Haight v. State

• Decision Date: 09 December 1982
• Docket Number: No. 5697,5697
• Citation: 654 P.2d 1232
• Parties: Mark Andrew HAIGHT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1232

654 P.2d 1232

Mark Andrew HAIGHT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5697.

Supreme Court of Wyoming.

Dec. 9, 1982.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Karen A. Byrne, Kaye Willis, and Mark Workman, Student Interns, Laramie, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Sr. Asst. Atty. Gen., and Michael L. Hubbard, Asst. Atty. Gen., Cheyenne, for appellee.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

BROWN, Justice.

Appellant, Mark Haight, was convicted of two counts of aiding and abetting first degree sexual assault in violation of §§ 6-1-114 and 6-4-302(a)(i), W.S.1977, and one count of attempted first degree sexual assault in violation of §§ 6-1-201, W.S.1977, Cum.Supp.1981, and 6-4-302(a)(i), W.S.1977. Appellant contends that his constitutional rights were violated by the absence of the complaining witness at the preliminary hearing. He also contends that the evidence was insufficient to support his convictions.

We affirm.

I

The complaining witness, a retarded woman with a severe hearing impairment, was not present at the preliminary hearing. At the beginning of the hearing, appellant moved for a continuance so that he could subpoena the complaining witness. The motion was denied. After the information was filed in district court, the appellant moved to return the case to county court for another preliminary hearing, based on the absence of the complaining witness at the hearing. The district court denied the motion.

Appellant states the issues concerning this part of the appeal as follows:

"A. The right to confront witnesses is a constitutional right under the fourteenth amendment which has been violated by the absence of the complaining witness at the preliminary hearing.

"B. The right to effective counsel is a sixth amendment constitutional right which has been violated because of the surprise and prejudice at trial created by the absence of the complaining witness at the preliminary hearing."

The right of confrontation which appellant is referring to is a Sixth Amendment right under the United States Constitution, which right has been made applicable to states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Appellant in his objections at the preliminary hearing did not argue a deprivation of his Sixth Amendment right to confront witnesses. He also failed to do so at the district court level when he moved for a new preliminary hearing, according to the district court's decision letter. "In oral argument, counsel expressly stated to the Court that they did not rest their argument on the right of confrontation under the Sixth Amendment." Because appellant did not argue these contentions below, we will not consider them now. An appellant cannot raise an issue for the first time on appeal. ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981).

Appellant then argues that he had a right at the preliminary hearing to subpoena witnesses, under the Wyoming and United States Constitutions and under our Rules of Criminal Procedure. He argues that the violation of this right resulted in a deprivation of his Sixth Amendment right to effective assistance of counsel. Specifically, he alleges that he was surprised and prejudiced at trial because of the absence of the complaining witness at the preliminary hearing. Appellant cites Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). The rule in Coleman is that where a state has an adversarial preliminary hearing procedure similar to Alabama's, a preliminary hearing is a critical stage of the proceedings, and a defendant therefore has a right to be represented by an attorney.

Our rules do provide for an adversarial hearing. Rule 6, W.R.Cr.P., provides that a defendant is entitled to an attorney at every stage of the proceedings. Rule 7(b), W.R.Cr.P., provides in part:

" * * * The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. * * * "

Appellant seems to be arguing that since Rule 7(b), W.R.Cr.P., allows the defendant to cross-examine witnesses and to present evidence in his own behalf, then Coleman v. Alabama gives a defendant a constitutional right to unrestricted confrontation of witnesses and to introduce evidence at the preliminary hearing, because that is the only way that a defendant can receive effective assistance of counsel at trial.

According to Coleman v. Alabama, supra, there are four reasons an attorney should be present to represent a defendant at a preliminary hearing, three of which are pertinent here. The first is that the lawyer's skilled examination and cross-examination of witnesses may expose weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. That reason does not apply here, since appellant does not assert that he is contesting the probable cause finding.

A second reason an attorney should be present at a preliminary hearing is that "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 trial." Coleman v. Alabama, supra, 399 U.S. at 9, 90 S.Ct. at 2003, 26 L.Ed.2d 397. The purpose of the second reason goes to defendant's right to confrontation. We will not allow appellant to reach the confrontation issue through the back door by arguing that he was denied effective assistance of counsel at trial because he could not confront the eyewitness at the preliminary hearing. Appellant did confront the witness at trial and subject her to cross-examination. If he lost a vital impeachment tool because he could not examine the witness at the preliminary hearing, that loss would have been apparent from the time of the hearing and appellant should not have waived his right-to-confrontation argument in the district court.

The third reason it helps to have an attorney present at the preliminary hearing is that trained counsel can more effectively discover the case against his client and better prepare for trial. However, this court has said several times that the only constitutional basis for a preliminary hearing is to insure against improper detention. Weddle v. State, Wyo., 621 P.2d 231 (1980); and Thomas v. Justice Court of Washakie County, Wyo., 538 P.2d 42 (1975).

" * * * The purpose of a preliminary hearing is to establish the existence of probable cause to hold the accused for prosecution. Although some discovery results as a byproduct of the hearing, it is not a purpose of the hearing. * * * " Weddle v. State, supra, at 239.

Another court described the purpose this way:

" * * * Although the 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." United States v. Mulligan, 520 F.2d 1327, 1330 (6th Cir.1975), cert. denied 424 U.S. 919, 96 S.Ct. 1123, 47 L.Ed.2d 325 (1976).

We read Coleman to say that when an adversarial hearing is provided, it is important that counsel be there to take advantage of any benefit which might accrue to the defendant's case by the cross-examination of witnesses. We will not read Coleman to say that the State has to present a complaining witness and has to provide a discovery opportunity for defendant, and that unless the State does so, defendant's counsel cannot provide effective assistance. If we were to accept appellant's argument, we would turn the preliminary hearing into a required opportunity for the defense to prepare for trial:

"Conceding that the techniques mentioned in Coleman are important elements in the preparation of a case, and bearing in mind that our rule permits cross examination of state witnesses and the presentation of evidence in behalf of the defendant, so that it can properly be said that the preliminary examination is under Wyoming law a critical stage of the proceedings, we cannot conclude that the defense has a constitutional right to turn the preliminary examination into a full trial * * *." Thomas v. Justice Court of Washakie County, supra, at 48.

Appellant also argues that he had a right under the Rules of Criminal Procedure to subpoena witnesses. He claims that the county court violated those rules. Rule 7(b), W.R.Cr.P., provides in part: "The finding of probable cause may be based upon hearsay evidence in whole or in part." The county court obviously did not violate Rule 7(b), W.R.Cr.P. by basing its probable cause finding entirely on hearsay. Although appellant never specifically cites Rule 20, W.R.Cr.P., that rule does allow a defendant to subpoena witnesses. However, appellant waited until the beginning of the hearing to move for a continuance to subpoena the complaining witness. The matter of continuance is within the discretion of the court. Sims v. State, Wyo., 530 P.2d 1176, 1181 (1975).

"Where a party seeks a continuance due to the absence of a witness, there must be a showing that the witness' testimony would be material were he allowed to testify, and that the moving party has used due diligence to procure the attendance of the witness * * *."

Here, the moving party failed to show due diligence, relying instead on an argument that the State had to produce the witness unless it could show that she was unavailable, thereby trying to force the State to produce a witness it did not have to produce. The appellant was in effect trying to make the State produce more evidence than it needed to.

" * * * What the defendant would have us believe to be an attempt to introduce witnesses in his own behalf was, in fact, an attempt to have the Government produce more witnesses than they felt was necessary to establish probable cause. * * * " United States v. Hinkle, 307 F.Supp. 117, 125 (D.D.C.1969).

The trial...