(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 interests of brevity, portions of any opinion may not have been summarized).
Argued March 25, 1996 -- Decided July 25, 1996
Handler, J., writing for a unanimous Court.
This appeal presents two issues: 1) whether a civil fine that specifically imposes a "penalty" and also
assesses an amount for reimbursing the government for its costs constitutes punishment under the Double
Jeopardy Clauses of the New Jersey and United States Constitutions; and 2) whether the failure of the
prosecutor to disclose to the grand jury exculpatory information warrants dismissal of all or part of the
criminal indictment against Eric Womack.
The Enforcement Bureau of the Division of Consumer Affairs, acting on a complaint it had received,
sent an agent to Womack's business, the "Christian Health Institute Wellness Center," to investigate whether
Womack was holding himself out as a medical doctor and practicing medicine without a license. The
investigator claimed to be a patient suffering from rectal bleeding. The investigator signed a disclaimer and
an authorization form and then submitted urine, hair and saliva samples. Womack introduced himself as "an
N.D., a Naturopathic Doctor." He examined the investigator, using rather unorthodox methods of diagnostics
and treatment.
Based on the investigator's report, the Attorney General's Office filed a civil complaint in the
Superior Court, Chancery Division, charging Eric Womack with the unlicensed practice of medicine in
violation of the Medical Practices Act. The Attorney General sought to enjoin Womack's activities and to
impose a civil sanction. Two days after the Attorney General filed a civil complaint, the Division of
Consumer Affairs filed a criminal complaint also charging Womack with the unauthorized practice of
medicine based on the same conduct.
The Attorney General obtained a civil injunction against Womack, whereby he was permitted to
continue operating the Wellness Center so long as he abided by certain restrictions and not practice
medicine. On November 16, 1993, the civil action was settled through a consent order entered by the
Superior Court, Chancery Division, pursuant to which Womack agreed to abide by the conditions of the
permanent injunction. Furthermore, Womack agreed to "pay to the State of New Jersey the sum of $5,000.00
in civil penalties and $3,554.07 in investigative costs, plus interest..."
One week after the civil action was settled, the Essex County prosecutor took Womack's criminal
case to a grand jury. The Enforcement Bureau investigator was the only witness called to testify before the
grand jury. On December 2, 1993, the grand jury returned an indictment charging Womack with one count
of practicing medicine without a license in the third degree.
Womack moved to dismiss the indictment, asserting that: 1) the prosecution was violative of the
Double Jeopardy Clause; and 2) that the prosecutor's actions before the grand jury amounted to misconduct
because the prosecutor misled the grand jury and failed to disclose certain exculpatory information. The trial
court agreed in part and dismissed the criminal indictment against Womack on double jeopardy grounds.
On appeal, the Appellate Division reversed the decision of the trial court, finding no double
jeopardy bar to the criminal prosecution. Nonetheless, the court dismissed, without prejudice, a portion of
the indictment because of the State's misconduct in failing to disclose to the grand jury information that
directly refuted the investigator's testimony.
The Supreme Court granted Womack's petition for certification and the State's cross-petition for
certification.
HELD: Because the language of the order imposing a civil fine on Eric Womack indicates that it may have
been intended to be punitive rather than remedial, a remand is required to permit the trial court to
determine the nature of the fine. If it is concluded that the civil fine has a punitive purpose, and the
State is unable to amend the civil judgment and return the punitive portion of that judgment to
Womack, the State will be barred by the Double Jeopardy Clause from prosecuting Womack for the
same conduct. In addition, that portion of the criminal indictment charging Womack with holding
himself out as a medical doctor is dismissed without prejudice because of the State's failure to
present clearly exculpatory evidence to the grand jury.
1. The protection under the Double Jeopardy Clause against multiple punishments may be implicated by a
civil penalty following a criminal penalty if the civil sanction is levied in a separate proceeding, is based on
the same conduct, and is punitive in nature. In determining whether a fine is punitive, courts should examine
whether the fine can be characterized as remedial or whether it serves as a deterrent or retribution. In
making that determination, courts must examine the purpose and intent of the sanction in question and its
impact. In this case, a plain reading of the civil consent decree, as well as the State's understanding of that
order, indicates that the civil fine may have been intended to be punitive. However, its purpose may have
been remedial because its impact does not appear to be punitive. (pp. 5-8)
2. Conclusive evidence of the purpose and intent of the parties at the time the fine was imposed cannot be
determined from this record. Although the civil sanction here is clearly not grossly disproportionate to the
costs the State has incurred in prosecuting this action, the record reflects sufficient ambiguity on the
intention of the parties in imposing the penalty to warrant remanding the action for a determination of
whether the intention of the fine was punitive. If on remand, it is clear that the intent of the State and the
court at the time the fine was imposed was to punish Womack, then double jeopardy would bar the criminal
prosecution. Nonetheless, the State may still be able to avoid the double jeopardy bar, if it can alter or
amend the consent judgment and return the punitive portion of the civil fine to Womack. Then the State
would no longer be barred from proceeding with the criminal action. (pp. 8-11)
3. Evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to
conclude that the State has not made out a prima facie case against the accused must be presented to the
grand jury. The evidence must directly negate guilt and be clearly exculpatory. The only exculpatory
evidence that must be submitted is evidence that: squarely refutes an element of the crime; is reliable within
the context of the evidence; and is within the actual knowledge of the prosecutor. The fact that Womack
may have informed the investigator through certain authorization forms that he was not a medical doctor
does not refute an element of the offense of engaging in the practice of medicine, but it is highly probative of
the charge of holding oneself out as a medical doctor. The evidence that Womack disclosed his professional
status as a doctor of naturopathy and not a medical doctor refutes a principal element of that charge.
Because that evidence was clearly exculpatory, highly reliable, and known by the prosecutor, that evidence
should have been submitted to the grand jury. The failure to do so requires dismissal of that portion of the
indictment. (pp. 11-16)
The State's motion to expand the record is denied, the judgment of the Appellate Division is
AFFIRMED IN PART and REVERSED IN PART, and the action is REMANDED to the Law Division for
proceedings consistent with this opinion.
JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, AND COLEMAN join in JUSTICE
HANDLER'S opinion.
SUPREME COURT OF NEW JERSEY
A-89/
146 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
ERIC WOMACK,
Defendant-Appellant
and Cross-Respondent.
Argued March 25, 1996 -- Decided July 25, 1996
On certification to the Superior Court,
Appellate Division.
Steven H. Gifis argued the cause for
appellant and cross-respondent (Mr. Gifis,
attorney; Mr. Gifis and Susan J. Abraham, on
the brief).
Jane Deaterly Plaisted, Assistant Prosecutor,
argued the cause for respondent and cross-appellant (Clifford J. Minor, Essex County
Prosecutor, attorney).
Bennett A. Barlyn, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Deborah T. Poritz,
Attorney General, attorney).
The opinion of the Court was delivered by
HANDLER, J.
The Enforcement Bureau of the Division of Consumer Affairs,
acting on a complaint it had received, sent an agent to
defendant's business to investigate whether defendant was holding
himself out as a medical doctor and practicing medicine without a
license. Based on the evidence obtained by the investigator, the
Attorney General filed a civil action seeking to enjoin
defendant's activities and to impose a civil sanction. The
Division of Consumer Affairs also filed a criminal complaint.
This appeal presents two issues: (1) whether a civil fine
that specifically imposes a "penalty" and also assesses an amount
for reimbursing the government for its costs constitutes
punishment under the Double Jeopardy Clauses of the New Jersey
and the United States Constitutions; and (2) whether the failure
of the prosecutor to disclose to the grand jury exculpatory
information warrants dismissal of all or part of the criminal
indictment.
On May 18, 1993, based on a complaint, an undercover investigator employed by the Enforcement Bureau of the Division of Consumer Affairs, visited the "Christian Health Institute and Wellness Center" to undertake an investigation of defendant Eric Womack. The agent professed to be a patient. After signing a disclaimer and an authorization form, and submitting urine, hair, and saliva samples, the agent was led into an examination room where he met defendant. The investigator informed defendant, who
introduced himself as "an N.D.," a Naturopathic Doctor, that he
had rectal bleeding.
Defendant examined and diagnosed the investigator. He poked
the agent in the stomach with a pencil and simultaneously pushed
down on the agent's outstretched arms. He shined a light in the
investigator's eyes and electrically shocked his stomach. Using
an instrument that looked and operated exactly like a ball point
pen, defendant stung the agent's hand. From those tests,
defendant concluded that the investigator had a clogged colon,
weak kidneys, and aluminum in his body. Defendant warned the
investigator that those conditions could lead to rectal cancer,
and he advised him to schedule another visit. Defendant charged
the investigator $300 for this visit.
During the follow-up visit, defendant advised the
investigator that he needed to watch his diet if he hoped to
unclog his colon and stop the rectal bleeding. Specifically,
defendant recommended that the agent stop ingesting toxins and
take certain vitamins and dietary supplements. The investigator
purchased three of the $265 worth of recommended dietary
products: "Temple Inner Cleanser," "Swedish Elixir," and "Agape
Formula #1."
Based on the investigator's report, the Attorney General's
office filed a civil complaint in the Superior Court, Chancery
Division, charging Eric Womack with the unlicensed practice of
medicine in violation of the Medical Practices Act, N.J.S.A.
45:9-18 and -22. Two days after the Attorney General filed the
civil complaint, the Division of Consumer Affairs filed a
criminal complaint also charging defendant with the unauthorized
practice of medicine based on the same conduct.
The Attorney General sought and obtained in the civil action
an injunction against defendant, pursuant to N.J.S.A. 45:1-25,
whereby defendant was permitted to continue operating the
Wellness Center so long as he abided by certain restrictions and
not practice medicine. On November 16, 1993, the civil action
was settled through a consent order entered by the Superior
Court, Chancery Division, and pursuant to which defendant agreed
to abide by the conditions of the permanent injunction.
Furthermore, defendant agreed to "pay to the State of New Jersey
the sum of $5,000.00 in civil penalties and $3,554.07 in
investigative costs, plus interest . . . ."
One week after the civil action was settled, the Essex
County prosecutor took defendant's criminal case to a grand jury.
The Enforcement Bureau investigator was the only witness called
to testify, but his testimony was sufficient. On December 2,
1993, the grand jury returned an indictment charging defendant
with one count of practicing medicine without a license in the
third degree. N.J.S.A. 2C:21-20.
Prior to trial on the criminal indictment, defendant moved
to dismiss the indictment. He asserted that the prosecution was
violative of the Double Jeopardy Clause and he also alleged that
the prosecutor's actions before the grand jury amounted to
misconduct because the prosecutor misled the grand jury and
failed to disclose certain information helpful to defendant. The
Superior Court, Law Division agreed in part and dismissed the
criminal indictment against defendant on double jeopardy grounds.
The Appellate Division reversed finding no double jeopardy bar to
the prosecution, but it dismissed without prejudice part of the
indictment because of the State's misconduct in failing to
disclose to the grand jury information that directly refuted the
investigator's testimony. Defendant appealed and the State
cross-appealed from the Appellate Division's ruling. This Court
granted the petition,
142 N.J. 515 (1995), and the cross-petition,
143 N.J. 330 (1996), for certification.
The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution protects against three harms: re-prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and 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). Although the language of the New Jersey Constitution simply provides that "No person shall, after acquittal, be tried for the same offense," N.J. Const. art. I, ¶ 11, this protection is at a minimum co-extensive with that of the United States Constitution. State v. Churchdale Leasing, Inc., 115 N.J. 83, 107-08 (1989).
The protection against multiple punishments may be
implicated by a civil penalty following a criminal penalty if the
civil sanction is levied in a separate proceeding, is based on
the same conduct, and is punitive in nature. In weighing whether
a civil fine is punitive, courts are directed to examine whether
the fine can "fairly be characterized as remedial" or whether the
fine serves "as a deterrent or retribution." United States v.
Halper,
490 U.S. 435, 449,
109 S. Ct. 1892, 1902,
104 L. Ed.2d 487, 502 (1989). In making that determination, courts must
examine the "purposes actually served by the sanction in
question." Id. at 447 n.7, 109 S. Ct. at 1901 n.7, 104 L. Ed.
2d
at 501 n.7. They must also consider its impact. Doe v. Poritz,
142 N.J. 1, 46 (1995).
The purposes served by the civil sanction can be determined
directly or indirectly. Sometimes, the purposes of the civil
sanction can be determined indirectly by simply examining the
fine levied. A fine that is overwhelmingly disproportionate to
the damages the defendant has caused and the costs the State has
incurred in prosecuting the action can be understood only as
serving the punitive goals of deterrence and retribution.
Halper, supra, 490 U.S. at 449, 109 S. Ct. at 1902, 104 L. Ed.
2d
at 502; Merin v. Maglaki,
126 N.J. 430, 440-46 (1992). In other
circumstances, however, the purposes of the civil sanction may be
understood by the language and terms of the sanction itself and
the expressed or revealed intentions of the parties in imposing
the fine. A civil sanction that is imposed for punitive
purposes, understood by the parties as being punitive, and is
clear on its face that it is punitive, will be considered to be
punitive even when the fine is not grossly disproportionate to
the damages caused. See Poritz, supra, 142 N.J. at 54 ("[T]he
purpose and the intent of the civil sanction is the touchstone
that determines the sanction's characterization as either
remedial or punitive, rather than simply its impact."); cf.
Halper, supra, 490 U.S. at 448 n.8, 109 S. Ct. at 1902 n.8, 104
L. Ed.
2d at 501 n.8 ("As the name indicates, punitive damages,
available in civil cases, serve punitive goals."); Poritz, supra,
142 N.J. at 46 (finding that a law is held to impose punishment
if either the legislature intended it to impose punishment or the
impact of the legislative sanction is punitive).
A plain reading of the civil consent decree indicates that
the civil fine may have been intended to be punitive. The civil
fine assessed against Womack differentiated between penalties and
costs. It included an amount of "civil penalties" and an amount
of "investigative costs." A rational understanding of the phrase
"civil penalties," when contrasted with the term "investigative
costs," is that the sanction is an amount levied as a punitive
fine separate from that necessary to reimburse the State.
Furthermore, the record indicates that the State understood,
and therefore intended, the fine to be punitive. Although the
prosecutor's concession at oral argument below that the fine was
punitive is not dispositive of the issue, the concession
indicates that, at the very least, the prosecutor understood the
sanction to have a punitive purpose.
On the other hand, the amount of the fine indicates that the
purpose may have been merely remedial. Its impact, as such, does
not appear to be punitive. Certainly, had the civil penalty been
imposed as a single and indivisible lump-sum fine, and not been
divided into two parts labelled "civil penalty" and
"investigative costs," upon an appropriate showing by the State,
the Halper standard would support a finding that the fine was
simply remedial in nature. As the State points out, the total
amount assessed against defendant was less than the full costs of
prosecuting the action. No further examination of the actual
costs underlying the action is even necessary given the fact that
the fine does not approach the grossly disproportionate level and
is rationally related to the costs necessary to compensate the
State. Merin v. Maglaki, supra, 126 N.J. at 444-45. However, if
the fine when levied was intended as a civil penalty with both
remedial and punitive aspects, as the plain language indicates,
then the fact that the State could have legitimately assessed an
equal or greater amount as costs of prosecution is not material.
A post-hoc explanation does not alter the nature or purpose of
the fine when imposed.
Conclusive evidence of the purpose and intent of the parties
at the time the fine was imposed cannot be gleaned from the
current record. Although the civil sanction here is clearly not
grossly disproportionate to the costs the State has incurred in
prosecuting this action, the record reflects sufficient ambiguity
on the intention of the parties in imposing the penalty to
warrant remanding the action for a determination of whether the
intention of the fine was punitive. See Halper, supra, 490 U.S.
at 450, 109 S. Ct. at 1902-03, 104 L. Ed.
2d at 502-03 (remanding
to permit trial court to determine the size of a remedial civil
sanction); State v. Ciba-Geigy Corp.,
253 N.J. Super. 51, 60
(App. Div. 1992) (same). If it is clear that the intent of the
State and the court at the time the fine was imposed was to
punish defendant, then double jeopardy would bar this criminal
action.
The State argues that even if the civil fine was punitive
there is no bar to this action because the Double Jeopardy Clause
bars only civil prosecutions after criminal penalties, not
criminal prosecutions after civil penalties. Halper itself was
concerned only with a civil penalty following a criminal trial.
The United States Supreme Court has not decided this issue. See
United States v. Ursery, ___ U.S. ___, ___ n.1, ___ S. Ct. ___,
___ n.1, ___ L. Ed.2d ___, ___ n.1 (1996). We, however, add our
voice to the weight of authorities in determining that the order
of the prosecutions is not material. See, e.g., United States v.
Ursery,
59 F.3d 568, 571-75 (6th Cir. 1995), rev'd on other
grounds, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed.2d ___ (1996);
United States v. Furlett,
974 F.2d 839, 843 n.2 (7th Cir. 1992);
United States v. Sanchez-Escareno,
950 F.2d 193, 200 (5th Cir.
1991), cert. denied,
506 U.S. 841,
113 S. Ct. 123,
121 L. Ed 2d
78 (1992); United States v. Walker,
940 F.2d 442 (9th Cir. 1991);
United States v. Bizzell,
921 F.2d 263 (10th Cir. 1990); United
States v. Mayers,
897 F.2d 1126, 1127 (11th Cir.), cert. denied,
498 U.S. 879,
111 S. Ct. 178,
112 L. Ed.2d 142 (1990); United
States v. Marcus Schloss & Co.,
724 F. Supp. 1123 (S.D.N.Y.
1989).
In any event, even if the remand establishes that the
penalty imposed on defendant was intended to be punitive, the
State may still be able to avoid the double jeopardy bar. The
State, if it can return the punitive portion of the civil fine,
would no longer be barred from proceeding with the criminal
action. Even if we were to determine that the $5,000 was a
punitive fine, we could not now vacate the civil award because
the civil action is not properly before us. Depending on the
results of the remand, the State may seek to reconsider the
$5,000 penalty imposed in the civil action. If the State is able
to return to the trial court that entered the judgment and alter
or amend the consent judgment so as to eliminate the punitive
portion of the civil penalty and if the State returns that
portion to defendant, the double jeopardy bar to this action
would be lifted.
The rules governing civil practice provide a mechanism
whereby a party may be relieved from a final judgment or order
for "any . . . reason justifying relief from the operation of the
judgment or order." R. 4:50-1(f). A motion made pursuant to
this rule must be made within a reasonable time, but no specific
limit is placed on when it may be brought. R. 4:50-2. Although
the boundaries of this doctrine are "as expansive as the need to
achieve equity and justice," the application of this rule is
limited to "exceptional situations." Court Inv. Co. v. Perillo,
48 N.J. 334, 341 (1966); see also Housing Auth. v. Little,
135 N.J. 274, 289 (1994) ("[T]he Rule is designed to provide relief
from judgments in situations in which, were it not applied, a
grave injustice would occur."). This may well constitute an
exceptional circumstance, although that determination is left to
the sound discretion of the trial court. See Perillo, supra, 48
N.J. at 341.
In sum, the language of the order imposing the fine on
defendant indicates that the fine may have been intended to be
punitive in nature. A remand is required to permit the trial
court to determine whether the fine was punitive or remedial.
However, no further exploration of the total investigative costs
is necessary and therefore the State's motion to expand the
record on appeal to support that assertion is denied.
If the civil fine is found to have a punitive purpose, and
the State is unable to amend the civil judgment and return the
punitive portion of that judgment to defendant, the State will be
barred by the Double Jeopardy Clause from subjecting defendant to
a criminal prosecution for this same conduct.
Because the State may be able to correct the double jeopardy
problem, we take this opportunity to address the second issue in
this action -- whether the indictment should be dismissed due to
the prosecutor's actions before the grand jury in not disclosing
certain information.
On November 23, 1993, the State sought to indict Womack for
the unauthorized practice of medicine. The investigator was the
sole witness before the grand jury. His testimony was inaccurate
and incomplete. First, he testified that defendant prescribed
vitamins, dietary supplements, and "things of that nature" to
him. In fact, defendant did not issue him a prescription;
rather, defendant recommended he purchase several over-the-counter items. Second, in response to a grand juror's question
about whether defendant held any professional degrees or even a
bachelor of arts degree, the investigator testified that to his
knowledge defendant did not have any. Defendant not only has a
bachelor's degree in religion, he has also received a Doctor of
Divinity degree and a Doctor of Theology degree.
In addition to complaining about how the investigator
misinformed the grand jury, defendant also complains that the
prosecutor failed to present certain exculpatory information to
the jurors. Defendant argues that the grand jury should have
been informed that the agent was aware that defendant was not a
medical doctor. The investigator signed an authorization form
regarding "The Status Of Dr. Eric Womack, N.D." That form noted
that defendant was a "naturopath" whose teachings were not "for
the purpose of Diagnosing, mitigating, treating or caring for
disease." Indeed, the form stated that diagnosis "of any kind
for any disease" is not covered by defendant's practice. The
agent was advised that he was "not to act on [Womack's] advice"
until he was examined by a licensed medical doctor. Moreover,
the forms stated that the service provided "is not a substitute
for medical treatment" and is "not yet approved by the medical
profession." The investigator agreed to "always seek medical
advise [sic] for medical treatment."
We recently had the opportunity to determine when a
prosecutor is required to submit exculpatory information to a
grand jury. In State v. Hogan,
144 N.J. 216 (1996), the Court
was faced with a situation in which the sole witness to a crime
recanted and then reinstated her account. The prosecutor refused
defendant's request to inform the grand jury about the
recantation. Noting that a grand jury "'indictment should be
disturbed only on the clearest and plainest ground,'" id. at 228
(quoting State v. Perry,
124 N.J. 128, 168 (1991)) (internal
quotation omitted), the Court ruled that "the State may not
deceive the grand jury or present its evidence in a way that is
tantamount to telling the grand jury a 'half-truth.'" Id. at
236. Therefore, "evidence that is credible, material, and so
clearly exculpatory as to induce a rational grand juror to
conclude that the State has not made out a prima facie case
against the accused" must be presented to the grand jury. Ibid.
The evidence "must directly negate guilt and also be clearly
exculpatory." Id. at 237. Thus, the only evidence that need be
submitted is evidence that "squarely refutes an element of the
crime in question" and is reliable within the context of the
evidence. Ibid. In addition, the prosecutor must have actual
knowledge of the clearly exculpatory evidence. Id. at 238. The
recantation was held to be unreliable and not clearly
exculpatory. Id. at 239-40.
Under these rigorous standards, much of the information
complained of did not have to be submitted to the grand jury.
There is no evidence that the prosecutor knew that Womack had two
doctorate degrees and, therefore, we need not consider whether
that information was clearly exculpatory and negates an element
of the offense. Although there is evidence that the prosecutor
knew Womack was a naturopath who was educated in Washington
State, this information is not clearly exculpatory. Although
imprecise, the investigator's testimony that defendant prescribed
him dietary supplements is not clearly misleading; even
suggesting taking vitamins and dietary supplements can, in
certain circumstances, constitute the practice of medicine.
More difficult is the claim that the prosecutor was required
to inform the grand jury that the investigator viewed documents
indicating defendant was not a medical doctor. Defendant was
charged with one count of practicing medicine without a license
in the third degree. The statute provides that one is guilty of
the offense when the person does not possess a medical license
and either "engages in that practice," N.J.S.A. 2C:21-20a, or
"holds himself out to the public or any person as being eligible
to engage in that practice." N.J.S.A. 2C:21-20c. Defendant was
charged with both alternative portions of the statute.
The fact that defendant may have informed the investigator
through the authorization forms that he was not a medical doctor
does not refute any element of the offense of engaging in the
practice of medicine. If defendant was engaging in the practice
of medicine, the fact that he may have told the investigator that
he was not a medical doctor is simply immaterial.
That evidence, however, is highly probative on the
alternative basis of the charge -- holding oneself out as a
medical doctor. The evidence that defendant disclosed his
professional status as a doctor of naturopathy and not a medical
doctor flatly contradicts the principal element of that charge.
Furthermore, the evidence, which was clearly known to the
principle investigating agent, is properly considered to be
within the knowledge of the prosecutor. See Kyles v. Whitley,
___ U.S. ___, ___,
115 S. Ct. 1555, 1567-68,
131 L. Ed.2d 490,
508-09 (1995) (imputing knowledge to prosecutor of Brady material
known by police officer); State v. Landano,
271 N.J. Super. 1, 37
(App. Div.), certif. denied,
137 N.J. 164 (1994); State v. Engel,
249 N.J. Super. 336, 396 (App. Div.), certif. denied,
130 N.J. 393 (1991). Because the evidence was clearly exculpatory, highly
reliable, and known by the prosecutor, that evidence should have
been submitted to the grand jury. The failure to do so requires
dismissal of that portion of the indictment.
In sum, defendant cannot currently be tried on the criminal indictment in this action because of the potential double jeopardy bar derived from the civil penalty levied against him for the same conduct. If the State cures the double jeopardy bar, by either prevailing in the remanded proceeding or by revising the civil judgment and returning the punitive portion of civil fine, the criminal trial of defendant may proceed. However, the portion of the indictment charging defendant with holding himself out as a medical doctor is dismissed without prejudice because of the State's failure to present clearly exculpatory evidence to the grand jury.
The State's motion to expand the record is denied, the judgment of the Appellate Division is affirmed in part and reversed in part, and the action is remanded to the Law Division for proceedings consistent with this opinion.
JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, AND COLEMAN join in JUSTICE HANDLER'S opinion.
NO. A-89/146 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
ERIC WOMACK,
Defendant-Appellant
and Cross-Respondent.
DECIDED July 25, 1996
Justice Handler PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY