Magill v. Miller

Court of Criminal Appeals of Oklahoma

Magill v. Miller

1969 OK CR 187, 455 P.2d 715

CourtCourt of Criminal Appeals of Oklahoma

DecidedJune 11, 1969

DocketA-15297

StatusPublished

Cited by6 cases

This text of 1969 OK CR 187 (Magill v. Miller) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Magill v. Miller, 1969 OK CR 187, 455 P.2d 715 (Okla. Ct. App. 1969).

Pincite

Opinions

BRETT, Presiding Judge:

Petitioner filed his petition in this Court asking that the Respondent herein, who is serving as the examining magistrate of the District Court of Oklahoma County, be required to protect his constitutional rights during his preliminary hearing in district court case CRF-69-670, on a charge of first degree rape. When the Rule to Show Cause was issued by this Court, all proceedings in petitioner’s case were stayed until the further order of this Court, and the matter was set for hearing in this Court for May 13, 1969. Prior to the hearing petitioner filed a copy of the transcript of his hearing and at the conclusion of the hearing in this Court, petitioner was permitted to file a specification of instances wherein he contends his constitutional rights are being violated.

In substance, petitioner’s complaints are that the examining magistrate has restricted his cross-examination of the prose-cutrix; that the rules of evidence are being rigidly applied at his preliminary hearing; and that the magistrate abused his discretion in denying him the right to use a tape recorder to record the testimony for his own use only. He contends therein that because the previous rulings of this Court and as the result of the magistrates restrictions, he would be placed in jeopardy of having ex parte affidavits used against him in his trial, in the event any of the witnesses became unavailable at that time. In support of this position he relies on In re Bishop, Okl.Cr., 443 P.2d 768 (1968). In this respect, it appears that petitioner may be premature in his expectations.

However, notwithstanding the decision of In re Bishop, supra, it has long been recognized that a preliminary hearing is ordinarily a much less searching exploration into the merits of a case than that of a trial, because its function is more limited to one of determining whether or not probable cause exists for holding the accused for trial. This Court provided in Parmenter v. State, Okl.Cr., 377 P.2d 842 (1963), that it is within the discretion of the examining magistrate to hear testimony so long as the evidence relates to the issues involved in the proceeding. However the exercise of this discretion, i. e., limiting the taking of testimony at a preliminary examination, is subject to broad interpretation so long as the evidence is material to the issue involved; consequently in the exercise thereof, the strict application of the rules of evidence is not considered warranted. This Court, speaking through the late Judge Chappell, in State v. Harris, 44 Okl.Cr. 116, 279 P. 925, 926, (1929), said:

“An investigation by a grand jury or a preliminary examination by a magistrate is not a trial, arid the rules of evidence are not applied as rigidly as in the trial of a case before the court.” See also: Shapard v. State, Okl.Cr., 437 P.2d 565 (1967), at page 613.

We see no reason for changing the long standing practice in such matters, [717]*717and therefore conclude that petitioner’s contention in this respect has no merit. However, we further conclude that any contention alleging the abuse of discretion by the examining magistrate should properly be considered by this Court 'on appeal of the case. We also observe in this respect, and especially in this particular matter, that the preliminary examination is not properly the forum for the defense counsel to conduct his investigation of a witness’ former life. That is to be conducted by counsel, or his representative, outside the proceedings of the preliminary examination; and, whether or not such informational questions are proper is clearly within the discretion of the examining magistrate.

Concerning petitioner’s complaint that he was not permitted to record the testimony for his own use, we actually see little harm which would result therefrom, but consider the use of an electronic recording device, without a stenographer, to be left to the discretion of the magistrate. We observe that 22 Okl.St.Ann. § 258 provides in part, as follows:

“* * * On the request of the [district attorney], or the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witness, or the same may be taken in shorthand and transcribed without signing, and in both cases filed with the clerk of the district court, by the examining magistrate, * * (emphasis added)

In Davis v. State, 15 Okl.Cr. 386, 177 P. 621 (1919), this Court held:

The law not designating who may take in shorthand the evidence of a witness at an examining trial, any stenographer may do so.

We observe however, when that decision was rendered the use of electronic devices was unknown; and when the testimony was transcribed by the stenographer, it was verified by the stenographer for filing by the examining magistrate.

Insofar as the State now provides official court reporters for the purpose of preserving the record of proceedings, we are of the opinion that the use of a recording device by defense counsel, without being supplemented by a qualified stenographer, should be subject to certain conditions ; and further, whether or not the privilege is to be exercised is within the judicial discretion of the examining magistrate.

In the event the magistrate permits the exercise of the privilege of using a recording device alone, it should be clearly understood that such recording is only for the benefit of the defendant and shall not be considered an official record; and such understanding should appear in the official record or minutes of the examining magistrate. Further, if a record is being made by the court reporter, accused’s recording shall not be used to challenge the official record after it has been verified by the parties and filed with the district court clerk, by the magistrate. Likewise, the exercise of the privilege is subject to the actual physical conditions existent at the time and place where the preliminary examination is being held.

We do not consider it necessary to discuss each of petitioner’s specified complaints, listed and itemized “a. through g.” insofar as they are all related to the main question concerning the rules of evidence, and accused being restricted in his cross-examination of the witnesses.

We are therefore of the opinion, that the rules of evidence should not be rigidly applied during the preliminary examination of the accused; that the materiality of the questions propounded by counsel, as related to the issues involved in the proceeding, is left to the discretion of the examining magistrate; that any contention of the abuse of such discretion by the examining magistrate is a matter to be considered on appeal before this Court; and finally, whether or not the accused is to be permitted to utilize a recording device to transcribe the testimony of a preliminary examination is a matter left to the discretion of the examining magistrate, unless such [718]*718recording is supplemented by a qualified stenographer capable of transcribing the testimony, as provided in the statutes, and verifying the transcript thereof.

While there is considerable merit to certain aspects of Judge Nix’s dissent hereto, the instances to which he makes reference —wherein the use of recording devices is permitted — each example he gives is exercised under the supervision of the court, including that of the court reporter. If it be said that defense counsel has a right

Free access — add to your briefcase to read the full text and ask questions with AI

BRETT, Presiding Judge:

Petitioner filed his petition in this Court asking that the Respondent herein, who is serving as the examining magistrate of the District Court of Oklahoma County, be required to protect his constitutional rights during his preliminary hearing in district court case CRF-69-670, on a charge of first degree rape. When the Rule to Show Cause was issued by this Court, all proceedings in petitioner’s case were stayed until the further order of this Court, and the matter was set for hearing in this Court for May 13, 1969. Prior to the hearing petitioner filed a copy of the transcript of his hearing and at the conclusion of the hearing in this Court, petitioner was permitted to file a specification of instances wherein he contends his constitutional rights are being violated.

In substance, petitioner’s complaints are that the examining magistrate has restricted his cross-examination of the prose-cutrix; that the rules of evidence are being rigidly applied at his preliminary hearing; and that the magistrate abused his discretion in denying him the right to use a tape recorder to record the testimony for his own use only. He contends therein that because the previous rulings of this Court and as the result of the magistrates restrictions, he would be placed in jeopardy of having ex parte affidavits used against him in his trial, in the event any of the witnesses became unavailable at that time. In support of this position he relies on In re Bishop, Okl.Cr., 443 P.2d 768 (1968). In this respect, it appears that petitioner may be premature in his expectations.

However, notwithstanding the decision of In re Bishop, supra, it has long been recognized that a preliminary hearing is ordinarily a much less searching exploration into the merits of a case than that of a trial, because its function is more limited to one of determining whether or not probable cause exists for holding the accused for trial. This Court provided in Parmenter v. State, Okl.Cr., 377 P.2d 842 (1963), that it is within the discretion of the examining magistrate to hear testimony so long as the evidence relates to the issues involved in the proceeding. However the exercise of this discretion, i. e., limiting the taking of testimony at a preliminary examination, is subject to broad interpretation so long as the evidence is material to the issue involved; consequently in the exercise thereof, the strict application of the rules of evidence is not considered warranted. This Court, speaking through the late Judge Chappell, in State v. Harris, 44 Okl.Cr. 116, 279 P. 925, 926, (1929), said:

“An investigation by a grand jury or a preliminary examination by a magistrate is not a trial, arid the rules of evidence are not applied as rigidly as in the trial of a case before the court.” See also: Shapard v. State, Okl.Cr., 437 P.2d 565 (1967), at page 613.

We see no reason for changing the long standing practice in such matters, [717]*717and therefore conclude that petitioner’s contention in this respect has no merit. However, we further conclude that any contention alleging the abuse of discretion by the examining magistrate should properly be considered by this Court 'on appeal of the case. We also observe in this respect, and especially in this particular matter, that the preliminary examination is not properly the forum for the defense counsel to conduct his investigation of a witness’ former life. That is to be conducted by counsel, or his representative, outside the proceedings of the preliminary examination; and, whether or not such informational questions are proper is clearly within the discretion of the examining magistrate.

Concerning petitioner’s complaint that he was not permitted to record the testimony for his own use, we actually see little harm which would result therefrom, but consider the use of an electronic recording device, without a stenographer, to be left to the discretion of the magistrate. We observe that 22 Okl.St.Ann. § 258 provides in part, as follows:

“* * * On the request of the [district attorney], or the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witness, or the same may be taken in shorthand and transcribed without signing, and in both cases filed with the clerk of the district court, by the examining magistrate, * * (emphasis added)

In Davis v. State, 15 Okl.Cr. 386, 177 P. 621 (1919), this Court held:

The law not designating who may take in shorthand the evidence of a witness at an examining trial, any stenographer may do so.

We observe however, when that decision was rendered the use of electronic devices was unknown; and when the testimony was transcribed by the stenographer, it was verified by the stenographer for filing by the examining magistrate.

Insofar as the State now provides official court reporters for the purpose of preserving the record of proceedings, we are of the opinion that the use of a recording device by defense counsel, without being supplemented by a qualified stenographer, should be subject to certain conditions ; and further, whether or not the privilege is to be exercised is within the judicial discretion of the examining magistrate.

In the event the magistrate permits the exercise of the privilege of using a recording device alone, it should be clearly understood that such recording is only for the benefit of the defendant and shall not be considered an official record; and such understanding should appear in the official record or minutes of the examining magistrate. Further, if a record is being made by the court reporter, accused’s recording shall not be used to challenge the official record after it has been verified by the parties and filed with the district court clerk, by the magistrate. Likewise, the exercise of the privilege is subject to the actual physical conditions existent at the time and place where the preliminary examination is being held.

We do not consider it necessary to discuss each of petitioner’s specified complaints, listed and itemized “a. through g.” insofar as they are all related to the main question concerning the rules of evidence, and accused being restricted in his cross-examination of the witnesses.

We are therefore of the opinion, that the rules of evidence should not be rigidly applied during the preliminary examination of the accused; that the materiality of the questions propounded by counsel, as related to the issues involved in the proceeding, is left to the discretion of the examining magistrate; that any contention of the abuse of such discretion by the examining magistrate is a matter to be considered on appeal before this Court; and finally, whether or not the accused is to be permitted to utilize a recording device to transcribe the testimony of a preliminary examination is a matter left to the discretion of the examining magistrate, unless such [718]*718recording is supplemented by a qualified stenographer capable of transcribing the testimony, as provided in the statutes, and verifying the transcript thereof.

While there is considerable merit to certain aspects of Judge Nix’s dissent hereto, the instances to which he makes reference —wherein the use of recording devices is permitted — each example he gives is exercised under the supervision of the court, including that of the court reporter. If it be said that defense counsel has a right to bring a tape recorder into the courtroom —with or without the magistrates permission — then the next declared right will be, that he is permitted to bring his own movie camera or video-tape apparatus to photograph the proceedings. In substance, what Judge Nix is saying is true, so long as it is maintained under the supervision and authority of the Court.

Referring to his lack of understanding, or bewilderment, concerning the stenographer requirement, we believe the stenographer is necessary under the Statute to provide any subsequent certification for the transcribed testimony, when no court reporter is present. It is not the function of this Court to read into the Statutes provisions which are not there in the nature of amendment. If Section 258 of Title 22 is to be amended to include the right of defense counsel to use recording devices, it is for the Legislature to make that provision.

Therefore, notwithstanding my colleague’s dissent, the Writ prayed for is denied.

BUSSEY, J., concurs. NIX, J., dissents.

Cite This Page — Counsel Stack

Bluebook (online)

1969 OK CR 187, 455 P.2d 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magill-v-miller-oklacrimapp-1969.

Opinions

Related

Cite This Page — Counsel Stack