Guthrie v. Boles

• Decision Date: 04 January 1967
• Docket Number: Civ. A. No. 696-E.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Haymond H. GUTHRIE, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

261 F. Supp. 852

Haymond H. GUTHRIE, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

Civ. A. No. 696-E.

United States District Court N. D. West Virginia.

January 4, 1967.

No appearance for petitioner.

C. Donald Robertson, Atty. Gen. of West Virginia, Larry L. Skeen, Asst. Atty. Gen., Charleston, W. Va., for respondent.

MAXWELL, Chief Judge.

In deciding this petition for a writ of habeas corpus the Court is required to determine the effect of Petitioner's claim that in the first of his two West Virginia convictions he was denied a preliminary hearing and in the second he appeared before the Justice of the Peace for a preliminary hearing and waived same without assistance of counsel.

The sheer volume of claims identical, or at least strikingly similar, to those presented here, suggests that the Court make a comprehensive examination of the role of the preliminary hearing in the criminal procedure of West Virginia.

It is hoped that this effort will appropriately focus on these issues and perhaps resolve, if resolution is necessary, the misunderstanding and confusion that apparently surrounds, at least in some quarters, West Virginia's preliminary hearing procedure in criminal cases.

It is this Court's opinion that in West Virginia the absence of a preliminary hearing, the absence of counsel at a preliminary hearing or the waiver of a preliminary hearing without the advice of counsel do not unequivocally and categorically constitute grounds for federal habeas corpus relief, where the petitioner has been properly indicted and fairly convicted, either by plea of guilty or jury trial. There are extenuating circumstances, some of which are considered herein, that could and would nevertheless alter this general rule in West Virginia.

The general rule is grounded upon a recognition of the purpose of the federal writ of habeas corpus and the nature of the preliminary hearing in West Virginia.

Habeas corpus is a device to test the legality of the petitioner's detention. If the person detained has been deprived of his liberty in a lawful manner, e. g., indictment, trial and conviction; or indictment, plea of guilty and conviction, he has no grounds for habeas corpus relief. Alleged irregularities which precede a fair conviction generally are of no consequence in deciding the validity of the detention. It is only when the irregularities have permeated the conviction and deprived it of its fairness that the irregularities may be the basis of habeas corpus relief.

In West Virginia the responsibility for conducting preliminary hearings or examinations is, by statute, vested with the Justice of the Peace¹ or a mayor or judge of a police court acting in the capacity of Justice of the Peace.² The purpose of the preliminary examination is to determine probable cause and to set bail if appropriate.³ It is specifically provided that "the defendant shall not be called upon to plead (at the preliminary examination)."⁴ Although this specific prohibition against the defendant entering a plea was first enacted in 1965, it appears, as this Court noted in Bowen v. Boles, 258 F.Supp. 111 (N.D. W.Va.1966), that this was an acknowledgment and codification of pre-existing law and practice in the State.⁵

There is no federal constitutional right to a preliminary hearing.⁶ West Virginia, as earlier noted, has statutorily provided a limited purpose preliminary hearing, generally designed to ascertain whether there are reasonable grounds to believe that a crime has been committed; whether there is probable cause to believe the accused committed it; and to determine the propriety and amount of bail in case the accused is held to answer the action of a grand jury. Of equal, if not greater, importance is the preliminary hearing's function of weeding out groundless and unsupported charges, thereby relieving the accused of the degradation and expense of being held to answer a baseless charge. The significance of this latter function is apparent in view of the ready availability of warrants, properly so, and the infrequency with which grand juries meet, in most counties three or four times a year.

A comparison of the functions of the preliminary hearing and grand jury proceedings makes it clear that the right to and benefit from a preliminary hearing in West Virginia are temporary creatures. The West Virginia Constitution provides that no person can be proceeded against on a felony charge except by indictment of a grand jury.⁷ Once an indictment has been returned, the function of the preliminary hearing, to determine probable cause, has been rendered superfluous. Once the indictment has been returned, the question of probable cause has been resolved against the accused. The need for a preliminary hearing has ceased. The accused is then properly and lawfully detained under the authority of the indictment, and accused's right to claim a preliminary hearing, or to complain of having been denied one, has passed with the need for the hearing. For a general discussion of preliminary hearing see 21 Am.Jur. 2d, Criminal Law, Sections 442-451. This is true where the accused is in custody when the indictment is returned or where he is taken into custody under the authority of the indictment.

The West Virginia courts have properly recognized the ephemeral nature of the preliminary hearing and have refused claims for relief based upon denial of a preliminary hearing, where the defendant was indicted and convicted.⁸ Additionally, West Virginia Code, § 62-2-1 (Michie 1966) provides that "the trial of a person on a charge of felony shall always be by indictment; and indictment may be found in the first instance, whether the accused has been examined or committed by a justice or not." (Emphasis added). The West Virginia rule finds ample support in the cases decided by this and other federal courts.⁹ An important case among the federal decisions is Barber v. United States, 142 F.2d 805 (4 Cir. 1944) where the Court said: "The only purpose of a preliminary hearing is to determine whether there is sufficient evidence against an accused to warrant his being held for action by a grand jury; and, after a bill of indictment has been found, there is no occasion for such hearing."

In resolving the question of absence of counsel at a preliminary hearing the Court is guided by White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 923 (1963), and Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). These cases consider the factors which may make a preliminary hearing so "critical" a stage that the defendant is entitled to appointment of counsel.

In White, the accused entered a plea of guilty at his preliminary hearing, a time when he was not represented by counsel. Counsel was later appointed and the accused pleaded not guilty at his formal arraignment, but the plea of guilty was introduced into evidence at his trial. The Court set the conviction aside and ruled "Whatever may be the normal function of the `preliminary hearing' under Maryland law, it was in this case as `critical' a stage as arraignment under Alabama law Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). For petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel." The following quote from White fully explains why the preliminary hearing was "critical." "Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently."

In Pointer, the Court discussed, but did not decide the question of whether the preliminary hearing was in Texas so "critical" as to require appointment of counsel. There the Court reaffirmed the significance of whether or not the accused could enter a plea at the preliminary hearing.¹⁰

This Court understands the rule of White and Pointer to be that a preliminary hearing is "critical" when defenses, not asserted at the hearing, are lost or when a guilty plea is accepted at the hearing and used at a subsequent trial.¹¹ By this rule West Virginia's preliminary hearing is not a "critical" stage, and an otherwise proper and fair conviction will not be invalidated simply because the defendant was denied assistance of counsel at his preliminary hearing. In support of this conclusion, attention is directed to the language of West Virginia Code, § 57-2-3 (Michie 1966), which provides that "(i)n a criminal prosecution * * * evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination." Under this section a preliminary examination before a justice is a "legal examination" and statements made by an accused at such an examination would be inadmissible at a subsequent criminal prosecution. State v. May, 62 W.Va. 129, 57 S.E. 366 (1907).¹² The criminal jurisdiction of the Justice of the Peace is specifically set out, and powers not granted do not exist.¹³ Nowhere has this Court found authority in a Justice of the Peace to accept tendered defenses in felony cases. Such power is inconsistent with the function of the preliminary hearing in West Virginia. Nor has the Court found law that would cause any defense to be lost to the accused because he had not asserted it at the preliminary hearing. It is equally as clear that a Justice of the Peace does not have the authority to accept a plea in a felony case.¹⁴

For these reasons, the denial of assistance of counsel at a West Virginia preliminary hearing is not, per se, a federally cognizable ground for habeas corpus relief.¹⁵ This rule does not overlook the possibility that a Justice of the Peace could, by exceeding his authority, create a potential for prejudice to the accused. If this potential were realized, the state court or this Court can under those particular circumstances find the proceeding to have been "critical."¹⁶ For example, if the Court were presented with...