at 707, 113 S. Ct. at
2862, 125 L. Ed. 2d at 575.
It took a mere three years for the United States Supreme
Court to steer away from the same-evidence test; it quickly
found that the test would be unworkable without crafting a
number of exceptions to supplement it. See United States v.
Felix, 503 U.S. 378, 389-91, 112 S. Ct. 1377, 1384-85, 118 Lans. Ch.
13
Ed. 2d 25, 36-37 (1992) (creating exception for conspiracy under
which prior prosecution for substantive offense would not
preclude prosecution for conspiracy to commit that offense).
Fearing the necessity of more exceptions further denuding the
same-evidence test, the Dixon Court eliminated it altogether in
favor of the same-elements test. Dixon, supra, 509 U.S. at 710,
113 S. Ct. at 2863, 125 L. Ed. 2d at 577.
Since Dixon, the majority of states have similarly ruled
that the Blockburger same-elements test sets forth the proper
test for determining whether two charges are the same offense.
See, e.g., State v. Leighton, 645 So. 2d 354, 355 (Ala. Crim.
App. 1994); State v. Sanders, 68 P.3d 434, 448 (Ariz. Ct. App.);
Hughes v. State, 66 S.W.3d 645, 652 (Ark. 2002); People v.
Allen, 868 P.2d 379, 380 (Colo. 1994); State v. Alvarez, 778
A.2d 938, 945-46 (Conn. 2001), cert. denied, 534 U.S. 1138, 122
S. Ct. 1086, 151 L. Ed. 2d 985 (2002); Forrest v. State, 721
A.2d 1271, 1278 (Del. 1999); Tyree v. United States, 629 A.2d
20, 21-22 (D.C. 1993); Dodd v. State, 522 S.E.2d 538, 539-40
(Ga. Ct. App. 1999); Kelso v. State, 961 So. 2d 277, 281-82
(Fla. 2007); People v. Sienkiewicz, 802 N.E.2d 767, 770-71 (Ill.
2003); State v. Sharkey, 574 N.W.2d 6, 8 (Iowa 1997); State v.
Schoonover, 133 P.3d 48, 62 (Kan. 2006); Commonwealth v. Burge,
947 S.W.2d 805, 811 (Ky. 1996); In re Michael W., 768 A.2d 684,
690 (Md. 2001); People v. Ream, 750 N.W.2d 536, 544 (Mich.
14
2008); Powell v. State, 806 So. 2d 1069, 1074 (Miss. 2001);
People v. Latham, 631 N.E.2d 83, 85 (N.Y. 1994); State v.
Winkler, 663 N.W.2d 102, 108 (Neb. 2003); State v. Rodriguez,
116 P.3d 92, 101 (N.M. 2005); State v. Zima, 806 N.E.2d 542, 548
(Ohio 2004); Commonwealth v. Caufman, 662 A.2d 1050, 1052 (Pa.
1995); State v. Easler, 489 S.E.2d 617, 623 (S.C. 1997); Flores
v. Texas, 906 S.W.2d 133 (Tex. 1995); Coleman v. Commonwealth,
539 S.E.2d 732, 733-35 (Va. 2001); State v. Gocken, 896 P.2d
1267, 1270-73 (Wash. 1995); State v. Kurzawa, 509 N.W.2d 712,
720 (Wis.), cert. denied, 512 U.S. 1222, 114 S. Ct. 2712, 129 L.
Ed. 2d 839 (1994); Sweets v. State, 307 P.3d 860, 875 (Wyo.
2013).
Until this case, we have not had occasion to reevaluate our
double-jeopardy jurisprudence in light of Dixon’s return to the
same-elements test. As a result, appellate panels have split
over whether the same-evidence test still applies in New Jersey.
Compare State v. Colon, 374 N.J. Super. 199, 216 (App. Div.
2005) (declining to find, in absence of instruction from this
Court, that same-evidence test was no longer applicable); State
v. Capak, 271 N.J. Super. 397, 402-04 (App. Div.) (recognizing
Dixon’s holding, but deciding to apply same-evidence test until
this Court holds otherwise), certif. denied, 137 N.J. 164
(1994), with State v. Kelly, 406 N.J. Super. 332, 350 (App. Div.
2009) (rejecting defendant’s same-evidence arguments based on
15
Grady, which was overruled by Dixon), aff’d on other grounds,
201 N.J. 471 (2010); State v. Ellis, 280 N.J. Super. 533, 550
(App. Div. 1995) (refusing to apply same-evidence test overruled
by Dixon).
B.
We resolve the question of which test applies in our courts
by adopting the same-elements test as the sole double-jeopardy
analysis, thereby realigning New Jersey law with federal law.
We no longer recognize the same-evidence test as a measure of
whether two offenses constitute the same offense.
In reaching our conclusion, we are guided by the conundrums
created by the same-evidence test as they played out before the
United States Supreme Court. Rather than grafting exception
upon exception onto a test that would eventually fall under its
own weight, we embrace the same-elements test in its stead. The
same-elements test analyzes the elements of the competing
statutes to determine if each contains an element the other does
not. If each statute contains at least one unique element, the
subsequent prosecution may proceed.
The benefits of the same-elements test are noteworthy: the
test is effortlessly applied at early stages of prosecution; it
is capable of producing uniform, predictable results; and it
aids defendants by reducing multiple court appearances. By
contrast, under the same-evidence test, a court cannot determine
16
whether two charges constitute the same offense until later in
the process, after the State has proffered the evidence used to
support each claim. “[S]urely such a procedure is inconsistent
with the Double Jeopardy Clause, which was specifically designed
to protect the citizen from multiple trials.” Vitale, supra,
447 U.S. at 426, 100 S. Ct. at 2270, 65 L. Ed. 2d at 242
(Stevens, J., dissenting).
Further, adoption of this test corrects our reliance on the
now-repudiated dicta in Vitale in support of our addition of the
same-evidence test to our double-jeopardy framework. See
Dively, supra, 92 N.J. at 581.
Finally, protections abound for defendants, enshrined in
our Constitution, court rules, and statutes. See, e.g.,
N.J.S.A. 2C 1-8 (limiting prosecutions, trials, and convictions
when a defendant’s conduct constitutes more than one offense);
N.J.S.A. 2C:1-10(a)(1) (barring subsequent prosecution for a
violation of a different statutory provision, where the former
prosecution resulted in an acquittal and the subsequent
prosecution is for an offense for which defendant could have
been convicted on the first prosecution). For example, Court
Rule 3:15-1(b) states that,
[e]xcept as provided by R. 3:15-2(b), a
defendant shall not be subject to separate
trials for multiple criminal offenses based on
the same conduct or arising from the same
episode, if such offenses are known to the
17
appropriate prosecuting officer at the time of
the commencement of the first trial and are
within the jurisdiction and venue of a single
court.
This Court has long held that “[i]f the offenses are not joined
[under that rule], the omitted offense may not be further
prosecuted.” State v. Williams, 172 N.J. 361, 368 (2002)
(citing State v. Gregory, 66 N.J. 510, 522-23 (1975)). That
rule bars subsequent prosecutions for indictable offenses.
Nothing in this opinion changes that joinder requirement.
Rule 3:15-1(b) is titled “Trial of Indictments or
Accusations Together.” It commands that every crime -- an
offense defined by the criminal code or by any other statute of
this State for which a sentence of imprisonment in excess of six
months is authorized, N.J.S.A. 2C:1-4 -- known to the prosecutor
at the time of the commencement of the first trial must be
joined. As noted above, this Court has underscored that failure
by the prosecution to properly join indictable offenses bars a
subsequent prosecution. Williams, supra, 172 N.J. at 368. In
contrast, Rule 3:15-3 is titled “Trial of Criminal Offenses and
Lesser, Related Infractions.” Those two rules have different
titles and address different subject matter, and there is no
indication from the text of the rules that they can, or must, be
read together.
18
We recognize a narrow circumstance where it is possible
that neither the same-elements test nor the rule in Williams
would prevent a second prosecution: where a defendant is
acquitted in Superior Court and the prosecution then files
disorderly persons charges in municipal court relating to
essentially the same conduct. Because Williams only bars a
subsequent prosecution on another indictable offense and
disorderly persons offenses are not indictable, the second
prosecution might not be barred. As the State noted at oral
argument, these situations are admittedly rare, because the
State has little incentive to pursue a disorderly persons
offense after acquittal on an indictable offense predicated on
the same facts. The dissent nonetheless conjures up one
hypothetical after another, which simply do not reflect reality.
If those unlikely events unfolded, however, the second
prosecution might well be barred on joinder or fundamental
fairness grounds. See State v. Saavedra, 222 N.J. 39, 67-68
(2015). As a further safeguard, we invite the Supreme Court
Committee on Criminal Practice to review the joinder rule and
consider adding non-indictable offenses to it.
What the dissent mistakes for efficiency is actually
certainty. A defendant’s interest in avoiding a second
prosecution should not be in jeopardy solely based on the
ability of the defense or State to characterize evidence as
19
necessary for a conviction. The same-evidence test’s reliance
on a case-by-case approach creates the potential for wildly
different results in cases with similar facts. While efficiency
is certainly a by-product of today’s decision, the same-elements
test provides equal protection to defendants who are similarly
situated by combatting uncertainty in results.
We acknowledge that no double-jeopardy test will cover the
entire spectrum of possible situations to come before this
Court. The same-elements test is not a cure-all. It becomes
part of the fabric of our double-jeopardy protections, joined
with the Due Process Clause and Sixth Amendment Jury Trial
clause, creating a fulsome array of safeguards for criminal
defendants. See Akhil Reed Amar, Double Jeopardy Law Made
Simple, 106 Yale L.J. 1807, 1809 (1997) (“[T]he [United States
Supreme] Court has tied itself into knots because it has failed
to carefully disentangle the Double Jeopardy, Due Process, and
Jury Trial Clauses. As a result, some defendants today are
getting windfalls -- needless and dangerous ‘get out of jail
free’ cards -- while other defendants are getting less than they
constitutionally deserve.”).
Given those factors, we see no reason to deviate from the
well-established tradition of keeping our double-jeopardy law
coextensive with federal law. Here, we are faced with the
difficult task of choosing among competing precedents: our line
20
of cases holding that our double jeopardy case law is
coextensive with the federal law or our cases supporting the
same-evidence test. Because we believe there is good cause and
a special justification to do so, see State v. Witt, 223 N.J.
409, 415 (2015), we remove the same-evidence test from future
consideration in resolving double jeopardy questions.
Because our decision establishes a new rule of law, we
apply the new singular same-elements standard prospectively to
offenses committed after the date of this opinion. See, e.g.,
Witt, supra, 223 N.J. at 450. Here, in fairness to defendant,
we conduct our double-jeopardy analysis using both the same-
elements test and the now-removed same-evidence test because
that was the legal landscape at the time he was charged. We now
apply those principles to determine whether prosecution on
defendant’s school-zone charge violated double jeopardy.
VI.
The facts of this case implicate two of the three
protections of the Double Jeopardy Clause: protection against a
second prosecution after conviction and protection against
multiple punishments for the same offense. The two offenses at
issue are loitering to possess marijuana, N.J.S.A. 2C:33-2.1(b),
and possession with the intent to distribute within a school-
zone, N.J.S.A. 2C:35-7(a). The loitering statute provides that
a person commits a disorderly-persons offense if:
21
(1) he wanders, remains or prowls in a public
place with the purpose of unlawfully obtaining
or distributing a controlled dangerous
substance . . . and (2) engages in conduct
that . . . manifests a purpose to obtain or
distribute a controlled dangerous substance or
controlled dangerous substance analog.
[N.J.S.A. 2C:33-2.1(b).]
In comparison, a violation of the school-zone statute
occurs when a person “distribut[es], dispens[es] or possess[es]
with intent to distribute a controlled dangerous substance . . .
while on any school property used for school purposes . . . or
within 1,000 feet of such school property.” N.J.S.A. 2C:35-
7(a).
Application of the Blockburger same-elements test to the
two statutes would lead us to conclude that loitering to possess
marijuana is not the same offense as possession within a school
zone. Loitering requires proof that defendant’s conduct
occurred in a public place, an element not required for proof of
the school-zone offense. The school-zone offense, on the other
hand, requires proof of purpose to distribute and possession
within 1000 feet of a school zone -- two elements not required
for the proof of loitering. Thus, each offense contains at
least one element not required to prove the other.
Under the same-evidence test, however, we find that
defendant’s successive prosecution for the school-zone offense
is prohibited because it is based on the same evidence that
22
supported the plea and conviction on the loitering offense. The
evidence necessary to support defendant’s loitering charge was
his presence at 27th and Washington Streets, a public street
corner, where he intended to distribute marijuana. Similarly,
the evidence of the school-zone charge was defendant’s location
at 27th and Washington Streets -- within 1000 feet of a school
building -- where he possessed marijuana with the intent to
distribute it. Clearly, the State relied on the same evidence
to obtain defendant’s conviction on the school-zone charge that
was used as the basis for defendant’s plea on the loitering
charge. Accordingly, the two charges constitute the same
offense under the same-evidence test, and the school-zone
prosecution was improper. We therefore affirm the judgment of
the Appellate Division barring defendant’s second prosecution as
a violation of the double jeopardy clause.
In the interest of justice, we applied both analyses here;
going forward, for offenses committed after the issuance of this
opinion, we hold that the same-elements test will serve as the
singular framework for determining whether two charges are in
fact the same offense for purposes of double-jeopardy analysis.
VII.
The judgment of the Appellate Division is affirmed.
Defendant’s conviction and sentence on the school-zone offense
are vacated.
23
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE
ALBIN filed a separate, dissenting opinion in which JUSTICE
LaVECCHIA joins.
24
SUPREME COURT OF NEW JERSEY
A-72 September Term 2015
077035
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RODNEY J. MILES (a/k/a JAMAL
D. ALLEN),
Defendant-Respondent.
JUSTICE ALBIN dissenting.
More than forty years ago in State v. Gregory, this Court
exercised its broad administrative power under the New Jersey
Constitution to provide greater double-jeopardy protection to
the people of New Jersey than afforded by the United States
Constitution. 66 N.J. 510, 518-19, 522 (1975). We rejected the
United States Supreme Court’s same-elements test for determining
whether successive indictable prosecutions are barred for
double-jeopardy purposes and, instead, adopted a rule that
barred such prosecutions based on the same conduct. Id. at 522;
see also R. 3:15-1(b); State v. Williams, 172 N.J. 361, 368
(2002); State v. Yoskowitz, 116 N.J. 679, 699-704 (1989).
Later, we construed our State Constitution’s Double
Jeopardy Clause to incorporate the same-evidence test -- an
alter ego of the same-conduct test -- to bar successive
prosecutions involving non-indictable offenses, see State v.
1
De Luca, 108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct.
331, 98 L. Ed. 2d 358 (1987); State v. Dively, 92 N.J. 573
(1983), and we adopted a court rule requiring the joinder of
non-indictable offenses with indictable offenses arising from
the same conduct, R. 3:15-3. Our case law makes clear that we
have embraced the same-conduct test through our constitutional
rulemaking authority, see Williams, supra, 172 N.J. at 367-68,
and through our State Constitution’s Double Jeopardy Clause, see
De Luca, supra, 108 N.J. at 107-08. We also have determined
that notions of fundamental fairness may bar successive
prosecutions based on the same conduct. See Yoskowitz, supra,
116 N.J. at 704-09.
Today, the majority reverses course and constricts the
interpretation of our State Constitution’s Double Jeopardy
Clause to bar successive prosecutions based solely on the same-
elements test, thus aligning itself with the federal double-
jeopardy standard, which has proven to be inconstant. This move
is at complete odds with the architecture of our joinder rules
and double-jeopardy jurisprudence. Despite today’s decision,
our court rules requiring the joinder of all offenses arising
from the same conduct remain intact, and we have already
determined that the failure to join indictable offenses arising
from the same conduct, as required by Rule 3:15-1(b), will
result in the dismissal of a second prosecution. Williams,
2
supra, 172 N.J. at 368.
The immediate impact of the majority’s decision is that our
citizens will no longer have enhanced double-jeopardy protection
for non-indictable offenses. In such cases, only the same-
elements test, not the same-conduct test, will bar successive
prosecutions.
Thus, if a defendant is acquitted of possession with intent
to distribute drugs, he cannot afterwards be prosecuted for the
disorderly persons offense of possession because both offenses
share the same elements. However, if as occurred here, the
possession charge is amended to the disorderly persons offense
of loitering to possess or distribute drugs, the second
prosecution can proceed because the possession-with-intent-to-
distribute and drug loitering charges do not share the same
elements. According to the majority, the second prosecution is
not barred even though the defendant possessed the same drugs,
on the same street corner, at the same time.
The majority concedes that this result might well be
fundamentally unfair. There is no sound reason to alter a
workable constitutional doctrine to one that could lead to
unjust outcomes and that would require the remedy of the
fundamental-fairness doctrine. Notably, the majority makes
clear that fundamental fairness is not offended if the defendant
is acquitted of disorderly drug loitering and then prosecuted
3
for an indictable offense of possession arising from the same
conduct.
Additionally, under the majority’s new double-jeopardy
paradigm, the State can prosecute an accused for the disorderly
persons offenses of possession of drugs, possession of drug
paraphernalia, and loitering to obtain drugs, all arising from
the same conduct, in three separate trials because the three
offenses do not share the same elements. This scenario too the
majority does not consider to be fundamentally unfair.
Countless similar fact patterns can be conjured under the
majority’s new rule. Until today, such multiple prosecutions
would have been barred under our state-law double-jeopardy
jurisprudence.
Under the regressive approach adopted by the majority, the
State will be the ultimate beneficiary, and the accused will pay
the price for the State’s failure to join non-indictable
offenses. That approach cannot be squared with the principles
of fairness that previously animated our double-jeopardy
jurisprudence. For those reasons, I respectfully dissent.
I.
The double-jeopardy guarantees of our Federal and State
Constitutions protect an accused from multiple prosecutions and
4
multiple punishments for the same offense.1 See North Carolina
v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d
656, 664-65 (1969), overruled on other grounds by Alabama v.
Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989);
De Luca, supra, 108 N.J. at 102. The animating principle
underlying the Double Jeopardy Clause is that
the State with all its resources and power
should not be allowed to make repeated
attempts to convict an individual for an
alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and
compelling him to live in a continuing state
of anxiety and insecurity, as well as
enhancing the possibility that even though
innocent he may be found guilty.
[Green v. United States, 355 U.S. 184, 187-
88, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199, 204
(1957).]
The heart of the double-jeopardy issue before us is whether the
offense for which defendant was convicted in the first
prosecution is the “same offense” for which he was tried in the
second prosecution. See De Luca, supra, 108 N.J. at 102.
The same-elements test -- first adopted by the United
States Supreme Court in Blockburger v. United States, 284 U.S.
299, 52 S. Ct. 180, 76 L. Ed. 306 (1932) -- was the long-
1 The Federal and State Double Jeopardy Clauses provide, no
person shall “be subject for the same offence to be twice put in
jeopardy of life or limb,” U.S. Const. amend. V, and “[n]o
person shall, after acquittal, be tried for the same offense,”
N.J. Const. art. I, ¶ 11.
5
prevailing standard for determining whether a subsequent
prosecution was for the “same offense” as in a prior
prosecution. See Kirstin Pace, Fifth Amendment -- The Adoption
of the “Same Elements” Test: The Supreme Court’s Failure to
Adequately Protect Defendants from Double Jeopardy, 84 J. Crim.
L. & Criminology 769, 772 (1994). Over time, however, the
rigidity of that standard came into question. Id. at 772-75.
In 1970, the United States Supreme Court invoked collateral
estoppel to bar a subsequent prosecution for the same offense,
electing not to apply the Blockburger same-elements test.2 Ashe
v. Swenson, 397 U.S. 436, 443-47, 90 S. Ct. 1189, 1194-96, 25 L.
Ed. 2d 469, 475-77 (1970). Justice Brennan, while concurring
with the application of collateral estoppel, opined that “same
offense” in the Double Jeopardy Clause should be “construed to
[mean] the ‘same transaction’” -- all the events “grow[ing] out
of a single criminal act, occurrence, episode, or transaction.”
Id. at 453-54, 460, 90 S. Ct. at 1199, 1202, 25 L. Ed. 2d at
481, 484 (Brennan, J., concurring).
2 Ashe v. Swenson involved the robbery of six players in a poker
game. 397 U.S. 436, 437, 90 S. Ct. 1189, 1191, 25 L. Ed. 2d
469, 472 (1970). The defendant was prosecuted for the robbery
of one of the players and acquitted, apparently, based on his
alibi defense. Id. at 438-39, 90 S. Ct. at 1191-92, 25 L. Ed.
2d at 472-73. The United States Supreme Court barred a second
prosecution for the robbery of another poker player based on
principles of collateral estoppel. Id. at 445-47, 90 S. Ct. at
1195-96, 25 L. Ed. 2d at 467-77.
6
Following Justice Brennan’s lead, we rejected the
Blockburger standard in 1975 in favor of the “same transaction”
or “same conduct” test. See Gregory, supra, 66 N.J. at 518-19.
In so doing, we utilized the “broad administrative and
procedural powers vested in us by our State Constitution” in
Article VI, Section II, Paragraph 3, rather than turn to the
Double Jeopardy Clause of Article I, Paragraph 11. Id. at 518.
Gregory involved the sale of a single glassine envelope of
heroin to an undercover police officer by the defendant while in
his apartment. Id. at 511. The defendant had retrieved the
heroin envelope from a stash of similar envelopes in his
bathroom’s medicine cabinet. Ibid. The State first prosecuted
and convicted the defendant of the heroin sale and later
charged, prosecuted, and convicted him of possession and
possession with intent to distribute the heroin in his medicine
cabinet. Id. at 511-12.
Relying on Justice Brennan’s concurrence in Ashe v.
Swenson, section 1.07(2) of the Model Penal Code, notions of
fairness, and the defendant’s reasonable expectations, we
reversed the drug-possession convictions, concluding that “a
defendant shall not be subject to separate trials for multiple
offenses ‘based on the same conduct or arising from the same
criminal episode.’” Id. at 518-19, 522.
Two years after Gregory, we adopted a mandatory joinder
7
rule, which now reads:
[A] defendant shall not be subject to separate
trials for multiple criminal offenses based on
the same conduct or arising from the same
episode, if such offenses are known to the
appropriate prosecuting officer at the time of
the commencement of the first trial and are
within the jurisdiction and venue of a single
court.3
[R. 3:15-1(b) (1977) (amended 1987) (emphasis
added).]
The operative language in the Rule is identical to the language
in N.J.S.A. 2C:1-8(b) of the Code of Criminal Justice entitled
“Limitation on separate trials for multiple offenses.” This
Court has made clear that it will bar the successive prosecution
of indictable offenses arising from the same conduct when the
State has failed to join those offenses in accordance with Rule
3:15-1(b). See Williams, supra, 172 N.J. at 368; Yoskowitz,
supra, 116 N.J. at 699-704.
II.
This Court reached a similar result in cases involving the
failure to join non-indictable charges by invoking the Double
Jeopardy Clause of our State Constitution. See De Luca, supra,
108 N.J. at 101-08; Dively, supra, 92 N.J. at 578-90. In
Dively, supra, this Court broadly defined the term “same
3 In 1988, Rule 3:15-1(b) was amended to conform with the
language of N.J.S.A. 2C:1-8(b). See Pressler & Verniero,
Current N.J. Court Rules, comment on R. 3:15-1 (1988); 120
N.J.L.J. Index Pages 137-38 (1987).
8
offense” to encompass “any integral part of such offense which
may subject the offender to indictment and punishment.” 92 N.J.
at 581 (emphasis added) (quoting State v. Williams, 30 N.J. 105,
114 (1959)). In that case, in part under the auspices of our
State Constitution’s double-jeopardy guarantee, we adopted the
same-evidence test -- a variant of the same-conduct test -- as a
supplement to the same-elements test. See id. at 578, 582-83.
In adopting the same-evidence test, we relied primarily on
Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187
(1977), and Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260,
65 L. Ed. 2d 228 (1980), which, like Ashe, cast doubt on the
singularity of the Blockburger same-elements test. See Dively,
supra, 92 N.J. at 579-82; see also Brown, supra, 432 U.S. at 166
n.6, 97 S. Ct. at 2226 n.6, 53 L. Ed. 2d at 195 n.6 (“The
Blockburger test is not the only standard for determining
whether successive prosecutions impermissibly involve the same
offense.”). Vitale suggested that “the Double Jeopardy Clause
bars any subsequent prosecution in which the government . . .
will prove conduct that constitutes an offense for which the
defendant has already been prosecuted.” Grady v. Corbin, 495
U.S. 508, 521, 110 S. Ct. 2084, 2093, 109 L. Ed. 2d 548, 564
(1990) (examining Vitale), overruled by United States v. Dixon,
509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993).
In De Luca, supra, we applied the same-evidence test in a
9
case involving a driver acquitted of recklessly killing a person
with a vehicle -- death by auto. 108 N.J. at 108-11. We held
that the State could not prosecute the driver for driving while
intoxicated (DWI) if the driver’s reckless conduct in the first
prosecution was predicated solely on his presumed intoxication.
Id. at 108-09. In other words, if the State’s sole evidence of
recklessness in the death-by-auto case was intoxication, double
jeopardy barred the State from prosecuting the driver for DWI.
Ibid. We came to that conclusion even though, under
Blockburger, death by auto and DWI do not share the same
elements. Ibid.
In Dively, supra, we reached a result similar to De Luca in
the reverse setting. See 92 N.J. at 582-83. There, we held
that a driver who pled guilty to DWI could not be prosecuted for
death by auto if the sole basis for his reckless conduct was his
intoxication. Id. at 576-77, 582-83. Additionally, in
Yoskowitz, supra, we reaffirmed that the same-evidence test was
an integral part of our double-jeopardy jurisprudence. 116 N.J.
at 691-92.
After De Luca, Dively, and Yoskowitz, we adopted Rule 3:15-
3, which provides that “the court shall join any pending non-
indictable complaint for trial with a criminal offense based on
the same conduct or arising from the same episode.” R. 3:15-
3(a)(1) (emphasis added). This language parallels the mandatory
10
joinder rule for indictable offenses and presumably provides
similar protection from the sort of successive prosecutions
condemned in Gregory and Williams.
The enforcement section of Rule 3:15-3 provides that a
subsequent prosecution will be barred “as required by statute or
by the Federal or State Constitutions.” R. 3:15-3(c). The
drafters of that Rule knew that, under Dively and De Luca, our
State Constitution barred successive prosecutions of indictable
and lesser offenses arising under the same conduct that were not
joined by the prosecution. Report of the Supreme Court
Committee on Criminal Practice 44, 46-47, 52-57 (1988).
Therefore, as of 1992, when Rule 3:15-3 became effective, the
same-conduct test was the operative double-jeopardy framework
for our State with respect to both indictable and non-indictable
offenses. See R. 3:15-3 (effective 1992).
Since 1975, the operative double-jeopardy framework in this
State has been the “same conduct” test. See Gregory, supra, 66
N.J. at 519-20. Thus, by the time Justice Brennan’s same-
conduct test became the majority view of the United States
Supreme Court in Grady, supra, 495 U.S. at 510, 110 S. Ct. at
2087, 109 L. Ed. 2d at 557, our law had already provided that
level of protection for fifteen years.
Therefore, Justice Scalia’s 1993 opinion in Dixon, supra,
abandoning the same-conduct test and returning to the
11
Blockburger same-elements test, was completely at odds with our
jurisprudence. See 509 U.S. at 704, 113 S. Ct. at 2860, 125 L.
Ed. 2d at 573 (overruling Grady). Notably, the Dixon Court was
so deeply divided that it produced five separate opinions. The
Justices disagreed not only about which test would best advance
double-jeopardy principles, but also about how a factfinder
would determine whether the same-elements test was satisfied.
See generally Dixon, supra, 509 U.S. 688, 113 S. Ct. 2849, 125
L. Ed. 2d 556.4 We do not have to follow the path taken by our
federal counterpart, particularly when doing so is in conflict
with our own well-established jurisprudence.
III.
For forty years, we have been broadening the enforcement of
our mandatory joinder rules to safeguard defendants from
successive prosecution of offenses arising from the same
conduct. Dively, De Luca, and Yoskowitz are well-reasoned
precedents of this Court. The majority has failed to give some
“special justification” for sweeping them away, as required by
4 Only Justice Kennedy joined the entirety of Justice Scalia’s
opinion. Chief Justice Rehnquist wrote an opinion, joined by
Justices O’Connor and Thomas, concurring in part and dissenting
in part. Justice White wrote an opinion, joined by Justices
Stevens and Souter (only Part I), concurring in the judgment in
part and dissenting in part. Justice Blackmun wrote an opinion
concurring in the judgment in part and dissenting in part.
Justice Souter, joined by Justice Stevens, also wrote an opinion
concurring in the judgment in part and dissenting in part.
12
the doctrine of stare decisis. State v. Brown, 190 N.J. 144,
157 (2007) (quoting Dickerson v. United States, 530 U.S. 428,
443, 120 S. Ct. 2326, 2336, 147 L. Ed. 2d 405, 419 (2000)). The
majority provides no compelling, much less persuasive, reason --
other than the illusory promise of efficiency -- for withdrawing
protection previously guaranteed under our State Constitution
and for reversing Dively and De Luca and abrogating much of
Yoskowitz. Indeed, the majority is resigned to suggesting
possible remedies for the constitutional gap it has opened.
What is the fallout from the majority’s ruling? There is
now no bar to prosecuting defendants for differently framed non-
indictable offenses based on the exact same conduct. The
majority suggests that the Blockburger test is superior because
it provides the benefit of ease of application. See ante at ___
(slip op. at 16). The Bill of Rights, however, was not intended
to make prosecutions more efficient; it was intended to provide
greater safeguards to the liberty of our people.
Without changing our Court Rules to allow for the
enforcement of Rule 3:15-3(a)(1), or leaving Dively and De Luca
intact, a defendant convicted or acquitted of possession with
intent to distribute drugs on a particular street corner can be
prosecuted again for loitering with intent to distribute drugs
on the same street corner. That is so because, although
defendant’s conduct is the same, the elements of the two
13
offenses are different. Had defendant pled guilty to the
disorderly persons possession-of-marijuana charge -- before the
municipal court judge amended it to drug loitering -- no one
disputes that the State could not proceed with a prosecution for
possession with intent to distribute. The double-jeopardy
outcome changes only because the possession charge was amended
to a similar offense with a similar penalty -- drug loitering,
which has different elements than the greater offense. Even if
the amendment in this case was for benign reasons, the potential
for manipulation in the future should be self-evident.
Under this new regime, double jeopardy will not bar the
State from subjecting a public employee, who is acquitted of
official misconduct, N.J.S.A. 2C:30-2(a), based on an allegation
of stealing, from a second prosecution for disorderly theft,
N.J.S.A. 2C:20-2(b)(4), -3(a), based on the same conduct and
evidence. That follows because the elements of official
misconduct and disorderly theft are different. Additionally, in
robbery cases based on alleged force used by a defendant,
N.J.S.A. 2C:15-1(a)(1), an acquittal on the robbery will not bar
a second prosecution for simple assault, N.J.S.A. 2C:12-1(a), in
municipal court. The prosecutions in the reverse order would
also be permissible -- without offending the majority’s notions
of fundamental fairness.
Moreover, the State can consecutively prosecute an
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individual in municipal court for possession of drugs, N.J.S.A.
2C:35-10(a)(4), possession of drug paraphernalia, N.J.S.A.
2C:36-2, and loitering to obtain drugs, N.J.S.A. 2C:33-
2.1(b)(1), all arising from the same conduct, because the
elements of the three non-indictable offenses are distinct.
Those are but a few examples of the types of successive
prosecutions for offenses arising from the same conduct that
will be permissible as a result of the majority’s decision.
The majority is not compelled to take this backwards step
in our jurisprudence. Other jurisdictions have recognized the
flaws of relying solely on the same-elements test in the post-
Dixon era. See, e.g., Richardson v. State, 717 N.E.2d 32, 49-50
(Ind. 1999) (“[T]he statutory elements test and the actual
evidence test, are components of the double jeopardy ‘same
offense’ analysis under the Indiana Constitution.”); State v.
Cotton, 778 So. 2d 569, 573 (La. 2001) (“In evaluating claims of
double jeopardy under [Louisiana law and the Louisiana
Constitution], Louisiana courts have used the ‘same evidence’
test, which . . . is ‘somewhat broader in concept than
Blockburger.’” (citation omitted)); State v. Gazda, 82 P.3d 20,
22 (Mont. 2003) (“[Montana law] provides criminal defendants
with greater protection against double jeopardy than the
traditional double jeopardy ‘elements’ test set forth . . . in
Blockburger.” (citation omitted)).
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That other state courts follow Dixon does not make the
singular same-elements test superior to the same-conduct test
for double-jeopardy purposes. If the majority’s approach today
were the better one, this Court would never have decided
Gregory, Williams, Dively, and De Luca as it did. “In
protecting the rights of citizens of this State, we have never
slavishly followed the popular trends in other jurisdictions,
particularly when the majority approach is incompatible with the
unique interests, values, customs, and concerns of our people.”
Lewis v. Harris, 188 N.J. 415, 456 (2006). Indeed, we have
recognized that “[t]he New Jersey Constitution not only stands
apart from other state constitutions, but also ‘may be a source
of individual liberties more expansive than those conferred by
the Federal Constitution.’” Ibid. (quoting State v. Novembrino,
105 N.J. 95, 144-45 (1987)). Aligning this Court’s
interpretation of our State Constitution’s double-jeopardy
guarantee with the United States Supreme Court’s interpretation
of its federal cognate provision makes no sense given this
Court’s decades-long commitment to protecting the accused from
the successive prosecution of offenses arising from the same
conduct. We should remain true and consistent to the governing
principles of our own jurisprudence. We should construe our
Double Jeopardy Clause so that it fulfils notions of fundamental
fairness. The majority’s concession that the amorphous
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fundamental-fairness doctrine may have to come to the rescue if
unjust results arise from its new double-jeopardy rule is an
admission of the flawed approach it is taking.
IV.
No one contests that the non-indictable disorderly persons
offense of marijuana possession or drug loitering should have
been joined with the indictable offense of possession with
intent to distribute offense. See R. 3:15-3(a)(1). The
appropriate response is not to abandon our double-jeopardy
jurisprudence by overruling Dively and De Luca, but rather to
enforce more rigorously our mandatory joinder rule, which
requires the joinder of offenses arising from the same conduct.
The majority’s reversion to the same-elements test
backtracks from a path that this Court had set out on forty
years ago in Gregory. The majority’s new rule will allow the
State, with all its resources and power, to pursue repeated
prosecutions to convict an accused for the same offense, despite
an earlier conviction or acquittal. That rule hollows out the
protections previously provided by our jurisprudence and our
State Constitution’s Double Jeopardy Clause.
For the reasons expressed in this opinion, I respectfully
dissent.
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