Avery v. State

Decision Date10 January 1990
Docket NumberNo. 07-58022,07-58022
Citation555 So.2d 1039
PartiesRandy J. AVERY v. STATE of Mississippi.
CourtMississippi Supreme Court

Cliff R. Easley, Jr., Easley & Cooper, Bruce, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Jack B. Lacy, Jr., Asst. Dist. Atty., Eupora, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:



The original opinion in this case is withdrawn and this opinion affirming is substituted therefor.

At issue today is whether we will take seriously the rule that requires that one arrested and charged with a crime be given a preliminary hearing within a reasonable time. Today's appellant repeatedly sought a preliminary hearing following his arrest and was repeatedly rebuffed. The opportunities for confrontation of witnesses and pre-trial discovery thus denied, however, were afforded Avery on his first trial which ended in a mistrial. When he was brought to trial again, Avery was in as good (if not better) a position as he would have been in had his rights not been denied.

We affirm.


On March 19, 1985, Webster County law enforcement authorities arrested Randy J. Avery and charged him with four felony offenses, 1 one of which is the present charge of sale of more than one ounce but less than one kilogram of marijuana. Bond was set and Avery was released less than twenty-four hours after his arrest.

Avery repeatedly requested a preliminary hearing. Judge Travis Pittman, Justice Court Judge for Webster County, in response to questioning by Avery's attorney, testified

Q. Now, Judge Pittman, did you set, or schedule a preliminary hearing for this Defendant on these charges?

A. We didn't have a preliminary hearing.

Q. Did the Defendant through his counsel request a preliminary hearing?

A. You did. We have a copy of your letter out here in the docket where you requested preliminary hearings on these cases.

Q. And, were motions filed with you requesting a preliminary hearing?

A. Yes, sir; from you.

* * * * * *

Q. You didn't have them to furnish. And, did you discuss with Mr. George Mitchell, the acting County Attorney, or assistant District Attorney, about scheduling a preliminary hearing for the Defendant?

A. Yes, sir, but I understood the District Attorney was rather busy, and we never did get into a preliminary hearing.

Q. And, it certainly wasn't anything that was the fault of this Defendant that there wasn't a preliminary hearing granted, was it?

A. No, sir.

Joy Davis, Justice Court Clerk, confirmed that Avery's attorney had requested a preliminary hearing and exhibited a formal motion for preliminary hearing filed in the Justice Court of Webster County on April 18, 1985. That motion recites a series of efforts by Avery to obtain a preliminary hearing beginning with an April 3, 1985, telephone call to the County Attorney of Webster County followed up by a letter On May 6, 1985, the Grand Jury of Webster County returned an indictment charging Randy J. Avery with sale of marijuana on February 27, 1985, in violation of Miss.Code Ann. Sec. 41-29-139(a)(1), (b)(2) (Supp.1984). On the following day, May 7, 1985, Avery filed in the Circuit Court a motion for a preliminary hearing, invoking the provisions of Rules 1.04 and 1.07, Miss.Unif.Crim.R.Cir.Ct.Prac. (1979, as amended).

to the District Attorney and other informal requests.

Thereafter, on May 20, 1985, the Circuit Court heard Avery's motion and in the end stated:

The purpose and the function of a preliminary hearing is to assure prisoners that they are not being held without probable cause or without a judicial determination that they should be held--arrested and held and that they should be given an opportunity for bond. That is the purpose of a preliminary hearing. This man was not retained any undue or extraordinary amount of time in jail, but was--had bond set for him and was, and was released upon bond being made.... The function of a preliminary hearing was accomplished. The motion is overruled.

In November of 1985, Avery stood trial in the Circuit Court of Webster County. The Court ultimately declared a mistrial, however, as the jury was unable to reach a verdict.

In May of 1986, Avery was put to trial on the charge laid in the indictment once again. On May 30, 1986, Avery was adjudged guilty as charged, whereupon the Court sentenced him to the custody of the Mississippi Department of Corrections for a term of five years. This appeal has followed.


The pretrial process commonly known as a preliminary hearing has been a part of our law of criminal procedure for many years. In 1979 we formalized the process by adopting Rules 1.04 and 1.07, Miss.Unif.Crim.R.Cir.Ct.Prac. Rule 1.04 provides that every person arrested shall be taken before a judicial officer without unnecessary delay and that the judicial officer shall set a date for a preliminary hearing "within a reasonable time." 2 The Rule further provides that the preliminary hearing "shall be heard on the set date" and then, significantly, the Rule provides that a preliminary hearing may be waived only "in writing or in open court and upon the advice of counsel." There is no suggestion that Avery waived his right to a preliminary hearing. Indeed, it affirmatively appears that he repeatedly requested such.

Rule 1.07 then prescribes the procedure to be followed at the preliminary hearing. 3

These Rules confer upon every accused rights he or she may enjoy unless waived in writing. From what has been said, it would appear certain that Avery's right to a preliminary hearing has been denied. The Circuit Court acknowledged as much but held in effect that this did not matter because the purpose of the preliminary hearing was to determine probable cause and to set bond. See our pre-Rules cases, e.g., Glass v. State, 278 So.2d 384, 387 (Miss.1973); Stevenson v. State, 244 So.2d 30, 32-33 (Miss.1971); McLelland v. State, 204 So.2d 158, 161 (Miss.1967). These things done, the Circuit Court held in effect that Avery's point was moot. A careful reading of Rules 1.04 and 1.07 will not admit of this construction.

For one thing, setting bond and establishing probable cause are not the only purposes of a preliminary hearing. Rule 1.07 provides that witnesses produced by the prosecution at the preliminary hearing shall be examined on oath "in the presence of the defendant." The Rule further provides that "the defendant may cross-examine the witnesses against him." We have recently recognized that one of the primary purposes of a preliminary hearing is "to permit the defendant to confront his accusers." Shook v. State, 552 So.2d 841, 850 (Miss.1989). Herring v. State, 522 So.2d 745, 751 (Miss.1988) recognizes the point as well.

It is common knowledge that defendants use preliminary hearings for discovery. The procedure outlined in Rule 1.07 allows compulsory process and frequently entitles the defendant to cross-examine the investigating officers, the victim and other witnesses. In practical effect this affords a defendant the opportunity for a limited pre-trial deposition of key prosecution witnesses. The purposes of confrontation and discovery are hardly rendered moot once bond has been set or even when an indictment has been returned. Anything to the contrary in Herring, 522 So.2d at 751 must be deemed a misreading of the Rule.

The fact that bond has been set extra-judicially, as here, does not necessarily pretermit the judicial bond setting function of the preliminary hearing. The law empowers the judge presiding at the preliminary hearing to modify the terms and conditions of the accused's release pending trial. Beyond this, the probable cause determination generated by an adversary proceeding at preliminary hearing is qualitatively different--and of more value to the accused--than ex parte findings by a magistrate issuing a warrant or even a grand jury considering indictment. 4 The point in the end is Rules 1.04 and 1.07 prescribe the rights and conditions upon which the accused may have a preliminary hearing. So long as the Rules' prescription be honored, the accused may use the preliminary hearing for any lawful purpose.

We have no doubt that historically the Rules arose for the purposes recited by the circuit judge. There is nothing in the Rules as presently written, however, which directly or indirectly limits their effect to those purposes nor, more importantly, is there anything in the Rules which extinguishes the rights conferred upon the accused once the setting of bond and determination of probable cause have been made. The point for the moment is that the Rules supersede any limiting expressions in our pre-Rules case law. Cf. Leatherwood v. State, 548 So.2d 389, 399 (Miss.1989).

It is no answer that the accused enjoys no federal constitutional right to a preliminary hearing. See Pennsylvania v A like issue was before the Court in Lambert v. State, 524 So.2d 576 (Miss.1988). In a concurring opinion authored by Presiding Justice Dan M. Lee and joined by four other Justices, Lambert rejects the idea that the purpose of a preliminary hearing is limited to determining probable cause and fixing bond. In Lambert the prosecution had argued that by posting bond the defendant had waived his right to a preliminary hearing. The Lambert concurrence rejects that view, for the reason that Rule 1.04 makes crystal clear that the only way an accused may waive his right to a preliminary hearing is to do so "in writing or in open court and upon advice of counsel." 524 So.2d at 581.

Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The right at issue today has its source wholly in the law of this state and is in no way dependent upon federal law to make it valid or enforceable. See Michigan v. Long, 463 U.S. 1032, 1037-44, 103 S.Ct. 3469, 3474-78, 77 L.Ed.2d 1201, 1212-16 (1983).

We are particularly concerned at the paucity of reasons given in the record why Avery's requests for a preliminary hearing were not honored....

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22 cases
  • Smith v. State, 93-DP-00821-SCT.
    • United States
    • Mississippi Supreme Court
    • December 10, 1998
    ...that he was denied a preliminary hearing, and therefore, his conviction should be reversed.13 He bases his argument on Avery v. State, 555 So.2d 1039, 1041-43 (Miss.1990). Jerome's reliance on Avery is misplaced, as it has been overruled by this Court. "[T]his Court's decision in Mayfield v......
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    ...that his right to a preliminary hearing was violated because he did not receive or waive his right to one. See Avery v. State, 555 So.2d 1039, 1043 n. 5 (Miss.1990); Lambert v. State, 524 So.2d 576, 581 (Miss.1988) (Dan Lee, P.J., Dissenting in Part and Concurring in Part). Despite the deni......
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    • December 18, 1991
    ...hearing, of course, may be held before any judicial officer, including a justice court judge or a municipal court judge. In Avery v. State, 555 So.2d 1039 (Miss.1990), we held that Rules 1.04 and 1.07 mean what they say--nothing more, nothing Rule 1.04(3) provides that the accused may waive......
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