State v. Jefferson
| Citation | 79 Wn.2d 345,485 P.2d 77 |
| Decision Date | 20 May 1971 |
| Docket Number | Nos. 41747,41748,s. 41747 |
| Parties | The STATE of Washington, Petitioner, v. Malkiah JEFFERSON, Respondent. The STATE of Washington, Petitioner, v. Floyd ELQUIST, Respondent. |
| Court | United States State Supreme Court of Washington |
Christopher T. Bayley, Pros. Atty., Marco J. Magnano, Jr., Deputy Pros. Atty., Seattle, for petitioner.
R. Wayne Cyphers, Seattle Public Defender, Seattle, for Malkiah jefferson.
James J. Stanton, Kenneth Kanev, Seattle, for Floyd Elquist.
Respondent Jefferson was charged with conducting gambling by felony complaint. He was arraigned before the Seattle District Justice Court, at which time date was set for a preliminary hearing. Similarly, respondent Elquist was charged by felony complaint with credit card forgery, was arraigned before the Seattle District Justice Court, and received a preliminary hearing date. In both cases, prior to the dates set for preliminary hearing, the state filed identical charges against the respective respondents in superior court.
Both respondents, through separate counsel and in separate actions, filed motions to dismiss the informations against them in superior court, and to remand the actions to justice court for preliminary hearing. Upon hearing before two different superior court judges, respondents' motions were granted. The state then petitioned this court for a writ of certiorari from the orders entered in both cases. The petition was granted, and proceedings in these cases were stayed pending our decision. Argument was consolidated for hearing because of the similar issue presented. Respondent Elquist, however, separately alleges additional grounds for affirmance of the trial court's action in his case.
The common issue presented in both cases is whether filing of a criminal complaint by the state is justice court thereby vests the accused with a right to a preliminary hearing in that court. Resolution of this issue centers around the intended meaning of Criminal Rule for Justice Court (JCrR) 2.03(e) (2), which provides:
If it shall appear that any offense has been committed of which the superior court may have exclusive jurisdiction, the judge shall inform the defendant of his Right to have a preliminary examination and to waive such examination, and of his right to counsel at the preliminary examination.
(Italics ours.) Respondents contend that JCrR 2.03(e)(2) creates a right to a preliminary hearing in all defendants who are charged by criminal complaint in justice court. They argue that a literal reading of the rule supports such an interpretation. Further, respondents contend that the determination of probable cause by means of a justice court preliminary hearing is preferable to such a determination solely by the prosecutor prior to his filing of an information in the superior court.
We cannot agree with either of these contentions. In this state, criminal charges may be commenced against a defendant by one of four different procedures: (1) filing of an information by the prosecutor in superior court (See Wash.Const. art. 1, § 25, and RCW 10.37.026); (2) grand jury indictment (See RCW Ch. 10.28); (3) inquest proceedings (See RCW Ch. 36.24); and (4) filing of a criminal complaint before a magistrate (see RCW Ch. 10.16).
Regardless of which procedure the prosecutor chooses to employ, all four are established, recognized and legally permissible methods for determining the existence of probable cause. In most cases, the prosecuting attorney functions in his official capacity directly and exclusively in determining probable cause; thereby he then files an information directly in superior court. In some instances, the prosecutor may choose to refer this determination to the magistrate fror a preliminary hearing. It should be noted, however, that even where the magistrate finds insufficient evidence during the preliminary hearing to establish probable cause, The prosecutor is not bound by this determination; and he may still choose to file an information in superior court when he is satisfied that probable cause exists.
This court has consistently and uniformly held that a criminal defendant is not constitutionally entitled to a preliminary hearing. Lybarger v. State, 2 Wash. 552, 27 P. 449 (1891); State v. Williams, 13 Wash. 335, 43 P. 15 (1895); State v. McGilvery, 20 Wash. 240, 55 P. 115 (1898); State v. Shears, 119 Wash. 275, 205 P. 417 (1922); In re Pennington v. Smith, 35 Wash.2d 267, 212 P.2d 811 (1949); State v. Westphal, 62 Wash.2d 301, 382 P.2d 269 (1963); State v. Robinson, 61 Wash.2d 107, 377 P.2d 248 (1962); State v. Jackson 66 Wash.2d 24, 400 P.2d 774 (1965); State v. Ollison, 68 Wash.2d 65, 411 P.2d 419 (1966); State v. Kanistanaux, 68 Wash.2d 652, 414 P.2d 784 (1966); State v. Canady, 69 Wash.2d 886, 421 P.2d 247 (1966); State v. Dunn, 70 Wash.2d 572, 424 P.2d 897 (1967); State v. Cook, 70 Wash.2d 715, 424 P.2d 1006 (1967); State v. Todd, 78 Wash.Dec.2d 361, 474 P.2d 542 (1970).
Additionally, criminal defendants have no right to a preliminary hearing under the federal constitution. See Austin v. United States, 408 F.2d 808 (9th Cir. 1969). In fact, the Washington procedure, allowing the prosecutor latitude in selecting the method of determining probable cause, has been upheld by the United States Supreme Court. In Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 957, 8 L.Ed.2d 98 (1962), the court stated:
Ever since Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884), this Court has consistently held that there is no federal constitutional impediment to dispensing entirely with the grand jury in state prosecutions. The State of Washington abandoned its mandatory grand jury practice some 50 years ago. Since that time prosecutions have been instituted on informations filed by the prosecutor, on many occasions without even a prior judicial determination of 'probable cause'--a procedure which has likewise had approval here in such cases as Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914), and Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913).
(Footnote omotted.)
We have previously recognized the right of the prosecutor to file an information in superior court after a defendant's appearance in justice court but prior to the time set for a preliminary hearing in such court, even though the result is to bypass the preliminary hearing and supersede the justice court criminal complaint. See State v. Ollison, Supra. Ollison was decided subsequent to the adoption of JCrR 2.03(e)(2); however, no mention of that rule appeared therein. Respondents contend that the court, through oversight, failed to apply JCrR 2.03(e)(2) in that case.
It is argued that JCrR 2.03(e)(2) was intended to Change existing procedures for determination of probable cause to the extent that, once the prosecutor elects to file a criminal complaint in justice court, he may not thereafter choose to file an information in superior court until after a determination of probable cause has been made at the justice court preliminary hearing.
It is clear, however, that JCrR 2.03(e)(2) was Not intended to change existing procedures. The purpose of this rule was to clearify and restate Existing procedures for the handling of criminal complaints in justice court. The rule was not intended to derogate from the prosecutor's discretion in the determination of probable cause, nor was it intended to create a new right in criminally accused to a preliminary hearing. This conclusion is supported by Comment 2.03(e) to Washington Judicial Council, Proposed Criminal Rules for Courts of Limited Jurisdiction in the State of Washington (October 12 and 13, 1962), and reference therein to RCW 10.16.010.
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...495 P.2d 26 (1972); State v. Watson, 193 N.W.2d 96 (Iowa, 1971); State v. Sexton, 82 N.M. 648, 485 P.2d 982 (1971); State v. Jefferson, 79 Wash.2d 345, 485 P.2d 77 (1971); Washington v. Borsey, 6 Wash.App. 482, 494 P.2d 225 (1972); see also Collins v. Swensen, 443 F.2d 329 (8th Cir.) (May 2......
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...legally permissible methods for determining the existence of probable cause.” Id. at 862, 651 P.2d 207 (citing State v. Jefferson , 79 Wash.2d 345, 347, 485 P.2d 77 (1971) ). The court noted that “ ‘[o]ther proceeding’ under the rule would clearly cover” three of the four methods—grand jury......
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