State v. Wuthrich
Citation | 112 Idaho 360,732 P.2d 329 |
Decision Date | 25 November 1986 |
Docket Number | No. 15783,15783 |
Parties | STATE of Idaho, Plaintiff-Respondent, v. Michael Eugene WUTHRICH, Defendant-Appellant. |
Court | Court of Appeals of Idaho |
Jim Jones, Atty. Gen. by Lynn E. Thomas, Sol. Gen., and Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Michael Wuthrich stands convicted by a jury of lewd and lascivious conduct with a minor. On appeal he asks us to set aside the judgment because he was not represented by counsel at the outset of his preliminary hearing. Our review encompasses two issues: (1) Did the magistrate err by starting the preliminary hearing without counsel present? (2) Was the error rendered harmless by subsequently affording Wuthrich an opportunity to obtain an attorney? For reasons set forth below, we answer both questions affirmatively and we uphold the judgment of conviction.
We preface our analysis by noting that Wuthrich has raised no issue pertaining directly to the trial at which he was found guilty. Where the fairness of a trial is uncontested, some errors at a preliminary hearing may not be justiciable on appeal. Thus, in State v. Mitchell, 104 Idaho 493, 660 P.2d 1336 (1983), cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983), the Idaho Supreme Court held that the sufficiency of evidence to support a probable cause determination at a preliminary hearing may not be attacked after a fair trial has produced a conviction. However, unlike the quantum of evidence adduced at a preliminary hearing, the denial of an accused's right to counsel may affect the eventual fairness of the trial. It is clear that the preliminary hearing is a "critical stage" of the criminal justice process. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). In Coleman, Justice Brennan noted the relationship between counsel's role at a preliminary hearing and the fairness of a trial:
Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the state's case that may lead the magistrate to refuse to bind the accused over. Second, ... the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use ... at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the state has against his client and make possible the preparation of a proper defense.... Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.
Id. at 9, 90 S.Ct. at 2003. Accordingly, we will treat denial of counsel at a preliminary hearing as a justiciable issue on appeal from a judgment of conviction.
In order to assure the effective assistance of counsel as required by the Sixth Amendment, the state should provide counsel at the earliest feasible time after the accused is taken into custody. Task Force on Providing Services, Providing Defense Services, 1 A.B.A. STANDARDS FOR CRIMINAL JUSTICE § 5-5.1 (1979).
[112 Idaho 363] The right to counsel embraces all critical stages of the criminal justice process after commencement of adversarial criminal proceedings against the accused. 1 State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975); State v. Blevins, 108 Idaho 239, 697 P.2d 1253 (Ct.App.1985). Because the preliminary hearing is a critical stage, the absence of an attorney will be excused only where the accused knowingly and intelligently has waived his right to counsel. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Ebersole v. State, 91 Idaho 630, 428 P.2d 947 (1967); State v. Blevins, supra. Rule 44(a), I.C.R., contains a similar requirement: "Every defendant, who according to law is entitled to appointed counsel, shall have counsel assigned to represent him, from his initial appearance before the magistrate or district court, unless he waives such appointment." [Emphasis added.]
Whether a waiver has been made knowingly and intelligently is a factual question. It turns largely upon the accused's state of mind. However, because the question possesses great constitutional significance, it requires independent review on appeal. State v. Blevins, supra. In this case, when the preliminary hearing was convened, the following dialogue took place between the magistrate and Wuthrich:
Upon this record, we deem it clear that Wuthrich was confused about whether he wanted a preliminary hearing and was wholly unclear as to whether he would waive counsel at such a hearing. The presumption is against waiver; it must be affirmatively shown. State v. Blevins, supra. In our view, the state has not met its burden of showing that Wuthrich...
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State v. Flint
...harmless only if the court is satisfied beyond a reasonable doubt that the violation did not affect the trial. State v. Wuthrich, 112 Idaho 360, 732 P.2d 329 (Ct.App.1986). However, in this instance we are unable to evaluate the merits of defendant's claim. Defendant's notice of appeal did ......
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