State v. Marti
| Decision Date | 21 June 1999 |
| Docket Number | No. 96–648.,96–648. |
| Citation | 732 A.2d 414,143 N.H. 608 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Antonio MARTI. |
Philip T. McLaughlin, attorney general (Janice K. Rundles, senior assistant attorney general, on the brief and orally), for the State.
Donald E. Bisson, assistant appellate defender, and Risa Evans, of Concord (Mr. Bisson on the brief, and Ms. Evans orally), for the defendant.
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 I ). 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 deal 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) ().
We analyze the defendant's constitutional claims first under the New Hampshire Constitution, "referenc[ing] ... 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).
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 "[m]otives are complex and difficult to prove," United States v. Goodwin , 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (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, 94 S.Ct. 2098, 40 L.Ed.2d 628 (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 "[p]rosecutorial 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...
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