State v. Collins

• Decision Date: 13 April 1989
• Docket Number: No. 55170-7,55170-7
• Citation: 112 Wn.2d 303,771 P.2d 350
• Parties: The STATE of Washington, Respondent, v. Kimberly COLLINS, Petitioner.
• Court: Washington Supreme Court

Page 303

112 Wn.2d 303

771 P.2d 350

The STATE of Washington, Respondent, v. Kimberly COLLINS, Petitioner.

No. 55170-7.

Supreme Court of Washington En Banc.

April 13, 1989.

Washington Appellate Defender Ass'n, Marc R. Lampson, Seattle, for petitioner.

Seth Dawson, Snohomish County Prosecutor, Cassandra Noble, Deputy, Everett, for respondent.

UTTER, Justice.

Petitioner Kimberly Collins seeks review of a Court of Appeals decision upholding her conviction for third degree assault. She argues that the trial judge violated prohibitions against double jeopardy developed in State v. Dowling, 98 Wash.2d 542, 656 P.2d 497 (1983), when he, upon reconsideration, reinstated the third degree While in custody at the Snohomish County Jail, Ms. Collins bit a corrections officer on the wrist. The Snohomish County Prosecutor charged Ms. Collins with third degree assault under former RCW 9A.36.030(1)(a), which states, in part:

                assault charge after orally dismissing it for want of evidence.   We hold that the trial judge's reinstatement of the charge did not constitute double jeopardy and affirm the decision of the Court of Appeals which so held.  Dowling is overruled to the extent that it conflicts with this opinion
                

Every person who, under circumstances not amounting to assault in either the first or second degree, shall be guilty of assault in the third degree when he:

(a) With intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself or another person shall assault another ...

During the trial, the defense moved to dismiss for lack of evidence at the close of the prosecutor's case. Defense counsel argued that the prosecution had not proved that Ms. Collins had the intent to escape or to resist lawful detention when she bit one of the officers. Therefore, according to defense counsel, the prosecution had not proved all of the elements of third degree assault. After argument from both sides, the trial judge gave an oral ruling of dismissal. It does not appear from the record that the judge made or signed a separate journal entry of this event. Minutes later, the prosecutor offered authority contrary to the judge's ruling, citing State v. Jury, 19 Wash.App. 256, 576 P.2d 1302, review denied, 90 Wash.2d 1006 (1978). After further discussion and argument on the impact of Jury, the trial judge reversed his first ruling. The trial continued and the case went to the jury, which returned a guilty verdict.

Ms. Collins appealed her conviction to Division One of the Court of Appeals. Along with other arguments, she contended that, under State v. Dowling, supra, the reinstatement of the assault charge after oral dismissal amounted to double jeopardy. The Court of Appeals, in an

unpublished opinion by Coleman, J., rejected all of Ms. Collins' arguments, distinguished Dowling, and upheld the conviction.

I

The central issue here is whether or not the trial judge's ruling was final when given orally. Only if that finality is established can protections against double jeopardy attach. We find that this ruling was not final and overrule the standard enunciated in State v. Dowling, supra.

In Dowling, this court held that a trial judge, sitting as a trier of fact, violated the prohibition against double jeopardy when he reversed his own previous oral order of dismissal made 4 months earlier. In so holding, we adopted a standard for determining the finality of a trial judge's ruling which, as the dissent in that case pointed out, represented a change in Washington law. As Dowling concerned a ruling by a trial judge sitting as the trier of fact, the "finality standard" was tailored to that situation. We held:

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.

98 Wash.2d at 547, 656 P.2d 497, quoting State v. Bastinelli, 81 Wash.2d 947, 956, 506 P.2d 854 (1973) (Hale, C.J., concurring).

This standard is at odds with the one noted by the Dowling dissent: that "a case is not finally terminated until either a journal entry or, more preferably, a formal order is entered by the trial court." 98 Wash.2d at 550, 656 P.2d 497 (Dolliver, J., dissenting). The Dowling dissent cited a number of cases for this proposition, among them State v. Aleshire, 89 Wash.2d 67, 70, 568 P.2d 799 (1977) and State v. Mallory, 69 Wash.2d 532, 533, 419 P.2d 324 (1966). Nonetheless, this court reaffirmed the Dowling standard in State v. LeFever, 102 Wash.2d 777, 690 P.2d 574 (1984).

The effect of the Dowling rule on past precedent has not always been clear. In Mallory, the trial judge in a bench A trial court's oral or memorandum opinion is no more than an expression of its informal opinion at the time it is rendered. It has no final or binding effect unless formally incorporated into the findings, conclusions, and judgment.

                trial found the defendants guilty.   On appeal, the defendants referred to the oral and memorandum opinions of the trial court.   This court held that such earlier opinions may be considered in interpreting findings of fact and conclusions of law, but cannot be considered as the basis for the trial court's judgment and sentence.   We stated further
                

69 Wash.2d at 533-34, 419 P.2d 324. Because Mallory concerned the trial judge's function as trier of fact and the finality of that judge's oral opinions and rulings, it conflicts directly with Dowling.

Aleshire concerned a jury trial and addressed the issue of double jeopardy. The trial judge there took defendant's motion to dismiss (for failure to prosecute within the "speedy trial" standards) under advisement. The judge later wrote a letter to counsel concluding, "The case is dismissed." Three days later, the judge reversed himself and allowed commencement of a new trial. This court found that the letter did not represent the final judgment; therefore the defendant had not faced double jeopardy. Citing Mallory and Chandler v. Doran Co., 44 Wash.2d 396, 267 P.2d 907 (1954), we held that a journal entry or a formal order would be necessary to end the case. We distinguished State v. Bastinelli, supra, upon which defendants relied, because it concerned a trial to the court on the merits. We emphasized that we could find no reason to change the Mallory rule "particularly where the issue was solely a procedural one." Aleshire, 89 Wash.2d at 71, 568 P.2d 799.

Even though the present case involved a jury trial, the Dowling finality standard applies to the trial judge's ruling. While the trial judge here was not the finder of fact, his initial oral ruling went to the case's merits. In a motion to dismiss for insufficient evidence, the trial judge must consider whether a rational trier of fact would find guilt

                beyond a reasonable doubt.  State v. Green, 94 Wash.2d 216, 220, 616 P.2d 628 (1980).   This consideration necessitates evaluating the evidence presented;  the ruling is based on the sufficiency and persuasiveness of that evidence.   The judge must face the ultimate question of the defendant's guilt or innocence regarding the elements of the offense for which she is charged.   The trial judge here based his oral ruling on his evaluation of the evidence relating to the defendant's guilt:  "Looking at all of the evidence most favorable to the State, I don't think the requirements of State versus Green are met, and I will dismiss regarding 3rd degree assault."   Verbatim Report of Proceedings, at 100.   In following the "rational trier of fact" standard, the judge acted as the trier of fact for the purposes of the motion.   In acting in that capacity, he fell under the scope of Dowling.   Because he read the ruling "conclusively into the record," it was final under the Dowling rule
                

II

The Court of Appeals did not find Dowling to be on point and instead followed State v. McClelland, 24 Wash.App. 689, 604 P.2d 969 (1979), review denied, 93 Wash.2d 1019 (1980). In McClelland, the Court of Appeals found a trial judge's apparent dismissal ("[i]t would be my decision that the matter be dismissed") to be tentative and merely an indication of the judge's thinking process when he reconsidered and reversed it before recess or adjournment. 24 Wash.App. at 692, 604 P.2d 969. Petitioner argues that Dowling overrules McClelland sub silentio. While this is a possibility, it is also possible to distinguish the two. The reversal of the oral ruling in McClelland came after continued argument, before the adjournment of the day's proceedings. In Dowling, the reversal came 4 months later. More importantly, the McClelland trial judge's choice of language shows that the intended finality of his "ruling" was questionable. By contrast, this court found the Dowling judge's ruling final because it was "read conclusively into the record."

While it is possible to distinguish these cases, this very possibility reveals the serious shortcomings with the Dowling rule. Much of the determination comes down to after-the-fact analysis of subtle distinctions preserved in the record of the proceedings. The outcome of something as important as deciding whether a defendant was exposed to double jeopardy should not hang on such guesswork. Reliance on this rule cannot provide clear guidance to trial judges and can lead to inconsistent appellate decisions such as the ones cited above. To serve the ends of certainty, reliance on the final written court order or written journal entry to determine the finality of a ruling is the better rule.

In this vein, our reference in Mallory to the trial court's oral opinion as "no more than an expression of its informal opinion at the time it is rendered" is relevant here. Individual trial judges' styles of ruling vary. Many judges will...