State v. Ivie

Page 173

136 Wn.2d 173

961 P.2d 941

STATE of Washington, Respondent, v. James E. IVIE, Petitioner.

STATE of Washington, Respondent, v. Steve TAYLOR, Petitioner.

No. 64959-6.

Supreme Court of Washington En Banc.

Sept. 3, 1998.

David R. Johnson; and Crawford, McGilliard, Peterson, Yelish & Dixon, Port Orchard, for petitioner Taylor.

Russell Hauge, Kitsap County Prosecutor, Pamela Loginsky, Deputy, Port Orchard, for Respondent.

SANDERS, Justice.

This is a direct discretionary review of driving-while-under-the-influence-of-alcohol prosecutions against two Navy enlisted men, James E. Ivie and Steve Taylor. Because both had been previously punished in a "captain's mast" proceeding before their naval commanding officer, the district court dismissed pending charges pursuant to RCW 10.43.040 which bars a criminal prosecution in Washington if another sovereign has already prosecuted the defendant for the same offense The State, however, appealed to the superior court which reversed the dismissal. But we reverse the superior court, affirm the district court, and dismiss these redundant prosecutions.

Facts

Defendant Ivie. In 1996, defendant Ivie was an enlisted sailor in the United States Navy. On February 27, 1996 he was stopped by a Kitsap County sheriff's deputy and cited for driving while under the influence of alcohol or drugs (DUI) in violation of RCW 46.61.502, and for driving with a suspended license in violation of RCW 46.20.342. He submitted to a breath test which indicated he was legally intoxicated. Prior to his first appearance in district court, however, defendant Ivie was brought before his commanding officer in an Article 15 nonjudicial punishment proceeding (called a captain's mast in the Navy) and was charged with drunken operation of a vehicle in violation of the Uniform Code of Military Justice. His commander reduced his pay grade to the next inferior rank, suspended that order, and docked him one-half pay for two months. Thereafter, he was brought before the Kitsap County District Court to answer the DUI charge and the suspended license charge once again in state court. On his motion the district court dismissed, concluding defendant Ivie had been subjected to nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815, and therefore subsequent prosecution in state court was barred by Washington statute RCW 10.43.040. The State appealed to the Superior Court which reinstated the charges.

Defendant Taylor. In 1996, defendant Taylor was also enlisted in the United States Navy. On April 3, 1996, he was stopped by a Washington State Patrol Trooper in Kitsap County and was cited for DUI in violation of RCW 46.61.502. He submitted to a breath test which indicated he was legally intoxicated. Shortly thereafter the Navy conducted a captain's mast where defendant Taylor was charged with violation of Uniform Code of Military Justice Article 111, drunken or reckless driving. The record before us does not indicate what, if any, punishment was imposed by defendant Taylor's commanding officer. As was the case in Ivie, Taylor was brought before Kitsap County District Court which dismissed the criminal charge. The State appealed to the superior court where the charges were reinstated on consolidated review.

The issue is whether RCW 10.43.040 provides a defense to military personnel who have faced "nonjudicial punishment" under Article 15 of the Uniform Code of Military Justice, from state prosecution for a crime committed in the State of Washington. We conclude it does.

Discussion

RCW 10.43.040 prohibits a Washington prosecution if the defendant has already been prosecuted for the same offense by the federal government or another state or country. As these defendants have already been nonjudicially punished by the United States military for the same offense that they are now prosecuted for in state court, state prosecution is barred.

The single issue is whether "nonjudicial punishment" imposed by the military against these defendants for drunk driving amounts to a "criminal prosecution" as referenced in RCW 10.43.040. That statute provides:

Whenever, upon the trial of any person for a crime, ... the defendant has already been acquitted or convicted upon the merits, upon a criminal prosecution under the laws of [another] state or country, founded upon the act or omission with respect to which he is upon trial, such former acquittal or conviction is a sufficient defense.

RCW 10.43.040 (emphasis added).

It is undisputed that the United States military qualifies as the equivalent of another state or country for purposes of this statute. See State v. Caliguri, 99 Wash.2d 501, 512, 664 P.2d 466 (1983). It is also undisputed that Washington would now try defendants for the identical act for which they were already punished by the military. ¹ The only question remaining therefore is whether a military proceeding for "nonjudicial punishment" is equivalent to a "criminal prosecution" for purposes of this statute. If so the present state prosecution is barred.

Defining "Criminal Prosecution"

"Criminal prosecution" is not defined in the statute. Black's defines prosecution as "[a] criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime." Black's Law Dictionary 1221 (6th ed.1990). ² The meaning of "criminal prosecution" must further be determined from the statutory context in which it is used. RCW 10.43.040 is a double jeopardy statute and "criminal prosecution" is used therein to mean a proceeding sufficient to constitute jeopardy under double jeopardy jurisprudence.

An understanding of RCW 10.43.040 requires brief discussion of dual sovereignty. Pursuant to the doctrine of dual sovereignty neither constitutional double jeopardy clause ³ is offended by successive punishments at the hands of separate sovereigns so long as each sovereign punishes the defendant but once. See State v. Kenney, 83 Wash. 441, 145 P. 450 (1915) (citing State v. Coss, 12 Wash. 673, 42 P. 127 (1895)); Bartkus v. Illinois, 359 U.S. 121, 136-38, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). However, states may override the doctrine by either state constitution or statute by providing they will not prosecute a defendant who has already been prosecuted for the same offense elsewhere. Caliguri, 99 Wash.2d at 512, 664 P.2d 466; Annotation, Conviction or acquittal in federal court as bar to prosecution in state courts for state offense based on same facts--modern view, 6 A.L.R.4th 802, 816-24 (1981). Our statute abrogates dual sovereignty in this jurisdiction. Caliguri, 99 Wash.2d at 511, 664 P.2d 466.

In 1909 our Legislature replaced the doctrine of dual sovereignty by statutorily extending double jeopardy protection to prohibit prosecutions of a defendant who has already been prosecuted for the same offense elsewhere by a separate sovereign. Laws of 1909, ch. 249, § 20 (codified at RCW 10.43.040). Thereafter we have repeatedly characterized this statute as a guard against double jeopardy by separate sovereigns. See, e.g., Caliguri, 99 Wash.2d at 511, 664 P.2d 466 (Washington "rejected the dual sovereignty doctrine ... by statute.") (construing RCW 10.43.040); State v. Rudy, 105 Wash.2d 921, 924, 719 P.2d 550 (1986) (RCW 10.43.040 provides "greater protection against double jeopardy."); State v. Duncan, 111 Wash.2d 859, 868, 765 P.2d 1300 (1989) RCW 10.43.040 is statutory "protection against double jeopardy in multiple jurisdictions."); In re Personal Restraint of Cook, 114 Wash.2d 802, 814, 792 P.2d 506 (1990) (citations omitted) (RCW 10.43.040 provides "statutory double jeopardy protection"); State v. Mathers, 77 Wash.App. 487, 489-90, 891 P.2d 738 ("This state, however, provides greater protection against double jeopardy by statute.") (citing RCW 10.43.040), review denied, 128 Wash.2d 1002, 907 P.2d 297 (1995).

In the leading case of Caliguri, 99 Wash.2d at 512-13, 664 P.2d 466, this court unanimously recognized RCW 10.43.040 statutorily extends double jeopardy protection to bar Washington prosecutions which follow prosecutions by other sovereigns. The issue in Caliguri was whether the Washington prosecution for conspiracy to commit arson was for the same "act or omission" under RCW 10.43.040 as a prior federal prosecution for racketeering based on similar acts. Caliguri, 99 Wash.2d at 512, 664 P.2d 466. Acknowledging the phrase "act or omission" is undefined in the statute, we noted the statute pertains to double jeopardy and turned to double jeopardy jurisprudence to define the term. Id. at 512-14, 664 P.2d 466. We should do the same today.

Turning back to RCW 10.43.040 the text provides Washington will not criminally prosecute if a defendant has already been criminally prosecuted elsewhere for the same offense. Because RCW 10.43.040 simply extends double jeopardy protections we read it to mean Washington will not place a defendant in jeopardy if he has already been placed in jeopardy elsewhere. "Criminal prosecution" therefore means a proceeding sufficient to invoke jeopardy under double jeopardy jurisprudence. Referencing double jeopardy jurisprudence, we note the clause prohibits "multiple punishments for the same offense." State v. Catlett, 133 Wash.2d 355, 362, 945 P.2d 700 (1997) (citations omitted). Thus the double jeopardy aspect of our statute focuses on whether the prior proceeding amounts to "punishment."

Meshing the dictionary definition of "criminal prosecution" with its double jeopardy basis we understand "criminal prosecution" to include a proceeding instituted under the rules of law to determine the guilt or innocence of a person accused of committing a criminal act where such proceeding threatens "punishment" under double jeopardy jurisprudence. We then test "nonjudicial punishment" by this standard to see if it is a "criminal prosecution."

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