State v. Weekley

• Decision Date: 25 March 1976
• Docket Number: No. 11578,11578
• Citation: 90 S.D. 192,240 N.W.2d 80
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Eugene George WEEKLEY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 80

240 N.W.2d 80

90 S.D. 192

STATE of South Dakota, Plaintiff and Respondent, v. Eugene George WEEKLEY, Defendant and Appellant.

No. 11578.

Supreme Court of South Dakota.

March 25, 1976.

Earl R. Mettler, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on brief.

Steven W. Sanford, of Braithwaite & Cadwell, Sioux Falls, for defendant and appellant.

WOLLMAN, Justice.

Appellant appeals for the judgment entered upon his conviction on a charge of escape. We affirm.

Appellant, who was then on trusty statuts, was discovered to be missing from his assigned location at the state penitentiary at about 10 p.m., August 13, 1974. He was apprehended approximately one and one-half hours later while walking along South Minnesota Avenue near Interstate 229 in the City of Sioux Falls.

Appellant was charged by penitentiary officials with a violation of Title 18, Rule 23 of the Inmate Rule Book, which states in part, 'Absence from any count may result in disciplinary action.' Appellant pled guilty to the charge of not being present for count and was ordered to spend five days in isolation by the penitentiary disciplinary board.

Appellant was later charged with escape from the state penitentiary, SDCL 24--12--1, on the basis of the above-described incident and was sentenced to serve an additional year in the state penitentiary upon being found guilty by a jury on that charge.

Appellant, who pled not guilty and not guilty by reason of former conviction, SDCL 23--35--17, contends that the trial court erred in not permitting him to introduce evidence at his trial pursuant to SDCL 23--44--19 to establish his contention that he had already been convicted of the same offense by virtue of the administrative discipline imposed by the penitentiary officials for his violation of Rule 23 of the Inmate Rule Book.

Simply stated, appellant's contention is that he has been twice subjected to jeopardy for a single act--his escape from the penitentiary--in violation of the Fifth Amendment to the United States Constitution (and, presumably, S.D.Const. Art. VI, § 9).

Appellant acknowledges that the contention that prosecution on a state or federal charge of escape is barred by the prior imposition of administrative discipline by prison authorities has been rejected almost out of hand in other jurisdictions. See, e.g., Fano v. Meachum, 1 Cir., 520 F.2d 374; United States v. Stuckey, 3 Cir., 441 F.2d 1104; Keaveny v. United States, 5 Cir., 405 F.2d 821; Pagliaro v. Cox, 8 Cir., 143 F.2d 900; United States v. Salazar, 8 Cir., 505 F.2d 72; Hutchison v. United States, 10 Cir., 450 F.2d 930; Alex v. State, Alaska, 484 P.2d 677; State v. Williams, 208 Kan. 480, 493 P.2d 258; State v. Tise, Me., 283 A.2d 666; Commonwealth v. Sneed, Mass.App., 322 N.E.2d 435; People v. Bachman, 50 Mich.App. 682, 213 N.W.2d 800; State v. Maddox, 190 Neb. 361, 208 N.W.2d 274; Shuman v. Sheriff of Carson City, Nev., 523 P.2d 841; State v. Lebo, 129 Vt. 449, 282 A.2d 804.

Appellant would have us distinguish these and other similar cases on the ground that by and large the double jeopardy contentions rejected therein have been given no close judicial attention but have been rather summarily rejected on the ground that the administrative discipline imposed following an escape is in the nature of a civil proceeding resulting in a loss of privileges, e.g., the loss of good time or the imposition of isolated confinement.

Appellant contends that he was placed in jeopardy as a result of the action by the penitentiary disciplinary board because (1) he suffered a loss of liberty in that he was removed from trusty status and placed in isolated confinement, and (2) the objective accomplished by the action of the disciplinary board was penal in nature.

In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, the United States Supreme Court was faced with the question whether a juvenile who has been the subject of an adjudicatory hearing in juvenile court may later be prosecuted as an adult on a charge based upon the facts that formed the basis of the juvenile court adjudication. In discussing this question, the Court stated:

'As we have observed, the risk to which the term jeopardy refers is that traditionally associated with 'actions intended to authorize criminal punishment to vindicate public justice.' United States ex rel. Marcus v. Hess, supra, 317 U.S. 537 at 548--549, 63 S.Ct. 379 at 388, 87 L.Ed. 443. Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens--psychological, physical, and financial--on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once 'for the same offence.' See Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Price v. Georgia, 398 U.S. 323 at 331, 90 S.Ct. 1757 at 1762, 26 L.Ed.2d 300; United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).' 421 U.S. at 529, 95 S.Ct. at 1786, 44 L.Ed.2d at 355.

The Court then went on to hold that because there was no persuasive distinction between an adjudicatory hearing in juvenile court and a traditional criminal prosecution in terms of the anxiety and insecurity engendered and the heavy personal strain imposed upon a juvenile by reason of being subjected to the adjudicatory proceeding, and because both the adjudicatory proceeding and the criminal prosecution are designed to vindicate the very vital interest of the government in enforcing its criminal laws, a juvenile is subjected to jeopardy when the juvenile court begins to hear evidence at an adjudicatory hearing.

Measured against the standard enunciated in Breed v. Jones, we conclude that appellant's claim of double jeopardy must fail. Although it may very well be true that appellant and others similarly situated experience some anxiety and insecurity by virtue of being subjected to administrative discipline by penitentiary authorities, it would trivialize the protection afforded by the double jeopardy clause of the state and federal constitutions to hold that it applies in this case to bar prosecution on a state charge of escape. As pointed out in Breed v. Jones, supra, and cases cited therein, the purpose of the double jeopardy clause is to require that a person be subject only once to a criminal proceeding that may result in criminal punishment designed to vindicate public justice. We do not consider administrative discipline imposed by penitentiary officials as constituting that type of proceeding. The administrative discipline imposed by penitentiary officials is designed to serve purposes essential to the orderly administration of the penitentiary. A formal criminal prosecution by the state on a charge of escape, together with the attendant publicity and potentially severe punishment, is designed to vindicate the vital...