State v. Morgan
| Decision Date | 25 February 2000 |
| Docket Number | No. 990377-CA.,990377-CA. |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Anna Marie MORGAN, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Kevin J. Kurumada, Salt Lake City, for Appellant.
Jan Graham and Keith Wilson, Salt Lake City, for Appellee.
Before Judges GREENWOOD, ORME, and WILKINS.1
¶ 1 Defendant Anna Marie Morgan appeals from a conviction of one count of possession of a controlled substance, methamphetamine, with intent to distribute, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(iii) (1998), and one count of possession of a controlled substance, marijuana, a class B misdemeanor, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (1998). We reverse.
¶ 2 The defendant was charged with a single second degree felony count of possession of methamphetamine, a controlled substance, with intent to distribute, and a single misdemeanor count of possession of a different controlled substance, marijuana. At the preliminary hearing on these charges, the state had two witnesses available. One was the arresting officer, Officer Lindquist; the other was Detective Hansen. Both were sworn as the hearing began, but only Lindquist was called to testify by the State. Apparently believing that sufficient evidence had been adduced through the testimony of the arresting officer, the prosecutor did not call or examine his other witness.
¶ 3 The magistrate concluded that insufficient evidence had been presented to bind the defendant over on the charge of possession of methamphetamine with intent to distribute, and instead amended the charge to simple possession, and bound the defendant over on that charge. Upon hearing the magistrate's decision, the prosecutor indicated that he had assumed the arresting officer's testimony would be sufficient, and sought to introduce the additional testimony of Detective Hansen who was still present in the courtroom and already sworn. The magistrate denied this request, apparently on the grounds that having already entered the bindover order, he had no further jurisdiction in the matter, it having devolved upon the district court.
¶ 4 The State sought to reopen the hearing, or in the alternative to have the magistrate dismiss the charges so that they could be refiled for purposes of obtaining a new preliminary hearing. The magistrate denied the motion to reopen the preliminary hearing, but granted the motion to dismiss the charges without prejudice to the State's opportunity to refile.2
¶ 5 The prosecutor filed a new information charging possession of methamphetamine with intent to distribute and possession of marijuana, the same charges as originally filed against the defendant. A new preliminary hearing was held before the same magistrate, and both the arresting officer, Lindquist, and the other witness, Detective Hansen, testified. No additional witnesses were presented by the State. Based upon this testimony, the magistrate bound the defendant over on both charges. Before the district court, defendant moved to quash the bindover order, which motion was denied.
¶ 6 A jury found defendant guilty. Defendant appeals.
¶ 7 On appeal, the defendant raises two issues. First, defendant claims that the trial court erred in denying her motion to dismiss the bindover order. Second, she claims ineffectiveness of trial counsel. Inasmuch as we reverse on the first issue, we need not reach the second.
¶ 8 The trial court's decision to deny defendant's motion to dismiss is subject to a bifurcated standard of review: the court's factual findings are reviewed for clear error, and the legal standard applied by the trial court is reviewed for correctness. "On review, we give no deference to the trial court's determination that defendant's due process rights were not violated; however, we presume that the factual findings underlying that determination are correct." State v. Parra, 972 P.2d 924, 926-27 (Utah Ct.App. 1998).
¶ 9 The issue presented by the defendant is relatively simple: Under circumstances such as those presented here, is the prosecutor at liberty under Utah law to refile the charges against the defendant in order to secure a second preliminary hearing? Our answer is that the prosecutor is not.
¶ 10 Our decision turns on our understanding of State v. Brickey, 714 P.2d 644 (Utah 1986). Brickey arose under similar circumstances. Keith Brickey was charged with forcible sexual assault. At the first preliminary hearing on the charge, the prosecutor called the victim as a witness and presented her testimony relating to the charge. At the close of the evidence, the defense moved to dismiss citing the State's failure to introduce any evidence that Brickey had acted without the victim's consent, an element necessary for establishing a prima facie case. The magistrate agreed and dismissed.
¶ 11 The prosecutor in Brickey subsequently refiled the charge and a second preliminary hearing was conducted before a different magistrate. The victim again testified, as did her father, who had been present during the first hearing but was not called to testify. Brickey objected to the second preliminary hearing in part on the ground that the father's testimony did not constitute "new evidence" since what he testified to was known to the prosecutor at the time of the first hearing, and the father had then been present in the courtroom. The magistrate disagreed, and bound defendant over. The district court also disagreed, denying Brickey's motion to quash the bindover.
¶ 12 The supreme court, however, agreed with Brickey that "due process considerations prohibit a prosecutor from refiling criminal charges earlier dismissed for insufficient evidence unless the prosecutor can show that new or previously unavailable evidence has surfaced or that other good cause justifies refiling." Id. at 647. In a footnote, the supreme court also noted that the Oklahoma Court of Criminal Appeals, whose analysis it followed, had held in Harper v. District Ct., 484 P.2d 891 (Okla.Crim.App.1971), that good cause to continue a preliminary hearing for further investigation might exist when a prosecutor innocently miscalculates the quantum of evidence required to obtain a bindover and further investigation clearly would not be dilatory. See Harper, 484 P.2d at 897
.
¶ 13 In this case, the State urges us to adopt a broad reading of "other good cause" justifying refiling, and relies upon the claim of innocent miscalculation of the quantum of evidence required to bind the defendant over. The State correctly notes that improper forum shopping has been avoided in this instance by both preliminary hearings being held before the same magistrate. As such, it argues, the only issue is whether or not good cause for refiling exists here.
¶ 14 The State makes no claim that the testimony elicited from Detective Hansen at the second preliminary hearing differs in any way from what he would have given if called at the first hearing. The testimony of Officer Lindquist at the second hearing contained no suggestion of new or previously unavailable evidence. The only difference in the State's case at the two preliminary hearings seems to be the failure to call the present and sworn detective at the first, and absence of that failure at the second. No claim of evidence presented at the second hearing as having been the result of further investigation has been made, nor has there been any other suggestion that the evidence given by Detective Hansen at the second preliminary hearing was in any way new or unavailable at the first hearing.
¶ 15 Our reading of Brickey does not support the State's argument. Brickey prohibits a prosecutor from refiling criminal charges, once dismissed for insufficiency of evidence, unless the prosecutor can show that either (1) new or previously unavailable evidence has surfaced, or (2) that other good cause exists to justify refiling. The State does not claim, nor could it, that new or previously unavailable evidence surfaced between the first preliminary hearing and the refiling of the charges against the defendant. Furthermore, given this first and most direct requirement, it seems illogical to suggest that evidence that was both known and available at the first preliminary hearing could constitute "other good cause." Other good cause, as described in Brickey, must at a minimum be something beyond the introduction of a witness who was present in the courtroom, sworn, and ready to testify at the first preliminary hearing, whose testimony is known at the time and does not change in any material way after the initial bindover is dismissed.
¶ 16 Brickey has long been regarded as a meaningful limitation on the refiling of charges. The circumstances of this case, if treated as "good cause" for refiling, would simply eviscerate that limitation. Consequently, until and unless our supreme court directs otherwise, the innocent miscalculation of the quantum of evidence required to obtain a bindover...
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State v. Morgan
...On Certiorari to the Utah Court of Appeals. HOWE, Chief Justice: ¶ 1 We granted certiorari to review the decision in State v. Morgan, 2000 UT App. 48, 997 P.2d 910, in which the court of appeals reversed defendant's convictions for possession of methamphetamine with intent to distribute, a ......
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State v. Redd
...v. Brickey, 714 P.2d 644 (Utah 1986), combined with the magistrate's interpretation of a Utah Court of Appeals case, State v. Morgan, 2000 UT App. 48, 997 P.2d 910, barred refiling of the previously dismissed BACKGROUND ¶ 2 In 1996, defendants were charged with one count of abuse or desecra......
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Article Title: Utah Supreme Court Review 2000
...limit established in State v. Price. Court held it could reach this issue under plain error. State v. Morgan, 2000 UT App 48, 997 P.2d 910, granted, 4 P.3d 1289. Interprets and clarifies State v. Brickey, 714 P.2d 644 (Utah 1986). The prosecution's innocent miscalculation of the quantum of ......