State v. Michelle Lodzinski (083398) (Middlesex County & Statewide)(Reconsideration)

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SUPREME COURT OF NEW JERSEY
M-1224 September Term 2020
083398
State of New Jersey,
Plaintiff-Respondent,
v.
ORDER
Michelle Lodzinski,
Defendant-Movant.
Pending before the Court is defendant’s motion for reconsideration of
the Court’s opinion, filed on May 26, 2021.
The background to the motion is as follows.
I.
On July 31, 2014, a Middlesex County grand jury indicted defendant on
a single count of first-degree murder of her five-year-old son, Timothy
Wiltsey, more than twenty-three years after his disappearance. At the close of
the State’s case, defendant filed a motion for a judgment of acquittal pursuant
to Rule 3:18-1. That motion was denied, and the jury proceeded to convict
defendant of first-degree murder. The trial court denied defendant’s motion
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for a judgment of acquittal notwithstanding the verdict pursuant to Rule 3:18-2
and sentenced her to thirty years’ imprisonment without parole eligibility.
Defendant appealed her conviction to the Appellate Division, arguing, in
relevant part, that the trial court had erred in denying her motion for acquittal
notwithstanding the verdict. The Appellate Division affirmed her conviction,
explaining that it had assessed the sufficiency of the evidence by looking only
to the State’s proofs. While the Appellate Division observed that the
defendant had offered “substantial” evidence at trial that “in many ways
directly rebutted the State’s proofs,” this evidence went unreviewed and
unconsidered. Defendant sought this Court’s review and we granted
certification. 241 N.J. 81 (2020).
All six members of the Court agreed that the Appellate Division applied
an incorrect standard that limited “the scope of the evidence that should be
considered in reviewing a post-verdict motion for a judgment of acquittal.”
State v. Lodzinski, 246 N.J. 331, 339 (2021); accord id. at 359-60 (Patterson,
J., concurring). The concurring opinion stated the unanimous view of the
Court that “[w]hen a defendant moves for a judgment of acquittal after all the
proofs, . . . the court considers not only the evidence presented by the State,
but ‘the entirety of the evidence.’” Id. at 358 (quoting State v. Williams, 218
N.J. 576, 594 (2014)). We also characterized our statement in State v.
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Samuels that “a court ‘may not consider any evidence adduced by the defense
in determining if the State had met its burden,’” 189 N.J. 236, 245 (2007)
(quoting Pressler, Current N.J. Court Rules, cmt. 1 on R. 3:18 (2006)), as “a
departure from our law,” Lodzinski, 246 N.J. at 358 n.6 (Patterson, J.,
concurring). The concurring and dissenting opinions then applied this
corrected standard, reaching opposite conclusions as to the sufficiency of the
evidence. Both opinions earned the support of three Justices.
Notwithstanding this conclusion, the per curiam opinion of the Court
stated that the “judgment of the Appellate Division is affirmed by an equally
divided Court.” Id. at 339.
II.
Following this Court’s decision, defendant filed a motion for
reconsideration pursuant to Rule 2:11-6(a). Defendant argues that this Court
erred in determining that the Appellate Division’s decision could be affirmed
by an equally divided Court given our unanimous determination that the
Appellate Division had applied the incorrect standard. Defendant further
argues that she has never received judicial review of her insufficient-evidence
claim under the correct standard, as this Court could not take an affirmative act
without a majority vote for that action. Defendant contends that this is an
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error in the handling of her appeal that works a violation of her due process
rights.1
Motions for reconsideration in our appellate courts are governed by Rule
2:11-6. Under Rule 2:11-6(b), “[a] motion for reconsideration will be granted
only if it is moved by a justice or judge who concurred in the judgment or
decision, and a majority of the court so determines.” Therefore, two
requirements must be met for this Court to grant a motion for reconsideration:
the support of a single justice who joined the judgment or decision on which
1
Defendant also requested that the senior judge of the Appellate Division be
assigned for temporary service on the Court to hear defendant’s motion for
reconsideration, in order to avoid a second equally divided decision. That
authority is reposed in the Chief Justice, or the Presiding Justice, pursuant to
authority found in the Constitution and in the Court Rules. N.J. Const. art. VI,
§ 2, ¶ 1; R. 2:13-2(a); see generally Henry v. Dep’t of Hum. Servs., 204 N.J.
320, 345-46 (2010) (Rabner, C.J., concurring) (addressing the breadth and
exercise of this authority and stating that the power’s use may be necessary
when there is no underlying decision on which an evenly divided Court’s
ruling constitutes the first instance of judicial review). This power has been
exercised in motions for reconsideration before. See, e.g., Motor Club Fire &
Cas. Co. v. N.J. Mfrs. Ins. Co., 73 N.J. 425, 428 (1977) (providing an example
of the use of the assignment power to call up senior member of the Appellate
Division in order to resolve, on reconsideration, an important issue on which
the Court had split three-three).
The Presiding Justice has assigned the senior most member of the
Appellate Division, the Honorable Jose L. Fuentes, P.J.A.D., to serve in the
Court’s consideration of this motion for reconsideration and in any further
proceedings in this matter.
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reconsideration is sought, and, separately, the support of a majority of the
Court. In this instance, because both requirements are met, the motion for
reconsideration will be granted and the matter reargued for the following
reasons.
III.
Any member of this Court who joined the per curiam portion of our
earlier decision in this matter may serve as the justice “who concurred in the
judgment or decision” on which reconsideration is sought, for purposes of
Rule 2:11-6(b). This Court “unanimously modif[ied] the Appellate Division’s
holding with respect to its characterization of the scope of the evidence that
should be considered in reviewing a post-verdict motion for a judgment of
acquittal” and unanimously agreed that the effect of that determination was an
affirmance of the Appellate Division’s decision. Lodzinski, 246 N.J. at 339;
see also id. at 385 (Albin, J., dissenting) (“[T]he murder conviction in this case
will stand . . . .”). Because it is that aspect of our decision, and only that
aspect, on which defendant requests reconsideration, any of the six Justices
joining that per curiam decision may be the requisite justice who “move[s]” a
motion to reconsider that portion of the decision. And because at least one
Justice who joined our per curiam decision in this matter has voted in favor of
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granting reconsideration, that requirement of Rule 2:11-6(b) does not erect a
barrier to our review.
Moreover, on the merits, defendant rightfully asserts that adjudicating
her guilt or innocence by using a concededly erroneous ruling as a tiebreaker
denies meaningful judicial review. Though there are countless instances of
this Court resolving appeals with an equally divided affirmance, there are no
such examples of the Court doing so where the decision to be affirmed is
unanimously judged to apply incorrect legal standards. Our Court’s split on
the application of the correct standard of review to defendant’s sufficiency-of-
the-evidence argument did not resolve the appeal from the trial court’s denial
of her Rule 3:18-2 motion. The split requires correction by the appellate body.
Cf. R. 2:13-2(b); see Pressler & Verniero, Current N.J. Court Rules, cmt. on R.
2:13-2 (2021). Under Rule 2:13-2(b), when a two-judge panel “cannot agree
as to the determination” of the issue on appeal, the panel “shall” “call a third
judge to participate in the decision.” The rationale for Rule 2:13-2(b) is quite
simple: a third judge is required to participate because “the rule does not
intend an affirmance of the order or judgment appealed from by reason of an
equally split appellate panel.” Pressler & Verniero, Current N.J. Court Rules,
cmt. on R. 2:13-2 (2021).
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Criminal defendants in New Jersey have a constitutionally protected
“automatic right of appeal” of a final judgment of appeal. N.J. Const. art VI,
§ 5, ¶ 2; see also R. 2:2-3(a); R. 2:3-2. Where “a State has created appellate
courts as ‘an integral part of the . . . system for finally adjudicating the guilt or
innocence of a defendant,’ the procedures used in deciding appeals must
comport with the demands of the Due Process and Equal Protection Clauses of
the Constitution.” Evitts v. Lucey, 469 U.S. 387, 393 (1985) (omission in
original) (quoting Griffin v. Illinois, 351 U.S. 12, 18 (1956)); accord State v.
K.P.S., 221 N.J. 266, 279-80 (2015). “In order to satisfy the Due Process
Clause, defendants must be given a ‘meaningful opportunity to be heard.’”
State v. Bianco, 103 N.J. 383, 391 (1986) (quoting Boddie v. Connecticut, 401
U.S. 371, 377 (1971)).
Defendant has brought to this Court’s attention a failing in its prior
handling of this matter, which requires correction. She rightfully claims that
the unique procedural posture of this Court’s decision left her appeal
unconsidered under the proper legal standard, which, left uncorrected, works a
violation of her due process rights. Defendant does not challenge an
evidentiary ruling, the construction of a statute, or the meaning of an insurance
policy provision. She challenges the very process by which this evenly
divided Court addressed her conviction for first-degree murder. One searches
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JUSTICE ALBIN concurs in the Order.
Rule 2:11-6 allowed this Court to grant the motion for reconsideration
when it became evident that the Court, through oversight or inadvertence,
made a fundamental mistake in rendering its decision. Though rarely invoked,
the Rule permits the Court to correct its own errors. Admitting a procedural
error of constitutional magnitude, as the Court does today, keeps faith with the
purpose of that Rule.
As the Order states, the per curiam portion of the opinion -- joined by all
six members of the Court participating in this appeal -- held that the Appellate
Division applied the wrong standard “in reviewing [Lodzinski’s] post-verdict
motion for a judgment of acquittal” under Rule 3:18-2. Ante at ___ (slip op. at
5) (quoting State v. Lodzinski, 246 N.J. 331, 339 (2021)). The Appellate
Division’s review of Lodzinski’s motion for a judgment of acquittal
notwithstanding the verdict surveyed only the evidence presented by the State.
The Appellate Division failed to consider the entirety of the evidence -- the
evidence presented by both the State and defense -- as required by state law,
State v. Williams, 218 N.J. 576, 594 (2014), and federal law, Jackson v.
Virginia, 443 U.S. 307, 316-19 (1979) (stating that due process demands that
“all of the evidence” be considered in deciding such an issue (emphasis
omitted)).
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All six members joining the per curiam opinion agreed that the Appellate
Division’s review of the sufficiency of the evidence was substantively and
constitutionally flawed. See Lodzinski, 246 N.J. at 339, 357-60.
In applying the correct standard -- reviewing the entirety of the evidence
in the light most favorable to the State -- the Court split three-three on whether
the proofs satisfied the beyond-a-reasonable-doubt requirement to support
Lodzinski’s murder conviction. With the benefit of hindsight, it is now clear
that the Court had only two viable options when it reached a stalemate: either
remand to the Appellate Division to review the evidence under the proper
standard set forth in the per curiam opinion or order re-argument and call up
the senior member of the Appellate Division to sit as the seventh member of
the Court to break the deadlock. Proceeding as we did was a mistake.
As indicated by the Order, a three-three split on the Supreme Court
cannot uphold an Appellate Division decision that all six Justices agree is
constitutionally infirm. Only three members of this Court -- and no member of
the appellate panel -- affirmed Lodzinski’s conviction applying the proper
sufficiency-of-the-evidence standard. Had the three-judge appellate panel
applied the appropriate standard, no one would question that a split decision by
this Court would require an affirmance of the conviction -- and a denial of the
motion for reconsideration. But that is not the case here.
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My dissenting colleagues’ reliance on Abbamont v. Piscataway Twp.
Bd. of Educ., 163 N.J. 14, 14 (1999), and State v. Manzie, 168 N.J. 113, 114-
23 (2001), for the proposition that a split decision of this Court results in the
affirmance of the Appellate Division judgment is inapposite. Unlike here, the
members of the Abbamont and Manzie Courts did not unanimously agree that,
based on the governing case law, the decisions rendered by the appellate
panels were substantively and constitutionally flawed. In those cases, the
Justices merely disagreed on the interpretation of the statutes at issue -- with
three members of a six-member Court concurring with the appellate panels’
statutory interpretation, leading to affirmances. See Abbamont v. Piscataway
Twp. Bd. of Educ., 138 N.J. 405, 413, 435 (1994); Manzie, 168 N.J. at 120-23.
There, the decisions of the Appellate Division were the tie breakers. An
Appellate Division decision that all agree violates our case law and
constitutional norms cannot be a tie breaker.
A constitutionally defective decision, moreover, cannot serve as binding
authority under the discretionary law-of-the-case doctrine. See State v. K.P.S.,
221 N.J. 266, 280 (2015) (“[T]he appellate panel in this case denied defendant
[appellate review] based on the panel’s mistaken application of the law-of-the-
case doctrine.”); accord In re Estate of Chavana, 993 S.W.2d 311, 315 (Tex.
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App. 1999) (“[T]he court is being asked to apply the law of the case to reach
an unconstitutional result. This we cannot do.” (footnote omitted)).
Our State Constitution affords to all defendants convicted of a crime an
“automatic right of appeal” -- an appeal that comports with principles of due
process enshrined in both our Federal and State Constitutions. See K.P.S., 221
N.J. at 279-80 (citing N.J. Const. art. VI, § 5, ¶ 2); see also R. 2:2-3(a)(1); R.
2:3-2. Due process guarantees “certain minimum safeguards necessary to
make that appeal ‘adequate and effective’” -- including “a fair opportunity to
obtain an adjudication on the merits of [her] appeal.” Evitts v. Lucey, 469
U.S. 387, 392, 405 (1985) (quoting Griffin v. Illinois, 351 U.S. 12, 20 (1956)
(plurality opinion)). Inherent in the “right of appeal” is the right to a
resolution of the appeal. See ibid.This Court’s three-three split did not resolve Lodzinski’s appeal
challenging the sufficiency of all the evidence based on a substantively and
constitutionally correct standard of review. The appellate panel upheld
Lodzinski’s conviction by applying the wrong standard of review. That error
was a fundamental defect in the appellate process that undermined the integrity
of the Appellate Division’s judgment.
That Lodzinski’s attorney cited the wrong standard of review in her
appellate brief does not render harmless or excuse the appellate panel’s failure
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to apply the correct standard. See R. 2:10-2 (“[T]he appellate court may, in
the interests of justice, notice plain error not brought to the attention of the
trial or appellate court.”). An appellate court has a non-delegable obligation to
maintain “minimum safeguards necessary to make [an] appeal ‘adequate and
effective’” as required by due process. See Evitts, 469 U.S. at 405 (quoting
Griffin, 351 U.S. at 20). My dissenting colleagues argue that this is a case of
invited error. An appellate court, however, cannot accept an invitation to deny
a defendant due process.
In sum, the “right of appeal” confers on a convicted defendant the right
to a resolution of the appeal. Id. at 392, 405. This Court has the authority to
review a Rule 3:18-2 sufficiency-of-the-evidence motion de novo, but an
equally divided Court cannot resolve the question when the appellate court has
applied the wrong standard.
Rule 2:11-6(b) provides that “[a] motion for reconsideration will be
granted only if it is moved by a justice or judge who concurred in the judgment
or decision, and a majority of the court so determines.” All six Justices
“concurred” in the “decision,” which held that the Appellate Division applied a
substantively and constitutionally incorrect standard. Concurring in that per
curiam decision should have led each Justice to realize that the Appellate
Division’s sufficiency-of-the-evidence holding could not be affirmed on a split
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vote. Any Justice concurring in the per curiam decision had the right to move
for reconsideration of the erroneous judgment of this Court.
By promulgating Rule 2:11-6(b), the Court has acknowledged that it is
not infallible and has provided a mechanism to correct its own mistakes. By
granting this motion for reconsideration, the Court provides Lodzinski and the
State the opportunity for a final resolution of the sufficiency-of-the-evidence
argument based on the correct standard of review. That final resolution,
whatever it may be, must await re-argument before a seven-member Court.
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JUSTICE PATTERSON, JUSTICE FERNANDEZ-VINA, and JUSTICE
SOLOMON dissent from the Order.
In this appeal, a six-member Court equally divided on the merits of
defendant’s Michelle Lodzinski’s motion for a judgment of acquittal
notwithstanding the jury’s verdict of guilty in the first-degree murder of her
five-year-old son, Timothy Wiltsey. State v. Lodzinski, 246 N.J. 331, 339
(2021). Pursuant to this Court’s practice and precedent, the three-to-three vote
affirmed the Appellate Division’s decision upholding defendant’s conviction.
Ibid.In the Order entered today, defendant is granted reconsideration and the
opportunity to seek a judgment of acquittal before a reconstituted Court. She
is not afforded this extraordinary relief because of any defect in her trial;
indeed, she prevailed in every evidentiary dispute before the trial court. No
new legal principle has emerged from defendant’s appeal that might warrant
rehearing. Not a single justice has changed his or her mind about the trial
evidence or the governing law. Instead, defendant secures rehearing and the
prospect of acquittal on an astonishing ground: that because the Appellate
Division applied an incorrect standard of review that defendant herself urged it
to apply -- an error that this Court has since corrected -- she has been denied
due process.
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For the reasons explained below, defendant’s constitutional rights were
fully protected in her appeal, just as they were at her trial. This Court
reviewed the trial court’s decision denying defendant’s motion for a judgment
of acquittal under the correct standard, not the mistaken standard that she
argued to the Appellate Division. Id. at 357-59, 376-79. Under our
jurisprudence, a concurring opinion by three members of an equally divided
Court is not precedential in other cases, but it provides the governing law in
the appeal itself. Abbamont v. Piscataway Twp. Bd. of Educ., 314 N.J. Super.
293, 300-01 (App. Div. 1998), aff’d, 163 N.J. 14 (1999). In our concurring
opinion, indisputably applying the proper test, we thus afforded defendant the
due process to which she was entitled on appeal. We therefore voted to deny
defendant’s motion for reconsideration.
As our colleagues acknowledge, this Court’s rule governing motions for
reconsideration, Rule 2:11-6(b), requires more than a majority vote to grant
rehearing of a decided appeal. The rule does not authorize reconsideration
unless “a justice or judge who concurred in the judgment or decision” votes for
reconsideration. R. 2:11-6(b); see also ante at ___ (slip op. at 4-5) (order
granting motion for reconsideration). Because we -- the three members of the
Court who concurred in the decision affirming defendant’s conviction -- voted
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to deny reconsideration, no such “justice or judge” supports defendant’s
motion in this appeal.
Confronted with that requirement, our colleagues now claim to have
“concurred” in the decision affirming defendant’s conviction, notwithstanding
the fact that their dissent characterized that decision as a miscarriage of justice
unrivalled in the history of our State. See Lodzinski, 246 N.J. at 385, 400, 402
(Albin, J., dissenting). That claim, asserted only to secure a judgment of
acquittal for defendant in the murder of her son, does not withstand the
slightest scrutiny. Our colleagues did not “concur” in the decision, but
emphatically dissented. Id. at 384-402. We view the Order entered today to
be unauthorized by Rule 2:11-6(b), a court rule that this Court itself adopted,
and to which it has always adhered.
Accordingly, we respectfully dissent.
I.
A.
1.
In a twenty-eight-day trial, the State and defendant presented extensive
evidence to a jury.1
1
The State’s and defendant’s trial evidence is reviewed in detail in our
concurring opinion, Lodzinski, 246 N.J. at 362-76 (Patterson, J., concurring),
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Among other evidence, the State presented testimony indicating that
defendant told police that her son was abducted at a carnival in Sayreville on
May 25, 1991; that she gave police more than a half-dozen contradictory
accounts of the claimed abduction; that the child’s skull, leg bones, and
sneakers were found in or near a creek four-tenths of a mile from defendant’s
former workplace; that defendant did not disclose that workplace to police
when she named her prior employers until she was directly confronted about it;
that defendant’s son’s former babysitters recognized a blanket found near the
child’s remains as one that they had seen at defendant’s home; and that an
expert witness in forensic pathology concluded that the child died as the result
of a homicide, not by virtue of a disease, suicide, or an accident. See
Lodzinski, 246 N.J. at 362-76 (Patterson, J., concurring). And defendant
presented, among other evidence, the testimony of witnesses who had told
police that they saw a boy who looked similar to defendant’s son at the
Sayreville carnival; the testimony of an Arizona man who contended that his
former codefendant in a robbery case in that state had traveled to New Jersey
and killed defendant’s son -- a contention refuted by the former codefendant
and the State’s trial evidence is reviewed in detail in the dissenting opinion, id.
at 386-97 (Albin, J., dissenting).
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who testified at trial; and expert testimony calling into question the State’s
proofs. See id. at 371-76.
Charged by the trial court on the State’s burden to prove beyond a
reasonable doubt the elements of first-degree murder, N.J.S.A. 2C:11-3(a)(1),
as well as the elements of the lesser-included offenses of first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and second-degree reckless
manslaughter, N.J.S.A. 2C:11-4(b)(1), the jury returned a verdict of guilty
beyond a reasonable doubt on the first-degree murder charge, Lodzinski 246
N.J. at 351 (Patterson, J., concurring).
2.
Defendant filed a post-trial motion pursuant to Rule 3:18-2 for a
judgment of acquittal notwithstanding the verdict on the ground that the
evidence presented was insufficient to support the jury’s verdict of guilt
beyond a reasonable doubt.
A defendant must meet a stringent burden in order to be awarded a
judgment of acquittal notwithstanding a jury verdict. In State v. Reyes, this
Court held that when a trial or appellate court decides such a motion, it
determines
whether, viewing the State’s evidence in its entirety, be
that evidence direct or circumstantial, and giving the
State the benefit of all favorable testimony as well as
all of the favorable inferences which reasonably could
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be drawn therefrom, a reasonable jury could find guilt
of the charge beyond a reasonable doubt.
[50 N.J. 454, 458-59 (1967).]
If any reasonable jury could find guilt beyond a reasonable doubt, the motion
must be denied. Ibid.Reyes arose from a motion for a judgment of acquittal at the close of the
State’s case, and the Court did not address in that case the scope of the
evidence that must be considered when such a motion is filed after a verdict.
Ibid. With two of our current colleagues participating, this Court held in 2007
that a court deciding a motion for a judgment of acquittal after all the evidence
is presented must confine its review of the adequacy of the evidence to the
State’s case and the inferences to be derived from that evidence, and “may not
consider any evidence adduced by the defense in determining if the State had
met its burden as to all elements of the crime charged.” State v. Samuels, 189
N.J. 236, 245 (2007) (quoting Pressler, Current N.J. Court Rules, cmt. 1 on R.
3:18 (2006)); see also id. at 255 (Albin, J., dissenting) (likewise identifying the
governing standard as whether “the State presented sufficient evidence from
which a jury could conclude beyond a reasonable doubt that defendant
committed” the crimes charged, but disagreeing with the majority as to the
application of that standard in the Samuels appeal).
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Seven years ago, however, the Court held that when a defendant moves
for a judgment of acquittal after the verdict, the court considers not only the
State’s evidence, but “the entirety of the evidence,” with that evidence viewed
favorably to the State as Reyes requires. State v. Williams, 218 N.J. 576, 594
(2014).
Consistent with Williams, the trial judge in this case weighed all of the
evidence when he denied defendant’s motion for a judgment of acquittal
notwithstanding the verdict. In his opinion, the trial judge wrote that when a
court considers a motion for a judgment of acquittal based on the sufficiency
of the evidence, it “must decide whether the evidence is sufficient to warrant a
conviction beyond a reasonable doubt,” and “must sift the evidence to
determine whether a jury could have rationally found that the essential
elements of the crime were proven beyond a reasonable doubt.” As defendant
confirmed to this Court, the trial court did not confine its review to the State’s
evidence alone, but properly considered all of the evidence when it decided her
motion for a judgment of acquittal under Rule 2:11-6(b). Indeed, in her
supplemental reply brief to this Court, opposing the State’s claim that she had
waived her argument about the sufficiency-of-the-evidence standard by not
asserting that argument below, defendant stated that she had no reason to raise
the issue because “nothing in the trial court’s recitation of the applicable law
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nor its abbreviated discussion of the evidence suggested that it did not, or
could not, consider defense evidence in denying Michelle’s post-conviction
acquittal motion.”
Applying that standard, the trial court found that the evidence was
sufficient to support a reasonable jury’s verdict of guilty beyond a reasonable
doubt.
B.
Defendant appealed her conviction, contending that the trial court erred
when it denied her motion for a judgment of acquittal.2 In her brief to the
Appellate Division, defendant asserted the same erroneous formulation of the
standard governing her motion that she now claims deprived her of due
process.
Quoting Reyes, 50 N.J. at 459, defendant argued that the Appellate
Division should decide “whether, viewing the State’s evidence in its entirety,
be that evidence direct or circumstantial, and giving the State the benefit of all
of its favorable testimony as well as all of the favorable inferences which
2
Defendant challenged her conviction on a second ground as well: the denial
of her motion for a new trial based on the trial court’s dismissal of a juror who
violated its instructions and conducted independent research, and the court’s
substitution of an alternate for that juror. Lodzinski, 246 N.J. at 353-54. In
her motion for reconsideration, defendant does not raise the juror-substitution
issue, but relies exclusively on her challenge to the sufficiency of the evidence.
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reasonably could be drawn therefrom, a reasonable jury could find guilt of the
charge beyond a reasonable doubt.” Defendant thus urged the Appellate
Division to limit its consideration to the evidence presented by the State when
it reviewed the trial court’s decision denying her motion for a judgment of
acquittal. In its responding brief, the State followed suit, contending that the
Appellate Division should base its decision on the evidence that it had
presented to the jury.
The Appellate Division affirmed defendant’s conviction in an
unpublished opinion. Adopting the standard that defendant had urged it to
apply, the appellate court commented that “[i]t is generally stated that whether
the motion to acquit is made at the end of the State’s case or after the end of
the entire case the standard is the same, i.e., only the State’s proofs will be
considered.” (quoting State v. Sugar, 240 N.J. Super. 148, 152-53 (App. Div.
1990)). Reviewing the State’s evidence, the Appellate Division held that the
evidence was sufficient to support a reasonable jury’s verdict of guilty beyond
a reasonable doubt, and affirmed defendant’s conviction.
C.
With the Chief Justice recused, a six-member Court granted defendant’s
petition for certification. 241 N.J. 81 (2020). No Appellate Division judge
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was assigned to temporarily serve on the Court and hear defendant’s appeal.3
In her petition for certification, defendant premised a federal
constitutional argument on the very test for a post-verdict motion for a
judgment of acquittal that she had urged the Appellate Division to apply.
Without citing Williams, defendant stated that Samuels was wrongly decided,
and argued that if the standard applied by the Appellate Division represented
New Jersey law, that standard violated federal due process principles set forth
in Jackson v. Virginia, 443 U.S. 307, 317 (1979). Thus, having misstated the
standard governing her motion to the Appellate Division, defendant argued
before us that the appellate court’s application of that standard -- exactly as
she presented it -- violated her federal constitutional rights.
The Court’s per curiam opinion recited that “the six members of the
Court who participated in this appeal unanimously modify the Appellate
3
The Chief Justice may in his discretion assign an Appellate Division judge to
temporarily serve on this Court in several settings; one such setting is an
appeal in which a justice’s absence leaves the Court with a quorum but not a
full complement of seven justices. See Henry v. Dep’t. of Hum. Servs., 204
N.J. 320, 340-54 (2010) (Rabner, C.J., concurring) (discussing the Chief
Justice’s authority under Article VI, Section 2, Paragraph 1 to assign Appellate
Division judges to temporarily serve on the Court); see also R. 2:13-2(a). As
the Order granting reconsideration notes, when the Chief Justice does not
participate in a particular appeal and only six justices participate, the Presiding
Justice may exercise the same discretionary authority. Ante at ___ n.1 (slip
op. at 4 n.1)(order granting motion for reconsideration); see also R. 2:13-2(a).
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Division’s holding with respect to its characterization of the scope of the
evidence that should be considered in reviewing a post-verdict motion for a
judgment of acquittal.” Lodzinski, 246 N.J. at 339. In the concurring opinion,
we reiterated the Williams standard, noting that when a motion for a judgment
of acquittal notwithstanding the verdict is filed after the verdict, the court must
consider all of the evidence, including the evidence presented by the defense.
Id. at 358-59 (Patterson, J., concurring). All members of the Court
participating in the appeal held that the New Jersey standard for such motions
comports with federal due process principles. Id. at 358-60; id. at 385 n.1
(Albin, J., dissenting).
The Court sharply divided, however, as to the outcome of defendant’s
appeal. In our concurring opinion, we reviewed the defense evidence as well
as the State’s evidence, and concluded that the entirety of the evidence
supported a reasonable jury’s verdict of guilty beyond a reasonable doubt. Id.
at 357-79 (Patterson, J., concurring).
With no reference to any proofs presented by the defense, the dissenting
justices contended that the evidence was insufficient to support a reasonable
jury’s decision to convict defendant. Id. at 384-400 (Albin, J., dissenting).
They concluded their dissent by stating that under federal due process
principles, “Lodzinski’s murder conviction cannot stand. But it will, at least
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for now, because the three dissenting votes in this appeal are insufficient to
prevent this miscarriage of justice.” Id. at 402 (citation omitted).
D.
Defendant swiftly responded to the dissent’s prompt. In her motion for
reconsideration, she stated that she was entitled to a rehearing with an
Appellate Division judge added to the Court for her appeal. Defendant
claimed that although her case had been reviewed by the trial court, the
Appellate Division and this Court, no court had ruled on her insufficient-
evidence claim under the correct test. She further asserted that because this
Court equally divided on her sufficiency-of-the-evidence claim, it issued no
precedential ruling and subjected her to a constitutionally-flawed ruling by the
Appellate Division, thus violating her federal due process rights under
Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
The Presiding Justice then assigned the senior Appellate Division judge
to temporarily serve on the Court. The Court granted reconsideration by a vote
of four to three. Defendant thus achieved a remedy that appears to be
unprecedented: the addition of an Appellate Division judge, at the behest of an
unsatisfied litigant, for a new hearing before a recomposed Court.
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II.
For the reasons explained below, we conclude that defendant’s due
process argument is without merit.
Defendant’s first contention -- that her sufficiency-of-the-evidence claim
has yet to be reviewed under the correct standard -- is simply untrue. As
noted, the trial court properly considered all of the evidence when it denied
defendant’s post-verdict motion for a judgment of acquittal under Rule 3:18-2.
In our concurring opinion, we considered the defense evidence as well as the
State’s evidence under the standard set forth in Williams, 218 N.J. at 594, a
standard that defendant concedes is constitutional. Lodzinski, 246 N.J. at 357-
79. Only the Appellate Division, in an error invited by defendant herself,
incorrectly stated the test.
Defendant’s second contention -- that the Court’s per curiam opinion left
in place a “flawed” Appellate Division’s decision as controlling law -- ignores
this Court’s jurisprudence regarding the import of three-three ties.
Defendant is correct that our concurring opinion in State v. Lodzinski is
not a precedential opinion; when this Court equally divides and thus affirms
the Appellate Division’s decision, its concurring opinion cannot be cited to
courts as precedent in cases that follow. Mount Holly Twp. Bd. of Educ. v.
Mount Holly Twp. Educ. Ass’n, 199 N.J. 319, 332 n.2 (2009). Defendant’s
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motion for reconsideration, however, concerns the Lodzinski case itself, not
some future case. And in the Lodzinski case, it is not the Appellate Division
opinion but this Court’s concurring opinion that provided the governing law on
the sufficiency of the evidence under Rule 3:18-2.
That distinction was explained in the Appellate Division’s decision in
Abbamont, 314 N.J. Super. at 301, a decision affirmed by this Court in
Abbamont v. Piscataway Township Board of Education, 163 N.J. 14 (1999).
In Abbamont, the plaintiff asserted claims against his former employer, a
board of education, under the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14. Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J.
405, 410 (1994). The Court equally divided on the question whether a plaintiff
may seek punitive damages in a CEPA case against a public entity or public
employee; three justices joined a concurring opinion allowing CEPA plaintiffs
to pursue punitive damages in public-employment cases, id. at 425-33(Handler, J., concurring), and three justices joined an opinion dissenting on
that question, id. at 435-36 (Pollock, J., concurring in part and dissenting in
part). The Court affirmed the Appellate Division’s judgment remanding the
case for trial. Id. at 413, 435.
Four years later, the Abbamont case returned to the Appellate Division.
Abbamont, 314 N.J. Super. at 296-300. As the Appellate Division recounted,
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the trial court on remand had dismissed the punitive damages claim
notwithstanding the concurring opinion’s mandate that the court send that
claim to the jury, and the plaintiff appealed. Id. at 298-99.
In an opinion by Judge Skillman, the Appellate Division identified as its
first task the determination whether its own prior opinion or the concurring
opinion by three members of this Court provided the governing law for
purposes of the Abbamont case. As the court explained,
The threshold issue presented by this appeal is whether
the controlling law following the remand is this court’s
majority opinion or Justice Handler’s prevailing
opinion in the evenly divided Supreme Court. This
point is significant because although we may disagree
with a decision of another panel of this court under
some circumstances, we are obviously bound by a
decision of the Supreme Court.
[Id. at 300 (citation and footnote omitted).]
The Appellate Division acknowledged “that an affirmance by an equally
divided court is not entitled to any precedential weight.” Id. at 301. It stated,
however, that the question was not whether the concurring opinion was
precedential, but whether that opinion provided the governing law in the
Abbamont case itself. As the court observed,
[T]he issue before us is not whether the Supreme
Court’s decision should be accorded precedential
weight in another case but rather whether it represents
the controlling law in this case. This issue is governed
by the ‘law of the case’ doctrine rather than the
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principle of stare decisis. Under this doctrine, a
decision by an equally divided court becomes the law
of the case, which is binding upon all lower courts, even
though it may have no precedential weight in other
cases.
[Ibid. (citation omitted).]
The Appellate Division was “satisfied that Justice Handler’s opinion
represents the law of this case, and that it is binding upon both the trial court
and this court.” Id. at 303.
This Court unanimously affirmed the Appellate Division’s decision in
Abbamont, substantially for the reasons stated in Judge Skillman’s opinion,
summarizing the decision it affirmed as follows:
Judge Skillman concluded that this Court’s affirmance
of Abbamont v. Piscataway Township Board of
Education, 238 N.J. Super. 603 (App. Div. 1990), by an
equally divided Court on the question whether a
punitive damage claim under [CEPA] may be
maintained against a public entity, 138 N.J. 405 (1994)
(Abbamont I), constituted the controlling law under the
‘law of the case’ doctrine, and therefore was binding on
the lower courts in this case. 314 N.J. Super. at 301-
03.
[Abbamont, 163 N.J. at 14.]
Thus, this Court confirmed that Justice Handler’s concurring opinion in
its prior decision in Abbamont -- a decision that the Appellate Division termed
the “prevailing opinion” and this Court characterized as the “controlling law”
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-- constituted the governing law for subsequent proceedings in the Abbamont
case. Ibid.That principle applies with equal force in a criminal setting. In State v.
Manzie, a six-member Court equally divided on the question whether the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, as the statute then provided,
applied to a sentence for murder. 168 N.J. 113, 114-23 (2001) (Stein,
Coleman, and Zazzali, JJ., concurring). Three justices joined a concurring
opinion stating that NERA did not apply to sentences for murder, id. at 114-20,and three justices dissented, stating that NERA applied to sentences for
murder, id. at 120-23 (Poritz, C.J., dissenting).
In State v. Chavies, 345 N.J. Super. 254, 276-77 (App. Div. 2001), the
Appellate Division reiterated the holding of Abbamont that a three-to-three
decision in the Supreme Court, while not precedential, constitutes the
governing law for the case itself. There, the defendant cited the Appellate
Division’s decision and the Supreme Court’s concurring opinion in Manzie as
precedent for his argument that NERA did not apply to his sentence for
murder. Id. at 276. Citing Abbamont, the Appellate Division in Chavies noted
that in Manzie, “[o]ur Supreme Court affirmed in a per curiam opinion because
the members of the Court were equally divided. The result is that the Supreme
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Court’s decision is binding in Manzie only, as it is essentially the law of that
case.” Id. at 277.
Thus, although the equally divided Supreme Court’s concurring opinion
in Abbamont was not precedential in subsequent cases, it provided the
controlling law for the Abbamont case itself. Abbamont, 163 N.J. at 14. In
Manzie, the equally divided Supreme Court’s concurring opinion was not
precedential authority for later decisions, but, in that case itself, the decision
was “binding on Manzie” as the controlling law. Chavies, 345 N.J. Super. at
277. Here, the equally divided Court’s concurring opinion is indeed not
precedential, but it constitutes the controlling law that governs defendant’s
appeal.
As defendant concedes, the concurring opinion in this Court applied a
standard to the evidence under Rule 3:18-2 that passes constitutional muster;
as in the trial court’s review of the motion, the concurrence considered defense
evidence along with the State’s evidence under Reyes and Williams.
Lodzinski, 246 N.J. at 371-79. The concurring opinion thus accorded
defendant the due process to which she was entitled. Defendant’s claim that
she has suffered a constitutional violation by virtue of the Appellate Division’s
decision is contrary to this Court’s precedent concerning evenly divided
decisions.
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We thus dispute the notion that defendant has guided the Court to
recognize “a failing in its prior handling of this matter,” which requires
“correction” in the form of a rehearing before a reconstituted Court. Ante at
___ (slip op. at 7) (order granting motion for reconsideration). As the record
and this Court’s precedent make clear, there was no due process violation, and
no “failing” in this Court’s determination of defendant’s appeal.
Accordingly, we voted to deny defendant’s motion for reconsideration.
III.
Defendant’s motion for reconsideration is governed by Rule 2:11-6(b).
The first sentence of that provision states that “[a] motion for reconsideration
will be granted only if it is moved by a justice or judge who concurred in the
judgment or decision, and a majority of the court so determines.” R. 2:11-
6(b). As this Court has explained, “[a] motion for reconsideration requires, in
addition to ‘a majority of the court,’ that a justice or judge who concurred in
the original decision be part of the majority deciding to rehear the case.”
Abbott v. Burke, 206 N.J. 332, 374 (2011) (quoting R. 2:11-6(b)).
Our Appellate Division colleague’s vote to grant reconsideration
satisfies the second of Rule 2:11-6(b)’s two requirements -- that a majority of
the Court favor reconsideration -- but not the Rule’s first mandate. Because
our Appellate Division colleague was not called upon to participate in the
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original decision, and was assigned to join the Court only at this late stage, he
is not “a justice or judge who concurred in the original decision.” Abbott, 206
N.J. at 374; see also R. 2:11-6(b).
That leaves only the three members of the Court who dissented from the
Court’s decision. See Lodzinski, 246 N.J. at 384-402 (Albin, J., dissenting).
By dissenting from the decision, our colleagues made it abundantly clear that
they did not “concur[] in the judgment or decision,” as Rule 2:11-6(b) requires.
The terms “concur” and “dissent” convey opposing concepts. Compare
Black’s Law Dictionary 363 (11th ed. 2019) (defining “concur” to mean “[t]o
agree; to consent”), with id. at 595 (defining a “dissent” as “[a] disagreement
with a majority opinion, esp. among judges”).
Our colleagues nevertheless postulate that “[a]ny member of the Court
who joined the per curiam portion of our earlier decision may serve as the
justice ‘who concurred in the judgment or decision’ on which reconsideration
is sought, for purposes of Rule 2:11-6(b).” Ante at ___ (slip op. at 5) (order
granting motion for reconsideration). Respectfully, our colleagues’ reasoning,
contrived to support defendant’s application, is nonsensical. When this Court
is equally divided, and therefore issues a per curiam opinion affirming an
Appellate Division decision, the justices who dissented in that appeal have not
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“concurred” in the per curiam decision; they dissent from it, because they
would reverse the decision below.
To the extent that our colleagues rely on their agreement with the
concurring opinion’s statement of the standard governing post-verdict motions
for a judgment of acquittal to declare themselves justices “who concurred in
the judgment or decision” for purposes of Rule 2:11-6(b), their position
contravenes the plain language of the Rule. Rule 2:11-6(b) does not authorize
reconsideration merely because a dissenting justice or judge who concurs with
one or more general legal principles stated in the challenged decision votes to
reconsider; had the Court intended to impose such a low bar, it would have
done so. To the contrary, the Rule does not authorize reconsideration unless at
least one justice or judge who concurred with the challenged “judgment” or
“decision” votes for rehearing. R. 2:11-6(b). In other words, reconsideration
cannot be granted unless a justice or judge who voted in favor of the original
result later supports rehearing. Ibid. The Rule is plainly intended to limit
reconsideration to the settings in which the views of at least one member of the
Court who previously supported the outcome have changed.
That has not occurred here. At every stage, our dissenting colleagues
disputed the outcome of this appeal. Addressing a legal principle on which the
concurring and dissenting opinions agreed, our colleagues made clear that their
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adherence to that principle should not be mistaken for an agreement with the
decision itself. They concurred “that our state’s legal standard for a judgment
of acquittal -- as opposed to how that standard was applied in this case -- does
not offend due process.” Lodzinski, 246 N.J. at 385 n.1 (Albin, J., dissenting).
They found no common ground with the “judgment or decision” in this case.
Indeed, our colleagues described the Court’s decision as a miscarriage of
justice of historic proportions. They declared that “[i]n the modern annals of
New Jersey legal history, as recorded in the New Jersey Reports and the
Superior Court Reports, to my knowledge, no murder conviction has ever been
upheld on such a dearth of evidence.” Id. at 385. They stated that “[t]he
checks and balances in our criminal justice system have failed at all levels.
The decades-long search for the cause of the tragic death of young Timothy
has led only to a miscarriage of justice.” Ibid. They asserted that “[t]he
sustaining of the murder conviction in this case on such a paucity of evidence
has no parallel in this state, to my knowledge.” Id. at 400. If our colleagues
intended to convey the message that they “concurred in the judgment or
decision,” as Rule 2:11-6(b) requires, their choice of words was peculiar
indeed.
Of course, our colleagues did not “concur” in the decision challenged
here; they vehemently opposed it. No justice or judge who “concurred in the
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judgment or decision” within the meaning of Rule 2:11-6(b) has voted in favor
of reconsideration. Accordingly, the Order entered today does not comply
with Rule 2:11-6(b).
IV.
For the foregoing reasons, we respectfully dissent.
23