Esparaza v. State, 89-KA-0075

• Decision Date: 19 February 1992
• Docket Number: No. 89-KA-0075,89-KA-0075
• Citation: 595 So.2d 418
• Parties: Ruthie ESPARAZA v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 418

595 So.2d 418

Ruthie ESPARAZA v. STATE of Mississippi.

No. 89-KA-0075.

Supreme Court of Mississippi.

Feb. 19, 1992.

William T. May, Logan & May, Newton, for appellant.

Mike C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and BANKS, JJ.

PRATHER, Justice, for the Court:

I.

INTRODUCTION

This drug possession case arose from the December 19, 1988, judgment of the Circuit Court of Newton County. The appellant, Ruthie Esparaza, timely filed notice of appeal of her convictions of possession of more than one ounce of marijuana with intent to deliver and possession of cocaine, with twelve and three-year sentences, respectively, to run consecutively. The appellant asks that this Court reverse her conviction due primarily to the state's failure to notify her of her right to a preliminary hearing. While this Court agrees with the appellant's contention that the state's failure constituted a serious neglect of a mandated duty, the error does not warrant a remedy of reversal. Finding that the appellant's other issues bear no merit, this Court AFFIRMS.

II.

ISSUES

In this appeal, the appellant, Ruthie Esparaza, raises issues which may be summarized as:

1. Did the trial court err when it denied Esparaza's motion to quash the indictment, given her four-month incarceration before indictment without opportunity for a preliminary hearing?

2. Did the trial court err when it wholly denied Esparaza's motion to compel disclosure of a confidential informant; and did the trial court err when it denied Esparaza's motion to compel disclosure of the identity of a third person "whom the state knew possessed information crucial and important to [Esparaza]"?

3. Did the trial court err when it denied Esparaza's motion to quash the jury venire, given the fact that a key state witness had contact with a member of the jury panel?

4. Did the trial court err when it denied Esparaza's motion for mistrial, given "comments of the trial judge to the jury that the jury's decision would be reviewed" by an appellate court?

5. Did the trial court err when it denied Esparaza's motion for directed verdict at the close of the state's case, her written peremptory motion, and her motion for judgment notwithstanding the verdict or for new trial?

III.

FACTS

During the week preceding May 13, 1988, according to Ruthie Esparaza, she sold two horses for "approximately six or seven hundred dollars." Esparaza stated that the buyer paid her in small bills, which she saved for the down payment on a car.

On May 13, 1988, Deputy Sheriff Knight obtained a search warrant to go to the home of Eileen McElhenney, Esparaza's mother, because of information he received from a confidential informant. Esparaza The search of McElhenney's home revealed a large, brown bag containing two large bags of marijuana in a bedroom closet. The bag also contained $1,560.00 in a shoe. The officers found a set of small scales in the same bedroom. In the dining area, the officers found a black purse containing two smaller bags of marijuana and some cocaine. Knight arrested everyone in the house: Esparaza, her mother, her daughter, and three males.

lived with her mother at that time, although she claimed that she did not. Esparaza's daughter also lived with McElhenney. Knight went to McElhenney's house, accompanied by several other officers.

Knight testified that he read the three women their rights at the sheriff's office. McElhenney and Esparaza's daughter made no statements, but Esparaza said, "I will claim the dope in my purse, but I know nothing about the marijuana in the closet." Esparaza also admitted owning the shoe and the $1,560.00 in it.

The sheriff's office released the three arrested males due to insufficient evidence. The sheriff released McElhenney two days after arrest.

The state admitted that Esparaza did not receive a preliminary hearing. Deputy Sheriffs Knight and Knowlin stated that they had neither offered her a preliminary hearing, nor informed her of her right to have one, nor heard her waive one. Esparaza testified that she did not know to ask for a hearing. Knowlin admitted that standard procedure called for a hearing, and did not know why the procedure had not been followed in this case. The court found as fact that Esparaza had not been accorded a preliminary hearing and that she had not been offered one.

A grand jury indicted Esparaza on September 14, 1988; the court appointed an attorney to represent her. ¹ Tolbert, Esparaza's daughter, also stayed in jail four months, until the grand jury no-billed her. Esparaza moved to quash her indictment, alleging that she had "on no occasion, actually or impliedly, knowing, intelligently, or voluntarily waived her rights to a preliminary hearing." Esparaza noted that she had been incarcerated for over four months with no opportunity for discovery and subject to a $50,000 bail. Esparaza also claimed that she had been kept in a cell-block with male inmates and in open view of male trustees and officials. The court overruled the motion to quash on December 14, 1988.

On December 19, 1988, a jury returned its judgment of guilty and the court sentenced the defendant to twelve years on the charge of possession of marijuana with intent to deliver and three years on the charge of possession of cocaine, to run consecutively. The defendant moved for a judgment notwithstanding the verdict or for a new trial on grounds that included the court's failure to sustain Esparaza's motions before and during trial. The trial court overruled the motion after which Esparaza appealed to this Court.

IV.

LAW

1. Did the trial court err when it denied Esparaza's motion to quash the indictment, given her four-month incarceration before indictment without opportunity for a preliminary hearing?

Mississippi's criminal court rule entitled "Initial Appearance" states:

Every arrested person shall be taken before a judicial officer without unnecessary delay....

....

The judicial officer shall inform the defendant of [her] right to a preliminary hearing, and a date for such hearing shall be set within a reasonable time. The preliminary hearing shall be heard on the set date, unless it is waived in writing or in open court and upon the Miss.Unif.Crim.R. of Cir.Ct.Prac. 1.04 (1988) (emphasis supplied). The "Preliminary Hearing" rule states:

                advice of counsel.   If preliminary hearing is waived by the defendant, the judicial officer shall bind the defendant over to the next grand jury
                

The preliminary hearing shall be heard by a judicial officer on the date set for such hearing at the defendant's initial appearance.... 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 judicial officer shall bind the defendant over to the next grand jury.

Miss.Unif.Crim.R. of Cir.Ct.Prac. 1.07 (1988). The rule mandates that a preliminary hearing be waived only in writing or open court and upon the advice of counsel. Lambert v. State, 524 So.2d 576, 581 (Miss.1988) (Dan Lee, P.J., dissenting in part and concurring in part, and joined by four justices).

The need for a preliminary hearing cannot be dismissed simply because some level of probable cause and bond have already been established. Avery v. State, 555 So.2d 1039, 1042 (Miss.1990). Like a grand jury considering indictment, a magistrate at an initial appearance has the authority to determine probable cause, ex parte; that determination, however, may be made under less stringent standards than those employed by a judge at a preliminary hearing in which the accused benefits from the representation of counsel. Thus, because an initial appearance employs a lower probable-cause standard than a preliminary hearing, an initial appearance cannot satisfy the accused's right to an adversarial determination of probable cause. Avery, 555 So.2d at 1042. But cf. Robinson v. State, 585 So.2d 735, 737-38 (Miss.1991) (McRae, J., specially concurring).

If a defendant's motion for preliminary hearing is denied, the standard of review calls for a harmless error analysis; the defendant must prove that some prejudice to the defendant's case resulted from the denial. See Avery, 555 So.2d at 1043; see also Hansen v. State, 592 So.2d 114, 115 (Miss.1991) (en banc); Willie v. State, 585 So.2d 660, 670-71 (Miss.1991) (en banc). On its own, an "illegal ... detention does not void a subsequent conviction." Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975).

Would any other sort of showing of prejudice apply to the facts of this case? Turning to the speedy trial context, strong authority supports the proposition that personal prejudice, such as effect on finances, social disapproval, anxiety, and family disruption, may evince prejudice to a defendant. See Moore v. Arizona, 414 U.S. 25, 26-27, 94 S.Ct. 188, 189-90, 38 L.Ed.2d 183 (1973); Barker v. Wingo, 407 U.S. 514, 532-33, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972); United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971); see also Jaco v. State, 574 So.2d 625, 632-33 (Miss.1990); Trotter v. State, 554 So.2d 313, 318 (Miss.1989). Even in speedy trial analysis, however, anxiety as a result of incarceration does not typically, by itself, rise to the level of prejudice that warrants reversal. Williamson v. State, 512 So.2d 868, 877 (Miss.1987). Thus, the law inevitably leads to the conclusion that an illegal detention resulting from the denial of the right to a preliminary hearing cannot justify reversal unless the defendant can prove prejudice to the merits of the defense case.

Application

The varying and sometimes lengthy intervals between our counties' terms of court demand that a detainee be accorded the right to a preliminary hearing. Our rules impose on the state an affirmative duty to notify a detainee of that right. This case...