State ex rel. Whitehead v. Vescovi-Dial

• Decision Date: 23 October 1997
• Docket Number: VESCOVI-DIA,S,No. 17715,17715
• Citation: 124 N.M. 375,950 P.2d 818,1997 NMCA 126
• Parties: STATE of New Mexico ex rel. Alan E. WHITEHEAD, Eleventh Judicial District Attorney, Petitioner-Appellee, v. The Honorable Carlaan Juan County Magistrate, Division I, Respondent, and Cayetano Zamarron, Real Party in Interest, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 818

950 P.2d 818

124 N.M. 375

STATE of New Mexico ex rel. Alan E. WHITEHEAD, Eleventh

Judicial District Attorney, Petitioner-Appellee, v. The Honorable Carla VESCOVI-DIAL, San Juan County

Magistrate, Division I, Respondent,

and

Cayetano Zamarron, Real Party in Interest, Defendant-Appellant.

No. 17715.

Court of Appeals of New Mexico.

Oct. 23, 1997.

Certiorari Denied Dec. 15, 1997.

Tom Udall, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Petitioner-Appellee.

Phyllis H. Subin, Chief Public Defender, Christopher Bulman, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

BOSSON, Judge.

¶1 Article II, Section 14 of the New Mexico Constitution provides an accused with a right to a preliminary examination before a magistrate to determine whether there is probable cause to be bound over for trial. This appeal questions whether the state has a similar right to insist upon a preliminary examination if it has been waived by the accused. In an issue of first impression in New Mexico, we hold that the Constitution grants the state no such right, and we reverse.

BACKGROUND

¶2 In February 1996, Defendant, Cayetano Zamarron, was arrested on charges of first-degree murder, conspiracy to commit murder, conspiracy to commit fraud, and attempted fraud. A preliminary examination was scheduled, but after conferring with his attorney, Defendant waived preliminary hearing. On April 17, Magistrate Judge Vescovi-Dial bound Defendant over to district court without conducting a preliminary hearing and over the prosecutor's objections. Two days later, the State filed a petition for a writ of mandamus to compel the magistrate to conduct a preliminary examination notwithstanding Defendant's waiver. The district court agreed with the State and issued a peremptory writ of mandamus ordering the magistrate to conduct a preliminary examination in Defendant's criminal case. Defendant appeals from the writ. We note that this Court has jurisdiction over direct appeals from the issuance of a peremptory writ of mandamus. See NMSA 1978, § 44-2-14 (1953); State ex rel. Pilot Dev. Northwest, Inc. v. State Health Planning & Dev. Bureau, 102 N.M. 791, 797-98, 701 P.2d 390, 396-97 (Ct.App.1985) (holding Court of Appeals has jurisdiction to hear mandamus appeal).

DISCUSSION

¶3 The New Mexico Constitution, in Article II, Section 14, provides for a preliminary examination as follows:

No person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or attorney general or their deputies .... No person shall be so held on information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.

¶4 The state's problem is immediately apparent. The Constitution grants the accused an express, enforceable right to a preliminary examination as a condition to being "so held on information." But the Constitution does not grant a comparable right to the state and, in fact, is silent on the subject. Yet in this case, the district court granted a writ of mandamus which is designed to compel a clear-cut mandatory duty of a public official, despite the complete absence of any such duty in the Constitution. See NMSA 1978, § 44-2-4 (1953); Schreiber v. Baca, 58 N.M. 766, 770, 276 P.2d 902, 905 (1954) (writ of mandamus limited to enforcement of a clear, mandatory, and ministerial duty by a public official). See generally Charles T. Dumars & Michael B. Browde, Mandamus in New Mexico, 4 N.M. L.Rev. 155 (1974). Merely as a matter of the proper use of the writ of mandamus, this case appears problematic at best. However, whatever procedural reservations we may harbor, we will proceed to answer the important question put to us: whether the state has an independent right to compel a preliminary examination over the defendant's waiver.

¶5 The primary purpose of the preliminary examination is to provide an independent evaluation of whether the state has met its burden of demonstrating probable cause. State v. Masters, 99 N.M. 58, 59, 653 P.2d 889, 890 (Ct.App.1982) (the only issue at a preliminary hearing is whether probable cause exists to believe defendant committed the offense); see also Rule 5-302, NMRA 1997 (preliminary examination in district courts); Rule 6-202, NMRA 1997 (preliminary examination in magistrate courts). The examining magistrate must determine if there is probable cause to believe that the defendant committed the offense and should be bound over for trial. State v. Vallejos, 93 N.M. 387, 388-89, 600 P.2d 839, 840-41 (Ct.App.1979).

¶6 This view of the primary purpose of the preliminary examination is echoed elsewhere. Professor LaFave notes that a preliminary examination operates as a screening device to prevent hasty and unwise prosecutions and to save an innocent accused from the humiliation and anxiety of a public prosecution. 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 14.1(a) (1984) (citing to Thies v. State, 178 Wis. 98, 189 N.W. 539, 541 (1922)). Although the primary purpose is determining probable cause, Professor LaFave also concedes that there are collateral purposes for a preliminary examination as well. For example, the preliminary hearing legitimately may provide an opportunity for discovery by either side; it may help a party in preparation for future impeachment; it also may be used to perpetuate testimony for later use at trial. LaFave, supra, § 14.1(b), (c), and (d). See generally Kenneth Graham & Leon Letwin, The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations, 18 UCLA L.Rev. 916 (1971) (collateral functions of the preliminary hearing).

¶7 In the case before us, the State must base its right to a preliminary hearing on just such a collateral purpose because Defendant has conceded probable cause by waiving the preliminary examination. The State claims a need to preserve testimony of certain key witnesses who may not be available to testify in person at trial. The State correctly observes that our courts have acknowledged that preservation of testimony is a legitimate use of a preliminary examination. See State v. Gonzales, 113 N.M. 221, 226, 824 P.2d 1023, 1028 (1992); State v. Massengill, 99 N.M. 283, 284, 657 P.2d 139, 140 (Ct.App.1983) ("One purpose of the preliminary hearing in New Mexico is to preserve testimony."); cf. State v. Burk, 82 N.M. 466, 468, 483 P.2d 940, 942 (Ct.App.1971) ("Discovery, however, is not the object of a preliminary hearing."). In Gonzales and Massengill, however, the defendants did not waive preliminary examination; the question before the court was how the state could use the transcript of the hearing that had already been completed. Those cases do not support the proposition that the state can compel such a hearing over the defendant's waiver.

¶8 The express reference in the Constitution to the accused "having waived" preliminary examination creates a significant problem for the State because there is no mention of a companion right in the state to a similar waiver, or even to a right of concurrence in the defendant's waiver. Unlike New Mexico, most of the State's out-of-state authorities have either constitutional or statutory provisions empowering the prosecution to proceed with an examination after waiver by the accused. See, e.g., People ex rel. Daley v. Moran, 94 Ill.2d 41, 67 Ill.Dec. 790, 793, 445 N.E.2d 270, 273 (1983) (citing to state statute entitling prosecutor to demand preliminary examination in the event of waiver by defendant); State v. Marchetti, 247 La. 649, 173 So.2d 531, 536 (1965) (citing statute stating " '[e]ither the state or the defendant shall have the right to demand a preliminary examination' " (quoting LSA-R.S. 15:154)); People v. Wilcox, 303 Mich. 287, 6 N.W.2d 518, 521 (1942) (stating that the criminal code provided that both the state and the accused shall be entitled to prompt examination); People v. Albero, 119 Misc. 339, 196 N.Y.S. 484, 485-86 (1922) (citing criminal code as allowing the taking of testimony over the defendant's waiver of a preliminary examination); Porch v. State, 51 Tex.Crim. 7, 99 S.W. 1122, 1123-24 (1907) (citing a provision of the criminal code expressly authorizing an examining magistrate to proceed with a preliminary examination); State v. Hoben, 36 Utah 186, 102 P. 1000, 1006 (1909) (citing a constitutional requirement that the state consent to waiver of preliminary examination).

¶9 The best the State can do is cite to what it agrees is dictum in State v. Melendrez, 49 N.M. 181, 191, 159 P.2d 768, 775 (1945) (alteration in original), quoting in turn from a 1909 Kansas case, State v. Pigg, 80 Kan. 481, 103 P. 121, 122 (1909) to the effect that " 'The right of the state to introduce evidence at a preliminary examination cannot be defeated by the accused waiving an examination.' " However, the issue before our Supreme Court in Melendrez was not whether the state could compel such a purported right over an accused's waiver, and the Supreme Court did not discuss the matter. We find the Kansas discussion equally unenlightening with respect to the issue before us. We note that the defendant's right to waiver was not expressly provided for by law, either in statute or constitution, see Pigg, 103 P. at 123, and our research further reveals that today, a Kansas defendant has a statutory right to a preliminary examination while the "State has no such right." State v. Trudell, 243 Kan. 29, 755 P.2d 511, 518 (1988).

¶10 The State does refer this Court to comparable language in the constitution of the State of Oklahoma which provides that "[n]o person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination." Okla. Const. art. II, § 17. Oklahoma case law holds...