Dowling, Matter of

• Decision Date: 06 January 1983
• Docket Number: No. 48280-2,48280-2
• Citation: 98 Wn.2d 542,656 P.2d 497
• Parties: In the Matter of James T. DOWLING. *
• Court: Washington Supreme Court

Page 542

98 Wn.2d 542

656 P.2d 497

In the Matter of James T. DOWLING. ^*

No. 48280-2.

Supreme Court of Washington En Banc.

Jan. 6, 1983.

Crawford, McGilliard & Yelish, Hal E. Sheets, William Crawford, Port Orchard, for appellant.

C. Danny Clem, Kitsap County Prosecutor, Linda Krese, Deputy Pros. Atty., Port Orchard, for respondent.

G. William Shaw, Seattle, for amicus curiae.

DORE, Justice.

We reverse and dismiss the defendant's theft conviction, as it violates the double jeopardy clauses of the United States and Washington State Constitutions.

On August 3, 1979, 11-year-old James Dowling was taken to the Kitsap County Sheriff's office where he signed a statement admitting to the theft of a purse. At the conclusion of the Kitsap County Superior Court case against Dowling, the defense moved to dismiss. On November 14, 1979, the court granted defendant's motion to dismiss, concluding that pursuant to RCW 9A.04.050 defendant was presumed incapable of committing a crime and the State had not presented sufficient evidence to overcome that presumption. The State filed a motion to reconsider, and on March 12, 1980 the judge found the defendant guilty of theft. On April 16, 1980, the court entered a formal order wherein it granted the State's motion for reconsideration, set aside its dismissal order, and found the minor defendant guilty of theft.

The double jeopardy clause protects a citizen from being placed in the hazardous position of standing trial more than once for the same offense. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 61 A.L.R.2d 1119 (1957). If the appellate court reverses a conviction and remands for a new trial, the double jeopardy clause is ordinarily not offended. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). Nor is the protection offended when the first trial is on a defective information. State v. Burns, 54 Wash. 113, 102 P. 886 (1909). However, if an appellate court reverses a conviction based upon insufficiency of the evidence, a retrial is not permissible. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

The United States Supreme Court addressed the question of double jeopardy in United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978) when it stated:

To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that "even though innocent he may be found guilty." Green, 355 U.S. at 188, 78 S.Ct. at 223.

See also Sanabria v. United States, 437 U.S. 54, 68-9, 98 S.Ct. 2170, 2180-2181, 57 L.Ed.2d 43 (1978). An acquittal is defined by the Supreme Court as a resolution, correct or not, of some or all of the factual elements of the offense charged. Lee v. United States, 432 U.S. 23, 30 n. 8, 97 S.Ct. 2141, 2145 n. 8, 53 L.Ed.2d 80 (1977); United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977).

The trial court's original ruling on the presumption of incapacity may have been erroneous. As the State brings the appeal, however, the dismissal on November 14, 1979 operated to bar resubjecting the defendant to jeopardy. As the Supreme Court stated in United States v. Scott, supra 437 U.S. at 98, 98 S.Ct. at 2197:

[A] factual finding does "necessarily establish the criminal defendant's lack of criminal culpability," post, at 106 [437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65]. (Brennan, J., dissenting), under the existing law; the fact that "the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles," ibid., affects the accuracy of that determination, but it does not alter its essential character. By contrast, the dismissal of an indictment for preindictment delay represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation.

See also Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962); Sanabria v. United States, supra 437 U.S. at 68-69, 98 S.Ct. at 2180-2181; Lee v. United States, supra 432 U.S. at 29-30, 97 S.Ct. at 2145; United States v. Martin Linen Supply Co., supra 430 U.S. at 571, 97 S.Ct. at 1354.

The trial judge herein had determined that the evidence was legally insufficient to support a guilty verdict, even though he may have done so under an erroneous application of the law. In State v. Matuszewski, 30 Wash.App. 714, 717-18, 637 P.2d 994 (1981), the court quoted Justice Hicks' concurring opinion in State v. Rhinehart, 92 Wash.2d 923, 929, 602 P.2d 1188 (1979):

When a trial court dismisses a criminal case for insufficient evidence at the close of the State's case, no matter how erroneous that ruling may be, retrial of the defendant is precluded by the rule that one may not be twice placed in jeopardy for the same offense.

See also State v. Bundy, 21 Wash.App. 697, 587 P.2d 562 (1978), citing United States v. Scott, supra.

The Bundy court stated at 702-03, 587 P.2d 562:

Since a factual resolution was made, the order of dismissal is the legal equivalent of an acquittal and the double jeopardy clause of the United States Constitution and also of the Constitution of the State of Washington bars this appeal under the authority not only of United States v. Scott, supra, but of State v. Ridgley, 70 Wash.2d 555, 424 P.2d 632 (1967).

It makes no difference that the ruling of the court may have resulted from an erroneous interpretation of governing legal principles. Such an error affects the accuracy of a determination, but it does not alter its essential character as a judgment of acquittal.

See also State v. Motycka, 21 Wash.App. 798, 586 P.2d 913 (1978).

When the judge orally entered the motion to dismiss in the record, both the double jeopardy clause of the fifth amendment to the United States Constitution and article 1, section 9 of the Washington State Constitution prohibited further proceedings. The State cannot obtain, via a motion to reconsider, something prohibited by RAP 2.2(b)(1) and the United States and Washington State Constitutions.

We do not find our holding in State v. Aleshire, 89 Wash.2d 67, 568 P.2d 799 (1977), which respondent relies upon, applicable in the present case. In Aleshire, the alleged dismissal was in the form of a letter from the judge to counsel. There was no formal order or judgment, nor dismissal in open court. We held that because the court had taken the motion to dismiss under advisement and the proceedings had not been terminated by a journal entry or a formal order, nor a dismissal in open court, the letter alone did not terminate the matter. Specifically, we stated "[t]he orderly administration of justice should not be predicated upon letters to counsel." (Italics ours.) Aleshire, at 70, 568 P.2d 799.

We find the facts of the present case more analogous to those presented to us in State v. Bastinelli, 81 Wash.2d 947, 506 P.2d 854 (1973). In Bastinelli, the trial court in open court stated that the State had not proved its case. The clerk made a journal entry, and the judge signed the bottom of the page of the journal indicating the finding that the charge was not proven. Three weeks later, the State moved for reconsideration, which was granted, and a guilty judgment was entered. This court reversed that judgment and reinstated the original verdict of not guilty. The same analysis and rationale applies in the present case, under both the United States and Washington State Constitutions.

In finding double jeopardy and dismissing the case, the Bastinelli court stated at 949-50, 506 P.2d 854:

If it had concluded the state had proven petitioner's guilt beyond a reasonable doubt, the trial court would have been required to enter findings setting forth the facts essential to support the judgment of guilty. RCW 10.46.070; CR 52; State v. Russell, 68 Wash.2d 748, 415 P.2d 503 (1966). On the other hand, having concluded that the evidence was insufficient to establish guilt beyond a reasonable doubt, the court was obliged only to render a judgment of acquittal. Findings of fact and conclusions of law to support a negative are unnecessary. Miller v. Geranios, 54 Wash.2d 917, 338 P.2d 763 (1959); General Indus., Inc. v. Eriksson, 2 Wash.App. 228, 467 P.2d 321 (1970).

In a criminal case a finding by the court as the trier of fact, when entered into the record and signed by the trial judge so as to indicate that it is neither made with reservation nor subject to further consideration or proceedings in the same case, will support a judgment of acquittal or dismissal. RCW 4.44.060 provides in part:

The order of proceedings on a trial by the court shall be the same as provided in trials by jury. The finding of the court upon the facts shall be deemed a verdict ...

See also RCW 10.61.060 which reads in part:

When there is a verdict of acquittal the court cannot require the jury to reconsider it.

We now adopt the standard suggested by Justice Hale in his concurring opinion in Bastinelli, at 956, 506 P.2d 854:

A finding by the court as the trier of fact, without a jury, when read conclusively into the record in such a manner as to indicate that it is neither tentative nor made with reservation or advisement nor subject to further consideration or proceedings in the same case, will support a judgment of acquittal or dismissal.

It is undisputed that the trial court initially dismissed the case against the 11-year-old defendant. This decision of dismissal was reached only after extensive argument and discussion of the facts. While a formal journal entry is important, a ruling from the bench in open court must be viewed as final in the context of a criminal proceeding when such a ruling terminates ...