State v. Marti , 143 N.H. 608 ( 1999 )

BROCK, C.J.

The defendant, Antonio Marti, was convicted in Superior Court (Fitzgerald, J.) on 106 indictments for aggravated felonious sexual assault. See RSA 632-A-.2 (1986 & Supp. 1991) (amended 1992, 1994, 1995, 1997, 1998). We reverse in part, vacate in part, and remand.

In 1994, the defendant was tried on three indictments for aggravated felonious sexual assault, each alleging a separate act of anal intercourse with his daughter. See State v. Marti, 140 N.H. 692, 693, 672 A.2d 709, 710 (1996) (Marti 1). The first indictment alleged an act of anal intercourse when the victim was between the ages of ten and thirteen (first indictment). See RSA 632-A:2, XI. The second indictment alleged an act of anal intercourse when the victim was between the ages of thirteen and sixteen. See RSA 632-A:2, X. The third indictment contained two counts, both alleging an act of anal intercourse when the victim was sixteen (two-count indictment). See RSA 632-A:2, I, :2, X-a. A jury convicted the defendant on all three indictments, and the trial court sentenced him to twenty-two and one-half to forty-five years in prison. We reversed the convictions, concluding that the trial court had improperly admitted evidence of hundreds of prior sexual assaults, many identical to the charged crimes, in violation of New Hampshire Rule of Evidence 404(b). See Marti I, 140 N.H. at 695-96, 672 A.2d at 711. We remanded the case for a new trial.

Subsequently, the same prosecutor who had tried the defendant at the first trial stated, according to the defendant, that if we would not permit him to enter into evidence the uncharged conduct, he would charge it. He then nol prossed the first indictment, and in its place obtained 104 new indictments for aggravated felonious sexual assault. Each of the new indictments alleged, in nearly identical language to the first indictment, a single act of anal intercourse per week when the victim was ten and eleven years old.

The State moved to consolidate the new indictments with the two indictments remaining from the first trial. The defendant moved to dismiss or quash the new indictments, arguing in part that their prosecution constituted prosecutorial vindictiveness. The defendant argued that the prosecutor’s remark that he would charge the defendant’s conduct if he could not introduce it demonstrated actual vindictiveness toward the defendant for exercising his right of appeal. Even absent a showing of actual vindictiveness, however, the defendant argued that the circumstances of the case gave rise to a presumption of vindictiveness warranting dismissal of the new indictments. The Superior Court (Mohl, J.) made a conclusory finding that there was no evidence of prosecutorial vindictiveness, and denied the defendant’s motion to dismiss but granted the State’s motion to consolidate.

Prior to trial, the defendant sought to exclude any evidence of uncharged sexual contact between the defendant and the victim under New Hampshire Rule of Evidence 404(b). The defendant also moved to dismiss or quash the two-count indictment as duplicitous. The Superior Court (Fitzgerald, J.) denied the motion to dismiss but granted the defendant’s motion in limine to exclude evidence of any sexual contact that occurred prior to the time periods charged in the indictments.

In his opening statement, the prosecutor stated that when the victim was ten and eleven years old, the defendant had anal intercourse with her at least weekly, but sometimes more than once a week. The defendant objected to the reference to abuse that occurred more than once per week, arguing that the reference was to inadmissible prior bad acts. The court indicated that it would déal with the issue when the State offered the evidence. At trial, the State elicited testimony from the victim that during the time period covered by the 104 indictments, the defendant had engaged in anal intercourse with her at least once a week, and sometimes more than once a week. She also testified that the anal intercourse continued when she was between the ages of twelve and fifteen. The court overruled the defendant’s objections.

The jury convicted the defendant on all 106 indictments, and the court sentenced him to forty-five to ninety years in prison. The defendant appeals, arguing that the trial court erred by: (1) denying his motion to dismiss the 104 indictments for prosecutorial vindictiveness in violation of his due process rights under both the State and Federal Constitutions; (2) denying his motion to dismiss the two-count indictment for duplicitousness in violation of Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment to the United States Constitution; (3) improperly stating the law and commenting on the evidence in its charge to the jury; and (4) improperly admitting the evidence of uncharged bad acts in violation of New Hampshire Rule of Evidence 404(b). We reverse on the issue of prosecutorial vindictiveness and address the second and third arguments as they may arise on remand. See State v. Frost, 141 N.H. 493, 498, 686 A.2d 1172, 1176 (1996) (in interest of judicial economy, court will address issues likely to arise on remand).

We analyze the defendant’s constitutional claims first under the New Hampshire Constitution, “referencing] . . . decisions of the United States Supreme Court and other jurisdictions only for the purpose of aiding our State constitutional analysis.” State v. Cannuli, 143 N.H. 149, 151, 722 A.2d 450, 451 (1998) (quotation omitted). Because Part I, Article 15 of the New Hampshire Constitution is at least as protective of the defendant’s rights as the Due Process Clause of the Fourteenth Amendment, cf. Knowles v. Warden, N.H. State Prison, 140 N.H. 387, 389, 666 A.2d 972, 975 (1995), and as the Sixth Amendment, see State v. Settle, 132 N.H. 626, 630, 570 A.2d 895, 897 (1990), we do not engage in a separate federal analysis, see State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983).

I. Prosecutorial Vindictiveness

The defendant argues first that the State’s response to our ruling in Marti I in bringing 104 additional indictments raises a presumption of vindictiveness in violation of his due process rights. Because the State failed to rebut this presumption, the defendant contends, the trial court wrongly denied his motion to dismiss. We agree.

“[A] prosecutor may not exercise his or her discretion to bring a criminal charge with the aim of punishing a lawful exercise of the right to appeal.” State v. Gallant, 133 N.H. 138, 148, 574 A.2d 385, 392 (1990) (decided under the Federal Constitution). Due process demands that “any increased . . . charge imposed on retrial not be the result of . . . prosecutorial vindictiveness.” State v. Goding, 128 N.H. 267, 271, 513 A.2d 325, 328 (1986) (decided under the Federal Constitution). However, because “[mjotives are complex and difficult to prove,” United States v. Goodwin, 457 U.S. 368, 373 (1982), and because “the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal,” Blackledge v. Perry, 417 U.S. 21, 28 (1974) (quotation omitted), we do not require proof of actual vindictiveness on the part of the prosecutor when the prosecutor’s charging decision raises “a realistic likelihood of vindictiveness,” Goding, 128 N.H. at 272, 513 A.2d at 329 (quotations omitted). In these situations, we presume vindictiveness and require the State to rebut that presumption by proving that the charging decision was not motivated by vindictiveness. See id.

In Goding, 128 N.H. at 272-73, 513 A.2d at 329, we determined that a prosecutor’s decision to charge a defendant at a de novo trial with a felony after that defendant had been convicted of a misdemeanor raised a presumption of vindictiveness. We noted that a defendant “is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.” Id. at 272, 513 A.2d at 329 (quotation omitted). Likewise, we find in this case that the prosecutor’s decision to bring 104 additional indictments for aggravated felonious sexual assault after the defendant had exercised his right to appeal the original conviction on three indictments raises a presumption of vindictiveness. As in Goding, the State substituted the additional charges for the original charge after the defendant exercised his right to appeal, thereby subjecting him to a significantly increased sentence. Hence, the circumstances demonstrate a “realistic likelihood of vindictiveness,” and the burden is on the State to show that the increased charges are not the product of vindictiveness. See id.

The State argues that State v. Novosel, 120 N.H. 176, 181, 412 A.2d 739, 743 (1980), stands for the proposition that a presumption of vindictiveness will not arise unless the prosecutor seeks a greater punishment after a retrial. Because the prosecutor in this case sought the same penalty that the defendant had received in the first trial, the State contends that a presumption of vindictiveness is not warranted.

In Novosel, we stated that “[pjrosecutorial vindictiveness ... is present only if the prosecution ha[s] upped the ante during a retrial and if a harsher sentence is thereby imposed.” Id. (emphasis added) (quotations omitted). We never stated, however, that the prosecutor must seek a harsher sentence before a presumption of vindictiveness will arise. Ordinarily, a trial court is not bound by the prosecutor’s recommendations in imposing a sentence. State v. McLaughlin, 126 N.H. 98, 100, 489 A.2d 114, 116 (1985). Indeed, the trial judge in this case stated that he was not bound by the defendant’s prior sentence, in part because of the additional charges. Accordingly, the actual punishment that a prosecutor purports to seek ordinarily will not diminish a realistic likelihood of vindictiveness that is otherwise demonstrated by the circumstances of a case. Thus, we conclude that in this case, the prosecutor’s charging decision that subjected the defendant to a significantly increased sentence was sufficient to raise a presumption of vindictiveness, notwithstanding the sentence that the prosecutor sought.

The State further argues that a presumption of vindictiveness is not warranted when the objective circumstances of the case indicate that the prosecutor’s action is at least equally attributable to valid prosecutorial concerns. Rather than punishing the defendant for appealing, the State asserts that the circumstances of this case demonstrate that the prosecutor was motivated by a desire to assure that the defendant was held fully accountable for his actions given our evidentiary ruling. We decline, however, to adopt the standard advocated by the State. As stated above, a presumption of prosecutorial vindictiveness arises when the prosecutor’s conduct demonstrates a realistic likelihood of vindictiveness. Because we have determined that the circumstances of this case demonstrate a realistic likelihood of vindictiveness, the burden is on the State to show that the “objective circumstances of the case” indicate that the prosecutor’s charging decision was not the product of vindictiveness. See Goding, 128 N.H. at 272, 513 A.2d at 329.

We have never articulated the standard that the State must meet to rebut a presumption of prosecutorial vindictiveness. Cf. State v. Hurlburt, 135 N.H. 143, 147, 603 A.2d 493, 495 (1991) (reciting standard applicable for judicial vindictiveness under Federal Constitution), cert. denied, 503 U.S. 1008 (1992). In Goding, 128 N.H. at 272-73, 513 A.2d at 330, however, we concluded that the State had sufficiently rebutted the presumption. The State in Goding had initially charged the defendant with DWI-second offense, but had substituted for that charge a charge of DWI-first offense because the prosecutor lacked the required proof of the prior offense. Id. at 269, 513 A.2d at 327. After the defendant was convicted and exercised his right to a de novo trial in the superior court, the State nol prossed the district court complaint and filed an information charging DWI-second offense. Id. We concluded that the State had rebutted the presumption of vindictiveness by showing that: (1) DWI-seeond offense was the initial charge; (2) the defendant had prepared initially for that charge; (3) “there was no evidence of prosecutorial statements indicating vindictiveness”; and (4) “it was only a matter of fortuity” that the defendant had not been tried initially for the more serious offense. Id. at 272-73, 513 A.2d at 330. Hence, the State’s inability initially to charge the more serious offense despite its efforts to do so contributed to our conclusion that the State had successfully rebutted the presumption of vindictiveness. We noted, however, that “absent such exceptional circumstances,” the substitution of the more serious charge would have violated the defendant’s due process rights. Id. at 273, 513 A.2d at 330.

We conclude that to rebut a presumption of prosecutorial vindictiveness, the State, as in Goding, must show objective reasons for the new charges that were not present when the prosecutor initially charged the defendant; See id. Other courts have established similar standards. See Goodwin, 457 U.S. at 376 n.8 (presumption “overcome by objective evidence justifying the prosecutor’s action”); United States v. Marrapese, 826 F.2d 145, 147 (1st Cir.) (prosecutor bears burden to rebut the presumption by showing objective reasons not present when initial charge was brought), cert. denied, 484 U.S. 944 (1987); United States v. Andrews, 633 F.2d 449, 456 & n.10 (6th Cir. 1980) (en banc) (“only objective, on-the-record explanations” suffice, such as the discovery of new evidence or previous legal impossibility), cert. denied, 450 U.S. 927 (1981); cf. Blackledge, 417 U.S. at 29 n.7 (stating that the case would have been different if the State had shown that it was impossible to proceed initially with the more serious charge). This standard adequately balances the defendant’s interest in appealing “without apprehension that the State will retaliate” at a retrial, Goding, 128 N.H. at 272, 513 A.2d at 329 (quotation omitted), and the State’s interest in exercising its prosecutorial discretion when the circumstances of the case have changed. -

In answering the motion to dismiss in this case, the prosecutor asserted that after, we' decided Marti I, he determined for the first time that the victim was being literal, and not figurative, when she stated that the sexual abuse was a weekly event. He also asserted that in bringing the additional charges he was merely attempting to comply with our ruling in Marti I. Moreover, to dispel any inference of vindictiveness, the prosecutor stated that he would not seek a greater sentence than the .defendant had.received in the first trial. We find these- reasons insufficient to rebut the presumption of vindictiveness under the circumstances of this case.

Although the prosecutor asserted that he misunderstood the nature of the victim’s story when he initially charged the defendant, he acknowledged that in charging the defendant with the additional 104 counts, he relied on information he had known prior to the first trial. Further, as previously discussed, the prosecutor’s recommendations on sentencing are not binding upon the trial judge. Accordingly, the prosecutor failed to demonstrate objective reasons for pursuing the 104 indictments that were not present when he made his initial charging decision.

Because the circumstances of this case demonstrate a realistic likelihood of vindictiveness, and because the prosecutor failed to rebut the presumption of vindictiveness, the trial court improperly denied the defendant’s motion to dismiss the new indictments. Accordingly, we reverse the trial court’s order denying the defendant’s motion to dismiss the additional 104 indictments, vacate the convictions on the remaining two indictments, and remand.

II. Duplicitous Indictments

The defendant next argues that the second count of the two-count indictment (second count) was duplicitous. The defendant notes that in Marti I, 140 N.H. at 693, 672 A.2d at 710, we described that count as alleging a violation of both RSA 632-A:2, X-a and RSA 632-A:2, III. Thus, the defendant argues that the indictment wrongly charged two crimes in one count. In Marti I, this issue was not before us. Having considered the parties’ arguments, we disagree that Marti I warrants a finding that the two-count indictment was duplicitous.

“An indictment is duplicitous when it charges two or more offenses in one count.” State v. Patch, 135 N.H. 127, 128, 599 A.2d 1243, 1244 (1991). To pass constitutional muster, “the indictment must be specific enough to ensure notice to the defendant, assurance against double jeopardy, and the reliability of an unanimous jury verdict.” Id. If the indictment could not reasonably be read to charge more than one offense, however, the indictment is not duplicitous. See State v. Wright, 126 N.H. 643, 646, 496 A.2d 702, 704 (1985).

We find that the second count could not reasonably be read to charge a violation of both RSA 632-A:2, X-a and RSA 632-A:2, III. RSA 632-A:2, X-a makes it felonious to engage in sexual penetration with another “[w]hen, except as between legally married spouses, the victim is 13 years of age or older and under 18 years of age and the actor is in a position of authority over the victim and uses this authority to coerce the victim to submit.” The second count charged that in 1990 the defendant

DID KNOWINGLY ENGAGE IN SEXUAL PENETRATION WITH A VICTIM, OTHER THAN HIS LEGAL SPOUSE, WHO WAS THIRTEEN YEARS OF AGE OR OLDER AND UNDER EIGHTEEN YEARS OF AGE, AND BEING IN A POSITION OF AUTHORITY OVER THE VICTIM COERCED HER TO SUBMIT; IN THAT, ANTONIO MARTI ENGAGED IN ANAL INTERCOURSE WITH HIS DAUGHTER WHOSE DATE OF BIRTH IS JULY 21, 1974, BY SUBJECTING HER TO YEARS OF SEXUAL AND PHYSICAL ABUSE AS HER FATHER THEREBY FORCING HER TO SUBMIT.

Thus, the State alleged that the defendant: (1) engaged in anal intercourse; (2) with his daughter who was between the ages of thirteen and eighteen; and (3) used his authority as her father to coerce her to submit by having subjected her to prior sexual and physical abuse. These allegations establish a violation of RSA 632-A:2, X-a.

In contrast, RSA 632-A:2, III makes it felonious to engage in sexual penetration with another “[w]hen the actor coerces the victim to submit by threatening to use physical violence or superior physical strength on the victim, and the victim believes that the actor has the present ability to execute these threats.” The State rightly contends that the second count fails to allege that the defendant threatened the victim, or that she believed that he had the ability to carry out the threats. Accordingly, the State alleged facts in the second count sufficient to meet the requirements of RSA 632-A:2, X-a, but not RSA 632-A:2, III, and thus the indictment was not duplicitous. To the extent that Marti I suggests otherwise, it is dicta and does not control.

III. Improper Jury Charge

The defendant next argues that the trial court made an incorrect statement of law and an impermissible comment on the evidence in its charge to the jury. We disagree.

In the course of instructing the jury, the trial court stated that

[ w]ith respect to each of the[] [charged] offenses corroboration of the testimony of the victim is not required. That means if you find the victim to be credible in light of all of the evidence introduced during the course of the trial, that testimony alone is sufficient to establish the State’s case - burden of proof beyond a reasonable doubt.

The defendant argues that while corroboration of a victim’s testimony is not required to prove the State’s case in aggravated felonious sexual assault cases, see RSA 632-A:6, I (1996), a jury may properly consider the lack of corroboration. Thus, the defendant asserts that the instruction, which implied that the jury could not consider the lack of corroboration if they found the victim to be credible, erroneously diverted the jury from a reasonable line of factual analysis, and constituted a finding of fact on the effect of the lack of corroboration. The defendant’s error lies in the implication he draws from the instruction.

“We have long recognized the rule that a claim of an erroneous jury charge must be evaluated by reading the alleged offending portion in the context of the trial court’s whole charge.” State v. Parker, 142 N.H. 319, 324, 702 A.2d 306, 309 (1997) (quotation omitted). “Reversal is not warranted unless the charge, as a whole, does not fairly cover the issues of law of the case.” State v. Pinardville Athletic Club, 134 N.H. 462, 467, 594 A.2d 1284, 1287 (1991) (quotation omitted).

Read in context of the entire jury charge, the trial court’s instruction did not, as the defendant contends, imply that the jury “must find the defendant guilty if they found the uncorroborated testimony of the victim credible.” Prior to instructing the jury on corroboration, the trial judge defined “proof beyond a reasonable doubt,” and directed the jury to consider each individual indictment separately under that standard. Moreover, the trial judge instructed the jury to find the defendant not guilty on any indictment if the State failed to meet its burden of proof on any element of that indictment. Thus, in context the court’s instruction that the victim’s uncorroborated testimony was sufficient to prove the State’s case did not mean that the jury should convict if they believed her testimony, but that they could convict on the basis of her uncorroborated testimony and all the other evidence in the case. This is merely a correct statement of law. Cf. State v. Hardy, 120 N.H. 552, 554, 419 A.2d 398, 400 (1980) (uncorroborated testimony of victim sufficient to sustain conviction on charge of attempt to commit aggravated sexual assault).

TV. Prior Bad Acts

The defendant finally contends that the trial court improperly admitted evidence of uncharged bad acts under New Hampshire Rule of Evidence 404(b). In light of our disposition on the first issue, however, we find it unlikely that this precise scenario will reappear on remand. Thus, we find that guidance in addition to our prior Rule' 404(b) cases would not be helpful to the parties and trial court on remand.

Reversed in part; vacated in part; and remanded.

HORTON J., with whom THAYER, J., joined, dissented; the others concurred.