STATE of New Mexico, Plaintiff-Appellant, v. Paul Adrian BRULE, Defendant-Appellee, 123 N.M. 611

OPINION PICKARD, Judge. 1. Defendant was charged in metropolitan court with assault and battery. After plea negotiations, when Defendant insisted on his right to trial, the State filed a nolle prosequi on the charge and presented the matter to the Bernalillo County grand jury. Defendant was then indicted for false imprisonment, N.M.S.A. 1978,

Section 30-4-3 (Repl.Pamp.1994), bribery of a witness, N.M.S.A. 1978,

Section 30-24-3(A)(3) (Repl. Pamp.1994), and battery, N.M.S.A. 1978,

Section 30-3-4 (Repl.Pamp.1994). After a hearing on Defendant’s motion to dismiss, the trial court dismissed the prosecution based on prosecutorial vindictiveness. 2. On appeal, the State argues that the trial court’s pretrial dismissal of the prosecution was an abuse of discretion. We conclude that it was not, and therefore we affirm. BACKGROUND 3. On November 5, 1994, police were dispatched to a convenience store regarding a domestic dispute. There, an officer spoke to the alleged victim, Robin Brule, about an argument she had had with Defendant, her husband.

According to the officer, she reported violent and threatening behavior by Defendant, including that he attempted to prevent her from leaving the room and from reporting the incident to police. The officer noted that the victim had red hand marks on her neck and was afraid of Defendant. As a result, the officer filed a criminal complaint of misdemeanor battery and misdemeanor assault in Bernalillo County Metropolitan Court. 4. The case was set for trial, but was continued on the prosecution’s motion because the alleged victim was unavailable due to medical problems.

Prior to the second trial setting on the misdemeanor charges, the alleged victim notified the metropolitan-court prosecutor that she did not want to continue with the prosecution because of the adverse impacts it would have on the parties’ son and because the alleged victim did not perceive herself to be a victim of domestic violence. This perception was directly contrary to the district-court prosecutor’s apparent attempt to pigeonhole this case into a typical one of a domestic violence victim enabling her habitually abusive husband to continue the abuse.

Following the conversation, the alleged victim was under the impression that the charges would be dismissed. Indeed, the State later filed a nolle prosequi of the ease. However, on April 26, 1995, the State referred the matter to the grand jury, which returned an indictment charging Defendant with more serious charges: false imprisonment, bribery of a witness, and battery. 5. Defendant filed a motion to dismiss on due process and double jeopardy grounds. At the hearing on the motion, Defendant presented evidence from two psychologists and the alleged victim.

The State’s position was that the evidence was irrelevant, but the court allowed Defendant a ‘Very limited amount of time” to make his presentation. The State never indicated that it had any witnesses of its own to call in response to Defendant’s motion. The psychologists offered the opinions that violence had not been part of the relationship between Defendant and the alleged victim, and that it was important that they be able to work together to parent their son. Ms. Brule testified about, among other things, the exaggerated nature of the original report of the incident given to police by a friend of hers (Ms.

Brule herself did not call the police), the uniqueness of the incident in Ms. Brule’s relationship with Defendant, the strain present in their relationship at that time, the potentially detrimental impact of continued prosecution on their ability to parent, and her efforts to get the charges against Defendant, her now ex-husband, dismissed. The State did not file a response to the motion or offer any evidence at the hearing. 6.

The trial court orally commented at the conclusion of the testimony that there was no rational basis for the continued prosecution of the case and that the prosecution was not in the best interest of the victim, her son, or the people of New Mexico. The trial court found the prosecution vindictive and dismissed the case. The State noted for the record that the court did not allow argument before dismissing the case. 7. The State filed its notice of appeal, and this case was submitted fully briefed to this Court.

Following oral argument, we remanded the case for the express purposes of allowing the State an opportunity to present argument, as well as allowing both parties to file requested findings of fact and conclusions of law and limited argument in the district court. This Court directed the trial court to enter written findings and conclusions or a written decision or both explaining the rationale behind its dismissal. Additionally, this Court directed that a supplemental record be filed and allowed the parties to file supplemental briefs. 8.

On remand, the State presented no argument and offered no specific rationale for its charging decisions, although it did request a finding of fact that it did not increase the charges for retaliation. The trial court found that because Defendant chose not to plead guilty in Metropolitan Court, his case was presented to the grand jury. In addition, the trial court found the facts to be consistent with our recitation of the evidence above.

The trial court also found that no explanation was offered by the State to justify its charging decisions, and therefore there was no evidence to rebut either a presumption of vindictiveness or evidence of actual vindictiveness. STANDARD OF REVIEW 9. We review a trial court’s dismissal on the basis of prosecutorial vindictiveness for abuse of discretion. See State v. Duncan, 117 N.M. 407, 409, 872 P.2d 380, 382 (Ct.App.1994).

However, when a trial court has made findings of historical fact purporting to justify the exercise of that discretion, those findings are reviewed pursuant to the substantial evidence standard. See State v. Bolton, 122 N.M. 831, 835, 932 P.2d 1075, 1079 (Ct.App.1996).

The guidelines of that standard are well known: the evidence is reviewed in the light most favorable to support the ruling below; the question is not whether the trial court could have reached a different result; we indulge in all inferences to support the result reached; and the possibility that different inferences could have been drawn from the facts does not compel a reversal. See State v. Anderson, 107 N.M. 165, 168, 754 P.2d 542, 545 (Ct.App.1988). DISCUSSION 10. Prosecutors are granted broad discretion in making charging decisions. See, e.g., State v.

Ogden, 118 N.M. 234, 240-41, 880 P.2d 845, 851-52 (1994). However, this discretion is not limitless. Even the United States Supreme Court’s standard for prosecutorial discretion allows room for exceptions. “ ‘[T]he decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.’ ” Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985) (emphasis added) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)).

New Mexico law clearly makes prosecutorial vindictiveness or other bad motives an exception to unbridled prosecutorial discretion, see, e.g., Bolton, 122 N.M. at 834, 932 P.2d at 1078, and although federal cases may be cited in this opinion, we are deciding this case solely under New Mexico law, see State v. Breit, 122 N.M. 655, 664, 930 P.2d 792, 801 (1996). 11. New Mexico law holds that there is no pretrial presumption of prosecutorial vindictiveness. See State v. Stevens, 96 N.M. 627, 630, 633 P.2d 1225, 1228 (1981); Duncan, 117 N.M. at 411, 872 P.2d at 384.

Although the trial court in this case erroneously found a pretrial presumption, there were other findings sufficient to support its decision. See State ex rel. Martinez v. Lewis, 116 N.M. 194, 206, 861 P.2d 235, 247 (Ct.App. 1993) (holding that a case should be affirmed despite some error in findings if there is support for the result in other findings). 12. A defendant can present evidence of actual prosécutorial vindictiveness at the pretrial stage and request relief from the court. See Stevens, 96 N.M. at 630-31, 633 P.2d at 1228-29. Under State ex rel. Delgado v.

Stanley, 83 N.M. 626, 627, 495 P.2d 1073, 1074 (1972), the general rule of prosecutorial discretion allows defendants to raise the issue of prosecutorial bad motives by making an appropriate showing. Once this challenge is raised, the State bears the burden of demonstrating the bona fides of its procedure. Bolton, 122 N.M. at 833, 932 P.2d at 1077. 13. Defendant raised the issue of prosecutorial vindictiveness by filing a motion to dismiss. At the' motion hearing, Defendant presented testimony from the alleged victim and from mental health professionals.

This testimony addressed, among other things, the tension in the relationship between Defendant and the alleged victim at the time, the uniqueness of the incident, alleged exaggeration of the event to the police, the fact that the marital relationship had since ended, the fact that the victim did not want the prosecution to continue, the fact that continued prosecution would be detrimental to this family, and the prosecutor’s deceptive treatment of the alleged victim. 14.

Although the State’s decision to pursue multiple felony charges after filing a nolle prosequi on the initial misdemeanor battery charge would not by itself raise a due process issue, see Duncan, 117 N.M. at 411, 872 P.2d at 384, given the other evidence in this case, it could have reasonably raised suspicions on the part of the trial court.

Considering the evidence presented and the standard of review, we hold that Defendant established through his witnesses a prima facie case of actual vindictiveness, at which point it was incumbent on the State to come forward with an explanation for its charging decision and continued prosecution. The State did not do so in response to the filing of the motion, or at the hearing, or as part of its presentation on remand. 15.

To the extent that the State argues that it was prevented from being heard by the trial court at the first hearing, that potential error was remedied by this Court’s invitation to the State to present argument in support of its decisions on remand. We can only conclude that the State has deliberately chosen not to offer the rationale behind its otherwise apparently unsupported decision to augment the charges against Defendant. 16. The State appears to take the position that courts have no business inquiring into its motives under the circumstances of this case. We disagree.

The trial court has a duty to intervene when prosecutors have bad reasons for their actions. Bolton, 122 N.M. at 832, 932 P.2d at 1076. We apply Bolton to the facts of this case and hold that the lack of explanation, while not a bad reason per se, permitted the trial court to infer a bad reason where no indication of a good reason existed. 17.

The dissent claims that the State took advantage of the opportunity presented by this appeal to explain “what the district court surely must have known below.” But the explanation on appeal was not an explanation of what the prosecutor’s actual motives were; it was merely an explanation of what might have been legitimate motives. In addition, it is not for us as an appellate court to find the facts. See Blaze Constr. Co. v. Taxation & Revenue Dept., 118 N.M. 647, 653, 884 P.2d 803, 809 (1994).

The explanation should have been made to the proper fact finder, the trial court, which would have then been in a position to determine whether the inference of vindictiveness was outweighed by a showing of bona fides. 18. The prosecutorial role is to pursue a charging pattern that reconciles the community interest in proper enforcement of the law and the interest, shared by the community and the defendant, in fairness to the defendant. See State v. Altgilbers, 109 N.M. 453, 466, 786 P.2d 680, 693 (Ct.App.1989).

Given the facts of this case, the trial court reasonably found that continued prosecution would not serve the interests of the victim, the child of the victim and Defendant, or the community, and appeared to be motivated by retaliation against both an uncooperative Defendant and an uncooperative victim. In short, continued prosecution of Defendant appeared pointless from the standpoint of reasons usually offered in support of prosecution, although, to be sure, there was evidence to support the charges and thus probable cause is not an issue.

In these circumstances and without explanation by the State, we cannot say that the trial court erred in finding a charging decision that levied an improper “penalty,” rather than a charging decision that reflects “the prosecutor’s normal assessment of the societal interest in prosecution.” See United States v. Goodwin, 457 U.S. 368, 380 n. 11, 102 S.Ct. 2485, 2492 n. 11, 73 L.Ed.2d 74 (1982). Finally, although we acknowledge that good reasons for the State’s decision are conceivable, it is not our role to invent these reasons for the purpose of reversing when the State has chosen not to rely on them.

See Lewis, 116 N.M. at 206, 207, 861 P.2d at 247, 248 (burden is on appellant to show how trial court clearly erred; burden is not on trial court or appellee to show why a decision is right); Hall v. Hall, 114 N.M. 378, 384, 838 P.2d 995, 1001 (Ct.App.1992) (presumption of regularity prevents appellate court from asserting contentions on behalf of appellant). CONCLUSION 19. Therefore, we hold that Defendant adequately raised the question of prosecutorial vindictiveness and established facts from which the trial court could infer actual vindictiveness, which warranted an explanation from the State.

Absent this explanation, and given the fact that this Court afforded the State ample opportunity to explain itself, we hold that, under the peculiar facts of this case, the district court acted within its discretion in dismissing the prosecution. Moreover, we are confident in the good judgment of our district courts that this opinion will be interpreted in a narrow and sensible manner so that it will not turn out to be the nightmare predicted by the dissent. Accordingly, we affirm. 20. IT IS SO ORDERED. BUSTAMANTE, J., concurs. BOSSON, J., dissenting.