State v. Myers

• Decision Date: 04 December 2002
• Docket Number: No. 24731.,24731.
• Citation: 100 Haw. 132,58 P.3d 643
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Jerad Dean MYERS, Defendant-Appellant.
• Court: Hawaii Supreme Court

58 P.3d 643

100 Haw. 132

STATE of Hawai`i, Plaintiff-Appellee, v. Jerad Dean MYERS, Defendant-Appellant.

No. 24731.

Supreme Court of Hawai`i.

December 4, 2002.

Earle Partington, Honolulu, on the briefs, for defendant-appellant.

Loren J. Thomas, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by RAMIL, J.

Defendant-appellant Jerad Myers appeals from a district court judgment of conviction for driving under the influence of intoxicating liquor ("DUI"). Myers contends that the district court erred in denying his motion to dismiss the DUI charge following his nonjudicial punishment for the same conduct pursuant to 10 U.S.C. § 815 (2002). The single issue in this case is whether an Article 15 nonjudicial punishment is equivalent to a criminal conviction as defined in Hawai`i Revised Statutes ("HRS") § 701-110(3) (2001).

We hold that the district court did not err by denying Myers's motion to dismiss the DUI charge. By its terms, the military proceeding resulting in Myers's nonjudicial punishment pursuant to 10 U.S.C. § 815 does not amount to a "criminal prosecution." Hence, no criminal conviction resulted from this proceeding. Accordingly, the district court trial was not barred by HRS § 701-112(1).

I. BACKGROUND

The facts of this case are undisputed. On November 14, 2000, Myers, an active duty member of the United States Coast Guard ("USCG"), was arrested by Officer Lum of the Honolulu Police Department ("HPD") for DUI. Myers was arraigned in the District Court of the First Circuit on December 14, 2000, and entered a plea of not guilty.

Prior to Myers's trial in the district court, the commanding officer of USCG Cutter Jarvis charged Myers with DUI, in violation of the Uniform Code of Military Justice ("UCMJ") Article 111(a)(2), 10 U.S.C. § 911(a)(2)¹ and imposed a nonjudicial punishment upon Myers pursuant to UCMJ Article 15, 10 U.S.C. § 815.

Thereafter, Myers moved in the district court to dismiss his DUI charge with prejudice. In his motion, Myers contended that, because he had already been "punished" by the military for his DUI, any prosecution by the state was barred on statutory grounds based on HRS §§ 701-112(1) and 701-110(3). The prosecution filed its memorandum in opposition on May 9, 2001 and argued that HRS §§ 701-112(1) and 701-110(3) did not bar the state from prosecuting Myers. The prosecution contended that, although Myers had been subjected to an Article 15 nonjudicial proceeding, pursuant to congressional intent and federal case law, his nonjudicial punishment is not a criminal conviction, and, thus, the state could prosecute him for violation of state DUI laws.²

After a hearing on May 14, 2001, the district court took the matter under advisement. The district court later denied the motion by written order filed on June 12, 2001.

Following a stipulated facts trial, the court found Myers guilty of DUI. The district court imposed the minimum sentence, which included a fine of $150, along with court costs and fees of $132. Sentence was stayed pending appeal. This appeal followed.

II. STANDARD OF REVIEW

As the issue on appeal is strictly a matter of law, the standard of review is de novo. Shimabuku v. Montgomery Elevator Co., 79 Hawai`i 352, 357, 903 P.2d 48, 52 (1995).

III. DISCUSSION

In this jurisdiction, statutory authority precludes separate sovereigns from prosecuting the same defendant for the same offense. HRS §§ 701-110(3) and 701-112(1) read respectively as follows:

§ 701-110. When prosecution is barred by former prosecution for the same offense.

When a prosecution is for an offense under the same statutory provision and is based on the same facts as a former prosecution, it is barred by the former prosecution under any of the following circumstances:

....

(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty or nolo contendere accepted by the court.

§ 701-112. Former prosecution in another jurisdiction: when a bar.

When behavior constitutes an offense within the concurrent jurisdiction of this State and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this State under any of the following circumstances:

(1) The first prosecution resulted in . . . a conviction as defined in section 701-110(3), and the subsequent prosecution is based on the same conduct, unless:

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

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

(Emphasis added.)

The single issue in this case is whether an Article 15 nonjudicial punishment is equivalent to a criminal "conviction" as defined in HRS § 701-110(3). If so, the state's prosecution is barred under HRS § 701-112(1).

To determine whether an Article 15 nonjudicial punishment is a criminal conviction, we must understand its terms and design. An examination of United States Supreme Court authority, other federal court precedent, and the congressional history accompanying the enactment of the current Article 15 leads us to the conclusion that an Article 15 nonjudicial proceeding is not intended to, and does not, constitute "criminal prosecution." Accordingly, a nonjudicial punishment resulting from an Article 15 proceeding is not a criminal conviction within the meaning of HRS 701-110(3).

The UCMJ provides four methods for disposing of cases involving offenses committed by service personnel: (1) general court-martial, (2) special court-martial, (3) summary court-martial, and (4) disciplinary punishment administered by the commanding officer pursuant to Article 15 UCMJ, 10 U.S.C. § 815. Middendorf v. Henry, 425 U.S. 25, 31, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976). "General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both the prosecution and the defense." Id. "General courts-martial are authorized to award any lawful sentence, including death." Id.; see also, Art. 18 UCMJ, 10 U.S.C. § 818. "Special courts-martial may award a bad-conduct discharge, up to six months' confinement at hard labor, forfeiture of two-thirds pay per month for six months, and in the case of an enlisted member, reduction to the lowest pay grade." Middendorf, 425 U.S. at 31,96 S.Ct. 1281; see also Art. 19, UCMJ, 10 U.S.C. § 819. Summary courts-martial "occup[y] a position between informal nonjudicial disposition under Art. 15 and the courtroom-type procedure of the general and special courts-martial." Middendorf, 425 U.S. at 32,96 S.Ct. 1281. "It is an informal proceeding conducted by a single commissioned officer with jurisdiction only over noncommissioned officers and other enlisted personnel." Id.; see also Art. 20, UCMJ, 10 U.S.C. § 820. "The presiding officer acts as judge, fact finder, prosecutor, and defense counsel." Middendorf, 425 U.S. at 32,96 S.Ct. 1281. "Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative method of dealing with the most minor offenses." Id. at 31-32, 96 S.Ct. 1281 (emphasis added).³

In Middendorf, military personnel brought an action challenging the authority of the military to try them and sentence them to confinement after a summary court-martial without providing the assistance of counsel. The Court held that the fact that confinement can be imposed in a military environment after a summary court-martial did not make it a "criminal prosecution" and concluded that the summary court-martial is not a "criminal prosecution" for purposes of the fifth or sixth amendment right to counsel. Id. at 42, 48, 96 S.Ct. 1281. The Supreme Court stated that the fact that a proceeding may result in the loss of liberty does not necessarily mean the proceeding is a criminal prosecution. Id. at 37, 96 S.Ct. 1281.

An Article 15 nonjudicial proceeding is less judicial in nature than a summary court-martial. In addition, the permissible range of punishments resulting from an Article 15 proceeding is more circumscribed. Therefore, logic dictates that the less serious Article 15 nonjudicial proceeding cannot amount to criminal prosecution. Accordingly, the punishment that results from an Article 15 proceeding cannot amount to criminal conviction for the purposes of statutory analysis.

In Middendorf, even the dissent, which would have held that a summary court-martial is a criminal proceeding, agreed that the less serious Article 15 nonjudicial punishment is not a criminal conviction for the purposes of the fifth or sixth amendment. Id. at 58, 96 S.Ct. 1281 (Marshall, J., dissenting). The dissenters noted that an Article 15 nonjudicial punishment can be speedily imposed by a commander and does not carry with it the stigma of a criminal conviction. Id. at 58-59, 96 S.Ct. 1281.⁴

Numerous federal cases have held that an Article 15 nonjudicial proceeding is not a criminal prosecution. See e.g., United States v. Marshall, 45 M.J. 268, 271 (1996); Varn v. United States, 13 Cl.Ct. 391, 396 (1987); Dumas v. United States, 223 Ct.Cl. 465, 620 F.2d 247, 253 (1980) ("Article 15 proceedings clearly are not criminal prosecutions within the meaning of the rights plaintiffs claim under [the fifth and sixth] amendment[s]"); Bowes v. United States, 227 Ct.Cl. 166, 645 F.2d 961 (1981); Cole v. United States, 228 Ct.Cl. 890 (1981); Cochran v. United States, 1 Cl.Ct. 759, 764 (1983), aff'd, 732 F.2d 168 (1984); Cappella v. United States, 224 Ct.Cl. 162, 624 F.2d 976, 980 (1980). No cases have been cited or...