State v. Heiner , 1984 Wyo. LEXIS 284 ( 1984 )

ROONEY, Chief Justice,

concurring, with whom THOMAS, Justice, joins.

I concur with all of that said in the majority opinion but find it appropriate to indicate a few of the fallacies contained in the dissenting opinion.

FALLACY NO. 1: JUSTICE

The dissenting opinion begins with reference to there being a subversion of justice in allowing certiorari in a criminal case or in accepting an appeal by the state from a final order terminating the proceeding before jeopardy attaches in a criminal case. The dissenting opinion contends that a bill of exceptions taken pursuant to §§ 7-12-101 through 7-12-105, W.S.1977, is the only means available to the people of the state by which an error in a criminal case can be reviewed by us.

Since the bill of exceptions can be used only to settle the question concerning an error at the trial level without affecting the result of the action taken against the defendant ¹, the dissent would hold that the defendant is allowed to take advantage of any error without regard as to whether or not such error resulted in a perversion of justice. As an example, the' introduction into evidence of a statement by a defendant admitting guilt and the introduction of physical evidence of sexual assault could be attacked by the defendant as improper through a motion in limine made before jeopardy attaches. Granting of the motion would sabotage the people’s case. The prosecution could not succeed, and the case would have to be dismissed. Under the dissent, such would leave the defendant his freedom without any determination of his guilt or innocence. Conversely, if the order were subject to appeal, directly or by certiorari, and the trial court were found to have erred, the case could be remanded and the trial could proceed with, perhaps, a dangerous rapist being removed from a position of hurting others.

But it can work the other way. If the trial court denied the motion in limine, the dissent’s position would leave the defendant with no alternative but to face the time and rigors of a long trial in which the evidence would be used. Thereafter, on his appeal the trial court could be found to have erred in admitting the evidence, allowing the defendant his freedom only after he suffered through an expensive and lengthy trial with accompanying mental anguish and pretrial and preappeal incarceration. If defendant had the right to an earlier appeal of the order denying his motion in limine, directly or by certiorari, he would have been spared the difficulties of trial and lengthy incarceration.

Either way, justice would be better obtained by use of the certiorari or interlocutory appeal, or through the direct appeal of the ruling on the motion in limine as advocated by Justice Raper in State v. Faltynowicz, Wyo., 660 P.2d 368 (1983) (Raper, Justice, specially concurring), a case with which Justice Rose disagrees in his dissent.

In his specially concurring opinion in Fal-tynowicz, in which I joined, Justice Raper ably and fully exposited the availability of an appeal from certain orders issued prior to judgment in a criminal case. His research as therein set forth established the fact that the people of the state have means to bring error to this court in a criminal case other than through the statutory bill of exceptions procedure. It would be redundant for me to repeat that said by Justice Raper in Faltynowicz which would also have application to the writ of certiora-ri here under consideration, but that said by Justice Raper also exposes the fallacies in the dissenting opinion.

It should also be constantly kept in mind that justice is a two-way street. A defendant in a criminal case is absolutely entitled to justice. So also are the people of the state entitled to justice in connection with that case.

In recognition of the need for justice in such instances and also in certain situations in civil matters, this court began the process of establishing a rule to allow interlocutory appeals in such pertinent instances or situations. The rule has not yet progressed through the rules committee. This court recognized the potential set forth by Justice Raper in State v. Faltynowicz, supra, whereby the application of Rules 1.04 and 1.05, W.R.A.P.,² would provide the vehicle for rendering justice in some instances. However, it was felt that the review should be discretionary and not a matter of right so that the cleavage between that subject to such review and that not so qualifying would not be significant. Both certiorari and the interlocutory appeal are discretionary and accomplish that end. Pending enactment of the interlocutory appeal rule, this court opted to use the power of certiorari, as granted by the constitution and as existed at common law, in those instances wherein justice could best be served through final settlement of a material issue of the case prior to trial in a civil matter and prior to jeopardy in a criminal matter.

In the case now before us, the trial court erred in suppression of evidence vital to the presentation by the people of the state. Justice requires an ultimate fair determination of defendant’s guilt or innocence of the charge of arson. Certiorari furthers justice in this case by providing, prior to the time of jeopardy, the means to correct the error of the trial court with reference to admissibility of evidence upon which the determination of guilt or innocence should be made.

Use of the writ of certiorari is a means of furthering justice and not the contrary. FALLACY NO. 2: DOUBLE JEOPARDY

It must be emphasized that once the defendant is put in jeopardy, neither the author of the majority opinion and those concurring with him nor anyone else contends that the people of the state can secure interlocutory review by certiorari or otherwise. A defendant cannot twice be put in jeopardy for the same offense. Art. 1, § 11, Wyoming Constitution. After jeopardy attaches, the people of the state may request review of a ruling on a legal issue only through the bill of exceptions, but, as reflected in § 7-12-105, supra (see fn. 1), such review, if granted, will not affect the judgment in favor of the defendant. Of note is the fact that the section concerns only the “judgment.” Section 7-12-103, W.S.1977, requires the prosecution to give reasonable notice to the judge “who presided at the trial.” Thus, the procedure for use of a bill of exceptions as set forth in § 7-12-101 et seq., W.S.1977, is available only after the trial. It does not purport to apply to orders prior to the judgment let alone prior to jeopardy.

Cases cited in the dissenting opinion concern instances in which the defendant was put in jeopardy. In most cases, the judgment had been rendered. The courts were there refusing “appeals” after the defendant was put in jeopardy. Those cases are not proper precedent for the question before us.

FALLACY NO. 3: CONSTITUTIONAL AUTHORITY

The dissent attempts to change the plain meaning of Art. 5, § 3, of the Wyoming Constitution by suggesting that it is conditioned on Art. 5, § 2. Art. 5, § 2, grants appellate powers to the court. Art. 5, § 3, defines the original jurisdiction of the court.³

Art. 5, § 3, is plain and unambiguous in providing that:

“ * ⅜ * The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, cer-tiorari, and other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. ⅜ ⅜ ” (Emphasis added.)

The phrase “necessary and proper to the complete exercise of its appellate and revi-sory jurisdiction” modifies only “other writs” inasmuch as many of the enumerated writs have nothing to do with appellate or revisory jurisdiction. The power granted is to issue a writ of certiorari without any strings attached thereto.

The common-law writ of certiorari is of ancient origin. St. George v. Larson, 125 Vt. 352, 215 A.2d 511, 512 (1965); McKenna v. New Jersey Highway Authority, 19 N.J. 270, 116 A.2d 29, 31 (1955). It is a writ requiring the certification of the record and proceedings from a court of record or other tribunal or officer exercising a judicial function for revision and correction in matters of law. Lenz v. Cobo, 338 Mich. 383, 61 N.W.2d 587, 592 (1953); Toulouse v. Board of Zoning Adjustment, 147 Me. 387, 87 A.2d 670, 673 (1952). Certiorari differs from a writ of error in that the latter is a writ of right while the former is discretionary. Levy v. Gerhard, 74 R.I. 288, 60 A.2d 494, 495, 4 A.L.R.2d 345 (1948); Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 765, 50 L.Ed. 90 (1905). It is a remedial, revisory, supervisory and prerogative writ. Reagan v. Rhodes, 264 Ala. 39, 84 So.2d 647, 653 (1956); Wattenbarger v. Tullock, 197 Tenn. 279, 271 S.W.2d 628, 631 (1954); Wattman v. Ortman, 233 Ala. 170, 170 So. 545, 547 (1936). Inasmuch as certiorari is more than an appellate power, Art. 5, §§ 2 and 18, of the Wyoming Constitution have no pertinency to it. As already stated, Art. 5, § 3, supra, has to do with original jurisdiction of the supreme court, whereas Art. 5, §§ 2 and 18, concern appellate jurisdiction of the court. That provided in Art. 5, § 3, does not depend on “rules and regulations as may be prescribed by law.”

The argument in the dissenting opinion on this point is not only flawed in this respect, but the authorities cited therein do not pertain to the circumstances here involved. The quotation in the dissenting opinion from Mau v. Stoner, 14 Wyo. 183, 83 P. 218, 219 (1905), begins:

“ * * * It is well settled that, in the absence of a direct constitutional requirement, the right of appeal does not exist unless expressly conferred by statute. * * ⅜ ” (Emphasis added.)

There is a “direct constitutional” power granting to the supreme court the right to issue a writ of certiorari. Cases and authorities referred to in the dissenting opinion which depend on statutory authority for appeal and review are not pertinent to the situation in which there is direct constitutional power providing for certiorari.

An attempt was once made to abolish by statute the use of the writ of certiorari in civil cases. Ch. 60, § 801, Laws of Wyoming 1886, last codified as § 3-5323, W.C. S.1945:

“Writs of error and certiorari to reverse, vacate or modify judgments or final orders in civil cases are abolished; but court shall have the same power to compel transcripts of the proceedings containing the judgment or final order sought to be reversed, to be furnished, completed or perfected as they heretofore had under writs of error and certio-rari.”

Of interest to failure of the dissenting opinion in this case are: (1) the legislature only abolished the writs in civil cases, by implication not doing so in criminal cases, and (2) the constitution (adopted in 1890) retained certiorari in face of the prior legislative action abolishing it. In any event, we held in State v. Dahlem, 37 Wyo. 498, 263 P. 708, 709 (1928), that the right to certiorari existed notwithstanding attempted abolition by statute. See G-W Development Corporation v. Village of North Palm Beach Zoning Board of Adjustment, Fla.App., 317 So.2d 828 (1975); State ex rel. Pearson v. Hansen, Wyo., 409 P.2d 769 (1966); Call v. Town of Afton, 73 Wyo. 271, 278 P.2d 270 (1954); Batty v. Arizona State Dental Board, 57 Ariz. 239, 112 P.2d 870 (1941).

A more pertinent consideration, not mentioned in the dissenting opinion, arises from Rule 1.06, W.R.A.P. It reads:

“Proceedings in error are hereby abolished and any judgment or final order reviewable by the district court or Supreme Court may be reviewed only by appeal in accordance with the rules herein provided, and the words ‘proceeding in error’ where used in the laws of this state shall be held to mean ‘appeal.’ Writs of error are abolished.”

Of course, the court can no more vary the constitution by rule than can the legislature by statute. In any event, there is a definite distinction between “certiorari” and “proceeding in error” or “writs of error.” The quotation from the statute purporting to abolish certiorari, supra, recognizes the distinction by referring to “writs of error and certiorari” (emphasis added). As noted, supra, Art. 5, §§ 3 and 18, of the Wyoming Constitution recognize the distinction. Certiorari is discretionary. A writ of error is a writ of right.

The constitution makes certiorari available for use by the supreme court, but the ■court will use it sparingly and only in the interest of justice.

FALLACY NO. 4: APPEAL vs. CERTIORARI

The dissenting opinion treats appeal and certiorari as identical. I have already noted the distinction made between them historically, including the language in Ch. 60, § 801, Laws of Wyoming 1886, and last codified § 3-5323, W.C.S.1945, supra, and as reflected in the Wyoming Constitution. The two A.L.R. annotations referred to and quoted from in the majority opinion, i.e., 109 A.L.R. 794 and 91 A.L.R.2d 1096, make the definite distinction between appeals and writs of error on the one hand and certiora-ri on the other hand.

Most of the dissenting opinion is predicated on law as it pertains to an appeal. The attempt to apply it to certiorari fails in view of the historical and practical distinction between the two. Specific instances of this failure are set forth in Fallacy No. 6, infra.

Mentioned in connection with this fallacy is the dissenting opinion’s failure to distinguish between common-law certiorari and statutory or constitutional certiorari which modifies common-law certiorari. The constitutions of some states do not mention certiorari — wherefore statutory change controls. See Fallacy No. 3, supra, and Fallacy No. 6, infra, for supporting authority-

One of the primary conditions for issuance of a writ of certiorari is that it will not lie when another remedy is available. State ex rel. Pearson v. Hansen, supra; Call v. Town of Afton, supra; City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892 (1916). This factor alone reflects the distinction between “appeal” and “certiorari.”

The people of the state have no right to appeal a criminal case. A statutory bill of exceptions does not provide a remedy for the people of the state. The fact that the statutory bill of exceptions is not an appeal of a case is discussed in Fallacy No. 5, infra.

FALLACY NO. 5: BILL OF EXCEPTIONS vs. APPEAL

The dissent equates the procedure set forth in §§ 7-12-101 through 7-12-105, supra, with an appeal. Inasmuch as such procedure provides that the judgment “shall not be reversed nor in any manner affected,” (§ 7-12-105), it does not comport with that to be accomplished by an “appeal.” Rule 1.04, W.R.A.P., supra, provides that this court, on review, can reverse in whole or in part, vacate, or modify any judgment or final order. The bill of exceptions procedure is inconsistent with this purpose of an appeal, and, thus, it is also something other than an appeal.

The statutory bill of exceptions, by its terms, is not an appeal of the case. At most, it is an appeal of an issue presented and decided in the case. The resulting opinion has no effect on the case itself. It is not an appeal.

FALLACY NO. 6: IRRELEVANT CITATIONS

Cases and authorities cited and quoted from in the dissenting opinion are not in point and do not support the position taken in such opinion.

In Mau v. Stoner, supra, heavily relied upon by Justice Rose in his dissent, the court entered a decree in a water right case under a statute providing that “the decision of the court, judge or commissioner shall be final.” 83 P. at 219. Not only is this a civil case, wherein the availability of certio-rari is historically different than in criminal cases (discussed infra), but the court, after quoting from cases pro and con on the issues as was then commonly done, concluded at page 220 of 83 P.:

“It is not necessary ⅜ * * for us to express an opinion as to whether there is a constitutional right of appeal or review in cases which proceed according to the course of the common law. The statute under consideration provides for a special or summary proceeding unknown to the common law, created by the Legislature for the purpose of affording temporary relief only, and to meet immediate emergencies that may arise under it. * * * jy

Not only is the case a civil one, but it concerns a specific statute providing for temporary relief and directing that the decision be final with regards to the temporary relief. It involves an appeal, not cer-tiorari.

State v. Heberling, Wyo., 553 P.2d 1043 (1976); State v. Ginther, 53 Wyo. 17, 77 P.2d 803 (1938); State v. Weathers, 13 Okl.Cr. 92, 162 P. 239 (1917); State v. Arnold, 144 Ind. 651, 42 N.E. 1095 (1896); and In re Boulter, 5 Wyo. 263, 39 P. 875 (1895), all relied upon in the dissenting opinion, are cases in which the defendant was put in jeopardy and trial was had. The language from those cases directing review to be by a bill of exceptions under such condition rather than by an appeal after jeopardy attached cannot properly be quoted to pertain to certiorari. In State v. Heberling and in the Indiana case, the proceedings were pursuant to a bill of exceptions. In re Boulter came to the court on a petition for habeas corpus. None of these cases concern certiorari. They concern an attempted appeal. References to these cases in the dissenting opinion are misleading.

State v. Benales, Wyo., 365 P.2d 811 (1961), relied upon in the dissenting opinion, was not before the supreme court on certiorari. The issue involved a dismissal of an information for failure to prosecute, i.e., to grant a speedy trial. The supreme court noted that “the state undertook an appeal to this court, proceeding as in a civil case under the Wyoming Rules of Civil Procedure” (emphasis added). Id. at 812.

State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977 (1906), also relied upon in the dissenting opinion, came to us on a bill of exceptions and on a petition for a writ of error, not on certiorari. The court held that the bill of exceptions rather than the writ of error was the proper procedure.

United States v. Rosenwasser, 145 F.2d 1015 (9th Cir.1944), concerned an action to suppress evidence by a stranger to criminal action. The quotation from this case in the dissenting opinion has to do with “appeals,” not certiorari; and the court’s discussion had to do with the propriety of an appeal under 28 U.S.C.A. § 227, and not with certiorari under a constitutionally granted power. Moreover, in a footnote, the court said'at page 1018:

“⁸ Appellee has suggested that appeals by the government iri-criminal cases are strictly confined to a few instances listed in § 682 of 18 U.S.C.A. and therefore that even if the district court’s order herein be considered a final decision, the within appeal would not lie. We have considered the point but indicate no opinion thereon.”

The court, thus, did not rule out even an “appeal” under proper circumstances.

The dissenting opinion quotes from a summary of a holding in State v. B’Gos, 175 Ga. 627, 165 S.E. 566 (1932), as such summary is contained in Annotation: Right of state to writ of certiorari in criminal cases, 109 A.L.R. 793. The dissenting opinion does not mention the other numerous case citations in the annotation which resulted in the annotation conclusion at page 793:

“That a remedy by writ of certiorari lies under proper circumstances on behalf of the state in a criminal case finds support in various decisions.”

The dissenting opinion refers to 24 C.J.S. Criminal Law § 1659 and to 4 Am.Jur.2d Appeal and Error § 268 to support the proposition that there is “no right to a writ of error, to an appeal, or to an exception in a criminal case unless it is expressly conferred by * * ⅜ statute * * ⅜.” Of course, the references do not concern certiorari.

Finally, the dissenting opinion says:

“ * * * The rule is reported in Annot., 91 A.L.R.2d 1095, 1096, ‘Right of prosecution to writ of certiorari in criminal case,’ where it is said:

“ ‘As a general rule the prosecution cannot appeal or bring error proceedings from a judgment in favor of the defendant in a criminal case, in the absence of a statute clearly conferring that right.' (Emphasis added.)”

The dissenting opinion fails to continue the quotation in context. The annotation reads further at page 1096:

“It is against this background of the prosecution’s limited right of appeal in criminal cases that courts deal with the problem of the state’s status to obtain by certiorari review of a lower court decision, favorable to the defendant, in a criminal proceeding; and the problem comes into sharper focus when the defendant contends, in effect, that the prosecution is attempting to accomplish by the writ what it could not do by appeal, and that his constitutional rights are being thus encroached upon.”

In summarizing cases listed “§ 3. Under modern constitutions and statutes,” the annotation explains:

“Among the cases discussed in this section are many instances in which the prosecution’s standing to maintain the writ was upheld and many in which it was denied. The results reached depend on the particular statutory or constitutional language before the court, and the specific facts of the individual cases. * * * ” (Footnote omitted.)

As reflected under Fallacy No. 3, supra, the Wyoming Constitution empowers the supreme court to issue certiorari as part of its original jurisdiction.

A few of the more recent cases holding the state to be entitled to a writ of certiora-ri in criminal cases are: State v. McCormick, Tenn.Cr.App., 584 S.W.2d 821 (1979) (cited in the majority opinion), under common law to review order suppressing evidence; State v. Ward, 46 N.C.App. 200, 264 S.E.2d 737 (1980), state held to be required to petition for prerogative writ of certiorari to secure review of dismissal for failure to supply speedy trial since it had no right to appeal; People v. Gonter, 125 Cal.App.3d 333, 178 Cal.Rptr. 66 (1981), review of jurisdiction to impose deferred incarceration program on defendant; People v. Dee, Colo., 638 P.2d 749 (1981), review of holding that defendant’s rights were violated in administration of breath test in driving under the influence of intoxicants case. Directly in point with this case, the court held in State v. Cullison, Iowa, 215 N.W.2d 309 (1974), that its review in this original certio-rari action of a ruling by the trial court sustaining a motion to suppress evidence was proper.

Some mention should be made of the criticism by the dissenting opinion of the decision in City of Laramie v. Mengel, Wyo., 671 P.2d 340 (1983). Such criticism is founded on the same fallacies herein set out — failure to understand that the people of the state are entitled to justice just as is the defendant; that there is constitutional authority for the writ of certiorari; that certiorari is a concept entirely separate from “appeal”; that the statutory bill of exceptions is not an appeal of the case; and that certiorari is a well recognized and proper proceeding to use in the situation presented in City of Laramie v. Mengel, just as it is in this case.

FALLACY NO. 7: NUMBER OF PETITIONS FOR WRITS OF CERTIORARI

The dissent recites that “we find the State’s petitions for writs of certiorari from pretrial and final orders in criminal prosecutions to be raining down about our heads in torrents.” We have had but a handful of such petitions. And, of course, if most of them had not come to us on certiorari, they would finally come along on appeals or on bills of exceptions.

CONCLUSION

The majority opinion properly serves the cause of justice and is founded on sound legal reasoning and precedent.

1 . Section 7-12-105, W.S.1977, provides:

"The judgment of the court in the case in which the bill was taken shall not be reversed nor in any manner affected, but the decision of the supreme court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered, or which may afterwards arise in the state.”

2 . Rule 1.04, W.R.A.P., provides:

"A judgment rendered or final order made by a district court may be reversed in whole or in part, vacated or modified by the Supreme Court for errors appearing on the record.”

Rule 1.05, W.R.A.P., provides in part:

“A final order is: (1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment * *

3 . See Fallacy No. 4 (infra) re certiorari being other than an "appeal.”

8 . As mandated by Mau v. Stoner’s interpretation of Art. 5, § 18, of the Wyoming Constitution.