RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. Submitted October 7, 2015 Decided

Transcription

1 STATE OF NEW JERSEY IN THE INTEREST OF A.B. RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Submitted October 7, 2015 Decided February 3, 2016 PER CURIAM Before Judges Alvarez and Ostrer. On appeal from an interlocutory order of the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ James P. McClain, Atlantic County Prosecutor, attorney for appellant State of New Jersey (Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, attorney for respondent A.B. (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). By leave granted, the State appeals from the Family Part's January 8, 2015 order barring the State from filing a juvenile delinquency complaint charging A.B. with what would have been disorderly persons possession of marijuana under fifty grams, N.J.S.A. 2C:35-10(a), had it been committed by an adult. The State had previously filed a complaint charging disorderly persons possession of drug paraphernalia, N.J.S.A. 2C:36-2. The

2 State also appeals from the court's February 25, 2015 order denying the State's motion for reconsideration. The court concluded that the State's proposed prosecution of the possession charge was vindictive. We disagree and reverse. I. The proposed complaint pertains to an incident that occurred on September 11, 2014, at a high school in Atlantic County. The school's security officer executed a complaint charging that A.B., then sixteen years old, possessed drug paraphernalia specifically, a gas mask allegedly used to inhale marijuana. The complaint was filed with the court on October 7, At a conference on December 4, 2014, the prosecutor stated that the gas mask "smelled like burnt marijuana." The State alleged the gas mask contained marijuana residue as well. The defense therefore requested a laboratory test of the gas mask to ascertain the presence of marijuana residue. The State consented. The court adjourned the case to January 6, 2015, for a pretrial conference. Counsel anticipated the lab test would be completed by that time. The court received the lab test in mid-december, and forwarded it to the prosecutor's office, which received it on 2

3 Friday, January 2, The test indicated the mask contained a trace amount of marijuana. A.B. next appeared in court on January 8, 2015, having failed to appear as scheduled on January 6, At the outset, defense counsel informed the court that A.B. intended to plead guilty. In return, the State would recommend probation, to run concurrent to any disposition of any violation of probation. A.B. would also have to submit to a substance abuse evaluation, and comply with any recommendations that followed. Defense counsel was unable to elicit a sufficient factual basis from A.B. to sustain the plea. He contended he was unaware the gas mask was used to smoke marijuana, as opposed to tobacco. Defense counsel then interrupted the allocution to confer with A.B. Counsel thereafter informed the court that the juvenile wanted to go to trial. The court conferenced the case and scheduled trial for February 25, The court adjourned at 10:40 a.m. However, a minute later, at the prosecutor's request, the proceedings resumed. At that point, the prosecutor notified defense counsel that the State intended to file a complaint charging A.B. with 1 A bench warrant was issued. It is unclear whether A.B. voluntarily appeared on January 8, or was arrested. 3

4 possession of marijuana of less than fifty grams. Also, the State intended to call an expert at trial. The court asked the prosecutor why the State did not charge A.B. with possession initially. The prosecutor responded that the State did not have the lab report, and the officer initially lacked probable cause to charge possession. The prosecutor noted that the lab report was dated December 16, but she was unaware when her office actually received it. The court rejected the State's explanation. The judge stated the officer had probable cause from the outset, because a gas mask was found with supposed marijuana residue. The court also assumed the State had received the lab report in December. The judge asserted that A.B.'s request for a trial prompted the possession charge: It's now January 8th and I have an individual here that wants to have his right to a trial and now there's a new charge being filed. I have a real problem with that process. You can call your expert, [and] if you want to [you can] make a formal motion to try to file the new charges, but at this point, in this [c]ourt's opinion, this constitutes piling on charges of offenses that the State was aware of at the time[,] and the only reason that this charge is being brought up is because [A.B.] has rightfully decided to proceed to trial. 4

5 On January 9, 2015, the court entered the order "precluding" the filing of the complaint charging possession. The State filed a motion for reconsideration, which the court heard on February 25, A different prosecutor appeared on behalf of the State. The State contended that the State's broad prosecutorial discretion entitled it to file the new charge. The State was not obliged to bring all potential charges in its initial complaint. Rather, the State was entitled to postpone filing a charge for various reasons, including uncertainty about its proofs. Although the prosecutor conceded the State had probable cause to charge possession at the outset, he contended the State was unable to prove guilt beyond a reasonable doubt until it received the lab report. The State argued that a presumption of vindictiveness did not arise from the timing of the State's decision to file the possession charge, which was after A.B. decided to go to trial on the drug paraphernalia charge. The State contended the defense had failed to present evidence of actual vindictiveness. Consequently, the State should not be barred from filing the new charge. 2 We presume the State did not submit factual certifications, as none are included in the record before us. 5

6 The defense argued that once the juvenile decided to go to trial, the State's effort to file enhanced charges triggered a presumption of vindictiveness. The defense sought to distinguish United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982), which rejected a presumption of vindictiveness in the pretrial setting, when a prosecutor's assessment of a case "may not have crystallized." Id. at 381, 102 S. Ct. at 2493, 73 L. Ed. 2d at 85. The defense argued the State's assessment had "crystallized" before A.B.'s case was scheduled for trial. The defense also contended that A.B. was not afforded the chance to make an "informed decision" regarding a plea, because he was unaware of the new charge until after he sought a trial. On the other hand, defense counsel conceded that, unlike in adult court, there was no plea cutoff in juvenile delinquency proceedings. The court reviewed the parties' respective arguments. The judge also highlighted that the State did not seek the possession charge during the five business days it possessed the lab report, including the day the prosecutor received it and the day she announced its intention to add a charge until after A.B. sought a trial. The judge stated, "The [c]ourt finds it implausible that if it was so important and of such significance to the State to file a new charge for possession of marijuana 6

7 there was no reason why it couldn't have been filed on Monday, January 5th." The judge noted that no charge was proposed immediately thereafter, nor was one raised as a threat in plea negotiation on January 8, 2015, or before. The court also noted that the Supreme Court, in Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978), declined to find that such threats triggered a presumption of vindictiveness. The court reiterated its view that the State could have filed the possession charge simultaneously with the drug paraphernalia charge, noting that the prosecutor who appeared on the reconsideration motion conceded that probable cause existed. The judge ultimately did not find that the State's actions triggered a presumption of vindictiveness. Rather, the judge found that the defense had met its affirmative burden to prove actual vindictiveness: Now that this application has been made and the [c]ourt has had an opportunity to analyze this in greater detail, the... [c]ourt finds that the affirmative burden of the [d]efendant has been established and that the reason for the filing of the charge was, in fact, a vindictive prosecution. And a vindictive prosecution because this [d]efendant rightfully expressed his desire to have a fair trial in this tribunal and that the only reason that the [c]ourt can find on the record that this charge was filed in looking at the totality of the circumstances and looking at the method and 7

8 the manner in which this was done was that, for whatever reason the State felt that they wanted to file this charge after the fact, and only after he exerted his right to a trial. The State had ample opportunity to file the charge within a sufficient time before trial.... At no time during those days was there any give-and-take, was there any discussion of the filing of a new charge.... The crystallization event... occurred at the receipt of the lab report. The only nexus to the new charge in this case or the timing of the filing of the new charge is the nexus between this [d]efendant's lawful right to assert his right to a trial. On appeal, the State presents the following points for our review: II. THE TRIAL COURT'S ORDER PREVENTED THE STATE FROM EXERCISING ITS PROSECUTORIAL DISCRETION TO BRING CHARGES OF ITS CHOOSING BASED UPON PROBABLE CAUSE. 3 III. WHETHER THE STATE HAD PROBABLE CAUSE TO BRING THE NEW CHARGE WHEN THE COMPLAINT WAS ORIGINALLY SIGNED IS IRRELEVANT AND DOES NOT PRECLUDE THE STATE FROM CHARGING IT LATER. THE COURT INCORRECTLY PRESUMED PREJUDICE ON THE JUVENILE'S BEHALF, AND THE JUVENILE MADE NO SUCH SHOWING. IV. THE TRIAL COURT INCORRECTLY PRESUMED VINDICTIVENESS IN THE STATE'S DECISION TO FILE THE NEW CHARGE, IMPERMISSIBLY SHIFTING THE BURDEN OF PROOF. 3 The State's first numbered point pertained to the need for interlocutory review. 8

9 MOREOVER, THERE WAS NO EVIDENCE SUPPORTING SUCH A CONCLUSION. II. A. We first address our standard of review. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). On the other hand, we defer to a trial court's factual findings, if supported by adequate, credible evidence in the record as a whole. State v. Elders, 192 N.J. 224, (2007); State v. Johnson, 42 N.J. 146, (1964). We do so because "those findings of the trial judge... are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 161). Even where a trial court has conducted an evidentiary hearing on the subject of prosecutorial vindictiveness, we have declined to defer to the trial court's assessment, where it does not rely on credibility determinations. State v. Gomez, 341 N.J. Super. 560, 577 (App. Div.), certif. denied, 170 N.J. 86 (2001). As we discuss in greater detail below, we held in Gomez that the trial court erred when it applied a presumption of 9

10 vindictiveness at a pretrial stage, and placed the burden on the State to overcome the presumption. Id. at 578. After conducting an evidentiary hearing, at which two prosecutors and an investigator testified, the trial court found that the State did not meet its burden. Id. at 577. We held we were "not bound by the determination of the trial judge that the State presented insufficient proof to overcome a presumption of vindictiveness, assuming the presumption properly applied." Ibid. In this case, the trial court did not conduct a formal evidentiary hearing. Neither the State nor the defense called witnesses, or provided proofs through certifications. See R. 1:6-6. The court briefly questioned the prosecutor on January 8 as to why she did not seek to file the possession charge before A.B. sought a trial. However, that falls far short of an evidentiary hearing at which the parties have called and questioned witnesses. 4 B. The United States Supreme Court has recognized that a state may not retaliate against a defendant for exercising a legal 4 We do not address here the prerequisite showing to warrant an evidentiary hearing. Rather, we focus on the fact that in the absence of such a hearing, the trial court's determination is not entitled to deference. 10

11 right such as filing an appeal by pursuing enhanced charges upon retrial. See Blackledge v. Perry, 417 U.S. 21, 28, 94 S. Ct. 2098, 2102, 40 L. Ed. 2d 628, 634 (1974). Such retaliation is a violation of due process. Id. at 28-29, 94 S. Ct. at 2103, 40 L. Ed. 2d at 635. Mindful of the difficulty of proving retaliatory intent, the Court held that the "realistic likelihood of 'vindictiveness'" in such cases placed the burden on the State to overcome a presumption of vindictiveness. Id. at 27, 94 S. Ct. at 2102, 40 L. Ed. 2d at 634. However, the Supreme Court declined to apply this presumption in the pretrial setting. Thus, in Bordenkircher, supra, 434 U.S. at , 98 S. Ct. at , 54 L. Ed. 2d , the Supreme Court held that in the give and take of plea negotiations, a prosecutor may threaten to seek additional charges that would significantly increase the defendant's potential punishment, if the defendant declines to accept a plea offer. In Goodwin, supra, 457 U.S. at 370, 102 S. Ct. at 2487, 73 L. Ed. 2d at 79, a defendant was charged with various misdemeanors. Rather than accept a bench trial before a federal magistrate, the defendant sought a jury trial before a federal district court judge. Id. at 371, 102 S. Ct. at 2487, 73 L. Ed. 2d at 79. The case was transferred to a different prosecutor 11

12 who reviewed the file, which included new evidence reflecting the aggravated nature of the defendant's conduct. Ibid. The prosecutor decided to seek felony charges. Ibid. The Court held that no presumption of vindictiveness was triggered at the pretrial stage, when the prosecutor's assessment of a case has not "crystallized": There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins -- and certainly by the time a conviction has been obtained -- it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision. [Id. at 381, 102 S. Ct. at , 73 L. Ed. 2d at 85.] The Court also noted that defendants invoke numerous pretrial rights, and it was unrealistic to presume a prosecutor 12

13 is motivated by vindictiveness if enhanced charges are sought following the exercise of one of those rights. In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some "burden" on the prosecutor. Defense counsel routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an affirmative defense; to request psychiatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter. The invocation of procedural rights is an integral part of the adversary process in which our criminal justice system operates. Thus, the timing of the prosecutor's action in this case suggests that a presumption of vindictiveness is not warranted. [Id. at 381, 102 S. Ct. at 2493, 73 L. Ed. 2d at ] The Court concluded, "A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct." Id. at 382, 102 S. Ct. at 2493, 73 L. Ed. 2d at 86. The Court did not "foreclose the possibility that a defendant in an appropriate case might prove objectively that the prosecutor's decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do." Id. at 384, 102 S. Ct. at 2494, 73 L. Ed. 2d at

14 In Gomez, supra, 341 N.J. Super. at 575, we applied the principles of Bordenkircher and Goodwin, and concluded there was no presumption of vindictiveness in the pretrial setting. The defendant in Gomez was charged with third-degree hindering apprehension arising out of her actions after striking and killing one pedestrian and injuring another. Id. at 564. After she was denied pretrial intervention, in part because of a prior conviction, she successfully petitioned for post-conviction relief from the prior conviction, and renewed her request for PTI, which was denied again. Id. at Thereafter, the State sought a superseding indictment charging the defendant with second-degree death by auto. Id. at 566. Notably, in its initial grand jury presentment, the State sought the second-degree charge, but the grand jury returned a partial no bill on that charge. Id. at In its second try, the State presented new evidence, including expert testimony and a demonstration at the accident scene, which challenged the defendant's claim that she did not see the pedestrians, or even know that she struck pedestrians, before she drove away from the scene. Id. at The trial judge held that the State's actions triggered a presumption of vindictiveness and placed the burden on the State to overcome the presumption. Id. at At the evidentiary 14

15 hearing, a prosecutor testified that the decision to seek second-degree charges was not motivated by vindictiveness. Id. at Rather, it was motivated by a sense that the case in which a man was killed was "underindicted." Id. at 569. The State began its search for additional evidence before the defendant prevailed in her PCR. Id. at 570. The State also consistently desired that defendant be exposed to a term of incarceration. Id. at The third-degree charge no longer posed that threat once the PCR was granted, because the defendant then enjoyed the presumption of non-incarceration of someone without a prior conviction. Id. at 566. After the evidentiary hearing, the trial court found that the presumption of vindictiveness had not been overcome. Id. at We reversed the application of the presumption, and the court's finding that the presumption was not rebutted, even assuming the presumption applied. Id. at We held that a prosecutor's action violates a defendant's due process rights only when it is motivated solely by retaliation. Id. at 575. In reviewing the trial court's finding, we concluded that the trial court drew inappropriate inferences from the prosecution's actions. Id. at We held there was a sufficient showing of non-vindictive action based on the additional investigation and proofs, the prosecutor's testimony 15

16 that the case was undercharged, and the fact that the defendant did not face appropriate penal consequences. Ibid. C. The State contends that the trial court erred by applying the presumption of vindictiveness to its pretrial charging decision. We recognize that the defense argued that the presumption of vindictiveness should apply, notwithstanding Bordenkircher, Goodwin, and Gomez. However, we need not address the argument because the trial court ultimately did not apply the presumption. Rather, the court placed the burden on the juvenile to establish actual vindictiveness. We part company with the trial court in its determination that the defense met its affirmative burden to prove actual vindictiveness. As in Gomez, we are not bound by the trial court's decision, particularly inasmuch as it did not rely on credibility determinations reached after an evidentiary hearing. We conclude that the trial court placed undue emphasis on the timing of the State's decision, and the point at which the prosecution acquired probable cause to charge possession at the outset. We also conclude that the court placed inadequate weight on the non-vindictive reasons for the State's pursuit of the possession charge. See State v. Aguirre, 287 N.J. Super. 128, 132 (App. Div.) ("[T]he prosecution often has perfectly 16

17 legitimate reasons for delaying an indictment, such as to gather additional evidence against the accused or to broaden the investigation."), certif. denied, 144 N.J. 585 (1996). The State argues persuasively that it should not be rushed to file charges it cannot prove, simply because probable cause may exist. "Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt." United States v. Lovasco, 431 U.S. 783, 791, 97 S. Ct. 2044, 2049, 53 L. Ed. 2d 752, 760 (1977). Absent the lab report, the State would have been hardpressed to satisfy its burden of proof. The fact that the prosecutor did not swiftly file the possession charge in the brief period between receipt of the lab report, and A.B.'s plea hearing, is also not compelling evidence of vindictiveness. Only five business days passed. It is reasonable to conclude that the State was not yet prepared to move toward trial. The State had reason to believe the case could be resolved by a plea, with a conviction of a disorderly persons offense and a term of probation and substance abuse evaluation and treatment. Moreover, A.B.'s failure to provide a sufficient factual basis presumably came as a surprise to the State as well as 17

18 defense counsel. The juvenile's unanticipated decision to go to trial forced the prosecution to reevaluate its strategy and review its proofs for the impending trial. The lab report would surely be used to establish the drug paraphernalia charge. However, it was also compelling evidence, which the State lacked previously, of possession of marijuana. The juvenile's abrupt plea rejection and the delay in receiving the lab report present a sufficiently objective change in pretrial circumstances to preclude a finding of actual vindictiveness by the State. Furthermore, the timing of the State's decision did not preclude A.B. from participating in the give-and-take of plea negotiation. Although the charge was not included in the mix before the juvenile entered the plea agreement that ultimately faltered, nothing prevented a resumption of plea discussions, assuming the juvenile reconsidered his factual assertions. In sum, we are not persuaded that the record supports the court's conclusion that the defense established that prosecutorial vindictiveness was the sole motivation for the State's decision to seek a possession charge. Reversed. 18