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Schouten v. State (9/26/2003) ap-1901
Schouten v. State (9/26/2003) ap-1901
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WAYNE SCHOUTEN and )
ROY ROBERTS, ) Court of Appeals Nos. A-8432
& A-8433
) Trial Court Nos. 3DI-02-
165 Cr
Appellants, )
& 3DI-02-166 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1901 September 26, 2003]
)
Appeal from the District Court, Third Judi
cial District, Dillingham, Monte L. Brice,
Magistrate.
Appearances: Sean E. Brown, Angstman Law
Office, Bethel, for Appellants. Kenneth M.
Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Wayne Schouten and Roy Roberts were charged (by
citation) with taking a moose out of season; Schouten was also
charged (by citation) with hunting without a valid license.1
When no prosecutor or police officer appeared on behalf of the
State at the defendants scheduled arraignment, Magistrate Monte
L. Brice dismissed the charges against the two defendants:
The Court: [T]here is no one here
representing the State. And it appears to me
that if the State was interested in
prosecuting these matters, they would have
had somebody here. And since they dont
appear interested enough in prosecuting these
cases to have someone here in court, Im going
to dismiss [these] cases for failure to
prosecute.
Now, that doesnt mean that youre going
to get away with it again, because when [the
authorities] learn that they lose their cases
by not showing up, the next time they cite
you, theyre going to make sure [that] theyre
going to be here. So you folks need to
understand that.
The defendants apparently
understood Magistrate Brice to have dismissed
the charges with prejudice i.e., with no
possibility of re-filing. But later events
cast doubt on the defendants understanding of
the magistrates ruling.
Four days after the defendants
arraignment, after the State learned that the
charges against the two defendants had been
dismissed, the State again charged the
defendants with taking the same moose out of
season. The two defendants asked Magistrate
Brice to dismiss the renewed charges. When
he refused, the defendants entered Cooksey
pleas of no contest, reserving their right to
contest the States re-filing of the charges.2
The defendants argument that Magistrate Brice dismissed
the charges with prejudice
The defendants first argument is that
Magistrate Brice dismissed the original charges with
prejudice when no one from the State appeared at the
arraignment. But when the defendants presented this
contention to Magistrate Brice, the magistrate declared
that he had not intended to dismiss the charges with
prejudice:
[My] remarks [at the defendants original
arraignment] were intended to constitute
nothing other than a dismissal for failure to
prosecute ... . Nothing [said] at the
original arraignment or set forth in the
[later] written dismissals indicate[s] a
clear intent ... to bar ... future
prosecution. [This was] exactly the opposite
of [my] actual intent, which was to dismiss
without prejudice.
Memorandum and Order Denying Motions to
Dismiss (July 10, 2002), page 2 (emphasis in
the original).
On appeal, the defendants argue
that we must not take Magistrate Brice at his
word. The defendants contend that the
magistrates original remarks clearly reveal
his intention to dismiss the charges with
prejudice and that the remarks we have just
quoted are simply the magistrates [after-the-
fact] rationalization, an attempt to avoid
the consequences of his original decision.
We do not agree. Magistrate Brices
remarks at the defendants original
arraignment are, at best, ambiguous on the
issue of whether he intended to dismiss the
charges with prejudice. Given this
ambiguity, it was not improper for the
magistrate to clarify what he meant.
Moreover, if Magistrate Brice had
in fact intended to dismiss the charges with
prejudice, this would have been an abuse of
his discretion. Judges are authorized to
dismiss criminal charges in the furtherance
of justice. See Alaska Criminal Rule 43(c).
But not every misstep or act of inattention
on the part of the prosecuting authorities
warrants dismissal. Although Magistrate
Brice was properly concerned with the States
failure to send a representative to the
defendants arraignment, the States inaction
did not result in actual legal prejudice to
the defendants.
Had the defendants wished, they
could have gone forward with the arraignment,
entered not guilty pleas, and asked the court
to schedule a trial date. Instead, the
defendants chose to accept the windfall of
dismissal. But the States failure to appear
at the arraignment, and the consequent delay
of a few days time, did not prejudice the
defendants ability to defend the charges or
disadvantage the defendants in any other
substantive way. Under our decision in State
v. Jones, 751 P.2d 1379 (Alaska App. 1988),
it would have been an abuse of discretion for
Magistrate Brice to dismiss the charges with
prejudice. Id. at 1382-83.
For these reasons, we conclude that
the charges against the defendants were not
dismissed with prejudice, at least not by
judicial decision. But the defendants also
argue that the charges were dismissed with
prejudice by operation of law.
The defendants argument that, by reason of AS 12.20.020
and AS 12.20.050, Magistrate Brices dismissal of the
charges barred the State from re-filing the charges
The defendants second argument is that,
regardless of whether Magistrate Brice intended to
dismiss the charges with prejudice, his act of
dismissing the charges had that effect as a matter of
law. The defendants argument is premised on two
statutes, AS 12.20.020 and AS 12.20.050(a).
The first statute, AS 12.20.020, declares:
When acquittal or dismissal is not a
bar. If ... the charge [against a defendant]
is dismissed upon an objection to its form or
substance, or discharged for want of
prosecution, without a judgment of acquittal
or in bar of another prosecution, it is not
an acquittal of the crime and does not bar a
subsequent prosecution for the same crime.
At first reading, this statute
seemingly undercuts the defendants argument
that the State was barred from re-filing the
charges against them. The statute declares
that when a criminal charge is dismissed for
want of prosecution (which was Magistrate
Brices stated basis for dismissing the
charges against the defendants), the
dismissal does not bar a subsequent
prosecution for the same crime unless the
dismissal is accompanied by a judgment of
acquittal or [a judgment] in bar of another
prosecution. We have just concluded that
Magistrate Brice did not issue a judgement in
bar of another prosecution when he dismissed
the charges at the defendants original
arraignment and that, even had he intended
to do so, his action would have constituted
an abuse of discretion. Thus, AS 12.20.020
seems to say that, under the circumstances of
this case, the State was empowered to re-file
the charges.
But the defendants argue that the
phrase [judgment] in bar of another
prosecution is meant to constitute a cross-
reference to another statute, AS 12.20.050(a)
a statute that specifies certain situations
in which dismissal of a criminal charge does
bar renewed prosecution as a matter of law.
AS 12.20.050(a) reads:
Dismissal as bar. (a) It is a bar to
another prosecution for the same crime if the
crime is a misdemeanor, but it is not a bar
if the crime charged is a felony when a
person is
(1) held to answer to the grand jury and
the court dismisse[d] the charge before the
case [was] presented to the grand jury upon
the motion of the prosecuting attorney; [or]
(2) held to answer to the grand jury and
the court dismisse[d] the charge because the
indictment [was] not found against the person
at the next session of the grand jury; or
(3) indicted for a crime and the
indictment is dismissed because the trial
[was] not held within a reasonable period of
time, there [was] not good cause shown for
the delay, and the delay was not upon the
application of the defendant or with the
defendants consent.
The defendants argue that, by
inserting the phrase [judgment] in bar of
another prosecution in AS 12.20.020, the
Alaska Legislature intended to incorporate
the provisions of AS 12.20.050(a) so that,
regardless of whether the judges order of
dismissal expressly states that the charge is
being dismissed with prejudice, the dismissal
will automatically be with prejudice in any
of the circumstances described in AS 12.20.
050(a).
Although the defendants
construction of AS 12.20.020 seems plausible,
we need not decide whether it is true
because the issue is moot. As we are about
to explain, even if AS 12.20.020 does
incorporate the provisions of AS
12.20.050(a), none of those provisions barred
the State from re-filing the charges against
the defendants in this case.
The defendants and the State differ
sharply in their construction of the
introductory clauses of AS 12.20.050(a): It
is a bar to another prosecution for the same
crime if the crime is a misdemeanor, but it
is not a bar if the crime charged is a felony
when ... . The defendants assert that these
introductory clauses should be interpreted in
this manner:
[Dismissal] is a bar to another
prosecution for the same crime if the crime
is a misdemeanor, but it is not a bar if the
crime charged is a felony when ...
The State, on the other hand, asserts that
these introductory clauses should be
interpreted as follows:
It is a bar to another prosecution for
the same crime if the crime is a misdemeanor,
but it is not a bar if the crime charged is a
felony[,] when ...
In other words, the State argues that the
statute means, Any of the three circumstances
listed below constitutes a bar to further
prosecution if the crime is a misdemeanor,
but not if the crime is a felony.
We agree with the States
construction of the statute for two reasons.
First, the defendants construction
of the statute rests on the notion that the
title and the text of the statute should be
run together, forming a single linguistic
unit: Dismissal ... is a bar to another
prosecution. This violates the principle
that the section headings and captions of
statutes are not part of the law. See AS
01.05.006; Denuptiis v. Unocal Corp., 63 P.3d
272, 278 n. 15 (Alaska 2003); Ketchikan
Retail Liquor Dealers Assn v. Alcoholic
Beverage Control Board, 602 P.2d 434, 438
(Alaska 1979).3
Second, and more importantly, the
defendants construction of the statute is
inconsistent with the legislatures intent.
When we examine the statutory antecedents of
AS 12.20.050(a), it is clear that the statute
means what the State suggests: In any of the
three circumstances listed in the statute,
the dismissal of a criminal charge will
constitute a bar to further prosecution if
the crime is a misdemeanor, but not if the
crime is a felony.
AS 12.20.050(a) began life 140
years ago. Our statute is derived from four
provisions of the code of criminal procedure
adopted by the Oregon legislature in 1864 and
later codified as 1523, 1524, 1527, and 1529
of Hills Annotated Laws of Oregon. These
four Oregon statutes dealt with various
circumstances in which a criminal charge
might be dismissed, and the effect of that
dismissal on the governments authority to re-
file the charge.
When, in March 1899, Congress
enacted a code of laws to govern the Alaska
Territory, they included these same four
provisions. In the Carter Code of 19004
, these four provisions are numbered
257, 258, 261, and 263 of the Code of
Criminal Procedure. In the 1913 Compiled
Laws of the Territory of Alaska, these same
four statutes were carried forward, verbatim,
as 2366, 2367, 2370, and 2372.
When, at the direction of the
Alaska Territorial Legislature, Alaska law
was recodified in 1933, the four statutes
were again carried forward, this time with
added section headings: see 1933 CLA, 5441,
5442, 5445, and 5448. In addition, the 1933
recodification included a fifth related
statute, 5446, that had been added by the
territorial legislature in 1925.5
In 1949, when Alaska territorial
law was recodified for the last time before
statehood, the original four statutes and the
newcomer fifth statute were once more carried
forward this time, as components of Title
66, Chapter 18, Article 2. See 1949 ACLA,
66-18-11, 66-18-12, 66-18-13, 66-18-16, and
66-18-18.
Here is how these five statutes
read from 1949 until 1962 (when they were
superseded by AS 12.20.050(a)):6
66-18-11. Dismissal before presenting
case to grand jury: Order. That any
criminal case in the courts of the Territory
of Alaska in which any person has been held
to answer to the Grand Jury on any criminal
charge may be, by the District Court upon
motion of the United States Attorney or any
of his assistants, dismissed before
presentation of the case to the Grand Jury,
and the defendant so held to answer
discharged, and such dismissal of the case
and discharge of the defendant shall have the
same effect as though the case were dismissed
after indictment had been found and returned;
but in case of the dismissal of a proceeding
and the discharge of a defendant as herein
provided, the reasons for the dismissal must
be set forth in the order, which must be
entered in the journal.
66-18-12. Dismissal for delay: Delay
in finding indictment. That when a person
has been held to answer for a crime, if an
indictment be not found against him at the
next term of the court at which he is held to
answer, the court must order the prosecution
to be dismissed, unless good cause to the
contrary be shown.
66-18-13. Delay in trial. That if a
defendant, indicted for a crime, whose trial
has not been postponed upon his application
or by his consent, be not brought to trial at
the next term of the court in which the
indictment is triable after it is found, the
court must order the indictment to be
dismissed, unless good cause to the contrary
be shown.
66-18-16. Dismissal in furtherance of
justice: Order. That the court may, either
on its own motion or upon the application of
the United States attorney, and in
furtherance of justice, order an action,
after indictment, to be dismissed; but in
that case the reasons of the dismissal must
be set forth in the order, which must be
entered in the journal.
66-18-18. Dismissal as bar to another
prosecution. That an order for the dismissal
of a charge or action, as provided in this
article, is a bar to another prosecution for
the same crime, if it be a misdemeanor, but
it is not a bar if the crime charged be a
felony.7
In this 1949 formulation of the
law, the wording of 66-18-18 (the dismissal
as bar statute) is unambiguous, and this
unambiguous wording supports the States
interpretation of our current statute. 1949
ACLA 66-18-18 declares that if a criminal
charge is dismissed as provided in this
article i.e., if it is dismissed for one of
the reasons specified in the preceding
statutes then the order [of] dismissal ...
is a bar to another prosecution for the same
crime if [the crime] be a misdemeanor, but it
is not a bar if the crime charged be a
felony. This is precisely the construction
that the State would give to our current
statute, AS 12.20.050(a).
When our state legislature enacted
a new code of criminal procedure in 1962 (see
SLA 1962, ch. 34, 1.15), they combined four
of these five pre-existing statutes into one
new statute AS 12.20.050(a). The four
source statutes are easily identified in the
new statute. The introductory language of AS
12.20.050(a) corresponds to 66-18-18:
It is a bar to another prosecution for
the same crime if the crime is a misdemeanor,
but it is not a bar if the crime charged is a
felony when a person is ...
AS 12.20.050(a) then lists three
circumstances in which a court may dismiss a
criminal charge. Subsection (1) of the
statute corresponds to former 66-18-11; this
subsection authorizes dismissal of a criminal
charge at the behest of the government, after
the defendant has been held to answer but
before the grand jury has considered the
case. Subsection (2) of the statute
corresponds to former 66-18-12; this
subsection authorizes dismissal of a criminal
charge when the defendant is held to answer
but no indictment is returned against the
defendant at the next session of the grand
jury. Finally, subsection (3) of the statute
corresponds to former 66-18-13; this
subsection authorizes dismissal of a criminal
charge if the defendant is not brought to
trial within a reasonable amount of time,
unless there is good cause for the delay or
the delay was requested by, or granted with
the consent of, the defendant.
(The fifth and remaining provision
of the 1949 code, 66-18-16, has no
counterpart in the 1962 recodification of the
statutes. 1949 ACLA 66-18-16 authorized the
court to dismiss a criminal charge after the
defendant was indicted, if the dismissal was
in furtherance of justice; the statute also
declared that the court could order such a
dismissal either on its own motion or upon
the application of the United States
attorney. Although 66-18-16 did not become
a part of the recodified statutes in 1962, it
survived as Alaska Criminal Rule 43(c).8 )
Because AS 12.20.050(a) is so
obviously drawn from the four predecessor
statutes 1949 ACLA 66-18-11, 66-18-12, 66-
18-13, and 66-18-18 we conclude that the
legislature intended AS 12.20.050(a) to serve
as a restatement of those four prior
statutes. And in particular, because the
introductory language of AS 12.20.050(a) is
drawn from 1949 ACLA 66-18-18, we will
interpret that introductory language to mean
the same thing as 1949 ACLA 66-18-18.
As we have already noted, 1949 ACLA
66-18-18 answers the question of statutory
construction that divides the parties in the
present case. This statute declared that
dismissal of a criminal charge under any
provision of Article 2, Chapter 18, Title 66
i.e., dismissal under 66-18-11, 12, 13, or
16 [was] a bar to another prosecution for
the same crime, if [the crime was] a
misdemeanor, but [was] not a bar if the crime
charged [was] a felony. This confirms the
States interpretation of the debated language
in our current statute, AS 12.20.050(a): if
a court dismisses a criminal charge under any
of the three circumstances listed in AS
12.20.050(a), this dismissal constitutes a
bar to further prosecution if the crime is a
misdemeanor, but not if the crime is a
felony.
For these reasons, we reject the
defendants suggested interpretation of
AS 12.20.050(a) and adopt the States
interpretation.
The remaining question is whether
AS 12.20.050(a), so interpreted, forbids the
State from continuing to prosecute the
defendants.
The defendants are charged with a
misdemeanor. Thus, if any of the three
subsections of AS 12.20.050(a) applies to
their case, the dismissal of the original
charges will constitute a bar to further
prosecution. But none of the three
subsections is applicable here. Subsections
(1) and (2) apply only to defendants who have
been held to answer to the grand jury, while
subsection (3) applies only to defendants who
have been indicted.
To judges and lawyers who did not
practice criminal law when Alaska was a
territory, it may seem strange for the
legislature to have enacted a statute in 1962
dealing with cases in which a defendant has
been held to answer or indicted for a
misdemeanor. Nowadays, defendants are rarely
indicted for a misdemeanor, since
misdemeanors can be prosecuted by complaint.
Moreover, there is currently no recognized
procedure for holding someone to answer for a
misdemeanor: under Alaska Criminal Rules
5(e) and 5.1, the only defendants who are
held to answer are those charged with
felonies.
But ever since the earliest days of
Alaska law, grand juries have been (and
remain) empowered to inquire into all crimes
committed or triable within the jurisdiction
of the court (including misdemeanors), and a
grand jury can indict a defendant regardless
of whether the defendant has previously been
held to answer.9 And although there is
apparently no current procedure for holding a
misdemeanor defendant to answer to the grand
jury, Alaskas former statutes authorized a
magistrate to hold a person to answer to the
grand jury for any crime.10
The law was apparently similar for
several years after statehood as well.
Although Alaska Criminal Rule 5 now
distinguishes between defendants who are
charged with misdemeanors and defendants who
are charged with felonies, the original
version of Criminal Rule 5(c) declared that
no defendant should be called upon to plead
when they appeared before a magistrate;
instead, the magistrates duty (in all cases)
was to decide whether the defendant should be
held to answer.11 Currently, Criminal Rule
5(e) reserves this type of procedure for
felony defendants, while Criminal Rule 5(f)
and District Court Criminal Rule 1 prescribe
a different procedure for misdemeanor
defendants requiring the magistrate to ask
the defendant to enter a plea, and also
requiring the magistrate to set a date for
the defendants trial. But our current
procedures were not enacted until 1973, when
the supreme court rewrote Criminal Rule 5 and
District Court Criminal Rule 1.12
Thus, even though AS 12.20.050(a)
may not apply to many misdemeanor charges
these days, this is only because our criminal
procedures have changed since the statute was
formulated. The statute continues to mean
what it says: the restrictions on further
prosecution of misdemeanors apply only when
the defendant has been held to answer or has
been indicted. See State v. Reinhart, 38 P.
822, 824 (Or. 1895) (adopting the same
interpretation of the ancestral Oregon
statute, Hills Annotated Laws of Oregon
1529).
We therefore hold that AS
12.20.050(a) did not bar the State from re-
filing the charges against the defendants in
this case. Accordingly, the judgements of
the district court are AFFIRMED.
_______________________________
1 5 AAC 85.045 and AS 16.05.330(a), respectively.
2 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
3 The one exception is that the section headings within the
Uniform Commercial Code, AS 45.01, are parts of the
code. See AS 45.01.109.
4 Thomas H. Carter, The Laws of Alaska (Callaghan and
Company 1900).
5 See SLA 1925, ch. 6, 1.
6 All five of these provisions begin with the word that.
The origin of this grammatical construction is
apparently found in the 1899 federal statute that
created the Alaska Penal Code. The federal statute
began with these words: Be it enacted by the Senate
and the House of Representatives of the United States
of America in Congress assembled ... . See Thomas H.
Carter, The Laws of Alaska, page 1. As a consequence,
almost every provision of the code began with the word
that.
When, at the direction of the Alaska Legislature (see SLA
1933, ch. 126), Henry Roden and his fellow members of
the Law Revision Board re-codified the laws of Alaska
in 1933, they removed the thats from these statutes.
See 1933 CLA, 5441, 5442, 5445, and 5448. In his
prefatory Certificate to the 1933 codification, Mr.
Roden explained that [i]n codifying and editing these
laws, [he had] made some changes, merely verbal,
without changing the original intent of the law.
But despite Mr. Rodens commendable efforts, the thats
sneaked back into these five statutes when the laws of
Alaska were recodified in 1949. See 1949 ACLA, 66-18-
12, 66-18-13, 66-18-16, and 66-18-18.
7 The 1949 version of this provision, 66-18-18, uses the
word article to wit, as provided in this article. All
prior versions of this statute used the word chapter.
This word was changed because all of the pertinent
statutes were part of the same chapter in Alaskas
earlier codes (e.g., Chapter 29 of the Carter Code)
but, in the 1949 recodification, these statutes were
collected in Article 2 of Chapter 18, Title 66.
8 Criminal Rule 43(c) states: [Dismissal] In Furtherance
of Justice. The court may, either on its own motion or
upon the application of the prosecuting attorney, and
in furtherance of justice, order an action, after
indictment or waiver of indictment, to be dismissed.
The reasons for the dismissal shall be set forth in the
order.
9 A grand jury can indict for any crime (listed here in
reverse chronological order): AS 12.40.030; 1949 ACLA
66-8-21; 1933 CLA 5177; 1913 CLA 2122; Carter Code
(1900), Criminal Procedure, 13.
A grand jury can indict a defendant regardless of whether
the defendant has been held to answer (again, listed in
reverse chronological order): AS 12.40.050; 1949 ACLA
66-8-22; 1933 CLA 5178; 1913 CLA 2123; Carter Code
(1900), Criminal Procedure, 14.
10See 1949 ACLA 66-6-1 through 66-6-33; 1933 CLA 5771-
5802; 1913 CLA 2408-2439; Carter Code (1900), Criminal
Procedure, 299-330.
11See Supreme Court Order No. 4 (effective October 4,
1959).
12See Supreme Court Order No. 157 (effective February 15,
1973).
