State v. Butterfoss
| Decision Date | 29 September 1988 |
| Citation | 561 A.2d 312,234 N.J.Super. 606 |
| Parties | STATE of New Jersey v. Dieter M. BUTTERFOSS, Defendant. |
| Court | New Jersey Superior Court |
William R. Barbour, Asst. Deputy Public Defender (Anne T. Manning, Deputy Public Defender), for defendant.
James S. Ronca, Asst. Prosecutor (Stephen G. Raymond, Prosecutor), for State.
HAINES, A.J.S.C.
This opinion disposes of the pending motion to dismiss the indictment in the above matter, concluding that the terroristic threat count cannot be dismissed but that all other counts of the indictment must be dismissed.
The Court recognizes the rule that the power of dismissal is not to be exercised except upon the clearest and plainest grounds and that an indictment sufficient on its face survives the motion to dismiss if the Grand Jury has received at least "some evidence" as to each element of a prima facie case. State v. Vasky, 218 N.J.Super. 487, 528 A.2d 61 (App.Div.1987). Those tests are applied here.
Butterfoss was indicted on April 28, 1988, for interference with custody and making terroristic threats, a two count indictment. When that indictment was obtained, an assistant prosecutor appeared before the Grand Jury, advised it of the charges against Butterfoss, and, among other things, said:
The next charge is a--there was a charge of kidnapping that the State would recommend a no bill on. We will discuss that later.
Later, the assistant prosecutor said:
Finally, there is a charge of kidnapping that the State will recommend a no bill on. [The statutory provisions defining the crime of kidnapping were then recited.]
So in that particular charge, the State is recommending a no bill. You can consider that if you wish....
....
Any questions at all as to the law? Then I will leave it to your deliberations then.
The Grand Jury returned the initial two count indictment which did not include kidnapping.
On June 21, 1988, the assistant prosecutor presented the Butterfoss matter to the same Grand Jury for the second time, seeking a superseding indictment which would include a count for kidnapping. The following transpired:
PROSECUTOR: I have two matters this morning. The first one we will do is called Dieter Butterfoss. Now, if that name sounds familiar, it should. Back on April 26th I presented this matter. I think there's one person here today that wasn't here back on April 26 when we heard that matter before, so we will ask that she not participate.
After Dieter Butterfoss was presented some of the Grand Jurors had questions as to why the State recommended a no bill on the kidnapping charge, and that charge was in fact no billed. We read over the transcript and it did appear that some of the Grand Jurors had a question about the kidnapping charge, and at this point in time we are going to ask you to reconsider the matter.
At this time the State is going to take--the State is not going to be recommending a no bill at this time. It did seem that at that point, again, a few people had concerns about it, and the particular section we were dealing with under kidnapping was this. Basically, it says that a person is guilty of kidnapping if he unlawfully removes a person from his place of residence or business or a substantial distance from the vicinity where he is found or if he unlawfully confines another for a substantial period with any one of the following purposes, and one of the purposes for your consideration is to inflict bodily injury on or to terrorize the victim or terrorize another.
I believe it was that terrorizing another section that you people were thinking about, so at this point in time we do have the transcript and we can reread what the testimony was in the case if you don't remember it clearly, but if you do, and you wish to revote on this part, we will again indicate there were two other charges that were billed at the time, which was terroristic threats and also a charge of interference with custody.
So, at this point in time, the State will again give it to your consideration, and at this time the State will not be recommending a no bill as to the kidnapping charge. Does everyone follow me as to basically what's going on? Again, we have the transcript here. If you wish to hear the testimony over again or read the testimony over again, you may. Why doesn't one person refresh your memory? Okay.
The Grand Jury then returned a second superseding indictment which included the kidnapping count.
The Grand Jury is an autonomous body charged not only to indict the apparently guilty but also to protect the apparently innocent. It acts independently of the prosecuting attorney and the judge. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). In State v. Hart, 139 N.J.Super. 565, 354 A.2d 679 (App.Div.1976), the Court dismissed an indictment because of certain actions of an assistant prosecutor. The Grand Jury in that case, after hearing testimony including that of the defendant, decided not to indict. Later, responding to an inquiry from a juror in the presence of the entire Grand Jury, the assistant prosecutor said he thought the action was wrong. The Grand Jury, after being instructed by the Assignment Judge that it should act independently of the prosecutor's opinion, decided to reconsider the matter. It then returned an indictment. That indictment was dismissed by the Appellate Division which said:
In short, it is our considered view that while a prosecutor may assist the Grand Jury in the general manner above outlined, he may not participate in its deliberations or express his views on questions of fact, or comment on the weight or sufficiency of the evidence, or in any way attempt to influence or direct the Grand Jury in its findings--rather, the Grand Jury must act independently of any outside source. [at 567, 568, 354 A.2d 679]
The Hart rule was violated in two instances by the assistant prosecutor in this case. In the first place he improperly "recommended" that the Grand Jury no bill the charge of kidnapping, a recommendation with which the Grand Jury complied. Later, he returned to the same Grand Jury with a request that it reconsider the kidnapping question. No additional facts were presented. The Grand Jury was asked to rely on its recollection of past testimony and was given the opportunity to review the transcript containing that testimony. Had the assistant prosecutor said no more, these circumstances would strongly indicate improper influence. When he asked the Grand Jury to reconsider the kidnapping charge he sent a clear message that it should indict Butterfoss on that charge and should do so on the basis of facts which he found insufficient in the first instance. Thus, the prosecutor strongly underlined an insistence that the Grand Jury return an indictment which it previously had decided not to return. That action, standing alone, reflects an influence which is not proper. The assistant prosecutor, however, went even further, twice advising the Grand Jury that the State would not recommend a no bill. In clear effect, he told the Grand Jury that it should indict, an instruction which interfered with its independence. Consequently, the kidnapping count in the indictment must be dismissed.
N.J.S.A. 2C:12-3a, under which defendant was charged, reads in pertinent part as follows:
A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with purpose to terrorize another ... in reckless disregard of the risk of causing such terror....
The facts are sufficient to support this count of the indictment. Defendant's daughter Sara, who was attending a nursery school, was met by her mother in a parking area. Defendant, who had not seen either of them for about...
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