Hoag v. New Jersey/Opinion of the Court

by John Marshall Harlan II

United States Supreme Court

356 U.S. 464

Hoag  v.  New Jersey

 Argued: Nov. 19, 1957. --- Decided: May 19, 1958

In this case we are asked to set aside, under the Due Process Clause of the Fourteenth Amendment, a state conviction secured under somewhat unusual circumstances.

On June 26, 1951, a Bergen County, New Jersey, grand jury returned three indictments against the petitioner charging that on September 20, 1950, in concert with two others, he robbed three individuals, Cascio, Capezzuto and Galiardo, at Gay's Tavern in Fairview, New Jersey. These indictments were joined for trial. The State called five witnesses: the three victims named in the indictment, and two other persons, Dottino and Yager. Dottino and Yager were also victims of the robbery, but they were not named in the indictment. All the witnesses, after stating that they were in Gay's Tavern on September 20, testified to the elements of a robbery as defined in the New Jersey statute: ^[1] that they were put in fear and that property was taken from their persons. The petitioner, who claimed that he was not at the tavern on the fateful day and testified to an alibi, was the sole witness for the defense. Although Galiardo and Dottino had both identified petitioner from a photograph during the police investigation, only one of the witnesses, Yager, identified him at the trial as one of the robbers. On May 27, 1952, the jury acquitted the petitioner on all three indictments.

Subsequently, on July 17, 1952, another Bergen County grand jury returned a fourth indictment against petitioner, which was the same as the first three in all respects except that it named Yager as the victim of the robbery at Gay's Tavern. At the trial upon this indictment the State called only Yager as a witness, and he repeated his earlier testimony identifying petitioner. The defense called Cascio, Capezzuto, Galiardo and Dottino, and they each once again testified either that petitioner was not one of the robbers or that a positive identification was not possible. Petitioner repeated his alibi. This time the jury returned a verdict of guilty. The conviction was sustained on appeal in both the Superior Court of New Jersey, 35 N.J.Super. 555, 114 A.2d 573, and the Supreme Court of New Jersey, 21 N.J. 496, 122 A.2d 628. We granted certiorari to consider petitioner's claim, timely raised below, that he was deprived of due process. 352 U.S. 907, 77 S.Ct. 150, 1 L.Ed.2d 116.

Petitioner contends that the second prosecution growing out of the Gay's Tavern robberies infringed safeguards of the Double Jeopardy Clause of the Fifth Amendment which are 'implicit in the concept of ordered liberty' and that these safeguards as such are carried over under the Fourteenth Amendment as restrictions on the States. Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. More particularly, it is said that petitioner's trial for the robbery of Yager, following his previous acquittal on charges of robbing Cascio, Capezzuto, and Galiardo, amounted to trying him again on the same charges. However, in the circumstances shown by this record, we cannot say that petitioner's later prosecution and conviction violated due process.

At the outset it should be made clear that petitioner has not been twice put in jeopardy for the same crime. The New Jersey courts, in rejecting his claim that conviction for robbing Yager violated the Double Jeopardy Clause of the State Constitution, ^[2] have construed the New Jersey statute as making each of the four robberies, though taking place on the same occasion, a separate offense. This construction was consistent with the usual New Jersey rule that double jeopardy does not apply unless the same evidence necessary to sustain a second indictment would have been sufficient to secure a conviction on the first. See State v. Di Giosia, 3 N.J. 413, 419, 70 A.2d 756, 759; State v. Labato, 7 N.J. 137, 144, 80 A.2d 617, 620. Certainly nothing in the Due Process Clause prevented the State from making that construction.

But even if it was constitutionally permissible for New Jersey to punish petitioner for each of the four robberies as separate offenses, it does not necessarily follow that the State was free to prosecute him for each robbery at a different trial. The question is whether this case involved an attempt 'to wear the accused out by a multitude of cases with accumulated trials.' Palko v. State of Connecticut, supra, 302 U.S. at page 328, 58 S.Ct. at page 153. ^[3]

We do not think that the Fourteenth Amendment always forbids States to prosecute different offenses at consecutive trials even though they arise out of the same occurrence. The question in any given case is whether such a course has led to fundamental unfairness. Of course, it may very well be preferable practice for a State in circumstances such as these normally to try the several offenses in a single prosecution, and recent studies of the American Law Institute have led to such a proposal. See Model Penal Code § 1.08(2) (Tent.Draft.No.5, 1956). ^[4] But it would be an entirely different matter for us to hold that the Fourteenth Amendment always prevents a State from allowing different offenses arising out of the same act or transaction to be prosecuted separately, as New Jersey has done. ^[5] For it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice. See Hurtado v. State of People of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 494, 44 L.Ed. 597; West v. State of Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965; Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97. In the last analysis, a determination whether an impermissible use of multiple trials has taken place cannot be based on any overall formula. Here, as elsewhere, 'The pattern of due process is picked out in the facts and circumstances of each case.' Brock v. State of North Carolina, 344 U.S. 424, 427-428, 73 S.Ct. 349, 350-351, 97 L.Ed. 456. And thus, without speculating as to hypothetical situations in which the Fourteenth Amendment might prohibit consecutive prosecutions of multiple offenses, we reach the conclusion that the petitioner in this case was not deprived of due process.

In Brock v. State of North Carolina, supra, this Court upheld a state conviction against a somewhat similar claim of denial of due process. In Brock two of the State's key witnesses had previously been tried and convicted of crimes arising out of the same transaction which formed the basis of the charge against the petitioner. Before judgments were entered on their convictions they were called by the State of testify at petitioner's trial. Because of their intention to appeal their convictions and the likelihood of a new trial in the event of reversal, the two witnesses declined to testify at petitioner's trial on the ground that their answers might be self-incriminatory. At this point the States was granted a mistrial upon its representation that the evidence of the two witnesses was necessary to its case and that it intended to procure their testimony at a new trial of the petitioner. This Court held that a second trial of the petitioner did not violate due process.

Remembering that the Yager robbery constituted a separate offense from the robberies of the other victims, we find no basis for a constitutional distinction between the circumstances which led to the retrial in Brock and those surrounding the subsequent indictment and trial in the present case. It is a fair inference from the record before us that the indictment and trial on the charge of robbing Yager resulted from the unexpected failure of four of the State's witnesses at the earlier trial to identify petitioner, after two of these witnesses had previously identified him in the course of the police investigation. Indeed, after the second of the two witnesses failed to identify petitioner, the State pleaded surprise and attempted to impeach his testimony. We cannot say that, after such an unexpected turn of events, the State's decision to try petitioner for the Yager robbery was so arbitrary or lacking in justification that it amounted to a denial of those concepts constituting "the very essence of a scheme of ordered justice,' which is due process.' Brock v. State of North Carolina, supra, 344 U.S. at page 428, 73 S.Ct. at page 351. Thus, whatever limits may confine the right of a State to institute separate trials for concededly different criminal offenses, it is plain to us that these limits have not been transgressed in this case.

Petitioner further contends that his conviction was constitutionally barred by 'collateral estoppel.' His position is that because the sole disputed issue in the earlier trial related to his identification as a participant in the Gay's Tavern robberies, the verdict of acquittal there must necessarily be taken as having resolved that issue in his favor. The doctrine of collateral estoppel, so the argument runs, is grounded in considerations of basic fairness to litigants, and thus for a State to decline to apply the rule in favor of a criminal defendant deprives him of due process. Accordingly, it is claimed that New Jersey could not relitigate the issue of petitioner's 'identity,' and is thus precluded from convicting him of robbing Yager.

A common statement of the rule of collateral estoppel is that 'where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action.' Restatement, Judgments, § 68(1). As an aspect of the broader doctrine of res judicata, collateral estoppel is designed to eliminate the expense, vexation, waste, and possible inconsistent results of duplicatory litigation. See Developments in the Law-Res Judicata, 65 Harv.L.Rev. 818, 820. Although the rule was originally developed in connection with civil litigation, it has been widely employed in criminal cases in both state and federal courts. See, e.g., Harris v. State, 193 Ga. 109, 17 S.E.2d 573, 147 A.L.R. 980; Commonwealth v. Evans, 101 Mass. 25; United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161; Sealfon v. United States, 332 U.S. 575, 68 § .Ct. 237, 92 L.Ed. 180; cf. Yates v. United States, 354 U.S. 298, 335, 77 S.Ct. 1064, 1085, 1 L.Ed.2d 1356.

Despite its wide employment, we entertain grave doubts whether collaterial estoppel can be regarded as a constitutional requirement. Certainly this Court has never so held. However, we need not decide that question, for in this case, New Jersey both recognized the rule of collateral estoppel and considered its applicability to the facts of this case. The state court simply ruled that petitioner's previous acquittal did not give rise to such an estoppel because 'the trial of the first three indictments involved several questions, not just (petitioner's) identity, and there is no way of knowing upon which question the jury's verdict turned.' 21 N.J. at page 505, 122 A.2d at page 632. Possessing no such corrective power over state courts as we do over the federal courts, see Watts v. State of Indiana, 338 U.S. 49, 50, note 1, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801, we would not be justified in substituting a different view as to the basis of the jury's verdict.

It is of course true that when necessary to a proper determination of a claimed denial of constitutional rights this Court will examine the record in a state criminal trial and is not foreclosed by the conclusion of the state court. Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 328, 95 L.Ed. 267, 280; Feiner v. People of State of New York, 340 U.S. 315, 316, 71 S.Ct. 303, 304, 95 L.Ed. 267. But this practice has never been thought to permit us to overrule state courts on controverted or fairly debatable factual issues. 'On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts and are not open for reconsideration by this Court. Observance of this restriction in our review of State courts calls for the utmost scruple.' Watts v. State of Indiana, supra, 338 U.S. at pages 50 51, 69 S.Ct. at page 1348.

In this case we are being asked to go even further than to overrule a state court's findings on disputed factual issues. For we would have to embark on sheer speculation in order to decide that the jury's verdict at the earlier trial necessarily embraced a determination favorable to the petitioner on the issue of 'identity.' In numerous criminal cases both state and federal courts have declined to apply collateral estoppel because it was not possible to determine with certainty which issues were decided by the former general verdict of acquittal. See, e.g., People v. Rogers, 102 Misc. 437, 170 N.Y.S. 86; State v. Erwin, 101 Utah 365, 422-424, 120 P.2d 285, 312-313; United States v. Halbrook, D.C., 36 F.Supp. 345. Keeping in mind the fact that jury verdicts are sometimes inconsistent or irrational, see, e.g., Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356; United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, we cannot say that the New Jersey Supreme Court exceeded constitutionally permissible bounds in concluding that the jury might have acquitted petitioner at the earlier trial because it did not believe that the victims of the robbery had been put in fear, or that property had been taken from them, or for other reasons unrelated to the issue of 'identity.' For us to try to outguess the state court on this score would be wholly out of keeping with the proper discharge of our difficult and delicate responsibilities under the Fourteenth Amendment in determining whether a State has violated the Federal Constitution.

Finally, in the circumstances shown by this record, we cannot hold that petitioner was denied a 'speedy trial' on the Yager indictment, whatever may be the reach of the Sixth Amendment under the provisions of the Fourteenth. ^[6] And we need hardly add that the sufficiency of the evidence to support the identification of the petitioner as one of the Gay's Tavern robbers is a matter solely within the province of the state courts.

Affirmed.

Mr. Justice BRENNAN took no part in the consideration or decision of this case.

Mr. Chief Justice WARREN, dissenting.

Notes

1. Section 2:166-1 of the Revised Statutes of New Jersey, under which petitioner was indicted, provided:
2. Article I, par. 11, of the New Jersey Constitution provides in part that 'No person shall, after acquittal, be tried for the same offense.'
3. Indeed, the New Jersey Superior Court recognized this problem under the double jeopardy clanse of the State Constitution when it said in the present case: 'Assuredly our prosecutors are aware that the concept of double jeopardy is designed to prevent the government from unduly harassing an accused, and we are confident that they will not resort unfairly to multiple indictments and successive trials in order to accomplish indirectly that which the constitutional interdiction precludes.' 35 N.J.Super. at pages 561-562, 114 A.2d at page 577.
4. See also Horack, The Multiple Consequences of a Single Criminal Act, 21 Minn.L.Rev. 805; Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 513; Gershenson, Res Judicata in Successive Criminal Prosecutions, 24 Brooklyn L.Rev. 12.
5. The New Jersey Rules in force during 1952 provided:
6. The robbery at Gay's Tavern occurred on September 20, 1950. On September 23 or 24, 1950, petitioner absconded from parole in New York. He was arrested on November 20, 1950, and returned to prison in New York, where he remained until January 12, 1952, when he was transferred to the Bergen County jail in New Jersey. In the meantime, on June 26, 1951, the Bergen County grand jury returned indictments charging petitioner with the robberies of Cascio, Capezzuto and Galiardo. These were tried together, at petitioner's first trial, on May 26 and 27, 1952. Following his acquittal petitioner was returned to New York to complete his sentence, and he was in a New York prison on July 17, 1952, when the Bergen County grand jury returned the indictment charging him with the robbery of Yager. New Jersey reacquired petitioner by extradition on May 11, 1954. The second trial was held on October 18, 1954, at the next term of the Bergen County Court, which was not in session for criminal trials during the summer months. It thus appears that a substantial portion of the time elapsing prior to petitioner's trial on the Yager indictment can be accounted for by his incarceration in New York.