LaFortune v. District Court of Tulsa County

ORDER DENYING PETITIONS FOR WRIT OF PROHIBITION.

¶ 1 The Petitioner, the State of Oklahoma, has filed petitions for writs of prohibition challenging orders entered by the Honorable Jesse S. Harris, District Judge, remanding Tulsa County District Court Case Nos. CF-97-4902 and CF-97-3813 for further preliminary hearing. Before addressing the issues, this Court requested a response from Judge Harris, or his designated representative. Attorneys for the defendants in Case Nos. CF-97-4902 and CF-97-3813 have responded as the designated representatives of Judge Harris.

¶ 2 According to the briefs and the record presented, the defendants in each of the District Court cases wanted to call police officers as witnesses at the preliminary hearing. The defendants had not requested, and the State had not made available, law enforcement reports relating to the case. The defendants were unable to make a proper offer of proof that the police officers’ testimony would be relevant to the issues of a preliminary hearing. The magistrate in each case ruled that the defendants could not call the police officers as witnesses without first making a proper offer of proof of the relevance of their testimony pursuant to 22 O.S.Supp.1997, § 259. Each magistrate subsequently found probable cause that a crime was committed and that the defendant committed the crime, and bound each defendant over for trial on the charges.

¶ 3 During pre-trial proceedings in each case, each defendant filed a motion to remand the case for further preliminary hearing, noting the State had not provided law enforcement reports¹ to the defense prior to the preliminary hearing. The defendants cited this Court’s decision in McLaughlin v. District Court of Delaware County, 1996 OK CR 11, 915 P.2d 919, to argue that because the State had not produced law enforcement reports² prior to the preliminary hearing, they were unable to make an offer of proof as to the relevance of the testimony, the magistrate could not cut off the preliminary hearing, and they should have unlimited ability to call witnesses. In each case, the State acknowledged they had not made available law enforcement reports,³ but argued production of the reports was only required for the magistrate to cut off the preliminary hearing under 22 O.S.Supp.1997, § 258 (Sixth), and was not required when the preliminary hearing was proceeding under 22 O.S.Supp.1997, § 259.

¶ 4 Judge Harris remanded the cases for further preliminary hearing because ■ the State had not made law enforcement reports⁴ available to the defendants prior to the preliminary hearing. Judge Harris found it was difficult and unfair for a defendant to make an offer of proof as to the relevance of the testimony of defense witnesses without access to the State’s file and the information contained therein.

¶ 5 The State contends Judge Harris has nullified the provisions of 22 O.S.Supp.1997, § 259, by effectively allowing the defendants to produce witnesses without meeting the requirement in Section 259 of offering proof of the relevancy of the testimony of the witnesses. The State prays that this Court issue a writ of prohibition to Judge Harris directing him not to enforce the order remanding the cases for further preliminary hearing.

¶ 6 This Court finds the State has not met its burden of establishing the respondent has or is about to exercise judicial power that is unauthorized by law. Rule 10.6(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1998).⁵ While we concur in the results reached by Judge Harris, we do not agree with the rationale used to reach that result.

• ¶ 7 The task in addressing this matter is to interpret and reconcile laws passed concurrently by the Oklahoma Legislature in 1994 which amended preliminary hearing procedures and enacted the Oklahoma Criminal Discovery Code. 22 O.S.Supp.1997, §§ 258-59; 22 O.S.Supp.1997, §§ 2001-02; see State v. Martin, 1998 OK CR 35, ¶ 4, n. 1, 959 P.2d 982, 983 (the amendments to preliminary hearing procedures and the Oklahoma Criminal Discovery Code enacted concurrently in 1994 by the Oklahoma Legislature must be considered as a whole). In 1994, the Legislature amended preliminary hearing procedures to allow magistrates to limit evidence and to require magistrates to terminate the hearings as follows:

A preliminary magistrate shall have the authority to limit the evidence presented at the preliminary hearing to that which is relevant to the issues of: (1) whether a crime was committed, and (2) whether there is probable cause to believe the defendant committed the crime. Once a showing of probable cause is made the magistrate shall terminate the preliminary hearing-and enter a bindover order; provided, however, that the preliminary hearing shall - be terminated only if the state made available for inspection law enforcement reports within the prosecuting attorney’s knowledge or possession at the time to the defendant five (5) working days prior to the date of the preliminary hearing. In the alternative, upon agreement of the state and the defendant, the court may terminate the preliminary hearing once a showing of probable cause is made.

22 O.S.Supp.1997, § 258 (Sixth). Further amendments limited a defendant’s ability to present evidence as follows:

When the examination of the witnesses on the part of the state is closed, any witnesses the defendant may produce may be sworn and examined upon proper offer of proof made by defendant and if such offer of proof shows that additional testimony is relevant to the issues of a preliminary examination.

22 O.S.Supp.1997, § 259. The Legislature also enacted the Oklahoma Discovery Code setting the time for discovery as being after the preliminary hearing with one exception: “[m]otions for discovery may be made at the time of district court arraignment or thereafter; provided that requests for police reports may be made subject to the provisions of Section 258 of this title.” 22 O.S.Supp.1997, § 2002(D). In interpreting these statutes, we must construe them in conjunction, with each other and give effect to the intent of the Legislature. State v. Day, 1994 OK CR 67, ¶ 10, 882 P.2d 1096, 1098.

¶ 8 Contrary to the analysis used by Judge Harris, and the arguments made by the parties in this matter, the provision “ma[king] available for inspection law enforcement reports” cannot be interpreted as a means of assisting or allowing a defendant to make an offer of proof as to the relevance of the testimony of defense witnesses. The provisions making available law enforcement reports are only contained in Section 258(Sixth) which deals with termination of the preliminary hearing. Such provisions are not repeated or contained in Section 259 which creates the requirement that a defendant make the offer of proof concerning defense witnesses. The Discovery Code also makes a distinction between the sections by limiting discovery until after the preliminary hearing, but specifically referring to Section 258 in providing an exception allowing early access to law enforcement reports. The Discovery Code does not refer to Section 259 and does not provide an exception to assist or allow a defendant to make an offer of proof as to the relevance of testimony of defense witnesses.

¶ 9 Moreover, it would defy common sense to find, in interpreting the statutes, that law enforcement reports must be provided before the preliminary hearing in order for the defendant to be able to make an offer of proof as to the relevance of testimony of defense witnesses. If the law enforcement reports are properly made available and probable cause is shown during the State’s evidence, the magistrate is required to terminate the preliminary hearing. 22 O.S.Supp. 1997, § 258 (Sixth). If the preliminary hearing is so terminated, the defendant would not even be allowed to call defense witnesses, and having the law enforcement reports in order to make an offer of proof as to the relevance of their testimony would be useless. Id. Therefore, these cases should not be remanded for further preliminary hearing because the defendants could not make, or were restricted in making, an offer of proof as to the relevance of testimony of defense witnesses, due to the fact law enforcement reports were not made available.

¶ 10 In the 1994 legislation, the Legislature accepted a challenge issued by this Court for decades⁶ by limiting the purpose and scope of the preliminary hearing, and thus limiting opportunities for the defendant to benefit therefrom. The Legislature has clearly provided that a defendant shall not have unlimited ability to call defense witnesses at the preliminary hearing, and has thus eliminated the preliminary hearing as a discovery forum. 22 O.S.Supp.1997, § 2002(D) (the time for discovery is after arraignment); 22 O.S.Supp.1997, § 259 (a defendant’s ability to call witnesses is limited to testimony proven to be relevant to preliminary hearing issues); compare Beaird, 1969 OK CR 195, ¶ 8, 456 P.2d at 589 (one of the purposes previously served by the preliminary hearing is providing a procedure whereby defendant may discover what testimony is to be used against him at the trial). The Legislature has enacted a procedure which can allow only the State to put on witnesses, and which requires the magistrate to call a halt to the preliminary hearing if he is satisfied with the evidence. 22 O.S.Supp.1997, § 258(Sixth); compare Beaird, 1969 OK CR 195 at ¶ 6, 456 P.2d at 589 (previous versions of Sections 258 and 259 did not allow such a procedure).

¶ 11 The 1994 legislation must be held to mean what it plainly expresses, and no room is left for construction and interpretation where the language is clear and unambiguous. McLaughlin, 1996 OK CR 11, ¶ 9, 915 P.2d at 921. The 1994 legislation cannot be warped or twisted and interpreted to suit the converse of a particular situation, and it must be applied as written unless it constitutes a denial of that type of preliminary hearing allowed by the Constitution. Beaird, 1969 OK CR 195, ¶¶ 5, 11, 456 P.2d at 589-90. The Oklahoma Constitution provides that “[n]o person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.” Okla. Const. Art. 2, § 17. At the preliminary hearing, a defendant must not be denied his Constitutional right to be confronted with his accusers, and must be allowed to produce evidence material to the two issues in a preliminary hearing. Beaird, 1969 OK CR 195, ¶ 7, 456 P.2d at 589. It is apparent that the Legislature provided for law enforcement reports to be made available for inspection in order for the defendant (1) to prepare to cross-examine the State’s witnesses with whom he is confronted, and (2) to ensure that the preliminary hearing is not terminated when evidence material to the two issues in a preliminary hearing, such as an alibi, is not contained in the State’s presentation of evidence.⁷ 22 O.S.Supp.1997, § 258 (Sixth); Beaird, 1969 OK CR 195, ¶¶ 6, 7, 456 P.2d at 589.

¶ 12 The State argues it is only necessary to make available law enforcement reports if the case is proceeding under 22 O.S.Supp. 1997, § 258 (Sixth), and the magistrate invokes the termination, or “cut-off’, provision in that section. The State asserts that neither of the District Court cases proceeded under 22 O.S.Supp.1997, § 258 (Sixth) and neither of the magistrates invoked the cut-off provision. Therefore, the State argues it was not necessary to make available law enforcement reports since the cases proceeded under 22 O.S.Supp.1997, § 259. The State contends Judge Harris has erred as a matter of law in remanding the cases for further preliminary hearing because law enforcement reports were not made available to the defendants.

¶ 13 Contrary to the State’s assertions, all criminal cases must proceed under and through 22 O.S.Supp.1997, § 258 (Sixth), before they can proceed under and through 22 O.S.Supp.1997, § 259. Only if the magistrate is not required to terminate the preliminary hearing can the criminal case proceed through the close of the State’s evidence and the presentation of evidence by the defendant. 22 O.S.Supp.1997, §§ 258 (Sixth) and 257. The decision to invoke the cut-off rule should be, and is made by the magistrate, with the State obligated to meet its requirement of making available law enforcement reports so the magistrate can utilize the rule and make such a decision when necessary in every criminal case. 22 O.S.Supp.1997, § 258 (Sixth). A magistrate’s decision to invoke the cut-off rule cannot be enforced if the State does not make available all law enforcement reports to the defendant. McLaughlin, 1996 OK CR 11, ¶ 11, 915 P.2d at 921-22.

¶ 14 We do not believe, and cannot find from the text of the 1994 legislation, that the Legislature intended to allow the State to elect whether the preliminary hearing should proceed under Section 258 (Sixth) or 259, or to determine when the cut-off rule can be invoked, by either making available or refusing to make available law enforcement reports. 22 O.S.Supp.1997, §§ 258 (Sixth) and 259; see also McLaughlin, supra. Moreover, we do not believe production of the law enforcement reports is contingent upon a request by the defendant for such reports.⁸ There is no requirement in Section 258 (Sixth) that such a request be made, and the decision in McLaughlin was not contingent upon the defendant requesting such reports. 22 O.S.Supp.1997, §§ 258(Sixth); McLaughlin, supra.

¶ 15 Finally, all criminal defendants, and not just those whose preliminary hearing is terminated, need the law enforcement reports the Legislature has made available in order to prepare to cross-examine the State’s witnesses with whom they are confronted, and to ensure that the preliminary hearing is not terminated when evidence material to the two issues in a preliminary hearing is not contained in the State’s presentation of evidence. 22 O.S.Supp.1997, § 258 (Sixth); Beaird, 1969 OK CR 195, ¶¶ 6, 7, 456 P.2d at 589. Therefore, this Court finds that the Legislature intended for the State to make available law enforcement reports to the defendant five (5) working days prior to the date of preliminary hearing in all criminal cases, so magistrates can utilize the cut-off rule, and defendants can prepare and ensure evidence material to the two issues in a preliminary hearing is presented.

¶ 16 Because the State did not make available for inspection law enforcement reports within the prosecuting attorney’s knowledge or possession at the time to the defendant five (5) working days prior to the date of the preliminary hearing in Case Nos. CF-97-4902 and CF-97-3813, Judge Harris did not err in remanding those cases for further preliminary hearing. The remand will allow the State to properly make available the law enforcement reports to the defendants. It will also allow the defendants additional means to prepare to cross-examine the State’s witnesses with whom they are confronted, and to further ensure that the preliminary hearing is not terminated when evidence material to the two issues in a preliminary hearing is not contained in the State’s presentation of evidence. The defendants will receive the added benefit of having the law enforcement reports available to assist in making any necessary offer of proof of the relevance of defense witness testimony. Therefore, the State’s petitions for writ of mandamus in Case Nos. CF-97-4902 and CF-97-3813 should be, and are hereby, DENIED.

¶ 17 IT IS SO ORDERED.

¶ 18 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 11th day of December, 1998.

/s/ Charles S. Chapel CHARLES S. CHAPEL,' Presiding Judge

/s/ Reta M. Strubhar RETA M. STRUBHAR, Vice Presiding Judge /s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge — Dissents /s/ James F. Lane JAMES F. LANE, Judge — Dissents in part /s/ Charles A. Johnson CHARLES A. JOHNSON, Judge

1 . In district court proceedings, the parties and the court discussed providing and sharing the State's file or the prosecution file. The only material at issue in this matter are “law enforcement reports within the prosecuting attorney’s knowledge or possession” and not the State's or prosecution file. 22 O.S.Supp.1997, § 258(Sixth); see also 22 O.S.Supp. 1997,§ 2002(D) (refers to the law enforcement reports as "police reports").

2 . See supra note 1.

3 . See supra note 1.

4 . See supra note 1.

5 . The State has cited no law or authority which prohibits a trial judge from remanding a case for further preliminary hearing.

6 . Since its enactment in 1910, Section 259 has provided that "any witnesses the defendant may produce must be sworn and examined” at the preliminary examination. 22 O.S.1991, § 259 (emphasis added). This Court has held that Section 259 should be complied with as written, or repealed. E.g. Beaird v. Ramey, 1969 OK CR 195, ¶ 4, 456 P.2d 587, 589; Shapard v. State, 1967 OK CR 197, 437 P.2d 565 (Nix, J., specially concurring, ¶ 1); Parmenter v. State, 1963 OK CR 1, ¶ 24, 377 P.2d 842, 845.

7 . We are confident magistrates of this State will not terminate the preliminary hearing when there is reason to believe that evidence material to the decision on the two issues of a preliminary hearing has not been presented.

8 . The Discovery Code refers to the "requests for police reports” made under Section 258. 22 O.S.Supp. 1997, § 2002(D).