Desper v. State
| Decision Date | 13 June 1984 |
| Docket Number | No. 16120,16120 |
| Citation | 318 S.E.2d 437,173 W.Va. 494 |
| Court | West Virginia Supreme Court |
| Parties | Tony DESPER v. STATE of West Virginia, The Honorable Burl Holbrook, Magistrate, and the Magistrate Court of Kanawha County, West Virginia. |
Syllabus by the Court
1. A preliminary examination conducted pursuant to Rule 5.1 of the West Virginia Rules of Criminal Procedure serves to determine whether there is probable cause to believe that an offense has been committed and that the defendant committed it; the purpose of such an examination is not to provide the defendant with discovery of the nature of the State's case against the defendant, although discovery may be a by-product of the preliminary examination.
2. In challenging probable cause at a preliminary examination conducted pursuant to Rule 5.1 of the West Virginia Rules of Criminal Procedure, a defendant has a right to cross-examine witnesses for the State and to introduce evidence; the defendant is not entitled during the preliminary examination to explore testimony solely for discovery purposes. The magistrate at the preliminary examination has discretion to limit such testimony to the probable cause issue, and the magistrate may properly require the defendant to explain the relevance to probable cause of the testimony the defendant seeks to elicit.
Pepper & Nason, Charleston, for appellant.
Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellees.
This proceeding in mandamus is before this Court upon the petition of Tony A. Desper. Desper seeks to compel the respondents to grant him a new preliminary examination in a case in which Desper (hereinafter "defendant") is charged, under W.Va.Code, 61-2-12 [1961], with the felony offense of robbery. Respondent Holbrook conducted the defendant's original preliminary examination. 1 This Court directed the respondents to show cause why relief in mandamus should not be awarded against them. This Court has before it the petition, all matters of record and the briefs and argument of counsel.
In the early morning hours of October 13, 1983, a robbery occurred at a Go-Mart Store in Charleston, Kanawha County, West Virginia. James R. Young, an employee at that store testified at the defendant's preliminary examination that a man, holding Young at knife-point, took approximately $87 from the store's cash register. Other people were in the store at that time. Immediately after the robbery, the assailant left the premises.
At the preliminary examination, the State called only one witness, Young. He described the robbery and, during the hearing, identified the defendant as the assailant. Young testified that he had previously identified the defendant as the assailant from police photographs. Young further testified that he had made a written statement to the police concerning the robbery. 2
The record indicates that two police officers were present at the defendant's preliminary examination, one of whom was known as "Detective Lee." Defense counsel attempted to call those officers as witnesses, purportedly for the purpose of eliciting testimony concerning (1) an alleged inconsistency between the arrest warrant and the testimony of Young, 3 (2) the identification by Young of the defendant from police photographs and (3) the written statement made by Young to the police concerning the robbery. 4 However, asserting that defense counsel simply intended to engage in the discovery of the State's case against the defendant, the State objected to the calling of the police officers as witnesses. The magistrate sustained that objection and refused to permit defense counsel to call the police officers as witnesses. 5
Finding probable cause, the magistrate held the defendant to answer in the Circuit Court of Kanawha County upon the charge of robbery. The circuit court refused the defendant's request for a new preliminary examination. Subsequently, the defendant was indicted for robbery by a Kanawha County grand jury.
Rule 5.1 of the West Virginia Rules of Criminal Procedure addresses the manner in which preliminary examinations or hearings shall be conducted in this State. 6 Sections (a) and (b) of that rule provide as follows:
(a) Probable Cause Finding. If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the magistrate shall forthwith hold him to answer in circuit court. Witnesses shall be examined and evidence introduced for the state under the rules of evidence prevailing in criminal trials generally except that hearsay evidence may be received, if there is a substantial basis for believing:
(1) That the source of the hearsay is credible;
(2) That there is a factual basis for the information furnished; and
(3) That it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing.
The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12. On motion of either the state or the defendant, witnesses shall be separated and not permitted in the hearing room except when called to testify.
(b) Discharge of Defendant. If from the evidence it appears that there is no probable cause to believe that an offense has been committed or that the defendant committed it, the magistrate shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the state from instituting a subsequent prosecution for the same offense.
In West Virginia, a preliminary examination is not constitutionally required. Syl. pt. 1, State ex rel. Rowe v. Ferguson, --- W.Va. ---, 268 S.E.2d 45 (1980); syl. pt. 1, Gibson v. McKenzie, 163 W.Va. 615, 259 S.E.2d 616 (1979). See also Stover v. Coiner, 290 F.Supp. 852, 855 (N.D.W.Va.1968); Guthrie v. Boles, 261 F.Supp. 852, 854 (N.D.W.Va.1967). However, when a preliminary examination is held, it is regarded as a "critical stage" at which a defendant has a constitutional right to counsel. State v. Stout, --- W.Va. ---, 285 S.E.2d 892, 893 (1982). In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), Justice Brennan, writing for the majority, set forth four reasons for a criminal defendant's entitlement to counsel at a preliminary examination. As those four reasons indicate, a criminal defendant may benefit in various ways from the holding of a preliminary examination:
Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.
399 U.S. at 9, 90 S.Ct. at 2003, 26 L.Ed.2d at 397.
Nevertheless, a preliminary hearing serves primarily to determine the question of probable cause. In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), the petitioner was charged in an Oklahoma state court with robbery, and the principal evidence admitted against him at trial consisted of the reading of a transcript of the testimony of a witness who testified at the defendant's preliminary hearing. The Supreme Court of the United States, in Barber, held that the defendant's constitutional right to be confronted with the witnesses against him had been violated, because the state had failed to make a good faith effort to secure the presence of that witness at the defendant's trial. In so holding, the Supreme Court noted as follows: "A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial." 390 U.S. at 725, 88 S.Ct. at 1322, 20 L.Ed.2d at 260.
The above language of Barber is consistent with our recognition in State ex rel. Rowe v. Ferguson, supra, that the function of a preliminary examination has been traditionally to enable the accused to challenge probable cause. 268 S.E.2d at 50. Furthermore, it is evident from the language of W.Va.R.Crim.P. 5.1 and W.Va.Code, 62-1-8 [1965], that a preliminary examination serves to determine whether there is probable cause to believe that an offense has been committed and that the defendant committed it.
The following cases indicate that discovery is not the primary object of a preliminary examination: United States v. Mulligan, 520 F.2d 1327, 1330 (6th Cir.1975), cert. denied, 424 U.S. 919 (1976), although a preliminary hearing may be a practical tool for discovery by the accused, "the only legal justification for its existence is to protect innocent persons from languishing in jail on totally baseless accusations"; Robbins v. United States, 476 F.2d 26, 32 (10th Cir.1973), "a preliminary hearing is not designed for the purpose of affording discovery for an accused"; United States v. Foster, 440 F.2d 390, 392 (7th Cir.1971), the purpose of a preliminary...
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