STATE OF NEW JERSEY v. EDIBERTO RUBERTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3415-08T43415-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

EDIBERTO RUBERTE,

Defendant-Respondent.

___________________________________

 
Telephonically argued October 23, 2009 -

Decided

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, Indictment No. 08-08-0689.

Michael S. Curwin, Deputy Trial Chief, argued the cause for appellant (Sean F. Dalton, Gloucester County Prosecutor, attorney; Mr. Curwin, of counsel and on the brief).

Christopher C. Cona argued the cause for respondent.

PER CURIAM

On our leave granted, the State appeals from an order dated February 10, 2009, dismissing the attempted murder count of a superseding indictment. Although the order and the court's oral decision did not expressly state so, we understand the dismissal to be with prejudice. The trial court concluded that the State failed to overcome a presumption that it sought the superseding indictment for vindictive and retaliatory reasons after defendant rejected a plea offer and insisted on trial by jury. Because the court erred in application of the law, we reverse.

The State alleges that on March 2, 2007, defendant Ediberto Ruberte stopped on the shoulder of a highway in Gloucester County and initiated a fight with Stephen Pupo, who had also stopped his vehicle on the shoulder. The two were strangers who had become involved in a dispute while driving, each blaming the other for tailgating. Ruberte and Pupo disputed who threw the first punch. Ruberte was armed with a pocket knife and stabbed Pupo six times. Pupo was unarmed.

A woman motorist stopped to help, and Ruberte returned to his vehicle and drove away. At some distance from the scene, Ruberte stopped again on the highway and threw away the knife. Then, he drove on to his place of employment, stating later that he knew the police would soon come.

Pupo had noted defendant's license plate number and gave it to the helping motorist, who immediately called the police. Later on the same day, the police went to defendant's place of employment to question him. Defendant admitted his role in the fight and took the police to the location alongside the highway where he had thrown away the knife, but the police could not find it. Defendant also told the police that Pupo had punched him first and knocked him down before he "poked" Pupo.

Pupo was hospitalized for several days and then released. The extent of his injuries is disputed.

On June 27, 2007, a Gloucester County grand jury indicted Ruberte on the following six charges: count one, second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1); count two, third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; count three, third-degree hindering prosecution, in violation of N.J.S.A. 2C:29-3b(1); count four, fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d; count five, fourth-degree obstructing the administration of law, in violation of N.J.S.A. 2C:29-1; and count six, fourth-degree tampering with physical evidence, in violation of N.J.S.A. 2C:28-6(1).

On April 18, 2008, the trial court conducted a pretrial conference, at which the parties filed a pretrial memorandum in accordance with Rule 3:9-1(e). In the memorandum, defendant and his attorney acknowledged the State's offer that defendant plead guilty to count one of the indictment in exchange for the State dismissing the other five counts and making no sentencing recommendation. In other words, the State offered an "open plea" to the second-degree charge of aggravated assault with a potential sentencing range of five to ten years in prison. Defendant rejected the plea offer, acknowledging that his rejection cut off further plea negotiations in accordance with Rule 3:9-3(g). The court set a trial date for August 4, 2008, later adjourned to September 2, 2008.

In preparing for trial, the prosecutor met with Pupo for the first time on August 12, 2008. The next day, the prosecutor appeared before a new grand jury and presented evidence seeking a superseding indictment. The grand jury returned a seven-count indictment on August 13, 2008, which made only one significant change from the original indictment a new count one charging first-degree attempted murder, in violation of N.J.S.A. 2C:5-1a(2) and 2C:11-3a(1). As a result of the superseding indictment, trial was adjourned.

In December 2008, defendant filed a motion to dismiss the attempted murder charge on the ground that the prosecution had brought it vindictively because defendant declined the State's plea offer and demanded a trial. Defense counsel argued in his letter-brief that the superseding indictment was the State's unconstitutional attempt to "force" defendant to plead guilty rather than stand trial. In support of that argument, defense counsel alleged that: 1) no new evidence had been developed since the first indictment or presented to the second grand jury, 2) in the second grand jury, the State failed to present exculpatory evidence of defendant's contention that he was defending himself in the fight, 3) the State presented inaccurate medical information to the second grand jury, 4) the only witness before the second grand jury was the same State Police sergeant who had testified before the first grand jury, and he was not qualified to present medical evidence, and 5) the prosecution may have been motivated by defendant's Puerto Rican ethnicity in comparison to Pupo, who is caucasian. Defense counsel admitted that he had "absolutely no facts or even any hint" to support his fifth allegation, ethnic bias.

At the time of argument on defendant's motion, defense counsel further admitted that he had no direct proof that the prosecutor had sought the superseding indictment for an "invalid reason." He said he was relying entirely on the "facts and circumstances" and argued that "it's unfair to use the power of the State and the power of indictment . . . to raise the stakes" when a defendant invokes his right to stand trial.

The court questioned the prosecutor about whether he had learned new information that led to the superseding indictment, such as about the nature and consequences of the injuries to Pupo. The prosecutor answered that he had met and talked with Pupo and assessed him "eye-to-eye" but that Pupo had not told him "anything different." In response to defense counsel's accusation that he was seeking to "force" a plea, the prosecutor announced that any prior plea offers were being withdrawn and there would be no plea negotiations with defendant. The prosecutor also said, "I just felt that . . . if we're going to go to trial, then the jury should be allowed to hear any charge that's viable."

The trial court cited State v. Buckrham, 167 N.J. Super. 455, 459-60 (Law Div. 1979), vacated after remand, 173 N.J. Super. 87 (App. Div. 1980), for the legal proposition that, "if the facts give rise to the appearance of prosecutorial vindictiveness generated because the defendant exercised some statutory or constitutional right, then the State must satisfy a heavy burden of proof to sustain the new charge contained in the superseding indictment." Referring to a "presumption of prosecutorial vindictiveness" where the severity of the charges has increased, the court concluded that the State had not sustained its burden of proof. Consequently, the court dismissed the attempted murder charge.

A trial court normally has discretion to dismiss an indictment because of insufficiency of evidence or other irregularities before the grand jury, see State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995), but an indictment should be dismissed only on the clearest and plainest ground, where it is manifestly deficient or palpably defective, State v. Hogan, 144 N.J. 216, 228-29 (1996); State v. Engel, 249 N.J. Super. 336, 359-60 (App. Div. 1991), certif. denied, 130 N.J. 392 (1992). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. State v. Brown, 118 N.J. 595, 604 (1990). Our standard of review is plenary.

The trial court in this case was mistaken in its statement of the law. In the circumstances of this case, the State did not bear the burden of proving absence of vindictive or retaliatory motive. Rather, the burden was on defendant to prove a violation of his due process rights, which he did not do.

Prosecutors have "great discretion and power particularly in the charging function." State v. Gomez, 341 N.J. Super. 560, 571 (App. Div.), certif. denied, 170 N.J. 86 (2001). That discretion and power, however, are not unlimited. The Fourteenth Amendment protects a defendant's right to due process of law with respect to the charging function of the prosecutor. See Blackledge v. Perry, 417 U.S. 21, 27-29, 94 S. Ct. 2098, 2102-03, 40 L. Ed. 2d 628, 634-35 (1974). "The essence of the concept of prosecutorial vindictiveness is a violation of due process by retaliating against a defendant for exercising a legal right." Gomez, supra, 341 N.J. Super. at 571 (citing Blackledge, supra, 417 U.S. at 27-28, 94 S. Ct. at 2102, 40 L. Ed. 2d at 634).

The United States Supreme Court first addressed retaliation or vindictiveness as a due process violation in the context of increased punishment when a defendant had successfully appealed his conviction. In North Carolina v. Pearce, 395 U.S. 711, 725, 89 S. Ct. 2072, 2080, 23 L. Ed. 2d 656, 669 (1969), the Court held that a defendant's Fourteenth Amendment due process rights were violated when a trial court followed a practice of imposing harsher sentences after retrial upon defendants who successfully appealed their original convictions. The Supreme Court said that the trial court must affirmatively explain its harsher sentence, id. at 726, 89 S. Ct. at 2081, 23 L. Ed. 2d at 670, thus impliedly creating a presumption of a due process violation in the absence of satisfactory explanation. In Blackledge, supra, the Court found a due process violation where a prosecutor brought new felony charges without any new evidence after the defendant sought a trial de novo under state law from a misdemeanor conviction. 417 U.S. at 27-28, 94 S. Ct. at 2102-03, 40 L. Ed. 2d at 634-35.

A few years after Blackledge, however, the Court set boundaries on the due process rights of defendants facing new or additional charges. In Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S. Ct. 663, 669, 54 L. Ed. 2d 604, 612 (1978), the Court held that no presumption of prosecutorial vindictiveness applied because a prosecutor threatened and subsequently brought more serious charges with the purpose of inducing the defendant to plead guilty. The defendant in that case had been indicted for uttering a forged check for $88.30. He faced a sentencing range of two to ten years on the uttering charge. The prosecutor offered to recommend a five-year sentence if the defendant pleaded guilty, and further threatened to re-indict the defendant under Kentucky's habitual offender statute that exposed him to a mandatory life sentence because of his prior criminal record. Id. at 358-59, 98 S. Ct. at 665, 54 L. Ed. 2d at 607-08. When the defendant nevertheless declined the plea offer, he was re-indicted, tried, convicted by a jury, and sentenced to life imprisonment. Id. at 359, 98 S. Ct. at 666, 54 L. Ed. 2d at 608.

The Supreme Court concluded that the re-indictment was not a due process violation. The Court recognized that confronting a defendant with the risk of more severe punishment may discourage exercise of his right to stand trial, but the Court said, "'the imposition of these difficult choices [is] an inevitable' and permissible 'attribute of any legitimate system which tolerates and encourages the negotiation of pleas.'" Id. at 364, 98 S. Ct. at 668, 54 L. Ed. 2d at 611 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S. Ct. 1977, 1985, 36 L. Ed. 2d 714, 726 (1973)). The Court also said, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Ibid.

The Court distinguished Pearce, supra, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656, and Blackledge, supra, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628, and held that a presumption of vindictiveness does not apply in the context of a pretrial decision to amend the charges because those additional charges cannot be characterized as an impermissible penalty. Bordenkircher, supra, 434 U.S. at 362-64, 98 S. Ct. at 667-69, 54 L. Ed. 2d at 610-11. No federal constitutional violation occurred in selectively enforcing the habitual offender statute as long as "'the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.'" Id. at 364, 98 S. Ct. at 668-69, 54 L. Ed. 2d at 611 (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501 505, 7 L. Ed. 2d 446, 452 (1962)).

A few years later, the Court confirmed the holding of Bordenkircher in United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982). In Goodwin, the defendant was originally charged with misdemeanors but was later re-indicted on felony charges after he refused to enter into a plea agreement and requested a jury trial. Id. at 370-71, 102 S. Ct. at 2487, 73 L. Ed. 2d at 78-79. The Court held that no presumption of vindictiveness arises in the pretrial stage of a criminal case because "[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." Id. at 382, 102 S. Ct. at 2493, 73 L. Ed. 2d at 86.

Applying these United States Supreme Court cases, we have also concluded that a prosecutor may increase the charges against a defendant who declines a plea offer without running afoul of the due process clause. In State v. Bauman, 298 N.J. Super. 176, 199-206 (App. Div. 1997), we rejected the defendant's contention that additional charges in a superseding indictment violated his right to due process after he declined to enter into a plea agreement. Id. at 205-06. We said that the defendant must "affirmatively prove actual vindictiveness in order to prevail." Id. at 206.

We reached a similar conclusion in State v. Gomez, supra, 341 N.J. Super. 560. In that case, the defendant allegedly struck and killed a pedestrian without stopping her car and then took her car to a body shop for repairs without reporting the accident. Id. at 564. The prosecutor originally obtained an indictment only for a third-degree charge of hindering apprehension. The defendant rejected a plea offer of probation with a sentence of 364 days in jail on the hindering charge. Instead, she successfully applied for post-conviction relief from a prior conviction and then re-applied for admission into the pretrial intervention program under Rule 3:28. Id. at 565-66.

Five days before the scheduled trial date, the prosecutor sought an adjournment to obtain a superseding indictment charging second-degree death by auto. Questioned by the trial judge, the supervising prosecutor said he had earlier concluded that the case had been "undercharged" but he was willing to leave it to be resolved on the hindering charge if the defendant faced a likely jail sentence. Ibid. The prosecutor also admitted that his motivation for the superseding indictment included the defendant's successful application for post-conviction relief, her re-application for pretrial intervention, and the prospect of a non-custodial sentence if she went to trial on the hindering charge and was convicted without a plea agreement stipulating a jail sentence. Ibid. The trial judge dismissed the entire case when the prosecutor refused to go forward in trying only the hindering charge. Id. at 570.

On appeal, we concluded that the trial judge had erred in dismissing the case on grounds of prosecutorial vindictiveness. We noted a "distinction between pretrial and posttrial actions of the prosecutor" and explicitly rejected a presumption of vindictiveness where a prosecutor seeks additional charges from a grand jury after a defendant exercises a pretrial legal right. Id. at 574-75. Cf. State v. Long, 119 N.J. 439, 465-67 (1990) (refusing to apply a presumption of prosecutorial vindictiveness where the prosecutor submitted a superseding indictment that added four new charges because the change was more form than substance); State v. Jones, 183 N.J. Super. 172, 182 (App. Div. 1982) (vindictiveness not shown where the court detected "no signs whatsoever of reprisal or any other unfairness" and an "absence of unseemly or untoward conduct or motivation on the part of the prosecutor").

Defendant Ruberte argues that the holding of Gomez was based on the prosecutor's proofs that additional evidence had been gathered to support the new charge of death by auto. But discussion in Gomez of additional evidence led us to an alternative holding; it did not diminish the import of our initial holding that during the pretrial phase of a case, the prosecutor may bring new charges without having to overcome a presumption of vindictiveness. Gomez, supra, 341 N.J. Super. at 575, 577. We summarized our holdings in Gomez as follows:

We hold that it was error to apply the presumption of prosecutorial vindictiveness in this pretrial setting and, alternatively, that the State set forth sufficient proof of a non-vindictive purpose in presenting the case to a second grand jury. Finally, while a defendant may still prove a due process violation in the absence of a presumption of prosecutorial vindictiveness by affirmative proof of actual vindictiveness, no such proofs were presented herein.

[Id. at 578.]

Thus, we made it clear that, before trial, the defendant, not the State, bears the burden of proof on the issue of vindictiveness and must prove that allegation by "affirmative proof of actual vindictiveness." Ibid.

In this case, the trial judge erroneously placed a "heavy burden" on the State to overcome a presumption of vindictiveness and then found that the State had not met that burden. That error requires reversal of the court's ruling.

The absence of a presumption does not foreclose a defendant from proving prosecutorial vindictiveness. In Goodwin, supra, the Supreme Court said that a defendant must prove the allegation of prosecutorial vindictiveness objectively rather than relying on a presumption. 457 U.S. at 384, 102 S. Ct. at 2494. 73 L. Ed. 2d at 87. The Court further suggested that a prosecutor's actions before the grand jury are in fact presumed to be valid, and only in rare cases may a defendant be able to overcome that presumption of validity. Goodwin, supra, 457 U.S. at 384 n.19, 102 S. Ct. at 2494 n.19, 73 L. Ed. 2d at 87 n.19; cf. State v. Francis, 191 N.J. 571, 587 (2007) ("grand jury proceedings are entitled to a presumption of validity").

In this case, we find no objective or affirmative evidence of vindictiveness or retaliation in adding the attempted murder charge. Defense counsel readily admitted that he had no direct evidence of prosecutorial vindictiveness, or of the prosecutor's alleged motive to force a guilty plea, but that he was arguing from the "facts and circumstances" and that he generally believed it was "unfair . . . to raise the stakes" after plea negotiations had failed. As the cases described here demonstrate, defense counsel's arguments based purely on circumstances and fairness do not objectively prove vindictiveness or retaliation.

In Goodwin, supra, the Court said that in the pretrial stage, "the prosecutor's assessment of the proper extent of prosecution may not have crystallized . . . . 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." Id. at 381, 102 S. Ct. at 2492-93, 73 L. Ed. 2d at 85. Similarly, we said in Gomez, supra, that "[t]rial preparation or continuing investigation may well lead the prosecutor to the reasonable conclusion that additional or substituted charges are appropriate." 341 N.J. Super. at 575.

Here, under questioning by the court, the prosecutor explained his motivation for the superseding indictment. He said he had met the alleged victim during trial preparation. His assessment of Pupo as a witness, together with his conclusion that all viable charges should be presented to the grand and petit juries, led to the additional charge of attempted murder. The prosecutor readily acknowledged that he had doubts about the prospect of conviction on the attempted murder charge and, for that reason, he had not originally sought the charge when presenting the case to the first grand jury. Even if the timing of the superseding indictment after failed plea negotiations could be deemed sufficient circumstantial evidence of vindictiveness, the prosecutor's explanation dispelled that accusation.

Finally, we have considered defendant's argument that a comparison of transcripts before the first and second grand juries provides direct proof of vindictiveness in that, before the second grand jury, the prosecutor failed to present evidence supporting defendant's contention of self-defense. Defendant cites State v. Hogan, supra, 144 N.J. at 236-39, as establishing a duty of the prosecutor to present exculpatory evidence to a grand jury. Defendant did not pursue directly a motion to dismiss the superseding indictment on the ground of grand jury abuse as discussed in Hogan, and the trial court did not address the issue in its decision. We will not address that issue further in the absence of an adequate record. We do not decide here whether the State had an obligation under the standard established in Hogan to present to the second grand jury defendant's statement asserting self-defense. See id. at 236-37. We note that such a dismissal for grand jury irregularity that can be cured would normally be without prejudice to re-presenting the matter to another grand jury. See State v. Womack, 145 N.J. 576, 590, cert. denied, 519 U.S. 1011, 117 S. Ct. 517, 136 L. Ed. 2d 405 (1996).

We reverse the order of February 10, 2009, reinstate count one of the superseding indictment, and remand to the trial court for further proceedings.

 

Also, the other counts were renumbered, and the order of the previous counts three and four was switched.

(continued)

(continued)

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A-3415-08T4

November 10, 2009