FILED

December 22, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

FOR PUBLICATION

STATE OF TENNESSEE, ) Filed: December 22, 1997

)

Appellant, ) Hon. C. Creed McGinley,

) Judge

Vs. )

) HENRY COUNTY

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 & Reporter Nashville, Tennessee

Michael E. Moore Jacob M. Dickinson, IV

Solicitor General Memphis, Tennessee

Kathy Morante,

Deputy Attorney General

Criminal Justice Division 

Lisa A. Naylor,

Assistant Attorney General

Nashville, Tennessee 

 

Robert “Gus” Radford

District Attorney General

Huntingdon, Tennessee

O P I N I O N

REVERSED AND REMANDED. DROWOTA, J. 
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In this appeal, we must determine whether the State’s decision to pursue

the death penalty, following 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 vindictiveness. After carefully considering the

relevant legal principles, we conclude that the rebuttable presumption of

vindictiveness applies in this case. Because the State had no opportunity, during

the hearing on the motion to strike, to introduce proof to overcome the

presumption, we reverse the decision of the Court of Criminal Appeals upholding

the trial court’s order striking the State’s notice of intent to seek the death penalty

and remand this cause to the trial court for a hearing in which the State shall bear

the burden of demonstrating by clear and convincing evidence that the

presumption of vindictiveness has been overcome. If, after hearing the proof

presented, the trial court is satisfied that the presumption has been overcome, the

State may seek the death penalty in this case.

BACKGROUND

The facts relevant to the legal question presented by this appeal may be

briefly stated. The defendant, David Willard Phipps, Jr., was tried for the first

degree murder of Michael Presson. The State did not seek the death penalty, and

upon a jury verdict of guilty, the trial court sentenced Phipps to life imprisonment. 

The defendant appealed, and after finding prejudicial error in the jury instructions,

the Court of Criminal Appeals reversed the defendant’s conviction 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.
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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. Crim. 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 the death penalty at the initial trial. At the

hearing on the motion to strike, the State indicated that it intended to rely upon

new evidence to establish the aggravating circumstance codified at Tenn. Code

Ann. § 39-13-204(I)(5) (1989), “[t]he murder was especially heinous, atrocious, or

cruel in that it involved torture or serious physical abuse beyond that necessary to

produce death.” The State identified a witness who had contacted the District

Attorney General’s office approximately one week prior to the trial and related a

conversation between himself, the defendant, and some other men in which the

defendant described how simple it would be to escape prosecution for a homicide

if the victim’s body were burned and buried in a remote area of Stewart County. 

The State did not present the testimony of this witness as an offer of proof at the

hearing on the motion to strike.

The State also referred to a letter, allegedly written by the defendant, which

had been found inside an internal, closed compartment of a back pack that was 

located by police after the murder near the victim’s house. The back pack had

been in the State’s possession from the beginning of the murder investigation, but

the letter had not been discovered until after the conclusion of Phipps’ initial trial. 

A copy of this letter was attached to the State’s memorandum of law filed in the

trial court in opposition to the motion to strike.
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Upon considering the argument of counsel at the hearing, the trial court

granted the defense motion to strike the notice, thereby effectively barring the

State from seeking the death penalty. However, the trial court also granted the

State permission to seek an interlocutory appeal pursuant to Rule 9, Tenn. R.

App. P., and the Court of Criminal Appeals accepted the appeal. Although first

concluding that constitutional principles of double jeopardy 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 risk of prosecutorial

vindictiveness and piecemeal 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 granted

the State permission to appeal to consider this important issue of law. For the

reasons that follow, we reverse the decision of the Court of Criminal Appeals

upholding the trial court’s order striking the State’s notice of intent to seek the

death penalty, and remand this cause to the trial court for a hearing in which the

State shall have the opportunity to present proof to overcome the presumption of

prosecutorial vindictiveness.

PROSECUTORIAL VINDICTIVENESS

We begin our analysis of the issue in this appeal with North Carolina v.

Pearce, 395 U.S. 711, 724-25, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969), in

which the United States Supreme Court held that it is a violation of basic due

process to punish a person because he has done what the law plainly allows. In

Pearce, the defendant successfully appealed his conviction, and on retrial,

received a greater sentence than had been originally imposed. Pearce brought a
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federal habeas corpus action challenging the constitutionality of the harsher

sentence. 

The Supreme Court initially concluded that neither the Double Jeopardy

Clause nor the Equal Protection Clause bar imposition of a more severe sentence

after retrial. However, the Court held that the Due Process Clause of the

Fourteenth Amendment prevents increased sentences which are actually or likely

motivated by a vindictive desire to punish a defendant for the exercise 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, requires that vindictiveness 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 process also requires that a defendant be freed

of apprehension of such a retaliatory motivation on the part of the

sentencing judge. 

Id., 395 U.S. at 725, 89 S.Ct. at 2080. To prevent vindictiveness from entering

into the decision and to allay any fear on the part of a defendant that an increased

sentence is the product of vindictiveness, the Court fashioned a prophylactic rule

that

whenever a judge imposes a more severe sentence upon a

defendant after a new trial, the reasons for his doing so must

affirmatively appear. Those reasons must be based upon objective

information concerning identifiable 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 of the record, so that the

constitutional legitimacy of the increased sentence may be fully

reviewed on appeal.
1Perry entered a guilty plea upon the expectation that any sentence he received would run

concurrent to the sentence he was then serving. Because, under state law the sentence on the

guilty plea did not commence until the guilty plea was entered, the overall sentence was increased.

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Id., 395 U.S. at 726, 89 S.Ct. at 2081. The rule announced in Pearce has been

interpreted to create a rebuttable presumption of vindictiveness which may be

overcome only by objective information in the record 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 (1974),

the Court extended the rule of Pearce to encompass post trial prosecutorial

conduct potentially motivated by vindictiveness. In that case, Perry, while in state

prison, was involved in a fight with a fellow inmate, and was charged with the

misdemeanor offense of assault with a deadly weapon. He was convicted in a

state court of limited jurisdiction and sentenced to a six month prison term to run

concurrent with the term he was then serving. Perry exercised his statutory right

to appeal to the County Superior Court, where, under applicable state law, he had

a right to a trial de novo.

After Perry filed his notice of appeal, but before 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 serious bodily injury.

This charge was based on the same conduct for which Perry had been charged

and convicted of the misdemeanor in the lower court. Perry entered a guilty plea1

to the felony offense and was sentenced to a term of five to seven years
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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 prosecutor’s decision to seek a felony

indictment following Perry’s assertion of his right to a de novo trial raised a

presumption of vindictiveness.

A prosecutor clearly has a considerable stake in discouraging

convicted misdemeanants from appealing and thus obtaining a trial

de novo in the Superior Court, since such an appeal will clearly

require increased expenditures of prosecutorial resources before the

defendant’s conviction becomes final, and may even result in a

formerly convicted defendant’s going free. And, if the prosecutor

has the means readily at hand to discourage such appeals--by

‘upping the ante’ through a felony indictment whenever a convicted

misdemeanant pursues his statutory appellate remedy--the State

can insure that only the most 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 affirmative evidence was offered to establish that the

prosecutor “acted in bad faith or maliciously in seeking 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 grounded upon the existence of actual

retaliatory motivation, but upon the proposition that due process protects against

the fear of vindictiveness which may chill a defendant’s exercise of the right to

appeal or collaterally attack his first conviction. Id. The Court concluded that “[a]

person convicted of an offense 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.
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The Blackledge Court found that the prosecutor’s decision to obtain the

indictment for a felony offense after Perry exercised his statutory 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 2102. Because the record contained

no explanation for the new indictment, the Court granted habeas corpus relief. In

a revealing footnote, the Court expressly commented that a different disposition

would have obtained had the State “shown that it was 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 which 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 424 (1984) (“[W]e explicitly observed [in

Blackledge] that a different disposition would 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 acknowledgment and

reaffirmation that Pearce established a rebuttable presumption of vindictiveness,

not an absolute prohibition on enhancement 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 vindictiveness 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
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example, the Court expressly declined to extend the presumption in the context of

Kentucky’s two-tier 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 possibility of “personal vindictiveness,“

presumed to exist in Pearce was not likely since a different judge imposed the

more severe sentence.

Also, in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d

714 (1973), the Court rejected the need for the presumption, characterizing as “de

minimis” the possibility that an increased sentence by a different jury upon

reconviction after a new trial would be motivated by vindictiveness. Not only was

the second jury unaware of the prior conviction, but in contrast to the judge and

prosecutor in Pearce and Blackledge, it was considered highly unlikely that the

jury would perceive a “personal stake in the prior conviction” 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 clean and the prosecution

begins anew, a fresh sentence may be higher for some valid reason

associated with the need for flexibility and discretion in the

sentencing process.

Id., 412 U.S. at 25, 93 S.Ct. at 1982. Pearce, instead was “premised on the

apparent need to guard against vindictiveness in the resentencing process.” Id. 

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604

(1978), the Court considered, for the first time, an allegation of vindictiveness that
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arose in a pretrial setting. In that case, the Court held that the presumption does

not arise when a prosecutor follows through on a threat, made during plea

negotiations, to bring additional charges against an accused who refused to plead

guilty to the offense with which he was originally charged. The Court declined to

characterize this conduct as offensive to due process and distinguished Pearce

and Blackledge by noting that those cases dealt

with the State’s unilateral imposition of a penalty upon a defendant

who had chosen to exercise a legal right to attack his original

conviction--a situation very different from the give-and-take

negotiation common in plea bargaining between the prosecution and

defense, which arguably possess relatively equal bargaining power. 

Id., 434 U.S. at 362, 98 S.Ct. at 667.

More recently, in Goodwin, supra, the Court considered whether 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 likelihood” of prosecutorial retaliation warranting application of the

presumption of vindictiveness, 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 weighs in favor of applying the presumption if the right

asserted by the defendant requires “duplicative expenditures of prosecutorial

resources,” or would 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 prosecutor has a

“personal stake” or if “institutional biases,” such as stare decisis and res judicata,

militate against the retrial of a decided question, the Court found the presumption
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especially appropriate. Id. With respect to the timing of the prosecutor’s action,

the Court stated as follows:

There is good reason to be cautious before adopting an inflexible

presumption of prosecutorial vindictiveness in a pretrial setting. In

the course of preparing a case for trial, the prosecutor may uncover

additional information that suggests a basis for further prosecution or

he simply may come to realize that information possessed by the

State has a broader significance. At this stage of the proceedings,

the prosecutor’s assessment of the proper extent of prosecution 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 discovered and assessed all of the information

against an accused and has made a determination, on the basis of

that information, of the extent to which 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 2492-93. Considering the circumstances of

Goodwin in light of the relevant factors, the Court found that the presumption of

vindictiveness was not warranted. The Court deemed it highly unlikely “that a

prosecutor would respond 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 expenditures were incurred as a result of the

defendant’s request, and as compared to Pearce, no judge was asked to do again

what he thought he had already done correctly once. Thus, the deep seated

institutional bias against retrying previously decided issues was not offended. Id. 

Finally, the timing of the prosecutor’s decision weighed against a finding of the

presumption since, in the pretrial context, the assessment of the proper extent of

prosecution has not yet been resolved. Id.
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Later, the Court applied the analysis delineated in Goodwin, in Texas v.

McCullough, supra, to determine whether the circumstances posed a “realistic

likelihood” of retaliation warranting the Pearce presumption. There, the defendant

had been convicted of murder and sentenced by a jury to twenty years in prison. 

The trial judge, however, granted the defendant’s motion for a new trial. Three

months later, with the same trial judge presiding, the defendant was retried and

again convicted of murder by a jury. This time, the defendant elected to have his

punishment fixed by the trial 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 provide no basis for a presumption of

vindictiveness. In contrast to Pearce, McCullough’s second trial

came about because the trial judge herself concluded that the

prosecutor’s misconduct required it. . . . [U]nlike 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 occasion higher

sentences by a judge desirous of discouraging what he regards as

meritless appeals.”

Id., 475 U.S. at 138-39, 106 S.Ct. at 979 (internal citations omitted), quoting

Chaffin, 412 U.S. at 27, 93 S.Ct. at 1983.

The Court alternatively held that even if Pearce applied, the presumption

had been rebutted by the findings of the trial judge describing the grounds for the

enhanced sentence. Id., 475 U.S. at 141, 106 S.Ct. at 980. The trial judge relied

upon new evidence about the murder, specifically the testimony of two witnesses,

which had not been presented by the State at the first trial. The trial judge

described the testimony as directly affecting the strength of the State’s case at
2Pearce, 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 (“Consideration of a criminal conviction obtained in the interim between an original

sentencing and a sentencing after retrial . . . amply rebuts any presumption of vindictiveness”

arising from impos ition of a longer sentence after retrial.”)

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both the guilt and punishment phases of the trial by bolstering the credibility of the

State’s key witness, detracting from the credibility of the witnesses for the

defense, directly implicating the defendant in the commission 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 learned for the first time on retrial 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 first

sentence, it would have been longer than twenty years. Id., 475 U.S. at 144, 106

S.Ct. at 981-82.

 Because the circumstances cited by the trial judge as justifications for the

increased sentence did not arise after the first trial, the defendant claimed that the

findings were not sufficient to overcome the presumption of vindictiveness. In

rejecting that claim, the Court acknowledged that Pearce and its progeny

expressly held that, to justify an increased sentence and rebut the presumption of

vindictiveness, a sentencing authority must point to “relevant conduct or events

that occur subsequent to the original sentencing proceedings.”2 Pointing out,

however, that no case had attempted to exhaustively identify all circumstances

which constitute valid justifications for increased sentences, the Court refused to

restrict the scope of information sufficient to justify a sentence increase to only

events which occur after the original sentencing proceeding. Finding that such a
3As an example of circumstances giving rise to an absurd result by application of the

restriction , the C ourt q uote d the follow ing hyp othe tical provid ed by the Solicitor Ge nera l.

Suppose . . . that a defendant is convicted of burglary, a non-violent, and

apparently first, offense. He is sentenced to a short prison term or perhaps placed

on pr obation. Following a s uccess ful ap peal and a conv iction on re trial, it is

learned that the defendant has been using an alias and in fact has a long criminal

record that includes other burglaries, several armed robbery convictions; and a

conviction for murder committed in the course of a burglary. None of the reasons

underlying Pearce in any way justifies the perverse result that the defendant

receive no greater sentence in light of this information than he originally received

when he was thou ght to be a first offender.

McCullough, 475 U.S. at 141, 106 S.Ct. 980.

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restriction, in some cases, would lead to absurd results3

 without advancing the

underlying rationale of Pearce, the Court chose to maintain a general standard,

observing that the presumption of vindictiveness “‘may be overcome only by

objective information . . . justifying the increased sentence.’” McCullough, 475

U.S. at 142, 106 S.Ct. at 981, quoting 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 ignore “objective information . . . justifying the increased

sentence.” Id.

The standard necessary to overcome the presumption has been further

explained by state and federal court decisions applying Pearce. For example, in 

Adamson v. Ricketts, 865 F.2d 1011, 1019 (9th Cir. 1988), the Court held that

“[o]nce the presumption of vindictiveness is raised, the burden shifts to the

prosecution to rebut it by presenting evidence of independent reasons or

intervening circumstances which demonstrate that the prosecutor’s decision was

motivated by a legitimate purpose.” In Adamson, the Ninth Circuit concluded that

the State had failed to rebut the presumption of vindictiveness which arose from

its reinstatement of the first degree murder charge and pursuit of the death
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penalty. The State introduced no proof on the issue, and attempted to overcome

the presumption by arguing that its decision was an appropriate exercise of 

prosecutorial discretion, and specifically authorized by the plea agreement under

which Adamson agreed to testify. The federal court characterized the State’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 that the State had failed to advance “objective

evidence justifying the prosecutor’s decision to seek the death penalty at

Patterson’s second trial.” As explanations for its decision, the State alleged that

the original prosecutor did not believe the death penalty should be imposed under

any circumstance. The Missouri Supreme Court rejected 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 who does not believe in pursuing

the death penalty.” Id. Secondly, the State argued that the new prosecutor could

not have been motivated by vindictiveness because it was the conviction obtained

by the original prosecutor which had been reversed. The Court refused to

individualize the application of Blackledge, explaining that, once the presumption

of vindictiveness arises, it applies with equal force to all members of the

prosecuting attorney’s office, not exclusively to the original prosecuting attorney. 

Id. See also Thigpen v. Roberts, 468 U.S. 27, 31, 104 S.Ct. 2916, 2919, 82

L.Ed.2d 23 (1984).

Though courts consistently hold that, to overcome the presumption, the

State must present objective evidence which demonstrates that the prosecutor’s
4See U.S. v. Contreras, 108 F.3d 1255 , 1262 (10 th Cir. 1997) (O nce pres um ption is

established, “the burden shifts to the prosecution to justify its decision with ‘legitimate, articulable,

objective reason s.’”); U.S. v. Rodgers, 18 F.3d 1425, 1431 (8th Cir. 1994) (“[E]ven if a presumption

of vindictiveness applies, the government may rebut it by proffering legitimate, objective reasons for

its condu ct.”); U.S. v. Garza-Juarez, 992 F.2d 896, 906 (9th Cir. 1993) (“Once a presumption of

vindictiveness has arisen, ‘the burden shifts to the prosecution to show that any increase in the

severity of the charges did not stem from a vindictive 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 the presumption applies, the 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 (5th Cir. 1983) (The presumption of vindictiveness can only be overcome by proof that

“events occurring since the time of the original charge decision altered that initial exercise of the

prosec utor’s disc retion.”); U.S. v. Gallegos-Curiel, 681 F.2d 1164, 1167 (9th Cir. 1982) (To

overcome the presumption, the State must show that its decision “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.

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 to rebut the presumption of vindictiveness, the

prosecution mus t demonstrate that (1) the increase in charge w as justified by some objective

change in circumstances or in the state of the evidence which legitimately influenced the charging

process and (2) that the new information could not reasonably have been discovered at the time the

prosec ution exe rcised its d iscretion to bring the o riginal charg e.”); Cherry v. State, 414 N.E.2d 301,

305-06 (Ind. 1981) (The State must prove that the “increase in the number or severity of the

charge s was n ot mo tivated by a vind ictive purpo se.”); Atchak v. State, 640 P.2d 135, 144 (Alaska

App . 1981)(“[O ]nly objectiv 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 rebutted by proof of “intervening circumstances or events 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);

Hardwic k v. D oolittle , 558 F.2d 292, 301 (5th Cir. 1977).

5See Wasm an, 468 U.S. at 570-72, 104 S.Ct. at 3223-25 (“Consideration of a criminal

conviction obtained in the interim betwee n an origina l sentenc ing and a senten cing after retrial . . .

amply rebuts any presumption of vindictiveness” arising from imposition of a longer sentence after

retrial.”); Rodgers, 18 F.3d at 1431 (proof that prosecutors were not aware of significance of

available evidence indicating a lack of preparation by State is sufficient to overcome presum ption);

Espos ito, 968 F.2d at 306 (proof that prosecution chose not to charge all possible offenses at the

first trial because it would have made the trial unmanageable and would have confused the jury was

sufficien t to rebut the presum ption); Andrews, 633 F.2d at 456 (prosecutor’s assertion that she

made a mistake is not sufficient to rebut the presumption, but her claims 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 statement

that prosecutor was motivated by a reassessment of the evidence against the defendant rather than

a desire to punish); U.S. v. Schiller, 424 A.2d 51, 55 (D.C. 1980) (presumption may be overcome

more eas ily by evidence that prosecutor was dealing with multiple criminal acts or a crime spree);

Cherry, 414 N.E.2d at 305 (prosecution may overcome the presumption by offering proof that

additional evidence has been discovered, elem ents of the crime not com plete at the first trial have

now been completed, or an honest mistake or oversight was made at the time of the original

decision to prose cute); Hinton, 601 P.2d at 340 (mere ineptitude in filing the lower charge in the first

place do es not jus tify a subse quent c harge o f a mo re seriou s crim e). 

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decision was motivated by a legitimate purpose, the precise formulation of the test

varies to some degree,4 as does the type and quality of proof deemed sufficient to

meet the standard.5 However, as the Fifth Circuit recognized, even though the
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burden has been placed on the State to overcome the presumption, it is the trial

court which must perform the difficult task of determining, in 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 bad

faith or malice, a rebuttable presumption of prosecutorial vindictiveness may arise

if the circumstances of a case pose a “realistic likelihood” 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 likelihood of prosecutorial retaliation. In assessing

whether a “realistic likelihood” of prosecutorial retaliation exists, courts must

consider whether the right asserted by the defendant would result in duplicative

expenditures of prosecutorial resources, or require 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 circumstances demonstrate that the prosecutor has “a

personal stake” or an interest in self vindication, or when institutional biases

militate against retrial of a decided question, the balance weighs in favor of

recognizing the presumption. Id. Likewise the presumption is especially

warranted if the prosecutorial decision to increase the charge or sentence is made

after an initial trial is completed rather than in a pretrial 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. Once the presumption of vindictiveness has been raised, the

burden shifts to the State to rebut it by presenting clear and convincing evidence
6But 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 presumption “could not reasonably have been discovered at the time the prosecution

exercis ed its discr etion to bring the original c harge.”). 

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which demonstrates that the prosecutor’s decision was motivated by a legitimate

purpose. Finally, in attempting to overcome the presumption, the prosecutor is

not limited to evidence which arose after the original sentencing proceedings, so

long as the evidence constitutes “objective information . . . justifying the increased

sentence.”6 McCullough, 475 U.S. at 142, 106 S.Ct. at 981, quoting Goodwin, 457

U.S. at 374, 102 S.Ct. at 2489.

In accordance with these principles, we must first determine whether the

prosecutor’s decision, in this case, to seek the death penalty at Phipps second

trial presents a realistic likelihood of prosecutorial retaliation giving rise to the

presumption of vindictiveness. The State contends that the presumption does not

apply. We disagree.

As in Pearce and Blackledge, Phipps’ successful appeal culminated in the

reversal of his conviction. He must now be retried. Duplicative expenditures of

prosecutorial resources will be incurred. Because Phipps exercised his right of

appeal, the State must now do again what it thought it had already done correctly. 

The institutional biases against retrial of issues already decided militates in favor

of the presumption. The inherent prosecutorial stake in discouraging appeals by

“upping the ante,” recognized in Blackledge, applies with great force in this case. 

Finally, the post trial timing of the prosecutor’s decision to pursue the death

penalty after a successful appeal strongly supports application of the presumption

of vindictiveness in this case. As the United States Supreme Court recognized in
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Goodwin, a change in the charging decision after an initial trial has been

completed and a conviction obtained gives rise to a great risk of prosecutorial

retaliation. Moreover we agree with the Missouri Supreme Court which stated

when confronting this issue: 

Whether the State shall seek the death penalty in a capital

murder case is initially within the discretion of the State. Because of

the severity of this penalty, the potential of its imposition normally will

have the effect of creating apprehension, even during the original

trial. Given this, apprehension must necessarily be created in the

defendant who would appeal successfully his conviction and then be

faced with the State’s election to seek the death penalty on retrial

when it was waived 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 bringing a more serious charge against a

defendant prior to his new trial, the same is necessarily true of

subjecting the defendant to a more serious penalty subsequent to

his successful appeal. 

Randall, 637 S.W.2d at 18. Accordingly, we hold that the State’s pursuit of the

death penalty following a successful appeal of a conviction for which the death

penalty originally was not sought gives rise to a rebuttable presumption of

prosecutorial vindictiveness. Having concluded that the circumstances of this

case give rise to the presumption of vindictiveness, we must next consider the

State’s assertion that the presumption has been rebutted in this case.

As we have previously recognized, the presumption of vindictiveness is not

absolute and may be overcome by clear and convincing evidence which

demonstrates that the prosecutor’s decision was motivated by a legitimate

purpose. See Footnote 4, supra. Though the prosecutor, in attempting to

overcome the presumption, is not limited to evidence which arose after the original

sentencing proceedings, the type of evidence sufficient to overcome the
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presumption varies greatly. See Footnote 5, supra. Certainly, a prosecutor’s bare

assertion that he or she made a mistake when the evidence was initially evaluated

is not sufficient to rebut the presumption. Andrews, 633 F.2d at 456; Hinton, 601

P.2d at 340. To overcome the presumption, the State must proffer fact specific,

legitimate, on-the-record explanations for its conduct which dispel the appearance

of vindictiveness. Esposito, 968 F.2d at 305; Andrews, 633 F.2d at 456. 

In this case, no evidence was presented at the hearing on the motion to

strike. Moreover, argument at the hearing focused primarily upon principles of

double jeopardy and centered little upon the dictates of due process. 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 upon which the State intends to rely

to overcome the presumption, no specific proof explaining the prosecutor’s

decision to seek the death penalty was introduced at the hearing on the

defendant’s motion to strike. Accordingly, we conclude that this cause should be

remanded to the trial court for a hearing in which the State shall have the

opportunity to introduce proof to rebut the presumption of vindictiveness. See e.g.

Andrews, 633 F.2d at 456; State v. Lewis, 461 So.2d 1250, 1253 (La. App. 1984). 

We are confident that the trial judge will carefully consider the proof presented, in

light of the totality of the circumstances, to determine whether the State has

proffered fact specific, legitimate, on-the-record explanations for its decision to

seek the death penalty which will dispel the appearance of vindictiveness. If the

trial court is satisfied, after hearing the proof, that the presumption has been

overcome, the State may seek the death penalty in this case.
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CONCLUSION

For the reasons previously explained, we conclude that the circumstances

of this case pose a realistic likelihood of prosecutorial retaliation which gives rise

to a rebuttable presumption of prosecutorial vindictiveness. We reverse the

decision of the Court of Criminal Appeals and remand this case to the trial court

for a hearing to allow the State an opportunity to rebut the presumption by clear

and convincing evidence which demonstrates that the prosecutor’s decision was

legitimate. If, after hearing the proof, the trial judge determines 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., concur separately - See Separate Concurring Opinion.

Holder, J., Not Participating.