Saturday, December 1, 2012

Dismissal as a Sanction Against Prosecution is not an Acquittal


State v. Clemente (ICA November 30, 2012)
Background. Drew Clemente was prosecuted for one count of excessive speeding and one count of operating a vehicle under the influence. The key witness for the prosecution was the officer who pulled him over: Officer Jeffrey Tallion. At the bench trial, Officer Tallion testified for the prosecution, but did not finish on the first day. The District Court ordered Officer Tallion to come back nine days later at 10:00 a.m. On the second day, the court bailiff confused Officer Tallion with another officer in a different case who had called in sick.
The District Court called the parties ahead of schedule and told them that Officer Tallion was ill. The prosecution orally moved to continue the trial. The District Court denied the motion and sua sponte dismissed the case with prejudice. About an hour later, Officer Tallion showed up, as scheduled, and the case was recalled. The bailiff realized her error and explained it to the court. The prosecution orally moved for reconsideration of the dismissal based on the mistake. Clemente opposed. The District Court denied the motion. Nine days later, the prosecution filed a written motion for reconsideration. Clemente again opposed and the District Court again denied the motion. The District Court explained that reopening the case would violate the Double Jeopardy Clauses of the State and federal constitutions, HRS § 701-110, and that it did not have jurisdiction to reopen the case. The prosecution appealed.
The Double Jeopardy Clause. "[N]or shall any person be subject for the same offense to be twice put in jeopardy." Haw. Const. Art. I, Sec. 10. Similarly, "nor shall any person subject for the same offense to be twice put in jeopardy of life or limb." U. S. Const. Am. V. These clauses, inter alia, "protect[] against a second prosecution for the same offense after acquittal." State v. Dow, 72 Haw. 56, 58, 806 P.2d 402, 404 (1991). A defendant is "acquitted" "only when the ruling o the judge, whatever its lable, actually represents a resolution in the defendant's favor, correct or not, of some or all of the factual elements of the offense charged." State v. Poohina, 97 Hawai'i 505, 509, 40 P.3d 907, 911 (2002). See also State v. Markowski, 88 Hawai'i 477, 484, 967 P.2d 67, 681 (App. 1998) (defendant could be retried because dismissal based on defective charging was not related to his "guilt or innocence.").
Here, the ICA compared this case to Poohina, where the Hawai'i Supreme Court held that a dismissal sua sponte is not a ruling on the merits of the case and did not rule on the defendant's "guilt." So if that was not an acquittal, the ICA reasoned that Clemente was not acquitted either. Instead, the District Court dismissed the case with prejudice as a sanction against the prosecution for wrongly concluding that it had a no-show witness.
HRS § 701-110: A Similar Analysis. The Double Jeopardy analysis has been codified by HRS § 701-110. A second prosecution is barred by a former prosecution when "the former prosecution resulted in an acquittal which has not subsequently been set aside. There is an acquittal if the prosecution resulted in a finding of not guilty by a trier of fact or in a determination by the court that there was insufficient evidence to warrant a conviction." HRS § 701-110(1). According to the ICA, this statute "mimics" the constitutional analysis, and it did not go through a second analysis. It simply held that HRS § 701-110 was not a statutory bar for re-trial.
District Court Jurisdiction is good for ten days After the Ruling. The ICA rejected the District Court's conclusion that it had no jurisdiction to revisit the issues raised by the prosecution. The District Court may "[e]nter final judgments; and alter or set aside any judgment within ten days following the date of its rendition or as provided by the rules of the court[.]" HRS § 604-7(a)(3). Here, the ICA noted that the prosecution orally moved for reconsideration within one hour of the dismissal with prejudice. That meant, held the ICA, that the District Court had the power to set aside the dismissal order and it abused its discretion in denying the oral motion.

But What about the Written Motion? The ICA made no reference to the written motion filed nine days after the dismissal. Arguably, the District Court still had the power to review it because it was within the ten day period. But what if the written motion was filed after the ten day period? Under the ICA's analysis, it would probably be irrelevant since the oral motion should have been considered in the first instance. 

3 comments:

mark said...

If the district court exercised discretion to dismiss the Clemente case, rather than say it was barred by the acquittal, would the outcome have been different? Or is your reading that it is an abuse of discretion to just dismiss the case under those circumstances at all?

My cursory reading implies the judge basically just said "If you have no witness, no evidence, judgement of acquittal" but didn't go through those steps .

B. Lowenthal said...
This comment has been removed by the author.
B. Lowenthal said...

Excellent point, Mark! The ICA took the issue of using a dismissal as a sanction in State v. Correa. It came down pretty hard on the Dist. Ct. there. Search for it on the blog to read more (I can't figure out how to do links on comments.)

And no, the ICA did not go through those steps. At the start of its discussion, the ICA stated that there "is no dispute that the District Court erred in dismissing the charges[.]"

The ICA narrowed the issue to whether the Dist. Ct. had any authority to remedy its mistake.