State v. Beerbower, 77238

• Decision Date: 18 April 1997
• Docket Number: No. 77238,77238
• Parties: STATE of Kansas, Appellant, v. Gary D. BEERBOWER, Appellee.
• Court: Kansas Supreme Court

Page 248

936 P.2d 248

262 Kan. 248

STATE of Kansas, Appellant, v. Gary D. BEERBOWER, Appellee.

No. 77238.

Supreme Court of Kansas.

April 18, 1997.

Syllabus by the Court

1. A judgment of acquittal is a resolution, correct or not, of some or all of the factual elements of the offense charged. A trial court's characterization of its own conduct may not always control whether it has rendered a judgment of acquittal or a dismissal.

2. Under the facts of the present case, where the record establishes that the trial court resolved absolutely no factual matters prior to ordering a dismissal, a judgment of acquittal was not granted in the first case.

3. The "without the consent of the defendant" portion of K.S.A. 21-3108(1)(c) involves situations where a defendant did not request the dismissal of the case or explicitly give consent to the dismissal through his or her actions.

4. Under the clear wording of K.S.A. 21-3108(1)(c), a defendant is not in jeopardy in a case tried to the court until the court begins to hear evidence. The statutory language "begun to hear evidence" in a trial to the court means at least some evidence must have been introduced or a witness sworn. If the facts show this condition has been satisfied, jeopardy statutorily attaches. If it has not, jeopardy has not attached, and a second prosecution following dismissal of the first case may properly continue.

5. Under the facts of this case, the trial court had not begun to hear evidence in the first case, so a subsequent prosecution was not barred on double jeopardy grounds by the provisions of K.S.A. 21-3108(1)(c) or the Kansas or United States Constitutions.

Cline I. Boone, Assistant County Attorney, argued the cause, and John L. Swarts, III, County Attorney, and Carla J. Stovall, Attorney General, were on the brief, for appellant.

Charles Gentry, of Short, Gentry & Bishop, P.A., Fort Scott, argued the cause and was on the brief, for appellee.

LARSON, Justice:

This is an appeal by the State, pursuant to K.S.A. 22-3602(b)(1), from the dismissal on double jeopardy grounds of charges of driving under the influence and while suspended against Gary D. Beerbower. The dismissed charges had been refiled after an earlier case was dismissed by the court at trial when the State's primary witness did not appear.

Factual background

In December 1995, a complaint was filed against Beerbower for DUI and driving while suspended. The case was set for trial in February 1996, but continued until March 25, 1996, when the record shows the following colloquy occurred:

"THE COURT: Beerbower, 95CR170. Do you wish an opening statement?

"SWARTS [county attorney]: No, Judge. I just need to check to see if my officers are in the courtroom.

"THE COURT: Do you wish an opening statement?

"GENTRY [defense counsel]: No, Judge.

"THE COURT: All right. Call your first witness then.

"SWARTS: It will be Officer Shaaban. S-h-a-a-b-a-n. Last time when we were here, Judge, Mr. Shaaban was told the case would have a new date. County Attorney's Office neglected to tell him it was today's date. Can we continue it? It was continued to the last week of March, and I didn't give him a date, so he's not out there. So I would ask for a few minutes because one of the officers is here.

"THE COURT: Well, call your second officer then.

"SWARTS: Well, hate to start and then find out the other goes to Tennessee or something.

"THE COURT: Well, Counsel, I'm ready to proceed. I'll take a short recess while you call your first officer in and somebody in your office call[s] to see if this officer [is] coming.

"SWARTS: He's being called right now.

"THE COURT: What's the second officer's name?

"SWARTS: James Dean.

"THE COURT: Okay. All right. Why don't you call Officer Dean, then we'll proceed with that testimony.

"SWARTS: Well--

"THE COURT: Why don't you get Officer Dean and we'll start with that.

"SWARTS: I'd ask for a continuance, Your Honor. Officer Dean is here but Officer Shaaban is in Iowa.

"THE COURT: Okay. Counsel, I can't grant you a continuance.

"SWARTS: All right, Judge.

"THE COURT: I'm going to dismiss the case.

"SWARTS: Yes, sir.

"GENTRY: Thank you, Your Honor.

"THE COURT: All right."

The next day, Beerbower moved for a judgment of acquittal. This motion does not appear to have been ruled upon. A month later, the State filed a new complaint alleging the same counts that were previously charged. Beerbower moved to dismiss on grounds of double jeopardy.

The issue was briefed by both parties, with Beerbower claiming: "Another of the State's witnesses was present and available, but was not called. The Court inquired as to whether there was anything else which the State wished to present, and the State replied in the negative." Beerbower also asserted the prior dismissal should be characterized as a judgment of acquittal because the State presented no evidence when called upon to do so.

The trial court dismissed the second case and, citing K.S.A. 21-3108(1)(c), ruled:

"It is clear that the case was in that posture when the prosecution's witness did not arrive, the defendant objected to a continuance, the state could not offer any good reason as to why the witness failed to appear and the court dismissed the action. In this instance there is no doubt that the defendant was placed in jeopardy and to force him to trial a second time would not only violate the Kansas Statutes but also the double jeopardy clause of the United States Constitution."

The court did not classify the prior dismissal as a judgment of acquittal, as requested by Beerbower, and did not rely upon K.S.A. 21-3108(1)(a).

A transcript of the dismissal of the first case was not available to the court at the time of its decision in the second case, which was based upon the court's and the parties' recollection of the prior proceedings.

The State's appeal is claimed to be "[f]rom an order dismissing a complaint," as allowed by K.S.A. 22-3602(b)(1). The State argues that Beerbower was never placed in jeopardy, as defined in K.S.A. 21-3108(1)(c), because the court had not begun to hear evidence.

Beerbower asserts that jeopardy attached when the State failed to present its case when called upon to do so and that he did not consent to the dismissal. Beerbower further contends that the K.S.A. 21-3108(1)(a) prohibition on a second prosecution does not require the defendant to have been placed in jeopardy and that the first case was concluded after a finding that the evidence was insufficient to warrant a conviction, effectively barring a second prosecution.

Standard of review

Although the trial court in this case appears to have based its decision on an inexact recollection of the previous proceedings, the facts shown by the transcript before us are uncontroverted. When facts are uncontroverted, a trial court decision that double jeopardy applies is subject to de novo review on appeal. State v. Harlin, 260 Kan. 881, 883, 925 P.2d 1149 (1996).

Arguments and authorities

In announcing its decision, the trial court ruled the second prosecution was barred under K.S.A. 21-3108(1)(c), but it also declared that allowing the second prosecution to continue would violate the Double Jeopardy Clause of the United States Constitution. Regarding this constitutional protection, we noted in State v. Freeman, 236 Kan. 274, 280-81, 689 P.2d 885 (1984):

"The double jeopardy clause of the Constitution of the United States protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The language of section 10 of the Bill of Rights of the Constitution of Kansas is very similar to the language contained in the Fifth Amendment of the Constitution of the United States. Both provide in effect that no person shall be twice placed in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does section 10 of the Bill of Rights of the Constitution of Kansas. Therefore, the three underlying protections contained in the double jeopardy clause of the Constitution of the United States are contained in section 10 of the Bill of Rights of the Kansas Constitution."

The Freeman court then set forth the two Kansas statutory provisions which relate to the constitutional double jeopardy protection when it stated:

"In order to implement and define the constitutional guarantees of the double jeopardy clause, the Kansas legislature enacted two statutes: (1) K.S.A.1983 Supp. 21-3107, multiple prosecutions for the same act, and (2) K.S.A. 21-3108, effect of former prosecution. K.S.A.1983 Supp. 21-3107 defines the right of the prosecution to charge more than one offense based on the same act and to convict of an included offense not specifically charged. It formulates the limitations upon unfair multiplicity of convictions and prosecutions. K.S.A. 21-3108 attempts to cover the complex problems of former jeopardy." 236 Kan. at 281, 689 P.2d 885.

The trial court in our case primarily based its decision to dismiss the second prosecution on the provisions of K.S.A. 21-3108. The applicable portions of the statute at issue read:

"(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:

(a) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; or

....

(c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy.... A defendant is in jeopardy when he or she is put on trial in a court of competent jurisdiction upon an indictment, information or complaint sufficient in form and substance to sustain a conviction, and in the case of trial by jury, when the jury has been...