State v. Runions, 5087-1-II

• Decision Date: 30 July 1982
• Docket Number: No. 5087-1-II,5087-1-II
• Citation: 649 P.2d 144,32 Wn.App. 669
• Parties: The STATE of Washington, Respondent, v. Patrick RUNIONS, Appellant.
• Court: Washington Court of Appeals

Page 669

32 Wn.App. 669

649 P.2d 144

The STATE of Washington, Respondent, v. Patrick RUNIONS, Appellant.

No. 5087-1-II.

Court of Appeals of Washington, Division 2.

July 30, 1982.

John L. Farra, Aberdeen, for appellant.

Curtis M. Janhunen, Pros. Atty., Gerald R. Fuller, Deputy Pros. Atty., Montesano, for respondent.

WORSWICK, Judge.

If a person convicted of a crime appeals, and, while the appeal is pending, is compelled, under a grant of immunity pursuant to CrR 6.14, to testify against a co-defendant concerning the transaction out of which the conviction arose, what is the status of the conviction and the State's power to punish? We hold, in this case of first impression in Washington, that although the conviction itself is not necessarily affected, all power of the State to punish terminates upon entry of the order granting immunity.

Defendant was convicted of second degree burglary and given a deferred sentence with conditions, including jail time. He filed a timely appeal. While the appeal was pending, the State apparently believed it was unable to prosecute a co-defendant without defendant's testimony. Defendant claimed the privilege against self incrimination. On the State's motion, the trial court granted an order pursuant to CrR 6.14 compelling defendant to testify with regard to the burglary transaction and granting him immunity from future prosecution with regard to the incident. Defendant contends that the conviction must be set aside and the charges dismissed. ¹ Our research into the state "legislative" history of CrR 6.14 has yielded no substantial guidance. ² The Congressional history of comparable federal statutes, while interesting, is of no help in our analysis of a judicially promulgated state rule. See State v. Fitzsimmons, 94 Wash.2d 858, 620 P.2d 999 (1980). We are left to a literal application of CrR 6.14 which states:

In any case the court on motion of the prosecuting attorney, may order that a witness shall not be excused from giving testimony or producing any papers, documents or things, on the ground that his testimony may tend to incriminate or subject him to a penalty or forfeiture; but he shall not be prosecuted or subjected to criminal penalty or forfeiture for or on account of any transaction, matter, or fact concerning which he has been ordered to testify pursuant to this rule...

(Emphasis added.)

The rule speaks to what may happen after the grant of immunity. Use of the disjunctive, or, in two places fortifies our interpretation that even though prosecution has already occurred, with a resulting conviction, immunity nevertheless extends to punishment, or whatever remains of it, in the future. ³ We fail to see how a court can subsequently impose sentence on defendant. It follows that the power of the State to impose any punishment terminates upon the entry of the order granting immunity.

Defendant raises additional claims of error. We consider these moot. Because the disposition here was probation under a deferred sentence which cannot continue, ⁴ the power of the court to do anything other than act upon an application for dismissal of the charges pursuant to RCW 9.95.240 has ended. State v. Nelson, 92 Wash.2d 862, 601 P.2d 1276 (1979).

Remanded, with directions to enter orders consistent with this opinion.

PETRIE, J., concurs.

REED, Chief Judge (dissenting).

While conceding that the language of CrR 6.14 ⁵ is virtually identical to the federal witness immunity statute in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), ⁶ the majority's analysis fails to embrace nearly 90 years of decisional law interpreting and applying this federal counterpart to CrR 6.14. The essence of the majority's opinion is that Washington's legislative history of CrR 6.14 is too meager to be of help, hence, a literal interpretation of the rule is the only proper method of construction. I respectfully disagree.

It is the duty of the judiciary to merge a statute into the going system of law, always mindful of and directed by whatever policy or intent the lawmaker has seen fit to express. Courts are not constrained to a wooden and literal reading of a statute; when the statute or rule in question is substantially similar to a seasoned federal counterpart, as is CrR 6.14, the concomitant decisional law cannot be ignored in our analysis.

A basic tenet of statutory construction is that when the legislature of a state adopts a similar statute from a foreign jurisdiction, it is then presumed that the legislature also adopts the construction placed on it by that foreign jurisdiction. 2A C. Sands, Statutory Construction § 52.02-.03 (4th ed. 1973). The statutes need not be identical for this presumption to operate; the presumption

varies in strength with the similarity of the language, the established character of the decisions in the jurisdiction from which the language was adopted and the presence or lack of other indicia of intention.

Carolene Prod. Co. v. United States, 323 U.S. 18, 26, 65 S.Ct. 1, 5, 89 L.Ed. 15, 155 ALR 1371 (1944). That the provision whose meaning we seek is a court Rule adopted by our State Supreme Court rather than a statute enacted by the Legislature is of no moment in this regard; general principles of statutory construction are employed in the application and interpretation of rules promulgated by the Supreme Court. ⁷ State v. McIntyre, 92 Wash.2d 620, 622, 600 P.2d 1009 (1979). Washington courts and courts of other jurisdictions have employed this rule of statutory construction in the interpretation of state court rules and used federal decisional law as persuasive, if not in fact controlling, precedent. See American Discount Corp. v. Saratoga W., Inc.,, 81 Wash.2d 34, 499 P.2d 869 (1972) (rules of civil procedure); Assured Investors Life Ins. Co. v. National Union Assoc., Inc., 362 So.2d 228, 231 (Ala.1978) (rules of civil procedure); State v. Darwin, 29 Conn.Supp. 423, 290 A.2d 593, 595 (1972) (rules of criminal procedure).

This court need not rely solely on the nearly identical language of CrR 6.14 and the federal witness immunity statutes to be convinced that the Washington Supreme Court, when it promulgated CrR 6.14, was mindful that federal case law should and would be used to implement or explain the precise words. In May 1971, the Criminal Rules Task Force to the Washington Judicial Council adopted transactional immunity, rather than use or testimonial immunity ⁸ in the Proposed Rules of Criminal Procedure. The comment (see West Pub'g. Co. edition) following the proposed rule, now CrR 6.14, indicates that this policy decision was made "by a close and divided vote" and in order to implement it the task force chose to use the "language approved by the legislature in the Grand Jury bill (H.B. 175-1971)."

The legislative history of this Grand Jury bill, later codified in RCW 10.27 et seq., and of CrR 6.14 are closely entwined. During substantially the same time period the Washington State Judicial Council was commissioned by the legislature and the Supreme Court to conduct studies and to make recommendations on both statutory schemes-the grand jury reform act (later changed to the Criminal Investigatory Act of 1971) and the rules of criminal procedure. ⁹ The witness immunity section of the criminal investigatory act, RCW 10.27.130, was passed by the Legislature in May of 1971; the decision of the Judicial Council to adopt the language of RCW 10.27.130 to effectuate the grant of transactional immunity under CrR 6.14 also occurred in May of 1971. ¹⁰

Just as the Judicial Council's final recommendation to the Supreme Court to incorporate transactional rather than use immunity in CrR 6.14 was arrived at by a "close and divided vote," it appears that the Legislature's adoption of RCW 10.27.130 was also characterized by initial dissension and disharmony. The difficulties encountered by both the Legislature and the Judicial Council can be appreciated only by an understanding of the changes occurring in the federal witness immunity statutes during this time and the importance both bodies attached to these changes.

By enacting the Organized Crime Control Act of 1970, 18 U.S.C. § 6002, Congress repealed some 57 separate federal witness immunity statutes. See the listing following Organized Crime Control Act of 1970, § 201, 18 U.S.C.A. § 6001 (1971 Supp.). The result was to replace the grant of "transactional" immunity with the more limited "use" and derivative "use" immunity. ¹¹ This congressional decision was in apparent conflict with case law which appeared to hold that only full transactional immunity was sufficient to neutralize one's constitutional privilege against self-incrimination. E.g., Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896). However, the constitutionality of the more narrow concept of use immunity embodied in 18 U.S.C.A. § 6002 was later upheld by the United States Supreme Court in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

The legislative history of RCW 10.27.130, the direct model for CrR 6.14, reveals that the Legislature originally intended to grant only use or testimonial immunity. ¹² The language employed by our Legislature was a verbatim adoption of the relevant language in the federal Organized Crime Control Act of 1970, 18 U.S.C. § 6002. See footnote 11. House Judiciary Committee records disclose the primary reason for the legislative decision to replace the grant of use immunity, which was originally intended, with that of transactional immunity; i.e., the legislature was apprised of the very real possibility that use immunity might eventually be struck down as unconstitutional by the United States Supreme Court. ¹³ It was forewarned that a United States District Court for the Southern District of New York, in In re Kinoy Testimony, 326 F.Supp. 407 (1971), had already declared...