Hunter v. District Ct. in & for Twentieth Jud. Dist.

MR. JUSTICE ERICKSON

dissenting.

I respectfully dissent. In my view, the majority opinion is not supported by, and is contrary to, this court’s holding in Maestas v. District Court, 189 Colo. 443 , 541 P.2d 889 . The majority ignores the manifest inconsistency of referring to a preliminary hearing as a screening device designed to test the sufficiency of the prosecution’s case, and then foreclosing the trial judge from screening out, or dismissing the prosecution’s case, when probable cause has not been established. As we said in Maestas , “ ‘the preliminary hearing is of value to the prosecution in that it offers a method for testing the complaints of prosecuting witnesses and eliminating prosecutions actuated by prejudice or motives inconsistent with a fair administration of the criminal law.’”

The Commentary of The American Law Institute’s Model Code of Pre-Arraignment Procedure offers the following recommendation as a means for determining probable cause at the preliminary hearing:

“The quantum of evidence or the screening standard applicable to the preliminary hearing is usually stated in terms of probable cause but is not further defined. Because the same term is used to state the standard applicable to arrests and because the hearing often serves the function of reviewing the legality of the arrests in addition to screening cases for trial, the two standards are often confused and many courts apply the arrest *54 standard to the preliminary hearing. Since the Code’s view is that the function of the hearing is to screen out charges that should not go to trial, it adopts a standard that requires more evidence than is required for an arrest.

“Since the purpose is to screen out cases that should not be tried, Subsection (3) formulates the standard in terms of evidence sufficient to support a verdict of guilty. The judge does not have to be persuaded of the defendant’s guilt but should view the case as if it were a trial and he were required to rule on whether there is enough evidence to send the case to the jury. This standard is thus familiar to trial judges and should prove less confusing in its application than the current applicable standards.” Model Code of Pre-Arraignment Procedure, pp. 596, 597.

Even though the preliminary hearing is not a mini-trial, the trial judge should be allowed to utilize his powers of evaluation and reason in the face of conflicting testimony. Maestas v. District Court, supra.

The majority opinion charts a new course which is contrary to the great weight of authority and which virtually- .eliminates the screening function of the preliminary hearing. How is a judge to determine if a charge is “actuated by prejudice or motives inconsistent with a fair administration of criminal law” unless he assumes the responsibility of evaluating the credibility and claims of the witnesses appearing before him? Indeed, Mr. Justice Groves, speaking for a unanimous court in Biddle v. District Court, 183 Colo. 281 , 516 P.2d 645 (1973), recognized that the screening function necessarily embraced a determination of the credibility of witnesses. This observation was consonant with the views of a majority of the jurisdictions that hve addressed the same issue. Wilson v. State, 59 Wis.2d 269 , 208 N.W.2d 134 (1973); Jones v. Superior Court, 4 Cal.3d 660, 483 P.2d 1241 , 94 Cal.Rptr. 289 (1971); Wrenn v. Sheriff, 87 Nev. 85 , 482 P.2d 289 (1971); People v. Paille #2, 383 Mich. 621 , 178 N.W.2d 465 (1970); People v. Bieber, 100 N.Y.S.2d 821 (Mag. Ct. 1950).

The law is well settled that the prosecution bears the burden of proof at a preliminary hearing. The prosecution, in order to establish probable cause, must separate fact from fiction so that the court can evaluate the prosecution’s case. If the prosecution’s case, and the testimony offered in support of it, appear to be generated by motives other than candor and honesty, then the prosecution has simply failed to sustain its burden of proof. In this case, the judge plainly indicated that he was unable to distinguish between fact and falsehood on the basis of the testimony of the prosecution’s chief witness. Under these circumstances, to hold that the charges must be bound over for trial clearly undermines the law respecting the burden of proof at a preliminary hearing.

*55 The majority holding will cause defense counsel to view the preliminary hearing as a useless charade. Under the majority view, it would be sheer folly for defense counsel to offer evidence or call witnesses. The preliminary hearing, under the majority decision, amounts to an ex parte proceeding where the defendant’s attempt to explain his position is reduced to a meaningless gesture. Criminal charges, in the future, are to be bound over on the basis of a wooden comparison between the testimony of the prosecution’s witness and the elements of the crime. Such a procedure undermines the true function of the preliminary hearing which is to weed out the cases which should never have been filed.

Moreover, this court was never intended to sit as a super trial court, and to evaluate the credibility of witnesses whom it has neither seen nor heard. Questions concerning the credibility of witnesses and the weight to be given their testimony at a preliminary hearing are for the trial judge to resolve, and this court should not substitute its judgment for that of the trial court. People v. Tilley, 411 Ill. 473 , 104 N.E.2d 499 (1952); DeMond v. Superior Court of Los Angeles County, 57 Cal.2d 340 , 368 P.2d 865 , 19 Cal.Rptr. 313 (1962).

The law was well stated by the Supreme Court of Illinois when it said:

“Questions concerning the credibility of witnesses and the weight to be given their testimony are matters for the court on the preliminary examination, or for the jurors when the witnesses testify before them, and this court will not substitute its judgment on such matters for that of the trial court or the jury. People v. Tilley, 406 Ill. 398 , 94 N.E.2d 328 .” People v. Tilley, 411 Ill. 473 , 104 N.E.2d 499 (1952).

Similarly, the Supreme Court of California correctly resolved the same issue:

“Credibility of witnesses at the preliminary examination, of course, is a question of fact within the province of the committing magistrate to determine, and neither the superior court nor an appellate court may substitute its judgment as to such question for that of the magistrate. (Perry v. Superior Court (1962) 57 A.C. 302, 309 [5,6], 19 Cal. Rptr. 1 , 368 P.2d 529 ; People v. Malki (1960) 181 Cal.App.2d 118, 121 [1], 5 Cal. Rptr. 207 ; People v. Bouchard (1958) 161 Cal.App.2d 302, 306 [8], 326 P.2d 646 ; People v. Cornett (1958) 158 Cal.App.2d 724, 728 [1], 322 P.2d 1001 , and cases there cited.) The magistrate is not bound to believe even the uncontradicted testimony of a particular witness, especially where the statements are self-serving and the magistrate has reason to believe that other testimony of the witness is untruthful . . . .” DeMond v. Superior Court of Los Angeles County, 57 Cal.2d 340 , 368 P.2d 865 , 19 Cal.Rptr. 313 (1962).

Massachusetts, in a decision that is to be commended for its analysis of the issue which is now before us, not only recognized that the trial judge *56 has a right and a duty to weigh the credible evidence, but also clarified the quantum of proof that is required in a finding of probable cause at a preliminary hearing:

“[T]he standard of probable cause to bind over must require a greater quantum of legally competent evidence than the probable cause to arrest finding to insure that the preliminary hearing’s screening standard is defined in a way that effectuates its purpose. ‘It is the magistrate who must determine whether the policeman’s “reasonable belief,” when made visible constitutes “probable cause” to believe a crime has been committed . . . [and] sufficient evidence to warrant a jury’s finding the accused guilty.’ Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149 , 1166.

“Since the examining magistrate’s determination of the minimum quantum of evidence required to find probable cause to bind over is somewhat analogous in function to the court’s ruling on a motion for a directed verdict at trial as to whether there is sufficient evidence to warrant submission of the case to the jury, we have decided to adopt a ‘directed verdict’ rule in defining the minimum quantum of credible evidence necessary to support a bind-over determination. The examining magistrate should view the case as if it were a trial and he were required to rule on whether there is enough credible evidence to send the case to the jury. Thus, the magistrate should dismiss the complaint when, on the evidence presented, a trial court would be bound to acquit as a matter of law. People v. Bernstein, 95 N.Y.S.2d 696 , 699 (N.Y.C. Magis.Ct. 1950). The minimum quantum of evidence required by this bind-over standard is more than that of probable cause for arrest but less than would ‘prove the defendant’s guilt beyond a reasonable doubt.’ People v. Bieber, 100 N.Y.S.2d 821 , 823 (N.Y.C.Magis.Ct.). See also Commonwealth v. Baron, 356 Mass. 362, 365-366 , 252 N.E.2d 220 .” Myers v. Commonwealth, 298 N.E.2d 819 (Mass. 1973).

In summary, I believe that the trial judge should be bound by a test that would be equivalent to the Massachusetts test and patterned upon the principles we established in People v. Bennett, 183 Colo. 125 , 515 P.2d 466 (1973), to assess a motion for judgment of acquittal.

In my view, the record in this case does not reflect any abuse of discretion by the trial judge in his determination that probable cause was not established. The testimony of the prosecution’s key witness was contradicted in several material respects by the defendant’s witness, Edward R. Quintana. Quintana testified that Mrs. Gonzales struck out at the defendant during the party because the defendant was bragging about having “balled” her. Mrs. Gonzales became very upset, according to Quintana, and actually threatened to call the police. Quintana also heard Mrs. Gonzales say to the defendant, “You fucker, that was just between us.” Other testimony established that Mrs. Gonzales may well have been embarrassed *57 about going out with the defendant, inasmuch as she was married to another man. The trial judge was justified in considering whether the charges which Mrs. Gonzales made were “actuated by prejudice or motives inconsistent with a fair administration of the criminal law.”

In my opinion, the majority opinion breeds inconsistency into an already troublesome area of the law. Though consistency has been said to be the “last refuge of the unimaginative,” I prefer laws that are certain and predictable. For this reason, I would discharge the rule.

MR. JUSTICE DAY has authorized me to say that he joins me in this dissent.