State v. Hardman
| Decision Date | 18 March 1992 |
| Docket Number | No. 18783,18783 |
| Citation | 828 P.2d 902,121 Idaho 873 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Norman A. HARDMAN, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Norman A. Hardman, pro se.
Larry J. EchoHawk, Atty. Gen., Kevin P. Cassidy, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Norman Hardman was found guilty by a jury of the misdemeanor offenses of obstructing a police officer, I.C. § 18-705, and of assaulting a police officer, I.C. §§ 18-901, 915. Before the trial, a magistrate, who is a member of the Idaho National Guard, held a hearing to determine whether there was sufficient evidence to bind Hardman over for trial. Hardman challenges the validity of the hearing on the basis that it violates the Idaho State Constitution for a magistrate to be a member of the Idaho National Guard. Following his conviction, Hardman filed a motion for a new trial on the basis that the prosecutor withheld exculpatory evidence. The district court denied the motion for a new trial. Hardman appeals, arguing that he should have had a new probable cause hearing and a new trial. Hardman also disputes a Supreme Court order denying his motion to waive transcript fees.
We turn first to the question whether the district court erred by denying Hardman's motion to waive the fees for the preparation of the transcripts for his appeal. The district court held a hearing and denied the motion on the basis that Hardman was employed and was financially able to pay for the preparation of the transcripts. Hardman then filed a motion with the Clerk of the Supreme Court for waiver of transcription fees on appeal. The Supreme Court denied Hardman's motion. The Court also denied a motion for augmentation of the record and withdrew a previously entered order requiring the preparation of the transcripts. After the Supreme Court entered its order, the case was assigned to the Court of Appeals for disposition.
Though Hardman has presented argument on this issue on appeal, we conclude this issue has already been expressly resolved by the Supreme Court. The initial decision regarding the waiver of transcript fees or record costs lies with the district court pursuant to I.A.R. 24(e) and I.A.R. 27(e); the district court's decision is discretionary and is subject to appellate review. See Madsen v. Dept. of Health and Welfare, 114 Idaho 624, 759 P.2d 915 (Ct.App.1988) (). In the present case, the issue whether transcript fees should be waived was submitted to the Supreme Court through an appellate motion. The Supreme Court denied the motion; this issue is thus foreclosed from further review. See, e.g., State v. Lee, 117 Idaho 203, 786 P.2d 594 (Ct.App.1990).
We turn next to the question whether the district court erred by denying Hardman's motion to remand the case to the magistrate division for a probable cause hearing before a magistrate who was not acting in purported violation of the separation of powers provision of the Idaho Constitution, art. 2, § 1. Hardman's argument is that he was denied due process because of Magistrate Gordon W. Petrie's affiliation with the National Guard.
The district court did not err in denying Hardman's motions to remand to the magistrate division because the relief sought was unnecessary and duplicative of proceedings which had already taken place. Our review of the record reveals the following. Magistrate Petrie conducted a probable cause hearing only as to the charge of assault upon a police officer. Two weeks after that hearing, Magistrate Petrie voluntarily disqualified himself from the case after Hardman filed a motion to disqualify the magistrate. Subsequently, another magistrate, William B. Dillon, conducted another preliminary hearing on the assault charge and independently determined probable cause. As to the charge of obstructing a police officer, Magistrate Petrie disqualified himself from that case. After Hardman filed a motion to dismiss this charge, Magistrate William D. Jordan conducted a preliminary hearing and found probable cause as to that charge. The purported error 1 in the preliminary hearing conducted by Magistrate Petrie, if any, was cured by the additional independent probable cause hearings and determinations by two other magistrates.
Assuming, without deciding, that the magistrate was serving two branches of government in violation of the Idaho Constitution, any error at the preliminary hearing was also cured by the subsequent jury trial, whose fairness is not challenged by Hardman on appeal. Where the fairness of a trial is uncontested, errors at the preliminary hearing are not grounds for vacating a conviction. See State v. Mitchell, 104 Idaho 493, 500, 660 P.2d 1336, 1343 (1983), cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983) (); compare State v. Wuthrich, 112 Idaho 360, 732 P.2d ...
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