State v. Howard, III, Docket No. 35705 (Idaho App. 1/26/2010)

• Decision Date: 26 January 2010
• Docket Number: Docket No. 35705.
• Parties: STATE OF IDAHO, Plaintiff-Appellant, v. JIM HOWARD, III, Defendant-Respondent.
• Court: Idaho Court of Appeals

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STATE OF IDAHO, Plaintiff-Appellant, v. JIM HOWARD, III, Defendant-Respondent.

Docket No. 35705.

Court of Appeals of Idaho.

Filed January 26, 2010.

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.

Appeal by State from DUI felony charging enhancement acquittal, dismissed as barred by double jeopardy and moot.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for appellant. Jessica M. Lorello argued.

Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for respondent. Sarah E. Tompkins argued.

SCHWARTZMAN, Judge Pro Tem

After a jury found Jim Howard, III, guilty of misdemeanor driving under the influence, in subsequent proceedings the district court found Howard not guilty of the charging enhancement because of the failure of proof on an element necessary to elevate the offense to a felony. The State appeals, contending that the district court erred in its legal ruling leading to that finding. We hold that the State's appeal must be dismissed, for even if the district court's ruling was erroneous, double jeopardy bars a retrial of the felony portion of the charge and, therefore, the State's appeal is moot.

I. FACTS AND PROCEDURE

Howard was charged with DUI, elevated from a misdemeanor to a felony based upon the State's allegation that Howard had twice previously been convicted of DUI within the preceding ten years. See I.C. §§ 18-8004(1)(a), -8005(5).¹ The trial was bifurcated and a jury was first asked to determine whether Howard was guilty of the DUI charge.² The jury returned a verdict of guilty. The parties then stipulated that the element of whether Howard had been twice previously convicted of DUI would be tried before the district court.

In the subsequent trial proceeding, the State submitted documentation of two prior DUI convictions, one from Idaho and one from California. Howard objected to the admission of this documentation on the ground of lack of authentication under Idaho Rule of Evidence 902. The district court sustained the objection but, over Howard's objection, granted the State's motion for a continuance in order for it to attempt to properly authenticate its documentation. At the ensuing hearing, the State submitted its documentation in reorganized and newly certified form. Howard then raised a new objection, contending that in submitting its documentation on the California conviction the State was also required to comply with the provisions of I.C. § 9-312³ and 28 U.S.C. § 1738,⁴ a federal full faith and credit statute, and that because it had not done so the California conviction could not be considered in determining guilt. At the hearing, the district court admitted the documentation under the Idaho Rules of Evidence, but left open the question of whether, in light of Howard's objection, he would give effect to the California conviction.

After receiving further briefing on the issue, the district court issued a written order in which he agreed with Howard's position. Relying primarily on the holding in State v. Prince, 64 Idaho 343, 132 P.2d 146 (1942), the order provided, in essence, that the district court would not give "full faith and credit" to the California conviction because of the State's non-compliance with the statutes, i.e., no judge certificate, and that because the State did not meet its burden to prove the element of two prior DUI convictions, Howard was "not guilty" of the element necessary to elevate the charge to a felony. Accordingly, the district court entered a judgment of conviction and sentenced Howard for misdemeanor DUI.

The State appeals, arguing that the district court erred because the Idaho statute conflicts with the Idaho Rules of Evidence on authentication and I.R.E. 1102,⁵ and therefore is of no force or effect and because the federal statute has no application to this case. In response, Howard contends, among other things, that even if the district court erred in its legal ruling, the constitutional prohibitions against double jeopardy bar the State from retrying him on the felony portion of the charge and, therefore, the State's appeal is moot because an appellate ruling in its favor will afford it no substantive relief.

II. ANALYSIS

A. Double Jeopardy

"[T]he Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict." Smith v. Massachusetts, 543 U.S. 462, 467 (2005). A trial court's order constitutes an acquittal if it "actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." Id. at 468 (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977)). In this context, what matters is that the judge evaluated the evidence and determined that it was legally insufficient to sustain a conviction. Id. at 469. Conversely, a trial court's order terminating a prosecution is not an acquittal if it is entered "on a basis unrelated to factual guilt or innocence," or, stated otherwise, is not based on the defendant's "lack of criminal culpability." United States v. Scott, 437 U.S. 82, 98-99 (1978) (holding that the trial court's mid-trial grant of the defendant's motion to dismiss because of prejudice caused by pre-indictment delay is not an acquittal).

The United States Supreme Court has made clear that if an acquittal has occurred, double jeopardy bars a retrial even if the acquittal was entered because of an error of law by the trial court. In Arizona v. Rumsey, 467 U.S. 203, 211 (1984), the United States Supreme Court held:

In making its findings, the trial court relied on a misconstruction of the statute defining the pecuniary gain aggravating circumstance. Reliance on an error of law, however, does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits. "[T]he fact that `the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles' . . . affects the accuracy of that determination, but it does not alter its essential character." United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) (quoting id., at 106, 98 S.Ct., at 2201 (BRENNAN, J., dissenting)). Thus, this Court's cases hold that an acquittal on the merits bars retrial even if based on legal error.

See also Smalis v. Pennsylvania, 476 U.S. 140, 144 n.7 (1986) (double jeopardy bars a retrial even if the trial court's acquittal was based upon a mistake in determining the degree of recklessness necessary to sustain a conviction); Sanabria v. United States, 437 U.S. 54, 64 (1978) ("When a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous."). See also United States v Blanton, 476 F.3d 767 (9th Cir. 2007); United States v. Ogles, 440 F.3d 1095 (9th Cir. 2006). Compare State v. Korsen, 138 Idaho 706, 716-18, 69 P.3d 126, 136-38 (2003).

Here, the district court's order framed the issue as whether the State failed to establish the foundation necessary to admit the California DUI conviction because of non-compliance with either the Idaho or the federal statute. The court concluded that the burden was on the State to show compliance not only with the Idaho Rules of Evidence concerning authentication, but also with the provisions of the two statutes based upon "full faith and credit" concerns. Because the State failed to do so, the district court expressly found Howard "not guilty" of felony DUI based upon, in essence, the failure of evidence on the element of two prior convictions. Although the district court's mode of analysis in this case is less than crystal clear,⁶ we conclude that its ruling, assuming it to be erroneous, may be best described or characterized as a resolution of the enhancement element because of insufficient evidence. See Sanabria, 437 U.S. at 68-69. We therefore hold, in accord with the above United States Supreme Court precedent, that the district court's order constituted an acquittal for purposes of double jeopardy.

B. The District Court Did Not Formally Enter a Verdict or General Finding of Guilt Followed by an Acquittal

The State further contends that double jeopardy is not implicated because no further trial proceedings would be necessary should we reverse the trial court. We begin with an overview of the relevant law.

As previously noted, double jeopardy bars reexamination of a court-decreed acquittal to the same extent as an acquittal by jury verdict. Smith, 543 U.S. at 467. In United States v. Wilson, 420 U.S. 332 (1975), the United States Supreme Court considered an appeal after a jury returned a guilty verdict but, subsequent to the conviction, the trial court dismissed the indictment on the theory that pre-indictment delay had made a fair trial impossible. The government appealed, but the Second Circuit Court of Appeals dismissed the appeal on double jeopardy grounds. The Supreme Court reversed, holding that there was no double jeopardy bar because were the trial court's ruling found erroneous, the jury's guilty verdict could simply be reinstated and, because there was no need for a further trial or other proceeding to resolve factual issues, no prospect of a second "jeopardy" prohibited by the Fifth Amendment existed. Id. at 352-53.

In United States v. Jenkins, 420 U.S. 358 (1975), overruled on other grounds by United States v. Scott, 437 U.S. 82 (1978), decided the same day as Wilson, after a bench trial the district court dismissed the indictment and discharged the defendant. At issue was the application of Wilson to a bench trial. The Supreme Court stated:

When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the...