State v. Morgan , 389 Utah Adv. Rep. 14 ( 2000 )

GREENWOOD, Presiding Judge

(dissenting):

¶ 20 I respectfully dissent from my colleagues. The majority opinion accurately sets forth the relevant facts and applicable law; however, I conclude the facts of this case demonstrate that the State innocently miscalculated the quantum of evidence required by the magistrate for bindover and as such provided “other good cause” as referred to in State v. Brickey, 714 P.2d 644, 647 (Utah 1986).

¶ 21 While the facts of this case are similar to those in Brickey, they do not present any of the due process problems identified therein. In this case, immediately after the magistrate stated there was insufficient evidence to bind defendant over on the distribution charge, the prosecutor asked to reopen the preliminary hearing and present Detective Hansen’s testimony. When the magistrate denied the prosecutor’s request to reopen the preliminary hearing and dismissed the charges, the prosecutor promptly refiled the charges and a new preliminary hearing occurred before the same magistrate, as required by Brickey. See id. Therefore, there is no evidence of either harassment of defendant or forum shopping by the prosecutor.

¶ 22 The State does not assert that Detective Hansen’s testimony constitutes new or previously unavailable evidence, arguing instead that this situation falls under the “other good cause” prong of the Brickey test. Neither Brickey nor later Utah decisions specifically describe what situations constitute “other good cause” justifying a prosecutor’s decision to refile charges. However, Brickey suggests 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 id. at 647 n. 5 (discussing holding in Harper v. District CL, 484 P.2d 891 (Okla.1971)); see also Walker v. Schneider, 477 N.W.2d 167, 175 (N.D.1991) (explaining good cause may include innocent miscalculation of amount of evidence by prosecutor). On this basis, it is likely the magistrate could have reopened the preliminary hearing and heard additional evidence.

¶ 23 In my view, the magistrate and subsequently the trial court properly determined that, under the facts of this case, the “other good cause” prong of the Brickey test was satisfied, thus allowing refiling charges. Although the basis of Detective Hansen’s testimony was known by the prosecutor and available at the time of the first preliminary hearing, the evidence was qualitatively different than the evidence actually presented at the first preliminary hearing. Detective Hansen’s testimony supplied the magistrate with the foundation necessary to assess whether the amount of drugs found in defendant’s car met probable cause requirements for the distribution charge. The prosecutor had initially innocently miscalculated the need for both officers’ testimony, assuming that Officer Lindquist’s testimony would be sufficient. As noted in Brickey, double jeopardy provisions did not preclude refiling charges. See Brickey, 714 P.2d at 646. Only “ [considerations of fundamental fairness” embodied in constitutional protections of due process bar subsequent indictment. Id. at 647. Based on the facts of this case, the magistrate and trial court did not err in concluding that “good cause” justified refiling the charges. Under these circumstances, I believe that refiling the charges did not violate defendant’s due process rights and that this case presents a reasonable and logical application of Brickey. Therefore, I would affirm.