State v. Morrissey

• Decision Date: 20 June 1980
• Docket Number: Cr. N
• Citation: 295 N.W.2d 307
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Timothy MORRISSEY, Defendant and Appellant. o. 712.
• Court: North Dakota Supreme Court

Page 307

295 N.W.2d 307

STATE of North Dakota, Plaintiff and Appellee, v. Timothy MORRISSEY, Defendant and Appellant.

Cr. No. 712.

Supreme Court of North Dakota.

June 20, 1980.

William G. Goetz, State's Atty., Hettinger, for plaintiff and appellee.

Greenwood, Greenwood & Greenwood, P. C., Dickinson, for defendant and appellant; argued by Mark L. Greenwood, Dickinson.

PAULSON, Justice.

Timothy Morrissey appeals from an order of the Adams County District Court denying his writ of certiorari. We affirm the order denying writ of certiorari and affirm the decision that probable cause existed to bind Morrissey over for trial.

On November 20, 1979, Morrissey was charged with the crime of murder pursuant to § 12.1-16-01 of the North Dakota Century Code, a class AA felony. The complaint charged that Morrissey did "intentionally cause the death of Val Scott Blade". Two other persons were also charged with the murder of Val Blade, one Reginald Trieb and the other a minor whose initials are R. H.

A preliminary hearing was held before the county justice of Adams County. The county justice found that probable cause existed and bound Morrissey and Trieb over for trial. Morrissey petitioned the Adams County District Court for a writ of certiorari claiming that the county justice had exceeded his jurisdiction in making a finding of probable cause. This writ of certiorari was quashed by the Adams County District Court on January 4, 1980, and Morrissey has appealed from the order quashing his writ of certiorari.

We must first determine whether or not North Dakota statutory law provides for an appeal from an order denying a writ of certiorari. We find that it does. The North Dakota statutory scheme relating to writs of certiorari, mandamus, and prohibition dates back to territorial days. Most of the pertinent statutes were enacted in 1877 and have survived to the present day without amendment. See Chapter 32-32 through 32-35, N.D.C.C.; and Waltman v. Austin, 142 N.W.2d 517, 523 (N.D.1966). Recently this court has experienced an increasing use among North Dakota practitioners of these somewhat antiquated and dust-laden procedural devices. It may well be time for the Legislature to take a long and searching look at these devices to determine how they fit into modern legal practices.

A writ of certiorari is a "special proceeding" as that term is defined in § 32-32-01, N.D.C.C., which provides as follows:

"32-32-01. Definition. 'Special proceedings' within the meaning of this chapter shall include the writs of certiorari, mandamus, and prohibition."

"Special proceedings" are civil, not criminal, actions. Pursuant to § 28-27-01, N.D.C.C., a judgment in a special proceeding in any of the district courts may be removed to the Supreme Court by appeal. Section 28-27-01, N.D.C.C., provides as follows:

"28-27-01. Appeals to supreme court. A judgment or order in a civil action or in a special proceeding in any of the district courts may be removed to the supreme court by appeal as provided in this chapter."

Section 28-27-02(2), N.D.C.C., provides that "A final order affecting a substantial right made in special proceedings" may be "carried to the supreme court". A judgment in a special proceeding is defined in § 32-32-03, N.D.C.C., as follows:

"32-32-03. 'Judgment in special proceeding' defined Motion and order. A judgment in a special proceeding is the final determination of the rights of the parties therein. The definitions of a motion and an order in a civil action are applicable to similar acts in a special proceeding."

Because we find that the order denying Morrissey's writ of certiorari was a final determination of his rights in a special proceeding, we conclude that his appeal is properly before this court.

We have found two previous North Dakota cases in which an appeal was permitted from an order denying a writ of certiorari when certiorari was sought after a determination was made in a preliminary hearing to bind a defendant over for trial. State v. Persons, 201 N.W.2d 895 (N.D.1972); Green v. Whipple, 89 N.W.2d 881 (N.D.1958).

In Persons, supra 201 N.W.2d at 897, we said that

". . . in a proceeding on a writ of certiorari . . . the district court's review of the action of the county court was limited to a determination of whether the county court, in holding Persons for trial, properly followed the statutory guidelines for preliminary hearings in criminal matters . . .."

Persons was decided in 1972 and since that time we have adopted the North Dakota Rules of Criminal Procedure which became effective on November 1, 1973. Rule 59(a), N.D.R.Crim.P. Preliminary examinations are now governed by Rule 5.1, N.D.R.Crim.P. In pertinent part, Rule 5.1, N.D.R.Crim.P., provides as follows:

"RULE 5.1 PRELIMINARY EXAMINATION

"(a) Probable cause finding. If it appears from the evidence that there is probable cause to believe that an offense has been committed and that the defendant committed it, the magistrate shall forthwith hold him to answer in a trial court of the county having jurisdiction of the offense. The defendant may cross-examine witnesses testifying against him and may introduce evidence in his own behalf. . . .

"(b) Discharge of the defendant. After hearing the evidence on behalf of the respective parties, in a preliminary examination, if it appears either that a public offense has not been committed, or that there is not sufficient cause to believe the defendant guilty thereof, the magistrate shall order the defendant to be discharged. . . ."

Rule 5.1, N.D.R.Crim.P., has superseded §§ 29-07-18 and 29-07-20, N.D.C.C., which were at issue in Persons, supra 201 N.W.2d at 897.

Pursuant to Rule 5.1, N.D.R.Crim.P., the magistrate may consider evidence which will later be inadmissible at trial. The rule of law set down in Whipple, supra 89 N.W.2d 881, and Persons, supra 201 N.W.2d 895, regarding the applicable standard of review when certiorari is taken to the district court from a probable cause determination in a preliminary examination, is still valid. Review by certiorari to the district court of an order of a committing magistrate holding a defendant to answer is limited to a determination of whether or not the magistrate exceeded the authority vested in him by the rule. Green v. Whipple, 89 N.W.2d 881 (N.D.1958); and State v. Persons, 201 N.W.2d 895 (N.D.1972).

Section 32-33-09, N.D.C.C., provides that the extent of review upon a writ of certiorari is as follows:

"32-33-09. Extent of review. Except as otherwise provided by law, the review upon a writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board, or officer has pursued regularly the authority of such court, tribunal, board, or officer."

It is well settled in this State that review by certiorari is limited to questions of jurisdiction. City of Fargo v. Annexation Review Commission, 148 N.W.2d 338 (N.D.1967).

On appeal from a denial of a writ of certiorari, our standard of review is also limited to the question of jurisdiction as required by § 32-33-09, N.D.C.C. For an appellate court to broaden the scope of review beyond that exercised by the court in which certiorari was sought would be to frustrate the statutory purpose and permit counsel to accomplish by indirection what he cannot do directly. In the instant case, therefore, our review is limited to whether or not the committing magistrate exceeded his authority in binding Morrissey over for trial.

Under Rule 5.1, N.D.R.Crim.P., the magistrate is required to determine from the evidence if there is probable cause to believe that an offense has been committed and that the defendant committed it. Review of the record in this case reveals that Dr. Thomas Henry, who performed the autopsy on Val Blade, testified to the fact that Blade was murdered. This satisfies the requirement of probable cause to believe an offense has been committed.

Norbert Sickler, an investigator for the North Dakota Bureau of Criminal Investigation, testified that he obtained signed statements for Morrissey, Trieb, and the minor, R. H., that implicated them in the murder of Val Blade. Sickler testified that Morrissey gave a voluntary statement on November 19, 1979. A copy of that statement is included in the record as State's Exhibit #5.

In State v. Chaussee, 138 N.W.2d 788, 792 (N.D.1965), we quoted with approval the following language of the United States Supreme Court in Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310, 1311, 93 L.Ed. 1879 (1949):

" 'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

" 'The substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt.' McCarthy v. De Armit, 99 Pa.St. 63, 69, quoted with approval in the Carroll opinion (Carroll v. United States ) 267 U.S. (132), at page 161, 45 S.Ct. at page 288, 69 L.Ed. 543, 39 A.L.R. 790. And this 'means less than evidence which would justify condemnation' or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364. Since Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790.

" 'These long-prevailing standards seek to safeguard...