Dyer v. State
In Dyer v. State, 666 P.2d 438 (Alaska App. 1983), the Court held that no presumption of vindictiveness attaches to the government's pre-indictment decision to charge a defendant with more serious crimes.
In Dyer, the State initially charged the defendant with assault with a dangerous weapon (under the pre-1980 criminal code), and then requested that Dyer waive grand jury indictment. After Dyer refused to waive his right to indictment, the State presented Dyer's case to the grand jury and secured an indictment for the more serious felony of shooting with intent to kill, wound, or maim.
Dyer asked the superior court to dismiss this greater charge, claiming that the State had increased the charge for the purpose of retaliating against him for asserting his right to grand jury indictment. The superior court refused to dismiss the greater charge, and, on appeal, this Court affirmed the superior court's decision.
The Court explained that the doctrine of presumed vindictiveness:
"should not apply ... when evaluating a ... pretrial charge increase after a defendant's demand for a jury trial. The prosecutor should remain free before trial to exercise the broad discretion entrusted to him ... . The prosecutor's initial charging decision should not freeze future conduct. Moreover, there are certain advantages in avoiding a rule that would compel prosecutors to attempt to place every conceivable charge against an individual on the public record from the outset." (Dyer, 666 P.2d at 442-43.)
Based on these principles, the Court held in Dyer that an increase in the charges against a defendant does not give rise to a presumption of vindictiveness "when the change in the charges is made prior to, or at the time of, the initial indictment." Id. at 443.