State of Washington v. Runions

649 P.2d 144, 32 Wash. App. 669, 1982 Wash. App. LEXIS 3105

• Court: Court of Appeals of Washington
• Decided: July 30, 1982
• Docket: No. 5087-1-II
• Status: Published

Opinions

Worswick, J.

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 codefendant 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 codefendant 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 Wn.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.

(Italics ours.)

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 Wn.2d 862, 601 P.2d 1276 (1979).

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

Petrie, J., concurs.

1 Defendant relies heavily on Frank v. United States, 347 F.2d 486 (D.C. Cir. 1965). In Frank the defendant was granted immunity while his conviction was on appeal. The federal immunity statute involved was, in pertinent part, virtually identical to CrR 6.14. Although the court found no error warranting reversal on the merits, it ordered the conviction dismissed stating that any other construction would lead to potential abuse of the immunity statute. In reaching this result the court construed the language of the statute literally, but noted that it would not be bound to do so if the result reached would run counter to the intent and purpose of Congress.

Based on federal legislative history, the United States Supreme Court overruled Frank, holding that the Frank result was contrary to the intent of Congress in passing the immunity statute. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).

2 The task force comments merely indicate that the rule contemplates transactional immunity. See Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure (1971). Examination of such legislative history as can be found concerning the grand jury statute (RCW 10.27.130) upon which the rule was modeled discloses nothing helpful.

3 A criminal appeal stays a judgment of conviction. RCW 9.95.062. CrR 7.3 requires the entry of a judgment, independent of a dispositional order, at the conclusion of a criminal trial.

4 Probation in and of itself is a form of punishment. See Mempa v. Rhay, 68 Wn.2d 882, 416 P.2d 104 (1966), rev'd on other grounds, 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254 (1967).