This opinion disposes of the pending motion to dismiss the indictment in the above matter, concluding that the terroristic threat count cannot be dismissed but that all other counts of the indictment must be dismissed.
The Court recognizes the rule that the power of dismissal is not to be exercised except upon the clearest and plainest grounds and that an indictment sufficient on its face survives the motion to dismiss if the Grand Jury has received at least "some evidence" as to each element of a prima facie case. State v. Vasky, 218 N.J. Super. 487 (App.Div.1987). Those tests are applied here.
A. The Grand Jury Proceedings
Butterfoss was indicted on April 28, 1988, for interference with custody and making terroristic threats, a two count indictment. When that indictment was obtained, an assistant prosecutor appeared before the Grand Jury, advised it of the charges against Butterfoss, and, among other things, said:
The next charge is a -- there was a charge of kidnapping that the State would recommend a no bill on. We will discuss that later.
Later, the assistant prosecutor said:
Finally, there is a charge of kidnapping that the State will recommend a no bill on. [The statutory provisions defining the crime of kidnapping were then recited.]
So in that particular charge, the State is recommending a no bill. You can consider that if you wish. . . .
GRAND JUROR: Why was the State not recommending the kidnapping charge?
PROSECUTOR: Kidnapping charge? There has to be evidence that it was his purpose to kidnap the child, and to inflict bodily injury on the victim or to terrorize the victim or to terrorize another.
GRAND JUROR: The wife would be another, wouldn't she?
PROSECUTOR: She would definitely be another. The only question is, was it his intent to terrorize her.
GRAND JUROR: Absolutely, with the strings and the gag.
PROSECUTOR: If you think it was, you can return a kidnapping charge on that. There was some concern as to whether or not it was something we could prove or whether or not that was the actual purpose, but if you feel there's enough evidence there, you can definitely return a bill on that.
GRAND JUROR: With all he was doing, telling her about the postcard and for him to contact her, that's something a kidnapper does. The way he went about it was not like a father that was just trying to see his child, and the fact that he hid the license plate, he hid the license plate, and all the stuff that he went through. He gave her all kinds of instructions pertaining to what a kidnapper would do.
PROSECUTOR: Okay. I think a lot of this -- you definitely, if you disagree with the State, you can return a kidnapping charge. A lot of the comments are best left for ...