NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2058-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION As REDACTED v. July 23, 2018
JEROME SHAW, JR., JEROME SHAW, APPELLATE DIVISION JERONE SHAW, JR., and ROME,
Defendant-Appellant. ________________________________
Submitted January 29, 2018 – Decided July 23, 2018
Before Judges Sabatino, Ostrer and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-04-0591.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Dennis Calo, Acting Bergen County Prosecutor, attorney for respondent (Michael R. Philips, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Defendant Jerome Shaw, Jr., appeals from his conviction and
sentence after he pleaded guilty to third-degree conspiracy to
commit burglary, N.J.S.A. 2C:5-2, N.J.S.A. 2C:18-2, and disorderly persons possession of burglary tools, N.J.S.A. 2C:5-
5(a). After a grand jury refused to indict, the State
resubmitted the case to a new grand jury, which voted an
indictment. The court sua sponte dismissed that indictment and
the State resubmitted again, this time with an additional
witness, and secured a second indictment. Defendant contends
the court should have dismissed that indictment, too, because
the evidence was not materially different; and a grand jury
witness disclosed defendant's admission that he had "some prior
criminal history." Defendant also argues the court erred in
denying his motion to suppress evidence, including various
burglary tools, seized after a traffic stop. Lastly, he argues
his five-year sentence was excessive, and the court imposed a
longer period of parole ineligibility than it promised.
While the prosecutor's power to resubmit cases to a grand
jury is not boundless, we need not chart the limits on
successive grand jury resubmissions to conclude there was no
basis shown here to warrant dismissal of the indictment. Only
one successive grand jury was required to secure an indictment.
After the court dismissed that indictment (mistakenly, we
conclude, for reasons discussed below), the State presented
additional evidence, and a third grand jury voted a second
indictment. The evidence supporting the State's case was
2 A-2058-15T3 strong. There is no proof of prosecutorial vindictiveness or an
abusive exercise of prosecutorial discretion. Nor did defendant
show that resubmission was unduly burdensome, or that it
deprived him of fundamental fairness. Furthermore, the passing
reference to defendant's criminal history did not deprive him of
a fair grand jury presentation.
Also, the trial court correctly denied the motion to
suppress. Lastly, although the sentence was not excessive, we
remand for reconsideration of the parole ineligibility term.
I.
Upper Saddle River Police Officer Emmett McDowell performed
a traffic stop in Saddle River after defendant and his father,
co-defendant Jerome Shaw, Sr. (Senior), were backing a truck out
of a driveway onto West Saddle River Road into McDowell's path.
Senior was behind the wheel. McDowell said he had to slam on
his brakes to avoid "t-bon[ing]" the truck.
After he approached defendant's truck, McDowell began to
suspect something more than a traffic violation was afoot. The
two men were dressed almost head to toe in black, including
black shoes and coveralls; they appeared nervous. Senior had a
New York driver's license, but the truck had North Carolina
plates and was registered to a woman. A rifle case – the sort
used to carry assault rifles – was visible on the rear seat.
3 A-2058-15T3 Asked what was in the case, Senior said it contained
construction tools, and invited McDowell to look for himself.
Saddle River Police Officer Edward Riedel arrived to assist
McDowell. After Senior was asked to exit the truck, Riedel
questioned defendant about the rifle case's contents. As did
his father, defendant invited the officer to look for himself.
Riedel removed the rifle case and opened it. It contained
several pry bars, a large mallet, some pipe wrenches, several
zip ties of various sizes, knee pads, and cutting instruments.
Some of the tools were brand new, with their price tags still
attached. The two men claimed to be on construction jobs,
although it was after 1:00 a.m. and they were in a residential
area. They could not say where they were working. They gave
contradictory explanations of the nature of the work they did,
and the kind of properties they worked on. Riedel saw black ski
masks and gloves on the floor of the truck, although it was a
mild October evening. They also claimed to be lost and looking
for Route 17, but there was a GPS device in the vehicle. Riedel
suspected the two men were planning to commit a burglary, or
already had committed one.
Once Riedel asked defendant to step out of the truck,
defendant could produce no identification. He was acting
nervously. He disclosed he had previously been arrested for
4 A-2058-15T3 weapons offenses. Riedel then patted defendant down, and seized
a small flashlight. Defendant and Senior were arrested and
searched incident to arrest. The officers seized from defendant
a list of six residences in Saddle River and Mendham. They
seized from Senior a flashlight and a tennis-ball-sized rock.
Aside from the rifle case's contents, the other items in the
truck were seized pursuant to a search warrant.
The first grand jury, which heard Riedel generally recount
these facts, declined to indict. A month later, the State re-
presented the case through Riedel's testimony to a second grand
jury, which returned an indictment. However, the presiding
criminal judge dismissed the indictment on her own motion. She
did so after the clerk informed her that the second indictment
involved the same complaint-warrant and the same witness as the
first presentment.1 The judge later explained that she was
enforcing what she called "the multiple presentation rule,"
which, she said, provides "you can't go to the grand jury more
than once on the same facts."
Shortly thereafter, the State presented the case to a third
grand jury. Of relevance to one of defendant's points on
appeal, Riedel softened defendant's admission that he had
1 The record does not include the transcript of the grand jury's return of the indictment to the court, nor does it include the court's order of dismissal.
5 A-2058-15T3 weapons arrests. Explaining his decision to pat down defendant,
Riedel testified, "Eventually he admitted to some prior criminal
history that raised my suspicion . . . ."
In addition to Riedel, the State for the first time called
Captain Timothy Condon of the Bergen County Prosecutor's Office,
as an expert in burglary investigations. Condon supplemented
Riedel's opinion that the circumstances indicated that defendant
and Senior were planning to commit burglary. Condon highlighted
that burglars often use new tools, to avoid preserving evidence
on the tools of previous burglaries. By contrast, people
actually involved in construction usually have well-worn tools.
He opined the zip ties were likely intended for restraining
occupants of a home. The rocks were to be used to break
windows. The black attire was designed to avoid detection. He
viewed defendant's list of addresses as a "hit list." He also
noted that defendant possessed a hand truck, which he could have
used to remove a safe.
The third grand jury returned an indictment, which, in
addition to the conspiracy count to which defendant later
pleaded guilty, charged six counts of third-degree attempted
burglary, N.J.S.A. 2C:5-1, N.J.S.A. 2C:18-2 – for each residence
on defendant's list – as well as three counts of third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
6 A-2058-15T3 4(d), characterizing a sledgehammer, mallet, and prybar as
weapons.
In support of his motion to dismiss the indictment,
defendant's counsel argued that the State abused the grand jury
process by resubmitting the case without judicial approval, and
without presenting materially different evidence. Defendant
also objected to the reference to defendant's criminal history.
The court denied the motion, finding that Condon offered new and
additional evidence. The court did not address the point about
defendant's criminal history.
The court thereafter conducted an evidentiary hearing on
defendant's motion to suppress the evidence seized as a result
of the traffic stop, and subsequent searches. McDowell and
Riedel testified, generally recounting the facts summarized
above. The court denied the motion. The court held that the
initial stop was justified, because defendant blocked traffic.
Other circumstances – the time, the out-of-state plates, the
black attire, and the rifle case – warranted further
investigation. The court held that the warrantless search of
the rifle case was justified based on consent and the plain view
doctrine. The gloves, masks, goggles, and GPS unit were also in
plain view, although police awaited a warrant before seizing
them. The pat-down of defendant and seizure of the flashlight
7 A-2058-15T3 were justified by a reasonable safety concern; and the seizure
of other items on defendant's and Senior's persons was properly
based on searches incident to arrest.
Following denial of his pre-trial motions, defendant
entered his guilty plea before a different judge. The plea
agreement with the State called for a five-year term, with a
two-year parole bar, but the judge promised to impose a twenty-
month parole bar. The sentence was to be concurrent to a North
Carolina sentence defendant was already serving.
At the sentencing hearing, the judge noted defendant, then
thirty-five years old, had an extensive, multi-state criminal
record, which supported finding aggravating factors three,
N.J.S.A. 2C:44-1(a)(3) (risk of re-offense); six, N.J.S.A.
2C:44-1(a)(6) (extent of prior criminal record and seriousness
of offenses); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter
defendant and others). Those factors substantially outweighed
mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment
would be excessive hardship on dependents). Defendant had a
young child.
Although he stated he would honor the plea agreement, the
judge imposed a parole bar of two years instead of twenty months
on the five-year term. The ensuing judgment of conviction did
not reflect any parole bar.
8 A-2058-15T3 On appeal, defendant raises the following points for our
consideration:
POINT ONE THE INDICTMENT AGAINST DEFENDANT SHOULD HAVE BEEN DISMISSED DUE TO THE INHERENT PREJUDICE OF THE GRAND JURY BEING TOLD DEFENDANT HAD A PRIOR CRIMINAL HISTORY AND BECAUSE THE STATE PRESENTED THE SAME EVIDENCE TO THREE SEPARATE GRAND JURIES BEFORE IT FINALLY OBTAINED AN INDICTMENT.
POINT TWO THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED AS A RESULT OF A WARRANTLESS SEARCH BECAUSE THE POLICE OFFICERS CONDUCTED AN IMPROPER INVESTIGATORY DETENTION, FOLLOWED BY AN ILLEGAL WARRANTLESS SEARCH OF THE RIFLE CASE THEY REMOVED FROM DEFENDANT'S VEHICLE. THE SUBSEQUENT WARRANTLESS SEARCHES, AND THE SEARCH WARRANT OBTAINED THEREAFTER, WERE THE "FRUIT" OF THAT ILLEGAL SEARCH, CONTRARY TO THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT THREE DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION, REQUIRING HIS SENTENCE BE VACATED AND THE CASE RETURNED TO THE TRIAL COURT FOR A NEW SENTENCE HEARING.
POINT FOUR THE DISCREPANCY BETWEEN THE PLEA AGREEMENT, SENTENCING TRANSCRIPT, AND JUDGMENT OF CONVICTION MUST BE CLARIFIED.
9 A-2058-15T3 II.
Defendant contends the grand jury proceedings were
defective because: (1) the State resubmitted the matter to
multiple grand juries, and presented the same evidence, despite
offering a new witness at its third presentation; and (2)
elicited information that defendant had a criminal history. In
response, the State contends, without qualification, "[a]
prosecutor may resubmit a previously no-billed case to any grand
jury at any time within the statute of limitations . . . ."
Although an abuse of discretion standard generally governs
our review of a trial court's decision on a motion to dismiss an
indictment, we review de novo a decision that "relies on a
purely legal question . . . ." State v. Twiggs, ___ N.J. ___,
___ (2018) (slip op. at 20). In reviewing the "decision of a
trial court to dismiss [or not dismiss] an indictment with
prejudice[, we] must ensure that the correct standard was
employed by the trial court." State v. Abbati, 99 N.J. 418, 436
(1985). We are also free to affirm a trial court's decision on
grounds other than those the trial court relied upon. Hayes v.
Delamotte, 231 N.J. 373, 386-87 (2018); State v. Heisler, 422
N.J. Super. 399, 416 (App. Div. 2011).
10 A-2058-15T3 A.
To address defendant's resubmission argument, we first
consider basic principles pertaining to the grand jury, the
prosecutor's charging discretion, and the court's authority to
assure fundamental fairness. "No person shall be held to answer
for a criminal offense, unless on the presentment or indictment
of a grand jury . . . ." N.J. Const. art. I, ¶ 8. A defendant
is entitled to a "fundamentally fair grand jury presentation."
State v. Grant, 361 N.J. Super. 349, 356 (App. Div. 2003). "The
purposes of the grand jury extend beyond bringing the guilty to
trial. Equally significant is its responsibility to 'protect[]
the innocent from unfounded prosecution.'" State v. Hogan, 144
N.J. 216, 228 (1996) (quoting State v. Murphy, 110 N.J. 20, 29
(1988)). "The grand jury serves an important and historic
purpose in standing between the defendant and the power of the
State, protecting the defendant from unfounded prosecutions."
State v. Fortin, 178 N.J. 540, 638 (2004).
Noting that many other states have dispensed with the grand
jury entirely, our Court observed, "In New Jersey, the grand
jury remains a constitutional bulwark against hasty and ill-
founded prosecutions and continues to lend legitimacy to our
system of justice by infusing it with a democratic ethos."
Ibid. "[T]he right to indictment in the State Constitution
11 A-2058-15T3 indicates that the grand jury was intended to be more than a
rubber stamp of the prosecutor's office." Hogan, 144 N.J. at
236. "Our State Constitution envisions a grand jury that
protects persons who are victims of personal animus,
partisanship, or inappropriate zeal on the part of a
prosecutor." Ibid.
Yet, an indictment should not be dismissed "except on 'the
clearest and plainest ground' and an indictment should stand
'unless it is palpably defective.'" State v. N.J. Trade Waste
Ass'n, 96 N.J. 8, 18-19 (1984) (quoting State v. Weleck, 10 N.J.
355, 364 (1952)). Our Supreme Court has declared the general
principle that "[a] trial court . . . should not disturb an
indictment if there is some evidence establishing each element
of the crime to make out a prima facie case." State v.
Morrison, 188 N.J. 2, 12 (2006).
Before the grand jury may exercise its power, the
prosecutor must make the discretionary decision to present the
case. The prosecutor's "duty is not merely to prosecute the
guilty but to protect the innocent as well." Abbati, 99 N.J. at
434. Our Court has recognized that the prosecutor's charging
power is broad, but not boundless. Upon clear and convincing
proof of a patent and gross abuse of discretion, a court may set
aside a refusal to admit a defendant to pre-trial intervention.
12 A-2058-15T3 See State v. K.S., 220 N.J. 190, 200 (2015) (noting "[t]his
discretion arises out of 'the fundamental responsibility of
prosecutors for deciding whom to prosecute'") (quoting State v.
Dalglish, 86 N.J. 503, 509 (1981)); State v. Leonardis, 73 N.J.
360, 382 (1977) (recognizing the "patent and gross abuse of
discretion" standard); State v. Childs, 242 N.J. Super. 121, 129
(App. Div. 1990) (stating that the prosecutor's broad
discretion, while "not boundless, . . . may only 'be reviewed
for arbitrariness or abuse'") (quoting In re Investigation
Regarding Ringwood Fact Finding Comm., 65 N.J. 512, 516 (1974)).
Separate from the court's authority to review prosecutorial
discretion, see Abbati, 99 N.J. at 433-34 (noting that the
prosecutor's office "has never been regarded as free from
judicial supervision and control"), is the court's inherent
authority to dismiss an indictment with prejudice to assure
fundamental fairness. "Thus, the prosecutor's decision to
reprosecute [after successive mistrials] is not immune from
judicial supercession even absent a finding of abuse of
prosecutorial discretion." Id. at 434. "The anxiety, vexation,
embarrassment and expenses to the defendant of continual
reprosecution where no new evidence exists is a proper subject
for the application of traditional notions of fundamental
fairness and substantial justice." Id. at 430. The Supreme
13 A-2058-15T3 Court held that "a trial court [after considering multiple
factors] may dismiss an indictment with prejudice after
successive juries have failed to agree on a verdict when it
determines that the chance of the State's obtaining a conviction
upon further retrial is highly unlikely." Id. at 435.2
The Court invoked Abbati in stating that it "would reflect
an appropriate exercise" of the court's inherent authority to
dismiss an indictment where the grand jury process was tainted
by an unconstitutional criminal investigation. State v. Sugar,
2 In deciding whether to dismiss an indictment with prejudice after successive mistrials, a trial court must consider:
(1) the number of prior mistrials and the outcome of the juries' deliberations, so far as is known; (2) the character of prior trials in terms of length, complexity, and similarity of evidence presented; (3) the likelihood of any substantial difference in a subsequent trial, if allowed; (4) the trial court's own evaluation of the relative strength of each party's case; and (5) the professional conduct and diligence of respective counsel, particularly of the prosecuting attorney. The court must also give due weight to the prosecutor's decision to reprosecute, assessing the reasons for that decision, such as the gravity of the criminal charges and the public's concern in the effective and definitive conclusion of criminal prosecutions. Conversely, the court should accord careful consideration to the status of the individual defendant and the impact of a retrial upon the defendant in terms of untoward hardship and unfairness.
[Abbati, 99 N.J. at 435.]
14 A-2058-15T3 100 N.J. 214, 245 n.4 (1985) (citing Abbati, 99 N.J. at 418).3
We therefore surmise that the grand jury process is subject to
review based on the judiciary's inherent authority to assure
fundamental fairness.
B.
Turning to the issue of resubmission of cases to successive
grand juries, we are aware of no New Jersey statute or common
law precedent — and defendant points to none — that
categorically bars a prosecutor from choosing to resubmit a case
to a new grand jury after one has previously voted a no bill, or
requires the State to present new evidence as a condition of
resubmission. Consequently, we find no basis for the trial
court's pronouncement of the "multiple presentation rule" that
conditions resubmission on the presentation of new evidence.
The Attorney General has not established any standard
limiting resubmission. The manual promulgated by the Attorney
General and the County Prosecutors Association provides:
Nor does the fact that a grand jury has considered the matter and voted a no-bill legally bar re-presentation of the matter to the grand jury, because the return of a no- bill reflects nothing more than the fact that a particular grand jury at a particular time found that the proofs presented to it
3 In Sugar, the Court suggested that the State could "proceed anew" with evidence "unsullied by the constitutional violations that occurred." 100 N.J. at 245 n.4.
15 A-2058-15T3 were insufficient to establish the commission of a crime or the participation in a crime of a particular accused.
[New Jersey Grand Jury Manual 95 (Dep't of Law & Pub. Safety et al. eds., 4th ed. 1993).]4
A trial court addressed the issue of resubmission in a
civil case. Rosetty v. Twp. Comm. of Hamilton Twp., 82 N.J.
Super. 340, 349 (Law Div. 1964), aff'd o.b., 96 N.J. Super. 66
(App. Div. 1967). In holding that a no bill was not proof of a
person's innocence, the trial court noted, "[T]he same grand
jury, or its successor, might properly, within the period of the
statute of limitations, review and reconsider the charges and
return an indictment against an accused." Ibid. However, the
statement in Rosetty is not the end of our analysis, because the
statement was not essential to the court's decision, and the
court did not address whether there are limitations on
resubmission.
The prevailing view in other jurisdictions is that there is
no general limitation on a prosecutor's power to resubmit
matters to a second grand jury after failing to secure an
indictment from the first. See Wayne R. LaFave et al., Criminal
4 By contrast, the United States Attorney's Manual, "suggests that representment not occur 'in the absence of additional or newly discovered evidence or a clear circumstance of a miscarriage of justice.'" United States. v. Pabian, 704 F.2d 1533, 1538 (11th Cir. 1983).
16 A-2058-15T3 Procedure, § 15.2(h) (4th ed. 2015); Sara Sun Beale et al.,
Grand Jury Law & Practice, § 8:6 at 8-56 to 8-65 (2d ed. 2015).
In particular, "[t]he longstanding federal rule is that
resubmissions are permissible, without court approval, even when
the prosecutor presents no additional evidence to the second
grand jury." LaFave, § 15.2(h) at 535.
The United States Supreme Court has declared, "[T]he power
and duty of the grand jury . . . is not exhausted or limited by
adverse action taken by a previous grand jury, and . . . a
United States district attorney may present, without leave of
court, charges which a previous grand jury has ignored." Ex
parte United States, 287 U.S. 241, 250-51 (1932); see also
United States v. Thompson, 251 U.S. 407, 413-15 (1920)
(rejecting the argument that the prosecutor needed judicial
approval to resubmit charges to a new grand jury upon virtually
the same evidence that failed to persuade a prior grand jury);
United States v. Claiborne, 765 F.2d 784, 794 (9th Cir. 1985)
(holding "that the prosecution's presentation of evidence to
three grand juries . . . violated no procedural rule or
judicially-imposed limits on a grand jury's investigatory role,"
where the third grand jury voted to indict after the first two
did not). "The Double Jeopardy Clause of the Fifth Amendment
does not bar a grand jury from returning an indictment when a
17 A-2058-15T3 prior grand jury has refused to do so." United States v.
Williams, 504 U.S. 36, 49 (1992) (first citing Ex parte United
States, 287 U.S. at 250-51; then citing Thompson, 251 U.S. at
413-15).
Statutes in a minority of states require judicial approval
of a second presentment. LaFave, § 15.2(h) at 536; see also
Beale, § 8:6 at 8-56 n.1, 8-60 n.10 (listing states that
restrict submission by statute or court rule). Typically, those
courts have required a showing of newly discovered evidence.
LaFave, § 15.2(h) at 536-37. For example, in People v. Ladsen,
444 N.Y.S.2d 362, 364-66 (Sup. Ct. 1981), a New York trial court
applied N.Y. Crim. Proc. Law § 190.75 (1977), which states that
a dismissed charge may not be resubmitted to a grand jury
"unless the court in its discretion authorizes or directs the
people to resubmit such charge to the same or another grand
jury." The court held that the presentation of new evidence
justified the resubmission. Ladsen, 444 N.Y.S.2d at 365-66.
Alternatively, at least one state – Georgia – has statutorily
imposed a fixed limit of two presentations, except newly
discovered evidence or fraud by the defendant may justify a
third. See Ga. Code Ann. § 17-7-53 (2018). However, New Jersey
has not adopted a statutory restriction on resubmission.
18 A-2058-15T3 The underlying rationale of the federal approach is that
"the power and duty of the grand jury to investigate . . . is
continuous and is therefore not exhausted or limited by adverse
action [previously] taken by a grand jury or by its failure to
act." LaFave, §15.2(h) at 536 (quoting Thompson, 251 U.S. at
413). Requiring judicial approval of resubmission would
undermine "the power of grand juries, and the right of the
Government to initiate prosecutions for crime . . . ."
Thompson, 251 U.S. at 415.
Also, completely denying a prosecutor the right to resubmit
would deprive the prosecutor of the benefit of a continuing
investigation that produces additional evidence of guilt. See
Beale, § 8:6 at 8-57. A failure to secure an indictment because
of insufficient evidence may occur "because the prosecutor for
strategic reasons decided not to reveal the evidence it had
already gathered." Andrew Leipold, Why Grand Juries Do Not (and
Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 291 (1995);
see also Beale, § 8:6 at 8-57 (noting that barring resubmission
would penalize the government for presenting "an abbreviated
version of [its] case for the sake of efficiency and
convenience"). Preventing a prosecutor from resubmitting would
also deny a means of correcting a grand jury's "erroneous
19 A-2058-15T3 refusal" to indict, which "is not subject to judicial review."
Ibid.5
On the other hand, "allowing re-submissions prevents the
grand jury from acting as an effective check on the prosecutor,"
and disincentivizes the prosecution from presenting its most
complete case in what would be its first and only chance for an
indictment. Ric Simmons, Re-examining the Grand Jury: Is There
Room for Democracy in the Criminal Justice System?, 82 B.U. L.
Rev. 1, 19 (2002). Commentators have noted how infrequently
grand juries actually screen out charges in the first place.
See, e.g., Leipold, 80 Cornell L. Rev. at 271-72. To permit a
prosecutor to resubmit charges, even in those rare instances, at
least absent new and materially different evidence, may dilute
the grand jury's fundamental role, as stated in Hogan, 144 N.J.
at 228 (quoting Murphy, 110 N.J. at 29), "to 'protect[] the
innocent from unfounded prosecution.'"
5 For example, if the target of a grand jury presentment enjoys broad public support, it may be difficult to secure an indictment although the State's evidence is strong. See Leipold, 80 Cornell L. Rev. at 309 (noting that "a refusal to indict may also be based on prejudice against the crime victim, bias in favor of the target, or other illegitimate reasons"). Preserving discretion to resubmit enables the prosecution to combat such grand jury predisposition. Cf. People v. Dykes, 449 N.Y.S.2d 284, 288 (App. Div. 1982) (stating although resubmission should occur sparingly, it is appropriate when a grand jury "fail[s] to give a case a complete and impartial investigation").
20 A-2058-15T3 Just as "repeated attempts to convict an individual . . .
enhanc[es] the possibility that even though innocent he may be
found guilty," Abbati, 99 N.J. at 430 (quoting Green v. United
States, 355 U.S. 184, 187-88 (1957)), repeated resubmissions to
a grand jury enhances the possibility that an innocent person
will be indicted. See Niki Kuckes, The Useful, Dangerous
Fiction of Grand Jury Independence, 41 Am. Crim. L. Rev. 1, 49
(2004) (contending that the prosecutor's power, rather than the
grand jury's, is enhanced by the rule that "[t]he prosecutor is
not bound by one grand jury panel's decision to reject an
indictment, but can simply seek the same indictment from another
grand jury panel").
Some courts have indicated that, even in the absence of
statutory limitations, the power to resubmit is not boundless
nor immune from judicial control. In Commonwealth v. McCravy,
the Massachusetts Supreme Judicial Court stated it "would bear
consideration" whether "submission of the same evidence to
multiple grand juries would be inconsistent" with the purpose of
grand juries "to shield 'the innocent against hasty, malicious
and oppressive public prosecutions.'" 723 N.E.2d 517, 522
(Mass. 2000) (quoting Jones v. Robbins, 74 Mass. 329, 344
(1857)). However, the court held that "[r]esubmission of the
same evidence to two grand juries present[ed] no such
21 A-2058-15T3 difficulty." Ibid. The court in In re United States, 441 F.3d
44, 63 (1st Cir. 2006), declined to "decide whether there can be
some form of impermissible grand jury shopping which would
warrant court inquiry."
Our Supreme Court has parted with the United States Supreme
Court's more limiting view of judicial oversight of grand jury
proceedings. See Hogan, 144 N.J. at 231, 236-37 (rejecting the
view in Williams, 504 U.S. at 55, and holding that the
prosecutor is obliged to present clearly exculpatory evidence to
a grand jury). Consistent with that independent view, as well
as the principles enunciated in Hogan, Leonardis, and Abbati, we
are confident our Court would place some limits on successive
resubmissions, in order to respect the grand jury's screening
function to shield the innocent; control the abusive exercise of
prosecutorial discretion; and assure defendants fundamental
fairness.
C.
However, we need not map the boundaries of those limits in
this case. Mindful of the respective roles of the grand jury,
prosecutor, and court, we conclude the trial court did not err
in refusing to dismiss the indictment returned by the third
grand jury. We are satisfied that the State presented new and
material evidence to that third panel. Notably, the Court in
22 A-2058-15T3 Abbati addressed the court's exercise of inherent authority to
dismiss an indictment with prejudice to prevent retrials "where
no new evidence exists." 99 N.J. at 430. Condon's opinion
testimony not only corroborated Riedel's testimony, but in some
respects supplemented it, by providing greater details as to the
significance of the tools and equipment that defendant and his
father possessed.
Moreover, each panel fulfilled a fundamental purpose of the
grand jury. The first protected defendant from what fewer than
twelve grand jurors concluded was a well-founded prosecution,
although the second grand jury found sufficient evidence to
indict. See R. 3:6-8 (requiring concurrence of twelve or more
jurors in return of indictment); R. 3:6-1 (requiring grand
juries not exceeding twenty-three members). The third grand
jury, based on expanded evidence, brought to trial someone there
was probable cause to believe committed a crime.
Also, defendant presents no evidence of an abuse of
prosecutorial discretion. He exaggerates the record in
asserting "the prosecutor kept presenting the same evidence to
different grand juries until a grand jury produced a true bill."
The State obtained an indictment upon just the second
presentment. The trial court dismissed the indictment on its
own motion, based on its understanding that the State was
23 A-2058-15T3 obliged to present new evidence. The State submitted the matter
to a third grand jury, adding a witness, evidently to comply
with the judge's view of the law. Two out of three grand juries
found, based on the evidence presented, there was probable cause
defendant committed the crimes charged. This is not a situation
in which a prosecutor "grand jury shopped" a weak case to
multiple grand juries until, finally, a compliant panel was
found.
Given the substantial weight of the State's evidence, and
the significance of the crimes alleged, we discern no abuse of
the prosecutor's broad discretion, let alone a patent and gross
abuse of discretion, in persisting to seek an indictment against
defendant after the first, and only the first, grand jury
declined to return one. See Leonardis, 73 N.J. at 382; Childs,
242 N.J. Super. at 129. In light of the circumstances, that
conclusion would apply, even absent the new evidence presented
to the third grand jury.
The strength of the State's case, and presentation of new
evidence, would also negate finding that resubmission deprived
defendant of fundamental fairness. See Abbati, 99 N.J. at 435
(predicating dismissal of indictment with prejudice after
successive mistrials "when [the court] determines that the
chance of the State's obtaining a conviction upon further
24 A-2058-15T3 retrial is highly unlikely"). Defendant also has not proved
that the resubmissions here caused him undue "anxiety, vexation,
embarrassment and expense. . . ." Id. at 430.6
Finally, defendant does not expressly allege that the
prosecutor's persistence was motivated by actual vindictiveness.
Certainly, no presumption of vindictiveness is appropriate. The
presumption applies when the State seeks superseding enhanced
charges apparently to retaliate against a defendant who
successfully exercised his or her appellate rights. See
Blackledge v. Perry, 417 U.S. 21, 27-28 (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." State v. Gomez, 341 N.J. Super. 560, 571 (App.
Div. 2001). "[N]o presumption of vindictiveness arises in the
pretrial stage." Id. at 573. Although a due process violation
can be established by "affirmative proof of actual
vindictiveness," id. at 578, no such proof was offered here.
In sum, we reject defendant's argument that resubmission in
this case warrants dismissal.
6 We need not tailor the Abbati factors, see supra note 2, for application to this case, and we leave it to other courts to determine whether and how they should apply the factors to future cases. Given the presentation of new evidence, the strength of the State's case, and the lack of apparent negative impact on defendant, we discern no deprivation of fundamental fairness.
25 A-2058-15T3 D.
We also reject defendant's contention that Riedel's passing
reference to defendant's admission of "some prior criminal
history" tainted the grand jury. Riedel explained what prompted
him to pat down defendant for weapons. He softened defendant's
actual admissions of prior weapons-related arrests.
No doubt, trial testimony of such prior bad acts would be
problematic, even if only offered to demonstrate why Riedel
patted down defendant, and not to prove defendant's disposition
to commit crimes, and conforming conduct. See N.J.R.E. 404(b);
State v. Cofield, 127 N.J. 328, 338 (1992) (establishing test
for admissibility of prior bad act evidence).7 However, "we have
upheld the validity of indictments by grand juries presented
with a variety of evidence that would have been inadmissible at
trial." Grant, 361 N.J. Super. at 357. That includes prior bad
act evidence. See State v. Scherzer, 301 N.J. Super. 363, 428-
29 (App. Div. 1997); State v. Engel, 249 N.J. Super. 336, 361
(App. Div. 1991). Riedel's testimony did not deprive defendant
of a fundamentally fair grand jury proceeding.
7 A court would need to weigh the prejudice of disclosure of a prior criminal history with its probative value. However, N.J.R.E. 404(b) does not apply in the grand jury. See In re Grand Jury Subpoena Issued to Galasso, 389 N.J. Super. 281, 292 (App. Div. 2006) (stating the grand jury functions "free from the constraints of the rules of evidence and procedure").
26 A-2058-15T3 III.
[At the direction of the court, the published version of this opinion omits the court's discussion of the trial court's denial of the motion to suppress evidence. See R. 1:36-3.]
IV.
[At the direction of the court, the published version of this opinion omits the court's discussion of the trial court's sentence of defendant. See R. 1:36-3.]
V.
Affirmed as to the conviction. Remanded for reconsideration
of the minimum period of parole ineligibility. We do not retain
jurisdiction.
27 A-2058-15T3