State v. Stewart

• Decision Date: 29 July 1999
• Docket Number: No. 980354,980354
• Citation: 598 N.W.2d 773
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Patrick STEWART, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 773

598 N.W.2d 773

1999 ND 154

STATE of North Dakota, Plaintiff and Appellee, v. Patrick STEWART, Defendant and Appellant.

No. 980354.

Supreme Court of North Dakota.

July 29, 1999.

Rehearing Denied Aug. 25, 1999.

Rick L. Volk, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Deborah J. Carpenter, Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

¶1 Patrick Stewart appealed from an order deferring the imposition of his sentence for making a false claim or statements to the North Dakota Workers Compensation Bureau. We hold the administrative remedy for making a false claim or false statements to the Bureau under N.D.C.C. § 65-05-33 is a civil sanction, and therefore a subsequent criminal prosecution under that statute does not violate the double jeopardy clause of the federal constitution. We affirm.

I

¶2 Stewart received workers compensation benefits for injuries incurred during the course of his employment in 1993. The Bureau periodically required Stewart to complete income and work status cards. In November 1996, Stewart signed an income and work status card which indicated he had done some work, but he had not been paid for it. The Bureau employed Francine Johnson to investigate Stewart's work status and employment income. Johnson videotaped Stewart while he was operating a backhoe, driving truck, and removing snow. On December 19, 1996, Johnson interviewed Stewart without advising him that he was the subject of an investigation. During the interview, Stewart told Johnson he had assisted an excavating company by operating a backhoe, driving truck, and removing snow. On December 23, 1996, the Bureau issued a notice of intent to discontinue Stewart's benefits, which stated he had provided a false statement regarding his return to work status. In May 1997, the Bureau subpoenaed the excavating company's bank records, which indicated the company had paid Stewart $1,410 during the summer and fall of 1996. According to Stewart, he received the money for personal property sold to a principal of the excavating company. After additional investigation, the Bureau issued an October 1997 order denying Stewart further benefits for his injury and requiring him to return previously paid benefits.

¶3 Stewart requested a rehearing on the Bureau's administrative termination of benefits. On April 27, 1998, an administrative law judge recommended finding Stewart did not willfully file a false claim or make false statements to obtain benefits from the Bureau. The ALJ recommended reversing the Bureau's October 1997 order. Stewart acknowledges that the recommendation of the ALJ was not a final determination in the administrative proceeding. ¹

¶4 Meanwhile, on December 18, 1997, the State charged Stewart with a class C felony under N.D.C.C. § 65-05-33 for willfully filing a false claim or making false statements to the Bureau. After the ALJ issued the recommended decision in the administrative proceeding in April 1998, Stewart moved on May 4, 1998, to dismiss this criminal prosecution, claiming the Bureau's investigation violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel and the adjudication in the administrative proceeding barred the criminal prosecution. In June 1998, the trial court denied Stewart's motion to dismiss, ruling the remedy for violations of the Fifth and Sixth Amendments was the suppression of any statements made as a result of the violations, not the dismissal of the prosecution. The court also decided the administrative remedy for making false statements to the Bureau was a civil sanction and did not bar the criminal prosecution or violate double jeopardy. Stewart entered an Alford plea ² to a class A misdemeanor violation of N.D.C.C. § 65-05-33, reserving his right under N.D.R.Crim.P. 11(a)(2) to appeal the trial court's decision denying his pretrial motion. The court deferred the imposition of sentence for one year, and Stewart appealed. ³

II

¶5 Stewart argues the Bureau's investigation violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel, because his statements to Johnson occurred after the Bureau started a fraud investigation focusing on his conduct. Stewart claims he was not advised of his right to counsel before he talked to Johnson, and he argues the prosecution should have been dismissed because of violations of his Fifth and Sixth Amendment rights.

¶6 The Fifth Amendment of the United States Constitution provides no "person ... shall be compelled, in any criminal case, to be a witness against himself," while the Sixth Amendment grants the accused the right to the assistance of counsel "[i]n all criminal prosecutions." The protections afforded by those provisions apply to "any criminal case" and "all criminal prosecutions." See United States v. Ward, 448 U.S. 242, 248-51, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) (holding civil proceedings do not trigger self-incrimination protections afforded criminal defendant).

¶7 In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held the prosecution may not use statements made during the "custodial interrogation" of a defendant unless it demonstrates the use of procedural safeguards, now generally referred to as Miranda warnings, to secure the privilege against self-incrimination. The Court defined "custodial interrogation" to mean "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. The Sixth Amendment right to counsel attaches after initiation of formal criminal charges. Michigan v. Harvey, 494 U.S. 344, 353, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990); Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); Brewer v Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Massiah v. United States, 377 U.S. 201, 205, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

¶8 Here, Johnson interviewed Stewart in December 1996, but the State did not initiate formal criminal charges against him until December 1997. Stewart's Sixth Amendment right to counsel therefore had not attached when Johnson interviewed him in December 1996. ⁴

¶9 Moreover, the remedy for violations of the privilege against self-incrimination and the right to counsel is suppression of a defendant's statements made after violation of those provisions. See, e.g., United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981); Miranda, 384 U.S. at 479, 86 S.Ct. 1602. See also City of Fargo v. Ternes, 522 N.W.2d 176, 179 (N.D.1994). In United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) (footnote and citations omitted), the Supreme Court explained:

Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial. While the general common-law practice is to admit evidence despite its illegal origins, this Court in a number of areas has recognized or developed exclusionary rules where evidence has been gained in violation of the accused's rights under the Constitution, federal statutes, or federal rules of procedure.... Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.

¶10 Stewart sought dismissal of the charges. In support of his motion to dismiss, Stewart submitted the administrative law judge's recommended findings, which said Stewart voluntarily informed Johnson about removing snow, driving truck, and operating a backhoe. Stewart also submitted Johnson's partial deposition which suggested the interview occurred at Stewart's residence. No evidentiary hearing was held on Stewart's motion to dismiss, and no other evidence was developed regarding the circumstances of the interview. The trial court ruled Stewart's claimed violations of his right to counsel and privilege against self-incrimination "seem[ ] to have little foundation in support of the same. If, in fact, [Stewart] made statements or gave information in the absence of the appropriate warnings, the remedy is not a dismissal of the action. It is suppression of the statements." We agree, and we hold the trial court did not err in refusing to dismiss the charge against Stewart for the claimed violations of his privilege against self-incrimination and his right to counsel. ⁵

III

¶11 Stewart argues the adjudication in the administrative proceeding bars this criminal prosecution under the double jeopardy clause of the Fifth Amendment. Stewart argues the crux of this case is "whether the Bureau can initiate criminal proceedings against a claimant when it has already failed to prove its case after a full hearing in the civil matter." Stewart argues the administrative proceeding and the criminal prosecution arise under the same statute, conduct, and evidence, and the administrative adjudication bars the criminal action under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

¶12 The Fifth Amendment of the United States Constitution prohibits a person from being twice put in jeopardy for the same offense. In Blockburger, 284 U.S. at 304, 52 S.Ct. 180, the Supreme Court outlined the test for deciding whether a defendant has been punished twice for the same offense: If "the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each...