In re B.F.

• Decision Date: 06 April 2009
• Docket Number: No. 20080140.,20080140.
• Citation: 764 N.W.2d 170,2009 ND 53
• Parties: In the Interest of B.F., a Child. Reid A. Brady, Petitioner and Appellant, v. J.F., T.F., and B.F., Respondents and Appellees.
• Court: North Dakota Supreme Court

764 N.W.2d 170

2009 ND 53

In the Interest of B.F., a Child.

Reid A. Brady, Petitioner and Appellant, v. J.F., T.F., and B.F., Respondents and Appellees.

No. 20080140.

Supreme Court of North Dakota.

April 6, 2009.

Reid A. Brady (argued), Assistant State's Attorney and Renata J. Olafson-Selzer (appeared), Assistant State's Attorney, Fargo, N.D., for petitioner and appellant.

Bruce D. Quick (argued) and Mark A. Friese (on brief), Vogel Law Firm, Fargo, N.D., for respondents and appellees.

CROTHERS, Justice.

[¶ 1] Reid A. Brady, an assistant Cass County State's Attorney ("State"), appeals from a juvenile court order on review of a judicial referee's decision in which the court rejected the referee's determination of guilt and instead ruled B.F. did not commit the delinquent act of negligent homicide. Because the juvenile court judge's de novo review of the judicial referee's decision resulted in an acquittal and double jeopardy principles preclude the State from appealing an acquittal, we dismiss the appeal.

I

[¶ 2] At 2:30 p.m. on August 12, 2007, B.F., a 17-year-old male, was driving on a gravel road near Casselton with three of his friends in the front seat of B.F.'s Mazda pickup when the pickup collided with the back-end of a semi-trailer that was crossing an intersection. One of B.F.'s passengers died and another passenger was injured as a result of the collision. The State subsequently petitioned the juvenile court to have B.F. declared delinquent based on his having committed the crimes of aggravated reckless driving in violation of N.D.C.C. § 39-08-03 and negligent homicide in violation of N.D.C.C. § 12.1-16-03. Following a trial before a judicial referee in February 2008, B.F. was found guilty of both charges. The judicial referee found that B.F. committed the delinquent act of negligent homicide because B.F. was driving in excess of 69 miles per hour in a 55 mile-per-hour zone when he "slammed on his brakes" and skidded 263 feet into the semi-truck; that there was "insufficient seating and seatbelts for all passengers" in the pickup; that B.F. failed to reduce his speed and yield when approaching the intersection, all in violation of state motor vehicle laws; and that B.F.'s conduct was "beyond carelessness and constitutes a gross deviation from acceptable standards of conduct."

[¶ 3] B.F. did not challenge the judicial referee's finding that he was guilty of the delinquent act of aggravated reckless driving, but he did request that the juvenile court judge review the referee's finding that he committed the delinquent act of negligent homicide. After conducting a de novo review of the record as required under N.D. Sup.Ct. Admin. R. 13, § 11(b), the juvenile court judge concluded B.F.'s conduct did not rise to the level of negligent homicide. The juvenile court judge reasoned:

"For the most part, the factual circumstances here are not in dispute. The Court finds the Referee's rationale for adopting the accident reconstructionist's reasoning persuasive. The Court, then, accepts that [B.F.] was traveling at 69 miles per hour in a 55 mile per hour zone. The Referee's other Factual Findings with respect to the attendant circumstances were not disputed, so the Court adopts them as well.

"While the Court does not take issue with respect to the Referee's Findings of Fact concerning the attendant circumstances, the Court takes issue with the Referee's ultimate conclusion finding criminal negligence.

"The Court understands [B.F.] may have committed several statutory violations: N.D.C.C. § 39-09-02(1)(f), 69 miles per hour in a 55 mile per hour zone; N.D.C.C. § 39-10-54(1), prohibiting driving when there are more than three persons in the front seat and the driver's view is obstructed as a result; and N.D.C.C. § 39-10-22, requiring the driver of the vehicle on the left to yield the right of way to the vehicle on the right in uncontrolled intersections. Further, [B.F.] had the responsibility to take into account the obstructed intersection. Although he failed in that regard, as an aside, the Court notes the failure of the landlord to clear the obstruction and the failure of the responsible governmental subdivision to erect cautionary signage. Had these obligations been met, we might have had an altogether different result.

"The Court declines to view this matter as a series of statutory violations which led to a death, with each violation assigned a level of negligence to be added together. Each statutory violation is not of equal weight when considering [B.F.'s] negligence. Instead, the Court chooses to view this accident as a singular occurrence. [B.F.] was traveling at [a] rate of speed which was unsafe for this particular intersection under these particular circumstances. [B.F.'s] failure to yield is of minimal evidentiary value because such a failure was a direct result of the speed in which he approached the intersection. The failure to yield is another way of saying [B.F.] approached the intersection in an unsafe manner—it is not necessarily additional evidence of negligence. Thus, the Court is left with 14 miles per hour over the limit with obstructed views of crossbound traffic."

The juvenile court judge found that B.F.'s conduct "showed inadvertence to the risk of another's death," but that it "was not a gross deviation from acceptable standards of conduct." The juvenile court judge found B.F. "did not commit the delinquent act of negligent homicide," and the State appealed to this Court under N.D.C.C. § 27-20-56(1).

II

[¶ 4] B.F. argues the State's appeal should be dismissed because any further proceedings against him are barred by double jeopardy.

[¶ 5] Section 27-20-56(1), N.D.C.C., provides that "[a]n aggrieved party, including the state or a subdivision of the state, may appeal from a final order, judgment, or decree of the juvenile court to the supreme court . . . [and][t]he appeal must be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court."

[¶ 6] The State may not appeal from an acquittal in a criminal case. See State v. Jackson, 2005 ND 137, ¶ 5, 701 N.W.2d 887; State v. Flohr, 259 N.W.2d 293, 296 (N.D.1977). When an appellate or trial court "`concludes that evidence is legally insufficient to support a guilty verdict, it concludes that the prosecution has failed to produce sufficient evidence to prove its case. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars retrial in such a case.'" State v. Rogers, 2007 ND 68, ¶ 11, 730 N.W.2d 859 (quoting State v. Yineman, 2002 ND 145, ¶ 8, 651 N.W.2d 648). Double jeopardy principles apply to juvenile court proceedings involving adjudication of delinquent acts. See Interest of L.B.B., 2005 ND 220, ¶ 10, 707 N.W.2d 469; see also Breed v. Jones, 421 U.S. 519, 531, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

[¶ 7] This Court has not addressed whether double jeopardy principles bar the State from appealing after the juvenile court judge upon request for review sets aside a judicial referee's determination that a juvenile committed a delinquent act. The situation arose in Interest of K.S., 500 N.W.2d 603, 604 n. 1 (N.D.1993), but "[n]o double jeopardy question ha[d] been raised" in that case. The State argues the double jeopardy clause is not violated here, because if the State prevailed in this appeal, the referee's decision could simply be reinstated and there would be no need for a retrial. The State relies on Sanabria v. United States, 437 U.S. 54, 63, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (footnote omitted), in which the United States Supreme Court noted that "the primary purpose of the Double Jeopardy Clause was to prevent successive trials, and not Government appeals per se," and stated that "where an indictment is dismissed after a guilty verdict is rendered, the Double Jeopardy Clause d[oes] not bar an appeal since the verdict could simply be reinstated without a new trial if the Government were successful." See also United States v. Wilson, 420 U.S. 332, 345, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). The State also relies on several federal courts of appeals decisions holding the government is permitted to appeal from a federal district court's reversal of a judgment of conviction entered by a magistrate judge because the double jeopardy clause is not violated by an appeal that results in reinstatement of a guilty verdict. See United States v. Stanton, 501 F.3d 1093, 1098 (9th Cir.2007); United States v. Aslam, 936 F.2d 751, 754 (2d Cir.1991); United States v. Bjerke, 796 F.2d 643, 646 (3d Cir.1986); United States v. Forcellati, 610 F.2d 25, 29 (1st Cir.1979); United States v. Moore, 586 F.2d 1029, 1032 (4th Cir.1978).

[¶ 8] The federal circuit court cases relied upon by the State are not persuasive because the procedure for a federal district court's review of a magistrate's decision differs substantially from the current procedure for a state district court's review of a judicial referee's decision in North Dakota. The scope of appeal from a magistrate's order or judgment to a federal district court is outlined in Fed. R.Crim.P. 58(g)(2)(D), which provides:

"(D) Scope of Appeal. The defendant is not entitled to a trial de novo by a district judge. The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge."

The federal courts, as well as state courts employing a similar procedure, have stressed it is the true appellate nature of the district court's review of a magistrate's decision, as opposed to a de novo review by the district court, that allows the government to appeal a district court's decision reversing a magistrate's finding of guilt without offending double jeopardy principles. See, e.g., Stanton, 501 F.3d at 1098 (district court sits "as an appellate court reviewing the magistrate's decision"); Moore, ...