# FILED

December 22, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT JA CKSON

FOR PUBLICATION STATE OF TENNESSEE , ) Filed: December 22, 1997 ) Appellant, ) Hon. C. Cre ed McGinl ey, ) Judge Vs. ) ) HENRY COU NTY DAVID WILLARD PHIPPS, JR., ) ) Supreme Court Appellee. ) No. 02-S01-9607-CC-00068 )

FOR STATE OF TENNESSEE FOR DAVID WILLARD PHIPPS, JR. John Knox Walkup Lionel R. Barrett, Jr. Attorney General & Repor ter Nashville, Tennessee Michael E. Moore Jacob M. Dickinson, IV Solicitor General Memphis, Tennessee Kathy Morante, Deputy Attorney General Criminal Justice Div

ision Lisa A. Naylor, Assistant Attorney Gener al Nashville, Tennessee

Robert “Gus” Radford District Attorney General Huntingdon, Tennessee


## O P I N I O N

REVERSED AND REMANDED. DROWOTA, J.-2- In this appeal, we must deter mine whether the State’s decision to pursue the death penalty, followi ng the defendant’s successful appeal of his conviction for which the death penalty originally was not sought, gives rise to a rebuttable presumption of prosecutorial v indictiveness. After ca refully considering the relevant legal pri nciples, we conclude tha t the rebuttable presumption of vindictiveness appl ies in this case. Because the State had no opportunity, dur ing the hearing on the motion to str ike, to introduce proof to ov ercome the presumption, we rever

se the decision of the Court of Cr iminal Appeals upholding the trial court’s order

striking the State’s notice of intent to seek the death penal ty and remand this cause to the tri al court for a hearing in which the State shall bear the burden of demonstrating by clear and convincing evidence that the presumption of vindictiv eness has been overcome. If, after h earing the proof presented, the trial court is satisfied that the presumpti on has been overcome, the State may seek the death penalty in this case.

BACKGROUND The facts relevant to the leg al question presented by this appeal may be briefly stated. The defendant, David W illard Phipps, Jr., was tried for the first degree murder of Michael Pr esson. The State did not seek the death penalty, and upon a jury verdict

of guilty, the trial

court sentenced Phipps to li fe imprisonment. The defendant appealed, an d after finding prejudicial error in the jury instructions, the Court of Criminal Appeals reversed the defendant’s conv iction and remanded for a new trial. See State v. Phipps , 883 S.W.2d 138 (Tenn. Crim. App. 1994), no app. for perm. to appeal filed

.-3- When the case returned to the trial court, the State filed a notice of intent to seek the death penalty pursuant to Rule 12.3(b), Tenn. R. Cr im. Proc. Phipps moved to strike the notice, arguing that principles of due process and double jeopardy preclude the State from seeking the death penalty following a successful defense appeal if the State did not seek th e death penalty at the initi al trial. At the hearing on the motion to stri ke, the State indicated that it intended to rely upon new evidence to establi sh the aggravating circumstance codified at Tenn. C ode Ann. § 39-13-204(I)(5) ( 1989), “[t]he murder was especially heinous, atr ocious, or cruel in that it invo lved torture or seri ous physical abuse bey ond that necessary to produce death.” The State identified a witness who had conta cted the District Attorney General’s office appr oximately one week prior to the trial and r elated a conversation between hi mself, the defendant, and some other men in w hich the defendant described how simple i t would be to escape prosecution for a homicide if the victim’s body w

ere burned and buried in a remote area of Stewart County. The State did not present the testi mony of this witness as an offer of proof at the hearing on the motion to stri ke.

The State also referred to a letter, allegedly written by the defendant, which had been found inside an internal, closed com partment of a back pack that was located by police after the mur der near the victim’s house. The back pack had been in the State’s possession from the beginning of the murder i nvestigation, but the letter had not been discov ered until after the conclusi on of Phipps’ initial tria l. A copy of this letter w

as attached to the State’s memorandum of la w filed in the trial court in oppositi on to the motion to strike.-4- Upon considering the argument of counsel at the hearing, the trial court granted the defense motion to stri ke the notice, thereby effectiv ely barring the State from seeking the death penalty. However, the tr ial court also granted the State permission to seek an interlocutory appeal pursuant to Rule 9, T enn. R. App. P., and the Court of Criminal Appeals accepted th e appeal. Although first concluding that constituti onal principles of double jeopar dy do not bar the State from seeking the death penalty under such circumstances, the Court of Criminal Appeals affirmed the trial court’ s judgment, finding that the r isk of prosecutorial vindictiveness and p iecemeal litigation is too great to allow the State to seek the death penalty upon retrial following a successful defense appeal of a conviction for which the death penalty originally had not been sought. Thereafter, we g ranted the State permission to appeal to consider this important i ssue of law. For the reasons that follow, we reverse the decision of the Court of Criminal Appeals upholding the trial cour t’s order striking

the State’s notice of intent to s eek the death penalty, and remand this c ause to the trial court for a hearing in which the State shall have the opportuni ty to present proof to over come the presumption of prosecutorial vindictiveness.

PROSECUTORIA L VINDICTIVENESS We begin our analysis of the issue in this appeal with North Caro lina v. Pearce , 395 U.S. 711, 724-25, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969), in which the United States S upreme Court held that it is a violation of basic due process to punish a person bec ause he has done what the law plainly allows.In Pearce , the defendant successfully appealed his conviction, an d on retrial, received a greater s

entence than had been originall y imposed. Pearce broug ht a-5-

federal habeas corpus action chal lenging the constituti onality of the harsher sentence.

The Supreme Court initially concluded that neither the Doubl e Jeopardy Clause nor the Equal Protection Clause bar imposition of a more severe sente nce after retrial. Howev

er, the Court held that the D ue Process Clause of the Fourteenth Amendment prevents increased sente nces which are actually or likely motiva ted by a vindi ctive desire to punis h a defend ant for t he exer cise of a statutory or procedural

right. Id ., 395 U.S. at 723-24, 89 S.Ct. at 2080. The Pearce Court stated: [d]ue process of law, then, r equires that vindic

tiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due pr

ocess also requires that a defendant be freed of apprehension of such a retaliator y motivation on the part of the sentencing judge. Id ., 395 U.S. at 725, 89 S.Ct. at 20 80. To prevent vindicti veness from entering into the decision and to allay any fear on the part of a defendant that an i ncreased sentence is the product of vindictiveness, the Court fashioned a prophylactic rule that whenever a judge impos es a more severe sentence upon a defendant after a new trial, the reasons for his doing so mu st affirm atively app ear. Tho se reason s must be based up on objec tive information concerning identi fiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part o f the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.1 Perry entered a guilty pl ea upon the expectation that any sentence he received woul d run concurrent t

o the sentence he was then serving. Because, under state law t he sentence on the guilt y plea di d not commence until t he guilt y plea was ent

ered, the ov

erall sentence was incr eased. -6- Id ., 395 U.S. at 726, 89 S.Ct. at 20 81. The rule announced in Pearce has been interpreted to create a rebut table presumption of vindicti veness which may be overcome only by obj ective information in the r ecord which justifies the increased sentence. United States v. Goodwin , 457 U.S. 368, 374, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1982).

In Blackledge v. Perry , 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (197 4), the Cour t exten ded the r

ule of Pearce to encompass post trial pros ecutorial conduct potentially motiv ated by vindictiv

eness. In that case, Perry, while in state prison, was invol

ved in a fight with a fellow inmate, and was c harged with the misdemeanor offense of assault with a dea dly weapon. He w

as convicted in a state court of limited juri sdiction and sentenced to a si x month prison term to run concurrent with the ter

m he was then serving . Perry exercis ed his statutory rig ht to appeal to the County Superi or Court, where, under applicable state law, he had a right to a trial de novo

.
After Perry filed his notice of appeal, but befo re the trial de novo , the prosecutor obtained an indictment charging Perry with the felony offense of assault with a deadly

weapon with intent to kill and inflict seriou s bodily injury. This charge was based on the same conduct for which Per ry had been charged and convicted of the misdemeanor i n the lower court. Per ry entered a guilty

plea 1 to the felony offense and was sentenced to a term of five to seven years-7-

imprisonment to run concurrent with the sentence he was then serving. Overall, this conviction increased Perry’s sentence by seventeen months.

The Supreme Court held that the pros ecutor’s decision to seek a felony indictment following Per ry’s assertion of his right to a de novo trial raised a presumption of vindictiveness. A prosecutor clearly

has a considerable stake i n discouraging convicted misdemeanants from appeali ng and thus obtaining a tr ial de novo in the Superior Court, since such an appeal will clearly require increased ex

penditures of prosecutorial r esources before the defendant’s conviction becomes fina l, and may even result in a formerly convicted defendant’ s going free. And, if the pr osecutor has the means readily at hand to discourage such appeals--by ‘upping the ante’ through a felony indictment whenev er a convicted misdemeanant pursues his statutor y appellate remedy--

the State can insure that only the mos t hardy defendants will

brave the hazards of a de novo

trial.

Id ., 417 U.S. at 27-28, 94 S.Ct. at 2102. In so holding, the Blackledge Court acknowledged that no affirmativ e evidence was offered to estab lish that the prosecutor “acted in bad faith or maliciously in s eeking the felony indictment against Perry.” Id ., 417 U.S. at 28, 94 S.Ct. At 2102. The Court emphasized, however, that the Pearce decision was not gr ounded upon the existence of actual retaliatory motivation, but upon the proposition that due process prote cts against the fear of vindictiveness which may chill a defendant’s exercise of the ri ght to appeal or collaterally

attack his first convi ction. Id . The Court concluded that “[a] person convicted of an offense is entitled to pu rsue his statutory right to a trial de

novo without apprehension that the state will retaliate by substituting a more serious charge for the ori ginal one, thus subjecting him to a significantly

increased potential period of incarceration.” Id

.-8- The Blackledge Court found that the prosecutor’ s decision to obtain the indictment for a felony offense after Perr y exercised his s

tatutory right to appeal posed a “realistic likelihood of vindictiveness” justifying recognition of a rebuttable presumption. Id ., 417 U.S. at 27, 94 S.Ct. at 210 2. Because the record containe d no explanation for the new i ndictment, the Court granted habeas corpus relief. In a revealing footnote, the C ourt expressly comment ed that a different disposition would have obtained had the State “shown that it w as impossible to proceed on the more serious charge at the outset.” Id ., 417 U.S. at 29, n. 7, 94 S.Ct.at 2103, n. 7. The Court gave as an example a case in whic h an assault victim died after his attacker was convicted of assault, and the prosecutor was permitted to retry the defendant for homicide. Id ., citing Diaz v. United States , 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); see also Wasman v. United States , 468 U.S. 559, 566, 104 S.Ct. 3217, 3222, 82 L.Ed.2d 42 4 (1984) (“[W]e explicitly observed [in Blackledge ] that a different disposition w ould have been called for had the State advanced a legitimate nonvindictive justification for the greater charge.”) This statement by the Blackledge Court was no more than an ac knowledgment and reaffirmation that Pearce established a rebuttable presumption of vindictiveness, not an absolute prohibition on en hancement of sentence upon retrial. Wasman , 468 U.S. at 566, 104 S.Ct. at 3222.

Because of its “severity,” see Goodwin , 457 U.S. at 373, 102 S.Ct. at 2489 , the Court has restricted application of the presumption of v indictiveness to situations where “its objectives are thought most efficaciously served.” Texas v. McCullough , 475 U.S. 134, 138, 106 S.Ct. 976, 979, 89 L.Ed.2d 104 (1986). In Colten v. Kentucky , 407 U.S. 104, 92 S.Ct. 1953, 32 L. Ed.2d 584 (1972), for-9-

example, the Court expr essly declined to ex

tend the presumption in the contex t of Kentucky’s two-ti er trial system. There , the defendant appealed a misdemeanor conviction to a trial de novo before a different judge who imposed a more severe sentence. The Court held that the p ossibility of “persona l vindictiveness ,“ presumed to exist in Pearce was not likely s ince a different judge imposed the more severe sentence.

Also, in Chaffin v. Stynchcombe , 412 U.S. 17, 93 S.Ct. 1977, 36 L.E d.2d 714 (1973), the Court rejec ted the need for the presumption, char acterizing as “de minimis” the possibilit

y that an increased sentenc e by a different jury upon reconviction after a new trial would be motiv

ated by vindictiv

eness. Not only was the second jury unawar e of the prior conviction,but in contrast to the judg e and prosecutor in Pearce and Blackledge , it was considered hi ghly unlikely that the jury would percei

ve a “personal stake i n the prior convicti on” or adopt an attitude of “self-vindication.” Chaffin , 412 U.S. at 27, 93 S.Ct. at 1983. The Court explained in Chaffin that

Pearce was not written with a view to protecting against the mere possibility that, once

the slate is wiped cl ean and the prosecution begins anew, a fresh sentenc e may be higher for some v alid reason associated with the need for flexibility and dis cretion in the sentencing process. Id ., 412 U.S. at 25, 93 S.Ct. at 198 2. Pearce , instead was “premised on the apparent need to guard against vindictiveness in the resentencing process.” Id

.

In Bordenkircher v. Hay es , 434 U.S. 357, 98 S.Ct. 663, 54 L.E d.2d 604 (1978), the Court consider ed, for the first time, an allegation of vindictiveness that-10-

arose in a pretrial setting. In that case, the Cour t held that the presumption does not arise when a prosecut or follows through on a threat, made during plea negotiations, to bring additional charges agai nst an accused who refused to pl ead guilty to the offense with which he was ori ginally charged. The Court declined to characterize this co nduct as offensive to due process and distinguished Pearce and Blackledge by noting that those cases dealt

with the State’s unilat

eral imposition of a penalty upon a defendant who had chosen to exerci se a legal right to a ttack his original conviction--a situation very different from the give-and-take negotiation common in plea bargaining between the prosec ution and defense, which arguably possess relatively

equal bargaining pow

er.

Id ., 434 U.S. at 362, 98 S.Ct. at 66 7.

More recently, in Goodwin , supra , the Court considered w hether the prosecutor’s addition of a felony charge following a defendant’s pretrial demand for a jury trial on a misdemeanor charge gives rise to the presumption. The Court stated that, in determining whether the circumstances of a particular case pose a “realistic likeli hood” of prosecutorial retal iation warranting application of the presumption of vindictiv eness, courts should focus upon “ the nature of the right asserted” and “the timing of the prosecutor’s action.” Id , 457 U.S. at 381-82, 102 S.Ct. at 2493. The balance wei ghs in favor of applying the presumption if the right asserted by the defendant requi res “duplicative ex penditures of prosecutorial resources,” or woul d require the State “to do over what it thought it had already done correctly.” Id ., 457 U.S. at 383, 102 S.Ct. at 2494. If the prosecu tor has a “personal stake” or if “institutional biases,” such as stare decisis and res judicata , militate against the retr ial of a decided question, the C ourt found the presumption-11-

especially appropriat

e. Id . With respect to the timing of the prosecut or’s action, the Court stated as follows:
There is good reason to be cautious before adopt ing an inflexible presumption of prosecutorial v indictiveness in a pr

etrial setting. In the course of preparing a cas e for trial, the prosecutor may uncover additional information that sug gests a basis for further pr osecution or he simply may come to real ize that information possess ed by the State has a broader significance. At this stage of the proceedin gs, the prosecutor’s assessment of the proper extent of prosecuti on may not have crystallized. In contrast, once a trial begins--and certainly by the time a conviction has been obtained--it is much more likely that the State has discover ed and assessed all of the information against an accused and has made a d etermination, on the basis of that information, of the extent to w hich he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.

Id ., 457 U.S. at 381, 102 S.Ct. at 2 492-93. Considering the c ircumstances of Goodwin in light of the relevant factors, the Court found that the pr esumption of vindictiveness w

as not warranted. The Cour t deemed it highly unli kely “that a prosecutor would respon d to a defendant’s pretrial demand for a jury trial by bringing charges not in the public interest.” Id , 457 U.S. at 384, 102 S.Ct. at 2494

. Unlike Blackledge , no duplicative expendi tures were incurred as a result of the defendant’s request, and as compare d to Pearce , no judge was asked to do again what he thought he had alread y done correctly onc

e. Thus, the deep seated institutional bias agai nst retrying prev iously decided issues was not offended. Id

. Finally, the timing

of the prosecutor’s decisio n weighed against a find ing of the presumption since, in the pre trial context, the asse

ssment of the proper extent of prosecution has not yet been resolved. Id

.-12- Later, the Court applied the ana lysis delineated in Goodwin , in Texas v. McCullough , supra , to determine whether the circumstances posed a “realistic likelihood” of retaliati on warranting the Pearce presumption. There, the defendant had been convicted of murder and se ntenced by a jury to tw enty years in pris

on. The trial judge, howev

er, granted the defendant’s motion for a new trial. Three months later, with the same trial judge presidin g, the defendant was retri ed and again convicted of murder by a jury. This time, the defendant elected to have his punishment fixed by the tri al judge, and a fifty year sentence was imposed. The defendant asserted that the increased sentence violated Pearce . Weighing the factors cited in Goodwin , the Court concluded that

[t]he facts of this case provi de no basis for a presumption of vindictiveness. I n contrast to Pearce , McCullough’s second trial came about because the trial judge herself concluded that the prosecutor’s misconduct r equired it. . . . [U]nl ike the judge who has been reversed, the trial judge here had no motivation to engage in self-vindication. In such circumstances, there is no justifiable concern about “institutional interests that might occ asion higher sentences by a judge desi rous of discouraging w hat he regards as meritless appeals.”
Id., 475 U.S. at 138-39, 106 S.Ct . at 979 (internal citati ons omitted), quoting Chaffin , 412 U.S. at 27, 93 S.Ct. at 1983.

The Cour

t alter native ly hel d that ev

en if Pearce applied, the presumption had been rebutted by the findings of the trial judge descri bing the grounds for the enhanced sentence. Id ., 475 U.S. at 141, 106 S.Ct. at 980. The trial judge reli ed upon new evidence about the murder, specifically the testimony of two witnesses, which had not bee n presented by th e State at the f irst trial. The tria l judge described the testimony as directly affecting the s trength of the State’s case at2 Pearce , 395 U.S . at 726, 89 S.Ct. at 20 81; Wasm an , 468 U.S. at 570-72, 104 S. Ct. at 3223-25 (“Consid eration of a criminal convicti on obtained i n the int erim between an ori ginal sentencing and a sentencing af ter ret rial .. . amply rebuts any presumption of vi ndicti veness” arising from impos ition of a longer sentence after retrial.”) -13- both the guilt and punishment phas es of the trial by bolster ing the credibility

of the State’s key witness , detracting from the credib ility of the witness es for the defense, directly implic ating the defendant in the commissi on of the murder, and shedding new light upon the defendant’s life, conduct, mental and moral propensities. McCullough , 475 U.S. at 143, 106 S.Ct. at 981.In addition, the trial judge explained that she l earned for the first time on retr ial that the defendant had been released from prison only four months before the crime had been committed. Finally, the trial judge candidly admitted that, had she fixed the f irst sentence, it would hav

e been longer than twenty years. Id ., 475 U.S. at 144, 106 S.Ct. at 981-82.

Because the circumstances c ited by the trial judge as justifications for the increased sentence did not ari se after the first trial, the defendant claimed that the findings were not sufficient to overcome the presumption of v indictiveness. In rejecting that claim, the Court acknowledged that Pearce and its progeny expressly held that,to justify an increased s entence and rebut the presumption of vindictiveness, a sentencing authority mus t point to “relevant con duct or events that occur subsequent to the or iginal sentencing pr

oceedings.” 2 Pointing out, however, that no case had attempted to exhaustively identify all circumst

ances which constitute val id justifications for incr eased sentences, the Court refused to restrict the scope of information suff icient to justify a sentence increase to only events which occur after the original sentenci ng proceeding. Findin g that such a3 As an example of circumstances gi ving ri se to an absurd re sult by applicat ion of th e restr iction , the C ourt q uote d the follow ing hyp othe tical p rovid ed by t he S olicito r Ge nera l.

Suppose . . . that a defen dant is convi cted of burgl ary, a non -viol ent, and apparently

first , offense. He is sentenced t o a short pri son term or perhaps pl aced on pr oba tion. F ollow ing a s ucc ess ful ap pea l and a conv iction on re trial, it is learned th at the defend ant has been usi ng an alias and in fact has a long cri minal record that

includes other burglaries, sever al armed robbery

convicti ons; and a convicti on for murder committed in the course of a bu rglary . None of the r easons underly ing Pearce i n any way j ustifi es the perverse result that the defen dant receive no gr

eater sentence in li ght of thi s informati on than he ori ginally recei ved when he was thou ght to be a first offender. McCullough , 475 U.S. at 141, 106 S.Ct. 980.
-14- restriction, in some cas es, would lead to absurd r esults 3 without advancing the underly ing rationale o

f Pearce , the Court chose to maintain a general standard, observing that the pres umption of vindictiveness “‘may be overcome only by objective information . . . justifying the increased sentence.’” McCullough , 475 U.S. at 142, 10 6 S.Ct. at 981, qu oting Goodwin , 457 U.S. at 374, 102 S.Ct. at 2489. The McCullough Court commented that “[n]othing in the Constitution requires a judge to i gnore “objective i nformation . . . justifying the increased sentence.” Id

.
The standard necessary to ov ercome the presumption has been further explained by state and federal co urt decisions ap plying Pearce . For example, in Adamson v. Ricketts , 865 F.2d 1011, 1019 (9th Cir.1988), the Court held that “[o]nce the presumption of vind ictiveness is rai sed, the burden shifts to the prosecution to rebut it by presenting evidence of i ndependent reasons or intervening circumstances which demonstrate that the prosecutor’s decis ion was motivated by a legitimate purpose.” In Adamson , the Ninth Circuit con cluded that the State had failed to rebut the pres umption of vindictiveness which arose from its reinstatement of the first deg ree murder charge and purs uit of the death-15-

penalty. Th e State intr oduced no proo

f on the issue,and attempted to overcome the pres umption by arg uing th at its d ecisio n was an appropr iate ex ercise of prosecutorial discreti on, and specifically author ized by the plea agr

eement under which Adamson agreed to testify. The federal court characterized the Sta te’s position as “wholly

” missing the point. Id ., 865 F.2d at 1019.

Likewise, in State ex rel. Patterson v. Randall , 637 S.W.2d 16, 19 (Mo.banc . 1982), the Court found t hat the S tate had failed t o advance “objecti ve evidence justifying

the prosecutor’s decisi on to seek the death penalty at Patterson’s second trial. ” As explanations for it s decision, the State alleg ed that the original prosecutor

did not believe the death penal ty should be imposed under any circumstance. The Mi ssouri Supreme Court rej ected this explanation, characterizing it as “nothing more than a mistake . . . on the part of the State in assigning a capital murder case to a prosecutor w ho does not believe in purs uing the death penalty.” Id . Secondly, the State argued that the new prosecutor could not have been motivated by vindictiveness bec

ause it was the convi ction obtained by the original pros

ecutor which had been rev ersed. The Court refused to indivi dualiz

e the app licati on of Blackledge , explaining that, once the presumption of vindictiveness ari ses, it applies with equal force to all members of the prosecuting attorney’ s office, not exclusivel y to the original pr

osecuting attorney. Id

. See also Thigpen v. Roberts , 468 U.S. 27, 31, 104 S.Ct. 2916, 2 919, 82 L.Ed.2d 23 (1984).

Though courts consistently hold that, to overcome the pr esumption, the State must present objective evidence which demonstrates that the prose cutor’s4 See U.S. v. Contr eras , 108 F.3d 1255 , 126 2 (10 th Cir . 199 7) (O nce pres um ption is establi shed, “the bur den shifts to the prosecution to j ustify its deci sion wit h ‘legitimate, ar ticul able, objective reason s.’”); U.S. v. Rodgers , 18 F.3d 1425, 1431 (8th Cir . 1994) (“[ E]ven if a presumption of vindi ctiveness appl ies, t he government may rebut it by prof fering l egiti mate, objective reasons for its condu ct.”); U.S. v. Garz a-Juarez , 992 F.2d 896, 906 (9th Cir . 1993) (“Once a pr esumption of vindict iveness has ari sen, ‘t he burden shift s to the prose cution t o show that any

increase i n the severit y of the charges did not stem from a vindict ive motive, or was justified by independent reason s or interve ning circu msta nces th at dispel the appea rance o f vindictivene ss.”); U.S. v. Espos ito , 968 F.2d 300, 305 (3rd Cir.1992) (“[E] ven if t he presumption appl ies, t he government may re but it by proffe ring legitim ate, objec tive reaso ns for its co nduct.”); U.S. v. Krezdorn , 718 F.2d 1360, 1365 (5t h Cir. 1983)(The presumption of vi ndicti veness can only be overcome by proof that “events occurring since the time of the original charge decisi on alteredthat i niti al exerci se of the prosec utor’s disc retion.”); U.S. v. Gall egos-Curiel , 68 1 F.2 d 116 4, 1 167 ( 9th Cir . 19 82) ( To overcome the presumption, the State must show that it s decision “

was justif ied by i ndependent reason s or interve ning circu msta nces th at dispel the appea rance o f vindictivene ss.”); U.S. v. Andrews , 633 F.2d 449, 456 (6th Cir. 1980) (“[W ]e think that only objective, on-the-record explana tions can suffice to rebut a find ing of realistic likelihood o f vindictivene ss.”); In Re Bower , 700 P.2d 1269, 1277 (Cal. 1985) ( “In order t o rebut the presumption of vi ndicti veness, the prosecution mus t demonstrate that (1) the increase in charge w as justified by some objective change in cir

cumstances or in the st ate of the evidence which l egiti mately i nfluenced t he charging process and (2) t hat the new i nformation coul d not reasonably have been di scovered at t he time the prosec ution exe rcised its d iscretion to bring the o riginal charg e.”); Cherry v. S tate , 414 N.E.2d 301, 305-06 (Ind. 1981) (The State must prove that the “increase i n the number or severity of t he charge s was n ot mo tivated by a vind ictive purpo se.”); Atchak v. State , 640 P. 2d 135, 144 (Al aska App . 198 1)(“[O ]nly ob jectiv e, on -the- reco rd ex plana tions can s uffic e to re but a findin g of re alistic likelihood o f vindictivene ss.”); State v. Hinton , 601 P.2d 338, 340 (Ariz . App. 1979) ( The presumption may be rebut ted by pro of of “i nterveni ng circumstances or even ts or of new evidence which the govern men t was ex cusab ly unaware at the time of the first ch arge.”); see also Kim berlin v. O.I. W hite , 7 F.3d 52 7, 531 (6 th Cir. 199 3); Jackson v. Walker , 585 F.2d 139, 148 (5th Cir. 1978); Har dwic k v. D oolittle , 558 F.2d 292, 301 (5th Cir. 1977).

5 See Wasm an , 468 U.S. at 570-72, 104 S. Ct. at 3223-25 (“Consideration of a cri minal conviction obtained in the interim betwee n an origina l sentenc ing and a senten cing after retrial . . . amply rebuts any

presumption of vi ndicti veness” arisi ng from impositio n of a longer sentence after retrial.”); Rodgers , 18 F.3d at 1431 (proof t hat prosecutor s were not aware of

signif icance of available evidence indicating a lack of preparation by State is sufficient to overcome presum ption); Espos ito , 968 F.2d at 306 (proof t hat prosecuti on chose not to char ge all possi ble offenses at the first trial because it woul d have made the tri al unmanageable and woul d have confused the j ury was sufficien t to rebut the presum ption); Andrews , 633 F.2d at 456 (prosecutor

’s asserti on that she made a mistake is not suffi cient to rebut the presumption, but her clai ms that the Grand Jury was unavailable and that she was inexperienced d o have an objective basis and des erve conside ration.); In Re Bower , 700 P.2d at 1277 (presumption cannot be overcome by the st atement that prosecut

or was motivated b

y a reassessment of t he evidence agai nst the defend ant rather than a desire to punish); U.S. v. Schi ller , 424 A.2d 51, 55 (D.C. 1980) ( presumption may be overcome more eas ily by evi dence that prosecutor was dealing with multiple criminal acts or a crime spree); Cherry , 414 N.E.2d at 305 (prosecuti on may overcome the presumption by offeringproof that additional evidence has been discovered, elem ents of the crime not com plete at the first tri al have now been completed, or an honest mistake or ov ersight was made at the time of the original decision to prose cute); Hinton , 601 P.2d at 340 (mere ineptitude in f ili ng the lower charge in t he first place do es not jus tify a subse quent c harge o f a mo re seriou s crim e). -16- decision was motivated by a legitimate purpose, the precise formulation of the test varies to some degree, 4 as does the type and quali ty of proof deemed sufficient to meet the standard. 5 However, as the F ifth Circuit recogniz ed, even though the-17-

burden has been placed on the State to overcome the presumption, it is the trial court which must perform the difficult task of determining, i n light of the totality of the circumstances, whether the State has met that burden. Jackson , 585 F.2d at 149.

To summarize, we hold that,even in the absence of proof of actual b ad faith or malice, a rebuttable presumption of prosecutorial vindictiveness may arise if the circumstances of a case pose a “realistic likel ihood” of prosecutorial retaliation. After a defendant has raised the issue of vindictiveness, the trial court must review the circumstances of record and decide whether the prosecutor’s actions give rise

to a realistic likel ihood of prosecutorial retali ation. In assessing whether a “realistic likelihood” of prosecutorial retaliation exists, courts must conside r whether t he right as serted by t he defe ndant wou ld result in duplic ative expenditures of prosecutori al resources, or req uire the State to do over again what it thought it had already done correctly once. Goodwin , 457 U.S at 383, 102 S.Ct. at 2494. When the circumst ances demonstrate that the prosecutor has “a personal stake” or an inter est in self vindication,or when institutional biases militate against retri al of a decided question, the bal ance weighs in favor of recognizing the pr

esumption. Id . Likewise the presumption is especially warranted if the prosecutor ial decision to increas

e the charge or sentence is made after an initial trial i s completed rather than in a pr etrial context. When application of these factors to the circumstances of a case reveal the existence of a realistic likelihood of prosecutorial retaliation, Pearce applies. The presumption is not , however, absolute. Onc e the presumption of vindicti veness has been raised, the burden shifts to the State to rebut it by presenting clear and convincing evidence6 But see In Re Bower , 700 P.2d at 1277 (S tate m ust sho w that the n ew evide nce us ed to rebut the pr

esumption “could not reasonabl y have been di scovered at t he time the prosecution exercis ed its discr etion to bring the original c harge.”)

. -18- which demonstrates that the prosecutor’s decision w as motivated by a leg itimate purpose. Finally, in attempting to overcome the presumption, the prosecu tor is not limited to evidence which arose after the original sentencing proceedings, so long as the evidence cons titutes “objective i nformation . . . justifying the increased sentence.” 6 McCullough , 475 U.S. at 142 , 106 S.Ct. at 98 1, quoting Goodwin , 457 U.S. at 374, 102 S.Ct. at 2489.

In accordance with these principles, we must fir st determine whether the prosecutor’s decision, i n this case, to seek the death pen alty at Phipps second trial presents a reali stic likelihood of prosecut orial retaliation gi

ving rise to the presumption of vindictiv eness. The State contends that the pr esumption does not apply. We disagree.

As in Pearce and Blackledge , Phipps’ successful appeal culminated in the reversal of his conv

iction. He must now be r etried. Duplicativ

e expenditures of prosecutorial resources will be incurred.Because Phipps exercis ed his right of appeal, the State must now do again what it thought it had already done correctly. The institutional biases ag ainst retrial of issues al ready decided militates in favor of the presumption. The inherent prosecutorial stake in disco uraging appeals by “upping the ante,” recog nized in Blackledge , applies with grea t force in this case. Finally, the post tri al timing of the prosecutor’ s decision to pursue the death penalty after

a successful appeal strongl y supports application of the presumption of vindictiveness in this case. As the United States Supreme Court recognized in-19-

Goodwin , a change in the chargi ng decision after an initi al trial has been completed and a conviction obt ained gives rise to

a great risk of prosecut orial retaliation. Moreove r we agree with the Missouri Supreme Cou rt which stated when confronting this i ssue:

Whether the State shall seek the death penalty in a capital murder case is initiall

y within the discr

etion of the State. Because of the severity of this penalty, the potential of its imposition normally will have the effect of creating apprehens ion, even during the or iginal trial. Given this,apprehension must necessaril y be created in the defendant who would appeal suc cessfully his convi ction and then be faced with the State’s election to seek the death penalty on retrial when it was wai

ved at the first trial. Because due process of law prohibits the state from responding to a person’s invocation of his right of appeal by bring ing a more serious charge against a defendant prior to his new tr ial, the same is necessari ly true of subjecting the defendant to a more s erious penalty subseque nt to his successful appeal.

Randall , 637 S.W.2d at 18. Accordingly, w e hold that the State’s pursuit of the death penalty following a successful appeal of a convic tion for which the death penalty originally

was not sought giv

es rise to a rebuttable pre sumption of prosecutorial vindictiveness. Having concluded that the circumstances of this case give rise to the presumption of vindictiv eness, we must next cons ider the State’s assertion that the pr esumption has been rebutted in this case.

As we have previ ously recognized,the presumption of vindicti veness is not absolute and may be overcome by clear and convincing evidence which demonstrates that the prosecutor ’s decision was motiv

ated by a legitimate purpose. See Footnote 4, supra . Though the prosecutor, in at tempting to overcome the presumption, is not limited to evidence w hich arose after the origi nal sentencing proceedings,the type of evidence sufficient to overcome the-20-

presumption varies gr

eatly. See Footnote 5, supra . Certainly, a prosecutor’s bare assertion that he or she made a mi stake when the evidence was initially evaluated is not sufficient to rebut the pre sumption. Andrews , 633 F.2d at 456; Hinton , 601 P.2d at 340. To overcome the presumption, the St ate must proffer fact specific, legitimate, on-the-record explanations for its conduct which dispel the appeara nce of vindictiveness. Esposito , 968 F.2d at 305; Andrews , 633 F.2d at 456.

In this case, no evidence was presented at the heari ng on the motion to strike. Moreover,argument at the hearing focuse d primarily upon princ

iples of double jeopardy and centered l ittle upon the dictates of due proc ess. Neither the defendant nor the prosecution had the benefit of the standards we announce herein. Although, from the statements of counsel in the record on appeal, we are aware of the general nature of the information up on which the State intends to rely to overcome the presumption, no specific proof e xplaining the prosecutor’s decision to seek the death penalt y was introduced at the hearing on the defendant’s motion to strike. Ac cordingly, we c

onclude that this cause should be remanded to the trial court for a hearing in which the State shall have the opportunity to introduce p roof to rebut the presumption of vi ndictiveness. See e.g. Andrews , 633 F.2d at 456; State v. Lewis , 461 So.2d 1250, 1253 (La. App. 1984). We are confident th at the trial judge will carefully consider the proof presented, in light of the totality of the circumstances, to determine w hether the State has proffered fact specific, legitimate , on-the-record explanations for its decision to seek the death penalty whi ch will dispel the appearance of vindictivene ss. If the trial court is satis

fied, after hearing the proof, that the presumption has been overcome, the State may seek the death penalty in this c ase.-21- CONCLUSION For the reasons previo usly explained, w e conclude that the circumstanc es of this case pose a realistic likelihood of prosecutorial retaliation which gives rise to a rebuttable presumption of prosecutorial vindictiv eness. We reverse the decision of the Court of Criminal Appeals and reman d this case to the trial court for a hearing to allow the State an opportunity to r ebut the presumption by clear and convincing evi dence which demonstrates that the prosecutor’s decisi on was legitimate. If, after hearing the proof, the trial judge de termines that the presumption has been overcome, the State may seek the death penalty in this

case.

________________________________ FRANK F. DROWOTA, III, JUSTICE

Concur: Anderson, C.J., Reid, J. and Birch, J., c oncur separately - See Separate Concurring Opi nion. Holder, J., Not Pa rticipating.