Hale v. State

• Decision Date: 11 February 1999
• Docket Number: No. CR,CR
• Parties: David HALE, Appellant, v. STATE of Arkansas, Appellee. 98-910.
• Court: Arkansas Supreme Court

Page 303

985 S.W.2d 303

336 Ark. 345

David HALE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 98-910.

Supreme Court of Arkansas.

Feb. 11, 1999.

David O. Bowden, Little Rock, Tona M. DeMers, North Little Rock, for Appellant.

Winston Bryant, Attorney General, Kelly S. Terry, Assistant Attorney General, Little Rock, for Appellee.

ANNABELLE CLINTON IMBER, Justice.

The appellant, David L. Hale, brings this interlocutory appeal of the trial court's denial of his motions to dismiss the State's charges pending against him. Mr. Hale asserts several double jeopardy-based arguments including immunity, preemption, and the exception to the dual-sovereignty doctrine. Mr. Hale also contends that the trial court erred when it granted a mistrial due to an "overruling necessity" under Ark.Code Ann. § 5-1-112(3) (Repl.1997). We affirm on all points.

Because this is an interlocutory appeal, the complicated and detailed facts of this case have not yet been resolved by the trier of fact. Suffice it to say, the State claims that in July of 1993 Mr. Hale entered into a complex scheme whereby he directed the president of the National Savings Life Insurance Company (NSLIC) to make a false or misleading statement to the Arkansas Insurance Department in violation of Ark.Code Ann. § 23-60-109 (Repl.1994). The alleged scheme involved Mr. Hale's participation in the affairs of the Small Business Administration, Capital Management Services, Inc., and other business entities. In April of 1994, the Insurance Department referred the matter to the Pulaski County Prosecutor's Office and the Little Rock Police Department for criminal investigation and prosecution.

Around the same time, the Independent Counsel for the Department of Justice began investigating Mr. Hale's business transactions in relation to the "Whitewater" matter. On March 19, 1994, Mr. Hale entered into a plea agreement with the Independent Counsel whereby Mr. Hale agreed to plead guilty to the felonies of conspiracy and mail fraud and to fully cooperate with the Independent Counsel in its investigation of the Whitewater matter. In exchange, the Independent Counsel agreed to ask for a reduction in Mr. Hale's sentence, and granted Mr. Hale immunity as follows:

If David L. Hale fully complies with the understandings specified in this Agreement, he will not be further prosecuted for any crimes related to his participation in the conduct of the affairs of Capital Management Services, Inc., Diversified Capital, Inc., and Madison Guaranty Savings and Loan, and any other crimes, to the extent David L. Hale has disclosed such criminal activity to this Office as of the date of this agreement.

Meanwhile, the state officials continued their investigation of Mr. Hale's alleged false and misleading statement to the Arkansas Insurance Department. In November of 1994, members of the Pulaski County Prosecutor's Office, the Little Rock Police Department, and the Independent Counsel's Office met to discuss the simultaneous investigations. The Independent Counsel expressed his view that it would be highly unusual for a state prosecutor to initiate separate criminal charges while an individual was cooperating in a federal investigation. Accordingly, the Independent Counsel may have suggested either that the Prosecutor's Office delay filing its charges until after Mr. Hale testified, or that Mr. Hale's dealings with the Arkansas Insurance Department be " taken into account and considered at Mr. Hale's federal sentencing hearing." The state Prosecutor did not specifically agree to either request at that time. In fact, in February of 1996, the state Prosecutor sent a letter to the Independent Counsel announcing that he had decided to file separate state charges against Mr. Hale instead of allowing the matter to be addressed at Mr. Hale's federal sentencing.

In April of 1996, Mr. Hale testified as a witness for the Independent Counsel in the criminal trials of Governor Jim Guy Tucker, James McDougal, and Susan McDougal. In December of 1996, the State filed a felony information that charged Mr. Hale with violating Ark.Code Ann. § 23-60-109 by filing a false or misleading statement or document required to be filed by Arkansas law.

In response, Mr. Hale filed several motions to dismiss in which he asserted that the subsequent state prosecution was barred by double jeopardy. Specifically, Mr. Hale claimed that the exception to the dual-sovereignty doctrine applied, that the State action was preempted by federal law, and that he was immune from state prosecution pursuant to the March 19, 1994 plea agreement with the Independent Counsel. The trial court rejected each of these arguments, and the case proceeded to trial.

The trial began on Wednesday, April 22, 1998. After the jury was sworn, the court excused the jury for the day because Mr. Hale was not feeling well. The next morning, Thursday, April 23, Mr. Hale did not appear for trial because he had been admitted to the hospital for heart problems. The court granted a seven-day continuance. On Thursday, April 30, the jury convened for the third time. Again, Mr. Hale was not present due to heart problems. Mr. Hale's attorney estimated that Mr. Hale would be released from the hospital on the afternoon of Monday, May 4. Mr. Hale's attorney, however, did not provide the court with a date certain on which Mr. Hale would be available for trial. The only date discussed by the court for rescheduling the trial was in early July. The court then expressed concern over leaving a sworn jury out for over two months in a highly publicized trial. In this respect, the trial judge said, "they [the jury] have been cast onto the stage as actors now, and they can't very well ignore what's going on. Human nature is not that way. There's too big of a chance to run." At this point, the trial court granted the State's motion for mistrial because Mr. Hale's illness was an "overruling necessity" under Ark.Code Ann. § 5-1-112. Soon thereafter, Mr. Hale filed a motion for dismissal in which he declared that double jeopardy prevented the State from bringing him to trial again because there was no "overruling necessity," under Ark.Code Ann. § 5-1-112, for granting the mistrial. The trial court denied the motion.

Mr. Hale now brings this interlocutory appeal from the denials of his motions to dismiss the State's charges pending against him. Because these arguments are based on double jeopardy considerations, it is appropriate for us to consider these matters in an interlocutory appeal. See Edwards v. State, 328 Ark. 394, 943 S.W.2d 600 (1997), cert. denied, --- U.S. ----, 118 S.Ct. 370, 139 L.Ed.2d 288 (1997); Rowlins v. State, 319 Ark. 323, 891 S.W.2d 56 (1995).

I. Dual Sovereignty

The Double Jeopardy Clause of the Fifth Amendment protects a defendant from a second prosecution for the same offense and from multiple punishments for the same offense. State v. Johnson, 330 Ark. 636, 956 S.W.2d 181 (1997); Edwards, supra. Hence, Mr. Hale claims that his plea agreement with the Independent Counsel bars any subsequent state prosecution. However, the United States Supreme Court has long recognized the dual-sovereignty doctrine, which provides that when a defendant violates the "peace and dignity" of two sovereigns by breaking the laws of each, he or she has committed two distinct offenses, and thus successive prosecutions by the two sovereigns are not barred by the Double Jeopardy Clause of the Fifth Amendment. See Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (state prosecution following federal prosecution); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (federal prosecution following state prosecution). Likewise, we recognized the dual-sovereignty doctrine in State v. Johnson, supra, where we held that the State could prosecute the defendant for rape even though rape was used for enhancement purposes in the calculation of the defendant's punishment for a federal conviction.

In Bartkus, the Supreme Court admonished that the dual-sovereignty doctrine would not apply if the subsequent state prosecution was a "sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution." Bartkus, supra; see also United States v. Basile, 109 F.3d 1304 (8th Cir.1997); United States v. Williams, 104 F.3d 213 (8th Cir.1997); United States v. Garner, 32 F.3d 1305 (8th Cir.1994). In other words, the dual-sovereignty doctrine will not apply if the second prosecution is merely an attempt at a second bite at the proverbial apple. The second prosecution is more likely to be considered a "sham or cover" if the first prosecution resulted in an acquittal, or the two sovereigns acted in collusion instead of merely coordinating their investigations or cooperating with one another. See Bartkus, supra; Basile, supra; Williams, supra; Garner, supra.

Clearly, this case falls under the dual-sovereignty doctrine because, as in Bartkus and Abbate, the state of Arkansas and the federal government are two separate sovereigns that are entitled to prosecute Mr. Hale for the violation of their respective laws. We find no merit to Mr. Hale's argument that the Arkansas charges are merely a "sham or a cover" for a second federal prosecution because the federal prosecution did not result in an acquittal, and the record establishes that the two sovereigns merely coordinated their simultaneous investigations instead of acting in collusion. In particular, the state Prosecutor chose to file charges in state court instead of allowing the matter to be considered during sentencing in federal court as suggested by the Independent Counsel. Nor is there any indication that the FBI or the Office of the Independent Counsel shared any information from the federal investigation with the state Prosecutor's Office, the Arkansas Insurance Department, or the Little Rock Police Department. At most, the contacts between federal and state...