People v. Morgan, 88SA159

• Decision Date: 29 January 1990
• Docket Number: No. 88SA159,88SA159
• Citation: 785 P.2d 1294
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Thomas MORGAN, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1294

785 P.2d 1294

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Thomas MORGAN, Defendant-Appellee.

No. 88SA159.

Supreme Court of Colorado,

En Banc.

Jan. 29, 1990.

Dean J. Johnson, Dist. Atty., Cortez, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, and Andrew C. Heher, Deputy State Public Defender, Denver, for defendant-appellee.

Justice LOHR delivered the Opinion of the Court.

This is an appeal by the district attorney for the Twenty-Second Judicial District from the trial court's order dismissing felony theft and conspiracy charges against the defendant, Thomas Morgan. ¹ The People seek review of the trial court's ruling that Morgan's conviction in Navajo District Court for receiving stolen property bars prosecution on Colorado charges of theft and conspiracy because of the double jeopardy statute, § 18-1-303, 8B C.R.S. (1986), where all the charges arose out of the same set of facts. We affirm.

I.

A.

On May 16, 1987, James Hooper discovered two canoes missing from his summer cabin on Joe Moore Reservoir in Montezuma County, Colorado. Hooper contacted the Montezuma County Sheriff's Department that day to report the loss of the canoes, a yellow 17-foot fiberglass model, approximately 22 years old, and a yellow 14-foot aluminum model of unspecified age. A sporting goods dealer contacted later by the sheriff's department estimated one canoe to be worth $250 and the other to be worth $300.

On June 3, 1987, an anonymous caller contacted the Montezuma County Sheriff's Department with information concerning the canoes. Based on the tip, the sheriff's department asked officers of the Shiprock, New Mexico, branch of the Navajo Nation Department of Public Safety ("Navajo police") to locate Tom Morgan, a Navajo living about fifteen miles outside of Shiprock, and to question him about the canoes.

On June 5, Navajo police officer Jasper Hanson went to look for Morgan. While driving by Morgan's home, officer Hanson spotted a yellow canoe mounted on a pickup truck parked beside the house and what appeared to be another canoe under a canvas cover on the property. Officer Hanson waited nearby until Morgan left in the truck. The officer followed Morgan and approached him after he stopped in the parking lot of a convenience store in Shiprock. Officer Hanson questioned Morgan about the two canoes. Morgan initially maintained that he had purchased the canoes at a flea market. Hanson then told Morgan to return to his home in the company of several Navajo police officers who had arrived at the scene. At Morgan's residence, David Hooper, a Farmington, New Mexico, police officer and the son of the owner of the canoes, identified the two canoes as the same ones missing from his father's cabin.

Morgan then agreed to haul both canoes to Navajo police headquarters in Shiprock. There, after being informed of his rights, Morgan waived them and was further questioned. Morgan then confessed that he had agreed to help another man steal the canoes and to hold them for him for a while. ²

On June 5, 1987, a complaint was filed against Morgan in the Shiprock District Court of the Navajo Nation, charging him with receiving stolen property in violation of Navajo Trib.Code tit. 17, § 333 (1977) ("17 N.T.C. § 333"). Morgan pleaded guilty to the charge and on June 9, 1987, was sentenced to sixty days in jail and fined $200. ³

B.

Morgan subsequently was charged by an information filed in Montezuma County District Court with one count of theft of property valued at more than $300 and less than $10,000, in violation of section 18-4-401, 8B C.R.S. (1986), a class 4 felony, and one count of conspiracy to commit theft of property valued at more than $300 and less than $10,000, in violation of sections 18-4-401 and 18-2-201, 8B C.R.S. (1986), based on his alleged theft of the canoes.

Morgan entered a plea of not guilty to the charges against him. Trial to a jury began on April 4, 1988. Later that day, after the prosecution rested its case, Morgan, through his counsel, moved to dismiss all charges on the ground that prosecuting him violated section 18-1-303, 8B C.R.S. (1986), Colorado's statutory prohibition against double jeopardy, or in the alternative to declare a mistrial to permit the defendant to research and litigate the double jeopardy issue more fully. ⁴ The trial court granted the motion for a mistrial.

On May 2, 1988, the trial court held a hearing on Morgan's motion to dismiss the charges against him on double jeopardy grounds. After reviewing the record and memoranda of law on the issue prepared by the parties, the court granted Morgan's motion to dismiss and entered an order dismissing all charges. The People appealed the trial court's order to this court.

II.

The People contend that the trial court erred in applying Colorado's double jeopardy statute, § 18-1-303, 8B C.R.S. (1986), to dismiss the theft and conspiracy charges against Morgan. They argue that the statute does not apply to convictions obtained in tribal courts, and that even if the statute does encompass such convictions, the requirements for barring a subsequent prosecution under the statute were not met in this case.

The United States and Colorado Constitutions prohibit placing an accused twice in jeopardy for the same offense. U.S. Const. amends. V and XIV; ⁵ Colo. Const. art. II, § 18. Under federal law, however, the dual sovereignty doctrine allows federal and state governments, as separate sovereigns, to prosecute a person for the same offense without violating the double jeopardy prohibition of the federal constitution. See Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (prosecution by federal government following state convictions); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (prosecution by state following acquittal on federal charge); Chatfield v. Colorado Court of Appeals, 775 P.2d 1168, 1174 n. 7 (Colo.1989) (both state and federal governments may prosecute a person for the same offense without violating the double jeopardy clause of the federal constitution); Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (successive prosecution by two states).

Responding to the harshness of the dual sovereignty doctrine, over half of the states, including Colorado, prohibit state prosecution following federal prosecution for the same offense based either on state statutes or state constitutional provisions. See Chatfield, 775 P.2d at 1174 n. 7; see also Y. Kamisar, W. LaFave and J. Israel, Modern Criminal Procedure 1431 (6th ed. 1986); cf. People v. Horvat, 186 Colo. 202, 206, 527 P.2d 47, 49 (1974) (overruling earlier cases applying the dual sovereignty doctrine to successive municipal and state prosecutions). Section 18-1-303 codifies the federal and state prohibitions against double jeopardy, Chatfield, 775 P.2d at 1174; Jeffrey v. District Court, 626 P.2d 631, 636 (Colo.1981), and extends the double jeopardy prohibition to situations where the dual sovereignty doctrine otherwise would operate to permit state prosecution after a separate sovereign has prosecuted the defendant for the same offense. The statute provides in pertinent part as follows:

(1) If conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States, or another state, or of a municipality, a prosecution in any other of these jurisdictions is a bar to a subsequent prosecution in this state under either of the following circumstances:

(a) The first prosecution resulted in a conviction or an acquittal as defined in section 18-1-301(1)(a) and (1)(c), and the subsequent prosecution is based on the same conduct, unless:

(I) The offense for which the defendant was formerly convicted or acquitted requires proof of a fact not required by the offense for which he is subsequently prosecuted and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or

(II) The second offense was not consummated when the former trial began.

§ 18-1-303.

The threshold issue before us is whether section 18-1-303 should be construed to encompass former prosecutions in tribal courts. Legislative intent is the polestar of statutory construction. E.g., Schubert v. People, 698 P.2d 788, 793 (Colo.1985). To discern legislative intent, we look primarily to the language of the statute. E.g., Kern v. Gebhardt, 746 P.2d 1340, 1344 (Colo.1987).

Tribal courts are not expressly included among the jurisdictions enumerated in section 18-1-303. In the face of statutory silence, we must search for other indications of legislative intent. See Williams v. White Mountain Const. Co., Inc., 749 P.2d 423, 428 (Colo.1988). Where possible, a statute should be construed to make it effective in accomplishing the purposes for which it was enacted. B.B. v. People, 785 P.2d 132, 138 (Colo.1990); Schubert, 698 P.2d at 793. In order to ascertain whether the statute applies to tribal court convictions, therefore, we must view the statute in light of the purposes behind it.

Section 18-1-303 was intended to codify the federal and state constitutional prohibitions against double jeopardy. Chatfield, 775 P.2d at 1174. The statute further operates to abolish the dual sovereignty doctrine as a means for prosecuting an accused in state court after that person has already been prosecuted by a separate sovereign for the same act.

Indian tribes are separate sovereigns. "The powers of Indian tribes are, in general, 'inherent powers of a limited sovereignty which has never been extinguished.' " United States v. Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 1085, 55 L.Ed.2d 303 (1978) (quoting F. Cohen, Handbook of Federal Indian Law 122 (1945 ed.) (emphasis removed)). Indian tribes retain all sovereign powers not relinquished by treaty or removed by statute or by implication as a necessary incident of their dependent status. Id. at 323, 98 S.Ct. at 1086....