State v. Carter, 85-159

• Citation: 714 P.2d 1217
• Decision Date: 28 February 1986
• Docket Number: No. 85-159,85-159
• Parties: The STATE of Wyoming, Plaintiff, v. Robert CARTER, Defendant.
• Court: United States State Supreme Court of Wyoming

Page 1217

714 P.2d 1217

The STATE of Wyoming, Plaintiff, v. Robert CARTER, Defendant.

No. 85-159.

Supreme Court of Wyoming.

Feb. 28, 1986.

A.G. McClintock, Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen. and Suzanne H. Lewis, Sp. Asst. Atty. Gen., for plaintiff.

George L. Zimmers, Laramie, for defendant.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

MACY, Justice.

This matter comes before us on a bill of exceptions filed by the State. The county court erred when it dismissed Count II of the complaint on the ground that it merged with another count, and we therefore sustain the exceptions raised.

On February 28, 1985, a complaint charging Robert Carter (defendant) with delivery of a controlled substance (marijuana) and possession with intent to deliver a controlled substance (hash oil) was filed in the county court of Albany County, Wyoming. Evidence presented at the preliminary hearing showed that on February 26, 1985, defendant attempted to sell a bag of marijuana and a quantity of hash oil to another individual. The marijuana sale was completed, but at the time of his arrest, only a few moments later, defendant still had in his possession six vials of hash oil.

At the close of the evidence at the preliminary hearing, defendant moved to dismiss the second count of the complaint, possession with intent to deliver, on the ground that it merged into the first count. The parties submitted briefs on the question. After a hearing on the motion, the county court found that Count II did indeed merge into Count I and, therefore, dismissed Count II. Defendant was ordered to appear before the district court for arraignment as to Count I.

Pursuant to §§ 7-12-102 and 7-12-103, W.S.1977, 1985 Cum.Supp., and § 7-12-104, W.S.1977, the State then notified the county court that it intended to file an application for permission to file a bill of exceptions. The county court properly certified the application, and the application was filed in this Court. Concluding that the questions presented should be heard and decided, we granted the State's application.

In its bill of exceptions, the State raises the following issue:

" * * * [W]hether the County Court was in error when it ruled that Count II of the Criminal Complaint was merged in Count I, and dismissed Count II."

In its brief in support of the bill of exceptions, however, the State restates the issue as follows:

"Whether the charge of 'possession of a controlled substance with intent to deliver' is merged into a charge of 'delivery of a controlled substance,' where the substance delivered and the substance attempted to be delivered (and therefore possessed with intent to deliver) were different controlled substances."

Having concluded that there are two separate and distinct issues before us, we will address them both accordingly.

As a preliminary matter, we must decide whether it was within the county court's authority to dismiss Count II of the complaint on the ground that it merged with Count I. Rule 7(b), W.R.Cr.P., provides in relevant part:

"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 commissioner shall forthwith hold him to answer in district court. * * * " (Emphasis added.)

In reliance upon that rule, this Court and others have said that the sole purpose of a preliminary hearing is to determine whether there is probable cause for detaining the accused pending further proceedings. Haight v. State, Wyo., 654 P.2d 1232 (1982); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). We have also said that, under Rule 7(b), W.R.Cr.P., probable cause exists if the proof is sufficient to cause a person of ordinary caution or prudence to conscientiously entertain a reasonable belief that a public offense has been committed in which the accused participated. Wilson v. State, Wyo., 655 P.2d 1246 (1982).

As indicated above, in the present case the court had before it evidence that defendant sold a bag of marijuana and that he unsuccessfully attempted to sell a quantity of hash oil. The evidence also showed that, at the time of his arrest, defendant was in possession of six vials of hash oil. Based on this evidence, it was the county court's function to determine whether or not there existed probable cause to believe the crimes charged had been committed and that the accused had committed them. The record reflects that the evidence was entirely sufficient to enable the court to entertain a reasonable belief that the accused committed the offenses charged and to bind him over on both counts. Thereafter, pursuant to Rule 16(b)(2), W.R.Cr.P., ¹ defendant could have raised his motion to dismiss before the district court.

Other courts have held, and we agree, that at the preliminary hearing the judicial officer should not attempt or be called upon to decide difficult legal questions. 21 Am.Jur.2d, Criminal Law § 428 (1981). It simply is not contemplated that the committing magistrate should ask for and receive briefs on disputed legal points. State ex rel. Berger v. Jennings, 110 Ariz. 441, 520 P.2d 313 (1974).

The development of these principles is due in part to the summary nature of the preliminary hearing. It is held promptly after arrest. Neither side has much time to prepare. The prosecution presents only so much of its case as is necessary to establish probable cause, reserving the remainder for trial. The accused may very well offer no evidence unless he can demonstrate the absence of probable cause. Just as the preliminary hearing is an inappropriate forum for deciding the important issues involved in a motion to suppress, 2 LaFave & Israel, Criminal Procedure § 14.4 (1984), so too is it an inappropriate forum for deciding other complicated legal questions. The preliminary hearing is designed to be a quick, efficient means of determining whether the accused should be detained and of ensuring the effective administration of justice. For these reasons, we hold that it was not within the authority of the county court to decide defendant's motion to dismiss Count II.

Having found that the county court erred in addressing defendant's motion to dismiss, we might ordinarily decline to address the question of whether the charges filed against defendant did in fact merge. However, where questions are involved which are bound to arise again, it is proper for us to decide them. Belle Fourche Pipeline Company v. Elmore Livestock Company, Wyo., 669 P.2d 505 (1983).

The majority of courts have apparently adopted the position that:

" * * * [I]t is not duplicitous to charge possession with intent to distribute together with distribution in one count since [the statute] sets forth several ways in which the statute may be violated, including both distribution and possession with intent to distribute. * * * " United States v. Orzechowski, 547 F.2d 978, 986-987 (7th Cir.), cert. denied 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977).

Section 35-7-1031(a), W.S.1977, 1985 Cum.Supp., provides in part as follows:

"Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. * * * " (Emphasis added.)

This language clearly sets forth several ways in which the statute may be violated, including manufacture, delivery or possession with intent to manufacture or deliver. Therefore, under the majority rule, it is not duplicitous to charge possession with intent to deliver together with delivery.

It is also generally recognized that the crime of possession of a controlled substance becomes merged with the crime of sale only when the sale is of the possessed controlled substance. State v. Hagan, 3 Kan.App.2d 558, 598 P.2d 550 (1979). That is, where evidence of the sale of a controlled substance is the only evidence to support a possession charge, the offense of possession with intent to distribute and actual distribution of the same substance have merged into a single offense. United States v. Carcaise, 763 F.2d 1328 (11th Cir.1985). However, where there is separate evidence of the two offenses, the offenses cannot be said to have merged.

Cases decided by this Court are in complete accord with the principles enunciated above. In Jackson v. State, Wyo., 522 P.2d 1356, cert. denied 419 U.S. 1055, 95 S.Ct. 637, 42 L.Ed.2d 652 (1974), as in the present case, the defendant was charged with delivery of a controlled substance and possession with intent to deliver a controlled substance. The record reflected that the defendant sold two grams of cocaine and retained possession of eight grams of cocaine. We held that, with respect to the two grams he sold, the defendant could not be charged with both possession with intent to deliver and delivery. Where the accused sells the same substance he is charged with possessing, clearly the two offenses must be said to have merged. This proposition finds additional support in Boyd v. State, Wyo., 528 P.2d 287 (1974), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975). However, where a designated portion of a controlled substance is sold and the rest remains in the defendant's possession, both offenses of possession with intent to deliver and delivery may be charged. Howard v. State, 144 Ga.App. 208, 240 S.E.2d 908 (1977). This conclusion is not controverted by Jackson v. State as defendant here contends. In Jackson, with respect to the eight grams remaining in the defendant's possession, we held only that there was not sufficient evidence as to the nature of the substance for the jury to find him guilty of possession of a controlled substance with intent to deliver. Had there been sufficient evidence that the substance was cocaine, it is clear that both the delivery charge and the possession charge would have been upheld.

For all of the reasons stated above, the State's bill of exceptions to...